1. The present Appeal from Order has been filed by the appellant-original plaintiff being aggrieved with the impugned order passed below Exh.5 in Special Civil Suit No.78/2011 by 2nd Additional Sr. Civil Judge, Ankleshwar dated 26.12.2012 refusing the injunction on the grounds stated in the memo of appeal.
2. Heard learned counsel, Shri Jay Thakkar for the appellant.
3. Learned counsel, Shri Thakkar has submitted that the Court below has committed an error in deciding the validity of the document at the interim stage. He has also referred to and relied upon the judgment of the High Court in case of Nitinkumar Laxmidas & Ors. Vs. Smt. Savitaben Pranshanker, reported in 1996 (1) GLR 560 and submitted that in that matter, the observations have been made with regard to the provision of Section 49 of the Registration Act and non-registration of an agreement, which is otherwise required to be registered, would not affect the right of the plaintiff. He has also referred to and relied upon the order of the High Court (Coram : J.C. Upadhyaya, as he then was) passed in Appeal from Order No.120 of 2011 dated 08.05.2012, more particularly, para no.7.
4. Though the submissions have been made, as it appears from the background of the facts, which have been narrated and discussed in the impugned order, an agreement to sell is alleged to have been entered into, for which, consideration of Rs.10,000/- is stated to have been paid in cash and the possession is stated to have been handed over to the original defendants. Though the submissions have been made by learned counsel, Shri Thakkar for the appellant that the written statement has not been filed, as could be seen from the impugned order, the contention has been specifically raised with regard to the fact that the respondent-original defendant nos.1 to 5 have never entered into any such transaction and the entire transaction is bogus. Further it is categorically stated that the signatures are not made on any such document and it has also reference to the correspondences through the lawyer, where there is specific denial to a legal notice stating same thing that no such transaction has been entered into. It is in this background when the suit has been filed for specific performance, the Court has considered the rival submissions and was not inclined to grant any injunction. It is required to be mentioned that when the plaintiff claims for the payment of cash consideration, he ought to have produced some material in support of such payment as consideration is paid in cash. Therefore, the observations made by the High Court in a judgment in case of Harshadkumar Kantilal Bhalodwala & Anr. Vs. Ishwarbhai Chandubhai Patel & Ors., reported in 2010 (1) G.L.H. 151 would not be attracted. Further when the execution of the banakhat itself is disputed, for which, in reply to the legal notice also, it has been stated that there is no justification or clarification made by the appellant-plaintiff. Reference to the provisions of the Registration Act has been made and the learned counsel, Shri Thakkar is justified in making submission that even though it may not have registered, it could be considered for the purpose of deciding such application. However, it would be a matter of appreciation of evidence when the execution is disputed on one hand and there is a specific contention about the execution of such document before the Notary. Therefore, the injunction, which has been refused, cannot be said to be erroneous. The Court has specifically observed that the plaintiff has failed to establish prima facie case and balance of convenience is also not in favour of the plaintiff.
5. Therefore it is well accepted with regard to the guidelines and approach while deciding present Appeal from Order arising from the order of the trial court that normally the appellate court would not disturb the discretionary order unless it can be said to be perverse. In the facts of the present case, it cannot be said that the Court below has misdirected or has failed to consider relevant criteria for the grant of injunction. Therefore, the Hon ble Apex Court in a judgment in case of Wander Ltd. & Anr. Vs. Antox India P. Ltd., reported in 1990 (Supp) SSC 727 has made observation that even other view is possible by itself would not be sufficient to interfere with the discretionary order unless it can be said to be perverse. At the same time, the impugned order reflects about the consideration of the background of the facts and prima facie case and balance of convenience. Therefore, when there is no evidence or prima facie material for the payment of consideration, there are serious disputes with regard to the execution of the document itself. The injunction, which has been refused, cannot be said to be erroneous or perverse, which would call for any interference in the present Appeal from Order.
6. Therefore, the present Appeal from Order cannot be said to be erroneous and deserves to be dismissed in limine. Accordingly, the present Appeal from Order stands dismissed.
7. In view of dismissal of main Appeal from Order, Civil Application for stay does not survive and stands disposed of accordingly.
Sd/-
(RAJESH H.SHUKLA, J.) Gautam Page 5 of 5