IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 315 of 2011
With
CIVIL APPLICATION No. 9249 of 2011
In APPEAL FROM ORDER No. 315 of 2011
With
CIVIL APPLICATION No. 13127 of 2011
In APPEAL FROM ORDER No. 315 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= KIRAN KRISHNAKANT MAJMUDAR - Appellant(s) Versus AEKADASHI ENTERPRISE THROUGH BIPINCHANDRA SHANTILAL & 6 -
Respondent(s) =========================================================
Appearance :
MR DC DAVE, SR.ADVOCATE FOR M/S TRIVEDI & GUPTA for Appellant(s) : 1, MRS KETTY A MEHTA for Respondent(s) : 1 - 2. MR MM SAIYED for Respondent(s) : 1 MR RITURAJ M MEENA for Respondent(s) : 3, MR KASHYAP R JOSHI for Respondent(s) : 4 - 7.
========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 07/11/2012 CAV JUDGMENT
1. This appeal is filed challenging the order dated 18.8.2011 passed by learned 2nd Addl.Sr.Civil Judge, Bharuch below temporary injunction application, Exh.5 in Special Civil Suit No.25 of 2010 whereby the learned Civil Judge was pleased to dismiss said application. The appellant herein is plaintiff in said suit and the respondents No.1 to 7 are defendants in said suit and, therefore, for the sake of convenience, the appellants and the respondents shall be hereinafter referred to as the plaintiff and the defendants respectively.
2. The plaintiff filed above suit against the defendants seeking reliefs including the specific performance of an agreement to sale of the suit properties, more particularly described in paragraph 1(A) and paragraph 1(B) in the plaint. The agreement is dated 9.11.2005. The plaintiff prayed other ancillary reliefs like permanent injunction etc. in the suit. In the suit, the plaintiff filed an application below Exh.5 seeking temporary injunction under Order 39 Rule 1, 2 of the Code of Civil Procedure ('CPC', for short). In the said application, the plaintiff prayed for temporary injunction, restraining the defendants, their agents and servants etc. from entering into the suit properties and from causing any obstruction or interference in the peaceful possession of the plaintiff of the suit properties, so also to temporary restrain them from transferring or alienating the suit properties till pendency and final disposal of the main suit. It further transpires that initially, the plaintiff filed the aforementioned suit against the three defendants, namely, the respondents – defendants No.1, 2 and 3. Perusing the order passed by the civil Court below application, Exh.25, the respondents – defendants No.4 to 7 came to be impleaded in the pending suit. By initial order dated 9.4.2010, the learned Civil Judge did not grant any ex-parte ad- interim injunction against the defendants, but ordered to issue show-cause notices. After considering the materials placed on record by both the sides, so also considering the submissions advanced on behalf of both the sides, ultimately, by virtue of the impugned order, the learned Civil Judge was pleased to dismiss the said application. In this appeal, vide order dated 30.8.2011, the instant appeal came to be admitted and both the parties were directed to maintain status-quo till further orders.
3. Mr.DC Dave, learned senior counsel for M/s.Trivedi & Gupta, learned advocate for the appellant – plaintiff, at the outset, submitted that initially the suit properties belonged to one Niranjanbhai Patel and said Niranjanbhai and the defendant No.3 Shri Ashvinbhai entered into an agreement for sale of the suit properties on 31.8.2005. The said agreement for sale was executed by Niranjanbhai in favour of defendant No.3 Ashvinbhai and the defendant No.3 agreed to purchase said land on behalf of the defendant No.1 Aekadashi Enterprise, a partnership firm. Thereafter, certain dispute took place between Niranjanbhai and the partnership firm and Niranjanbhai filed Special Civil Suit No.13 of 2007 and in said suit, the consent decree came to be passed and pursuant thereto, Niranjanbhai executed the sale-deed in favour of defendants No.2 and 3 for the defendant No.1 partnership firm on dated 14.9.2007. Mr.Dave, learned sr.counsel submitted that in the meanwhile, on 9.11.2005, the defendant No.3 Ashvinbhai executed an agreement for sale of the suit properties in favour of the plaintiff. It is submitted that considering the said document, the suit properties consist of certain open non-agricultural lands, so also the lands of the proposed construction and consideration amount was agreed to be Rs.61,13,831/- and at the time when the document was executed, Rs.29,50,000/- were paid by the plaintiff to the defendant No.3
Mr.Dave, learned sr.counsel submitted that thereafter on 15.11.2005, an important document came to be executed by the defendant No.3 in favour of the plaintiff regarding handing over the possession of the suit properties to the plaintiff and in said document, it has been specifically stated that further Rs.1,75,000/- came to be paid by the plaintiff to the defendant No.3 and the plaintiff assured that Rs.7,00,000/- more shall be paid on 19.9.2006. Mr.Dave, learned sr.counsel submitted that thus since 15.11.2005 and onwards the suit properties remained in possession of the plaintiff. My attention was also drawn to one another document dated 22.11.2005 executed by the defendant No.3 in favour of the plaintiff regarding receipt of total amount of Rs.31,25,000/-. Pursuant to the agreement for sale, Rs.29,50,000/- was paid at the time when the agreement for sale dated 9.11.2005 was executed and Rs.1,75,000/- was paid on 15.11.2005. The actual possession of the suit properties came to be handed over by the defendant No.3 to the plaintiff.
3.1 Mr.Dave, learned sr.counsel for the appellant – plaintiff asserted that, thereafter, on 19.6.2006, the amount of Rs.7 Lac came to be paid by the plaintiff to the defendant and the defendant received said amount for and on behalf of the defendant No.1 partnership firm. It is submitted that a vague defence was taken by the defendants No.1, 2 and 3 to the effect that the agreement for sale in fact did not contain any agreement for sale of the suit properties itself, but since the defendants were in need of money, which was to be paid to Niranjanbhai Patel, the original owner of the properties, they borrowed money from the plaintiff and the same was paid to Niranjanbhai and Niranjanbhai, subsequently, in the year 2007, executed a registered sale-deed. It is, therefore, submitted that a complete vague and evasive defence is raised that the transaction was in fact a loan transaction and not an agreement for sale. Mr.Dave, learned sr.counsel submitted that as a matter of fact, the trial Court should not have accepted even at this stage such vague and evasive defence raised by the defendants, as against the documentary evidence like the agreement for sale, possession receipt and money receipt.
3.2 Mr.Dave, learned sr.counsel for the appellant – plaintiff further submitted that there is no dispute that the agreement for sale is not registered and is an unregistered document, but still, at this stage, the trial Court should not have dealt with this aspect of the matter and more particularly, when there is a part performance of the contract, namely, handing over the actual possession of the suit property by the defendants to the plaintiff. It is further contended that considering the Court Commissioner's report, the possession of the plaintiff is prima-facie established. It is submitted that the defendants admitted the possession of the plaintiff, but again they contended that the plaintiff is a trespasser, but even prima- facie said fact is not established.
3.3 Mr.Dave, learned sr.counsel submitted that considering the impugned order passed by the trial Court, the trial Court clearly observed that there are certain aspects, which require evidence and, thus, it can safely be said that triable issues are involved in the matter and the trial Court, therefore, should have allowed the temporary injunction application. The defendants No.1, 2 and 3 about the payment of Rs.7 Lacs by cheque by the plaintiff to the defendants contended that though on 19.9.2006, they received Rs.7 Lacs by encashing the cheque, but that was also a loan transaction. The defendants contended that on 4.8.2006, since the plaintiff was in need of money, Rs.7 Lacs came to be paid by the defendant No.2 Bipinbhai to the plaintiff and on 19.6.2006, the plaintiff returned said amount to the defendants. It is submitted that the plaintiff produced relevant passbooks, so also the certificate issued by the Manager of the concerned bank and there is nothing that on 4.8.2006, the plaintiff was in need of money. As on that date, approximately Rs.12 Lacs were in his balance. Mr.Dave, learned sr.counsel, therefore, submitted that the plaintiff prima-facie established that out of the consideration amount, Rs.7 Lacs came to be paid by cheque by the plaintiff to the defendants and the defendants encashed said cheque and received the amount. It is, therefore, submitted that when such is the situation, the trial Court should have believed that the plaintiff establishes prima- facie case.
3.4 It has been submitted on behalf of the appellant – plaintiff that the defendants came with a defence that a huge amount was borrowed by the defendants from HUDCO for development of the suit properties and construction work came to be carried out from the amount borrowed from HUDCO. The defendants contended that before the loan was sanctioned, public notice was issued, but the plaintiffs did not raise any objection. Mr.Dave, learned sr.counsel submitted that there was no reason for the plaintiff to raise any objection, since in the agreement for sale itself, the defendants agreed to develop the land and, therefore, the loan transaction between HUDCO and the defendants was not contrary to the interest of the plaintiff.
3.5 Mr.Dave, submitted that the defendants raised one more false and fabricated defence that the plaintiff is a trespasser and the defendants produced two applications addressed to the concerned police station, one by Mr.Sashank Bhatt, so-called present partner of the defendant No.1 firm and another by one Sushmaben, a proposed purchaser. It is submitted that though Sashank Bhatt sent application to the police, complaining about so-called trespass before the suit came to be filed by the plaintiff, but in the said application, nowhere the name of the plaintiff is given. The application allegedly sent by Sushmaben to police, was sent after the suit was filed. It is, therefore, submitted that such evidence does not help the defendants to justify their defence that the plaintiff is trespasser.
3.6 Mr.Dave, learned sr.counsel asserted that despite the fact that the agreement for sale was executed by the defendant No.3 in favour of the plaintiff, the defendant No.1, 2 and 3 attempted to dispose of the properties and, therefore, the respondents – defendants No.4 to 7 were impleaded in the suit. Mr.Dave, learned sr.counsel submitted that though the defendant No.3 executed the agreement for sale on behalf of the firm, but subsequently, he turned around and there is apparent collusion between himself and the defendants No.1 and 2 as in the written statement filed by the defendant No.3, he almost accepted the false and fabricated defence raised by the defendants No.1 and 2 in their written statement. Thus, their collusion is apparent on the record itself.
3.7 Mr.Dave, learned sr.counsel for the appellant – plaintiff submitted that in the suit, the trial Court has already framed issued and the suit is now pending for recording of evidence and since while admitting this appeal, this Court directed both the parties to maintain status-quo, if said order is extended till the disposal of the suit with further direction to the trial Court to dispose of the suit within a stipulated time, no injustice shall be caused thereby to the respondents.
3.8 Mr.Dave, learned sr.counsel relied upon certain decisions, which shall be discussed in this judgment at relevant time. Ultimately, it is submitted that the appeal may be allowed.
4. Per contra, Mrs. Ketty Mehta, learned advocate for the respondents No.1 and 2 (original defendants No.1 and 2), at the outset, fully supported the impugned order passed by the trial Court and submitted that the order passed by the trial Court is clearly a discretionary order and there is nothing that the trial Court has exercised the discretion while dismissing the temporary injunction application, either arbitrarily or capriciously or perversely or had ignored the settled principles of law. It is, therefore, submitted that in this appeal preferred under Order 43 Rule 1(r) of the CPC, no interference of this Court in the impugned order is warranted.
4.1 Mrs.Mehta, learned advocate for the respondents No.1 and 2 contended that considering the agreement for sale dated 9.11.2005 and considering other attended circumstances, admittedly, on 9.11.2005, neither the defendant No.3 nor the partnership firm was owner of the suit properties and the title was never transferred to them, as at the relevant point of time admittedly one Niranjanbhai was the owner of the properties and he sold by registered sale-deed the suit properties much later than dated 9.11.2005 as the sale-deed came to be registered on 14.9.2007. She submitted that even the plaintiff was knowing this aspect fully well because when Niranjanbhai Patel filed the suit against the firm and its partners in connection with the agreement for sale dated 31.8.2005, the mother of the plaintiff used to attend the Court and the plaintiff was fully aware about the fact that on 9.11.2005, the defendant No.3 in his individual capacity, so also in capacity as partner of the firm was not the owner of the properties. It is, therefore, submitted that on 15.11.2005 i.e. after about one week from the execution of agreement for sale, the plaintiff was not given physical possession of the suit properties as the firm was not the owner and in possession of the suit properties, so as to transfer the same in favour of the plaintiff. It is submitted that, if at all on 15.11.2005, pursuant to the so-called document, the plaintiff received possession of open lands, as well as the properties consist of incomplete constructions as per the document, then there is nothing on record that, subsequently, it was the plaintiff, who obtained any sanction from the competent authority to make any construction work on the land. It is submitted that on the contrary, the documentary evidence reveals that it was the partnership firm, which made the construction work and sold certain bungalows by executing registered sale-deeds in the year 2009-2010 to the defendants No.4 and 5 and entered into agreements with defendants No.6 and 7 in the said year. It is submitted that defendants No.4 and 5 purchased bungalows and it cannot be presumed that they paid full consideration amount and sale-deeds came to be registered in their favour without any possession. It is, therefore, submitted that the very base of the case of the plaintiff that on the date of the filing of the suit, the plaintiff was in actual and physical possession of the suit properties, is prima- facie not established. She submitted that the report of the Court Commissioner is insignificant because before filing the suit, the plaintiff through his security guards etc. had broken open locks of certain bungalows and trespassed into them and about one months prior to the date of the filing of the suit, a new partner of the firm, namely, Sashankbhai had lodged criminal complaint before police. This fact will prima-facie rule out the evidential value of the Court Commissioner's report. It is submitted that in the suit filed by Niranjanbhai, Court Commissioner was appointed and in the report of said Court Commissioner, nothing appears that the actual and physical possession was of the plaintiff.
4.2 Mrs.Mehta, learned advocate for the defendants No.1 and 2 submitted that it is very difficult to believe that large sum to the tune of Rs.31,25,000/- came to be paid by cash by the plaintiff to the defendants. In support of such payment by cash, no prima- facie evidence is produced. About the cheque of Rs.7 Lacs, Mrs.Mehta, learned advocate for the defendants No.1 and 2 submitted that by documentary evidence, namely, passbook of defendant No.2, it is established that Rs.7 Lacs came to be paid on 4.8.2006 to the plaintiff as he was in need of money. It is submitted that the plaintiff encashed said cheque in a Sharafi Pedhi, named, Punamchand Devchand. If at all there was bonafide intention in the mind of the plaintiff, he could have deposited said cheque in his bank account. It is submitted that the said amount subsequently came to be repaid on 19.9.2006, which the defendant No.2 received. Thus, prima-facie, regarding the cheque of Rs.7 Lacs, there is no nexus between the said amount and the agreement for sale.
4.3 Mrs.Mehta, learned advocate for the defendants No.1 and 2 submitted that if any co-defendant in the written statement concurs with the defence raised by other defendant, it cannot be said that there is a collusion between them. Mrs.Mehta, learned advocate, therefore, submitted that no interference is required in the impugned order passed by the trial Court. She relied upon certain decisions, which shall be discussed in this judgment at the relevant time.
5. Mr.Kashyap Joshi, learned advocate for the respondents No.4 to 7 in his submissions stated that despite the fact that neither in the plaint nor in the temporary injunction application, Exh.5,the plaintiff claimed any relief against these defendants, yet, because of the status-quo order passed by this Court, they are suffering great loss. It is submitted that defendants No.4 and 5 are in actual and physical possession of bungalows for which they had paid consideration amount to the defendant No.1 firm, and qua the defendant Nos.6 and 7 agreements have been executed. In the suit, the plaintiff did not claim any relief for cancellation of the sale-deeds or the agreements. It is, therefore, submitted that no interference is warranted in the discretionary order passed by the trial Court. Mr.Joshi relied upon certain decision, which shall be discussed in this judgment at relevant time.
6. I have taken into consideration the detailed submissions advanced on behalf of both the sides, so also the impugned order passed by the trial Court and relevant materials, produced by both the sides in form of paper- books. At the outset, there is no dispute that the impugned order passed by the trial Court under the exercise of powers vested in it under Order 39 Rule 1,2 of the CPC is a discretionary order. Needless to say that the instant appeal filed under Order 43 Rule 1(r) of the CPC is virtually challenging the discretionary order passed by the trial Court. In the case of Ramdev Food Products Pvt.Ltd. Vs.Arvindbhai Rambhai Patel & Ors. reported in 2007(1) GLR 594, Hon'ble the Apex Court has specifically observed that the Appellate Court can interfere with the order of the trial Court, if it is found that discretion has been exercised by the trial Court arbitrarily or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunction. It is further made clear that in appeal against order granting or refusing interim injunction, the Appellate Court shall not interfere when the view taken by the lower Court is not capricious or unreasonable or merely because another view is possible. Thus, virtually, the powers conferred in the Appellate Court are very limited and in that context, the instant appeal is required to be considered.
7. In the impugned order passed by the trial Court, the trial Court, at length, took into consideration the relevant documents placed on record by both the sides. There is no dispute that on 9.11.2005, when the agreement for sale of the suit properties came to be executed, neither the firm (defendant No.1) nor its partners (defendants No.2 and 3) were the owners of the suit properties. The original owner was Niranjanbhai Patel and it is true that on 31.8.2005, an agreement for sale of the suit properties came to be executed by Niranjanbhai Patel in favour of defendant No.3 Ashvinbhai in his capacity as partner of the firm. It also prima-facie appears that certain dispute took place between Niranjanbhai on one hand and the partnership firm on other hand and in the year 2007, Niranjanbhai filed Special Civil Suit No.13 of 2007 in connection with the agreement for sale dated 31.8.2005 and in the said suit, a compromise was arrived at and pursuant thereto, a registered sale-deed was executed on 14.9.2007 in favour of the defendants No.1,2 and 3 and more particularly, the partnership firm and since then, the title in the suit properties came to be transferred in favour of the firm. However, considering the agreement for sale dated 9.11.2005, there is no reference about the fact that on said date, the defendant No.3 nor the defendant No.1 firm was the owner of the properties. Apart from that, considering the agreement, the consideration amount, which came to be agreed upon was Rs.61,13,831/- and out of them, Rs.29,50,000/- came to be paid by the plaintiff to the defendant No.3. There is no dispute that as per the case of the plaintiff, said Rs.29,50,000/- came to be paid by cash. Considering the second document dated 15.11.2005, which document is considered by the plaintiff as possession receipt, Rs.1,75,000/- more came to be paid by cash and, thus, as per the case of the plaintiff, as on 15.11.2005, in all, Rs.31,25,000/- came to be paid by cash. Almost identical was the situation in the case of Harshadkumar Kantilal Bhalodwala & Anr. Vs.Ishwarbhai Chandubhai Patel & Ors. reported in 2010(2) GLR 1041. Considering the facts of said case, in a suit for specific performance of an agreement for sale of an immovable property, the plaintiff in said matter came forward with a case that Rs.4,50,000/- was paid in cash. In paragraph 6 in said decision, this Court elaborately dealt with this aspect of the matter and took into consideration the averments made in the agreement itself regarding payment and receipt of Rs.4,50,000/- by cash and also there was a separate receipt, which came to be executed, and it was observed that when such payment is in dispute, the initial burden to prima-facie prove such payment, which is alleged to have been paid by cash is upon the plaintiff, who asserts that the said amount was paid by him. In such circumstances, the plaintiff is required to produce some evidence to show that whether he had withdrawn said amount from any bank account or he had borrowed from anyone. In the said case, except such averments made in the document regarding payment and receipt of Rs.4,50,000/- by cash, the plaintiff failed to produce anything to show that while making the payment of Rs.4,50,000/- as alleged, he had withdrawn the said amount from any bank account or he has borrowed from any one. In the said case, ultimately, the temporary injunction order, which the trial Court had granted, came to be vacated by allowing said appeal. Applying the ratio laid down by this Court in the said case, in the instant matter, prima-facie, there is no dispute that at this stage, the plaintiff did not produce any prima-facie evidence showing withdrawal of the amount to the tune of Rs.31,25,000/- from his bank account or that he borrowed said amount and, ultimately, paid to the defendants.
8. However, about the alleged payment of part of the consideration amount, namely, Rs.7 Lacs by cheque, there is dispute between the parties. The plaintiff has come forward with a case that on 19.9.2006, the plaintiff paid said amount by cheque to the defendants. It has been submitted that considering the document dated 15.11.2005, in it, it has been specifically undertaken that on 19.9.2006, the plaintiff will pay Rs.7 Lacs to the defendants. On behalf of the plaintiff, it was tried to be submitted that if at all the said payment was made by the plaintiff in favour of the defendants by cheque, by way of repayment of a loan amount as contended by the defendants, then in the document dated 15.11.2005, there was no necessity to make reference of proposed payment of Rs.7 Lacs on 19.9.2006 and it was also submitted that this can never be termed as sheer coincident. Further in this respect, considering the impugned order passed by the trial Court, the trial Court came to the conclusion that there is a basic dispute between the parties as to whether the payment of Rs.7 Lacs by cheque was payment towards part of the consideration amount or it was mere repayment of loan amount. The defendants contended that since the plaintiff was in need of money and, therefore, on 4.8.2006, the defendant No.2 paid Rs.7 Lacs by cheque to the plaintiff in the name of Bhumi Developers. To prima-facie substantiate said contention, the defendant produced in the suit the xerox copy of the cheque dated 4.8.2006 said to have been signed by the defendant No.2 Bipinbhai so also the copy of the passbook of defendant No.2 Bipinbhai, showing that on 5.8.2006, the said cheque was encashed by Bhumi Developers and Rs.7 Lacs are shown to be debited in his account. It would not be appropriate for this Court to examine in detail this aspect of the matter, but, suffice it to say that prima- facie, the cheque was not deposited in the regular bank account of the plaintiff, but the same was deposited in a Sharafi Pedhi, named, Punamchand Devchand and considering the certificate issued on behalf of Punamchand Devchand dated 2.6.2011, produced in the suit, a partner of Punamchand Devchand stated that the plaintiff is proprietor of Bhumi Developers and there is his account with Punamchand Devchand. However, in the certificate dated 2.6.2011, on behalf of Punamchand Devchand, it was stated that, on 5.8.2006, no cheque of Rs.7 Lacs came to be deposited in the account of Bhumi Developers. However, Mrs.Mehta, learned advocate for the defendants No.1 and 2 submitted that subsequent to the date of order passed by the trial Court below application Exh.5, the defendant received another certificate issued by partner of Punamchand Devchand and the same has been produced in the record of the suit with list, Exh.74 and its copy was tendered for my perusal wherein it appears that the partner of Punamchand Devchand on 12.3.2012, stated that in connection with the cheque of Rs.7 Lacs dated 4.8.2006, one Lalitbhai Patel, a representative of Bhumi Developers encashed said cheque and took away cash amount. Be that as it may, but, the findings prima-facie arrived at by the trial Court that about the payment of Rs.7 Lacs, there is a dispute between the parties as to whether said payment was towards part of the consideration amount or was loan transaction, cannot be said to be either arbitrary, capricious or perverse exercise of discretionary powers.
9. Thus, about the major payment of part of the consideration amount, namely, the payment by cash of Rs.31,25,000/-, there is no prima- facie evidence, since the alleged payment was made by cash. About Rs.7 Lacs, again there is a basic dispute, as seen above.
10. The plaintiff came forward with a case that since 15.11.2005, he is in actual and physical possession of the suit properties. Considering the document dated 15.11.2005, said to have been a possession receipt, again, it is unregistered document. It is pertinent to note that though in the deed of agreement for sale dated 9.11.2005, it has been specifically stated that the possession will be handed over only after the actual payment of Rs.35,27,987/-. As averred in the document dated 15.11.2005, till date, the alleged payment was of Rs.31,25,000/-. Moreover, considering the document, it is stated that the open plots agreed to be sold as well as certain plots wherein there was incomplete construction work, came to be handed over by the defendant No.3 to the plaintiff. It has been rightly submitted on behalf of the defendants No.1 and 2 that if at all certain plots wherein there was incomplete construction work, came to be handed over to the plaintiff on 15.11.2005, then, who completed the remaining construction work? It is pertinent to note that the plaintiff neither pleaded in the plaint or in the application, Exh.5, nor any document is produced showing that any sanction for the construction work in the plots was obtained by him from the competent authority. It is further pertinent to note that if the incomplete construction work was handed over to the plaintiff in the year 2005, then it is nowhere the case that the incomplete construction work was completed by him and bungalows were constructed by him. On the contrary, as seen above, qua defendants No.4 and 5, final sale-deeds came to be executed by defendant No.1 firm regarding the bungalows and considering the copies of sale-deeds executed in favour of the defendants No.4 and 5, it transpires that the said transaction took place in the year 2009-2010 and even possession of the bungalows were handed over to them.
11. On behalf of the plaintiff, much reliance was placed upon the Court Commissioner's report dated 2.5.2010. It appears that during the pendency of suit in the trial Court, the Court Commissioner came to be appointed and there is a reference in the report that on some of the bungalows, there were name plates of the plaintiff. Thereby on behalf of the plaintiff, it was submitted that the actual and physical possession of the plaintiff is prima-facie established. However, in this respect, the defendants have produced relevant copies of police complaints regarding the trespass. The complaints were made by one Sashank Bhatt, the incoming partner in the defendant firm as well as by one Sushmaben Mayurbhai. However, considering the copies, it is true that so far as Sushmaben Mayurbhai is concerned, she registered the FIR regarding the trespass against the plaintiff and others on 22.4.2010 i.e. after the filing of the suit, but considering the copy of the complaint lodged before police by Sashank Bhatt, it appears that his complaint is dated 31.3.2010 i.e. about one month prior to the date of the filing of the suit. On behalf of the plaintiff, it was tried to be submitted that in the complaint filed by Sashank Bhatt, no name of the plaintiff is mentioned. However, mere non-mention of name of the plaintiff may not be significant, but considering the said complaint, it has been alleged that certain security persons had broken open the locks and despite the fact that searching inquiry was made by Sashank Bhatt to those security person, they were not ready to disclose the name of the persons, who sent them. Moreover, in light of the entire above discussion regarding the subsequent sale of bungalows to the defendants No.4 and 5 and agreements entered into by the firm in favour of the defendants No.6 and 7 and those transactions having been undertaken in the year 2009 – 2010 and further the other attended circumstances, the trial Court in the impugned order, at this stage rightly did not pay much reliance upon Court Commissioner's report. It further transpires that even when the former owner of the properties, namely, Niranjanbhai filed civil suit No.13 of 2007, in that suit also, Court Commissioner was appointed, but the report of said Court Commissioner does not prima-facie throw any light on this issue.
12. One important fact, which the trial Court took into consideration is the fact regarding the huge amount obtained by the defendant firm from HUDCO by way of loan to undertake construction work in the suit properties. It transpires that in the year 2006 – 07, HUDCO sanctioned loan in favour of the defendant firm and before sanctioning the loan, a public notice was issued and pursuant to said public notice published in the newspaper, none raised any objection including the plaintiff. It has been submitted on behalf of the plaintiff that since the development was part of the agreement, he did not raise any objection, but that runs counter to his case that he was in actual and physical possession of the suit properties. As seen above, in that case, a question may arise as to what was the need of the plaintiff to take possession of even incomplete construction work, on 15.11.2005. It would not be appropriate for this Court to go much deep into this aspect of the matter as the suit is yet to be tried by the trial Court. Suffice it to say that the fact regarding the institution like HUDCO sanctioning loan in favour of the defendant firm in the year 2006 – 2007 is prima-facie the evidence, which is required to be seen in connection with the defence of the defendants.
13. On behalf of the appellant – plaintiff, reliance was placed upon the case of Tamilnadu Electricity Board and Anr.Vs.N.Raju Reddiar & Anr. reported in AIR 1996 SC 2025 so also in the case of Bank of India & Anr.Vs.K.Mohandas & Ors. reported in (2009)5 SCC 313 and it was submitted that when there is documentary evidence like agreement for sale, possession receipt etc., then the defence of the defendants, contrary to the terms of the written agreement, cannot be accepted. In support thereof, Sections 91 and 92 of the Evidence Act was relied upon. However, at this stage, this Court is the opinion that no elaborate discussion is required to be made on this aspect, since the suit is yet to be tried by the trial Court. Moreover, the defence raised by the defendants touches the very nature of the transaction. In the facts and circumstances of the cases relied upon, the Hon'ble Apex Court observed that oral evidence cannot be led to ascertain terms of the contract. In the instant case, the suit is yet to be tried. Suffice it to say that even about the cash payment pursuant to the document, no prima-facie proof is adduced by the plaintiff.
14. Reliance was placed on behalf of the appellant – plaintiff in the case of Maharwal Khewaji Trust Vs.Baldev Dass reported in AIR 2005 SC 104 wherein the Hon'ble Apex Court observed that allowing changes of status-quo of property during pendency of litigation is not justified except in exceptional circumstances. However, in said case, the High Court did not examine the case of the plaintiff on merits and did not deal with the important aspect of the matter as to whether there was a prima- facie case or not, but the status-quo granted by the trial Court came to be disturbed by the High Court on the ground that legal proceedings would take long time. Thus, in the peculiar facts in said case, ultimately, Hon'ble the Apex Court observed that the status-quo should not have been disturbed.
15. Reliance was placed upon the case of M/s.Julien Educational Trust Vs.Sourendra Kumar Roy reported in AIR 2009 SC (Supp.) 2180. Considering the facts of said case, the defendants admitted the agreement for sale having been entered into with the plaintiff and even they agreed with the draft of final sale-deed prepared by the plaintiff. There was no justification for the defendant to not to execute final sale-deed in favour of the plaintiff. In that background, the Hon'ble Apex Court observed that if the respondent – defendant was allowed to commercially exploit the suit property, the entire object of filing of the suit by appellant plaintiff would be rendered meaningless. Moreover, Hon'ble the Apex Court came to the conclusion that the plaintiff established prima-facie case. In that background, the above observation was made by the Hon'ble Apex Court.
16. Since in the instant case, both the documents, namely, the agreement for sale so also the possession receipt are unregistered documents, on behalf of the appellant – plaintiff, reliance was placed upon the case of Shrimant Shamrao Suryavanshi Vs.Prahlad Bhairoba Suryavanshi reported in (2002)3 SCC 676. In the said case, Hon'ble the Apex Court observed that the person obtaining possession of the property in part performance of an agreement for sale can defend his possession in a suit for recovery of possession filed by the transferer or by subsequent transferee of the property even if a suit for specific performance of the agreement of sale has become barred by limitation. There cannot be any dispute regarding the ratio laid down by the Hon'ble Apex Court in said decision, but in the instant matter, examining the materials on record, the trial Court observed that the plaintiff failed to establish his prima-faice possession of the suit properties and this Court does not find any reason to interfere with said observation. Under such circumstances, the case relied upon may not help the appellant – plaintiff at this stage.
17. On behalf of the appellant – plaintiff, reliance was placed upon the case of Sanganer Dal and Flour Mill Vs.FCI and Ors. reported in (1992)1 SCC 145 wherein it has been observed that a partner of a partnership firm has implied authority to enter into the transaction which binds the partnership firm itself. There cannot be any dispute regarding such proposition. However, in the facts and circumstances of the case, at this stage in this appeal from order, this decisions may not be helpful to the appellant – plaintiff.
18. On behalf of the defendants, reliance was placed upon the case of Kashi Math Samsthan Vs.Srimad Sudhindra Thirtha Swamy reported in AIR 2010 SC 296. In said case, in paragraph 13, Hon'ble the Apex Court observed as under:-
“13. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted.”
19. In above view of the matter and considering the entire above discussions, this Court is of the opinion that no interference by this Court is warranted in the discretionary order passed by the trial Court. There does not appear that the discretion exercised by the trial Court in refusing to grant interlocutory injunction is either arbitrary or capricious or perverse or that the trial Court ignored the settled principles of law. Under such circumstances, the instant appeal deserves to be dismissed. At the same time, considering the facts and circumstances of the case and further considering the fact that the suit is of the year 2010 and considering the submission that in this suit, the trial Court has already framed issues, it would be in the interest of justice, if the trial Court is directed to expedite the trial of the suit and dispose of the suit in accordance with law expeditiously, preferably within six months from the date of communication of this order. It will further be pertinent to clarify that the trial Court shall decided the suit in accordance with law uninfluenced by any observation made by the trial Court in the impugned order so also uninfluenced by any observation made by this Court in this judgment.
20. For the foregoing reasons, the appeal from order stands dismissed. Interim directions issued by this Court in order dated 30.8.2011 in Civil Application No.9249 of 2011 directing both the parties to maintain status-quo till further order stands vacated. The trial Court is directed to expedite the trial of Special Civil Suit No.25 of 2010 and to dispose of the suit in accordance with law and on the basis of the evidence that may be adduced before the trial Court, uninfluenced by whatever observation made by the trial Court in the impugned order, so also uninfluenced by any observation made by this Court in this judgment and order.
21. Since the appeal from order stands dismissed, civil applications lose their survival value and also stand dismissed.
(binoy) (J.C.UPADHYAYA, J.) Further order dated 7.11.2012 After the above order was pronounced and signed, Mr.Jigar M.Patel, learned advocate for Mr.Abhishek Mehta, ld.advocate for M/s.Trivedi & Gupta for the appellant requested that the interim order passed on dated 30.8.2011 in Civil Application No.9249 of 2011 directing both the parties to maintain status-quo till further order, may be further extended, so as to enable the appellant to move higher forum. However, Mr.Saiyed, learned advocate for the respondent No.1 and Mr.Joshi, learned advocate for respondents No.4 to 7 vehemently opposed this submission and submitted that since in the suit, there was no status-quo order passed by the trial Court and, therefore, request may not be considered. Considering the submissions advanced and further considering the fact that vide order dated 30.8.2011 passed in Civil Application No.9249 of 2011, this Court directed both the parties to maintain status-quo till further order, this Court is of the opinion that the said order should be further extended for four weeks with the condition that there shall be no more extension.
(binoy) (J.C.UPADHYAYA, J.)