Rule.
Learned counsel, Mr.S.M. Shah appearing with learned counsel, Mr.Y.V. Brahmbhatt for the respondents waives service of notice of rule.
The present Civil Application has been filed by the applicants for the stay of the impugned order passed by the Learned Main Senior Civil Judge, Nadiad in Special Civil Suit No.83/2000 dated 18.10.2011 pending aforesaid First Appeal.
Heard learned counsel, Mr.K.V. Shelat appearing for the applicants and learned counsel, Mr.S.M. Shah appearing with learned counsel, Mr.Y.V. Brahmbhatt for the respondents.
Learned counsel, Mr.Shelat has referred to the papers and affidavit-in-reply as well as rejoinder and referring to the rejoinder at Page No.45, he has drawn the attention to the banakhat/agreement to sale and submitted that as it is evident, it was by only one respondent and not the respondent no.5 only and there is no evidence as regards the power of attorney or that he had no right to enter into such banakhat as karta on behalf of all. He has also referred to other papers including vakalatnama produced to emphasize that they were not represented and no opportunity was given.
Per contra, learned counsel, Mr.S.M. Shah appearing with learned counsel, Mr.Brahmbatt has submitted that if the papers are seen, there is no evidence that they had not been given any opportunity and if they had any objection, which are sought to be raised at belated stage, it could have been raised at the relevant time and, therefore, the decree may not be stayed and the present Appeal may not be entertained. He has further stated referring to the Vakalatnama that same advocate had represented and it is signed by all. He has also therefore submitted that merely contention about the fraud would not be sufficient to reconsider the entire matter and unless there is evidence prima-facie, the same may not be relevant.
In view of the rival submissions, as it appears from the record that there is a specific contention raised by the appellant that they have right, title and interest in the property, for which, banakhat at Page No.45 has been entered into by only respondent no.5. There is prima-facie no evidence about his authority for and on behalf of all or others including the appellants. Further, though the submissions have been made by both sides, a bare perusal of the impugned order prima-facie suggests that it cannot be prima-facie accepted at this stage and the matter requires consideration.
Therefore, in view of the order passed in First Appeal, the present Civil Application deserves to be allowed. Ad-interim relief granted earlier is confirmed till final disposal of the above First Appeal. Rule is made absolute to the aforesaid extent.
Sd/-
(RAJESH H.SHUKLA, J.) /patil Top