Arvindbhai Mohanbhai Patel and 1 vs Chanchiben Bajidas Jesangdashji and 4

Honourable Mr. Justice Rajesh H. Shukla

The present Appeal from Order has been filed by the appellants-original plaintiffs under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 being aggrieved with the order passed in Special Civil Suit No. 171/2009 by the learned Principal Sr. Civil Judge, Gandhinagar, below Application Exh. 5 (for injunction) dated 14.8.2012 on the grounds stated in the memo of the present Appeal from Order. Heard learned advocate Mr. Vaibhav Vyas for the appellants. He has referred to the papers and tried to submit with a regard to the banakhat which has been entered into between the plaintiffs and respondent No. 1 and has submitted that as the document has not been executed in spite of the banakhat in favour of the present appellants-original plaintiffs, the suit has been filed. He further submitted that though there is a long delay the court below has committed an error in not considering the prima facie case. He submitted that there is collusion between the opponents, that is, the respondents which has not been appreciated and therefore the present appeal from order has been filed. He submitted that if the injunction as prayed for is not granted, it would lead to further transaction and an irreversible situation would be created though the appellants original plaintiffs are ready and willing to pay the remaining amount of consideration. He has also referred to the other transactions which have been entered into by the original owner, i.e., original defendant No. 1, in favour of other defendants (opponents Nos. 2 to 5) and the last transaction in favour of Sartak Developers. He therefore submitted that this would also suggest that the opponent original defendant No. 1 owner does not want to perform his part of the obligation with mala fide intention and therefore the injunction as prayed for may be granted.

Though the submissions have been made, a broad spectrum of the facts which can be summarised are that the appellants original plaintiffs claim right, title, interest in the land in question on the basis of an agreement to sell entered into between the plaintiffs and original defendant No. 1 (opponent No. 1 herein) way back on 10.4.1996. Part of the consideration is stated to have been paid and admittedly the remaining amount has not been paid. After 1996 till 2009 the appellants-plaintiffs have not taken any steps including even issuance of notice or filed any suit for specific performance. Further, admittedly, the land in question has changed hands as per the subsequent transactions which has been referred to in detail in the impugned order. There was an agreement to sell in favour of opponents Nos. 2 to 5 and thereafter a further transaction has taken place in favour of the developer which appears to have given the ground for the appellants plaintiffs for filing the suit.

It is in this background further facts which have also been narrated and recorded like the issue about the limitation as well as the fact there have been registered sale deeds made in favour of Hargovindbhai Jesinhbhai who had in turn sold again by registered sale deed in favour of one Naranbhai Hargovandas, that is, original defendant No. 6. There is also a reference to the title clearance certificate and the entries which have been made on the basis of such registered sale deed.

It is in this background the trial court has passed the impugned order with detailed discussion on this aspect about the subsequent transactions and also the conduct of the appellants plaintiffs. Therefore, considering the facts and circumstances as well as the fact that for the transaction or the banakhat of 1996, the suit is filed in 2009 and during this period no steps have been taken by the appellants for which there is no explanation itself would be sufficient to decline any interference with the impugned order. Not only the issue of limitation which is required to be considered, but the conduct of the appellants plaintiffs and series of transactions including the notices which may have been issued with regard to the subsequent transactions and the appellants plaintiffs having not taken any steps would not justify any interference with the impugned order. It cannot be said that while deciding the application for injunction and passing the impugned order the court has made any error or any jurisdictional error. Further, it also cannot be said that the principles with regard to grant of injunction under O.39 R. 1 & 2 have not been appreciated or considered.

Though the submissions have been made that the principles have not been considered, on the contrary, it clearly suggests that the court has considered such aspects for the purpose of exercising discretion and has declined to grant any injunction which does not call for any interference.

The present Appeal from Order, therefore, deserves to be dismissed and accordingly stands dismissed in limine. In view of dismissal of the Appeal from Order, the civil application would not survive and the same is accordingly disposed of.