GAYATRI INDUSTRIES Vs. KESHAVPRASAD SHARMA

JUDGEMENT

(1.) The present Appeal from Order under Order 43 Rule 1(r) of the Code of Civil Procedure has been preferred by the appellants-original defendants nos. 10 to 12 challenging the impugned order passed by the learned Second Additional Senior Civil Judge, Valsad, Camp Vapi dated 06/07/2010 below Exhs. 5 and 13 in Special Civil Suit No. 125/2009 by which the appellants-original defendants, more particularly, the appellants-defendants nos. 10 to 12 are restrained from disturbing the possession of respondent no. 1-original plaintiff and putting up construction on the land in question.

(2.) Respondent no. 1-original plaintiff had instituted Special Civil Suit No. 125/2009 in the Court of learned Additional Senior Civil Judge, Valsad against original defendants nos. 1 to 9 for specific performance of agreement of sell dated 19/10/2007 and for declaration to declare the registered sale deed dated 01/12/2009 executed by original defendants nos. 1 to 9 in favour of the appellants-original defendants nos. 10 to 12 as null, void, ineffective and not binding to respondent no. 1-original plaintiff and in default to direct the original defendants to pay a sum of Rs. 2,24,30,930/- by way of damages. Respondent no. 1-original plaintiff also prayed for permanent injunction. In the said suit, respondent no. 1-original plaintiff submitted an application Exh. 5 restraining the original defendants, more particularly, the appellants-original defendants nos. 10 to 12 from putting up any construction on the land in question. Considering the fact that respondent no.1-original plaintiff paid a sum of Rs. 22 lakhs towards the sale consideration at the time of execution of the agreement to sell dated 19/10/2007 and was put in possession and subsequently, despite the above, original defendants nos. 1 to 9 all of a sudden cancelled the power of attorney and executed the sale deed in favour of original defendants nos. 10 to 12 affecting the rights of respondent no.1-original plaintiff under the agreement to sell as illegal, having found prima facie case and balance of convenience in favour of respondent no. 1-original plaintiff and on appreciation of evidence and to avoid further multiplicity of proceedings, the learned trial Court vide impugned order allowed the applications, Exhs 5 and 13 by restraining the original defendants, more particularly, the appellants-original defendants nos. 10 to 12 from disturbing the possession of respondent no. 1-original plaintiff and from putting up any construction on the suit land in question. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court in allowing the applications, Exhs. 5 and 13 and grating the injunction as prayed for in favor of respondent no. 1-original plaintiff, the appellants-original defendants nos. 10 to 12 have preferred the present Appeal from Order under Order 43 Rule 1 (r) of the Code of Civil Procedure.

(3.) Shri N.D. Nanavati, learned Senior advocate appearing with Ms. Shrusti Tula, learned advocate appearing on behalf of the appellants has submitted that the learned trial Court has materially erred in granting the injunction as prayed for in favour of respondent no. 1-original plaintiff. It is submitted that the appellants-original defendants nos. 10 to 12 have purchased the disputed land in question on payment of full sale consideration from the original owner i.e. original defendants nos. 1 to 9 herein and, therefore, the learned trial Court has committed a grave error in granting the injunction restraining the appellants-original defendants nos. 10 to 12 from disturbing the possession of respondent no. 1-original plaintiff. It is submitted that as such the appellants-original defendants nos. 10 to 12 are in actual possession of the disputed land in question. It is further submitted that even after the agreement to sell, even according to respondent no. 1-original plaintiff, there was a registered sale deed executed by the power of attorney of original defendant nos. 1 to 9 in favour the appellants-original defendants nos. 10 to 12 and, therefore, there is no question of specific performance of agreement to sell dated 19/07/2007. By making the above submission, it is requested to allow/admit the present Appeal from Order.