CHANDRAKANT CHUNILAL BHAVSAR Vs. BACHUJI SARDARJI

JUDGEMENT

(1.) THIS Appeal From Order under Order XLIII Rule 1(r) of Code of Civil Procedure has been filed by the appellant- original plaintiff challenging the order dated 29-4-2011 passed below application Ex.5 in Special Civil Suit No.20 of 2007 by the learned Principal Senior Civil Judge, Ahmedabad(Rural) at Mirzapur, whereby order of status quo granted on 22-1-2007 was vacated.

(2.) FACTS in short as arising from the present Appeal From Order are that an agreement to sell was executed by the appellant and respondent Nos.12 to 14 on 5-3-2002 for purchase of land in question from respondent Nos.1 to 11 for a consideration of Rs.20,00,000.00 out of which, Rs.16,00,000.00 were already paid by them. Possession Agreement handing over possession of the suit to the appellant and respondent Nos.12 to 14 was also executed by the respondent Nos.1 to 11. Sale deed was to be executed within 18 months after the respondent Nos.1 to 11 clear all pending litigations and after getting NA permission. However, till 2007, since neither the respondent Nos.1 to 11 nor by the respondent Nos.12 to 14 have any steps to execution of sale deed, the appellant smelt some foul play and found that his 1/4 th share of the suit land was taken by the respondents by joining hands. Hence, a suit being Special Civil Suit No.20 of 2007 was filed by the appellant in the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) for specific performance of contract and also for permanent injunction together with an application Ex.5 for interim injunction. Though an order of status quo qua ownership and possession of the suit property was passed on 22-1-2007, same was vacated by the trial court by the impugned order. Hence, the present Appeal From Order.

(3.) LEARNED advocate, Mr.Puj for the appellant-original plaintiff submitted that the impugned order is against the materials on record. He further submitted that an error of law has been committed by the learned Judge in passing the impugned order. He further submitted that trial court did not rely on the Agreement to Sell as it was unregistered. According to him, the documents at Mark 4/3 and 4/4 were signed by the defendant Nos.1 to 11 with their thump impressions and same were duly notarized. He further submitted that the respondent No.13 joined hands with respondent Nos.1 to 11 to frustrate the claim of the appellant. He further submitted that although the fact of receiving the amount has been admitted by the respondent Nos.1 to 11 and although the respondent Nos.12 to 14 neither appeared in person nor filed reply, trial court committed a grave error in holding that plaintiff has no prima facie case nor balance of convenience in their favour. It has also committed an error in holding that there was no evidence to show payment of Rs.16,00,000.00 on different dates. No reason has been assigned by the trial court in passing the impugned order. In this connection, he has relied on the decisions of a learned Single Judge of this Court reported in 1992(1) G.L.H. Page 60 in case of Vastabhai Madhubhai Machhi Vs. Tarachand Vastabhai Machhi and others and in 2001(3) G.L.H. (U.J.) 2 in the case of Ashrafkhan Azadkhan Pathan Vs. Mariambibi Kadri.