ADITYA JAYMINBHAI NARSINHBHAI Vs. ADITYA GITABEN JAYMINBHAI

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India challenging the order passed below Exh.5 refusing interim injunction to the petitioner - plaintiff vide order dtd. 10/6/2019 passed in Regular Civil Suit No.241 of 2018 by learned 4 th Additional Senior Civil Judge, Gandhinagar as also confirmed in an appeal being Misc. Civil Appeal No.18 of 2019 vide order dtd. 17/2/2021 passed by learned Principal District Judge, Gandhinagar.

(2.) Ms.Bhoomi Thakore, learned advocate for the petitioner - plaintiff has taken this court to the agreement entered into between the parties and affidavit in-reply filed by the respondent-wife - defendant in Misc. Civil Appeal and has submitted that she has not denied the agreement entered into between the parties, the day on which the sale-deed is executed in faovur of the defendant i.e. 17/4/2015 and therefore, as mentioned in the sale-deed, respondent-defendant is required to be restrained from transferring the suit property pending the suit. According to her submission, when in the agreement, it is clearly mentioned that defendant will not sale the said property, without consent of the plaintiff, during the pendency of the suit, she is required to be injuncted at-least qua that part of agreement. Therefore, according to her submission, the impugned order passed by the learned trial Court as also confirmed by the appellate Court requires interference.

(3.) However, considering the impugned order passed below Exh.5 as also the order passed by the appellate Court, it is clear that sale-deed executed dtd. 17/4/2015 transferring the suit property in the name of defendant by the plaintiff, he received a consideration for transferring the same. However, suit, as claimed by the learned advocate for the petitioner, came to be filed for the enforcement of the written agreement between them. Even if, execution of the written agreement is not denied, it is claimed in the reply, which is referred to by the learned advocate for the petitioner that it based on mutual understanding as also obligations to be performed. It is very clearly mentioned therein that the petitioner - plaintiff has failed to perform his part of the obligations and therefore, he cannot seek to enforce obligations to be performed by the other party to the said agreement i.e. respondents-original defendants herein in any manner. As such, reading the reply, which is tendered by the learned advocate for the petitioner submitted by respondent- defendant in the appeal, it is very clear that the said agreement is not acted upon though entered into for different purpose. Therefore, unless and until, it is proved to have been executed and acted upon by both the sides fulfilling their obligations, the injunction, as prayed for, prohibiting the respondents - defendants from selling the property of which she is exclusive owner on payment of consideration, cannot be granted.