CHANDRAKANT SHANKARRAV KULKARNI Vs. PATEL BABUBHAI NARAYANBHAI

JUDGEMENT

(1.) The substantive prayer which is made in this petition under Articles 226 and 227 of the Constitution of India, filed at the instance of the petitioner - original plaintiff, is as follows:

(2.) Heard, learned advocate Mr. Maulik Soni for learned advocate Mr. N. K. Majmudar for the petitioner - original plaintiff.

(3.) Regard being had to the submissions made and considering the material available on record, it appears that the petitioner has filed a Regular Civil Suit No. 7 of 2018 before the Court of learned Principal Senior Civil Judge, Dabhoi for specific performance of the contract, declaration and permanent injunction in which, he had filed an application Exh. 5 for temporary injunction under O.39 Rs.1.00 and 2 of the Civil Procedure Code, 1908 (herein after referred to as "the Code"). The said application came to be dismissed by the learned trial Court vide order dtd. 15/6/2019 against which, the petitioner - plaintiff filed an appeal being Misc. Civil Appeal No. 3 of 2020 (Old No. 27 of 2019) before the learned 8 th Additional District Judge, Dabhoi, which also came to be dismissed vide order dtd. 17/2/2021. It is against these concurrent findings of two learned Courts below, present petition is filed by the petitioner with aforesaid prayer. It may be noted that in support of his case, the petitioner - plaintiff has relied upon documents at Mark 4/3 to 4/10 and impress upon that the by virtue of Mutation Entry No. 1337, name of the petitioner - plaintiff was ordered to be mutated in the revenue record by the order of the Mamlatdar, Dabhoi. However, if the observations made by the learned trial Judge in the impugned order are perused, the learned trial Judge has opined that, only because the name of the plaintiff is inserted in the revenue record, is in itself does not create any right in favour of the plaintiff - petitioner. The mutation entry is for the fiscal purpose only. The learned trial Judge has also observed that, the plaintiff has filed the suit after a much delay and also after the withdrawal of previous suit unconditionally as stated by him in respect of the fragment of the land, which is not permissible under law to be transferred as discussed therein. The said view of the learned trial Court has been affirmed by the learned first appellate Court. It may be noted that the orders in question are passed on an application for interim injunction Exh. 5 and the suit is pending before the competent Civil Court at Dabhoi. At the stage of such interim injunction application, the Court has to consider three aspects only viz. prima facie case, balance of convenience and irreparable loss, which as per the learned Courts below, the petitioner - plaintiff has failed to make out and in the facts and circumstances of the case, this Court also concur with the said findings of the learned Courts below.