MUKESH KANABHAI DANGAR Vs. RAJEN DIVYAKANT SHAH

JUDGEMENT

(1.) This is an Appeal filed under Order 43, Rule 1 of Code of Civil Procedure, 1908 at the instance of original defendant - appellant challenging the order dtd. 5/12/2020 passed, below Exhibit 5 application in Special Civil Suit No.4 of 2020 by the learned Second Additional Senior Civil Judge, Palanpur. By the impugned order, the learned trial Judge has partly allowed Exhibit 5 application thereby directing the original defendant - appellant not to create third party rights and restraining the defendant and his heirs and legal representatives, assignee etc. from interfering with the possession of the plaintiff till final disposal of the Suit.

(2.) Facts as pleaded by the appellant - original defendant are summarized as under:

(3.) In the background of this circumstances, the learned trial Court seems to have been pursued by facts of the case and has by ad interim relief granted status quo in respect of the suit property and has further issued summons upon defendant. Upon receipt of the summons, the defendant had appeared before the trial Court and had filed written statement (Exhibit 10). The defendant had denied the contentions, allegations and averments made by the plaintiff and has prayed for dismissal of the suit on the ground of latches and acquiescence as the plaintiff was aware about the sale deed of the suit property. The defendant had mainly relied upon the Power of Attorney admittedly being executed by the plaintiff which otherwise confers specific authority upon the defendant to deal with the suit property. The defendant had further relied upon the cheque worth Rs.45.00 Lakhs dtd. 23/7/2020 of HDFC Bank, Rajkot Branch, which the defendant claimed to have offered to the plaintiff. The defendant further claimed that since the plaintiff behind back of the defendant proceeded to lodge the FIR before the Palanpur Police Station under Sec. 406 and 420 of the Indian Penal Code. The said cheque was not handed over, however, he expressed his readiness and willingness to handover the said cheque to the plaintiff before the trial Court. Thus, the defendant had opposed grant of injunction in favour of the plaintiff and had prayed to vacate an ex parte order of status quo granted by the trial Court.