KARSHANBHAI LAKHMANBHAI SINHAR Vs. DILIPBHAI RAJABHAI ODEDARA

JUDGEMENT

(1.) The present petition is filed by the petitioners - original plaintiffs challenging the order impugned dtd. 20/2/2023 passed by the appellate Court below - the Additional District Judge, Keshod in Civil Misc. appeal No.8 of 2022, whereby the appellate Court below has set aside the order dtd. 18/11/2022 passed below Exh.5 in Regular Civil Suit No.37 of 2022 filed by the present petitioners.

(2.) Learned advocate Mr.Amar Mithani for the petitioners has submitted that pursuant to the order passed by the appellate Court below, the petitioners have deposited the amount of Rs.5,58,200.00 and the respondent has deposited the amount of Rs.9.00 lakhs before the trial Court concerned. He has also pointed out that the appellate Court below has wrongly interfered with the order passed by the trial Court below Exh.5 as the appellate Court below has not given any cogent and convincing reasons and has prejudged the issue involved in the suit by observing that the transaction which is in nature of agreement to sell is for the purpose of security of the money and if the defendant is directed to pay Rs.9.00 lakhs instead of Rs.8.00 lakhs, the interest of the plaintiffs will be protected. He has submitted that the said observation itself is prima facie improper and erroneous.

(3.) Per contra, Mr. Dipal Ravaiya, learned advocate for the respondent - original defendant submits that he has instructions to appear on behalf of the respondent and he will file his appearance during the course of the day. Registry to accept the same. He has raised strong objection against this petition. He has submitted that the appellate Court below has rightly dealt with the contentions raised by the parties and rightly observed that the transaction of agreement to sell is executed towards the security of the non-transaction. He has heavily relied upon the cross- examination of one of the plaintiffs by pointing out that in the cross-examination, the plaintiff has admitted that his father is having licence as money lender. He has further submitted that the trial Court has not properly considered the three main aspects of granting interim injunction application Exh.5 - prima facie case, balance of convenience and irreparable loss and therefore, the appellate Court has rightly interfered with the order passed by the trial Court by exercising the powers under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908. He has submitted that no case is made out to interfere in the impugned order by exercising the powers under Article 227 of the Constitution of India. He has submitted that this petition may be dismissed.