MILEX STONE Vs. SHAH YOGESHCHANDRA AMRUTLAL JAMNADAS

JUDGEMENT

(1.) The present petition is filed by the petitioner - original plaintiff / appellant challenging the impugned judgment and order dtd. 6/1/2023 passed below Exh.30 in Civil Appeal from Order Nos.16 of 2021 & 17 of 2021 by the Additional District Judge, Arvallia and also challenging the order dtd. 22/10/2021 passed below Exh.5 and 13 in Special Civil Suit No.5 of 2020 by the Principal Senior Civil Judge, Bayad, whereby the appellate Court below has rejected the same and confirmed by the order passed by the trial Court.

(2.) The brief facts of the case are that, there is an alleged agreement to sale between the petitioner and deceased Shah Yogeshchandra Amrutlal for the suit property in the year 2004. The suit property is the quarry industry with machinery, etc. The petitioner has filed a suit for specific performance with an application for injunction at Exh.5 before the trial Court at Bayad in the year 2020. The respondents have filed an application for permanent injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 in the said suit questioning the alleged agreement to sell as well as ownership of the said deceased person who has signed the said document, etc. The trial Court has considered the material on record and rejected the said application Exh.5 and partly allowed the application Exh.13 vide common order dtd. 22/10/2021. Being aggrieved, the petitioner has approached the appellate Court below under Order 43 Rule 1(r) of the Code of Civil Procedure by filing Civil Appeal from Order Nos.16 of 2021 and 17 of 2021. The appellate Court below has rejected both the appeals vide impugned order. The petitioner has therefore approached this Court challenging the concurrent findings of both the Courts below in this petition.

(3.) Learned advocate Mr.Harsh Parekh for learned advocate Mr.Dev Patel for the petitioner has submitted that the agreement to sell is executed in his favour and document about Undertaking is also executed and considering the panchnama which is drawn for the suit premises in question, the petitioner is in possession of the suit premises. He has submitted that the trial Court has committed an error in considering Exh.5 and 13 applications. He has submitted that the appellate Court below has committed further error while deciding both the appeals by not giving any independent findings about the case of the present defendants in the suit and injunction which is prayed for at Exh.13. He has submitted that there is no reference about the documents which is cited at the bar which is produced on record and without referring the same, the appeals are decided and therefore, findings to that extent can be considered as perverse. He has further submitted that the trial Court as well as the appellate Court below has not properly dealt with the aspects of prima facie case, balance of convenience and irreparable loss in appropriate manner and therefore, considering the material available on record, no injunction can be granted in favour of the present defendant under Article 227 of the Constitution of India by interfering in the impugned order passed by the Courts below.