NITINKUMAR LAXMIDAS Vs. SAVILABEN PRANSHANKER

JUDGEMENT

(1.) Admit. Mr. N. N. Gandhi waives service of admission on behalf of Respondents No. 1, 4/1, 4/2 and 5. Rest of the respondents are ordered to be deleted from this Appeal From Order. With the consent of the learned Advocates appearing for the parties, the matter is finally heard today.

(2.) In a suit for specific performance filed by appellants plaintiffs for an agreement to sale, they also applied for temporary injunction under Order 39 Rules 1 and 2 of of the Code of Civil Procedure restraining the defendants from dealing with the properties and also against the subsequent purchaser in whose favour sale deed is subsequently executed. It appears that the trial Court initially granted ex parte injunction, but after hearing the respondents defendants and after taking into consideration the various legal submissions raised in the written statement, found that injunction as prayed for could not be granted firstly because the agreement to sale dated 9th of November, 1992 was not registered as required under law and therefore it would not create any right in favour of the purchaser to institute suit for specific performance of such agreement. The said agreement to sale is produced at Exh. 1/4. It is signed by one Harshvadan Shantilal Bhatt, who happens to be the son-in-law of Pranshanker Devshanker Shukla (now deceased), who was the husband of Savitaben Pranshanker Shukla, real owner of the property in question. The second ground given by the trial Court is that since a specific prayer is made in the suit for setting aside the subsequent sale deed in favour of the subsequent purchaser, no relief could be granted in a suit for specific performance in favour of the plaintiffs. Primarily based on these two factors, the trial Court has found that plaintiffs failed to establish prima facie case and has secondly found that if injunction of this nature is granted, subsequent purchasers would be put to irreparable loss.

(3.) At the hearing of this Appeal From Order, Mr. S. M. Shah, learned Counsel appearing for the appellants pointed out to the Court that true it is that an agreement to sale is required to be registered as per amended Sec. 17 of the Gujarat Act No. VII of 1982, but, as per the decision of the Division Bench of this Court in the case of Kaushik Rajendra Thakore v. Allied Land Corporation, reported at 1987(1) GLH (UJ) 22, a view is taken by the Court that since there is no corresponding amendment in Sec. 49 of the Registration Act, 1908, the suit of the plaintiff would not fall on the ground on non-registration of agreement to sale which is otherwise compulsorily required to be registered by amendment of Sec-17. This position of law having been well settled by the Division Bench of this Court, the Trial Court was in error in holding that it would not act upon such agreement of sale.