MOHAMMEDALI USMANBHAI MOMIN Vs. NAZIRBI JAFFER PATEL

JUDGEMENT

(1.) THIS suit has been filed by the plaintiff with a prayer that this Court be pleased to order and decree the defendant to specifically perform the agreement Exhibit-B and to do all such acts, deeds and things including execution of such documents as may be necessary for the conveyance of the defendant's rights thereto to the plaintiff. The plaintiff is also claiming an order of permanent injunction restraining the defendant from alienating, encumbering or creating third party rights in the suit property. The plaintiff also claims damages in the sum of Rs.15 lakhs in addition to the prayer for specific performance. Damages in the sum of Rs.15 lakhs in lieu of specific performance are also claimed. By amendment of the plaint, it is prayed that the defendant be also restrained from in any manner acting on the alleged termination of the power of attorney dated 12-2-94 and from obstructing/ interfering with the plaintiffs exercise of rights under the agreement dated 11-2-1994. Notice of Motion has been taken out with a prayer for injunction, appointment of Receiver and also injunction restraining the defendant from in any manner acting on the alleged termination of the Power of Attorney and the agreement dated 11-2-1994. An affidavit in support of the Notice of Motion has been filed. The Defendant has filed reply as well as additional reply to the affidavit in support. The plaintiff has also filed rejoinder to the replies filed by the Defendant.

(2.) THIS Notice of Motion came up for hearing on 8th August, 1995 when this Court was pleased to grant ad-interim relief in terms of prayer Clauses (a) and (b-i). Subsequently on 23rd June, 1997 the Notice of Motion was made absolute as the defendants did not remain present. This order was set aside by order dated 27-1-1999 passed in Notice of Motion No.1874 of 1997. This Notice of Motion has been taken out for recall of the order dated 23rd June, 1997 on the ground that the non-appearance of the defendant was due to the mistake on the part of Advocate for Defendant.

(3.) AS noticed earlier, at the ad-interim stage ad-interim relief was granted in terms of prayer clauses (a) and (b-i). Prayer clause (a) pertains to the grant of injunction restraining the defendant from creating any third party rights. Prayer clause (b-i) restrains the defendant from acting on the socalled termination of the agreement dated 11-2-94 and the Power of Attorney dated 12th Feb. 1994.