Gujarat High Court
SCA/10922/2008 of GOVINDJIBHAI VIRJIBHAI CHAVDA Vs MAHENDRABHAI GOVINDJIBHAI CHAVDA on 29 December 2008
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10922 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 10922 of 2008
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH
=========================================================1[Whether Reporters of Local Papers may be allowed ]to see the judgment ? NO
2To be referred to the Reporter or not ? NO3[Whether their Lordships wish to see the fair copy ]of the judgment ? NOWhether this case involves a substantial question of law as to the interpretation of the 4constitution of India, 1950 or any order made thereunder ? NO5[Whether it is to be circulated to the civil ]judge ? NO
=========================================================GOVINDJIBHAI VIRJIBHAI CHAVDA & 1 - Petitioner(s)Versus MAHENDRABHAI GOVINDJIBHAI CHAVDA & 2 - Respondent(s)
=========================================================
Appearance :MR MB GANDHIfor Petitioner(s) : 1 - 2.MR CHINMAY M GANDHI for Petitioner(s) : 1 - 2.MR AR THAKKER for Respondent(s) : 1,MR ARVIND K THAKUR for Respondent(s) : 2 - 3.=========================================================
CORAM :HONOURABLE MR.JUSTICE M.R. SHAH
Date : 29/12/2008
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ORAL JUDGMENT
waives service of notice of Rule on behalf of respondent No.1. With the consent of the learned advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today.
2. By way of this petition under Article 227 of the Constitution of India, petitioners-original defendants No.1 and 4 have prayed for an appropriate writ, order or direction, quashing and setting aside that part of the impugned order passed by the learned Principal District Judge, Junagadh dated 11.7.2008 passed in Civil Misc. Appeal No.36 of 2006 by which the petitioners herein-original defendants No.1 and 4 are directed to give prior intimation to the Court as well as to the plaintiff if pending the said suit the petitioners transfer the suit property in any manner whatsoever and also reserving liberty in favour of the plaintiff to file fresh application for interim order if he is so advised.
3. It is required to be noted that in the suit filed by the respondent No.1-original plaintiff Exh.5
submitted by the respondent No.1 herein-original plaintiff came to be dismissed and against which the respondent No.1 herein-original plaintiff preferred Civil Misc. Appeal No.36 of 2006. In spite of the fact that the learned appellate court dismissed the appeal on merits confirming the order passed by the trial court passed below Exh.5, still while dismissing the said appeal, the learned Principal District Judge, Junagadh, has issued the following direction.
“The defendant Nos.1 and 4 of R.C.S.No.306/05
shall give prior intimation to the Court as well as to the plaintiff if pending the said suit these defendants transfer the suit property in any manner whatsoever. The plaintiff would be at liberty to file fresh application for interim order if he is so advised.
Learned trial court may expedite the final disposal of the suit if learned advocates for the parties co-operate for such disposal.”
3.1
Being aggrieved and dissatisfied with the aforesaid direction issued by the learned Principal District Judge, Junagadh, while dismissing the aforesaid Civil Misc. Appeal No.36 of 2006, petitioners-original defendants have preferred present petition under Article 227 of the Constitution of India.
4. Shri Chinmay Gandhi, learned advocate appearing on behalf of the petitioners has vehemently submitted that once the order passed by the trial court passed below Exh.5 dismissing the application Exh.5 came to be confirmed by the learned appellate court and the learned appellate court has dismissed the appeal, it was not open for the learned appellate court to issue further direction as stated hereinabove.It is submitted that, even once the order passed by the trial court passed below Exh.5 came to be confirmed, there was no question of reserving further liberty in favour of the plaintiff to file a fresh application for interim relief. Therefore it is submitted that such an order/direction is without jurisdiction. Therefore it is requested to allow the present petition and quash and set aside the aforesaid direction.
5. Shri Avinash Thakker, learned advocate appearing on behalf of the respondent No.1 herein-original plaintiff has submitted that, in view of Section 52 of the Transfer of Property Act read with Section 94 of the Code of Civil Procedure, such a direction issued by the learned Principal District Judge, Junagadh cannot be said to be without jurisdiction and/or illegal. It is submitted that even otherwise any transfer during the pendency of the suit is always subject to the ultimate outcome of the suit, therefore, it cannot be said that the direction issued by the learned Principal District Judge, Junagadh is in any way erroneous which deserves to be quashed and set aside. Therefore it is requested to dismiss the present petition.
6. Having heard the learned advocates appearing on behalf of the respective parties and considering the impugned judgment and order passed by the learned Principal District Judge, Junagadh, dated 11.7.2008 passed in Civil Misc. Appeal No.36 of 2006, it appears that as such the learned appellate court has dismissed the said appeal on merits confirming the order passed by the trial court passed below Exh.5 in dismissing the said application Exh.5 and not granting the interim injunction as prayed for, and still the learned appellate court has issued the aforesaid direction. Thus, it prima facie appears that the learned Principal District Judge, Junagadh, was not justified in issuing the aforesaid direction once the appeal is dismissed on merits and the order passed by the trial court passed below Exh.5 refusing to grant interim injunction has been confirmed. Under the circumstances, the impugned direction issued by the learned Principal District Judge, Junagadh is quashed and set aside.
7. Now so far as the contention on behalf of the respondent No.1 herein-original plaintiff relying upon Section 52 of the Transfer of Property Act is concerned, it goes without saying that any transfer during the pendency of the suit is always subject to the ultimate outcome of the suit. Shri Avinash Thakker, learned advocate appearing on behalf of the respondent No.1 herein-original plaintiff is satisfied if the aforesaid observation is made. Under the circumstances, while disposing the present petition, it is observed that any transfer during the pendency of the suit is always subject to the ultimate outcome of the suit.
8. With these, present petition is allowed. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.
( M.R. SHAH, J. )
syed/