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Jivanbhai vs Damjibhai

High Court Of Gujarat|21 June, 2012
1. This petition preferred under Article 227 of the Constitution of India challenging the order of the trial Court. It is an application of injunction below Exh.5 in Special Civil Application No.73 of 2012, whereby the Court granted ex parte ad interim injunction in favour of the respondent herein in a suit for specific performance of agreement to sell dated 13.7.2011. It is averred that the suit is filed under the pretext that sum of Rs.1 lakh in cash has been paid by the respondent herein, while executing the agreement further sum of Rs.14,11,000/- is to be paid by the respondent. While entertaining the suit on an application preferred below Exh.5, the trial Court directed the defendant to maintain status quo in respect of the suit land.
2. It is vehemently contended by the learned advocate Mr. Majmudar that the Court ought not to have granted the order of status quo without following the guidelines set out in the Code of Civil Procedure and in absence of any cogent reason for grant of ex parte order, the order requires to be quashed. He further urged that the Court also has not followed the guidelines set out by this Court in the case of JMS Labs vs. Yusufali Eesmail Hadvaid reported in 1998(1) GCD 498, where it has been insisted upon by this Court that while granting ex parte injunction, the Court must hear the application within a stipulated time period by laying down time table for the reply, rejoinder, etc. He further urged that the Court concerned has no territorial jurisdiction and, therefore, also, it ought not to have entertained such petition. He further urged that, as laid down by this Court in the case of Kalpataru Land Development Pvt. Ltd vs. Vishnubhai Ambalal Patel (Decd.) through heirs Jamnadas Vishnubhai Patel and others reported in 2007 (4) GLR 3361, status quo is nothing but a sort of injunction and the Court was obliged to follow the mandate provided by the statue or recording reasons of grant of ex parte injunction.
3. Learned advocate also urged further that the petitioner herein could not be saddled with the order of status quo for indefinite period with the statue specifically providing for hearing of such application within a time bound schedule and, as Rule 3A of Order 39 provides that the injunction, granted without giving notice to the opposite party, is to be decided within 30 days of grant of such injunction, the Court ought to have completed the hearing and disposed of the application for injunction within the stipulated period.
4. As can be noted from the application for injunction produced on the record, the cause of action for preferring this application writs large in these paragraphs, it is a specific case of the respondent herein that despite issuance of the notice to the petitioner on 25.1.2012 for getting sale registered in the name of the respondent as no heed has been paid, the suit was necessary. It is also further pleaded that due to the rise in the prices of land, the petitioner herein was attempting to negotiate the same with the third parties, which had necessitated the application for injunction. The Court after noting the subject matter of the suit and also noting prima facie that there was an agreement to sell in respect of the land, deemed it fit to grant the order of status quo in respect of the suit land for a limited period to ensure that no prejudice is likely to cause to the other side, this was restricted to 23.4.2012. Thus, by an order dated 16.4.2012 while issuing notice to the other side, the Court granted such an order for 1(one) week. Admittedly, the petitioner herein appeared in answer to such a notice. However, no reply has been filed till the date. All the contentions raised before this Court have not been raised before the trial Court, as according to the learned advocate, reply is in the process of being prepared.
5. It is true that requirement laid down by this Court in JMS Labs (supra) verbatim is absent in the order impugned. There does not appear to be any stipulated time limit set by the Court in the notice issued, while passing the order of ex parte injunction. It is also not in dispute that the order passed on 16.4.2012 has continued till the date. However, as can be noted from the order impugned, that the trial Court provided reasons which are sufficient for this Court to appreciate as to why it chose to grant ex parte injunction. It is, therefore, at this stage, it is not desirable for this Court to intervene in quashing and setting aside the order impugned on the ground that the order is without the reasons or contains no time schedule as desired under the law. Moreover, when the petitioner is already before the trial Court, where it is yet to raise all the contentions in respect of the jurisdiction as well as all the other averments set out in the present petition before this Court, opining on any of those issues, would prejudice the right of the either side and that cause is surely avoidable. It is also undesirable for this Court to intervene when party litigant had an option to make such a request and it chose not to and instead preferred this petition without letting trial Court to act in accordance with law.
6. Thus, this petition is not being entertained and is required to be disposed of in limine.
Needless to say that the trial Court since was conscious of need of the statute while granting ex parte injunction, the provisions contained under Order 39 Rule 3 and 3A would be adhered to and this petition need not be entertained even for issuing any such direction and is dismissed accordingly.
(Ms.Sonia Gokani, J.) sudhir Top
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