JUDGEMENT
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(1.)THE present Appeal from Order has been filed by the appellants- original defendants being aggrieved with the impugned order passed
below Exh. 5 in Special Civil Suit No. 280/2009 by the 8 th Addl. Sr. Civil
Judge, Surat, dated 7.7.2011 granting injunction on the grounds stated in
the memo of the Appeal from Order.
(2.)HEARD learned advocate Shri S.P.Majmudar for the appellants and learned advocate Shri Mangukiya for the respondent.
Learned advocate Shri Majmudar has submitted that the court below has failed to appreciate the fact that the suit for specific
performance of an agreement of 15.12.1989 has been filed in the year
2009 and therefore would be barred by limitation. He strenuously submitted that the execution of such agreement to sell or receipt of the
consideration or part payment has been denied, disputed and the said
agreement to sell is not even signed by the appellants-original defendants.
He, therefore, submitted that the court below has failed to consider these
aspects. He further referred to the impugned order and submitted that
though the claim is made with regard to part payment of the consideration
over a period of time, there is no evidence produced on record. He
submitted that when the consideration is said to be paid by cash, there
has to be some evidence or material and unless it is established by some
evidence, it cannot be accepted as a truth.
(3.)IN support of his submission, llearned advocate Shri Majmudar has referred to and relied upon the judgment of this High Court in the case of
Harshadkumar Kantilal Bhalodwala and anr. v. Ishwarbhai Chandubhai
Patel and ors., reported in 2010(2) GLR 1041, and submitted that as
observed in this judgment, unless payment of consideration has been
proved by other material or cogent evidence, it cannot be readily accepted
as a gospel truth. Learned advocate Shri Majmudar submitted that, in
fact, the document which has been referred to by the other side is with
regard to the revenue record for payment of taxes or dues which is in the
name of the appellants. He also submitted that admittedly the possession
of the property is with the respondent and therefore the impugned order
has been passed without considering the basic relevant criteria for grant
of injunction. He submitted that the plaintiff has to prove a prima facie
case, then only the question of balance of convenience etc. would arise.
He submitted that if the plaintiff has failed to establish even a prima facie
case, then the balance of convenience etc. would not be considered as it
may not be relevant.
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