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2018 DIGILAW 1944 (SC)

Dwarkabhai Gopalbhai Patel v. Sonaliben Amrutbhai Nayak

2018-11-26

R.SUBHASH REDDY, UDAY UMESH LALIT

body2018
ORDER 1. Leave granted. 2. Seeking specific performance of an agreement of sale dated 11.12.2009, the appellant had filed Special Civil Suit No.186 of 2010 which was decreed on 30.06.2017. 3. In respect of the same property, Special Civil Suit No.106 of 2016 was filed by one Dr.Sonaliben Amrutbhai Nayak, first respondent herein, seeking specific performance of an agreement dated 12.04.2007. In this suit, a temporary injunction application was preferred vide Exh.5 which was rejected by the trial court on 21.07.2017. Thereafter, first respondent preferred Appeal from Order No.293/2017 with Civil Application No.12727/2017 in the High Court. At the stage of hearing, the submission made by the advocate appearing for the respondent-owner was recorded by the High Court as under : ".....He, in fact, fairly stated before the Court that the respondents have no objection if the status quo of the suit land is ordered to be maintained till the suit is finally heard and decided." 4. The High Court, thereafter, vide order dated 28.09.2017 directed that status quo be maintained in respect of the property in question till the disposal of said Special Civil Suit No.106 of 2016. 5. The appellant who had in the meantime, filed an application for execution of the decree for specific performance dated 30.06.2017, thereafter filed an application, namely Misc. Civil Application No.1 of 2018 in A.F.O. No.293 of 2017 for recall of aforesaid order dated 28.09.2017. Said application came to be rejected by the High Court on 05.05.2018 which order is under challenge in this appeal. 6. According to the High Court, since the appellant was not a party to the proceedings, he could not maintain an application seeking recall of the order unless he was able to establish that the order was obtained by playing fraud on Court. The High Court then observed that merely because the appellant was not a party, it could not be said that the order dated 28.09.2017 was obtained by fraud. 7. After this Court had issued notice in the matter, the respondents have appeared. One Fulabhai B. Patel has also sought to intervene in the matter submitting inter alia that the property in question was actually sold to him on 30.12.2006 under a registered sale deed. 8. It thus, appears that there are three competing claimants with respect to the same property who claim to have derived interest from the same land owner. One Fulabhai B. Patel has also sought to intervene in the matter submitting inter alia that the property in question was actually sold to him on 30.12.2006 under a registered sale deed. 8. It thus, appears that there are three competing claimants with respect to the same property who claim to have derived interest from the same land owner. During the course of hearing of the matter, it has been accepted by all the parties that the application preferred by the present appellant could have been heard on merits and disposed of by the High Court. It is also urged by the parties that number of suits which are presently pending between the parties and the actions emanating therefrom could possibly be clubbed or taken up together in order to resolve the controversies pending between the parties, to avoid multiplicity of proceedings. 9. Having considered the facts on record as well as rival submissions, in our view, the prayer made by the appellant was required to be heard on merits by the High Court. Since there appears to be more than one claim with respect to the same property, it would be desirable to club all actions, if it is deemed appropriate. We leave that matter to be considered at the relevant stages in the proceedings. 10. We, therefore, set aside the order passed by the High Court and remand the matter back to the High Court with a request to consider and dispose of the matter as expeditiously as possible, preferably within three months from today. Misc. Civil Application No.1 of 2018 in A.F.O. No.293 of 2017 stands restored to the file. 11. The appeal is disposed of in the above terms.