HASUMATIBEN KANTILAL JAISWAL v. DIPTIBEN ANILBHAI BUMIYA
2018-06-13
G.R.UDHWANI
body2018
DigiLaw.ai
ORDER : 1. Rule. Having considered the rival contentions for interim relief, it is noticed that two contentions were advanced by respondents No. 1 and 2 in the lower appellate court for rejection of the interim relief sought by the petitioner – original plaintiff being (i) that partition was not sought for all the properties with which the plaintiff was concerned but it was confined to the properties which were twice sold by sale deeds in the year 2007 and 2013; (ii) that despite public notice in the year 2007 and 2013 intending the purchase of the disputed property, no objection ever was raised by the petitioner. On the above two grounds it was contended before the lower appellate court that balance of convenience is in favour of the respondents No. 1 and 2. The lower appellate court, however, did not answer the said important questions which had a bearing on the fact as to whether balance of convenience was in favour of the petitioner. It is settled legal position that to avail interim relief, all the three components being prima facie case, balance of convenience and irreparable loss which cannot be compensated in terms of money are required to be considered. In the facts of the present case, in absence of the suit seeking partition of all the properties and in view of the fact that twice the properties have been conveyed without there being any objection from the petitioner and that N.A. permission was obtained and rights of third parties are created in the land in question, the balance of convenience can be said to be in favour of respondents No. 1 and 2 and thus, one component of the three criteria could not be satisfied by the petitioner-plaintiff. Under the circumstances, this court is of the opinion that the lower appellate court has not erred in interfering with the interim order in appeal. However, the petition has been admitted by this court for the purpose of interpretation of section 6 of the Hindu Succession Act. 2. In above view of the matter, interim relief is refused. The oral application for staying this interim order passed is declined.