MOHAMMAD HUSSAIN SULEMAN SHAIKH Vs. BATUKBHAI VALJIBHAI
LAWS(GJH)-1983-8-8
HIGH COURT OF GUJARAT
Decided on August 22,1983

Mohammed Hussain Suleman Shaikh And Another Appellant
VERSUS
Batukhbhai Valjibhai And Others Respondents

JUDGEMENT

M.B.SHAH - (1.) The appellants plaintiffs have preferred this Appeal against the judgment and order dated 25/01/1983 passed by the Chamber Judge Court No. 12 City Civil Court Ahmedabad on Exhibit 2 being an injunction application filed by them.
(2.) Against appellants a dec-en under section 6 of the Specific Relief Act was passed in Civil Suit No. 203/80 filed by the respondents Nos. 1 & 2. Respondent No. 3 Darveshali Masjid Ahmedabad is a public religious trust which is managed by respondents Nos. 3/1 to 3/7 as its trustees. Respondents Nos. 1 & 2 claim that they are the tenants in respect of some portion situated between two pillars of a wall of Darveshali Masjid on Pirmohmed Shah Road Pankornaka Ahmedabad which is near the footpath. Respondents Nos. 1 & 2 have filed the abovesaid suit for recovering the possession of the suit premises under sec. 6 of the Specific Relief Act 1963 as the appellants took the possession of the said premises unlawfully. The said suit was decreed and the revision application filed before this Court and the Special Leave Application against the said judgment was dismissed. As the respondents Nos. 1 & 2 were trying to execute the said decree the appellants filed the aforesaid Civil Suit No. 123/83 before the City Civil Court Ahmedabad for a declaration of their right title and interest over the suit premises and for an injunction restraining the defendants from executing the decree passed in Civil Suit No. 2013/80. In the said suit they filed an interim injunction application. The learned Chamber Judge rejected the Notice of Motion and refused to grant the interim relief on the ground that by grant of interim injunction the decree passed under sec. 6(1) of the Specific Relief Act would be frustrated and by relying upon the judgment in the case of PARMANAND & OTHERS V. SMT. CHHIMMAWATI & ANOTHER REPORTED IN A.I.R. 1955 ALLAHABAD 64 held that if such an injunction is granted the very object and purpose of the suit for possession under sec. 6 of the Specific Relief Act would be frustrated and the person who takes the law in his own hand and forcibly dispossesses another otherwise than in accordance with law would be in a position to frustrate the execution of the decree without discussing evidence on merits. The learned Judge held that once a judgment and decree under sec. 6(1) of the Specific Relief Act is passed the appellants would not have any prima facie case. He held that the persons who are forcibly dispossessed should be restored to the possession of the property in question when they have obtained the judgment and decree in their favour from the competent Court and hence the balance of convenience will be in their favour.
(3.) The learned advocate appearing on behalf of the appellants had pointed out that the learned Judge had relied upon a judgment of the Allahabad High Court which is overruled by the said Court in 1972 in the case of CHUNNI V. SULLAHAR REPORTED IN A.I.R. 1972 ALLAHABAD 412 wherein the Allahabad High Court has relied upon the judgment in the case of MARI DEDDATAMMA MARKUNDI V. SANTAYA RAM KRISHNA PAI KOLLE A.I.R. 1922 BOMBAY 216.;


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