NEUTRAL CITATION
C/AO/182/2023 ORDER DATED: 29/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 182 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/APPEAL FROM ORDER NO. 182 of 2023
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HEIRS OF HASUMATIBEN KIRIT KUMAR MODI D/O LAXMANBHAI
LALLUBHAI SELUGAR
Versus
L H OF RAMANBHAI LALLUBHAI SELUGAR
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Appearance:
MR. KM ANTANI(6547) for the Appellant(s) No. 1,1.1,1.2,1.3
for the Respondent(s) No.
1,1.1,1.1.1,1.1.2,1.1.3,1.1.4,1.1.5,1.2,1.2.1,1.2.2,1.2.3,1.2.4,1.3,1.3.1,1.3.2,1.
3.3,1.3.4,2,3,4
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 29/08/2023
ORAL ORDER
1. Challenge in this Appeal from Order under Order 43 Rule 1(r) of the Code of Civil Procedure, is to the order dated 27.04.2013 passed below Application Exh. 6/7, in Civil Suit No. 343 of 2020, by which, the learned Chamber Judge, City Court, Ahmedabad, pending the suit proceedings, refused to grant ad-interim injunction in relation to the suit property.
2. The appellants - original plaintiffs have filed a suit for partition, possession, permanent injunction and declaration with respect to suit land. The plaintiffs are legal heirs of one Hasumatiben Laxmanbhai Shalugar. The grandfather of Hasumatiben namely Lallubhai Shalugar, was the owner of the suit land and after his Page 1 of 8 Downloaded on : Sun Sep 17 02:52:33 IST 2023 NEUTRAL CITATION C/AO/182/2023 ORDER DATED: 29/08/2023 undefined demise, the property devolved by inheritance and later on, sons of Lallugar Shalugar became owner. After sad demise of Laxmanbhai, his share devolved by inheritance to the surviving daughters i.e. Parvatiben and Hasumatiben. It is the case of the plaintiffs that, name of Hasumatiben was mutated in the rights of records with the authorities and she was co-owner of the suit land with other heirs i.e. defendant nos.1 (1/1/1 to 1/1/5) and 1/2 (1/2/1 to 1/2/4). In such circumstances, it is alleged that, Hasumatiben was having half share in the suit land and after her demise, the plaintiffs by inheritance and succession, entitled to share in the suit property. It is in this background facts, it is averred in the plaint that, despite the status of co-owner of the deceased Hasumatiben, the defendants being a maternal uncle, behind the back of the deceased, sold out the suit property by way of registered sale deed in the year 2010 to defendant no. 2. The defendant no. 2 in turn sold it out by way of registered sale deed dated 19.09.2017 to defendant no. 3 and lastly, defendant no. 3 had sold the suit land by way of registered sale deed dated 14.08.2020 to defendant no. 4.
The plaintiffs being legal heirs of Hasumatiben, who passed away on 12.04.2019, have alleged that, during the life time of Hasumatiben, it was assured by the defendants that, when sale of the land took place, they will part with the half of the sale proceeds to Hasumatiben. However, without informing Hasumatiben and behind her back, the land in question was being sold for thrice by the respective purchaser of the land and said facts came to know when they inquired with the revenue authority about the revenue Page 2 of 8 Downloaded on : Sun Sep 17 02:52:33 IST 2023 NEUTRAL CITATION C/AO/182/2023 ORDER DATED: 29/08/2023 undefined entry and other particulars in relation to the land. In the aforesaid facts, the suit in question is being filed for partition, possession and permanent injunction, inter-alia, praying that, being legal heirs of the deceased Hasumatiben, they have equal share with the other co- owners of the land and they be declared as the owner of the suit land so far their share is concerned and defendant no. 4 be restrained permanently from transferring or creating any right with the suit property. Along with the suit, the notice of motion was taken out, inter-alia praying, ad-interim injunction under Order 39 Rule 1 and 2, praying that, the defendant no. 4 be restrained from transferring or in any manner the suit land till final disposal of the suit. The trial Court, after hearing the parties, came to the conclusion that, the plaintiffs failed to establish their prima-facie case and balance of convenience is also not in their favour and if injunction is refused, there would not be any suffer any irreparable loss. The learned trial Court, refused to grant ad-interim injunction mainly on the ground that, during the lifetime of deceased Hasumatiben, she did not raise any objection against the sale transactions made in favour of the defendants, and in the revenue records, the name of the deceased Hasumatiben has been deleted.
3. Being aggrieved and dissatisfied with the order impugned, the original plaintiffs have preferred this appeal.
4. Mr. Kanva Antani, learned counsel appearing for and on behalf of the appellants, has submitted that the disputed land was an ancestral property and mother of the plaintiffs being a daughter of Laxmanbhai was having equal share by inheritance as well as Page 3 of 8 Downloaded on : Sun Sep 17 02:52:33 IST 2023 NEUTRAL CITATION C/AO/182/2023 ORDER DATED: 29/08/2023 undefined succession and therefore, when the said facts are not disputed, the trial Court ought to have granted interim injunction pending the suit to avoid the multiplicity of the proceedings as within short span of time, three transactions of the suit land were being took place, which shows that, if another transaction took place by defendant no.4, then, it will defeat the right of the plaintiffs. It is in this context, he submitted that, if during the suit proceedings, the property changes hands, the court should lean towards seen that there is no multiplicity of proceedings and in that circumstances, the court has no alternate but to grant injunction, so as to avoid multiplicity of proceedings and said facts having been overlooked by the trial Court while refusing to grant injunction and to that extent, findings recorded by the Court are seems to be arbitrary and without application of mind.
5. Mr., Kanva Antani, learned advocate further submitted that, the sale transactions made behind the back of deceased Hasumatiben and keeping her in dark, the defendants by playing frauds, executed the sale deed, which factor having not been properly appreciated by the court below while refusing to grant interim injunction and therefore, the findings arrived at by the Court are contradictory and palpably incorrect.
6. In view of the aforesaid contentions, learned counsel Mr. Antani, submitted that, the order impugned is contrary to the factual aspect of the case and the trial Court has ignored the settled principles with respect to granting / refusing the injunction and therefore, he prays that let matter be admitted and after hearing the other side, Page 4 of 8 Downloaded on : Sun Sep 17 02:52:33 IST 2023 NEUTRAL CITATION C/AO/182/2023 ORDER DATED: 29/08/2023 undefined the order deserves to be set aside and meanwhile, the impugned injunction as prayed be granted pending the present Appeal from order.
7. Having heard the learned counsel for the appellants original plaintiffs and on perusal of the impugned order, the issue arise for consideration of this Court, whether the order refusing the temporary injunction calls for interference in the exercise of appellate jurisdiction?
8. Before adverting to the contentions, let us refer the settled principles with regard to grant or refuse of temporary injunction and power and scope of the Appellate Court to interfere with the order of granting /refusing the interim injunction.
Grant of temporary injunction is discretionary and the appellate court will not interfere with the exercise of discretion of court of first instance except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. This aspect has been dealt with by Hon'ble Supreme Court in the case of Esha Ekta Apartments CHS Limited & others Vs Municipal Corporation of Mumbai & another reported in (2012) 4 SCC 689. Para 19 & 20 of the said judgment are reproduced below:-
"19. We have considered the respective submissions and carefully scrutinized the record. The scope of the appellate Court's power to interfere with an interim order passed by Page 5 of 8 Downloaded on : Sun Sep 17 02:52:33 IST 2023 NEUTRAL CITATION C/AO/182/2023 ORDER DATED: 29/08/2023 undefined the Court of first instance has been considered by this Court in several cases. In Wander Ltd. v. Antox India (P) Ltd 1990 Supp SCC 727, the Court was called upon to consider the correctness of an order of injunction passed by the Division Bench of the High Court which had reversed the order of the learned Single Judge declining the respondent's prayer for interim relief. This Court set aside the order of the Division Bench and made the following observations:
"In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
20. In Skyline Education Institute (India) Pvt. Ltd. v. S.L. Vaswani (2010) 2 SCC 142, the 3-Judge Bench considered a somewhat similar question in the context of the refusal of the trial Court and the High Court to pass an order of temporary injunction, referred to the judgments in Wander Ltd. v. Antox India (P) Ltd (supra), N.R. Dongre v. Whirlpool Corpn. (1996) 5 SCC 714 and observed:
"The ratio of the abovenoted judgments is that once Page 6 of 8 Downloaded on : Sun Sep 17 02:52:33 IST 2023 NEUTRAL CITATION C/AO/182/2023 ORDER DATED: 29/08/2023 undefined the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity."
9. It is thus apparent that the scope of interference by the Appellate Court with the order granting or refusing the temporary injunction is limited. Interference can be made only in situations where the Appellate Court is satisfied with the trial Court has acted arbitrarily or contrary to law or that, findings of the trial Court are perverse or capricious, palpably incorrect and are wholly untenable.
10. Reverting back to the facts of the present case, plaintiffs are claiming their share from the property which was originally belongs to their great grand maternal father. It is no doubt true that the mother of the plaintiff Hasumatiben being a surviving legal heirs of deceased Laxmanbhai, was the co-owner of the suit land. However, under what circumstances, her name from the revenue record (rights of records) being deleted, that has not been either explained or pleaded by the plaintiffs. The first sale transaction took place in the year 2010 and thereafter, the second one was entered on 19.09.2017. The deceased Hasumatiben passed away on 12.04.2019. Since 2010 to 2017, deceased set quite and did not raise any objection against the alleged sale deed. The theory projected by the plaintiffs that behind her back, the sale Page 7 of 8 Downloaded on : Sun Sep 17 02:52:33 IST 2023 NEUTRAL CITATION C/AO/182/2023 ORDER DATED: 29/08/2023 undefined transactions were executed and she was totally in dark, is not convincing. It is general practice that, if any change in the mutation, either by sale or otherwise, the affected party shall be informed by the revenue authority, issuing necessary notice. Thus, therefore, in absence of any satisfactory explanation about the deletion of name of deceased Hasumatiben from the rights of records with respect to suit land, the trial Court has rightly exercised its judicial discretion while refusing the interim injunction.
11. For the reasons aforestated, this Court is of the considered view that, the findings of the trial Court is supported by the sound reasons and has properly discussed the three main ingredients i.e.
(i) prima-facie case, (ii) balance of convenience, and (iii) irreparable loss. Thus, therefore, the findings of the trial Court for not granting the injunction cannot be termed arbitrary or contrary to law. Consequently, at the admission stage, no case is made out to interfere with the order impugned. Accordingly, present Appeal from Order fails and is hereby dismissed. No order as to costs.
Order in Civil Application:
In view of the order passed in main Appeal from Order, no order in present Civil Application and is disposed of accordingly.
(ILESH J. VORA,J) P.S. JOSHI/02/09 Page 8 of 8 Downloaded on : Sun Sep 17 02:52:33 IST 2023