Govindbhai Gidhabhai Vaghari vs Vaghari Lavingben Arjunbhai

                                                                                     NEUTRAL CITATION




     C/SCA/14632/2023                                  ORDER DATED: 31/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14632 of 2023

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                        GOVINDBHAI GIDHABHAI VAGHARI
                                   Versus
                        VAGHARI LAVINGBEN ARJUNBHAI
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Appearance:
MR YOGESH G KANADE(3114) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,3,4,5,6,7,8,9
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                 Date : 31/08/2023

                                  ORAL ORDER

1. When the matter was taken up for hearing in first session, learned advocate Mr. Yogesh Kanade appearing for the petitioners, after arguing to some extent, seeks permission to withdraw this petition with a relief that final hearing of the Regular Civil Suit No.57 of 2021 may be expedited. Consequent to the request made by learned advocate for the petitioners, this Court has been pleased to dispose of the petition by passing following order in first session:-

"Heard learned advocate Mr. Yogesh Kanade appearing for the petitioners.

The concurrent findings of the learned trial Court below are there, whereby the Court has not believed to exercise the discretion in favour of the petitioner. Under the circumstances, learned advocate Mr. Kanade for the petitioners seeks permission to withdraw this petition with a relief to expedite the suit.

NEUTRAL CITATION C/SCA/14632/2023 ORDER DATED: 31/08/2023 undefined Accordingly, present petition stands disposed of as withdrawn.

It is expected from the learned trial Court to make an endevaour to decide and dispose of Regular Civil Suit No.57 of 2021 as early as possible in accordance with law and on its merit, preferably within 18 months from the receipt of this order without being influenced by the order passed below Exh.5, order passed in MCA No.19 of 2022 so also disposal of this petition.

It is clarified that this Court has not examined the merits of the matter."

2. However, just before recess time period, learned advocate Mr. Yogesh Kanade appearing for the petitioners requests the Court to pass reasoned order. In view of such subsequent request, the aforestated order is hereby recalled and following reasoned order is passed.

3. By way of this petition under Article 227 of the Constitution of India, the unsuccessful petitioners - original plaintiffs (in short "the plaintiffs") of Regular Civil Suit No.57 of 2021 challenges the concurrent findings passed by the learned Court below, whereby the learned 9th Addl. Civil Judge, Mehsana dismissed the injunction application Exh.5 filed under Order 39 Rule 1 and 2 r/w section 151 of the Civil Procedure Code, 1908 (for short "CPC") and refused to exercise discretion as well as equity in favour of the plaintiffs. The order passed below Exh.5 has been carried unsuccessfully to challenge by way of filing AO No.19 of 2022 before the learned 3 rd Addl. District Judge, Mehsana under Order 43 Rule 1(r) of the CPC unsuccessfully.

4. Both the orders are carried to challenge before this Court Page 2 of 8 Downloaded on : Sun Sep 17 03:02:12 IST 2023 NEUTRAL CITATION C/SCA/14632/2023 ORDER DATED: 31/08/2023 undefined by way of filing present petition.

5. Briefly stated case are that the plaintiffs have filed the aforestated suit before the learned Court below inter alia seeking to cancel the registered sale deed executed by the defendant Nos.1 to 23 in favour of defendant No.24 qua land bearing Block/Survey No.3208 (Old Survey No.492/3) admeasuring 0- 19-69 H-A-S situated at village Panchot, Dist: Mehsana (in short "the land in question") dated 26.12.2019 having registration No.13466 of 2019 with the relief of declaration to declare them as owners of the land in question and permanent injunction to restrain the defendants from changing the hands of the land in question as well restrained them from interfering with the possession of the plaintiffs qua the land in question. The injunction application was filed at Exh.5 under Order 39 Rule 1 and 2 r/w section 151 of the CPC for protecting the possession of the land in question pending final hearing of the suit. That application came to be dismissed after hearing both the parties by the learned Court below.

6. AO No.19 of 2022 under Order 39 Rule 1(r) of the CPC is also filed challenging the said order. However, vide judgment and order dated 22.6.2023, the AO came to be dismissed confirming the order passed by the learned Civil Court.

7. It was the case of the plaintiffs before the learned Court below that the land in question belongs to Bhikha Shiva who was ancestor of the plaintiffs and after death of Bhikha Shiva, name of Punja Shiva being legal heir was mutated in the revenue records. However, subsequently, for no reason or under the Page 3 of 8 Downloaded on : Sun Sep 17 03:02:12 IST 2023 NEUTRAL CITATION C/SCA/14632/2023 ORDER DATED: 31/08/2023 undefined error, the revenue authority has changed the name of Punja Shiva to the name of Lakha Sanka as owner and occupier of the land in question. The revenue proceedings were initiated by the plaintiffs to correct the error, but the application was filed as it was lacking the sufficient material. Lakha Sanka has expired and thus the revenue entry number 25509 was mutated in the revenue records. The RTS Case No. 54/2019 was filed, but the plaintiffs did not remain successful in that revenue proceedings. Therefore, RTS Appeal No.55/2020 was preferred before the Deputy Collector, Mehsana. The proceedings of said appeal are going on. Meanwhile, the plaintiffs apprehend that upon execution of the sale deed, the defendants might snatch away the possession of the plaintiffs over the land in question and therefore they have filed aforestated suit with a relief to cancel the sale deed and consequential relief of declaration as well as permanent injunction. Prayer for interim relief was also made. As stated supra, the plaintiffs being remained unsuccessful in getting the interim relief both at lower court and first appellate court, challenges the impugned order by way of filing present petition.

8. Heard learned advocate Mr. Yogesh Kanade for the petitioners.

9. At the outset, let refer the nature of scope of the supervisory jurisdiction under Article 227 of the Constitution of India, which is enlightened in case of Garment Crafts Vs. Prakash Chand Goel reported in (2022) 4 SCC 181, wherein the Hon'ble Apex Court in para 15 and 16, held as under:-

NEUTRAL CITATION C/SCA/14632/2023 ORDER DATED: 31/08/2023 undefined "15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal [Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217]. The jurisdiction exercised is in the nature of correctional1 jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court Page 5 of 8 Downloaded on : Sun Sep 17 03:02:12 IST 2023 NEUTRAL CITATION C/SCA/14632/2023 ORDER DATED: 31/08/2023 undefined while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

10. In background of above aspect of nature and scope of the supervisory jurisdiction of this court, let refer the facts of the case to ascertain that whether the court below has committed error and the plaintiffs have made out a case to exercise jurisdiction under article 227 of the Constitution of India, which otherwise, is to be exercised sparingly and in appropriate case.

11. On perusal of the impugned order, what transpires that the learned court below recorded the reasons in para 13 to 15 to deny interim relief in background of the case-law reported in case of Ambalal Sarabhai Enterprise Ltd. Vs. K.S. Infraspace LLP Ltd reported in AIR 2020 SC 307. The facts which are asserted by the court below that though the plaintiffs claim protection to the possession over the land in question, they have failed to make out that they are in possession of the land in question. Except bare words, there is no evidence produced by the plaintiffs to indicate that they are in legal and settled possession of the land in question. It appears that the plaintiffs have produced Mark 22/1 to 22/4 being photographs to establish that plaintiffs are in possession of the land in question. But the photographs are not sufficient to believe that particular piece of land is in possession of the plaintiffs. These findings coupled Page 6 of 8 Downloaded on : Sun Sep 17 03:02:12 IST 2023 NEUTRAL CITATION C/SCA/14632/2023 ORDER DATED: 31/08/2023 undefined with the admitted facts that admittedly, the land in question is transferred in favour of defendant No.24 by way of registered sale deed. Name of defendant No.4 is also mutated in the revenue records prima facie indicates that the plaintiffs are not in possession of the land in question. This aspect prompted the learned court below to dismiss the injunction application. The learned first appellate court in AO while exercising very limited and circumscribed jurisdiction, re-looked this aspect and ultimately held that the unsuccessful plaintiffs were unable to establish that they are in legal and settled possession over the land in question.

12. According to this court, the plaintiffs have failed to establish their case compelling this court to exercise the power under article 227 of the Constitution of India. The plaintiffs were never in possession of the suit property. They hide/suppressed the fact, which is very material, and tried to take the possession of the land in question with the help of court's discretion. The equity can never be resided with such unscrupulous person. The plaintiffs, who indulged in the practice of suppressing material facts, have to be thrown out from the rule of equity, which rightly has been done by the courts below in exercise of discretion. This court finds no reason to interfere with such discretionary orders. In fact, what appears that the petitioners/ plaintiffs under the garb of the present litigation ride the process of the Court. The approach of the petitioner/ plaintiffs is needed to be depricated. This is the fit case where the cost is required to be quantified as the plaintiffs have misused the process of the court and tried to make the court as tool to get the possession.

NEUTRAL CITATION C/SCA/14632/2023 ORDER DATED: 31/08/2023 undefined

13. For the foregoing reasons, present petition fails and dismissed with costs, quantified at Rs.5000/-, which the petitioners - original plaintiffs are required to be deposited with the District Legal Services Authority, Mehsana within a week from today, failing which, the learned Court below is directed to undertake the procedure to recover such amount of cost by way of issuing jungam milkat warrant or by way of recovering it as arrears of land revenue after issuing certificate in favour of the Collector. In such cases, the Collector concerned is directed to undertake the procedure for recovery of the amount of costs.

(J. C. DOSHI,J) SHEKHAR P. BARVE Page 8 of 8 Downloaded on : Sun Sep 17 03:02:12 IST 2023