Gujarat High Court
Surendrasinh Hamirisinh Vaghela vs Shri Jain Swetambar Murtipujak Sangh ... on 8 December, 2023
NEUTRAL CITATION
C/AO/272/2023 ORDER DATED: 08/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 272 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 272 of 2023
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SURENDRASINH HAMIRISINH VAGHELA
Versus
SHRI JAIN SWETAMBAR MURTIPUJAK SANGH VASANA
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Appearance:
MR DIPEN DESAI(2481) for the Appellant(s) No. 1
for the Respondent(s) No. 10,5,6,7,8,9
MS HIMANSHI S PATWA(12754) for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 08/12/2023
ORAL ORDER
1. Heard learned advocate Mr. Dipen Desai for appellant and learned advocate Ms. Himanshi S. Patwa for the respondents.
2. At the outset, the learned advocates for the respective parties have requested to take this appeal from for final hearing and the same is taken up for final hearing.
3. By way of this Appeal from Order, the appellant has prayed to quash and set aside the order dated 10/11/2023 passed by the learned Chamber Judge, City Civil Court, Ahmedabad below application Exhibit-7 in Civil Suit No.1566 of 2022. In the said order, the learned Chamber Judge, City Civil Court has granted Notice of Motion and allowed the injunction application Exhibit-7. Hence, the present Appeal from Order.
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4. The submission of the learned advocate for the appellant is that the respondent Nos.1 to 4 have filed Civil Suit No.1566 of 2022 for a relief of permanent injunction and declaration. By Exhibits-6/7, temporary injunction is sought, which is of the identical nature of prayers prayed in plaint. The submission of the learned advocate for the appellant is that the appellant is the owner of the Plot No.44 and the respondent No.1, who is the trust, is owner of the Plot No.43 of Sadanand Co-op. Housing Society Ltd. The dispute is with regard to the right of way through Plot No.44. It is submitted that the Plot No.44 was purchased by the appellant in the year 1971, and thereafter, construction was put up by the defendant No.1 in the same year. In the year 2021 vide registered sale deed dated 13/07/2021, the present respondent No.1 purchased the Plot No.43 from its owner. Somewhere in the year 2022, a North-South wall was constructed by the petitioner in the Plot No.44 and the said wall was demolished by the Ahmedabad Municipal Corporation. Thereafter, the present appellant has filed a Civil Suit No.1077 of 2022 challenging the action of the Ahmedabad Municipal Corporation. However, the said suit came to be withdrawn on 13/07/2023, upon the endorsement of the learned advocate for the Corporation that the present appellant may construct a compound wall pursuant to rules and regulations under the GDCR.
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5. It is further submitted by the learned advocate for the appellant in the plaint, there is no such averment that either the plaintiffs or predecessor-in-title was using the disputed piece of land, which is East-West in direction. Even there is no avernment in the plaint that the right of way was given by the predecessor-in-title of Plot No.43, pursuant to sale deed dated 13/07/2021. It is further submitted that the prayers in the plaint and the prayers made in the injunction application are identical and similar and by granting injunction application, a decree is passed against the present appellant without entering into the trial. Plaintiffs could not point out from the record that a right of way has been given through the Plot No.44, which belongs to ownership of the appellant. In absence of such right, the learned Trial Court ought not to have granted injunction in favour of the plaintiffs.
6. It is further submitted that adjoining the Plot Nos.43 and 44, there is an independent plot, which belong to ownership of the respondent No.1-Trust and the respondent No.1-Trust can certainly have an access to Plot No.44 through that independent plot. Appellant has a right to use the Plot No.44 for its own use and occupation and has every right to park vehicle in the land, which is owned and occupied by the defendant No.1.
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7. In support of his submission, learned advocate for the appellant has relied upon the decision of Hon'ble Apex Court in the case of State of U.P. and others V/s. Ram Sukhi Devi; (2005) 9 SCC 733.
8. Per contra, learned advocate for the respondent Nos.1 to 4 has vehemently submitted that an illegal wall was constructed in Plot No.44 by the defendant No.1, which was of North-South direction and which came to be demolished by the Ahmedabad Municipal Corporation on 20/10/2022. Now, the intention of the defendant No.1 is to obstruct the passage by making a fresh wall in the land under dispute. It is pointed out by the learned advocate for the respondent Nos.1 to 4 that the respondent No.1 purchased the Plot No.44 on 13/07/2021 by a registered sale deed. A copy of sale deed is placed on record which is taken on record. Learned advocate for the respondent Nos.1 to 4 has relied upon the rights given in the sale deed by the predecessor- in-title at Page No.11 of the sale deed. It is the submission of the learned advocate for the respondents that it is an established right to have an access through Plot No.44 and the defendant No.1 has no right to obstruct the ingress and egress through Plot No.44. That the disputed passage is the only passage through which, the plaintiffs can have an access to their Plot No.44 and there is no other way to have ingress and egress. It is the Page 4 of 8 Downloaded on : Tue Dec 12 20:36:41 IST 2023 NEUTRAL CITATION C/AO/272/2023 ORDER DATED: 08/12/2023 undefined submission of the learned advocate for the respondent is that the society has to give a right of way and not the independent plot holder. By making such submissions, the contention of the learned advocate for the respondents is that the predecessor-in- title of Plot No.43 cannot give a right of way through the Plot No.44, which belongs to the ownership of defendant No.1.
9. In support of her submission, learned advocate for the respondent Nos.1 to 4 has relied upon the decision of Hon'ble Apex Court in the case of Dalpat Kumar and Anr. vs. Prahald Singh and Ors; 1991 Supp 3 SCR 472.
10. Having considered the submissions of the respective parties and the documents produced on record, what is prayed in the plaint is a relief of declaration coupled with a permanent injunction and in the injunction application, the identical prayers are sought for. The prayers in the plaint are couched by claiming, a declaration in the form of injunction, which is in the nature of a permanent injunction and the relief in the injunction application similar and identical to that of the plaint. By granting injunction, the learned Trial Court has virtually allowed the suit. In the present case, the plaintiff has not averred in clear terms that the predecessor-in-title as well as the plaintiff No.1 and other trustees were using the Plot No.44 for the ingress and Page 5 of 8 Downloaded on : Tue Dec 12 20:36:41 IST 2023 NEUTRAL CITATION C/AO/272/2023 ORDER DATED: 08/12/2023 undefined egress. What is averred is that for the ingress and egress, there is no other way except the Plot No.44, from which the plaintiffs can have a right of ingress and egress. In absence of a consequential relief in the plaint, it cannot be presumed that the plaintiff has a prima facie case. Even prima facie, the learned Trial Court has failed in appreciating the rights, which are given in the sale deed dated 13/07/2021, it could be gathered from perusing the sale deed that there is no right given to the plot holder of Plot No.43 to use the Plot No.44 for the ingress and egress. Even if the contentions of the plaintiffs are taken on the face of it, if any, right is given, that right has to be either expressed or implied. Prima facie in the present case, plaintiff has not been able to point out from the documents that plaintiffs have a right of ingress and egress through Plot No.44. The learned Trial Court has failed to even consider the contents of sale deed, which is a material document in the present case. The right which has been given under the sale deed dated 13/07/2021 on the page No.11, is a right towards the common facilities and common road of the society. Even in the boundaries, which are mentioned in the sale deed at page No.11, on the Western side only the Tenament No.44 has been mentioned. Thus, on the above factual aspects, learned Trial Court has committed an error in granting the injunction application. The Hon'ble Apex Court has observed in para 8, in the case of State of U.P. and Page 6 of 8 Downloaded on : Tue Dec 12 20:36:41 IST 2023 NEUTRAL CITATION C/AO/272/2023 ORDER DATED: 08/12/2023 undefined others (supra), which is reproduced hereunder;
"To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable Government Order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable preferably within six months from the date of receipt of this judgment."
The ratio has been laid down by the Hon'ble Apex Court in the above decision, which squarely covers the facts of the present case. In catena of decisions law is settled that a final relief cannot be granted at an interim stage. In the present case by seeking a declaration, what is prayed for is a permanent injunction in the plaint. Whereas, the decision of the Dalpat Kumar and Anr. (supra), which has been relied upon by the Page 7 of 8 Downloaded on : Tue Dec 12 20:36:41 IST 2023 NEUTRAL CITATION C/AO/272/2023 ORDER DATED: 08/12/2023 undefined learned advocate for the respondents is not helpful to the case of the plaintiffs.
11. In view of the totality of the facts and circumstances of the case, I am of the view that the learned Trial Court has committed an error by granting the injunction application Exhibits-6 and 7. The order impugned is unstainable. Thus, this Appeal from Order is allowed and the order dated 10/11/2023 passed by the learned Chamber Judge, City Civil Court, Ahmedabad below application Exhibit-7 in Civil Suit No.1566 of 2022 is hereby quashed and set aside.
12. It is needless to mention that the Trial Court shall decide the suit on its own merits and in accordance with law, without being influenced by the observations made hereinabove.
(D. M. DESAI,J) Vikramsinh Amarsinh Page 8 of 8 Downloaded on : Tue Dec 12 20:36:41 IST 2023