NEUTRAL CITATION
C/AO/12/2018 JUDGMENT DATED: 25/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 12 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In
R/APPEAL FROM ORDER NO. 12 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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Appearance:
MR NV GANDHI(1693) for the Appellant(s) No. 1
MR VIRENDRA R PATEL(3681) for the Appellant(s) No. 1
MR VISHAL C MEHTA(6152) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1,3,4,5,6,7,8,9
NOTICE SERVED BY DS for the Respondent(s) No. 11,12,13,14,15
UNSERVED REFUSED (N) for the Respondent(s) No. 10
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 25/09/2023
ORAL JUDGMENT
1. This appeal has been filed by the appellant - original plaintiff against the respondents - original defendants against the order dated 22.11.2017 below Exh. 15 passed by the learned Page 1 of 10 Downloaded on : Tue Sep 26 20:45:16 IST 2023 NEUTRAL CITATION C/AO/12/2018 JUDGMENT DATED: 25/09/2023 undefined Principal Senior Civil Judge, Kalol, District Gandhinagar in Special Civil Suit No. 58 of 2014, whereby, the learned Principal Senior Civil Judge, Kalol was pleased to allow the application under Exh.15 filed by the defendants under Order-39 Rule-4 of the Civil Procedure Code, 1908 (hereinafter referred to as 'the Code' for short) and set aside the order dated 04.02.2015 passed below Exh.5 under Order-39 Rule 1-2 of the Code. The parties are hereinafter referred to as the plaintiff and the defendants as they stood in the original petition for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1. That the plaintiff filed Special Civil Suit No. 58 of 2014 for permanent injunction with regard to property situated in village Hajipur, Taluka Kalol, District Gandhinagar bearing Survey No. 1489, Khata No. 965 (Old Survey No. 1425 and 1426) admeasuring 37102 sq.mtrs. paiki 8323 sq.mtrs. land (hereinafter referred to as 'the disputed property' for short) and had also filed an application for interim injunction at Exh. 5, which was allowed by the learned Court below on 04.01.2015. Thereafter, the defendant No.2 appeared and filed an application under Order-39 Rule-4 of the Code to set Page 2 of 10 Downloaded on : Tue Sep 26 20:45:16 IST 2023 NEUTRAL CITATION C/AO/12/2018 JUDGMENT DATED: 25/09/2023 undefined aside the order of the interim injunction passed on 04.02.2015 and the plaintiff filed a reply to the application at Exh. 18. The learned Court below, after hearing the submissions made by both the parties and appreciating the documentary evidence produced by both the parties, was pleased to allow the application made by the defendant No.2 for quashing and setting aside the order dated 04.02.2015 passed below Exh.5 allowing the application for interim injunction.
2.2. Being aggrieved and dissatisfied with the order passed by the learned Court below, the plaintiff filed the present appeal mainly contending that the learned Court below has passed the order beyond the scope of the powers and the jurisdiction under Order-39, Rule-4 of the Code. That the order passed below Exh.5 cannot be discharged or varied unless such discharge or variation has been necessitated or unless there are change in the circumstances but there was hardship caused to the defendant No.2 on account of operation of the interim injunction order. That after substantial period of two years, the application for vacating the interim order is passed without any change in circumstance and it does not fall within the purview of the Order-39 Rule-4 of the Code. That the plaintiff has proved that he is in vacant and peaceful Page 3 of 10 Downloaded on : Tue Sep 26 20:45:16 IST 2023 NEUTRAL CITATION C/AO/12/2018 JUDGMENT DATED: 25/09/2023 undefined possession of the disputed property and the issue raised by the defendant was required to be adjudicated at the time of the trial and hence, the order is required to be quashed and set aside and the order of temporary injunction dated 04.02.2015 is required to be restrained.
3. Heard learned advocate Mr.N.V.Gandhi for the appellant and learned advocate Mr. Vishal Mehta for the respondent No.2. Though served, other respondents have not appeared.
4. Learned advocate for the appellant-plaintiff has reiterated the contents of the appeal memo and has stated that the impugned order may be set aside as the power under Order- 39 Rule-4 of the Code has not been properly appreciated by the learned Court below.
5. Learned advocate Mr. Vishal Mehta for the defendant No.2 has submitted that the entire land was admeasuring 37102 sq.mtrs. and out of that land, only land admeasuring 8323 sq.mtrs. was agreed to be sold to the the present plaintiff on 15.02.1994. That the order of injunction passed by learned Court below on 04.02.2015 was for the whole land and not qua the land admeasuring 8323 sq.mtrs. Moreover, particular part of the land was not identified. The defendant No.2 preferred an application to quash and set aside the Page 4 of 10 Downloaded on : Tue Sep 26 20:45:16 IST 2023 NEUTRAL CITATION C/AO/12/2018 JUDGMENT DATED: 25/09/2023 undefined order of injunction passed below Exh.5 on 04.2.2015 and there were other aspects also regarding the entire disputed property, which were also not brought on record by the plaintiff and the learned Court below has rightly appreciated the entire aspects properly and set aside the order of injunction.
6. Admittedly, an agreement to sell with regard to the disputed suit property i.e. 8323 sq.mtrs. land out of 37102 sq.mtrs. was executed on 15.02.1994. That some part of the land was sold on 30.08.2015 and other part of the land was sold before that but, the plaintiff filed the suit on 21.08.2015 seeking enforcement of the agreement to sell dated 15.02.1994, which is more than 20 years old. Moreover, the agreement to sell is not registered and is a notarized agreement. The plaintiff has never pleaded that he is ready and willing to perform his part of the contract. The plaintiff has also not given any explanation for remaining silent for 20 years and also the gross delay of 20 years and the Law of Limitation would also applicable in the present case. The learned Trial Court has also considered the aspect of possession of the disputed property and the panchnama prepared by the Court Commissioner in Special Civil Suit No. 5 of 2016, wherein, the possession of the defendant was also Page 5 of 10 Downloaded on : Tue Sep 26 20:45:16 IST 2023 NEUTRAL CITATION C/AO/12/2018 JUDGMENT DATED: 25/09/2023 undefined established. The learned Trial Court has considered the provision of Order-39, Rule-4 of the Code which is as under:
7. Order-39, Rule-4 of the Code is as under:
ORDER XXXIX TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS Temporary injunctions
4. Order for injunction may be discharged, varied or set aside.--
Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order:
Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:
Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.
8. Learned advocate for the plaintiff has vehemently argued that the Court cannot interfere and set aside the order of injunction without any change of circumstances but as per the provision of Order 39 Rule-4 of the Code, the order of injunction can be set aside or varied on an application of any party to the suit. Rule-4 of the Code also provides that if a party has knowingly made false or misleading statements in Page 6 of 10 Downloaded on : Tue Sep 26 20:45:16 IST 2023 NEUTRAL CITATION C/AO/12/2018 JUDGMENT DATED: 25/09/2023 undefined relation to a material particular and the injunction was granted without giving notice to the opposite party, the learned Court can vacate the injunction order and in the facts and circumstances of the case, it appears that in the earlier order passed on 04.2.2015, the defendant No.2, though served, had not appeared and contested the suit but, thereafter, the defendant No.2 filed an application before the learned Court and he was permitted to contest the suit and by-party proceedings were allowed. That the defendant No.2 brought on record certain facts, which had not been brought before the learned Trial Court by the plaintiff. Admittedly, the plaintiff has not described the four boundaries of the disputed suit property and has not clarified as to which part of the total land he holds in possession. That the plaintiffs had filed the suit for cancellation of the sale deed No.4413, which was executed on 16.07.2014. But, in fact, the sale deed produced by the defendant No.2 reveals that the defendant Nos. 11 to 15 had never purchased disputed suit property but the sale deed was actually executed in favour of Rameshchandra Khodidas Patel, who is not a party to the suit and the plaintiff had prayed for cancellation of the sale deed No. 4413 and hence, the learned Trial Court has rightly considered all aspects and set aside the injunction order passed below Exh.5 on 04.02.2015.
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9. This Court in Jivraj Tea Limited Vs Dayalji Vanravan Kotecha, reported in 2022(0)AIJEL-HC 244893 in paragraph 10 observed thus :
"10. It is well settled principles of law that in an Appeal against exercise of 'discretion' by the Court of first instance, the power of appellate Court to interfere with the exercise of discretion is restrictive. Merely because on facts, the appellate Court would have concluded differently from that of the Court below, that would not, by itself, provide justification for appellate Court to interfere. To justify interference, the appellant would have to demonstrate that 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 injunction. An appeal against the exercise of discretion is an appeal on principle.........."
10. In Wander Limited and another Vs Antox India P.Ltd, reported in 1990 (Supp) Supreme Court Cases 727, the Honourable Apex Court in paragraph 14 observed thus :
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. 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 the 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. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) Page 8 of 10 Downloaded on : Tue Sep 26 20:45:16 IST 2023 NEUTRAL CITATION C/AO/12/2018 JUDGMENT DATED: 25/09/2023 undefined "...These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston ....the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case."
The appellate judgment does not seem to defer to this principle."
11. In view of the above settled principles of law, this Court has very limited power to interfere with the order passed by the learned trial Court and only in exceptional circumstances, the Appellate Court can interfere with the discretionary order passed by the learned trial Court. The Appellate Court cannot reevaluate the entire evidence and arrive at a conclusion contrary to the conclusion arrived at by the learned trial Court unless the said order is found to be invalid, illegal, arbitrary, perverse or contrary to the settled principles of law. Keeping in mind the above principles, this Court has only to see as to whether the learned trial Court has committed any error in passing the impugned order. At the same time, this Court is also required to see whether the cardinal principles of law governing the injunction i.e. prima facie case, balance of convenience and irreparable loss are satisfied or not in passing the order or not ?
12. In the facts and circumstances of the case, the learned trial Court has discussed all the issue and has passed the order below Exh.15, which is just and proper and no order of Page 9 of 10 Downloaded on : Tue Sep 26 20:45:16 IST 2023 NEUTRAL CITATION C/AO/12/2018 JUDGMENT DATED: 25/09/2023 undefined interference is required. Hence, the appeal is hereby dismissed. The order passed by the learned Principal Senior Civil Judge, Kalol, District Gandhinagar in Exh. 15 in Special Civil Suit No. 58 of 2014 is hereby confirmed. There shall be no order as to costs.
13. Record and proceedings be sent back to the concerned Tribunal forthwith. Pending civil application, if any, shall stand disposed of accordingly.
Sd/-
(S. V. PINTO, J) F.S.KAZI.....
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