NEUTRAL CITATION
C/AO/188/2022 JUDGMENT DATED: 25/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 188 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/APPEAL FROM ORDER NO. 188 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2023
In R/APPEAL FROM ORDER NO. 188 of 2022
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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RAVIBHAI AMARATBHAI DANTANIA
Versus
STATE OF GUJARAT
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Appearance:
MR AM PAREKH(562) for the Appellant(s) No. 1,2,3,4,5
for the Respondent(s) No. 3
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
AISHVARYA(8018) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 25/09/2023
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NEUTRAL CITATION
C/AO/188/2022 JUDGMENT DATED: 25/09/2023
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ORAL JUDGMENT
1. This appeal has been filed by the appellants - original plaintiffs against the respondent Nos. 1 to 3 - the original defendants against the order passed by the learned City Civil and Sessions Court, Court No. 25, Ahmedabad below Notice of Motion at Exh. 6/7 in Civil Suit No. 844 of 2022 on 20.10.2022, whereby, the learned Judge was pleased to reject the application of plaintiffs. The parties are hereinafter referred to as the plaintiffs and the defendants in their rank and character as they stood in the original suit for the sake of convenience, clarity and brevity.
2. The facts leading to filing this appeal are summarized are as under:
2.1 The plaintiffs have stated that they are residing in House Nos.
365, 361, 370, 356, 355, 362 and 368 situated in Jupiter Mill Compound, T.P. Scheme No. 14, Final Plot No. 113/1, 114+121/1, 123/1/paiki, EWS quarters, Dudheshwar, Ahmedabad for the last seven years (hereinafter referred to as 'disputed suit property') and the defendants are trying to dispossess the plaintiffs from the disputed suit property, even though, the plaintiffs are in possession of the disputed suit property since last seven years. That the plaintiffs have Page 2 of 8 Downloaded on : Mon Sep 25 20:49:20 IST 2023 NEUTRAL CITATION C/AO/188/2022 JUDGMENT DATED: 25/09/2023 undefined requested the defendants to make some alternative arrangements for them and if the plaintiffs are dispossessed, they would be without a roof over their heads and would all be out on the street and hence, the plaintiffs filed the suit for permanent injunction to restrain the defendants from dispossessing the plaintiffs from the disputed suit property without due process of law and also filed a Notice of Motion for interim injunction to restrain the defendants from dispossessing them till final disposal of the suit.
2.2 The defendants were duly served with the notice. After considering the documentary evidence and the submissions made by the learned advocates for the parties, the learned Judge, City Civil Court, Court No. 25, Ahmedabad was pleased to reject the Notice of Motion and the application for permanent injunction at Exhs. 6/7 made by the plaintiffs.
2.3 Being aggrieved and dissatisfied with the said order, the plaintiffs have filed the present appeal mainly stating that the disputed suit property has been provided by the defendants and was sanctioned in 2018 for temporary accommodation and some of the persons have been allotted some quarters at Vatva but the application for alternative quarters of some plaintiffs is pending since last four years. That an application for appointment of the Court Commissioner was preferred by Page 3 of 8 Downloaded on : Mon Sep 25 20:49:20 IST 2023 NEUTRAL CITATION C/AO/188/2022 JUDGMENT DATED: 25/09/2023 undefined the plaintiffs and the possession of the defendants in the disputed suit properties has prima-facie come on record and hence, the appeal has been preferred for quashing and setting aside the order passed by the learned trial Court.
3. Heard learned advocate Mr.A.M.Parekh for the appellant, learned advocate Mr. Aditya Davda for the respondent No. 1 and learned advocate Ms. Aiashwarya for the respondent No.2.
4. Admittedly, the disputed suit property is a residential apartment scheme constructed under the "Jupiter Mill Awas Yojana" and 512 apartments have been constructed and have been allotted to various departments. As per the say of the respondent No.3, the apartments were vacant and on random inspection, it was found that certain encroachers and trespassers had started residing in the apartments and the concerned authorities along with the police carried out an eviction drive and the apartments including the suit property was sealed by the officer of the respondent Corporation. That the plaintiffs have, after giving threats to the security personnel, illegally occupied the disputed suit property and once again, the eviction drive was conducted on 28.06.2022 and the encroachers and trespassers were evicted and the apartments were sealed. That the plaintiffs are encroachers Page 4 of 8 Downloaded on : Mon Sep 25 20:49:20 IST 2023 NEUTRAL CITATION C/AO/188/2022 JUDGMENT DATED: 25/09/2023 undefined and trespassers and even though, being duly served served with the notice, they have trespassed and encroached in the disputed suit property.
5. Learned advocate appearing for the respondent No.2 has categorically stated that even on the date of the suit, as per the say of the plaintiffs, they were not in possession of the disputed suit property and the same is reflected in their pleadings.
6. 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.........."
7. 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 Page 5 of 8 Downloaded on : Mon Sep 25 20:49:20 IST 2023 NEUTRAL CITATION C/AO/188/2022 JUDGMENT DATED: 25/09/2023 undefined 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) "...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."
8. 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 Page 6 of 8 Downloaded on : Mon Sep 25 20:49:20 IST 2023 NEUTRAL CITATION C/AO/188/2022 JUDGMENT DATED: 25/09/2023 undefined 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 ?
9. In the facts and circumstances of the case, the learned Trial Court has discussed the issue about the non-services of notice under Section 487 of the G.P.M.C. Act to the respondent Corporation by the plaintiffs as also concluded that the notice under Section 80 of the Code of Civil Procedure, 1908 was duly waived prior to filing of the suit but no notice under Section 487 of the G.P.M.C. Act was waived by the Court. That from the pleading itself, it was found that the disputed suit property was sealed by the respondent - Corporation and in the pleadings, the plaintiffs have pleaded that the disputed suit property was sealed by the respondent - Corporation and they were residing outside and hence, the learned Trial Court has found any prima-facie case or balance of convenience in favour of the plaintiff and no irreparable loss would accrue to the plaintiffs and has passed the order of rejection of the notice of motion of the plaintiffs.
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10. In the facts and circumstances of the case, the learned trial Court has prima-facie appreciated all the evidence in its proper perspective and all the ingredients of prima-facie case, balance of convenience and irreparable loss have been considered in detail. Therefore, in the considered opinion of this Court the impugned order passed by the learned trial Court is found to be just and proper and no illegality or perversity is committed by the learned trial Court while passing the impugned order.
11. Under the circumstances, the present Appeal from Order fails and the same is hereby dismissed. The order passed by the learned City Civil and Sessions Court, Court No. 25, Ahmedabad below Notice of Motion at Exh. 6/7 in Civil Suit No. 844 of 2022 on 20.10.2022 is hereby confirmed. There shall be no order as to costs.
12. In view of the order, civil application if any pending, the same stands disposed of.
Sd/-
(S. V. PINTO, J) F.S.KAZI.....
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