Gujarat High Court
Jagdish Ratanshi Limbani vs Chapuben Mithu Rabari D/O Mithu Deva ... on 22 January, 2025
NEUTRAL CITATION
C/SCA/15513/2024 ORDER DATED: 22/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15513 of 2024
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JAGDISH RATANSHI LIMBANI
Versus
CHAPUBEN MITHU RABARI D/O MITHU DEVA RABARI
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Appearance:
BHAVIN B THAKAR(9371) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 22/01/2025
ORAL ORDER
1. Heard learned advocate Mr. Bhavin B. Thakar for the petitioner.
2. The present petition is filed under Article 227 of the Constitution of India seeking following relief :-
"A. The Honorable Court may be pleased to admit and allow the petition by quashing and setting a side impugned order dated 29-09- 2022 passed by Pri. Senior Civil Court, Nakkhatrana filed in Regular Civil Suit No. 175 of 2019 below Ex.-5 (ANNEXURE-C) and order vide dated 28-02-2024 passed by 8 th Add. District Court, Kutch-Bhuj in MCA No. 39 of 2022 below Ex-22 (ANNEXURE-E) AND further be please to allow the application filed by petitioner- plaintiff for interim injunction for maintaining status quo of suit land till final disposal of suit.
B. Pending hearing and final disposal of the present petition, the Honorable Court be pleased to stay the order dated 28-09-2022 passed by Pri. Senior Civil Court, Nakkhatrana filed in Regular Civil Suit No. 175 of 2019 below Exh.-5 (ANNEXURE-C) and order vide Page 1 of 8 Uploaded by SALIM(HC01108) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:24:16 IST 2025 NEUTRAL CITATION C/SCA/15513/2024 ORDER DATED: 22/01/2025 undefined dated 28-02-2024 passed by 8th Add. District Court, Kutch-Bhuj in MCA No. 39 of 2022 below Exh-22 (ANNEXURE-F) AND direct the parties to maintain status quo of suit land till final disposal of present petition.
C. Any other and further order that this Honorable Court may deem fit be passed, in the interest of justice."
3. Learned advocate for the petitioner would submit that the trial Court as well as the Appellate Court has committed gross error while rejecting the injunction application as well as Appeal from Order respectively filed by the petitioner.
3.1 He would further submit that the petitioner is original- plaintiff, who has filed Regular Civil Suit No. 175 of 2019 before the Civil Court, Kutchh @ Nakkhatrana against respondent- defendant seeking specific performance of agreement to sale and simultaneously file an application below Exh.5 seeking interim injunction pending in the suit.
3.2 Learned advocate for the petitioner would submit that considering the facts and circumstances of the case and when it remains undisputed that there is agreement to sale executed between the plaintiff and father of the defendant and part performance has been paid by the plaintiff and injunction which is sought for, ought to have been granted by the trial Court and having not granted so, the lower Appellate Court ought to have considered the request of the Page 2 of 8 Uploaded by SALIM(HC01108) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:24:16 IST 2025 NEUTRAL CITATION C/SCA/15513/2024 ORDER DATED: 22/01/2025 undefined present petitioner.
3.3 According to his submissions, both Courts below have committed a gross error in not protecting the interest of plaintiff.
3.4. No other and further submissions have been made by the learned advocate for the petitioner.
4. At the outset, the present petition is filed challenging the rejection order of injunction application passed by the trial Court, which is confirmed by the lower Appellate Court. So, both the Courts below are not in agreement with the submissions made by the petitioner-plaintiff. There is concurrent finding of fact recorded against the petitioner by the trial Court as well the District Court.
5. Be as it may, this Court has been supplied with limited documents which are annexed with the present petition, then in absence of other documents including copy of alleged agreement to sale, the observations which are made by the Courts below are require to be considered on its face value.
6. It is required to be considered that while rejecting the Page 3 of 8 Uploaded by SALIM(HC01108) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:24:16 IST 2025 NEUTRAL CITATION C/SCA/15513/2024 ORDER DATED: 22/01/2025 undefined injunction application by the trial Court, it has been so observed in Para-8 of the impugned order that Mark 3/1 which is claimed to be agreement to sale can not be considered as an agreement to sale. As stated herein above, in absence of its copy, I have no option but to accept such finding recording by trial based upon facts placed before it. It is further observed that it is not the case of the plaintiff that the agreement was oral in nature. Prima-facie, the trial Court has not considered mark 3/5 as an agreement to sale entered between the parties. Having not supplied such copy of Mark 3/5 to this Court, I am not in a position to make any further view, except to take the word of the trial Court as it is.
7. Likewise, the District Court while dismissing the Appeal from Order of the petitioner filed under O. 43 R.1 of CPC, as observed in Para-9 of its impugned judgment and order that as per the averment made in the plaint, the suit property is a new tenure land having restriction under the law to transfer without taking prior permission of the Collector. It is so further observed that such agreement was not executed after taking permission from the Collector concerned. As the copy of the plaint is submitted with the petition, in Para-2 itself such fact has been mention thereby it can be culled out that suit property was new tenure land i.e. restricted tenure Page 4 of 8 Uploaded by SALIM(HC01108) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:24:16 IST 2025 NEUTRAL CITATION C/SCA/15513/2024 ORDER DATED: 22/01/2025 undefined when alleged transaction taken place between parties.
8. If it be so, as per Section 43 of The Bombay Tenancy and Agricultural Lands Act, 1948, if the land is restricted tenure land, no transfer, sale, mortgage etc. can be undertaken by the owner of the property without prior sanction of the Government. It is profitable to read Section 43 of the Bombay Tenancy and Agricultural Land Act, 1948, which reads as under :-
"43. [ Restriction on transfers of land purchased or sold under this Act. [This section was substituted for the original, by Bombay 13 of 1956, section 29.] "(1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 321, 320, [32U, 43-ID or 88E] or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector."
9. Thus, in view of above, when the trial Court has observed that Mark 3/5 can not be considered as an agreement to sale, and even assuming for the time being, that it is an agreement to sale, in view of Section 43 of the Bombay Tenancy and Agricultural Land Act, 1948, no Page 5 of 8 Uploaded by SALIM(HC01108) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:24:16 IST 2025 NEUTRAL CITATION C/SCA/15513/2024 ORDER DATED: 22/01/2025 undefined performance can be asked of such agreement to sale.
10. In view of the aforesaid, I am of the view that there is no error committed by any of the Courts below while rejecting the injunction application as well as Appeal from Order filed by the petitioner. No interference is required by this Court while exercising the powers of under Article 227 of the Constitution of India, as such powers is confined to rectify the error which are so gross in nature if not corrected at any initial stage, later on not be in a position to be corrected.
11. It is apposite to refer the judgment of Hon'ble Apex Court in the case of M/s Garment Craft Vs. Prakash Chand Goel reported in 2022 4 SCC 181, more particularly Para-18 which reads as under :-
"[18] 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 re-appreciate, 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. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of Page 6 of 8 Uploaded by SALIM(HC01108) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:24:16 IST 2025 NEUTRAL CITATION C/SCA/15513/2024 ORDER DATED: 22/01/2025 undefined 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. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., 2001 8 SCC 97 as 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 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."Page 7 of 8 Uploaded by SALIM(HC01108) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:24:16 IST 2025
NEUTRAL CITATION C/SCA/15513/2024 ORDER DATED: 22/01/2025 undefined
12. The upshot of the aforesaid discussion, observations, reasons and in view of the ratio of the aforesaid pronouncement by the Hon'ble Apex Court in the case of M/s Garment Craft (supra), I do not find any merit in the present petition, it requires to be dismissed. The present petition is dismissed. No order as to costs.
(MAULIK J.SHELAT,J) SALIM/ Page 8 of 8 Uploaded by SALIM(HC01108) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:24:16 IST 2025