Rupinbhai Bharatbhai Divecha vs Legal Heirs Of Decd. Chandulal ...
2023 Latest Caselaw 2712 Guj

      C/SCA/377/2021                                          ORDER DATED: 03/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 377 of 2021

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                  RUPINBHAI BHARATBHAI DIVECHA
                              Versus
      LEGAL HEIRS OF DECD. CHANDULAL GAURISHANKAR THAKAR
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1
for the Respondent(s) No. 3,4,5,6
MR VISHAL C MEHTA(6152) for the Respondent(s) No. 1,1.1,2,2.1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 03/04/2023
                                   ORAL ORDER

1. The present petition is filed by being aggrieved and

dissatisfied with the impugned order dated 11.11.2020

passed below Ex.18 in Regular Civil Suit No.411 of 2019,

by which the trial Court has partly allowed the

application filed by the respondent Nos.1.1 and 2.1, by

directing the parties to maintain status quo.

2.1 Brief facts of the case are as such that the

petitioner and other had instituted Regular Civil Suit

No.411 of 2019 before learned Principal Senior Civil

Judge, Una, for declaration to the effect that the part of

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the suit property, which is in dilapidated condition, may

be permitted to be pulled down by the plaintiffs and

that the defendants may be injuncted from causing any

disturbance for the same. On 07.10.2019, the learned

Judge has granted the application below Exh.5 moved in

Regular Civil Suit No.411 of 2019 and directed that if

the petitioner wants to pull down the construction, the

defendants shall not cause any obstruction for the same.

2.2 It is further the case of the petition in the present

petition that the respondent Nos.1.1 and 2.1 filed an

application below Exh.18 under Section 151 of the Code

of Civil Procedure, 1908, inter alia, stating that the

aforesaid order passed below Exh.5 may be stayed

recalled and it may be declared that the said order will

not be applicable to them and aforesaid two persons are

third parties applicants and they have also gave an

application below Exh.21 for being joined as parties in

Regular Civil Suit No.411 of 2019 under Order I Rule

10 of the Code of Civil Procedure, 1908. Thereafter, the

C/SCA/377/2021 ORDER DATED: 03/04/2023

learned Additional Senior Civil Judge, Una, by order

dated 08.09.2020 has partly allowed the aforesaid

application below Exh.18 moved Regular Civil Suit

No.411 of 2019 and directed that the status-quo be

maintained with regard to the suit property in question

and no demolition be done. Impugned order is

purportedly passed under section 151 of the Code of

Civil Procedure, 1908. Impugned order is passed on the

application below Exh.18 moved by the third parties, who

are not yet joined as parties in R.C.S. No.411 of 2019.

Thereafter, the petitioner filed an application below

Exh.24 to vacate the impugned order and also filed reply

below Exh.18 and 21 applications. Thereafter, learned

Judge, Una by the order dated 16.09.2020 has rejected

the application below Exh.24 filed by the petitioner.

2.3 Thereafter, being aggrieved by the aforesaid orders

below Exh.18 and 24, the petitioner has preferred Special

Civil Application No.13243 of 2020, which came to be

partly allowed by this Court vide order dated 02.11.2020,

C/SCA/377/2021 ORDER DATED: 03/04/2023

whereby this Court remanded the matter back to learned

trial Court to decide application below Exh.18 as well as

the joining party application of the third party, which

was filed below Exh.21. Thereafter, the learned trial

Court vide order dated 11.11.2020 has allowed the

application below Exh.21 and has joined the third parties

as parties in Regular Civil Suit No.411 of 2019.

Thereafter, the learned trial Judge by separate order of

the same date i.e. 11.11.2020 allowed application below

Exh.18 moved in Regular Civil Suit No.411 of 2019 and

has granted status-quo in the matter.

2.4 Hence, the present petition is filed.

3. Heard learned advocate Mr. S.P. Majmudar with

Mr. H.J. Karathiya, learned advocate for the petitioner

and learned senior advocate Mr. Mehul S. Shah with Mr.

Vishal C. Mehta, learned advocate for the respondent

Nos.1, 1.1, 2 and 2.1.

C/SCA/377/2021 ORDER DATED: 03/04/2023

4.1 Learned advocate Mr. S.P. Majmudar for the

petitioner has submitted that the trial Court has erred

in passing the order below exhibit 18 by directing the

parties to maintain status quo even though the

simultaneously the application which is moved at exhibit

21 under the provisions of Order I Rule 10 of the Civil

Procedure Code, 1908 is also moved by third parties and

in this factual background, the order passed by the

learned trial Court is unwarranted.

4.2 He has further submitted that in the earlier round

of litigation, the petitioner has challenged the order

passed by the trial Court in the similar set of

circumstances wherein initially the order of injection was

granted in favour of the present petitioner, which was

subsequently modified by granting the order of status

quo, which was challenged before this Court by way of

Special Civil Application No.13243 of 2020, where by Co-

ordinate Bench of this Court by order dated 02.11.2020

has quashed and set aside the earlier order passed by

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the trial Court below exhibit 18 application and has

directed the trial Court to hear the same afresh and in

accordance with law, and thereafter, the petition is

disposed of with further direction, and accordingly, the

trial Court has heard the application afresh but has

passed the almost identical order, which is impugned in

earlier round of litigation, and therefore, he has

submitted that the trial Court has committed gross error.

4.3 He has further submitted that the trial Court has

not properly appreciated the fact that though in the

same suit, the trial Court has allowed the application

below exhibit 5, and therefore, such order passed under

exhibit 18 application, which is passed under the

provisions of section 151 of the Civil Procedure Code

1908, is not maintainable. He has further submitted that

the trial Court has not considered the factual aspect

properly as neither the third parties nor the tenants of

the land in question are occupying the same suit

property in question. He has further submitted that the

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third parties have not paid any rent to the petitioner

and/or predecessor of the petitioner, and therefore, they

cannot claim any right over the suit property. He has

lastly argued that factors of balance of convenience are

also in favour of petitioner and irreparable loss are also

in fovour of the petitioner, and therefore also, the

impugned order passed by the trial Court is apparently

erroneous and illegal and is required to be quashed and

set aside by excising the powers under Article 226 of the

Constitution of India.

5.1 Per contra, Mr. Mehul S. Shah, learned senior

advocate appearing for the respondent Nos.1, 1.1, 2 and

2.1 has strongly objected the said request made at the

bar by the learned advocate for the petitioner and has

submitted that in pursuant to the earlier direction issued

by the Court by order dated 02.11.2020, the trial Court

has heard the application afresh and has decided the

application afresh at exhibit 80 by considering the rival

submissions made at the bar.

C/SCA/377/2021 ORDER DATED: 03/04/2023

5.2 He has further submitted that in view of various

judgments cited at the bar by the present respondents,

which is referred in the impugned order and considering

the fact that the parties, who are in possession of the

suit premises, are required to be protected as the

petitioners, who are landlord of the premises, are trying

to demolish the premises under the guise that the

premises is in dilapidated condition and not only that

the police inspector of the concerned police station has

also threatened the contesting parties in the present

petition to vacate the premises, and therefore, the trial

Court has rightly considered the same by examining the

documents, which is produced on the record at mark 4/1

which is sale deed and para 11 of the sale deed clearly

indicates that the suit shop is given on rent to the

Chandulal Gaurishankar Thakar and one shop of is

given to Jamnadas Harilal Gandhi on rent. The

document, which is produced at mark 19/7, also indicates

about the two shops with tenancy rights, and therefore,

C/SCA/377/2021 ORDER DATED: 03/04/2023

since the plaintiffs have not produced any conclusive

evidence by which the plaintiffs can established that the

tenancy right of the contesting parties in the present

proceedings are getting over as the original tenants have

expired, who happen to be elders of the contesting

respondents.

5.3 He has further submitted that the judgment cited

at the bar before the trial Court are squarely applicable

to the facts of this case and the trial Court can exercise

the powers under Article 151 of the C.P.C. in such facts

and circumstances and the rights of the tenants cannot

be defeated by taking undue advantage of the process of

law, and therefore, he has submitted that the present

petition deserves to be dismissed as no ground is made

out under Article 227 of the Constitution of India in

view of the judgment of the Apex Court in the case of

Garment Craft Vs Prakash Chand Goel reported in

(2022) 4 SCC 181, whereby the Apex Court has said

that supervisory jurisdiction of High Court when to be

C/SCA/377/2021 ORDER DATED: 03/04/2023

exercised, more particularly, paragraph 15 to 17, which

are relevant.

6.1 I have considered the rival submissions made at the

bar. It transpires that initially the trial Court has

granted injunction by allowing exhibit 5 application, and

thereafter, exhibit 18 application is filed by the

contesting respondents before the trial Court, whereby

the trial Court has ordered that status quo to be

maintained by all the parties by modifying the earlier

order of injunction, which was challenged by way of

Special Civil Application No.13243 of 2020 and the same

was disposed of by order dated 02.11.2022 by remanding

back the matter for fresh consideration below exhibit 18

application, whereby in para 3, the Court has observed

that till the matter is decided, learned advocate for

petitioner has shown willingness to maintain status quo

regarding the suit property and accordingly, the trial

Court has heard exhibit 18 application afresh and after

considering the rival submissions, the trial Court has

rightly come to the conclusion by considering the

C/SCA/377/2021 ORDER DATED: 03/04/2023

document, more particularly, the document i.e. sale dead

produced at mark 4/1, whereby para 11 clearly specifies

the names of the elders of the present contesting

respondents viz., Chandulal Gaurishankar Thakar and

Jamnadas Harilal Gandhi by sowing them as tenants of

the respective shops.

6.2 Further, by document produced at mark 19/7, which

is registered sale deed in favour of in favour of the

predecessor in title of the present respondents, it is

transpires that the tenancy right of two tenants are

specifically indicated in that document and both the

tenants are found 25 years old by the trial Court.

Further, considering the fact that the application at

mark 19/13, which is produced on record by the present

contesting respondents before the Police Station, Una, it

also indicts that there is serious apprehension about the

demolition of the suit shop by the plaintiffs, and

therefore, the trial Court has rightly protected the

interest of the parties by passing the order of

C/SCA/377/2021 ORDER DATED: 03/04/2023

maintaining status quo of the suit property until the suit

in question is decided on its own merit.

6.3 This Court finds that there is no illegal or

irregularity committed by the trial Court, more

particularly, the judgments, which are discussed in the

impugned order by the trial Court and cited by the

applicant of that application at exhibit 18, are helpful to

the case of the present respondents, and therefore, no

illegality or irregularity is committed by the trial Court

in passing the order below exhibit 18, and therefore, in

view of the judgment of the Apex Court in the case of

Garment Craft V/s Prakash Chand Goel reported in

(2022) 4 SCC 181, whereby the Apex Court has said

that supervisory jurisdiction of High Court when to be

exercised, more particularly, paragraph 15 to 17 which

read as under:

"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

C/SCA/377/2021 ORDER DATED: 03/04/2023

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. The jurisdiction exercised is in the nature of

correctional 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

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227, this Court in Estralla Rubber v. Dass Estate (P)

Ltd. 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 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,

C/SCA/377/2021 ORDER DATED: 03/04/2023

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."

17. The factum that the counsel for the appellant

had applied for the certified copy would show that the

counsel for the appellant was aware that the ex-parte

decree had been passed on the account of failure to

lead defence evidence. This would not, however, be a

good ground and reason to set aside and substitute

the opinion formed by the trial court that the

appellant being incarcerated was unable to lead

evidence and another chance should be given to the

appellant to lead defence evidence. The discretion

exercised by the trial court in granting relief, did not

suffer from an error apparent on the face of the

record or was not a finding so perverse that it was

unsupported by evidence to justify it. There could be

some justification for the respondent to argue that the

appellant was possibly aware of the ex-parte decree

and therefore the submission that the appellant came

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to know of the ex-parte decree only on release from

jail on 6th May 2017 is incorrect, but this would not

affect the factually correct explanation of the appellant

that he was incarcerated and could not attend the

civil suit proceedings from 6th October 2015 to 6th

May 2017. If it was felt that the application for

setting aside the exparte decree was filed belatedly,

the court could have given an opportunity to the

appellant to file an application for condonation of delay

and costs could have been imposed. The facts as

known, equally apply as grounds for condonation of

delay. It is always important to take a holistic and

overall view and not get influenced by aspects which

can be explained. Thus, the reasoned decision of the

trial court on elaborate consideration of the relevant

facts did not warrant interference in exercise of the

supervisory jurisdiction under Article 227 of the

Constitution."

6.4 This Court finds no reason to interfere in the

impugned order passed by the trial Court by excising my

jurisdiction under Article 227 of the Constitution of

India, which is found otherwise just and proper.

C/SCA/377/2021 ORDER DATED: 03/04/2023

7. In view of the aforesaid, the present petition is

dismissed.

(SANDEEP N. BHATT,J) ds