Devendragiri Mahendragiri ... vs Manojgiri Anandgiri Goswami
2023 Latest Caselaw 2926 Guj

     C/SCA/6345/2023                                           ORDER DATED: 13/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6345 of 2023

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            DEVENDRAGIRI MAHENDRAGIRI GOSWAMI & ORS.
                             Versus
               MANOJGIRI ANANDGIRI GOSWAMI & ORS.
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Appearance:
MR RAJESH M CHAUHAN(2470) for the Petitioners
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                     Date : 13/04/2023

                                      ORAL ORDER

1. The present petition is filed by the petitioners -

original plaintiffs, under Article 227 of the Constitution of

India, challenging the order impugned dated 21.11.2022

passed in Civil Misc. Appeal No.9 of 2022 by the appellate

Court below - Principal District Judge, Sabarkantha at

Himmatnagar, whereby the appellate Court below has

dismissed the appeal. The said appeal is filed against the

order dated 29.03.2022 passed below Exh.5 in Regular Civil

Suit No.15 of 2020 by the trial Court i.e. Principal Civil

Judge, Talod, whereby the trial Court has rejected the

application below Exh.5 filed by the plaintiffs. There are

concurrent findings by both the Courts below against the

petitioners.

C/SCA/6345/2023 ORDER DATED: 13/04/2023

2. Learned advocate for the petitioners has submitted

that both the Courts below have erred in not considering the

revenue record produced by the petitioners. He has submitted

that the names of the petitioners are entered in the revenue

record as legal heirs of the deceased occupiers. He has

submitted that the respondents have not valid title over the

suit property. He has submitted that the petitioners are the

occupiers of the suit property since long. He has submitted

that various litigation are pending between the parties before

the revenue authorities. He has submitted that both the

Courts below have wrongly held that the suit property is an

ancestral one, which is not actually ancestral property. He

has submitted that the suit property is transferred in the

name of one deceased Bawa Shakargar by way of a tenancy

right. He has submitted that the petitioners have never given

consent for any revenue entry. He has submitted that the

respondents have falsely made pedigree and documents as

well as statements of settlement before the revenue authority

in the name of the present petitioners. He has submitted

that both the Courts below have not considered the facts and

circumstances of the case and passed the impugned orders.

He has submitted that both the impugned orders are

required to be quashed and set aside by allowing this

petition.

C/SCA/6345/2023 ORDER DATED: 13/04/2023

3.1 I have heard learned advocate for the petitioners -

original plaintiffs. I have gone through the material on

record. I have perused the impugned orders passed by both

the Courts below. From record it transpires that the

petitioners, who are the original plaintiffs, have filed Regular

Civil Suit No.15 of 2020 for cancellation of sale deed,

declaration and injunction, on the ground that, being the

legal heirs of their deceased father, they are the owners and

occupiers of the property being land bearing old survey

No.113 and new Survey/Block No.674, admeasuring Hec.12-83-

22 Are situated at Village : Modhuka, Tal. Talod, District :

Sabarkantha. In rebuttal, the defendants have produced

evidence in support of their case before the Courts below.

Prima facie, it appears that the issue between the parties is for the share in the suit property. Be it ancestral or not, is

also an issue, in which this Court need not be gone into, at

this stage. There are other ancillary issues involved in the

present petition. However, at this stage, it would not be

appropriate to go into it by this Court, since the main suit

is still pending for adjudication. But, it is required to be

observed here that both the Courts have considered the

evidence produced by the parties qua the injunction

application. Both the Courts below have not committed any

error in rejecting the injunction application.

C/SCA/6345/2023 ORDER DATED: 13/04/2023

3.2 While considering the injunction application, main three

ingredients are required to be seen by the trial Court i.e.

prima facie case, balance of convenience and irreparable loss,

which the trial Court has properly evaluated and rejected the

injunction application. The appellate Court below has also

evaluated these aspect as well as also considered the order

passed by the trial Court below application Exh.5 and rightly

rejected the same. Hence, both the Courts below have rightly

passed the impugned order and therefore, there is no

perversity and illegality in the impugned orders passed by

both the Courts below.

3.3 This Court is conscious about the fact that this

matter is travelled upto this Court on the basis of the order

passed by the trial Court below application Exh.5 -

injunction application, which is rejected by the trial Court

and the plaintiff has filed appeal against that order before

the appellate Court below, which is also rejected by the

appellate Court below and therefore, there are concurrent

findings by both the Courts below against the plaintiffs on

the injunction application. This Court has very limited scope

to interfere in the impugned orders, which, looking to the

facts and circumstances of the case vis-a-vis considering the

orders impugned passed by both the Courts below, this Court

does not warrant any interference under Article 227 of the

C/SCA/6345/2023 ORDER DATED: 13/04/2023

Constitution of India as per the decision of the Hon'ble Apex

Court in the case of M/s. Garment Craft versus Prakash

Chand Goel reported in (2022) 4 SCC 181, more particularly in paras 15 to 17, observed 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 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, 1 Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217 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

C/SCA/6345/2023 ORDER DATED: 13/04/2023

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 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 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

C/SCA/6345/2023 ORDER DATED: 13/04/2023

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."

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 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

C/SCA/6345/2023 ORDER DATED: 13/04/2023

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."

4. In view of above, this petition deserves to be

dismissed and is dismissed in limine.

5. Needless to say that this Court has not gone into

merits of the matter at this stage.

6. The trial Court concerned to decide the suit

proceedings on it own merits and in accordance with law,

without influence of the order passed by the appellate Court

below as well as by this Court.

(SANDEEP N. BHATT,J) M.H. DAVE