M/S Milex Stone, Rajpur vs Lhs Of Decd. Shah Yogeshchandra ...
2023 Latest Caselaw 3636 Guj

       C/SCA/6662/2023                                     ORDER DATED: 29/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6662 of 2023

==========================================================
                     M/S MILEX STONE, RAJPUR
                              Versus
      LHS OF DECD. SHAH YOGESHCHANDRA AMRUTLAL JAMNADAS
==========================================================
Appearance:
DHRUV J PATEL(9232) for the Petitioner(s) No. 1
MR DEEP B KOTHARI(12220) for the Respondent(s) No. 1.1,1.2,1.3
RAVI B SHAH(5346) for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                    Date : 29/04/2023

                                     ORAL ORDER

1. The present petition is filed by the petitioner -

original plaintiff / appellant challenging the impugned

judgment and order dated 06.01.2023 passed below Exh.30 in

Civil Appeal from Order Nos.16 of 2021 & 17 of 2021 by the

Additional District Judge, Arvallia and also challenging the

order dated 22.10.2021 passed below Exh.5 and 13 in Special

Civil Suit No.5 of 2020 by the Principal Senior Civil Judge,

Bayad, whereby the appellate Court below has rejected the

same and confirmed by the order passed by the trial Court.

2. The brief facts of the case are that, there is an

alleged agreement to sale between the petitioner and

deceased Shah Yogeshchandra Amrutlal for the suit property

C/SCA/6662/2023 ORDER DATED: 29/04/2023

in the year 2004. The suit property is the quarry industry

with machinery, etc. The petitioner has filed a suit for

specific performance with an application for injunction at

Exh.5 before the trial Court at Bayad in the year 2020. The

respondents have filed an application for permanent injunction

under Order 39 Rule 1 and 2 of the Code of Civil Procedure,

1908 in the said suit questioning the alleged agreement to

sell as well as ownership of the said deceased person who

has signed the said document, etc. The trial Court has

considered the material on record and rejected the said

application Exh.5 and partly allowed the application Exh.13

vide common order dated 22.10.2021. Being aggrieved, the

petitioner has approached the appellate Court below under

Order 43 Rule 1(r) of the Code of Civil Procedure by filing

Civil Appeal from Order Nos.16 of 2021 and 17 of 2021. The

appellate Court below has rejected both the appeals vide

impugned order. The petitioner has therefore approached this

Court challenging the concurrent findings of both the Courts

below in this petition.

3. Learned advocate Mr.Harsh Parekh for learned

advocate Mr.Dev Patel for the petitioner has submitted that

the agreement to sell is executed in his favour and document

about Undertaking is also executed and considering the

panchnama which is drawn for the suit premises in question,

C/SCA/6662/2023 ORDER DATED: 29/04/2023

the petitioner is in possession of the suit premises. He has

submitted that the trial Court has committed an error in

considering Exh.5 and 13 applications. He has submitted that

the appellate Court below has committed further error while

deciding both the appeals by not giving any independent

findings about the case of the present defendants in the suit

and injunction which is prayed for at Exh.13. He has

submitted that there is no reference about the documents

which is cited at the bar which is produced on record and

without referring the same, the appeals are decided and

therefore, findings to that extent can be considered as

perverse. He has further submitted that the trial Court as

well as the appellate Court below has not properly dealt with

the aspects of prima facie case, balance of convenience and

irreparable loss in appropriate manner and therefore,

considering the material available on record, no injunction

can be granted in favour of the present defendant under

Article 227 of the Constitution of India by interfering in the

impugned order passed by the Courts below.

4. Per contra, learned advocate Mr. Deep B. Kothari for learned advocate Mr.Ravi B. Shah for the respondents,

who appears on caveat, has submitted that the Courts below

have given cogent and convincing reasons. He has drawn my

attention towards the findings of the trial Court at Exh.5 as

C/SCA/6662/2023 ORDER DATED: 29/04/2023

well as Exh.13, by which the trial Court has discussed in

detail the entire case of the parties. He has submitted that

even the appellate Court below has also dealt with the

aspect of the matter in the impugned judgment and it cannot

be said that the findings of the Courts below are perverse

and in consonance with the material on record or against

any provisions of law. He has submitted that it is a settled

position of law that the Court cannot re-appreciate the

evidence on record and therefore, this petition may be

dismissed.

5.1 I have heard rival contentions of the learned

advocates for the respective parties. I have gone through the

material on record. I have perused the impugned orders

passed by the appellate Court below as well as by the trial

Court. From record it transpires that the trial Court has

discussed every aspect in detail and rejected the application

Ehx.5 and partly allowed Exh.13. Being aggrieved by it, the

petitioner preferred an appeal under Order 43 Rule 1(r) of

the Code of Civil Procedure, 1908, which reads as under :

" Order XLIII. Appeal from orders.--An appeal shall lie from the following orders under the provisions of section 104, namely: --

(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX; "

C/SCA/6662/2023 ORDER DATED: 29/04/2023

5.2 At this stage, it is also required to be reproduced

the provisions of Order 39 Rule 1 & 2 of the Code of Civil

Procedure, 1908, which is as under :

" Order XXXIX. TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

1. Cases in which temporary injunction may be granted.

--Where in any suit it is proved by affidavit or otherwise--

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,] the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property 5 [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.

2. Injunction to restrain repetition or continuance of breach.--(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after

C/SCA/6662/2023 ORDER DATED: 29/04/2023

judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit."

5.3 Considering the above provisions and considering

the settled position of law about the aspects of prima facie

case, balance of convenience and irreparable loss, both the

Courts below have properly discussed the aspects and also

considered the fact that the relief of injunction is an

equitable relief and parties cannot seek such relief as prima

facie case as well as balance of convenience and irreparable

loss in his favour. Both the parties have prayed for

injunction and produced the documents on record, which are

rightly considered by both the Courts below and passed the

impugned order/s. Both the Courts below have properly

appreciated the evidence on record and have given proper

findings in the impugned order/s. While appreciating the

evidence / material produced by the parties on record, the

trial Court has rightly observed that some of the issues are

required to be dealt with after full-fledged hearing as there

is serious dispute about such documents. This Court is a

C/SCA/6662/2023 ORDER DATED: 29/04/2023

Court of Law and not a Court of facts. All such issues need

to be decided by the Courts below at appropriate stage and

the Courts below have rightly observed it. Both the Courts

below have not committed any error in passing the impugned

order/s. Further, considering the findings on fact recorded by

the Courts below, no case is made out to interfere in it by

this Court.

5.4 In view of above, this Court finds that there is no

perversity or illegality committed by both the Courts below in

passing the impugned order/s. This Court has very limited

powers to interfere in the impugned order/s passed by the

trial Court as observed by 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

C/SCA/6662/2023 ORDER DATED: 29/04/2023

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 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

C/SCA/6662/2023 ORDER DATED: 29/04/2023

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."

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

C/SCA/6662/2023 ORDER DATED: 29/04/2023

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 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."

C/SCA/6662/2023 ORDER DATED: 29/04/2023

5.5 In view of above, this Court finds that no case is

made out to interfere in the impugned order/s passed by both

the Courts below under Article 227 of the Constitution of

India.

6. For the reasons recorded above, the present

petition needs to be dismissed and is dismissed accordingly.

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