Dipak Jagdishchandra Patel vs Shahnawazkhan Ramzanmiya Pathan
2023 Latest Caselaw 5496 Guj

                                                                                   NEUTRAL CITATION




     C/AO/74/2023                                 ORDER DATED: 01/08/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/APPEAL FROM ORDER NO. 74 of 2023

                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
               In R/APPEAL FROM ORDER NO. 74 of 2023
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                   DIPAK JAGDISHCHANDRA PATEL
                              Versus
                SHAHNAWAZKHAN RAMZANMIYA PATHAN
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Appearance:
MR APURVA R KAPADIA(5012) for the Appellant(s) No. 1
MR SAVAN N PANDYA(5600) for the Respondent(s) No. 1
NISHIDHKUMAR M PATEL(8335) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                              Date : 01/08/2023

                               ORAL ORDER

1. This appeal has been filed at the instance of the

appellant - original plaintiff against the order passed by the

learned 4th Additional Senior Civil Judge, Ahmedabad

(Rural) on 10.3.2023 whereby the learned Judge was

pleased to reject the interim injunction application at Exh.5

filed by the appellant herein - original plaintiff.

2. The facts leading to the filing of this appeal may

be summarized as follow: -

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2.1 The appellant herein - original plaintiff has filed

Special Civil Suit No.216 of 2022 for specific performance of

the agreement to sell dated 28.12.2020 as well as an

application for interim injunction to restrain the defendant

from transferring, alienating or creating any third party

interest over the suit property in any manner. In the said

suit, it is the case of the plaintiff that the agreement to sell

between the plaintiff and the defendant has been executed

on 28.12.2020 for the land owned by the respondent herein

- original defendant of his 1/5th share in property bearing

survey/block No.64, Khata No.191, admeasuring 18615

square meters situated at village Kathwada for a

consideration of Rs.50,00,000/- per vigha and in view of the

execution of the agreement to sell, Rs.20,00,000/- were paid

to the respondent herein - original defendant and it was

also agreed that the balance sale consideration will be paid

by the appellant the moment the title clearance certificate of

the land in question is obtained by the defendant. It is also

the case of the plaintiff that the tenure of the agreement to

sell to complete the transaction would be of 24 months,

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however, the same can be extended mutually. It is the case

of the plaintiff that despite repeated attempts, the

respondent did not obtain the title clearance certificate and

as a last resort, the plaintiff has filed the above referred the

suit along with the interim injunction application at Exh.5

before the learned trial Court.

2.2 In the said suit, the defendant has appeared and

filed the written reply vide Exh.12 denying the averments

made in the plaint.

2.3 The learned trial Court, after hearing the learned

advocates for both the sides as well as considering the

documents produced on record, has rejected the application

at Exh.5 vide impugned order dated 10.3.2023.

3. Being aggrieved and dissatisfied with the order

dated 10.3.2023 passed by the learned 4 th Additional Senior

Civil Judge, Ahmedabad (Rural), the appellant - original

plaintiff has approached this Court by way of filing the

present Appeal from Order.

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4. Heard Mr.Apurva Kapadia, learned advocate for

the appellant - original plaintiff and Mr.Savan Pandya,

learned advocate for the respondent and examined the

impugned order of the learned trial court and also the

averments and contentions made in the application for

interim injunction and the objections thereto in depth and

in detail.

5. Mr.Kapadia, learned advocate appearing on

behalf of the appellant - original plaintiff has vehemently

submitted that the impugned order passed by the learned

trial Court is contrary to law and evidence on record.

Mr.Kapadia has further submitted that the learned trial

Court has failed to appreciate the aspect that the sale

consideration is already mentioned in the agreement to sell

which has not been denied by the original defendant

coupled with the fact that the respondent herein - original

defendant has not denied the receipt of the amount of

Rs.20,00,000/- towards sale of the land in question and

hence, the application for interim injunction ought to have

been granted by the learned trial Court. Mr.Kapadia has

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further submitted that the learned trial Court has erred in

holding that the agreement to sell could not be executed for

1/5th share in the property in question when there are

other 19 co-sharers in the property in question and it is not

within the domain of the learned trial Court in going into

the validity of the shares of every co-owners, more

particularly, when the execution of the agreement to sell

qua the share of the defendant is not disputed. Mr.Kapadia

has further submitted that the agreement to sell has been

executed between appellant - plaintiff and the respondent -

defendant for the undivided share of the suit property and

hence, the findings recorded by the learned trial Court

regardfing the identification of land and its boundaries are

hardly relevant and hence, Mr.Kapadia has urged this Court

to allow the present appeal.

6. Per contra, learned advocate Mr.Savan Pandya

has vehemently opposed the present appeal and submitted

that the impugned order passed by the learned trial Court is

just and proper and no interference is called for in the

present appeal. Mr.Pandya has further submitted that the

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learned trial court has not ignored the settled principles of

law regulating grant or refusal of interlocutory injunctions

and has rightly exercised its jurisdiction while rejecting the

application at Exh.5 for interim injunction.

7. On perusal of the averments made in this appeal

as well as having perused the material produced on record,

it transpires that as per the say of the appellant - original

plaintiff, the respondent herein - original defendant has

1/5th share in the suit property and as he intended to sell

his 1/5th share, he entered into an agreement to sell his

1/5th share with the appellant herein - original plaintiff and

as the respondent - original defendant did not act as per the

said agreement to sell, the appellant - original approached

the learned trial Court by way of filing Special Civil Suit

No.216 of 2022 for specific performance of the said

agreement to sell and also filed the application at Exh.5 for

interim injunction. The learned trial Court, after hearing the

learned advocates for both the parties, rejected the

application at Exh.5 for interim injunction vide the

impugned order. It can also be seen that the respondent -

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original defendant appeared before the learned trial Court

and filed his reply vide Exh.12 denying all the averments

and contentions raised by the appellant - original plaintiff.

The respondent also contended in the said reply that the

agreement to sell is null and void from the very onset and

the suit land is a restricted tenure land and this fact has

been clearly mentioned in the said agreement to sell. It is

also pertinent to note that there are other 19 co-sharers in

the suit property and the suit land is not partitioned. Even,

the said 19 co-sharers have not been joined as party

defendants in the said suit.

8. It is pertinent to note that the main civil suit i.e.

Special Civil Suit 216 of 2022 is pending for adjudication

before the learned trial Court. Therefore, it would not be

proper on the part of this Court to comment on any factual

aspect by which the rights of any party get prejudiced or the

trial court gets influenced.

9. At this stage, in view of the application filed

under the provisions of XXXIX Rule 1 & 2 of the Code of

Civil Procedure, 1908, the main three ingredients are

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required to be looked into i.e. prima facie case, balance of

convenience and irreparable loss. In the present case,

admittedly, the original plaintiff is not the owner of the suit

property. Looking to the pleadings in the suit as well as in

the appeal proceedings, the appellant - original plaintiff has

claimed his right on the basis of a notarized agreement to

sell. This Court has examined the impugned order passed

by the learned trial Judge within the limited scope of

provisions of Order 43 Rule 1(r) of the Code of Civil

Procedure 1908, whereas the main controversy involved in

the suit is at large before the learned trial Court to be

adjudicated through a full-fledge trial.

10. 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

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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.........."

11. 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 of the

court of first instance and substitute its own

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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

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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."

12. 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

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principles, this 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 ?

13. 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.

14. Under the circumstances, the present Appeal

from Order fails and the same is hereby dismissed. The

impugned order dated 10.3.2023 passed by the learned 4 th

Additional Senior Civil Judge, Ahmedabad (Rural) below the

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application at Exh.5 in Special Civil Suit No.216 of 2022 is

hereby confirmed.

15. While parting with the order, it is clarified that

the learned trial Judge shall not be influenced by any

observations recorded in the impugned order and

observations recorded by this Court hereinabove while

deciding the suit at the end of trial. The findings recorded

either by the trial Court or by this Court at inter locutory

stage of the suit are tentative in its nature and the learned

trial Judge shall decide the case on its merits and as per

evidence that may be led during the course of trial and

decide the suit in accordance with law.

16. In view of the above, the Civil Application does not survive and the same stands disposed of accordingly.

(S. V. PINTO,J) H.M. PATHAN