Bhatti Azadsingh Jaspalsinh vs Hemantkumar Chiranjivilal ...
2023 Latest Caselaw 5506 Guj

                                                                                    NEUTRAL CITATION




      C/AO/79/2023                                 ORDER DATED: 01/08/2023

                                                                                    undefined




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/APPEAL FROM ORDER NO. 79 of 2023

==========================================================
                        BHATTI AZADSINGH JASPALSINH
                                   Versus
                     HEMANTKUMAR CHIRANJIVILAL SHARMA
==========================================================
Appearance:
MR M P SHAH(11274) for the Appellant(s) No. 1
MR S M DAVE(11268) for the Appellant(s) No. 1
for the Respondent(s) No. 1
==========================================================

 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 Chamber Judge, Court No.21, City Civil & Sessions

Court, Ahmedabad on 21.1.2023 whereby the learned Judge

was pleased to reject the Notice of Motion at Exhs.6/7 filed

by the appellant herein - original plaintiff.

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

be summarized as follow: -

2.1 The appellant herein - original plaintiff has filed

Civil Suit (CCC) No.1320 of 2022 as well as the application

NEUTRAL CITATION

C/AO/79/2023 ORDER DATED: 01/08/2023

undefined

for interim injunction for restraining the defendant from

transferring, alienating, selling or parting with the suit

property to any one in any manner. In the said suit, it is the

case of the plaintiff that the plaintiff is a tenant in the suit

property and a rent agreement was executed between the

plaintiff and the deceased father of the defendant i.e.

Chiranjilal Puranmal Sharma on 2.5.2019 for a period of 11

months and 29 days and the same was not further

extended. It is the case of the plaintiff that he is still in

possession of the suit property and is continuously paying

the rent to the legal heirs of the deceased defendant -

Chiranjilal Puranmal Sharma and thereafter also, the

plaintiff continues to pay the rent to the heirs and legal

representatives of the deceased and the tenancy was never

terminated uptil now. The plaintiff has filed the injunction

application by claiming a prima facie case and balance of

convenience in his favour and if the injunction order is not

granted, in that event, the plaintiff will suffer irreparable

loss which cannot be compensated in terms of money.

NEUTRAL CITATION

C/AO/79/2023 ORDER DATED: 01/08/2023

undefined

2.2 In the said suit, the defendant has appeared and

filed the written reply vide Exh.14 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 Notice of

Motion vide impugned order dated 21.1.2023.

3. Being aggrieved and dissatisfied with the order

dated 21.1.2023 passed by the learned Chamber Judge,

Court No.21, City Civil & Sessions Court, Ahmedabad, the

appellant - original plaintiff has approached this Court by

way of filing the present Appeal from Order.

4. Heard Mr.S.M.Dave, learned advocate for the

appellant - original plaintiff 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.Dave, learned advocate appearing on behalf of

the appellant - original plaintiff has vehemently submitted

NEUTRAL CITATION

C/AO/79/2023 ORDER DATED: 01/08/2023

undefined

that the impugned order passed by the learned trial Court is

contrary to law and evidence on record. Mr.Dave has further

submitted that the learned trial Court ought to have

appreciated the fact that the tenancy of the plaintiff is not

disputed by the defendant and has passed the impugned

order erroneously without considering the actual prayer of

the plaintiff that without any due process of law, the

respondent - original defendant may not dispossess the

appellant - original plaintiff from the suit property. Mr.Dave

has further submitted that the appellant - original plaintiff

is a tenant of the suit property and has acquired the

possession of the suit property legally with the consent of

the original landlord by executing a rent agreement.

Mr.Dave has further submitted that the appellant - plaintiff

cannot be dispossessed without following due process of law

and hence, Mr.Dave has urged this Court to allow the

present appeal.

6. On perusal of the averments made in this appeal

as well as having perused the material produced on record,

it can be noticed and in fact, it is the contention of Mr.Dave,

NEUTRAL CITATION

C/AO/79/2023 ORDER DATED: 01/08/2023

undefined

learned advocate for the appellant - original plaintiff that

the appellant - original plaintiff is a tenant in the suit

property and the rent agreement was executed between the

plaintiff and the deceased father of the defendant i.e.

Chiranjilal Puranmal Sharma on 2.5.2019 for a period of 11

months and 29 days and the same was not further extended

and the said Chiranjilal Puranmal Sharma had passed away

on 24.10.2022. It is not in dispute that the time period of

rent agreement was from 1.5.2019 to 28.4.2020 and the

father of the defendant i.e. Chiranjilal Puranmal Sharma

has passed away on 24.10.2022, as stated above.

Indisputably, the fact remains that it is the contention of

the appellant - plaintiff that he continued to pay the rent to

the original defendant but he has failed to produce any

receipt for the same. It is the specific finding of the learned

trial Court that the appellant - original plaintiff has failed to

produce any documentary evidence to show his possession

over the suit property. Even, it is also not in dispute that

the appellant - original plaintiff is not the owner of the suit

property.

NEUTRAL CITATION

C/AO/79/2023 ORDER DATED: 01/08/2023

undefined

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

Civil Suit (CCC) No.1320 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.

8. 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

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 not as the owner of the suit property, but

on the basis of the rent agreement executed between the

plaintiff and the deceased father of the defendant which was

for a period of 11 months and 29 days only. This Court has

examined the impugned order passed by the learned trial

Judge within the limited scope of provisions of Order 43

NEUTRAL CITATION

C/AO/79/2023 ORDER DATED: 01/08/2023

undefined

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.

9. 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

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

NEUTRAL CITATION

C/AO/79/2023 ORDER DATED: 01/08/2023

undefined

regulating grant or refusal of interlocutory

injunction. An appeal against the exercise of

discretion is an appeal on principle.........."

10. 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

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

NEUTRAL CITATION

C/AO/79/2023 ORDER DATED: 01/08/2023

undefined

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

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."

NEUTRAL CITATION

C/AO/79/2023 ORDER DATED: 01/08/2023

undefined

The appellate judgment does not seem to defer to this principle."

11. 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

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 ?

NEUTRAL CITATION

C/AO/79/2023 ORDER DATED: 01/08/2023

undefined

12. 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.

13. Under the circumstances, the present Appeal

from Order fails and the same is hereby dismissed. The

impugned order dated 21.1.2023 passed by the learned

Chamber Judge, Court No.21, City Civil & Sessions Court,

Ahmedabad below Notice of Motion Exh.6/7 in Civil Suit

(CCC) No.1320 of 2022 is hereby confirmed.

14. 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

NEUTRAL CITATION

C/AO/79/2023 ORDER DATED: 01/08/2023

undefined

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.

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