Gujarat High Court
Madhusudan Kamraju Dasari vs Varshaben Prithvisingh Chauhan on 1 August, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8554 of 2024
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MADHUSUDAN KAMRAJU DASARI
Versus
VARSHABEN PRITHVISINGH CHAUHAN & ORS.
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Appearance:
MR. JAY M THAKKAR(6677) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/08/2024
ORAL ORDER
1. Heard learned advocate for the petitioner.
2. Present petition under Article 227 of the Constitution of
India challenges the order passed below Exh.5 in Special Civil
Suit No.62 of 2018 whereby injunction application of the present
petitioner in capacity as petitioner has been rejected by order
dated 15.02.2023. It is carried under Order 43 of CPC before the
learned District Court, Gandhidham - Kachchh by filing Appeal
from Order No.3 of 2023. By judgment and order dated
14.03.2024, learned District Court declined to interfere with the
discretionary order passed by learned Trial Court and rejected
the Appeal from Order. Therefore, petitioner has filed present
petition with following reliefs :
"(a) Your Lordship may be pleased to admit and allow the
present Special Civil Application ;
(b) Your Lordship may be pleased to quash and set aside
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impugned order dated 15-02-2023 passed in an
application below Exh.5 in Special Civil Suit No.62/2018
by learned 7 A Additional Senior Civil Judge, District:
Kachchh as well as impugned order dated 14-03-2024
passed in Misc. Civil Appeal No. 03/2023 by learned 2nd
Additional District Judge, Gandhidham, District: Kachchh
and further be pleased to allow application vide Exh.5 for
interim injunction as prayed for by present
petitioner/original plaintiff, in interest of justice;
(c) Pending hearing and final disposal of this application,
Your Lordship may be pleased to direct parties to maintain
status quo qua the suit property, in the interest of justice;
(d) Your Lordships may be pleased to grant any other and
further relief(s) as this Hon'ble Court deems fit and proper,
in the interest of justice."
3. Facts are as under :-
3.1. That the land, bearing admeasuring 124.80 sq. mtrs.,
being the area of plot, erected and built a building on Plot No. B-
360, NU-4, Sapnanagar, situated at Gandhidham, District
Kachchh is the property in question. That petitioner original
plaintiff has filed the Special Civil Suit No. 62 of 2018 praying for
declaration, permanent injunction and specific performance of
Contract to Sell / Transfer the Lease Rights of the suit property
along with application of ad-interim injunction vide Exh. 5 before
the learned Senior Civil Judge, Gandhidham Kachchh against
the present respondents original defendants. That defendant no.
1 to 4 filed written statement. The petitioner original plaintiff
filed counter reply - cum rejoinder. That after hearing the parties
to the suit, the learned 7th Additional Senior Civil Judge &
Additional Senior Civil Judge, Gandhidham, District: Kachchh
rejected the application for ad- interim injunction vide Exh. 5 by
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passing impugned order on 15.02.2023. Being aggrieved and
dissatisfied by aforesaid impugned order, present petitioner
preferred Misc. Civil Appeal No. 03 /2023 before learned District
Court, Gandhidham, District: Kachchh, whereby it came to be
rejected by learned 2nd Additional District Judge, Gandhidham,
District: Kachchh vide order dated 14.03.2024. Hence, present
petition is filed.
4. Learned advocate for the petitioner took this Court through
pleadings as well as averments made in the injunction
application and submitted that sale agreement was executed by
Prithvisingh Chauhan on 01.03.2018 in favour of Pathan
Sikandar Aminbhai for transferring lease hold rights of deceased
Prithivinsingh Chauhan in land belongs to Deendayal Kandla
Port Trust. However, same was rescinded on 05.06.2018
bilaterally by both the parties and thereafter, on the same day,
agreement to sell was entered into with the present petitioner by
deceased Prithivinsingh Chauhan for sale cash consideration of
Rs.37 lakhs and paid Rs.20 lakhs to Deendayal Kandal Port
Trust for transfer of leasehold rights of disputed property.
Special power of attorney was also executed on the same day
and subsequent thereto, on 13.07.2018 as per terms and
conditions of sale agreement, Prithivisingh approached
Deendayal Kandla Port Trust and paid relevant amount for
transferring leasehold rights in favour of the petitioner. Learned
advocate for the petitioner submitted that unfortunately, a week
later, Prithivisingh who executed agreement to sell expired and
thereafter, legal heirs of late Prithivisingh denied to transfer
leasehold rights in favour of the petitioner and therefore, the
petitioner was constrained to approach learned Trial Court by
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filing Special Civil Suit No.62 of 2018 seeking various reliefs
including relief for declaration and permanent injunction and
specific performance of contract to transfer leasehold rights in
respect of disputed property in suit. The plaintiff has asked relief
in para 44 (a) to (j). The application was also moved under Order
39 Rule 1 and 2 read with section 151 of CPC along with suit to
get injunction at Exh.5. The Court has issued notice and after
completion of pleadings, learned Trial Court has declined to
grant injunction by passing impugned order on 15.02.2023 and
order has been confirmed by learned Appellate Court.
4.1. After narrating above facts, assailing impugned orders,
learned advocate for the petitioner submits that Courts below
have not discussed about evidentary value of sale agreement
between deceased Prithivisingh and present petitioner. The
petitioner has paid amount of Rs.20 lakhs to the deceased
Prithivisingh and in that event, if heirs of deceased Prithivisingh
transfer leasehold rights of disputed property, it will
substantially inject rights of the petitioner involved in disputed
property. It is further submitted that learned Trial Court has
committed serious but jurisdictional error in interpreting
provision of Order 39 Rule 1 and 2 of CPC and same has been
swelled as learned Appellate Court failed to exercise discretion in
favour of the petitioner.
4.2. Referring to judgment of Hon'ble Apex Court in the case of
Maharwal Khewaji Trust, Faridkot v/s. Baldev Dass [(2004) 8
SCC 488], more particularly para 9 and 10, learned advocate for
the petitioner submits that subject matter of suit is immovable
property, the Court should grant status-quo as to prevent
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plaintiff from facing consequence of suit proceedings. It is
further submitted that non issue of injunction of the learned
Trial Court more particularly when party opposing injunction
has baseless claim, learned Trial Court committed serious error
in not granting status-quo order.
4.3. Upon above submissions, learned advocate for the
petitioner submits to admit this petition.
5. At the outset, I may refer to judgment of Hon'ble Apex
Court in the case of Mohd. Yunus v/s. Mohd. Mustaqim [AIR
1984 SC 38], wherein, Hon'ble Apex Court limiting supervisory
jurisdiction of High Court observed in para 6 as under :-
"The petition under Art.227 of the Constitution was wholly
misconceived. An appeal lay from an order under O.XXI,
Rule 92 setting aside or refusing to set aside a sale, under
O.XLIII Rule 1 (j) to the District Judge. That apart, the
application made by the petitioner claiming to be the legal
representative of the surety, the judgment-debtor's
representative, on the one hand and the auction-
purchaser, the decree-holder's representative, on the other
alleging that there had been a fraud perpetrated by the
decree-holder in causing the sale to be held, with a prayer
for recording satisfaction of the decree under O,XXI,r.2,
raised a question relating to the execution, discharge or
satisfaction of the decree and therefore fell within the
purview of s. 47 which prior to February 1, 1977 was
appealable because then a decision under section 47 was
deemed to be a decree under s. 2(2) of the Code, and
therefore the petitioner had the remedy of an appeal to the
District Judge. Even if no appeal lay against the impugned
orders of the learned subordinate Judge, the petitioner had
the remedy of filing a revision before the High Court under
s.115 of the Code. Upon any view of the matter, the High
Court had no jurisdiction to interfere with the impugned
orders passed by the learned Subordinate Judge,
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under Art. 227 of the Constitution. A mere wrong decision
without anything more is not enough to attract the
jurisdiction of the High Court under Article 227."
6. I may also refer to the judgment of Hon'ble Apex Court in
case of Garment Crafts Vs. Prakash Chand Goel reported in
(2022) 4 SCC 181, wherein, the Hon'ble Apex Court has
discussed the nature of scope of the supervisory jurisdiction
under Article 227 of the Constitution of India. Relevant
discussion in para 15 and 16 reads thus:-
"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 [Celina Coelho Pereira (Ms) and
Others v. Ulhas Mahabaleshwar Kholkar and Others,
(2010) 1 SCC 217]. The jurisdiction exercised is in the
nature of correctional1 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.
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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
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."
7. This Court in the case of Matrix Telecom Private Limited
Versus Matrix Cellular Services Private Limited [2011 (3) GLR
1951] held in para 6. and 6.1 as under :-
"6. Before proceeding further it is required to be noted that
the present appeal is against the rejection of interim relief
and the main suit is still pending. If this court elaborately
deals with the matter on merits it is likely that the same
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would prejudice the case of either side. Therefore, it is well
settled law that this Court is not required to go into the
merits of the entire matter at this stage and what is
required to be seen is whether the appellant-plaintiff has
made out a prima facie case or not for grant of interim
injunction.
6.1 It is required to be noted that it is well settled law that
the Appellate Court may 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. The 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."
8. Yet in another judgment in the case of Jasoda Indralal
Vadhva Versus Hemendrabhai Kakulal Vyas [2009 (4) GLR
3213], this Court has observed in para 13 as under :-
"13. Granting of injunction is a matter of discretion.
Balance of convenience and irreparable injury are triable
issues and are required to be examined and positively
found. It is settled law that while hearing appeal against
discretionary exercise of powers by the trial Judge, while
deciding the application under Order 39, Rule 1 and 2 of
C.P.C. the appellate Court is not expected to interfere with
the discretion, unless it is shown that power has been
exercised arbitrarily, capriciously or in perversity and
against the settled principles of law. Appellate Court is not
expected to reassess the material and to reach a
conclusion different than the one reached by the Court
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below. If the one reached by the Court was reasonably a
plausible view, appellate Court would normally not be
justified in interfering with the order. But, if the exercise of
discretion in appeal is only on the ground that the matter
has not received consideration at trial Court stage, then it
would have come to a different conclusion and the
appellate Court can interfere with the exercise of discretion
of trial Court provided it is satisfied about prima facie
strong case, balance of convenience and extreme urgency."
9. In view of above, it is not permissible for this Court to
interfere with the concurrent findings arrived by Courts below
under discretionary jurisdiction. Even if the Court has applied
wrong provision of law, it cannot be corrected under Article 227
of the Constitution of India.
10. Though this Court is legally prevented from entering into
merits of the case, since learned advocate for the petitioner
argued on merits, what could be noticed that it is unregistered
sale agreement for transferring leasehold rights without taking
prior approval from Deendayal Kandla Port Trust. Whether such
kind of sale agreement can be executed or not can be tried
during trial and whether by such agreement any right has been
created in favour of the petitioner to restrain leaseholder from
transferring leasehold right in favour of any party. It is another
question which can be tried during trial only. Prima facie, it
appears to be sale agreement coupled with GPA, which is clearly
prohibited by Hon'ble Supreme Court in the case of Suraj Lamp
And Industries Pvt. Limited v/s. State Of Haryana [2012 (1) SCC
656].
11. Merely, some amount has been stated in some document
qua agreement to sell without showing any evidence that this
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amount is actually paid by the petitioner, the petitioner cannot
claim any equity and cannot seek relief that defendant may not
transfer leasehold right in favour of third party. What could be
materially observed that land belongs to Deendayal Kandla Port
Trust. In the juxtaposition of above, all these issues are to be
decided during trial.
12. I find no error in the impugned order, much less error of
law while deciding injunction application. The suit is filed in the
year 2018 and learned Trial Court has not passed ex-parte order
in favour of the plaintiff. It took five years to decide injunction
application and it was decided on 15.02.2023. But the appeal is
immediately decided thereafter. What could said that if plaintiff
could survive for 5 years without injunction, there is no reason
to grant any injunction during pendency of the suit.
13. The judgment relied by the learned advocate for the
petitioner in the case of Maharwal Khewaji Trust, Faridkot
(supra) is not helpful to the petitioner.
14. For the foregoing reasons, the petition fails and stands
dismissed.
(J. C. DOSHI,J)
SATISH
