Bhimji Naran Ravji Velani vs Kanji Naran Ravji Velani
2024 Latest Caselaw 7851 Guj

Gujarat High Court

Bhimji Naran Ravji Velani vs Kanji Naran Ravji Velani on 5 August, 2024

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      C/SCA/7013/2024                                     ORDER DATED: 05/08/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 7013 of 2024

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                          BHIMJI NARAN RAVJI VELANI
                                    Versus
                        KANJI NARAN RAVJI VELANI & ANR.
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Appearance:
MR SAURABH M PATEL(5019) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                   Date : 05/08/2024

                                    ORAL ORDER

1. Though served, none appears for the respondents.

2. The instant petition under Article 227 of the Constitution of India, the petitioner has prayed to quash and set aside the impugned order dated 6.4.2024 passed below Exh.12 in MCA No.44 of 2023, whereby the learned 8th Addl. District Judge, Bhuj has confirmed the order dated 15.9.2023 passed by the learned 7th Addl. Senior Civil Judge, Bhuj below applications Exhs.5 and 18 directing the plaintiff and the defendants of Regular Civil Suit No.228 of 2023 to maintain status quo of the suit property.

3. The facts of the case are as under:-

3.1 Petitioner is the owner of revenue survey number 184/paiki-2 ad-measuring 2-18-00 situated at village, Sukhpar,

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taluka and district Bhuj-Kuchh, whereby, petitioner had inherited the said land by way of partition deed dated 09.02.1998 wherein present respondent no.1 i.e. shri kanjibhai, Naran Virani also was one of the beneficiary and signatory in the said partition deed. As per the said partition deed, survey number 184, add measuring 10 acre 33 gunthas had been divided in western and eastern part by allotting survey No. 184/ paiki-2 I.e. eastern part to present petitioner and survey no.184/ Paiki-1 which is western part was allotted to respondent no.1.

Further, according to said partition deed, there is a road bisecting western and eastern part of the survey number 184 which is to be used by both brothers i.e present petitioner and respondent no.1.

3.2 In the year 2023 present respondents, with intention to encroach upon the road bisecting western and eastern part of survey number 184 has put up foundation of RCC pillars SO that petitioner is unable to use the said Road. When petitioner tried to restrain them by giving them warning that such act will amount to breach of aforesaid partition deed and for the same respondents will have to face legal consequences, in response to the same respondents and their family members had physically attacked the petitioner. Therefore, the petitioner - original plaintiff has filed Regular Civil Suit No.228 of 2023 before the learned trial Court, Bhuj. Along with the suit, the petitioner has filed injunction application Exh.5 so also Exh.18 seeking further interim relief against the respondents.

3.3 The learned trial Court partly allowed both the aforestated applications by directing plaintiff and the defendants to maintain

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status quo qua suit property vide order dated 15.9.2023.

3.4 Being aggrieved by the aforesaid order, the respondents - defendants filed MCA No.44 of 2023 before the learned appellate Court, Bhuj. The learned appellate Court allows the said appeal and remanded the matter back to the learned trial Court for fresh hearing.

3.5 Hence, present petition.

4. Learned advocate for the petitioner would submit that as far as relationship of the plaintiff and the defendant is concerned, there is no dispute. He would further submit that it is also not disputed that there is partition deed executed between the parties. He would further submit that the learned trial Court after considering these two aspect in regards to disputed land and also considering the road bisecting two lands being common between the parties so exists. The plaintiff since apprehends that the defendant may encroach upon the disputed land has filed the suit for declaration and permanent injunction and the learned trial Court after considering the prima facie case, balance of convenience and irreparable loss in favour of the plaintiff directed both the parties to maintain status quo . He would further submit that at the relevant point of time, the learned trial Court has also taken into consideration the Court commission taken at the instance of the plaintiff and the map drawn therein. He would further submit that the learned appellate Court has unnecessarily disturbed the impugned order by exceeding its jurisdiction. He would further submit that the learned appellate Court cannot substitute its own view on the

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discretionary view arrived at by the learned trial Court at the first instance. He would further submit that the learned appellate Court cannot disturb the findings of the learned trial Court until it records that the judgment and order passed by the learned trial Court is completely contrary to the settled provisions of law and arbitrary. He would further submit that in the present case, the learned appellate Court has exercised jurisdiction as if it is the learned trial Court and substituted its own view upon the view taken by the learned trial Court and as such, has committed serious, but gross error in understanding the law. Upon such submission, he urges to allow this petition.

5. In judgment in the case of Jasoda Indralal Vadhva Versus Hemendrabhai Kakulal Vyas [2009 (4) GLR 3213], this Court has explained the provisions of law under Order 43 Rule 1(r) of the CPC 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 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

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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."

6. Prior to that, in case of Wander Limited Versus Antox India Private Limited reported in 1990 (Supp1) SCC 727, the Hon'ble Apex Court has observed as under:-

"9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated "

...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience lies."

The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted."

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7. What appears from reading of the impugned judgment and order that the learned trial Court comes to the view that position of both the parties should be measured by the DILR and it would clear the position that who is in possession of which part of the disputed land and whether any of the parties has made encroachment upon the land of either party. It is true that the approach of the learned appellate Court is towards substantial justice and measurement of the DILR is necessary to scuttle the dispute between the parties, but simultaneously, both the parties were required to be directed to maintain status quo in regards to the possession they are holding on the date of the suit. It is well settled that the learned appellate Court should not disturb the discretionary findings arrived at by the learned trial Court at the first instance until it is established that the discretionary findings are totally perverse and against settled principles of law. The learned appellate Court cannot palm its view over the discretionary view taken by the learned trial Court. In nutshell, according to this Court, the order passed by the learned appellate Court should go.

8. Learned advocate for the petitioner in his utter fairness submits that the plaintiff is ready and willing to measure the suit property through DILR ans shall move necessary application before the learned trial Court within short time.

9. For the foregoing reasons, present petition is allowed and the impugned order dated 6.4.2024 passed below Exh.12 in MCA No.44 of 2023 passed by the learned 8 th Addl. District Judge, Bhuj is set aside by restoring order dated 15.9.2023 passed by

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the learned 7th Addl. Senior Civil Judge, Bhuj below applications Exhs.5 and 18 in Regular Civil Suit No.228 of 2023.

10. The plaintiff shall file application before the learned trial Court seeking measurement of the land of both the parties through DILR so as to clear the dispute. Such application shall be filed by the plaintiff within two weeks from the date of receipt of writ of this order.

Direct service is permitted.

(J. C. DOSHI,J) SHEKHAR P. BARVE