Labhuben Hirabhai Pipariya vs Jadavbhai @ Btukbhai Devshibhai ...
2024 Latest Caselaw 4836 Guj

Gujarat High Court

Labhuben Hirabhai Pipariya vs Jadavbhai @ Btukbhai Devshibhai ... on 18 June, 2024

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     C/AO/99/2024                                  JUDGMENT DATED: 18/06/2024

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/APPEAL FROM ORDER NO. 99 of 2024
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
              In R/APPEAL FROM ORDER NO. 99 of 2024

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI
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 1 Whether Reporters of Local Papers may be allowed to                      No
   see the judgment ?

 2 To be referred to the Reporter or not ?                                  No

 3 Whether their Lordships wish to see the fair copy of                     No
   the judgment ?

 4 Whether this case involves a substantial question of                     No
   law as to the interpretation of the Constitution of India
   or any order made thereunder ?

==============================================================
                LABHUBEN HIRABHAI PIPARIYA
                          Versus
      JADAVBHAI @ BTUKBHAI DEVSHIBHAI PARSANA & ORS.
==============================================================
Appearance:
MR JINESH H KAPADIA(5601) for the Appellant(s) No. 1
 for the Respondent(s) No.
1,10,11,12,2,3,4,5,6,7,8,8.1,8.2,8.3,8.4,9,9.1,9.2,9.3,9.4,9.4.1,9.4.2,9.4.3,9.
5,9.5.1,9.5.2,9.5.3,9.6,9.7
==============================================================

 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                            Date : 18/06/2024
                            ORAL JUDGMENT

1. This appeal from order filed under Order 43 Rule 1 (r) of Code of Civil Procedure, 1908 (for short 'CPC') challenges the order dated 23.02.2024 passed below Exhibit-5 in Regular Civil Suit No.107 of 2017 rejecting the injunction application at Exhibit-5.

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2. The brief facts leading to filing of this appeal from order is stated as under.

2.1 The present appellant - original plaintiff has filed Civil Suit No.107 of 2017 before the learned Principal Senior Civil Judge, Rajkot for declaration and permanent injunction along with injunction application at Exhbit-5 under Order 39 Rule 1 and 2 of CPC. The defendants appeared and filed their written statements. The learned Trial Court after hearing both sides, dismissed the application at Exhibit-5 vide order dated 23.02.2024. Being aggrieved by the said order, the appellant - original plaintiff has filed the present appeal.

3. Heard learned advocate Mr.Jinesh Kapadia appearing for the appellant for admission of this appeal from order.

4. After referring the judgment of Hon'ble Supreme Court in case of Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon and others - (2007) 11 SCC 357, learned advocate Mr.Kapadia would submit that the probate Court has no jurisdiction to set the title of the property. This argument was canvassed on the background that the suit property is ancestral property. Learned Trial Court has wrongly believed that the grandfather has executed a Will in favour of the father of the plaintiff and on execution of the Letter of Administration the father has become sole owner of the property. The plaintiff who is daughter is coparcener and she has right in the property of the grandfather since the birth. He would further submit that learned Trial Court has committed serious error in not believing that the plaintiff

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has any right in the suit property. He would further submit that learned Trial Court erred in believing that the suit properties were partitioned amongst coparceners in 2001 and therefore, the plaintiff has no right in the disputed property. He would further submit that in the present case the plaintiff is non-suited as the injunction application has been denied. The plaintiff could lead the evidence to establish that she has right, title and interest in the suit/disputed property and therefore, he submits that learned Trial Court has committed serious error in arriving at the conclusion of rejecting the injunction application.

4.1 Learned advocate Mr.Kapadia would further submit that the plaintiff had prima facie case. The plaintiff is admittedly daughter of defendant No.1 and she was born to defendant No.1 and his first wife who was divorced subsequently. He would further submit that in view of amendment in Section 6 of the Hindu Succession Act, the plaintiff has become the coparcener and she can claim right, title and interest in ancestral property.

4.2 Reliance is placed upon the judgment of Hon'ble Supreme Court in Rohit Chauhan vs. Surinder Singh and others - (2013) 9 SCC 419. Upon above submissions, learned advocate for the appellant submitted that if the injunction application is not granted to the plaintiff, she would suffer serious injury, the plaintiff would be non-suited and thus the appeal from order may be admitted and the order of status-quo may be granted so that the cause of action can be continued to survive in the matter.

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5. Having heard learned advocate Mr.Jinesh Kapadia appearing for the appellant, what appears that when the plaintiff has filed Civil Suit No.107 of 2017 claiming the relief of partition and had also filed application at Exhibit-5 under Order 39 Rule 1 and 2 of CPC in the year 2017 itself. The lower Court has issued order of notice.

6. What delineated that the injunction application continued on record without any order for seven years which indicates that the plaintiff was without any interim relief for more than seven years in the matter and still if the cause of action is protected, there is no reason to grant any relief after fag end of seven years of the suit. This is the first reason upon which the present appeal from order deserves no consideration. The judgments relied upon by the learned counsel for the appellant do not help the case of the appellant in the peculiar facts and circumstances of the case.

7. This Court in case of Matrix Telecom Private Limited vs. Matrix Cellular Services Private Limited - 2011 (3) GLR 1951, earmarked the ambit and scope of the appeal from order 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 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.

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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. The Division Bench of this Court in case of Jasodas Indralal Vadhva vs. Hemandrabhai Kakulal Vyas - 2009 (4) GLR 3213, has held as under :

"8. In a suit for permanent injunction, while the Court is considering an interlocutory application, the Court is not called upon to decide the real disputes between the parties. The Court is called upon to see whether the party approaching the court has a plausible case and whether there is a possibility of such case succeeding at the trial. If that test is satisfied then it is the duty of the court to see whether the damages that the plaintiff is likely to suffer for the action of the defendants complained of can be compensated in money, and if so, whether there is a standard for ascertaining such compensation. If such compensation can be ascertained, then the interlocutory order of injunction should normally be refused. However, if the court is of the view that such compensation cannot be ascertained, then it is the duty of the court to see the balance of convenience and inconvenience of the parties.

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11. Granting of injunction is a matter of

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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 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. The scope and ambit of appeal from order is limited. The Appellate Court even if has different view cannot palm its view upon the discretionary view arrived at by the Court at first instance. The party assailing the discretionary order passed below under Order 39 Rule 1 and 2 has to establish that the learned Trial Court has exercised the discretion in derogation of the settled principles of law and the impugned order is patently illegal and palpably wrong. In the background of this aspect, if we see and creep through the impugned order, what appears that the plaintiff claiming herself as daughter of defendant No.1 being her father born out of his first marriage. It is admitted fact that the plaintiff has married to Hirabhai Pipariya forty years back. The plaintiff claimed that all the disputed properties belongs to her grandfather namely deceased Devshibhai Parsana. She has joined all the heirs of Devshibhai Parsana. Though plaintiff claims her share from her father, she has joined all the heirs of deceased

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Devshibhai Parsana, to unsettle the partition took place among them. In this factual scenario and circumstances, whether the properties are fallen in the share of the Jadavbhai defendant No.1 could be said to be an ancestral property. This is the question to be decided by the Court during trial.

10. That apart, what garner from the impugned order that deceased Devshibhai Parsana grandfather of the plaintiff had executed one Will on 17.02.1995. Then Regular Civil Suit No.1312 of 1999 was filed between the father and sons namely Jadavbhai and his heirs and they have decided to partition the property which fell in the share of defendant No.1. They reached to agreement and in the year 2001, they have partitioned the property. The partition arrived at between them has also been given effect in revenue record and the revenue record is also submitted. The above proceedings prima facie establishes that the plaintiff was knowing all these aspects, yet she filed the suit lately in the year 2017. All these findings are limited to believe that there is no patent illegality committed by the learned Trial Court while rejecting the injunction application.

11. In view of the above, the present appeal from order deserves to be dismissed and it is accordingly dismissed at the admission stage. Consequently, connected Civil Application does not survive and it also stands dismissed.

(J. C. DOSHI, J) GAURAV J THAKER