Gujarat High Court
Thakore Mafaji Vihaji vs State Of Gujarat on 7 February, 2025
NEUTRAL CITATION
C/AO/230/2023 ORDER DATED: 07/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 230 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 230 of 2023
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THAKORE MAFAJI VIHAJI & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
ADVOCATE NAME DELETED for the Appellant(s) No.
20,4,43,50,63,64,65,66,67,68,69,70,71,72,73,74,75,76,77,79,80,81,82,83,9,9
2
MR ANIL C THAKORE(2324) for the Appellant(s) No.
12,13,17,19,38,39,47,60,8,85
MR CHANDRAKANT J PATEL(9774) for the Appellant(s) No.
12,13,17,19,38,39,47,60,8,85
MR JAYDEEPSINH M CHAUHAN(12860) for the Appellant(s) No.
1,10,11,14,15,16,18,2,21,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37,
40,41,42,44,45,46,48,49,5,51,52,53,54,55,56,57,58,59,6,61,62,7,78,84,86,87,
88,89,90,91,93,94,95
MS RUCHIKA K SONI(12848) for the Appellant(s) No.
1,10,11,14,15,16,18,2,21,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37,
40,41,42,44,45,46,48,49,5,51,52,53,54,55,56,57,58,59,6,61,62,7,78,84,86,87,
88,89,90,91,93,94,95
MR AKASH CHHAYA, AGP for the Respondent(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/02/2025
ORAL ORDER
1. Heard learned advocate Mr. Anil C. Thakore for the
appellants - original plaintiffs, learned advocate Mr. Deep D.
Vyas for the respondent No.2- Ahmedabad Municipal
Corporation and learned Assistant Government Pleader Mr.
Akash Chhaya for respondent No.1.
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2. The present Appeal from Order is filed by the original
plaintiffs under Order 43 rule 1 of CPC against the refusal of
injunction order dated 24.05.2023 passed by the City Civil
Court, No. 17, Ahmedabad in Civil Suit No. 188 of 2022.
3. The short facts of the present appeal is as under.
3.1 It is the case of the original plaintiffs before the trial
Court that they are resident of suit property since long and
their possession may not be disturbed by the defendants,
more particularly defendant No.2- Ahmedabad Municipal
Corporation. The suit is filed seeking declaration and
injunction. The plaintiffs are asking for an alternative
accommodation and till then not to disturb from the suit
properties in question.
3.2 The plaintiffs claimed to have residing on a suit
premises which is known as 'Ramjbhai Ni Chali'. As such none
of the plaintiffs are holding any title owner over the suit
property.
3.3 After hearing the parties and considered the notices
which were issued by the Corporation under the Town
Planning Act, an injunction has been refused by the trial
Court.
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3.4 Being aggrieved and dissatisfied with such refusal
thereby not granting injunction in favour of the plaintiffs,
the present appeal has been filed.
4. Learned advocate Mr. Anil C. Thakore for the appellants
would submit that the appellants- original plaintiffs are
residing at the suit property known as 'Ramjbhai Ni Chali
since decades and their possession ought to have been
protected by the trial Court. Learned advocate for the
appellants would submit that all the plaintiffs are illiterate
persons and having no other means /accommodation except
the suit property thereby possession of the plaintiffs ought
to have been protected by the trial Court.
4.1 Learned advocate for the appellants would submit that
during the pendency of the present appeal, on 15.02.2024,
the possession of the suit premises have been taken by the
defendant No.2, which is required to be interfered by this
Court and order of restitution may be passed in the interest
of justice. So, he requests this Court to grant the relief as
prayed for in the injunction application and also restore back
the possession of the plaintiffs in the suit premises.
4.2 Making above submission, he would request this Court
to allow the present appeal.
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5. Per contra, learned advocate Mr. Deep D. Vyas for
respondent No.2- defendant No.2- Ahmedabad Municipal
Corporation would submit that there is no error much less
any gross error committed by the trial Court while rejecting
the injunction application filed by the plaintiffs. He would
submit that this Court is having limited jurisdiction while
exercising the power under Order 43 rule 1 of CPC, this
Court may not disturb the findings of fact so recorded by the
trial Court in its impugned order.
5.1 He would further submit that an ample opportunity
was given to the plaintiffs and also offer them an alternate
accommodation by the Corporation as per the scheme/policy
prevailing at the relevant point of time. He would rely upon
the affidavit-in-reply filed by the Corporation in the present
proceeding, thereby he would submit that the Corporation
has already issued several notices to the plaintiffs before
implementing the sanction Town Planning Scheme. He would
further submit that as stated in the affidavit-in-reply filed by
the Corporation, some of the plaintiffs have been already
offered an alternate accommodation which they have
initially chosen and accepted and but later on vacated such
premises on the grounds which are best known to them. All
these facts have been suppressed by the plaintiffs while
approaching the trial Court by way of the suit.
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5.2 Learned advocate Mr. Deep D. Vyas for respondent
No.2- Ahmedabad Municipal Corporation would request this
Court that the Corporation has acted as per sanction Town
Planning thereby after following due process of law, the
plaintiffs have been removed from the suit property and
much progress has been made on the suit premises. He has
drawn the attention of this Court in regards to an additional
affidavit filed by competent officer of Corporation pointing
out necessity to take possession of suit premises and further
progressed made. So, he request this Court that question of
restitution of the plaintiffs would not arise at this stage.
5.3 Learned advocate Mr. Vyas for the Corporation would
further submit that as the Corporation has already provided
an alternate accommodation to those plaintiffs and
habitants who have submitted necessary proof of their
residence at the suit premises. All such exercise were already
undertaken by the Corporation then, nothing remains to be
done by the Corporation. Nonetheless, those eligible
allottees including the eligible plaintiffs if will approach the
Corporation within a reasonable period of time, the
Corporation will decide their case for granting them actual
and physical accommodation as per policy.
6. Learned Assistant Government Pleader Mr. Akash
Chhaya for the respondent -State would adopt the argument
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which is canvassed by the learned advocate Mr. Deep D Vyas
for the respondent No.2.
7. No other and further submissions have been by the
learned advocates for the respondents.
8. I have heard learned advocates for the respective
parties at length. After going through the documents which
are available on record including the replies of the
defendant- Corporation, prima-facie, it appears that the
plaintiffs are not holding any right title over the suit
property. Further, as per the Town Planning Scheme, the
land in question waste in the defendant No.2 - Corporation
which has been already implemented. As per sanctioned
Town Planning scheme, T.P. Road and other infrastructure
facility is already carried out by the Corporation for the
public use which was undertaken by using the suit premises.
9. The trial Court has already observed in its impugned
order that prior to implementation of the Town Planning
Scheme, the defendant No.2 - Corporation has already
issued notices to the plaintiffs, which was not replied at the
relevant point of time by the plaintiffs. Even the Corporation
has also issued another notice thereby seeking detail from
the plaintiffs, by which on getting sufficient proof from the
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habitant of suit premises, entitlement of alternate
accommodation could have been decided by the
Corporation. It has been so observed in the impugned order
that such opportunity was not availed by the plaintiffs.
10. It is remain undisputed fact that the suit property falls
under Town Planning Scheme thereby it wasted into the
defendant No.-2 - Corporation who is duty bound to
implement the T.P. Scheme under the provisions of Gujarat
Town Planning Scheme Act, 1976. So, when the defendant
No.2 - Corporation has implemented the scheme by
discharging its legal duty under law, no fault can be found
especially when they have followed the principle of natural
of justice by providing sufficient opportunity to the
plaintiffs.
11. Thus, examining the merits of the matter from every
such aspects, I am in complete agreement with the view
taken by the trial Court thereby it has rejected the injunction
application of the plaintiffs.
12. Even otherwise, this Court while exercising its appellate
jurisdiction under Order 43 rule 1 of CPC having limited
scope of interference and merely because second view has
been possible, it would not be ground to interfere in the
impugned order.
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13. It is apposite to refer to and reply upon the recent
decision of Hon'ble Supreme Court of India in a case of
Ramakant Ambalal Choksi v/s Harish Ambalal Choksi &
others, reported in 2024 SCC Online SC 3438 wherein
reiterated principle and held as under :-
"APPELLATE JURISDICTION UNDER ORDER 43 OF THE CPC
[20] Order 43 of the CPC specifies the orders against which an appeal
lies. Sub-Rule (r) of Rule 1 of the said order provides that an appeal
would lie against an order made under Rules 1, 2, 2A, 4 and 10 of
Order 39 of the CPC respectively.
[21] The law in relation to the scope of an appeal against grant or non-
grant of interim injunction was laid down by this Court in Wander Ltd. v.
Antox India P. Ltd.,1990 Supp SCC 727. Antox brought an action of
passing off against Wander with respect to the mark Cal-De-Ce. The
trial court declined Antox's plea for an interim injunction, however, on
appeal the High Court reversed the findings of the trial judge. This
Court, upon due consideration of the matter, took notice of two
egregious errors said to have been committed by the High Court:
a. First, as regards the scope and nature of the appeals before it and
the limitations on the powers of the appellate court to substitute its own
discretion in an appeal preferred against a discretionary order; and
b. Secondly, the weakness in ratiocination as to the quality of Antox's
alleged user of the trademark on which the passing off action is
founded.
[22] With regards to (a), this Court held thus:
"In such appeals, the appellate court will not interfere with the exercise
of discretion of the court of the 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
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interlocutory injunctions ... 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 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."
[23] This Court, while arriving at the above findings, relied on its earlier
judgment in Printers (Mysore) v Pothan Joseph, 1960 SCC OnlineSC
62 where it was held thus:
"[...] as has been observed by Viscount Simon LC in Charles Osenton
& Co v Johnston - the law as to reversal by a court of appeal of an
order made by a judge below in the exercise of his/her discretion is well
established, and any difficulty that arises is due only to the application
of well-settled principles in an individual case."
[24] It is pertinent to note that in Printers (supra) this Court had held
that ignoring relevant facts is also a ground for interfering with the
discretion exercised by the trial court. Furthermore, Viscount Simon LC
in Charles Osenton & Co v Johnston, 1942 AC 130 , after stating the
above, went on to quote Lord Wright's decision in Evans v. Bartlam,
1937 AC 473:
"It is clear that the court of appeal should not interfere with the
discretion of a judge acting within his jurisdiction unless the court is
clearly satisfied that he was wrong. But the court is not entitled simply
to say that if the judge had jurisdiction and had all the facts before him,
the court of appeal cannot review his order unless he is shown to have
applied a wrong principle. The court must, if necessary, examine anew
the relevant facts and circumstances in order to exercise a discretion
by way of review which may reverse or vary the order."
[25] In Evans (supra) case, Lord Wright made it clear that while
adjudicating upon the discretion exercised by the trial court, the
appellate court is obliged to consider the case put forward by the
appellant in favour of its argument that the trial court exercised its
discretion arbitrarily or incorrectly in the circumstances.
[26] What flows from a plain reading of the decisions in Evans (supra)
and Charles Osenton (supra) is that an appellate court, even while
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deciding an appeal against a discretionary order granting an interim
injunction, has to:
a. Examine whether the discretion has been properly exercised, i.e.
examine whether the discretion exercised is not arbitrary, capricious or
contrary to the principles of law; and
b. In addition to the above, an appellate court may in a given case have
to adjudicate on facts even in such discretionary orders.
[27] The principles of law explained by this Court in Wander's (supra)
have been reiterated in a number of subsequent decisions of this
Court. However, over a period of time the test laid down by this Court
as regards the scope of interference has been made more stringent.
The emphasis is now more on perversity rather than a mere error of
fact or law in the order granting injunction pending the final adjudication
of the suit.
[28] In Neon Laboratories Ltd. v. Medical Technologies Ltd., 2016 2
SCC 672 this Court held that the Appellate Court should not flimsily,
whimsically or lightly interfere in the exercise of discretion by a
subordinate court unless such exercise is palpably perverse. Perversity
can pertain to the understanding of law or the appreciation of pleadings
or evidence. In other words, the Court took the view that to interfere
against an order granting or declining to grant a temporary injunction,
perversity has to be demonstrated in the finding of the trial court.
[29] In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, 2013 9 SCC
221 this Court emphasised on the principles laid down in Wander
(supra) and observed that while the view taken by the appellate court
may be an equally possible view, the mere possibility of taking such a
view must not form the basis for setting aside the decision arrived at by
the trial court in exercise of its discretion under Order 39 of the CPC.
The basis for substituting the view of the trial court should be
malafides, capriciousness, arbitrariness or perversity in the order of the
trial court. The relevant observations are extracted below:
"20. In a situation where the learned trial court on a consideration of the
respective cases of the parties and the documents laid before it was of
the view that the entitlement of the plaintiffs to an order of interim
mandatory injunction was in serious doubt, the Appellate Court could
not have interfered with the exercise of discretion by the learned Trial
Judge unless such exercise was found to be palpably incorrect or
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untenable. The reasons that weighed with the learned Trial Judge, as
already noticed, according to us, do not indicate that the view taken is
not a possible view. The Appellate Court, therefore, should not have
substituted its views in the matter merely on the ground that in its
opinion the facts of the case call for a different conclusion. Such an
exercise is not the correct parameter for exercise of jurisdiction while
hearing an appeal against a discretionary order. While we must not be
understood to have said that the Appellate Court was wrong in its
conclusions what is sought to be emphasized is that as long as the
view of the trial court was a possible view the Appellate Court should
not have interfered with the same following the virtually settled
principles of law in this regard as laid down by this Court in Wander
Ltd. v. Antox India (P) Ltd."
(Emphasis supplied)
[30] This Court in Shyam Sel & Power Ltd. v. Shyam Steel Industries
Ltd., 2023 1 SCC 634 observed that the hierarchy of the trial court and
the appellate court exists so that the trial court exercises its discretion
upon the settled principles of law. An appellate court, after the findings
of the trial court are recorded, has an advantage of appreciating the
view taken by the trial judge and examining the correctness or
otherwise thereof within the limited area available. It further observed
that if the appellate court itself decides the matters required to be
decided by the trial court, there would be no necessity to have the
hierarchy of courts.
[31] This Court in Monsanto Technology LLC v. Nuziveedu Seeds Ltd.,
2019 3 SCC 381, observed that the appellate court should not usurp
the jurisdiction of the Single Judge to decide as to whether the tests of
prima facie case, balance of convenience and irreparable injury are
made out in the case or not.
[32] The appellate court in an appeal from an interlocutory order
granting or declining to grant interim injunction is only required to
adjudicate the validity of such order applying the well settled principles
governing the scope of jurisdiction of appellate court under Order 43 of
the CPC which have been reiterated in various other decisions of this
Court. The appellate court should not assume unlimited jurisdiction and
should guide its powers within the contours laid down in the Wander
(supra) case."
(Emphasis Supplied)
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14. Thus, in view of the aforesaid discussions, observation,
reasons and applying ratio of Ramakant Ambalal Choksi
(supra) to the facts of the present case, I do not find any
perversity in the impugned order. As such I am in complete
agreement with the view taken by the trial Court. So, I do not
find any merit in the present appeal, which requires to be
dismissed.,
15. In view of the aforesaid, the present Appeal from Order
is hereby dismissed. The impugned order dated 24.05.2023
passed by the City Civil Court, No. 17, Ahmedabad City in
Civil Suit No. 188 of 2022 is hereby confirmed.
16. It is open for the parties to request the trial Court for
expeditious adjudication of their suit, if so desire. If such an
application will be filed by any of the parties in the suit, the
same may be considered by the trial Court in accordance
with law. Notice discharged. No order as to cost.
14. Civil application would not survive and is disposed of
accordingly.
(MAULIK J.SHELAT,J)
SALIM/
