Gujarat High Court
Yogeshbhai Bachubhai Solanki vs Partners Of Aditya Infra Partnership ... on 25 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10176 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 10176 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10182 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 10182 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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YOGESHBHAI BACHUBHAI SOLANKI
Versus
PARTNERS OF ADITYA INFRA PARTNERSHIP FIRM, JUNAGADH & ORS.
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Appearance:
MR VIKRAM J THAKOR(2221) for the Petitioner(s) No. 1
MR. VINOD PANDYA(6977) for the Petitioner(s) No. 1
MR DIGANT B KAKKAD(6523) for the Respondent(s) No.
1,1.1,1.2,1.3,1.4,1.5
MR HS MUNSHAW(495) for the Respondent(s) No. 2
MS KOMAL D KHATRI(12176) for the Respondent(s) No.
1,1.1,1.2,1.3,1.4,1.5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/02/2025
ORAL JUDGMENT
1. The present applications are filed under Article 227 of
the Constitution of India seeking the following reliefs:-
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"A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to call for the records and
proceedings of Misc. Civil Appeal Nos. 02/2022 and 04/2022 filed in
the Court of Ld. Principal District Judge, Junagadh and having
examined legality, validity and propriety of the proceedings, be
pleased to quash and set aside the impugned common order
07.05.2022 passed by the Ld. Principal District Judge, Junagadh in
Misc. Civil Appeal Nos. 02/2022 and 04/2022 (Annexure-A) and be
pleased to restore the common order dated 31.12.2021 passed by the
Ld. 3rd Additional Civil Judge, Junagadh below Ex. 5 and 27
(Annexure-B) in Regular Civil Suit No. 45/2020.
(C) During the pendency and till final disposal of this petition, by
way of interim relief, Your Lordships may be pleased to stay the
operation, implementation and execution of the impugned common
order 07.05.2022 passed by the Ld. Principal District Judge,
Junagadh in Misc. Civil Appeal Nos. 02/2022 and 04/2022
(Annexure-A).
(D) Any other relief deemed just and proper may please be granted
in the interest of justice."
2. So far as possible, the parties will be referred to as per
their original position.
3. The short facts of the case appear to be as under:-
3.1 The petitioner herein has filed Regular Civil Suit No.
45 of 2020 before the Civil Judge, Junagadh against the
respondents of the present application as well as his cousin
brothers. The suit is filed seeking a declaration, injunction and
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various other reliefs. The plaintiff is claiming a right of pre-
emption in relation to the suit property, which was earlier an
ancestral property of father of the plaintiff, as well as
defendant Nos.1 and 2 and defendant Nos.4 and 5.
3.2 The plaintiff is the son of one Bachubhai s/o
Gokulbhai Kalabhai. The defendant No. 5 happens to be his
real brother, while defendants No.4/1 and 4/2 are his nephews
being the sons of his real brother, Nirmalbhai. Whereas,
Defendant Nos.1 and 2 are the cousin brothers of plaintiff,
who happen to be the son of Tulsibhai. The petitioner has
submitted a pedigree chart at Annexure "C" to the petition,
which is reproduced as under:-
3.3 It is the case of the plaintiff that the father of the
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plaintiff and father of defendant No.1 and 2 were real
brothers. The father of the plaintiff had filed Partition Suit No.
181 of 1951 against his brothers, including the father of
defendant Nos.1 and 2, wherein a compromise decree was
passed on 21.04.1951.
3.4 As per the compromise decree passed in the said suit,
in paragraph 11, it was observed that the residence of Solanki
House is situated on one plot, thereby if any brother wants to
either sell the entire house or its parts thereof, then the first
right to purchase shall be available to the other brother who is
residing adjacent to the such house. If that brother is not
ready to purchase, then it will be available to the other
brothers. It is also mentioned that, in case of a dispute
regarding its value, both sides can appoint an arbitrator for
adjudication of the value of such house, and thereafter, if any
brother does not want to purchase the house, he shall declare
it in writing. Only after such declaration, it can be sold to a
third party.
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3.5 The aforesaid decree was passed in the year 1951,
whereby all four brothers, who happen to be the sons of
Gokulbhai Kalabhai, received their respective shares of the
house. It remains undisputed that as on the date of filing the
suit by the petitioner-plaintiff, none of the brothers - sons of
Gokulbhai Kalabhai were alive including father of plaintiff.
3.6 Defendant Nos.1 and 2 being the sons of Tulsibhai,
intended to sell the suit property, which is confirmed from a
public notice dated 17.10.2018 published by them in a
newspaper.
3.7 The plaintiff came to know about such notice and
declared his intention to purchase the suit property by issuing
notice upon defendant Nos.1 and 2 on 24.10.2018 itself,
declaring his intention to purchase the suit property.
3.8 It is the case of the plaintiff that defendant Nos.1 and
2, vide their reply dated 29.10.2018, admitted the right of the
plaintiff to first purchase the suit property, so asked plaintiff to
provide a demand draft of Rs.25,00,000/-. It appears that at
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the given point in time, plaintiff has not acted upon such
request of defendant No. 1 and 2.
3.9 Defendant Nos.1 and 2 put up a development plan
with defendant No.6 - Jamnagar Municipal Corporation -
respondent No. 2 herein on 30.11.2018. Thereafter, defendant
Nos.1 and 2 appear to have executed a sale deed in favor of
original defendant No 3 - respondent Nos. 1/1 to 1/5 of the
suit property on 30-04-2019.
3.10 The suit came to be filed on 25.02.2020, wherein the
plaintiff preferred an injunction application below Exhibit 5,
stating that defendant No.3 had already started construction. A
separate application below Exhibit 27 was also filed, requesting
the trial court to direct defendant No.3 not to complete the
construction and to maintain the status quo.
3.11 After hearing the parties, the trial court, vide its
common judgment and order dated 31.12.2021, partly allowed
the injunction applications filed by the plaintiff, thereby
directing defendant No. 3 not to further construct and to
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maintain the status quo till the disposal of the suit. Defendant
No.3 was further directed not to transfer the suit property until
the disposal of the suit. Defendant No.6 - Jamnagar Municipal
Corporation was directed not to grant any further development
permission till the disposal of the suit. It is pertinent to note
that Exhibit 5 & 27 application were filed only against
defendant Nos. 3 and 6, which is confirmed by reading its
cause title.
3.12 Defendant No.3, being aggrieved by the said order of
injunction granted by the trial court, preferred Miscellaneous
Civil Appeal No. 2 of 2022 along with Miscellaneous Civil
Appeal No.4 of 2022 before the Appellate Court - Jamnagar
under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908
(hereinafter referred to as 'CPC').
3.13 After hearing the parties, the Appellate Court allowed
both these appeals, thereby quashing and setting aside the
impugned order passed by the trial court, which had injuncted
defendant No. 3 and 6 as the case may be.
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4. Thus, the original plaintiff has preferred the present
applications under Article 227 of the Constitution of India,
challenging the common judgment and order dated 07.05.2022,
passed by the learned Principal District Judge, Junagadh in
Miscellaneous Civil Appeal No. 2 of 2022 and Miscellaneous
Civil Appeal No. 4 of 2022 respectively.
5. SUBMISSION OF THE PETITIONER- PLAINTIFF
5.1 Learned advocate Mr. Vikram J. Thakor for the
petitioner - plaintiff would submit that appeals which were
filed by the respondent nos.1/1 to 1/5 ought to have been
dismissed on the ground that all the parties to the suit were
not joined. Learned advocate Mr.Thakor for the petitioner -
plaintiff would submit that provision of Order 41 Rule 20 of
CPC would apply to the appeal filed under Order 43 of the
CPC.
5.2 Learned advocate Mr. Thakor for the plaintiff would
submit that the appellate court has erroneously applied Section
8 of Limitation Act thereby, held that the suit is filed beyond
the period of limitation as father of the plaintiff had right
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being a pre-emptor as per the decree dated 08.09.1951, who
died long back.
5.3 Learned advocate Mr. Thakor would further submit
that the Appellate court has erroneously observed that right of
father of the plaintiff flowed from decree dated 08.09.1951 is
not inheritable right accrued in favour of the plaintiff thereby,
plaintiff cannot seek relief as prayed in the suit.
5.4 Learned advocate Mr. Thakor would submit that
appellate court has not considered Article 97 of Limitation Act,
whereby the suit was filed within time as the execution of sale
deed on 30th April, 2019 whereas suit was filed on 25 th
February 2020, which was within one year from date of
execution of sale deed.
5.5 Learned advocate Mr. Thakor would further submits
that considering the conduct of respondent no. 1/1 to 1/5
herein, trial court has correctly granted injunction in favour of
the plaintiff which was erroneously disturbed by the appellate
Court by exceeding its power so vested in it.
5.6 Learned advocate Mr. Thakor would further submit
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that defendant no.1 and 2 have not appeared before the Trial
Court and filed their written statement thereby right of pre-
exmption claimed by plaintiff could not have been denied
especially when the defendant No.1 & 2 in their reply to the
notice served by the plaintiff prior to filing of suit, has
admitted the right of plaintiff to first purchase suit property.
5.7 Learned advocate Mr. Thakor would submit that
merely because the respondent nos.1/1 to 1/5 have developed
the property, would not be a ground to vacate the interim
relief so granted by Trial Court, when plaintiff has proved all
the three ingredients i.e. prima facie case, balance of
convenience and irreparable loss thereby, secured injunction in
his favour.
5.8 Learned advocate Mr. Thakor would respectfully
submit that when the trial court has exercised its power and
discretion in favour of plaintiff then, as an appellate court, it
could not have interfered with such discretionary order, which
is otherwise not contrary to settle principle of law.
5.9 To buttress his argument, he has relied upon para 5 of
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the decision of Hon'ble Supreme Court of India in the case of
Babu Ram Versus Santokh Singh (DECEASED) Through His Lrs
And Others reported in (2019) 14 SCC 162.
5.10 Making the above submission, he requested to allow
the present petition.
6. SUBMISSION OF RESPONDENT NOS.1/1 TO 1/5 -
6.1 Per contra, learned Senior Counsel Mr.R.S.Sanjanwal
with Mr.Digan B. Kakkad, learned advocate appearing for the
respondent nos.1/1 to 1/5 has vehemently objected the present
application contending, inter alia, that appellate court has after
considering question of law involved in the matter, allowed the
appeals thereby correctly vacated the injunction so granted by
Trial Court.
6.2 Learned Senior Counsel Mr. Sanjanwal would submit
that appellate court has correctly exercised its appellate power
under order 43 of CPC thereby, appropriately interfered with
the order passed by the Trial Court which was passed contrary
to position of law.
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6.3 Learned Senior Counsel Mr. Sanjanwal would submit
that father of the plaintiff had entered into compromise with
his brother, who happens to be Class-I heirs of Gokulbhai
Kalabhai thereby a consent decree was passed, which gave
right to the father of the plaintiff to first purchase the suit
property had he alive on the date of suit. He would further
submit that such right, which is not inheritable, would not
available with plaintiff, thereby, considering the settled
principle of law, the suit itself was timed barred thereby not
maintainable.
6.4 Learned Senior Counsel Mr. Sanjanwal would submit
that right of pre-emption is a weak right and it can be
defeated by estoppel. He would further submit that when the
defendant no.1 and 2 had called upon the plaintiff to provide
Rs.25,00,000/- demand draft and he failed to provide such
amount in favour of defendant no.1 and 2, by his conduct, the
plaintiff is estopped in claiming any relief in the suit,
especially when the sale deed was long back executed by
defendant no.1 and 2 in favour of defendant no. 3/1 to 3/5
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prior to filing of suit.
6.5 Learned Senior Counsel Mr. Sanjanwal would
strenuously submit that right of pre-emption is not an
inheritable right and as per Section 22 of Hindu Succession
Act, it would confine and available to Class-I legal heirs of
deceased. He would state that admittedly plaintiff and
defendant no.1 and 2 are not Class-I legal heirs of Gokulbhai
Kalabhai who happens to be their grandfather.
6.6 Learned Senior Counsel Mr. Sanjanwal would submit
that Trial Court has not considered the basic issue of law
involved in the suit and without appreciating the provisions of
law thereby overlooked the binding principle erroneously
injuncted the defendant nos.3/1 to 3/5 thereby, not allowed to
develop the suit property.
6.7 Learned Senior Counsel Mr. Sanjanwal would further
submit that plaintiff could have responded to the response of
defendant no.1 and 2 given on 29 th October, 2018 either by
filing civil suit and/or recourse as suggested in the consent
decree dated 08.09.1951 but having so waited for long time,
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after about 10 months from execution of sale deed in question
and more than a year and half from response to defendant
nos. 1 and 2 has filed suit, disentitled the plaintiff to pray for
the injunction as sought for.
6.8 Lastly, learned Senior Counsel Mr. Sanjanwal would
submit that defendant no.31 to 3/5 not only purchased the suit
property from its real owner but have invested huge amount
thereby developed the property and entire complex is ready for
sale, which is constructed after obtaining requisite permission
through sanction plan from respondent no.2 - defendant no.6
- corporation, thereby considering these peculiar facts and
circumstance of the case, neither balance of convenience nor
irreparable loss would tilt in favour of the plaintiff.
6.9 To buttress his arguments of Hon'ble Supreme Court of
India in the case of Indira Bai vs. Nand Kishor reported in AIR
1991 SC 1055.
7. Learned advocate Mr. H.S.Munshaw, would submit that
as such, respondent no.2 - corporation has acted in accordance
with law thereby sanctioned the plan in favour of defendant
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no.3/1 to 3/5 for suit property, wherein development
permission has already granted on 30 th November, 2018, which
was applied by the erstwhile owner of suit property i.e.,
defendant no.1 and 2. So learned advocate Mr. Munshaw
would submit that this court may pass appropriate order in
accordance with law.
ANALYSIS.
8. Before adverting to the issue involved in the matter, I
would to remind myself scope and power available to this
Court while exercising its power under Article 227 of the
Constitution of India which is succinctly discussed in following
two decisions of Honourable Supreme Court of India. First one
in a case of Sameer Suresh Gupta TR PA Holder vs. Rahul
Kumar Agarwal, reported in 2013 (9) SCC 374, the relevant
observation of the aforesaid judgment reads as under:-
"[6] In our view, the impugned order is liable to be set aside
because while deciding the writ petition filed by the respondent the
learned Single Judge ignored the limitations of the High Court's
jurisdiction under Article 227 of the Constitution. The parameters for
exercise of power by the High Court under that Article were
considered by the two Judge Bench of this Court in Surya Dev Rai
v. Ram Chander Rai and Ors., 2003 6 SCC 675. After considering
various facets of the issue, the two Judge Bench culled out the
following principles:
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(1) Amendment by Act No. 46 of 1999 with effect from 01-
07-2002 in Section 115 of Code of Civil Procedure cannot
and does not affect in any manner the jurisdiction of the
High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to
the High Court, against which remedy of revision has been
excluded by the Code of Civil Procedure Amendment Act No.
46 of 1999 are nevertheless open to challenge in, and
continue to be subject to, certiorari and supervisory
jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued
for correcting gross errors of jurisdiction, i.e. when a
subordinate Court is found to have acted (i) without
jurisdiction - by assuming jurisdiction where there exists
none, or (ii) in excess of its jurisdiction - by overstepping or
crossing the limits of jurisdiction, or (iii) acting in flagrant
disregard of law or the rules of procedure or acting in
violation of principles of natural justice where there is no
procedure specified, and thereby occasioning failure of
justice.
(4) Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate Courts
within the bounds of their jurisdiction. When the subordinate
Court has assumed a jurisdiction which it does not have or
has failed to exercise a jurisdiction which it does have or the
jurisdiction though available is being exercised by the Court
in a manner not permitted by law and failure of justice or
grave injustice has occasioned thereby, the High Court may
step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of fact
or of law unless the following requirements are satisfied: (i)
the error is manifest and apparent on the face of the
proceedings such as when it is based on clear ignorance or
utter disregard of the provisions of law, and (ii) a grave
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injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e.
which can be perceived or demonstrated without involving
into any lengthy or complicated argument or a long-drawn
process of reasoning. Where two inferences are reasonably
possible and the subordinate Court has chosen to take one
view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the
supervisory jurisdiction are to be exercised sparingly and
only in appropriate cases where the judicial conscience of
the High Court dictates it to act lest a gross failure of justice
or grave injustice should occasion. Care, caution and
circumspection need to be exercised, when any of the
abovesaid two jurisdictions is sought to be invoked during
the pendency of any suit or proceedings in a subordinate
Court and the error though calling for correction is yet
capable of being corrected at the conclusion of the
proceedings in an appeal or revision preferred there against
and entertaining a petition invoking certiorari or supervisory
jurisdiction of High Court would obstruct the smooth flow
and/or early disposal of the suit or proceedings. The High
Court may feel inclined to intervene where the error is such,
as, if not corrected at that very moment, may become
incapable of correction at a later stage and refusal to
intervene would result in travesty of justice or where such
refusal itself would result in prolonging of the lis. (
(8) The High Court in exercise of certiorari or supervisory
jurisdiction will not covert itself into a Court of Appeal and
indulge in re-appreciation or evaluation of evidence or
correct errors in drawing inferences or correct errors of mere
formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to
issue a writ of certiorari and those calling for exercise of
supervisory jurisdiction are almost similar and the width of
jurisdiction exercised by the High Courts in India unlike
English Courts has almost obliterated the distinction between
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the two jurisdictions. While exercising jurisdiction to issue a
writ of certiorari the High Court may annul or set aside the
act, order or proceedings of the subordinate Courts but
cannot substitute its own decision in place thereof. In
exercise of supervisory jurisdiction the High Court may not
only give suitable directions so as to guide the subordinate
Court as to the manner in which it would act or proceed
thereafter or afresh, the High Court may in appropriate cases
itself make an order in supersession or substitution of the
order of the subordinate Court as the Court should have
made in the facts and circumstances of the case.
7. The same question was considered by another Bench in Shalini
Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010)
3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49)
"(a) A petition under Article 226 of the Constitution is
different from a petition under Article 227. The mode of
exercise of power by the High Court under these two articles
is also different.
(b) In any event, a petition under Article 227 cannot be
called a writ petition. The history of the conferment of writ
jurisdiction on High Courts is substantially different from the
history of conferment of the power of superintendence on
the High Courts under Article 227 and have been discussed
above.
(c) High Courts cannot, at the drop of a hat, in exercise of
its power of superintendence under Article 227 of the
Constitution, interfere with the orders of tribunals or Courts
inferior to it. Nor can it, in exercise of this power, act as a
Court of appeal over the orders of the Court or tribunal
subordinate to it. In cases where an alternative statutory
mode of redressal has been provided, that would also
operate as a restrain on the exercise of this power by the
High Court.
(d) The parameters of interference by High Courts in exercise
of their power of superintendence have been repeatedly laid
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down by this Court. In this regard the High Court must be
guided by the principles laid down by the Constitution Bench
of this Court in Waryam Singh [Waryam Singh v. Amarnath,
AIR 1954 SC 215] and the principles in Waryam Singh
[Waryam Singh v. Amarnath, AIR 1954 SC 215] have been
repeatedly followed by subsequent Constitution Benches and
various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam Singh
v. Amarnath, AIR 1954 SC 215] , followed in subsequent
cases, the High Court in exercise of its jurisdiction of
superintendence can interfere in order only to keep the
tribunals and Courts subordinate to it, 'within the bounds of
their authority'.
(f) In order to ensure that law is followed by such tribunals
and Courts by exercising jurisdiction which is vested in them
and by not declining to exercise the jurisdiction which is
vested in them.
(g) Apart from the situations pointed in (e) and (f), High
Court can interfere in exercise of its power of
superintendence when there has been a patent perversity in
the orders of the tribunals and Courts subordinate to it or
where there has been a gross and manifest failure of justice
or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court
cannot interfere to correct mere errors of law or fact or just
because another view than the one taken by the tribunals or
Courts subordinate to it, is a possible view. In other words
the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article
227 cannot be curtailed by any statute. It has been declared
a part of the basic structure of the Constitution by the
Constitution Bench of this Court in L. Chandra Kumar v.
Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and
therefore abridgment by a constitutional amendment is also
very doubtful.
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(j) It may be true that a statutory amendment of a rather
cognate provision, like Section 115 of the Civil Procedure
Code by the Civil Procedure Code (Amendment) Act, 1999
does not and cannot cut down the ambit of High Court's
power under Article 227. At the same time, it must be
remembered that such statutory amendment does not
correspondingly expand the High Court's jurisdiction of
superintendence under Article 227.
(k) The power is discretionary and has to be exercised on
equitable principle. In an appropriate case, the power can be
exercised suo motu.
(l) On a proper appreciation of the wide and unfettered
power of the High Court under Article 227, it transpires that
the main object of this article is to keep strict administrative
and judicial control by the High Court on the administration
of justice within its territory.
(m) The object of superintendence, both administrative and
judicial, is to maintain efficiency, smooth and orderly
functioning of the entire machinery of justice in such a way
as it does not bring it into any disrepute. The power of
interference under this article is to be kept to the minimum
to ensure that the wheel of justice does not come to a halt
and the fountain of justice remains pure and unpolluted in
order to maintain public confidence in the functioning of the
tribunals and Courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercised just for grant of relief in
individual cases but should be directed for promotion of
public confidence in the administration of justice in the
larger public interest whereas Article 226 is meant for
protection of individual grievance. Therefore, the power
under Article 227 may be unfettered but its exercise is
subject to high degree of judicial discipline pointed out
above.
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(o) An improper and a frequent exercise of this power will
be counterproductive and will divest this extraordinary power
of its strength and vitality."
(Emphasis supplied)
9. The second decision in a case of Garment Craft v.
Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein
the Hon'ble Supreme Court of India has held as under:-
15. Having heard the counsel for the parties, we are clearly of the
view that the impugned order [ Prakash Chand Goel v. Garment
Craft, 2019 SCC OnLine Del 11943] 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 v. Ulhas
Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69]
The jurisdiction exercised is in the nature of correctional
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.
16. Explaining the scope of jurisdiction under Article 227, this
Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v.
Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-
102, para 6)
"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
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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."
(Emphasis supplied)
10. The present application having filed under Article 227 of
the Constitution of India thereby challenged the judgment and
order passed appellate Court exercising its power under order
43 of CPC, thereby, disturb the order of injunction granted by
Trial Court in favour of plaintiff.
11. The petitioner is thereby challenged incongruous
finding so recorded by Appellate Court while exercising its
appellate power whereby vacated the injunction so granted by
trial Court in favour of plaintiff.
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12. It is well settled legal position of law that ordinarily
when trial court has exercised its discretion in favour of
plaintiff while granting interim injunction pending suit, unless
the order of trial court granting injunction is either arbitrary,
erroneous or perverse or contrary to basic principle of law,
appellate court while exercising its power under order 43 of
CPC, should not interfered with such order passed by trial
Court. (See Wander Ltd V/s Antox India P. Ltd. reported in
1990 (1) Supp. SCC 727 & Ramakant Ambalal Choksi V/s
Harish Ambalal Choksi reported in 2024 SCC Online SC 3538)
13. At the same time, when this Court exercises its power
under Article 227 of the Constitution of India being an
appellate court to the District Court/Trial Court as the case
may be, would also require to follow the principles, so
enumerated by Hon'ble Apex Court of India in the case of
Sameer Suresh Gupta (Supra) and Garment Craft (supra) and,
whereby, this Court may not interfere with well-reasoned order
passed by Appellate Court / Trial Court as the case may be, on
the ground that merely some other view can be taken by this
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Court. It is now well settled legal position of law that mere
error of law on the part of courts below, this Court may not
interfered with impugned order challenged in the applicati0n
filed under Article 227 of the Constitution of India.
14. So far first limb of argument made by learned advocate
Mr. Vikram Thakore is concern about non- maintainability of
civil misc. appeals before appellate court as per Order 41 Rule
20 CPC as all parties were not joined, such an argument is
misconceived on facts as well as law. It can be seen from plain
reading of injunction application so filed by plaintiff before
trial court, he has only joined defendant no. 3/1 to 3/5 and
defendant no.6-corporation. So, when plaintiff himself had only
joined these two set of defendants in his injunction application,
he has no right to agitate before this Court that civil misc.
appeals filed by defendant no. 3/1 to 3/3 would not be
maintainable. Furthermore, no serious prejudice caused to
present applicant-petitioner due to none joining other
defendants in appeals filed before appellate court as main
contesting party would be plaintiff which was very must joined
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and heard by appellate court.
15. Thus, in view of aforesaid, such an argument made by
the petitioner is thoroughly misconceived rather gone contrary
to his own conduct before trial court vis-a-vis not joined all
parties to the suit in his injunction application.
16. Now to appreciate the real controversy so germane in the
matter, it is apt to refer to and rely upon the ratio of decision
of Hon'ble Supreme Court of India in the case of Sham
Sundar and Ors. V/s. Ramkumar and Ors. reported in (2001) 8
SCC 24, wherein in para 10, it has held as under:-
"[10] An analysis of the aforesaid decisions referred to in
first category of decisions, the legal principles that emerge
are these:
1. The pre-emptor must have the right to pre-empt on
the date of sale, on the date of filing of the suit and on
the date of passing of the decree by the Court of the
first instance only.
2. The pre-emptor who claims the right to pre-empt the
sale on the date of the sale must prove that such right
continued to subsist till the passing of the decree of the
first Court. If the claimant loses that right or a vendee
improves his right equal or above the right of the
claimant before the adjudication of suit the suit for pre-
emption must fail.
3. A pre-emptor who has a right to preempt a sale on
the date of institution of the suit and on the date of
passing of decree, the loss of such right subsequent to
the decree of the first Court would not affect his right
or maintainability of the suit for pre-emption.
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4. A pre-emptor who after proving his right on the date
of sale, on the date of filing the suit and on the date of
passing of the decree by the first Court, has obtained a
decree for pre-emption by the Court of first instance,
such right cannot be taken away by subsequent
legislation during pendency of the appeal filed against
the decree unless such legislation has retrospective
operation."
(Emphasis supplied)
17. Keeping in mind the ratio of the said decisions, and
above position of law stand as on date, I would like to
examine and deal with the submissions canvassed by learned
advocates appearing for the respective parties.
18. It is an undisputed fact that the father of the plaintiff
had filed partition suit 181 of 1951 against his real brother
including father of defendant no.1 and 2 wherein a consent
decree has been drawn on 08.09.1951. As per the consent
decree, at the time of selling the house by any brother,
another brother who is residing adjacent to such brother who
intend to sell house, has a first right to purchase is recognized
and agreed upon.
19. It is also an undisputed that during the life time of father
of the plaintiff, no such occasion arise to claim such pre-
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emptory right to purchase the suit property as none of his
brother had an intention to sell any of their respective houses.
The father of the plaintiff died long back. Likewise, father of
the defendant nos. 1 and 2 also died. The relationship between
the plaintiff and defendant nos.1 and 2 are admittedly of
cousin brothers, who are admittedly not the Class-I legal heirs
of Gokulbhai Kalabhai as he happened to be their grandfather.
20. At this stage, it would apt to refer to Section 22 of the
Hindu Succession Act, which reads as under:-
"22. Preferential right to acquire property in certain cases.
--
(1) Where, after the commencement of this Act, an
interest in any immovable property of an intestate, or in
any business carried on by him or her, whether solely or
in conjunction with others, devolves upon two or more
heirs specified in class I of the Schedule, and any one of
such heirs proposes to transfer his or her interest in the
property or business, the other heirs shall have a
preferential right to acquire the interest proposed to be
transferred.
(2) The consideration for which any interest in the
property of the deceased may be transferred under this
section shall, in the absence of any agreement between the
parties, be determined by the court on application being
made to it in this behalf, and if any person proposing to
acquire the interest is not willing to acquire it for the
consideration so determined, such person shall be liable to
pay all costs of or incident to the application.
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(3) If there are two or more heirs specified in class I of the
Schedule proposing to acquire any interest under this
section, that heir who offers the highest consideration for
the transfer shall be preferred.
Explanation.--In this section, "court" means the court
within the limits of whose jurisdiction the immovable
property is situate or the business is carried on, and
includes any other court which the State Government may,
by notification in the Official Gazette, specify in this
behalf."
21. As per the plain reading of section 22 of the Hindu
Succession Act, it would apply to Class -I legal heirs of
deceased. Admittedly, the plaintiff and defendant nos.1 and 2
are not fall within Class-I heir of said Gokulbhai Kalabhai,
then considering the aforesaid provision, plaintiff would not
entitle to claim any pre-emptory right over the suit property,
which admittedly owned by his uncle and succeeded in favour
of his Class-I legal hears i.e., defendant Nos.1 and 2. Thus,
ratio of decision in the case of Babu Ram (supra) would not
apply to the facts of the case.
22. Assuming for the time being, that provisions of Hindu
Succession Act, 1956, may not be applicable to the facts of the
case as consent decree was passed on 08.09. 1951, then also
whether plaintiff can pre-empt the right which was available to
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his father under the decree needs examination.
23. The plaintiff is claiming right of pre-emption as per the
aforesaid consent decree dated 08.09.1951 drawn in favour of
his father along with other brothers of his father. The trial
court has believed that such right of pre-emption as available
to father of plaintiff is inherited by plaintiff, even though, two
brothers of plaintiff who are joined as defendant no.4 (4/1 and
4/2) as well as defendant No.5, have not claimed it. Such an
approach on the part of the trial court is erroneous as prima
facie, right of pre-emption would not be an inheritable right in
favour of successor in interest of deceased.
24. It is apt and also profitable to rely upon the observations
made by Punjab and Haryana High Court in the case of Kamal
Goel vs. Purshotam Dass (Deceased by Lrs) reported in AIR
1999 P&H 258; 1999 LawSuit (P&H) 1979, wherein held as
under:- Para 11 to 13 and 14.
"[11] From a reading of above Section, it is clear that it confers a
right on Class-I heir only to seek the transfer of property in his or
her name when the other co-heir proposes to sell the property.
This Section is also applicable to the interest already transferred,
but the intention of enacting the Section is to see that the property
will remain in the hands of co-heirs only and to prevent the]
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strangers from acquiring any interest of the coheir. Further it is
clear that the provisions of this Section are confined only to Class-I
heirs specified in the Schedule. It is only a personal right given to
one or other of the co-heirs. That right is neither transferable nor
inheritable. In such cases, the common law maxim actio personalis
moritur-cum persona (a personal right of action dies with the
person).
[12] Admittedly, Chalti Devi died during the pendency of the suit.
Therefore, the right to have the property transferred in her name
and to get the sale deed executed by the defendants in favour of
the appellant set aside also ceased to exist. Her other son namely
the 1st respondent cannot have any right to continue the suit since
he has no right and the right of his mother Chalti Devi cannot be
inherited by him. It is further to be noticed that all other Class-I
heirs except Chalti Devi sold their share of the property to the
appellant. When Chalti Devi died before a decree was passed in
her favour, the right to continue the suit will not survive. Since
the right conferred under Section 22 of the Succession Act is a
personal one, it is extinguished by the death of Chalti Devi.
Therefore, the suit filed by her stands abated as she died before
the adjudication of her right.
[13] The learned Counsel for the appellant and respondents are
not able to draw my attention to any reported decision on the
question whether the right conferred Under Section 22 of the
Hindu Succession Act survives on the death of Class-I heir
instituted the suit claiming the said right, but I am able to lay my
hands on an analogous principle in Mohummudan Law. The right
of pre-emption was available to a Sunni of Hanifi Sect. That right
was known as Shaffa. It signifies the becoming of proprietor of
lands sold for the price at which the purchaser has purchased
them. A person claiming the right of a sort of pre-emption is
called Shafee. The right of Shaffa (the right of like pre-exmption)
is available to a co-sharer in the property of the land sold. Under
the Muslim Law if the Shafee i.e. the person claiming the right of
pre-exmption dies, his right of Shaffa becomes extinct. It is an
express condition of Shaffa that a man be firmly possessed of the
property from which he derives his right of Shaffa at the time
when the subject of it is sold, a condition which does not hold on
the part of the heirs. It is moreover a condition that the property
of the Shafee remains firm until the decree of the Kazee be passed
as this does not hold on the part of the deceased shafee, the shaffa
is not established in respect to any of his descendants because of
the failure of its conditions. Relying on the passages of Baillie's
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Mohummudan Law in Hamilton's Hadaya by Grady, 2nd. Edition
page 560 and Baillie's Mohummudan Law, 2nd Edition at page
505, Tagore Law Lecturers 1873 (Shama Charan Sarear) page 534,
Tagore Law Lecturers 1884 (Ammer Ali) 2nd. Edition, Vol. I, page
603, a Division Bench of the Allahabad High Court in Muhammad
Hussain v. Niamat-Un-Nissa, (1898) ILR 20 All 88 held as follows
:--
The short point which we have to decide is ........ did the
right of pre-emption determine upon the death of
Muhammad Hasan? All the authorities of which we are
aware show that it did; that the right of pre-emption is
gone when the pre-emptor is a Sunni of the Hanifi sect and
has not obtained his decree during his lifetime and that the
right to sue docs not survive to his heirs."
(Emphasis supplied)
25. Thus, in view of the aforesaid, prima facie, plaintiff
could not have claimed right of pre-emption so available to his
father, which would not survived in favour of plaintiff after
death of his father. The Trial Court has not considered such
vital aspect of the case thereby erroneously held in favour of
the plaintiff that he has inherited right of pre-emption from his
father.
26. As per the decision of Hon'ble Apex Court in the case of
Sham Sundar (Supra), the right of pre-emptor should survive
not only on the date of sale, but it should also requires to be
survived on the date of filing of the suit and further requires
to subsist till passing of the decree by the court of first
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instance. The pre-emptor who claims the right to pre-empt on
the date of sale must prove that such right continued to subsist
till passing of the decree of the first court. If he fails to do so,
suit for pre-emption must fail.
27. This position of law which emerges from the aforesaid
decisions of Hon'ble Apex Court as well as decision of P&H
High Court, prima facie, it would suggest that in the present
case, as on the date of filing of suit, plaintiff has no right of
pre-emption in his favour thereby can maintain the suit. When,
the maintainability of suit itself is under cloud, there would
not be any prima facie case in favour of the plaintiff then,
granting of injunction in favour of the plaintiff without
verification and discussing the aforesaid position of law can be
said to be an erroneous and perverse approach on the part of
trial court thereby, appellate court had a right to interfere
with such order.
28. At this stage, it is also profitable to refer the observations
so expressly made by Hon'ble Apex Court in the case of Indira
Bai (Supra), wherein in para 5, it has observed and held as
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under:-
"[5] Exception to this universal rule or its non-availability is
not due to absence of any provision in the Act excluding its
operation but welfare of society or social and general well-
being. Protection was, consequently, sought not on the
rationale adopted by the High Court that in absence of notice
under Section 8 of the Act estoppel could not arise but under
cover of public policy. Reliance was placed on Shalimar Tar
Products v. H. C. Sharma, AIR 1988 SC 145, a decision on
waiver, and Equitable Life Assurance Society of the United
States v. Reed, 1914 Appeal Cases 587, which laid down that
there could be no estoppel against statute. Equity, usually,
follows law. Therefore that which is statutorily illegal and
void cannot be enforced by resorting to the rule of estoppel.
Such extension of rule may be against public policy. What
then is the nature of right conferred by Section 9 of the Act?
In Bishen Singh v. Khazan Singh, AIR 1958 SC 838 this court
while approving the classic judgment of Mahmood J, in
Gobind Dayal v. Inayatullah, (1885) ILR 7 All 775 (FB), that
the right of pre-emption was simply a right of substitution'
observed that, 'Courts have not 1ooked upon this right with
great favour, presumably, for the reason that it operated as a
clog on the right of the owner to alienate his property. In
Radha Kishan v. Shridhar, AIR 1960 SC 1368, this Court
again while repelling the claim that the vendor and vendee by
accepting price and transferring possession without registration
of sale deed adopted subterfuge to defeat the right of pre-
emption observed that, 'there were no equities in favour of a
pre-emptor, whose sole object is to disturb a valid transaction
by virtue of the rights created in him by statute. To defeat
the law of pre-emption by any legitimate means is not fraud
on the part of either the vendor or .the vendee and a person
is entitled to steer clear of the law of pre-emption by all
lawful means'. Such being the nature of right it is harsh to
claim that its extinction by conduct would amount to
statutory illegality or would be opposed to public policy. The
distinction between validity and illegality or the transaction
being void is clear and well known. The former can be
waived by express or implied agreement or conduct. But not
the latter. The provision in the Act requiring a vendor to
serve the notice on persons having right of pre-emption is
condition of validity of transfer, and therefore a pre-emptor
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could waive it. Failure to serve notice as required under the
Act does not render the sale made by vendor in favour of
vendee ultra vires. The test to determine the nature of
interest, namely, private or public is whether the right which
is renunciated is the right of party alone or of the public also
in the sense that the general welfare of the society is
involved. If the answer is latter then it may be difficult to put
estoppel as a defence. But if it is right of party alone then it
is capable of being abnegated either in writing or by conduct.
The Act does not provide that in case no notice is given the
transaction shall be void. The objective is to intimate the pre-
emptor who may be interested in getting himself substituted.
The Act does not debar the pre-emptor from giving up this
right. Rather in case of its non-exercise within two months,
may be for the financial reasons, the right stands
extinguished. It does not pass on to anyone. No social
disturbance is caused. It settles in purchaser. Giving up such
right, expressly or impliedly cannot therefore be said to
involve any interest of community or public welfare so as to
be in mischief of public policy."
(Emphasis supplied)
29. It is by now well settled legal position of law that right
of pre-emption is a weak right, which may be defeated by
estoppel and considering the conduct of the plaintiff, the court
may also refused to grant any relief in favour of plaintiff.
30. As noted hereinabove, when the plaintiff has called upon
defendant nos.1 and 2 thereby, exercise his right to first
purchase on 24.10.2018, which was responded by defendant
nos.1 and 2 on 29.10.2018, thereby, called upon plaintiff to
provide demand draft of Rs.25,00,000/- which was not acted
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upon by plaintiff at the relevant point of time, would disentitle
him to get injunction as prayed for in the suit filed on 25 th
February, 2020.
31. It is also required to be noted that defendant nos.3/1 to
3/5 having purchased the suit property by way of registered
sale deed dated 30th April, 2019 and as per the development
permission/ sanction plan have already put up the construction,
which is ready for sale, considering these facts and
circumstances also, balance of convenience and irreparable loss
would not tilt in favour of plaintiff which also disentitles him
to claim injunction as prayed for in the impugned applications
filed in the suit.
32. Thus, in view of above, the appellate Court has correctly
examined all niceties of law so involved in the matter and
after referring several decisions of different High Courts on the
issues germane comes to the conclusion that The Trial Court
has erroneously granted injunction in favour of the plaintiff. As
such, after going through impugned judgment and order passed
by the appellate court and trial court as the case may be, I am
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in complete agreement with the view taken by the Appellate
Court, which is nether erroneous nor perverse nor exceeding
the jurisdiction so vested in it, thereby, this Court would not
like to interfere with the impugned order by exercising its
power under Article 227 of the Constitution of India.
33. Before parting with, this Court would like to observe that
it has examined submissions of the parties and decided issue
involved in the present applications, so need to observe the
merit. Nonetheless, any observations made herein above by
this Court and or by appellate Court or as the case may be by
trial Court would not come in way of any of the parties to suit
in any respect. As such trial Court need to frame necessary
issues out of the pleading and after recording of the evidence
coming forth on the record then after, requires to decide the
lis between parties strictly in accordance with law without
being influenced by any of judgement/order passed by trial
Court itself/appellate Court and or this Court as the case may
be.
34. With the aforesaid observations, discussions, reasons and
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findings, I am of the view that there is no gross error of law
and/ or jurisdictional error committed by appellate Court while
allowing the appeals filed by defendant nos.3/1 to 3/5 filed
under Order 43 of CPC.
35. Thus, the present applications lack merits and require to
be dismissed, which is hereby dismissed. Notice discharged.
Interim relief stands vacated forthwith. No order as to costs.
The connected Civil applications are also disposed of
accordingly. Sd/-
(MAULIK J.SHELAT,J)
MOHD MONIS
FURTHER ORDER
After pronouncement of judgement, learned advocate
Mr.Vikram Thakor appearing for the petitioner requests for
extention of interim relief, which is strongly objected by
learned Senior Counsel Mr.R.S.Sanjanwala appearing for
respective respondents.
Consdering the observations so made in the judgment,
request so made by learned advocate for the petitioner is
turned down.
Sd/-
(MAULIK J.SHELAT,J)
MOHD MONIS
