Gujarat High Court
Harshadray Udayshankar Bhatt vs Hansaben Keshavlal Joshi on 25 June, 2025
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C/SCA/10203/2010 ORDER DATED: 25/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10203 of 2010
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HARSHADRAY UDAYSHANKAR BHATT & ANR.
Versus
HANSABEN KESHAVLAL JOSHI
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Appearance:
MR RC JANI(357) for the Petitioner(s) No. 1,2
ADVOCATE NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/06/2025
ORAL ORDER
1. Heard learned Advocate Mr. R.C. Jani for petitioner No. 2 at
length. Though served, none appears for the respondent.
2. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"(A) Your Lordships may be pleased to issue an appropriate writ,
order or direction by quashing and setting aside the impugned order
Annexure - 'H' passed by learned Civil Judge (J.D.), Rajkot in Regular
Civil Suit No.1354 of 2002 dated 19.04.2010 and the order passed by
the appellate Court of the learned Principal District Judge, Rajkot in
Misc. Civil Appeal No.63 of 2010 dated 30.07.2010 herein.
(B) Your Lordships may be further pleased to stay the execution and
operation of the interim order passed by the learned Civil Judge
(S.D.), Rajkot in Regular Civil Suit No. 1354 of 2002 dated 19.04.2010
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Annexure - 'H' and the appellate order passed in Civil Misc. Appeal
No.63 of 2010 passed by the Principal District Judge, Rajkot dated
30.07.2010 Annexure - 'I', during pendency of writ petition in this
Hon'ble Court.
(C) To award the cost of this petition.
(D) Any other and further reliefs as this Hon'ble Court may deem fit
and proper in the circumstances of the case."
3. At the outset, learned Advocate Mr. R.C. Jani appearing for
the petitioner states that during the pendency of the writ
application, original petitioner No. 1 died. Considering the
nature of the controversy involved in this matter, his legal
heirs are not required to be brought on record. So, the
present writ application stands abated qua petitioner No. 1.
4. The parties will be referred to as per their original status in
the suit.
5. The short controversy involved in the present matter
reads as under:
5.1. The petitioners herein were the original defendants, whereas
the respondent herein was the original plaintiff of Regular
Civil Suit No.1354 of 2002 filed before the Civil Judge, Junior
Division, Rajkot, seeking declaration and injunction. It is
reported that at present, the suit is no longer remains on the
file of the Civil Court as it has already been dismissed.
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5.2. Nonetheless, considering the nature of the controversy
germane in the present writ application, the matter is
required to be decided on its merits.
5.3. The suit was filed seeking the relief of declaration to the
effect that whatever construction was carried out by the
defendants on the suit land be demolished and to be declared
as illegal and so also prayed for permanent injunction that
the defendants should not usurp the possession of the suit
property from the plaintiff.
5.4. The Civil Court has granted ex-parte ad-interim injunction in
favour of the plaintiffs vide its order dated 29th October,
2002, thereby directed the defendants to maintain status quo
and so also appointed commissioner to carry out Panchnama
of the suit land/property.
5.5. It appears that the first Panchnama was carried out by the
Court Commissioner on 29th October, 2002, in the presence
of the parties to the suit, wherein it was observed that the
construction of the temple was almost over, except the
consecration ceremony had not been completed.
5.6. Further, it appears that after hearing the parties, the learned
Trial Court vide its order dated 21st December, 2002, has
directed the parties to maintain status quo qua the suit land.
Thereafter, the plaintiff having come to know that
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consecration ceremony was undertaken by the defendants,
thereby committed breach of the injunction order passed by
the Trial Court, filed an application under Order 39, Rule 2(A)
of the CPC.
5.7. It further appears that second Panchnama was carried out as
per the Court's order on 03/09/2003, wherein it was found
that an idol was installed inside the temple by performing
consecration ceremony and the temple being started using by
people.
5.8. The defendants have contested such application. The parties
have been allowed to lead their appropriate evidence,
including oral evidence. After appreciating the evidence on
record and the submissions made by both sides, the Trial
Court vide its order dated 19th April, 2010, has allowed such
application filed below Exh.23 by the plaintiff under Order
39, Rule 2(A) of the CPC, thereby found the defendants guilty
of committing breach of the injunction of the order of status
quo granted by the Trial Court. Consequently, the Trial Court
has passed an order of two months' civil imprisonment to be
undergone by the defendants.
5.9. The defendants had carried the said order passed by the Trial
Court by filing an appeal under Order 43, Rule 1 of the CPC,
being Civil Miscellaneous Application No. 63 of 2010, which
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was ultimately dismissed by the Appellate Court vide its
judgment and order dated 30th July, 2010. Thereafter, the
defendants have preferred the present writ application,
thereby challenging the orders passed by the Trial Court as
well as the Appellate Court, whereby the impugned
application filed below Exh.23 was allowed by the Trial Court
and the appeal filed by the defendants was dismissed by the
Appellate Court.
5.10. It appears from the record and as recorded in the order dated
30th September, 2010, passed by this Court in the present
writ application, the petitioners have already undergone one
month of civil imprisonment, which was later on stayed by
this Court vide its order dated 30th September, 2010. With
this background of facts and against the concurrent findings
of facts, the present writ application has been pursued by
petitioner No. 2.
6. Submissions of Petitioner No. 2 - Defendant No. 2:
6.1. Learned Advocate Mr. Jani would submit that the Courts
below have committed an inherent error of facts and law by
not appreciating that there was no wilful defiance and/or
disobedience by the petitioner to flout the order of status quo
passed by the Trial Court; thereby, it has committed serious
error of law by holding the defendants guilty of committing
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breach of injunction and accordingly, sentenced them to civil
imprisonment.
6.2. Learned Advocate Mr. Jani would further submit that there
was no intention on the part of the defendants to flout any
order of status quo and as such, both defendants are senior
citizens and having good intention to act bonafide under an
impression that performing pooja of an idol in a building
which was already in existence before the institution of suit
would not amount to flouting any order of the Civil Court.
6.3. Learned Advocate Mr. Jani would submit that the Courts
below have not properly appreciated the Panchnamas on
record, thereby committed serious error of law in holding
that the defendants have committed breach of injunction.
6.4. Learned Advocate Mr. Jani would further submit that as such,
the plaintiff has no right, title, or interest in the suit property
and as such suit eventually dismissed on its merits, no
purpose will be served by sending the petitioner to civil
imprisonment for remaining one month, as the petitioners
have already undergone for one month of civil imprisonment
out of the two months which was ordered by the Civil Court
and confirmed by the Appellate Court.
6.5. Learned Advocate Mr. Jani would further submit that
considering the evidence on record, no case of breach of
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injunction was made out by the plaintiff; thereby, the
defendants were wrongly held guilty by the Civil Court.
6.6. Lastly, learned Advocate Mr. Jani would alternatively submit
that as such, petitioner No. 2 is aged about 78 years, having
acted bona fide in the matter and considering fact that no
previous antecedents of petitioner No. 2 which came on
record, petitioner No. 2 may not be sentenced and the order
impugned may be modified to the extent that the sentence
already undergone by petitioner No. 2 may be treated as
sufficient imprisonment for the alleged breach of injunction
by the defendants.
6.7. Making the above submissions, he requests this Court to
allow the application.
7. No other and further submissions are made.
ANALYSIS
8. As such, this Court would not like to disturb the concurrent
findings of facts recorded by the Trial Court and as such
confirmed in appeal. Nonetheless, this Court has prima facie
re-looked at the orders impugned in the present writ
application and so also gone through the Panchnama
prepared by the Court Commissioner appointed by the Civil
Court.
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9. Learned Advocate Mr. Jani, during the course of his
submissions, tried to convince this Court that at the time of
drawing first Panchnama itself, the idol was already installed
in the temple and such portion was erased from the
Panchnama, was not properly appreciated by the Courts
below. As such, both Courts, after appreciating the evidence
on record, including the oral evidence of the Court
Commissioner concurrently held against petitioners that
there is nothing said about any discrepancy in drawing first
panchnama. Nevertheless, it is required to be appreciated
that the objection of any erasing of any fact from the first
Panchnama was never disputed by the defendants while
submitting his written statement, which was at a later point
of time when the drawing of the first Panchnama. The
defendants have all opportunities to cross-examine the Court
Commissioner when he was in the witness-box in support of
the first Panchnama. So, while exercising its power under
Article 227 of the Constitution of India, this Court would not
like to take a different view than what has been taken by the
Trial Court and upheld by the Appellate Court. In light of the
aforesaid facts and circumstances of the case, I am not able
to accept the aforesaid submissions of learned Advocate Mr.
Jani, which requires to be rejected.
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10. So far as the other submissions made by learned Advocate
Mr. Jani to the effect that status quo was granted qua the
land in question, wherein there was no change made by the
defendants for which they could have been held guilty.
11. Prima facie, such arguments look attractive, but on legal
scrutiny of the order impugned in the present writ
application, such submissions require rejection. The Trial
Court has categorically observed in its order that when the
idol was installed and the consecration ceremony was
performed, the temple was functioned by the defendants,
which would amount to disturbing the order of status quo
qua the land in question. The view which has been taken by
the Trial Court and upheld by the Appellate Court cannot be
said to be erroneous, perverse, and/or arbitrary and merely
because another view is possible to be taken by this Court,
having limited jurisdiction under Article 227 of the
Constitution of India, this Court would not like to venture to
take such another plausible view, which is, in fact, not
permissible in law. [See Sameer Suresh Gupta TR PA
Holder vs. Rahul Kumar Agarwal, reported in 2013 (9)
SCC 374 (Para 6 and 7) and Garment Craft v. Prakash
Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and
16)].
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12. After going through records, I found nothing so serious which
can be noticed by this Court whereby the petitioner can be
sent to imprisonment for breach of the injunction of order of
status quo. Technically, the defendants could have been
restrained from installing the idol, and they could have taken
prior permission of the Civil Court to perform the
consecration ceremony and could not have functioned the
temple without the prior permission of the Civil Court. To
that extent, their conduct would amount to defiance of the
order of status quo qua the land in question but as such there
is no flagrant violation of breach of injunction committed by
petitioners. Further, suit came to be dismissed on merit
thereby dispute of ownership and or possession of suit land
pales into significant.
13. Lastly, so far as the sentencing part is concerned,
considering the peculiar facts and circumstances of the
present case and as such, petitioner No. 1, who was 95 years
old, died during the pendency of the present writ application,
petitioner No. 2 is also aged about 78 years old, having
already undergone one month of civil imprisonment as
declared before this Court and as such, suit came to be
dismissed by the Civil Court and so also considering the
nature of the controversy involved in the matter, I am of the
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view that no fruitful purpose will be served by confirming the
sentence of two months' civil imprisonment which was passed
by the Trial Court and upheld by the Appellate Court. To that
extent, the submissions made by learned Advocate Mr. Jani
requires acceptance.
CONCLUSION
14. The upshot of the aforesaid observations, discussions and
reasons, I am of the view that neither the Trial Court nor the
Appellate Court has committed any gross error of law and/or
any jurisdictional error in finding the defendants guilty of
breach of the injunction order of status quo.
15. Nonetheless, considering the aforesaid factors which are
observed hereinabove in the penultimate paragraph, the two
months' civil imprisonment ordered by the Civil Court and
confirmed by the Appellate Court requires to be interfered
with.
16. Thus, it is hereby held that the defendants are though found
guilty of committing breach of the injunction order of status
quo, their civil imprisonment is modified to the extent that
whatever civil imprisonment undergone by the defendants is
just and proper and accordingly, the sentence of civil
imprisonment ordered by Trial Court and confirmed by
Appellate Court is hereby modified to the aforesaid extent.
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17. Consequently, the present writ application is hereby partly
allowed. Rule is made absolute to the aforesaid extent. No
order as to costs.
(MAULIK J.SHELAT,J)
Nilesh
