Chawla Estate Developers Pvt ... vs Sterling Heights Residents ...
2022 Latest Caselaw 6784 MP

1                                             MISC. PETITION No. 1412 of 2021




IN THE HIGH COURT OF MADHYA PRADESH
                           AT INDORE
                              BEFORE
                 HON'BLE SHRI JUSTICE ANIL VERMA

                      ON THE 6th OF MAY, 2022


                   MISC. PETITION No. 1412 of 2021

     Between:-
   CHAWLA ESTATE DEVELOPERS PVT LIMITED THROUGH
1.
   DIRECTOR 9/1-10/1 NEW PALASIA (MADHYA PRADESH)
   DIRECTOR CHAWLA ESTATE DEVELOPERS PVT LTD GOURAV
2. CHAWLA S/O SHRI JAI CHAWLA 08 GULMOHAR COLONY.
   INDORE (MADHYA PRADESH)
   JAI CHAWLA, DIRECTOR, CHAWLA ESTATE DEVELOPERS
3. PVT. LIMITED S/O LATE JETHANAND CHAWLA 08
   GULMOHAR COLONY. INDORE (MADHYA PRADESH)
                                                   .....PETITIONER
     (BY SHRI VISHAL BAHETI, ADVOCATE )

     AND

   STERLING HEIGHTS RESIDENTS SOCIETY THR PRESIDENT
1. SHRI ABHAY RUNGTA S/O LATE SHRI GULJARILAL RUNGTA
   9/1-10/1 NEW PALASIA (MADHYA PRADESH)
   RAJESH KATARIA JOINT SECRETARY, STERLING HEIGHTS
   RESIDENTS SOCIETY S/O LATE GOPILAL KATARIA , AGED
2.
   ABOUT 43 YEARS, OCCUPATION: BUSINESS 301-B, STERLING
   HEIGHTS 9/1-10/1 NEW PALASIA INDORE (MADHYA PRADESH)
                                                .....RESPONDENTS
     (BY SHRI CHETAN JAIN, ADVOCATE )
 2                                               MISC. PETITION No. 1412 of 2021




      This petition coming on this day, the court passed the
following:
                               ORDER

With the consent of both the parties matter is heard finally at motion stage.

The petitioner/defendant has filed the present petition under Article 227 of the Constitution of India being aggrieved by the impugned order dated 5.12.2019 passed by 27th Additional District Judge Indore in Civil Misc. Appeal No. 100/2019 whereby the first appellate court has set aside the impugned order dated 4.5.2019 passed by 1st Civil Judge Class II Indore in civil suit No. 400A/2019 and granted temporary injunction in favour of respondents no. 1 & 2/plaintiffs.

The facts in brief are that respondents/plaintiffs have filed a suit for permanent injunction against the petitioner stating that the petitioner is a residential society of the building namely Sterling Heights situated at house No. 9/1, 10/1,9-1/A Gali No. 1 New Palasia Indore. There are total 29 flats in the building which have been occupied by the residents. The tool room, store rooms and open area was there on terrace of both the blocks A and B of the building which is common for residents of the building. But the petitioner/ defendant illegally constructed penthouse and he is trying to alienate the same. Alongwith the plaint, an application under section 39 Rules 1 & 2 of CPC has been filed by

respondents/plaintiffs before the trial court. The trial court after hearing both the parties vide order dated 4.5.2019 had dismissed the said application. Thereafter respondents/plaintiffs preferred an appeal before the first appellate court. The first appellate court after hearing both the parties had set aside the impugned order passed by the trial court and temporary injunction has been granted in favour of respondents/plaintiffs. Therefore, the petitioner has filed this petition before this Court.

Learned counsel for the petitioner contended that the impugned order passed by the first appellate court is bad in law and is contrary to law and facts on record. The first appellate court has lost sight to the fact that the appellate court should not flimsily, whimsically or lightly interfere in exercise of discretion by a subordinate court unless such exercise is palpably perverse. The first appellate court has travelled beyond the pleadings of the suit. The first appellate court has erred in holding that petitioner cannot take advantage of the sale deeds executed in favour of the respondents. The first appellate court had passed the impugned order without application of mind and without appreciating the fact that plaintiffs have failed to prove all ingredients required for grant of temporary injunction. Despite that, an order of temporary injunction has been passed in favour of respondents/plaintiffs. Hence he prays that the impugned order dated 5.12.2019 passed by

the lower appellate court be set aside and the order passed by trial court dated 4.5.2019 be restored.

Per contra learned counsel for contesting respondent no.1/ plaintiff has supported the impugned order by submitting that the lower appellate court has rightly allowed the application filed by respondent/plaintiff for grant of temporary injunction.

Heard learned counsel for the parties at length and perused all the documents available on record.

On perusal of the sale deed dated 19.2.2009 executed in favour of the plaintiff no. 1 and sale deed dated 27.3.2008 executed in favour of plaintiff no.2, it appears that although terrace floor was not sold to the said purchasers but it was left open terrace for the common use of residents of the said building. On perusal of the building permission for construction of building dated 29.1.2004 it appears that only permission for construction of parking + 6 th Floor + terrace floor was granted by the concerned authority and petitioner has no authority or permission for making any construction for the residential use of terrace floor. On perusal of the record, it also appears that petitioner has made illegal construction on the terrace floor of the building and thereafter he is trying to alienate the same which will adversely affect the rights of the residents. Therefore, the first appellate court has rightly held that prmia facie case is in favour of respondents/plaintiffs.

Learned counsel for the petitioner placed reliance upon judgment of the Apex court in the matter of Wander Ltd and other Vs. Antox India P Ltd reported in 1990 (supp) SCC 727 in which it has been held as under:-

"The Appellate Court will 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. 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. 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."

In the present case the trial court has failed to consider all these legal aspects and committed grave errors even the trial court has not exercised discretion reasonably. Therefore, the first appellate court has rightly interfered in the impugned order passed by the trial court.

The Hon'ble Apex court in the case of Jai Singh and others

Vs. Municipal Corporation of Delhi reported in (2010) 9 SCC 385 while deciding the application for temporary injunction by appellate court has held as under:-

42. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in the case of The Estralla Rubber Vs. Dass Estate (P) Ltd., [(2001) 8 SCC 97] wherein it was observed as follows:

"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 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."

The Hon'ble Apex court in case of M/s Puri Investments Vs.

M/s Young Friends and Co. reported in 2022 Live Law (SC) 279 it has been held that:-

The High Court was conscious of the restrictive nature of jurisdiction under Article 227 of the Constitution of India. In the judgment under appeal, it has been recorded that it could not subject the decision of the appellate forum in a manner which would project as if it was sitting in appeal. It proceeded, on such observation being made, to opine that it was the duty of the supervisory Court to interdict if it was found that findings of the appellate forum were perverse. Three situations were spelt out in the judgment under appeal as to when a finding on facts or questions of law would be perverse. These are:-

(i) Erroneous on account of non-consideration of material evidence, or

(ii) Being conclusions which are contrary to the evidence, or

(iii) Based on inferences that are impermissible in law.

In the present case also the construction on the terrace floor is prima facie appears to be illegal and it has been done without obtaining valid permission.

Even otherwise, the scope of interference in exercise of jurisdiction under Article 227 of Constitution of India is very limited. The Supreme court in the matter of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 has held that:-

"High court in exercise of its power of superintendence 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.

The High court can exercise this power when there has been a patent perversity in the orders of 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."

Hence no interference is warranted in the matter in exercise of powers under Article 227 of the Constitution of India. The petition sans merits and is hereby, dismissed.

C.C. as per rules.

(ANIL VERMA) JUDGE BDJ

Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2022.05.07 19:04:50 +05'30'