Uttarakhand High Court
WPMS/22/2023 on 11 January, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
WRIT PETITION (M/S) NO. 22 OF 2023
11th JANUARY, 2023
Between:
Smt. Sangeeta Bijalwan ...... Petitioner
and
Bhuwanesh Prasad Devrani ...... Respondent
Counsel for the petitioner : Mr. Piyush Garg, learned
counsel
Counsel for the respondent : Mr. Vikas Bahuguna, learned
counsel
The Court made the following:
JUDGMENT:
The petitioner has preferred the present
petition under Article 227 of the Constitution of India to
assail the order dated 31.10.2022, passed by the
learned District Judge, Dehradun, in Misc. Civil Appeal
No. 60 of 2021, preferred by the respondent under
Order 43 Rule 1(r) CPC. By the impugned order, the
said appeal preferred by the respondent was allowed,
and the injunction granted in favour of the petitioner /
plaintiff under Order 39 Rules 1 and 2 CPC, was vacated.
2) The brief facts may be taken note of, before I
proceed to deal with the present petition.
3) The petitioner, who is the plaintiff, claims to
have purchased a plot of land from Smt. Sumanlata
Kainthola and Smt. Kusumlata Devrani, who in turn had
purchased the plot from Ganesh Prasad, Sudhir Kumar
and Kamleshwar Prasad. The aforesaid three persons, in
turn, purchased the land from one Naresh Chand, the
original owner of the land. The sale deed of the
petitioner recited that on the South of the plot sold to
the petitioner, there is a 14 feet wide passage, and
beyond that, the land of the defendant is situated (on
the southern side). Petitioner produced the following
plan along with the plaint to show the position at site, as
it exists:
4) The case of the petitioner in the suit was that
the 14 feet wide passage had been carved out by the
predecessors-in-interest of the petitioner, to grant
access to the plots carved out by the predecessors-in-
interest alone. Since, the predecessors-in-interest have
sold their land to various persons - including the
petitioner, they were not left with any right qua 14 feet
passage, which was exclusively meant for use of the
petitioner and other plot owners, who have been sold
the plots carved out by the predecessors-in-interest of
the petitioner. The petitioner claim that the defendant,
who was the owner of the land, lying to the South of the
14 feet passage, has access to his land from the main
road, i.e., the colony road, as shown in the plaint.
However, to carve out smaller plots, the defendant was
seeking to use the 14 feet passage to access the plots
upon them being carved out. The plaintiff, accordingly,
filed her suit for perpetual injunction to restrain the
defendant from using the 14 feet wide passage.
5) The trial court granted an interim injunction in
favour of the petitioner vide order dated 27.10.2021
under Order 39 Rules 1 and 2 CPC. Against the grant of
the said injunction, the respondent preferred the
statutory appeal under Order 43 Rule 1(r) CPC, which
has been allowed by the impugned order.
6) The submission of Mr. Garg, learned counsel
for the petitioner, is that the impugned order has been
passed by the learned District Judge beyond his
jurisdiction and, therefore, the present petition is
maintainable. He submits that in Wander Ltd. Vs Antox
India (P) Ltd., 1990 Supp SCC 727, the Supreme Court
has laid down the principles on which an order passed by
the trial court, on an interim relief application, should be
dealt with by the appellate court. In para 14 of the
judgment in Wander Ltd. (supra), the Supreme Court,
inter alia, observed :
"14. ...In such appeals, 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 that 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 mater 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."
7) Mr. Garg submits that the trial court having
appreciated the prima facie case of the parties; balance
of convenience, and; irreparable loss and injury which
could be caused by grant, or refusal, of interim relief of
injunction, the appellate court could not have interfered
with the same, unless it was shown that the exercise of
discretion by the trial court in granting the injunction
was arbitrary, capricious and perverse. The appellate
court could not have reassessed the material to reach a
conclusion different from the one reached by the trial
court, since the conclusion reached by the trial court was
reasonably possible on materials placed on record.
Merely because the appellate court may have arrived at
a different conclusion on its own appreciation of the
respective case of the parties, the appellate court could
not have interfered with the interim injunction granted
by the trial court. Thus, the submission of Mr. Garg is
that, since the appellate court has exceeded its
jurisdiction, which should not have been so exercised,
the present petition under Article 227 of the Constitution
is maintainable.
8) I have heard Mr. Garg, perused the judgment
cited before me in Esha Ekta Appartments CHS Limited
and others Vs Municipal Corporation of Mumbai and
another, (2012) 4 SCC 689, which cites Wander Ltd.
(supra), and perused the orders passed by the trial
court, as well as the first appellate court.
9) In my view, the present petition is not
maintainable, for the reason that the first appellate court
namely, the District Judge, cannot be said to have
exercised jurisdiction in excess of jurisdiction vested in
him. The court of the District Judge, being the appellate
court, was entitled to hear appeals under Order 43 Rule
1(r) CPC, and was entitled to, for reasons to be
recorded, either allow the appeal, or reject the same, or
pass such other orders as may be called for in the facts
and circumstances of the given case. Merely because
the appeal under Order 43 Rule 1(r) CPC has been
allowed by the learned District Judge, it does not
tantamount to the District Judge exceeding his
jurisdiction. The jurisdiction to entertain the appeal is
vested in the learned District Judge by Order 43 Rule 1
CPC. The jurisdiction to entertain the said appeal is not
dependent on the legality of the order that may be
passed by the District Judge. The submission premised
on Wander Ltd. (supra) is a submission on merits of the
decision rendered in the appeal, to argue that the
appellate decision is wrong. Even if, it were to be
accepted for the sake of argument that the appellate
court has fallen in error, that is an error within
jurisdiction. The so called error does not impinge on the
jurisdiction of the appellate court, namely, the District
Judge, and it cannot be said that the appellate court has
exceeded its jurisdiction by allowing the appeal.
10) Even otherwise, on perusal of the sale deed of
the petitioner, it is clear that she was merely granted
right of passage over the 14 feet passage to access her
plot, which did not create any exclusive right in the
petitioner, or exclusive right in only the vendees from
the predecessors-in-interest of the petitioner, to use the
said 14 feet passage. The respondent places reliance on
Easementary Letter dated 02.08.2017, executed by the
predecessors-in-interest of the petitioner, which
acknowledges that the 14 feet passage had been
developed with contribution of land by the defendant.
Pertinently, the petitioner has not even impleaded her
predecessors-in-interest as party defendants in the suit.
11) For the aforesaid reasons, I find no merit in
this petition. The writ petition is, accordingly, dismissed.
12) It goes without saying that the observations
made by me, have been made on prima facie evaluation
of the case, and would not influence the case of either
party before the trial court.
________________
VIPIN SANGHI, C.J.
Dt: 11th JANUARY, 2023
Negi
