Uttarakhand High Court
WPMS/1371/2023 on 7 July, 2023
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WPMS No. 1371 of 2023
Hon'ble Manoj Kumar Tiwari, J.
(1) Mr. Neeraj Garg, learned counsel for the
petitioner.
(2) Mr. Vipin Singh, learned counsel for the
caveator.
(3) By means of this writ petition, petitioner
has sought the following relief:-
(i) Issue a writ, order or direction in the nature of
certiorari quashing the impugned judgment and
order dated 01.05.2023 passed by learned 6th
Additional District Judge, Dehradun, in Misc. Civil
Appeal No. 33 of 2023 - Smt. Sarita Rani vs. Supla
Jain & Another, further be pleased to allow the
appeal under Order 43 Rule 1(r) CPC of petitioner.
(Annexure No. 1 to this writ petition)
(ii) Issue a writ, order or direction in the nature of
certiorari quashing the impugned order dated
03.04.2023 passed by learned 9th Additional Sr. Civil
Judge, Dehradun, in Original Suit No. 658 of 2022 -
Smt. Sarita Rani vs. Supla Jain & Another, further be
pleased to allow temporary injunction application
paper no. 6C of petitioner for relief claimed.
(Annexure No. 2 to this writ petition).
(4) Petitioner filed a suit for permanent
prohibitory injunction. With her suit, she also
filed temporary injunction application. Learned
trial court rejected petitioner's temporary
injunction application vide order dated
03.04.2023. She preferred an appeal under
Order 43 Rule 1(r) C.P.C. against the said order,
which was dismissed vide judgment and order
dated 01.05.2023. Thus, feeling aggrieved,
petitioner has approached this Court.
(5) Learned counsel for the petitioner contends
that both the learned courts below had erred in
not granting temporary injunction in favour of
the petitioner, although petitioner had been able
to make out a case for grant of such relief.
(6) I have gone through the orders passed by
learned trial court as well as appellate court.
Both the courts below have considered all the
relevant factors, mainly, prima facie case,
balance of convenience and irreparable injury
and recorded a finding that petitioner has not
been able to make out prima facie case for grant
of temporary injunction.
(7) It is settled position in law that grant of
injunction is discretionary. Learned trial court
has exercised its discretion, which has been
affirmed by learned appellate court.
(8) Even otherwise also, this Court, while
exercising power under Article 227 of the
Constitution, will not normally interfere with the
interlocutory order, which is discretionary, as
held by Hon'ble Supreme Court in the case of
India Pipe Fitting Co. Vs. Fakruddin M.A. Baker
and another, reported in (1977) 4 SCC 587.
Paragraph no.5 of the said judgment is
reproduced below:
"5. The limitation of the High Court while
exercising power under Article 227 of the
Constitution is well-settled. Power under Article
227 is one of judicial superintendence and cannot
be exercised to upset conclusions of facts
however erroneous those may be. It is well-
settled and perhaps too late in the day to refer to
the decision of the Constitution Bench of this
Court in Waryam Singh v. Amarnath where the
principles have been clearly laid down as follows:
"This power of superintendence conferred by
Article 227 is, as pointed out by Harries,
C.J., in Dalmia Jain Airways Ltd. v. Sukumar
Mukherjeeto be exercised most sparingly
and only in appropriate cases in order to
keep the Subordinate Courts within the
bounds of their authority and not for
correcting mere errors."
The same view was reiterated by another
Constitution Bench of this Court in NagendraNath
Bora v. Commissioner of Hills Division and
Appeals, Assam. Even recently in
BathutmalRaichandOswal v. Laxmibai R. Tarta
dealing with a litigation between a landlord and
tenant under Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947, this Court relying
on its earlier decisions observed as follows:
"If an error of fact, even though apparent
on the face of the record, cannot be
corrected by means of a writ of certiorari it
should follow a fortiori that it is not subject
to correction by the High Court in the
exercise of its jurisdiction under Article
227. The power of superintendence under
Article 227 cannot be invoked to correct an
error of fact which only a superior court can
do in exercise of its statutory power as a
court of appeal. The High Court cannot in
guise of exercising its jurisdiction under
Article 227 convert itself into a court of
appeal when the Legislature has not
conferred a right of appeal and made the
decision of the subordinate court or tribunal
final on facts."
(9) Thus, this Court does not find any reason
to interfere with the impugned order.
(10) In such view of the matter, writ petition
fails and is dismissed. No order as to costs.
(Manoj Kumar Tiwari, J.)
07.07.2023
Aswal
