Harjivandas Shankarlal Prajapati v. Thakore Somaji Mohanji
1995-04-20
J.N.BHATT
body1995
DigiLaw.ai
J. N. BHATT, J. ( 1 ) BOTH these revisions under Sec. 115 of the Code of Civil Procedure (code for short) arise from the common judgment and order passed in Misc. Civil appeals Nos. 133 of 1992 and 134 of 1992, confirming the judgment and order passed by the Trial Court below applications Exs. 5, 20 and 65 in Regular Civil Suit No. 974 of 1991. Civil Revision Application No. 200 of 1993 is filed by the original defendant No. 2, whereas Civil Revision Application No. 201 of 1993 is filed by the original defendant No. 1. ( 2 ) ). Since common questions are involved arising out of common judgment and order, both the revisions are being disposed of by this common judgment. ( 3 ) ). The aforesaid civil suit was filed by the respondents Nos. 1 to 5 who are the original plaintiffs against the petitioners who are the original defendants. The parties are hereinafter referred to as mentioned in the suit. ( 4 ) ). The plaintiffs are the residents of village selar and they are agriculturists. The plaintiffs, inter alia, contended that they have right of way in respect of the disputed road which is a public road. The plaintiffs claimed right of way on a public road which starts from revenue survey No. 468 and ends in revenue Survery No. 469. This road is leading towards Sarkhej to Gandhinagar High Way which is hereinafter referred to as the disputed Road for the sake of brevity and convenience. The agricultural lands bearing survey Nos. 468, 469 and 480 are situated on one side of the disputed road, while survey nos. 474, 478 and 479 are situated on the other side of the disputed road. The disputed road also passes through survey No. 479 which is according to the plaintiffs case government Kharaba land, which is known as Talavadi land. The plaintiffs claimed that since many years, they are using the disputed road alongwith their vehicles for going to the city of Ahmedabad from their village. Thus, as per the plaintiffs case, the disputed road is a public road and they have right of way and they have been using the said road since long. They filed the suit against the defendants and in the Trial Court, an application ex.
Thus, as per the plaintiffs case, the disputed road is a public road and they have right of way and they have been using the said road since long. They filed the suit against the defendants and in the Trial Court, an application ex. 5 was presented for interim injunction, as the plaintiffs apprehended that they will be obstructed by the defendants in making use of the disputed road. The disputed road is used by the villager of village selar for going towards Ahmedabad side. ( 5 ) ). The application for interim injunction Ex. 5 was submitted to restrain the defendants from making any obstruction from passing through the suit road with their bullock-carts and the vehicles. ( 6 ) ). The defendants appeared and resisted the claim of the plaintiff by raising various contentions. The right of the plaintiffs as alleged is denied. The prayer for interlocutory injunction was also contested. ( 7 ) ). After hering learned advocate for the parties and considering the facts and circumstances emerging from the documentary evidence and the affidavits at the interlocutory stage, the Trial Court reached to the conclusion that there is a prima facie case in favour of the plaintiffs and that the irreparable loss will be caused, if the injunction is refused. The Trial Court also found that the balance of convenience tilts in favour of the plaintiffs. Therefore, the Trial Court granted application Ex. 5. The original defendant no. 1 came to be directed to remove wire-fencing placed around the field bearing revenue survey No. 479. The Trial Court rejected the applications of the defendants at Exs. 20 and 65. The original defendant No. 1 had preferred an application Ex. 20 and original defendant No. 2 had preferred an application Ex. 65 for interlocutory orders in their favour. The impugned order allowing the application Ex. 5 and directing the defendants to remove wire-fencing came to be passed on 8th July, 1992. ( 8 ) ). Being aggrieved by the said common order passed by the Trial Court, the original defendants preferred civil misc. appeals in the District Court, Ahmedabad (Rural ). The original defendant No. 1 preferred Civil Misc. Appeal No. 133 of 1992 and the original defendant No. 2 preferred Civil Misc. Appeal No. 134 of 1992 in the District Court ahmedabad (Rural ).
Being aggrieved by the said common order passed by the Trial Court, the original defendants preferred civil misc. appeals in the District Court, Ahmedabad (Rural ). The original defendant No. 1 preferred Civil Misc. Appeal No. 133 of 1992 and the original defendant No. 2 preferred Civil Misc. Appeal No. 134 of 1992 in the District Court ahmedabad (Rural ). Both the appeals were heard together and came to be disposed of by common judgment by the District Court on 8th January, 1993. Both the appeals came to be dismissed with costs, confirming the judgment and order of the Trial Court. ( 9 ) ). Being dissatisfied by the said common judgment and order of the District Court, the original defendant No. 3 has filed Civil Revision Application No. 200 of 1993, whereas the original defendant No. 2 has filed Civil Revision Application No. 201 of 1993 by invoking the powers under Sec. 115 of the Code. ( 10 ) ). Firstly, it may be stated that ambit and scope of revision under Sec. 115 of the Code is very much circumscribed. Sec. 115 empowers this Court to satisfy itself on following three aspects : (1) That the order of the subordinate court is within its jurisdiction; (2) That the case is one in which the court must have exercised jurisdiction; and (3) That in exercising jurisdiction, the court has not acted illegally like that in breach of some provisions of law or with material irregularities i. e. , by committing some procedural error in Trial Court which is a material thing that may have effected the ultimate decision. If this Court is satisfied on all those three aspects, it has no power to interfere, because this Court differs from the factual conclusion of the subordinate courts. This proposition of law is very well established. ( 11 ) ). Having examined facts and circumstances and having heard the learned counsel for the parties, this Court is of the opinion that the case does not fall under Sec. 115 of the Code requiring interference of this Court against concurrent and consistent finding of facts recorded by the Courts below at the interlocutory stage, examining voluminous Revenue record and documentary evidence and affidavits of the parties. The grounds raised before the courts below are reiterated before this court.
The grounds raised before the courts below are reiterated before this court. The maintainability of the suit for want of statutory notice under Sec. 320 of the Gujarat panchayats Act, 1961 was also canvassed before the courts below. The courts below found that the plaintiffs have shown the prima facie case and that the balance of convenience tills in their favour. Issue of notice caused be decided at trial prima facie. There is illegal actions of pending rent. Therefore notice will nor be a trial. The courts below have also found that the irreparable injuries will be caused to the plaintiffs, if the interim injunction is refused. The courts below have considered three celebrated principles governing grant of interlocutory order in light of facts and circumstances of the case and proposition of law and having recorded consistent and concurrent finding of facts against the plaintiffs. No case is made out; no illegality is succesfully spelt out in impugned orders no perversity is successfully shown. With the result, both these revisions are meritless requiring dismissal. Accordingly, they are dismissed, having regard to the facts and circumstances with no order as to costs. ( 12 ) ). At this stage, the learned counsel for the petitioners submits that the petitioners desire to challenge the judgment and order of this Court before the Honble Supreme court and therefore, ad-interim relief granted by this Court against the order passed by virtue of the impugned judgment and order may be continued for further period of six weeks. Considering the facts and circumstnaces of the case and after hearing learned counsel for the parties, ad-interim relief granted by this Court is ordered to continue upto 31st of May, 1995. .