Judgment C.K. Buch, J.—Invoking the writ jurisdiction of this Court under Article 227 of the Constitution of India, the petitioners have prayed for issuance of appropriate writ, order or direction quashing and setting aside the orders under challenge passed by the learned Presiding Officer, Fast Track Court, Patan dated 17/02/2009 in Civil Misc. Appeal No. 23 and 22 of 2008 preferred by the org. defendants. 2. Both the petitions are titled as petition preferred under Articles 226 and 227 of the Constitution of India. However, Mr. S.M. Shah, learned Senior Advocate appearing with Mr. M.M. Tirmizi, learned Advocate for the petitioner has clarified that petitioners propose these petitions as petition under Article 227 of the Constitution of India and same may not be treated as petitions, under Article 226 of the Constitution of India. 3. When these petition were listed for admission hearing, the Court decided to pass interim order on 16/03/2009 and the Court has referred only Article 227 of the Constitution of India by observing that petitioners have filed these petition under Article 227 of the Constitution of India. 4. As the controversy between the parties is in reference to supplementary proceedings drawn in the main suit under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, the original plaintiffs - petitioners had prayed for interim mandatory injunction placing gross circumstances before the Court and administering the action of respondent - Radhanpur Municipality. In the suit, before the trial Court the highhanded action violating principles of natural justice by the respondent-Radhanpur Municipality was placed before the learned Civil Judge and the learned Civil Judge decided to grant interim relief to the petitioner and after hearing parties and considering the documents produced vis-a-vis the written statement filed by respondent-Municipality, confirmed the earlier interim relief granted by the trial Court. The say of the petitioners is that the order passed by the learned Civil Judge was challenged by respondent-Radhanpur Municipality by way of filing appeals under Order 43, Rule 1 of CPC being Civil Misc. Application No. 22 and 23 of 2008. The first appellate Court reversed the finding of the learned lower Court and order granting interim mandatory injunction was quashed and set aside vide order dated 17/02/2009 in both the appeals. Application No. 22 and 23 of 2008. The first appellate Court reversed the finding of the learned lower Court and order granting interim mandatory injunction was quashed and set aside vide order dated 17/02/2009 in both the appeals. Hence, the petitioners have approached this Court by way of filing these two petitions invoking the writ jurisdiction of this Court. As the common question of law and fact is involved, the Court has decided to hear and dispose of both these petitions together by way of common judgment. 5. The Court is inclined to reproduce certain paragraph from the interim order passed by this Court in SCA No. 2325 of 2009 while granting interim relief to the petitioner vide order dated 16/03/2009:— 1. This petition is filed by the petitioner under Article 227 of the Constitution of India, who is original plaintiff of Regular Civil Suit No. 69 of 2008 pending in the Court of learned Principal Civil Judge, Radhanpur. 2. Collector, Patan be joined as party Respondent No. 3. 3. Heard Mr. P.M. Thakkar, learned Sr. Advocate appearing with Mr. M.M. Tirmizi, learned Counsel appearing for the petitioner. 4. Notice for final disposal returnable on 15th April, 2009. Mr. Dipak Sanchela waives service of notice on behalf of the respondent Municipality. Collector be served with notice with a direction that copies of all orders, if are passed as reasoned orders for cancellation or suspension of resolution passed by the respondent Municipality as reflected in the petition granting and renewing the lease, be brought before this Court on the next date of hearing. 5. Registry shall now list this petition for final disposal on 15th April, 2009. 6. It is the case of the petitioner that a parcel of land was given on lease to the petitioner and after due approval from the Respondent No. 1 Municipality, some super-structure has been erected. Firstly, in the year 1994, land in question was leased to the plaintiff and thereafter, from time to time, the period of the lease on renewal has been extended by the respondent Municipality or its statutory committees by passing resolutions, copies whereof were before the learned lower Court. 7. The petitioner is original plaintiff who has been granted interim injunction against the respondent Municipality by allowing application Exhibit 5 by the learned lower Court. As per Mr. Prakash M. Thakkar, learned Sr. 7. The petitioner is original plaintiff who has been granted interim injunction against the respondent Municipality by allowing application Exhibit 5 by the learned lower Court. As per Mr. Prakash M. Thakkar, learned Sr. Advocate, the learned lower Court has assigned good sound reasons at the time of allowing application Exhibit 5 and confirming interim protection granted to the petitioner till the disposal of the suit. Undisputedly, the super-structure is standing on the land. Idea of the respondent Municipality of giving land on lease to the petitioner was to see that some development takes place and keeping that idea in mind, construction was permitted and certain shops have thereafter taken shape. At present, independent persons are occupying the said shops and they are the tax payers of Municipality. Say of the Municipality is that giving of shops constructed is breach of condition and for other reasons also, on all occasions, resolution passed by the respondent Municipality may be either cancelled or were placed under suspension in exercise of power vested in the Collector under Section 258 of Gujarat Municipality Act. Act of the Collector of interfering with the decision of the local self-government would be a matter of scrutiny from various angles before the trial Court and when a party who has been granted lease by the respondent Municipality and has acted in accordance with the resolution passed by the Municipality whether can be ousted summarily or can be asked to take away super-structure or should be forced to leave super-structure on the land in question would be a crucial question and that have to be decided by the learned trial Judge on merit. 8. Forcible summary eviction ignoring available statutory remedy, whether is available to the respondent Municipality as claimed is also a crucial question to be decided. It appears that the appellate Court, while dealing with the appeal preferred under Order 43 Rule 1 of CPC has ignored all these aspects while appreciating the strength of the case of the petitioner. Scope of success in original suit should be the first criteria while evaluating prima facie case. Balance of convenience is in favour of the petitioner and the respondent Municipality is enjoying the fruits of the land leased and also taxes etc. from the shopkeepers. It would not be appropriate for this Court to prima facie agree that the respondent Municipality would be a sufferer. Balance of convenience is in favour of the petitioner and the respondent Municipality is enjoying the fruits of the land leased and also taxes etc. from the shopkeepers. It would not be appropriate for this Court to prima facie agree that the respondent Municipality would be a sufferer. On the contrary, balance of convenience on the point of irreparable loss is in favour of the petitioner and even then, the first appellate Court reversed the finding recorded by the learned lower Court while dealing with the application Exhibit 5. 9. Resistance placed by Mr. Dipak Sanchela, learned Counsel appearing for Respondent No. 1 Municipality is not found favourable to the Municipality. He has tendered affidavit on behalf of the Municipality. Contents of the of the affidavit filed by the Municipality, on the contrary, substantially supports the say of the petitioner if the same is read in reference to context of number of documents referred to by the learned lower Court while dealing with the application Exhibit 5. For short, objections and resistance placed by the learned Counsel for the respondent Municipality as to interim relief are not accepted. 10. The appellate Court, while hearing the appeal under Order 43 Rule 1 of CPC has limited jurisdiction and it appears that jurisdictional error has been committed by the learned appellate Court in reversing the order of the learned lower Court, which otherwise is in accordance with law. This is a case where everything rests on the evidence that may be led during the course of the trial before the learned trial Court. Therefore, according to me this is a fit case where the petitioner requires to be protected till further orders. Hence, the interim relief as prayed is granted till further orders that may be passed by this Court in the present petition. 11. Parties therefore, are directed to see that status quo as on today is maintained. However, it is clarified that it would be obligatory on the part of the petitioner to pay the amount of lease and if the respondent Municipality is not inclined to accept the amount of lease, then, it will be open for them to refuse the said amount. It is further clarified that such refusal shall be treated as acceptance of the amount for technical purposes and the acceptance shall be viewed as acceptance without prejudice to the rights and contentions of respondent-defendant Municipality. It is further clarified that such refusal shall be treated as acceptance of the amount for technical purposes and the acceptance shall be viewed as acceptance without prejudice to the rights and contentions of respondent-defendant Municipality. Direct service permitted.” 6. The Court has also directed the parties to maintain status-quo as on the date and the petitioners were asked not to transfer the land or any part thereof till further orders and that order is still in operation. The interim order passed by this Court is of 16/03/2009 and I am informed that said order of granting interim relief has been challenged by way of preferring intra-court appeal being Letters Patent Appeal No. 347 of 2009 which has been listed before the Division Bench of this Court (Coram: Hon’ble the Chief Justice K.S. Radhakrishnan and Hon’ble Mr. Justice Akil Kureshi) and the Court has passed the following order on 27/04/2009. “Learned Counsel for either side submitted that they will be ready to proceed with the Special Civil Applications for final disposal which are coming up on board tomorrow before the learned Single Judge. In the facts and circumstances of the case, we hope that the learned Single Judge will finally hear and dispose of Special Civil Applications tomorrow itself. Direct Service is permitted.” 7. As the respondent-Radhanpur Municipality was anxious to see that the hearing of the matters takes place, the Court has decided to hear and dispose of these petitions today only. 8. I have heard the learned Advocates appearing for the respective parties. I have also considered the relevant provisions of Section 258 of Gujarat Municipality Act, as pointed out by learned AGP and the present dispute is between the local self government and a private individual claiming right over property either sold to such private individual or given on lease by such authority. 9. That one parcel of land was enjoyed by the petitioner of each petition as lessee and the petitioners are enjoying the same as owner of the land because the same was decided to be sold to the petitioners under a Resolution passed by the respondent-Radhanpur Municipality. Undisputedly, the amount of consideration has been paid, but no formal deed of transfer which can be said to be a registered deed was executed. Undisputedly, the amount of consideration has been paid, but no formal deed of transfer which can be said to be a registered deed was executed. There is no controversy that the petitioners are enjoying possession of the land in question since 1994 and as the petitioners had an apprehension of dispossession and enjoyment of the property purchased / leased to them, had approached this Court by filing a petitions in the year 1995 alongwith other similarly situated aggrieved persons of Radhanpur against Radhanpur Municipality and this Court decided to protect all the six petitioners by granting some interim relief; notices were issued to all the six persons. Undisputedly, till the date of decision in the said petition i.e. 13/12/2007, the petitioners were in peaceful possession and enjoyment of the property. But, when the petitioners found that despite the observations made by this Court while disposing the earlier petitions (six in numbers), the respondent - Municipality is trying to take over the possession of constructed premises owned and occupied by the present petitioners and when the respondent-Municipality decided to initiate action, the petitioners came to know that servants and officers of the Municipality had applied locks on about six shops of petitioners, they approached the Court praying ad-interim mandatory injunction and the Court ultimately granted interim relief, of course, on certain conditions. 10. The say of the petitioners is that entire area; one part enjoyed by him is retained and another as occupier is constructed area and the construction has been carried out after taking necessary permission from the respondent - Municipality and even there is no dispute that at present some persons claiming status of tenant of petitioners are enjoying that part of the premises as the shops established by them. They are carrying on business in the shops given to them by the petitioners. 11. It is the say of Mr. Shah that there is a scope to lead the evidence by the petitioners to show that the marked plots on the petitioner’s area were of different type and character. It will be a matter of controversy during the trial that whether any serious violation of conditions of lease or sale has been made by the petitioners. Shah that there is a scope to lead the evidence by the petitioners to show that the marked plots on the petitioner’s area were of different type and character. It will be a matter of controversy during the trial that whether any serious violation of conditions of lease or sale has been made by the petitioners. That disputed questions of fact have been brought before the Court by the plaintiffs including various legal aspects including the failure of the Collector when he had tried to exercise the power under Section 258 of the Gujarat Municipality Act. 12. I have carefully gone through certain orders passed by the Collector passing certain resolutions of suspension of one order under which the Collector had decided to place the resolution of the Municipality in the category of permanently inequitable order. But the date of this order clearly suggests that the same has been passed when the earlier petition was pending before the Court and the Court was to adjudicate and those six petitioners were claiming their status either as lessee or purchaser of parcel of land sold by Radhanpur Municipality. 13. The orders under challenge, if read, reveal that the learned first appellate Judge has not attempted at all to evaluate the legality and validity of the order of the learned lower Court. How the order passed by the lower Court is perverse or capricious has not been discussed by the learned appellate Judge. Some extraneous consideration, legal as well as factual are found to have been considered by the learned appellate Judge while reversing the finding of the learned lower Court. The Court, prima-facie, is of the view that perhaps at that time the Court may reach to a conclusion that the scheme of Section 34 of the Specific Relief Act or the provision of Section 34 might have been implemented. The logic extended by the learned appellate Judge while reversing the finding of the learned lower Court is also founded on some basis which does not seem to be just and deem relevant legal provision, as the plaintiffs have rushed to Civil Court for certain reliefs keeping their case in very narrow compass. The logic extended by the learned appellate Judge while reversing the finding of the learned lower Court is also founded on some basis which does not seem to be just and deem relevant legal provision, as the plaintiffs have rushed to Civil Court for certain reliefs keeping their case in very narrow compass. If the plaint and the application preferred under Order 39 Rule1 of CPC are read, it appears that the learned appellate Judge ought to have considered whether a person rightly or wrongly put in possession who has put up construction after taking permission from the Radhanpur Municipality, could have been thrown out of possession by applying lock on certain conditions and impliedly treating it as the structure of the municipality. At one place, it is possible even to infer that the Officer of the Municipality had tempted shop keepers that if they permit Municipality to apply lock of Municipality, then they may be given status of tenants of municipality directly on making payment of Rs. 35,000/-. The learned trial Judge has not even thought of the nature of possession that the individual property holder can enjoy. The actual physical possession may be with one, but the constructive possession may be with the landlord or the head of the family or with any other authority. The plaintiff had never taken the stand that he is a person residing in the residential house on the land purchased by him and the structure put up by the petitioner is not of a commercial nature. The plans approved by the Municipality were found approved in the year 2000. The learned appellate Judge ought to have thought whether the parties should be directed to maintain status-quo and the plaintiff can be asked to give the undertaking to the effect that if he looses the battle before trial Court then he shall have to handover the parcel of land given to him under lease on permanent lease period and also for non-payment of rent or lease. In the same way, the plaintiff could have been asked by the Court that as he is using the land for the purpose other than the purpose for which the same was sold to him, the Municipality cannot be compelled to execute the formal deed in his favour and on the contrary by taking a legal action the Municipality can lawfully snatch away the property sold to him on a particular condition. It is very likely that exercise of equitable jurisdiction vested with the Courts after lapse of many years, may permit the petitioner to use the premises as residential one, but the petitioner can be directed not to use the land sold to him for the said purpose. 14. Considering the controversy which remained before the various authorities including the Court and the Collector, some element of political rivalry or other local reasons had kept the litigation alive since year 1995. It is very likely that the plaintiffs may have violated the conditions of lease as well as the conditions imposed on him at the time of selling the small parcel of land, but, ultimately if the plaintiffs are to be driven out of the premises, the premises were to be handed over to the defendant, then the legal procedure obviously shall have to be followed. There is no provision in Gujarat Municipality Act like provision of Section 61 of the Bombay Land Revenue Code. At least a short notice was required to be given to persons who were in actual possession, as they are claiming possession through the present petitioners. 15. Here, it would be beneficial to reproduce the relevant paragraph of the judgment of this Court passed in earlier petitions being Special Civil Application No. 9656 of 1995 & group., decided in the month of December, 2007. “11. The statement, in which the aforesaid details are incorporated, is prepared by one Shri H.A. Ghanchi, Chitnis to Collector, Patan, and the said statement is placed on record after the copy of the same having been supplied to the petitioner/s advocate. The petitioner/s advocate has not disputed the contents of the said statement. Thus, the details mentioned in the said statement are required to be taken as uncontroverted. The petitioner/s advocate has not disputed the contents of the said statement. Thus, the details mentioned in the said statement are required to be taken as uncontroverted. What follows from the said statement is that in all the 7 cases, as of now, the lease periods have expired i.e., in the cases where no renewal was granted, as well as in the cases where renewal was granted. It also follows that in the interregnum, the petitioners have not paid rent, however, since the issue of payment or non-payment of rent is not raised in the petition the Court is not concerned with and is not required to go into the said issue. 12. On the facts summarised above and incorporated in the statement prepared by the office of Respondent No. 1, following facts transpire; (1) The lease period in respect of the cases of all petitioners, where the lease were renewed as well as in the cases where lease were not renewed have come to an end. (2) Thus, even otherwise, the lease right of the petitioners to hold the land have expired. 3) The notices impugned in present petition were issued way back in 1995 at the time when the original-lease were in operation. Upon expiry of the lease period, the notices have lost their purpose and utility and their life came to end. (4). The said notices were issued in light of orders said to have been passed in May, 1995, however the petitioner/s allegations with regard to the said order have remained uncontroverted and that therefore in other circumstances it would become necessary to set aside those notices, though by reserving right to the respondent authorities to serve fresh notices, if necessary in accordance with law and after following due procedure, however, in facts of present cases, such direction, so far as the original lease period is concerned, is not necessary inasmuch as the same has come to an end. 13. So as to avoid any objections or contentions from any side, either on the ground of limitation or otherwise, it is clarified that it will be open for the respondent authority to issue fresh notices to the petitioners after following due procedure and in accordance with law. 13. So as to avoid any objections or contentions from any side, either on the ground of limitation or otherwise, it is clarified that it will be open for the respondent authority to issue fresh notices to the petitioners after following due procedure and in accordance with law. It is another matter that the petitioners’ allegation against the notices have remained uncontroverted and therefore in light of such fact the petitioners may, in different set of facts, e.g., where lease period has not expired, entitled to ask that the notices may be set aside in view of the order of this Court in SCA No. 5989/97 and 5992/97 and allied matters, but since the lease period have expired, it would otherwise also not be appropriate for the respondent authorities to bank upon the said notices and/or to proceed on the basis of the said earlier notices, and it is not necessary to go into the legality of those notices which have become infructuous with passage of time as submitted by respondents’ Advocate and not disputed by petitioners’ Advocate. 14. As the petitions came to be preferred on the basis of the lease deed granted in favour of the petitioners and now that the period of lease have expired, the petitions even otherwise do not survive and the same have become infructuous since the very base has come to an end upon expiry of the lease period.” 16. The Court has raised a pointed query to the learned Advocate for the respondent that if any notice issued by this Court in earlier proceedings whether was ever served to the petitioner and if the answer is in affirmative, he should point out the mark of the document produced during the proceedings before the trial Court. But, the learned Counsel is not able to point out any such single document. But, the learned Counsel is not able to point out any such single document. Of course, the Panchnama is drawn, but it would not be appropriate for this Court to comment on this Panchnama especially when the shop keepers were to be admitted to become tenant at relevant point of time so the evidentiary value of the Panchnama or its contents in presence of parties who were present at relevant point of time, shall have to be considered in the relevant perspective when the pleadings of the parties shall be appreciated by the learned trial Court and the evidence that may be led during the course of trial. Undisputedly, the respondent-Municipality tried to take over the possession of the constructed portion of both parcels of land and has tried to claim that the petitioners were not in possession and some third persons were in possession and those third persons have not approached the Court and therefore the learned Judge ought not to have granted any ad-interim mandatory relief. But, it is clear from the pleadings and the arguments that were advanced before the learned lower Court when the application Exhibit 5 was being argued at length that the plaintiffs are claiming possession of some parcel of property and the constructive possession of some constructed properties which are being enjoyed by the tenant. 17. Of course, the map duly approved by the Chief Officer of Radhanpur Municipality was perhaps not there before the lower Court, but to satisfy this Court the learned Advocate appearing for the parties asked to produce the map and the same was tendered to the Court for perusal by Mr. Shah, which indicates specifically that shopping center was to be constructed; that map was tendered and statutory officer viz., the Chief Officer has approved that map, meaning thereby, in the year 2000 the petitioners were permitted to put up construction as per the design in the map which has been shown to this Court today. 18. The genuineness of the map has not been controverted by the either side. On the contrary, Mr. Patel has tried to argue that the Municipality is supposed to look to the structure. A person may put up any type of construction, the same may not have any facility like kitchen or toilet, etc. 18. The genuineness of the map has not been controverted by the either side. On the contrary, Mr. Patel has tried to argue that the Municipality is supposed to look to the structure. A person may put up any type of construction, the same may not have any facility like kitchen or toilet, etc. So, availability of such a map of the land sold, even if is produced during the course of trial, would not strengthen the case of the petitioner. This argument may have some logic. Ultimately, the learned trial Judge after appreciating the evidence shall have to decide as to whether in such a circumstance a person can be forcibly, in an ex-parte proceedings, thrown out of the property. The construction suggests that there are shops, out of which one is of 3' x 1.5'. A map approved and signed by the Chief Officer can be said to be a document which positively may weigh with the Court even at the time of appreciating the evidence that may be led during the course of trial. 19. The suit before the learned lower Court is nothing but a plaint governing grievances against the local self government which was out to act in highhanded manner and when the learned Judge found that the action taken by the Municipality appears to be highhanded action and the act is also nothing but forcible dispossession of a person without serving notice, the Court decided to grant ad-interim mandatory relief. The case positively fall in the category where the ad-interim mandatory relief was required to be granted. True it is that normally the Court should go very slow in granting ad-interim mandatory relief but on going through fact at least this Court is able to reach to the conclusion that there was no scope for the appellate authority to reverse the finding for different independent reasons and on the material which was not on record of the lower Court. In my view, this is a case of jurisdictional error committed by the appellate authority which deals with the appeal preferred under Order 43 Rule 1 of CPC. The appeal preferred under Section 96 of CPC, is substantially different then the jurisdiction vested with the appellate Court exercising powers under Order 43 Rule 1 and 2 of the CPC. In my view, this is a case of jurisdictional error committed by the appellate authority which deals with the appeal preferred under Order 43 Rule 1 of CPC. The appeal preferred under Section 96 of CPC, is substantially different then the jurisdiction vested with the appellate Court exercising powers under Order 43 Rule 1 and 2 of the CPC. In my view therefore, the learned appellate Court has grossly erred in passing the order under challenge committing jurisdictional error and basing the same on some extraneous evidence. Therefore, the same requires to be quashed and order passed by the trial Court being just, legal and proper based on sound appreciation of evidence, requires to be uphold. 20. In view of the above, the petitions require to be allowed and are hereby allowed. The orders under challenge passed by the learned Presiding Officer, Fast Track Court, Patan dated 17/02/2009 in Civil Misc. Appeal Nos. 23 and 22 of 2008 preferred by the original defendants are hereby quashed and set aside and the order passed by this Court on 16/03/2009 directing the parties to maintain status-quo, so also, directing the petitioners not to transfer, alienate or otherwise create any interest of third party any further is hereby made absolute, till the final disposal of the suit.