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2023 DIGILAW 551 (GUJ)

Rupinbhai Bharatbhai Divecha v. Legal Heirs Of Decd. Chandulal Gaurishankar Thakar

2023-04-03

SANDEEP N.BHATT

body2023
ORDER : 1. The present petition is filed by being aggrieved and dissatisfied with the impugned order dated 11.11.2020 passed below Ex.18 in Regular Civil Suit No.411 of 2019, by which the trial Court has partly allowed the application filed by the respondent Nos.1.1 and 2.1, by directing the parties to maintain status quo. 2.1 Brief facts of the case are as such that the petitioner and other had instituted Regular Civil Suit No.411 of 2019 before learned Principal Senior Civil Judge, Una, for declaration to the effect that the part of the suit property, which is in dilapidated condition, may be permitted to be pulled down by the plaintiffs and that the defendants may be injuncted from causing any disturbance for the same. On 07.10.2019, the learned Judge has granted the application below Exh.5 moved in Regular Civil Suit No.411 of 2019 and directed that if the petitioner wants to pull down the construction, the defendants shall not cause any obstruction for the same. 2.2 It is further the case of the petition in the present petition that the respondent Nos.1.1 and 2.1 filed an application below Exh.18 under Section 151 of the Code of Civil Procedure, 1908, inter alia, stating that the aforesaid order passed below Exh.5 may be stayed recalled and it may be declared that the said order will not be applicable to them and aforesaid two persons are third parties applicants and they have also gave an application below Exh.21 for being joined as parties in Regular Civil Suit No.411 of 2019 under Order I Rule 10 of the Code of Civil Procedure, 1908. Thereafter, the learned Additional Senior Civil Judge, Una, by order dated 08.09.2020 has partly allowed the aforesaid application below Exh.18 moved Regular Civil Suit No.411 of 2019 and directed that the status-quo be maintained with regard to the suit property in question and no demolition be done. Impugned order is purportedly passed under section 151 of the Code of Civil Procedure, 1908. Impugned order is passed on the application below Exh.18 moved by the third parties, who are not yet joined as parties in R.C.S. No.411 of 2019. Thereafter, the petitioner filed an application below Exh.24 to vacate the impugned order and also filed reply below Exh.18 and 21 applications. Thereafter, learned Judge, Una by the order dated 16.09.2020 has rejected the application below Exh.24 filed by the petitioner. Thereafter, the petitioner filed an application below Exh.24 to vacate the impugned order and also filed reply below Exh.18 and 21 applications. Thereafter, learned Judge, Una by the order dated 16.09.2020 has rejected the application below Exh.24 filed by the petitioner. 2.3 Thereafter, being aggrieved by the aforesaid orders below Exh.18 and 24, the petitioner has preferred Special Civil Application No.13243 of 2020, which came to be partly allowed by this Court vide order dated 02.11.2020, whereby this Court remanded the matter back to learned trial Court to decide application below Exh.18 as well as the joining party application of the third party, which was filed below Exh.21. Thereafter, the learned trial Court vide order dated 11.11.2020 has allowed the application below Exh.21 and has joined the third parties as parties in Regular Civil Suit No.411 of 2019. Thereafter, the learned trial Judge by separate order of the same date i.e. 11.11.2020 allowed application below Exh.18 moved in Regular Civil Suit No.411 of 2019 and has granted status-quo in the matter. 2.4 Hence, the present petition is filed. 3. Heard learned advocate Mr. S.P. Majmudar with Mr. H.J. Karathiya, learned advocate for the petitioner and learned senior advocate Mr. Mehul S. Shah with Mr. Vishal C. Mehta, learned advocate for the respondent Nos.1, 1.1, 2 and 2.1. 4.1 Learned advocate Mr. S.P. Majmudar for the petitioner has submitted that the trial Court has erred in passing the order below exhibit 18 by directing the parties to maintain status quo even though the simultaneously the application which is moved at exhibit 21 under the provisions of Order I Rule 10 of the Civil Procedure Code, 1908 is also moved by third parties and in this factual background, the order passed by the learned trial Court is unwarranted. 4.2 He has further submitted that in the earlier round of litigation, the petitioner has challenged the order passed by the trial Court in the similar set of circumstances wherein initially the order of injection was granted in favour of the present petitioner, which was subsequently modified by granting the order of status quo, which was challenged before this Court by way of Special Civil Application No.13243 of 2020, where by Coordinate Bench of this Court by order dated 02.11.2020 has quashed and set aside the earlier order passed by the trial Court below exhibit 18 application and has directed the trial Court to hear the same afresh and in accordance with law, and thereafter, the petition is disposed of with further direction, and accordingly, the trial Court has heard the application afresh but has passed the almost identical order, which is impugned in earlier round of litigation, and therefore, he has submitted that the trial Court has committed gross error. 4.3 He has further submitted that the trial Court has not properly appreciated the fact that though in the same suit, the trial Court has allowed the application below exhibit 5, and therefore, such order passed under exhibit 18 application, which is passed under the provisions of section 151 of the Civil Procedure Code 1908, is not maintainable. He has further submitted that the trial Court has not considered the factual aspect properly as neither the third parties nor the tenants of the land in question are occupying the same suit property in question. He has further submitted that the third parties have not paid any rent to the petitioner and/or predecessor of the petitioner, and therefore, they cannot claim any right over the suit property. He has lastly argued that factors of balance of convenience are also in favour of petitioner and irreparable loss are also in fovour of the petitioner, and therefore also, the impugned order passed by the trial Court is apparently erroneous and illegal and is required to be quashed and set aside by excising the powers under Article 226 of the Constitution of India. 5.1 Per contra, Mr. 5.1 Per contra, Mr. Mehul S. Shah, learned senior advocate appearing for the respondent Nos.1, 1.1, 2 and 2.1 has strongly objected the said request made at the bar by the learned advocate for the petitioner and has submitted that in pursuant to the earlier direction issued by the Court by order dated 02.11.2020, the trial Court has heard the application afresh and has decided the application afresh at exhibit 80 by considering the rival submissions made at the bar. 5.2 He has further submitted that in view of various judgments cited at the bar by the present respondents, which is referred in the impugned order and considering the fact that the parties, who are in possession of the suit premises, are required to be protected as the petitioners, who are landlord of the premises, are trying to demolish the premises under the guise that the premises is in dilapidated condition and not only that the police inspector of the concerned police station has also threatened the contesting parties in the present petition to vacate the premises, and therefore, the trial Court has rightly considered the same by examining the documents, which is produced on the record at mark 4/1 which is sale deed and para 11 of the sale deed clearly indicates that the suit shop is given on rent to the Chandulal Gaurishankar Thakar and one shop of is given to Jamnadas Harilal Gandhi on rent. The document, which is produced at mark 19/7, also indicates about the two shops with tenancy rights, and therefore, since the plaintiffs have not produced any conclusive evidence by which the plaintiffs can established that the tenancy right of the contesting parties in the present proceedings are getting over as the original tenants have expired, who happen to be elders of the contesting respondents. 5.3 He has further submitted that the judgment cited at the bar before the trial Court are squarely applicable to the facts of this case and the trial Court can exercise the powers under Article 151 of the C.P.C. in such facts and circumstances and the rights of the tenants cannot be defeated by taking undue advantage of the process of law, and therefore, he has submitted that the present petition deserves to be dismissed as no ground is made out under Article 227 of the Constitution of India in view of the judgment of the Apex Court in the case of Garment Craft Vs Prakash Chand Goel reported in (2022) 4 SCC 181 , whereby the Apex Court has said that supervisory jurisdiction of High Court when to be exercised, more particularly, paragraph 15 to 17, which are relevant. 6.1 I have considered the rival submissions made at the bar. It transpires that initially the trial Court has granted injunction by allowing exhibit 5 application, and thereafter, exhibit 18 application is filed by the contesting respondents before the trial Court, whereby the trial Court has ordered that status quo to be maintained by all the parties by modifying the earlier order of injunction, which was challenged by way of Special Civil Application No.13243 of 2020 and the same was disposed of by order dated 02.11.2022 by remanding back the matter for fresh consideration below exhibit 18 application, whereby in para 3, the Court has observed that till the matter is decided, learned advocate for petitioner has shown willingness to maintain status quo regarding the suit property and accordingly, the trial Court has heard exhibit 18 application afresh and after considering the rival submissions, the trial Court has rightly come to the conclusion by considering the document, more particularly, the document i.e. sale dead produced at mark 4/1, whereby para 11 clearly specifies the names of the elders of the present contesting respondents viz., Chandulal Gaurishankar Thakar and Jamnadas Harilal Gandhi by sowing them as tenants of the respective shops. 6.2 Further, by document produced at mark 19/7, which is registered sale deed in favour of in favour of the predecessor in title of the present respondents, it is transpires that the tenancy right of two tenants are specifically indicated in that document and both the tenants are found 25 years old by the trial Court. 6.2 Further, by document produced at mark 19/7, which is registered sale deed in favour of in favour of the predecessor in title of the present respondents, it is transpires that the tenancy right of two tenants are specifically indicated in that document and both the tenants are found 25 years old by the trial Court. Further, considering the fact that the application at mark 19/13, which is produced on record by the present contesting respondents before the Police Station, Una, it also indicts that there is serious apprehension about the demolition of the suit shop by the plaintiffs, and therefore, the trial Court has rightly protected the interest of the parties by passing the order of maintaining status quo of the suit property until the suit in question is decided on its own merit. 6.3 This Court finds that there is no illegal or irregularity committed by the trial Court, more particularly, the judgments, which are discussed in the impugned order by the trial Court and cited by the applicant of that application at exhibit 18, are helpful to the case of the present respondents, and therefore, no illegality or irregularity is committed by the trial Court in passing the order below exhibit 18, and therefore, in view of the judgment of the Apex Court in the case of Garment Craft V/s Prakash Chand Goel reported in (2022) 4 SCC 181 , whereby the Apex Court has said that supervisory jurisdiction of High Court when to be exercised, more particularly, paragraph 15 to 17 which read as under: “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when 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 that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:- "6. 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. 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." 17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution.” 6.4 This Court finds no reason to interfere in the impugned order passed by the trial Court by excising my jurisdiction under Article 227 of the Constitution of India, which is found otherwise just and proper. 7. In view of the aforesaid, the present petition is dismissed.