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2025 DIGILAW 713 (HP)

Nand Lal v. Hukmiya

2025-04-09

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. The present petitioner is the plaintiff before the learned trial Court. The suit, in the case at hand, was filed by the present petitioner on 13.09.2022. In the suit so filed, an application under Order 39 Rule 1 and 2 CPC had been filed by the present petitioner seeking an ad interim injunction restraining the respondents from alienating, creating charge, changing the nature and dispossessing the petitioner from the suit land. 2. In the application so filed, it was categorically averred that the suit property is ancestral in nature. Hence, by virtue of a registered Will bearing No.64 dated 03.07.1984, deceased Narotam could not have executed the same in favour of respondent No.1. 3. Per contra, in the response filed, it was categorically denied that the suit property is ancestral coparcenary property. It had been contested by the respondents that the suit landstood partitioned through the concerned competent revenue Court and therefore, there is no question of the alleged suit land being joint. Instrument of partition had been prepared on 21.05.2022 and the same had been given effect to. It was categorically averred that the share of deceased Narotam had been inherited by respondent No.1 on the basis of last genuine registered Will bearing No.64 dated 03.07.1984. 4. In the aforesaid facts and attending circumstances, the trial Court was of the view that the averments qua the suit land being ancestral, joint and the fact that the share of deceased Narotam had been inherited by respondent No.1 on the basis of a Registered Will, were all required to be provided by leading evidence. In view thereof, the trial Court by an interim injunction dated 28.10.2022 restrained the respondents from alienating, creating any charge over the suit land and changing the nature of the suit land by dispossessing the petitioner. 5. On appeal, the interim order so passed by the trial Court was vacated. The First Appellate Court, in terms of Section 41(a) of the Specific Relief Act, was of the view that by virtue of the interim order passed, the present respondents had been restrained from prosecuting the partition proceedings pending before the Revenue Court and taking it to its logical conclusion. 6. The First Appellate Court, in terms of Section 41(a) of the Specific Relief Act, was of the view that by virtue of the interim order passed, the present respondents had been restrained from prosecuting the partition proceedings pending before the Revenue Court and taking it to its logical conclusion. 6. Other than the aforesaid, prima face it was of the view that the property inherited by deceased Narotam from his parental ancestors was his absolute property and not ancestral as regard other relations. Besides the aforesaid, the First Appellate Court was of the view that insofar as Registered Will dated 03.07.1984 is concerned, it is deemed date of knowledge, is the date of its registration. Other than the aforesaid, Narotam died in the year 1997. Inheritance never remains in abeyance, therefore, filing of the suit after 25 years of the death of deceased Narotam, as per the First Appellate Court also disentitled the present petitioner from claiming an interim injunction. In the aforesaid circumstance, interim order passed by the trial Court was vacated. 7. The first appeal filed, in the case at hand, is an appeal on principle, against the exercise of discretion exercised by the trial Court. From a perusal of the same, it is evident that interference in the order passed by the trial Court by the First Appellate Court is based on well settled principles of law regulating grant or refusal of interim injunctions and the fact that the trial Court in passing the order had ignored relevant provisions of law. In this respect, reference can be made to judgment reported in 1990 (Supp) SCC 727 titled Wander Ltd. & Anr. Vs. Antox India Pvt. Ltd., decided on 26.04.1990, the relevant extract is reproduced as under:- “…...14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. 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 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 reasses the material and seek to reach a conclusion different from the one reasonably possible on the material. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reasses the material and seek to reach a conclusion different from the one reasonably possible on the material. The appellate Court would normally not with justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter 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. After referring to these principles Gajendragadker, J. in Printers (Mysore) Private Ltd. Vs. Pothan Joseph. (SCR 721). ….These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton ‘…. the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.” 8. The present petition has been preferred under Article 227 of the Constitution of India. The scope of jurisdiction of High Court under Article 227 of the Constitution has been expounded by the Hon'ble Supreme Court as under: (i) In Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003) 3 SCC 524 , it has been held as under:- “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.” (iii) In Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181 , it has been held 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 conclusion, for its own that of decision the on facts inferior court and or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 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.” 9. Thus, from the above stated exposition of law, it is clear that this Court has a restricted and limited jurisdiction to interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India, except to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. On the other hand in the supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. 11. In the case at hand, for the reasons stated herein above, I am of the considered view that no ground is made out in the present petition for invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 12. In view of above terms, I find no merit in the present petition and the same is dismissed accordingly. Pending miscellaneous application(s), if any, shall also stand disposed of.