IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 18011 of 2011 For Approval and Signature:
HONOURABLE MS JUSTICE SONIA GOKANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to civil judge ?
========================================================= DIPAKBHAI UTTAMBHAI & 1 - Petitioner(s) Versus BEDAMBHAI MAGANBHAI & 24 - Respondent(s) ========================================================= Appearance :
MR NIRAV R MISHRA for Petitioner(s) : 1 - 2. MR ADIL R MIRZA for Respondent(s) : 1, None for Respondent(s) : 2 - 25.
========================================================= :
CORAM HONOURABLE Ms. JUSTICE SONIA GOKANI 7th March 2012 CAV JUDGMENT Being aggrieved by the order granting injunction in favour of the original plaintiff, the respondents herein have preferred this writ petition under Articles 226 & 227 of the Constitution of India challenging the said order dated 11th November 2011 passed by the learned Addl. Sessions Judge, Valsad in Misc.
Civil Appeal No. 21 of 2011.
Regular Civil Suit No. 57 of 2010 is filed by the respondents in respect of the suit land bearing Survey No. 1131 of village Vankal of District Valsad admeasuring 3 Hec. 38 Are 03 sq.m. It is the say of the petitioners that petitioner no.1 [original defendant no.2] is having his residential house and land under his rightful possession being House No. 443, 444 and 444/1 in block/survey no. 1131 admeasuring approximately 00Hec; 07Are; 00 sq.m. It is their say that they are enjoying this right as tenant since last fifty years.
The petitioner no. 2 [original defendant no.1] is one of the original owners of the land whose name is reflected in Village Form 7/12 as well as in Village Form No. 8A. The respondents are the subsequent owners of the property, by bringing the said suit have sought injunction against the present petitioners and thereby prevented them from enjoying the property despite there being ample evidence like Electricity Bill; Municipal Tax receipt, panchnama depicting their residential house and other belongings.
Learned advocate Shri Adil Mirza appears for the Caveator who resisted this petition on the ground that both the Courts below have consecutively denied any relief to the petitioners.
Learned advocate for the petitioners placed reliance on the following decisions :
[1] Jivanbhai Jerambhai Patadia v. Bhavanjee Vinasjee Thakkar, reported in AIR 1995 (Guj) 92;
[2] Metro Marins & Anr. v. Bonus Watch Company Private Limited & Ors., reported in AIR 2005 SC 1444 (1);
[3] Mandali Ranganna & Ors. v. T. Ramachandra & Ors., reported in AIR 2008 SC 2291;
[4] K. Seetharam v. B.U Papamma & Ors., reported in AIR 2001 SC 2182;
[5] Govindbhai Keshvalal Thakker v. Samasta Luhana Gnati Regd. Trust & Ors. reported in AIR 2002 Guj. 86;
On having heard learned advocates for the parties and on examining the record, this petition deserves no entertainment essentially on the ground that supervisory jurisdiction is invoked and nowhere the petitioner could point out any jurisdictional error. He seeks to rely upon the judgment in case of Metro Marins & Anr. [Supra] where the Apex Court held that in a suit for possession, interim order directing handing over possession at that stage would amount to decreeing the suit even before the trial. In case of Mandali Ranganna & Ors. [Supra], the Apex Court reiterated the basic three principles for granting interim injunction and also emphasized on conduct of the parties on the ground that the same is a equitable relief. It also further held therein that a person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. In case of K. Seetharam [Supra], the Court did not find any evidence on record that the defendant had encroached on the suit land, therefore, it did not find the plaintiff entitled for the relief of injunction. In case of Govindbhai Keshavlal Thakker [Supra], when there was no relief of possession sought for against the defendant, the Court held that no relief of injunction can be granted unless there is a valid and lawful order of possession in favour of the plaintiff.
In the instant case, attempt is made to point out from the electricity bill and the property tax bills that the petitioners are in possession of the property for a long time. It is also further pointed out that the petitioner no.2 is named as one of the owners in Village Form 7/12. Certificate of TalaticumMantri is also sought to be relied upon to insist that the petitioner no. 1 continues to occupy the suit land. Photographs of the suit land also are heavily relied upon and it is insisted that the aspect of possession of the suit land is completely neglected by both the Courts below and giving a complete gobye to the settled legal principles, the respondents are protected.
It would be necessary at this stage to reiterate the decision of the Apex Court in case of Jai Singh & Ors. vs. Municipal Corporation of Delhi & Anr., reported in [(2010) 9 SCC 385], wherein the Apex Court while examining the nature and scope of powers vested under Article 227 of the Constitution of India, held that, “the High Court under Article 227 of the Constitution of India, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the wellestablished principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It cannot be exercised like a “bull in a china shop” to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in case where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.”
On examining the orders of both the Courts, it appears that each and every aspect viz., existence of prima facie; balance of convenience and irreparable injury has been properly dealt with by both the Courts. Even if this Court is of the opinion that it can render a different set of reasons, this is not an appellate jurisdiction calling to replace the findings with those of its own.
The trial Court granted injunction not qua the present petitioner no.2 who is one of the joint owners but it is qua petitioner no. 1 who has been prevented from entering illegally in the suit land. Therefore, it would be incorrect to argue that one of the joint owners ie., the petitioner no.2 has been prevented by virtue of this order to enter into the suit land.
Independently examining the entire issue also, it can be seen that the electricity bills which have been produced are also of the year 20022003. However, the meter number is completely different. Learned advocate for the respondent has rightly pointed out that since those meter numbers do not tally, the Courts below were right in not recognizing the possession of the petitioner no.1 from many years; as it is attempted. There are no other documents which would go to suggest any independent right of the respondent which would permit protection at this stage. In short, there is no illegality having been found in the orders of both the Courts, and therefore, the same does not require any interference.
In the result, this writ petition fails and the same stands dismissed with no order as to costs.
{Ms. Sonia Gokani, J.} Prakash*