01. Present Appeal from order has been filed by the appellant-original plaintiff under Order 43 of the Civil Procedure Code being aggrieved with the impugned order passed below notice of motion, Exh.6-7 in Civil Suit No.1918/2011 by the City Civil Court, Ahmedabad dated 23.10.2012 on the grounds stated in the memo of appeal.
02. Heard learned counsel, Shri R.L. Mehta for the appellant.
03. Learned counsel, Shri Mehta has submitted that the Court below has failed to appreciate that as per clause in the agreement, an amount of Rs.50,000/- has been paid and Rs.50,000/- was paid earlier and, therefore, it is a disputed amount, which is required to be considered and decided. He, therefore, submitted that the Court below could not have passed an order for depositing the amount without adjudication.
04. Though the submissions have been made, as could be seen from the impugned order as well as clause in the agreement, which is produced on record, an amount of Rs.1.00 lac was to be deposited and prima facie as it appears from the discussion in the impugned order as well as receipt, 50% amount has been paid on 15.12.2012. Therefore, the Court below has only directed to deposit the outstanding rent while granting injunction in favour of the plaintiff that they may not be dispossessed without following procedure of law.
05. In the opinion of this Court, the order passed by the Court below is just and proper and cannot be said to be erroneous much less perverse, which would call for any interference by this Court in the present Appeal from Order. It is well accepted that the Hon ble Apex Court has laid down the guidelines with regard to the approach while disturbing or interfering with the discretionary order passed by the court/trial court that only when the order is perverse or as it has been passed without considering relevant material or contrary to law, the Court may intervene. Merely because other view is possible or whether the discretion could have been exercised or not is a matter, which has to be decided by the trial court and normally the appellate court would not interfere.
06. The Hon ble Apex Court in a judgment in the case of Julien Educational Trust V/s. Sourendra Kumar Roy and Ors., reported in AIR 2010 SC 1654 has specifically observed that if the discretionary order passed by the trial court is not perverse or is not misdirected in the sense that it has not considered the relevant material, then, merely because a different view is possible by itself is not a ground to interfere with the discretionary order. Further, in such cases, where the issues are required to be considered on the basis of material and evidence at the trial, it is not possible to jump to any conclusion either way.
07. Similarly, a useful reference can also be made to the observations made by this High Court in a judgment reported in the case of Jasoda Indralal Vadhva v. Hemendrabhai Kakulal Vyas & Ors., reported in 2009(4) GLR 3213, where, again, the Division Bench of this Court has considered about reversal of the discretionary order in such an appellate jurisdiction.
08. Therefore having regard to the aforesaid guidelines as observed by the Hon ble Apex Court, the present Appeal from order deserves to be dismissed with Civil Application. Accordingly, Appeal from Order and Civil Application stand dismissed.
09. After the order was dictated, at the request made by learned counsel, Shri R.L. Mehta for the appellant, time to deposit remaining amount is extended by four weeks.
Sd/-
(RAJESH H.SHUKLA, J.) Gautam Page 4 of 4