(Per : HONOURABLE MR.JUSTICE A.J. DESAI)
1. By way of these present appeals under Clause 15 of the Letters Patent, the appellants - original petitioners have challenged the order dated 4.2.2011 passed by the learned Single Judge in Special Civil Applications No.8674 of 2010 to 8677 of 2010 by which the learned Single Judge has dismissed the petitions in which the order dated 30.11.2009 passed by the learned Joint Senior Civil Judge, Vadodara has dismissed the applications for interim relief in Special Civil Suit No.312 of 1998, Special Civil Suits No.313 of 2008 to 315 of 2008 which has been confirmed by the learned Second Additional District Judge, Vadodara by his order dated 10.5.2010 dismissing the Misc. Civil Appeals No.215 of 2009 to 218 of 2009.
2. The brief facts arising in the present appeals are as under.
2.1 That the present appellants - original petitioners filed Special Civil Suits in the Court of learned Civil Judge (Senior Division), Vadodara for a declaration that the conveyance deed entered into between the plaintiffs and defendants which has been registered on 19.5.2008 with Sub-Registrar shall be declared as illegal and not binding to the plaintiffs. It was also prayed that by way of passing a decree, the defendants shall be permanently restrained from transferring the disputed property in favour of third person by way of sale, assign etc., and restrained them from disturbing the possession of the plaintiff.
2.2 During the pendency of the suit, the appellants - original plaintiffs filed an application under Order 39 Rule 1 and 2 and Section 151 of the Code of Civil Procedure, and prayed that, during pendency and hearing of the suits, the respondents - defendants shall be restrained from transferring or alienating the disputed property to any other person. The learned Senior Civil Judge, Vadodara by his order dated 30.11.2009 dismissed the said application which was challenged by the appellants by way of filing Misc. Civil Appeals No.215 of 2009 along with other appeals. The learned Second Additional District Judge, Vadodara by his order dated 10.5.2010 dismissed the said appeals and confirmed the order passed by the learned Senior Civil Judge, Vadodara. The appellants, being aggrieved and dissatisfied with these orders and judgments passed by learned Senior Civil Judge, Vadodara as well as by learned Second Additional District Judge, Vadodara, approached this Court by way of captioned writ petitions. The learned Single Judge, after appreciating the facts on record, and considering prima facie case and balance of convenience etc., dismissed the writ petitions. The appellants, being aggrieved and dissatisfied with all these three judgments and orders have challenged by way of present appeals.
3. Heard learned counsel Mr.Harshil Natani for learned counsel Mr.S.P.Majmudar for the appellants and learned counsel Mr.G.D.Bhatt for the respondents.
4. While dealing with the petitions, the learned Single Judge has exercised his powers under Article 227 of the Constitution of India, which are of a supervisory in nature. The learned Single Judge, while exercising powers under Article 227 of the Constitution, has appreciated the factual aspect of the matter while dealing with the order passed by learned Senior Civil Judge, Vadodara in interim application as well as the judgment passed by learned Second Additional District Judge, Vadodara. The Division Bench of this Court in Gustadji Dhanjisha Buhariwala and another v. Nevil Bamansha Buhariwala and others, 2011 (2) GLH 147, in paragraphs 39 and 43 has held as under :-
"39.
To our mind, the test which is required to be applied while determining whether an order made by the learned Single Judge is appealable to a Division Bench under Clause 15 of the Letters Patent is not whether the party has invoked Article 226 or 227 or whether the one Article confers such jurisdiction while the other Article does not do so.
But the real test is whether what the learned Single Judge has done is to revise the judicial order. If the order which was challenged before him was a judicial order and if he examined that order and recorded his decision he did nothing else except to revise it. Further, the test whether a particular order is a judicial order or not lies in determining whether the Court below has decided the lis between the contesting parties and adjudicated upon their rights.
43. We may also lay down one more test in determining whether the High Court has exercised the supervisory jurisdiction or otherwise. Where a petition is filed both under Article 226 and 227 of the Constitution it will have to be considered whether the point raised in the petition arose for adjudication for the first time before the High Court. If the challenge in the petition is with respect to the point already adjudicated upon by the subordinate court, then, it will have to be held that the supervisory jurisdiction of the High Court was invoked and not the original. In the instant case, the appellants-petitioners filed petition under Article 226 and 227 of the Constitution challenging the order of the district court passed in appeal as erroneous and contrary to law, then the petitioner can be said to be invoking the supervisory jurisdiction of the High Court and not the original jurisdiction. Therefore, the appeal against the decision therein would not be maintainable as they are not directed against the impugned order passed by the learned Single Judge in exercise of the original jurisdiction of the High Court."
5. In view of the decision in the case of Gustadji Dhanjisha Buhariwala and another (supra), the present appeals are not maintainable and, therefore, the same are summarily dismissed with no order as to costs.
6. Consequently, Civil Applications No.4031 of 2011 to 4034 of 2011 stands also dismissed with no order as to costs.
(V.M.
SAHAI, J.) (A.J.DESAI, J.) syed/ Top