IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13523 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
4 as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================= USMANMIYAN MAHEMUDMIYAN SUMARA - Petitioner(s) Versus KHERUBIBI WD/O MOHAMMED-AYAZ ANUMIYAN SUMARA & 9 -
Respondent(s) ================================================= Appearance :
MR AM PAREKH for Petitioner(s) : 1, MR ASHISH M DAGLI for Respondent(s) : 1 - 10.
================================================= CORAM : HONOURABLE MS JUSTICE SONIA GOKANI Date : 31/07/2012 CAV JUDGMENT
1. This petition is preferred under Articles 226 and 227 of the Constitution of India by the petitioner defendant challenging the legality and validity of the order passed by the learned Principal Civil Judge, Prantij in Regular Civil Suit No.6 of 2011 dated 24.1.2011, which was also confirmed by learned Additional District Judge, Himmatnagar in Appeal from Order No.6 of 2011 vide order dated 6.8.2011.
2. To briefly state the facts, Regular Civil Suit No.6 of 2011 is filed for declaration and permanent injunction to restrain the present petitioner (original defendant) from disturbing and obstructing use of road situated in Survey No.976/1 of taluka:Prantij, which is in the ownership of defendant respondent. Respondents Plaintiffs have chosen such an injunction for going to their land bearing Survey No.977/2 and 975/4 with their tractor, bullock cart and other equipments of agricultural work.
3. This suit is preferred seeking the right by way of easement of necessity and/or by prescription. The interim order was passed on 19.6.2007 directing the present petitioner to open the road and not to create any hindrance. Such direction was given by the Mamlatdar under the Provisions of Mamlatdar Courts Act in Case No.3 of 2007. Such order was challenged in revision before the Deputy Collector, Ahmedabad in Case No.2 of 2007 under the Mamlatdar Courts Act.
4. It is the case of the respondents plaintiffs that the purshis was submitted on 17.7.2007 inter alia reflecting the compromise arrived at by and between the parties in respect of the said road. Such purshis was also a part of the record of the Mamlatdars Court Act in Case No.3 of 2007. However, Deputy Collector in Revision had quashed and set aside the order of Mamlatdar and, therefore, they approached the Civil Court for adjudication of their rights.
5. The Court allowed the application for injunction on the ground that there was no other road for approaching the land of the respondents.
6. It is the case of the respondents (original defendant) that the signature on the compromise was obtained by the petitioner fraudulently and on misrepresentation. Therefore, no reliance can be placed on such material. However, Court, after bipartite hearing, granted interim relief, which was confirmed by the appellate forum and the same is challenged on various grounds raised in this petition.
7. Heard learned advocates for the parties, who have, for the respective stands, fervently made submissions. The short question, in the aforementioned facts and circumstances, would arise as to whether there is any requirement to interfere with the order impugned exercising the jurisdiction under Article 227 of the Constitution of India.
8. Ordinarily, such jurisdiction is to be exercised very sparingly and unless there is outright illegality affecting serious rights of the parties, the same should not be entertained. It appears that the compromise that have been arrived at was reduced in writing and produced before the Mamlatdars' Court and before the Deputy Collector in revision. The compromise purshis weighed with both the Courts in allowing the application for injunction directing the present petitioner to continue to keep the open land in question.
9. The Court noted that not only both the parties have signed the said purshish, but the learned advocates for the parties have also signed the same. Therefore, at a prima facie stage, the allegation of fraud and misrepresentation have not been accepted. Reading the contents of the said compromise purshis, both the Courts were of the opinion that at the stage of interim relief, right of the present respondents of thoroughfare from the land of the petitioners requires to be protected.
10. Independently examining the compromise purshis as also the interpretation made by both the Court below, it appears to be absolutely correct at this stage. The Court is not to look into as to whether this is only an alternative way available for the respondents original plaintiffs, entitling them to enjoy the thoroughfare from the land of the petitioner defendant, but, to interpret the compromise purshis, the recitals of which are apparently clear whereby it can be said that both the parties had desired to compromise and allow the respondents to enjoy the right of way from the land of the present petitioner. Neither the trial Court nor the appellate Court committed any error which allows any illegality for this Court to intervene at this stage.
In the aforementioned discussion, petition stands dismissed.
(Ms.Sonia Gokani, J.) sudhir