Gujarat High Court
Bhaveshbhai Shah S/O. Deceased ... vs Art Nirman Limited on 6 May, 2024
NEUTRAL CITATION
C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 23800 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
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 ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
BHAVESHBHAI SHAH S/O. DECEASED MANUBHAI SHAH & ANR.
Versus
ART NIRMAN LIMITED & ANR.
==========================================================
Appearance:
MR MEHUL S SHAH, SENIOR ADVOCATE WITH MS KHUSHBU P
VYAS(7040) for the Petitioner(s) No. 1,2
MR DHAVAL DAVE, SENIOR ADVOCATE WITH MR MRUGEN K
PUROHIT(1224) for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 06/05/2024
ORAL JUDGMENT
1. This petition is filed by the petitioners-original plaintiffs with the following prayers: Page 1 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024
NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined "(a) Your Lordships may be pleased to quash and set aside the Orders dated 02.11.2022 passed by the Learned Chamber Judge, City Civil Court, Ahmedabad below Exh.22 & 24 in Civil Suit No.1499/2022 and grant the status quo as prayed for Application filed vide Exh-18 and 22 till hearing and disposal of the suit;
(b) Your Lordships may be pleased to pass an order directing restoration of status quo ante against the Respondents;
(c) Pending final hearing and disposal of the present Petition, Your Lordships may be pleased to restrain the Respondents, their persons, servants, agents, or anybody claiming through the Respondents from doing any kind of activity of demolition, constructions, destruction, digging the land or otherwise of any nature creating any third party rights in the subject premises:
(d) Ad interim ex-parte reliefs in terms of Prayers above be granted;
(e) Your Lordships may be pleased to award the cost of the present Petition;
(f) xxxx"
2. The brief facts leading to filing of this petition, as stated in the petition, are such that the petitioners filed Civil Suit No.1499 of 2022 on 24.10.2022 for permanent injunction, declaration, direction and damages with regard to Page 2 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined the flat nos.B-3, I-2 and I-6 of New Ashiyana Flats, Bhimjipura, Navavadaj, Ahmedabad stating that as originally, the New Ashiyana Flats is the cooperative housing society and as the present petitioners-plaintiffs are/were also the members of the said society, they have equal undivided share in the land on which the said society is/was situated and therefore, the land appurtenant to the said flats also form part of the suit properties; that the urgent notice/summons were issued to the defendants on 24.10.2022 making it returnable on 2.11.2022; that the application for appointment of Court Commissioner was allowed on 24.10.2022; that the summons/notice were duly served on the defendants on 28.10.2022, however, due to non-cooperation of the defendants, the court commission could be done from outside the premises only; that the defendants started to demolish the Block B & I on 29.10.2022; that the the defendants were demolishing the flats and therefore the plaintiffs gave application on 31.10.2022 to prepone the matter and the matter was preponed by the learned In-charge chamber Judge from 2.11.2022 to 1.11.2022; on 1.11.2022, the mother of the original plaintiff no.1 expired; that the plaintiffs filed application dated 31.10.2022 on 1.11.2022 to maintais status- quo vide Exh.18; that the original defendants appeared through advocate and instead of filing reply to the application Exh.18, gave application under Order 7 Rule 11 of CPC; Page 3 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024
NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined the said application under order 7 Rule 11 of CPC was rejected on 7.11.2022; during the arguments of application under Order 7 Rule 11 of CPC, the learned court asked to explore the possibility of settlement, if any and revert back on 2.11.2022 by 11 A.M. and till then, the Court was pleased to grant status-quo vide order passed below Exh.18; the learned advocate for the plaintiffs tendered application Exh.22 to extend/continue the order of status-quo; however, the said application was rejected vide order dated 2.11.2022; the plaintiffs gave application at Exh.24 to stay the said order, however, the said application was also rejected vide order dated 2.11.2022. Hence, this petition is filed.
3. Heard learned advocates for the parties. 3.1 Learned senior advocate Mr.Mehul S Shah for learned advocate Ms.Khushbu Vyas for the petitioners has submitted that during the hearing of the application under Order 7 Rule 11 of CPC, the learned court asked to explore the possibilities of settlement, if any and revert back on 2.11.2022 by 11 A.M. and status quo was granted vide order below Exh.18 till then; that the sense with regard to settlement was taken and conveyed to the Court orally that if the original defendants provide copy of sanctioned plan and written proposal, the original plaintiffs may be positive in Page 4 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined considering the proposal; however, the learned Court was not convinced and asked to argue the application under Order 7 Rule 11 of CPC; that even during the arguments of the application under Order 7 Rule 11 of CPC, the demolition of the flats continued; that the learned Court has not extended the order of status-quo stating that the status-quo was only upto 11AM and that too on the ground of chances of settlement; that though the request was made to hear the application for extension of the status-quo order looking to the high handed conduct of the original defendants and on much request, the learned Court started dictating the order on application at Exh.22, even during that time, the original defendants' persons continued demolishing the flats of the original plaintiffs; that the learned advocate for the original plaintiffs requested the learned Court to orally restrain them from demolishing the flats till the order is passed and therefore, the learned Judge orally directed the learned advocate for the original defendants to inform his client to immediately stop the demolition work till the order is passed; that inspite of the said oral direction, the defendants did not stop the work and therefore, on again requesting and the learned Court directing the defendants to stop the demolition work, the demolition work was stopped till the time the order was passed below Exh.22 at 12.45 p.m.; that inspite of having full knowledge of the conduct of the original Page 5 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined defendants to over-reaching the process of law and abusing the process of law and acting in high handed manner, learned trial Judge was pleased to reject the application at Exhs.22 and 24; that in between 2.11.2022 and 7.11.2022, the day on which the application under Order 7 Rule 11 of CPC was passed, the original defendants, through their persons already demolished the flats of the original plaintiffs by taking law in hand and without any authority and overreaching the process of the court, and therefore the petitioners-original plaintiffs filed this petition. 3.2 Learned senior advocate Mr.Shah for the petitioners submitted that the conduct of the original defendants was very well in the knowledge of the court, even then, the impugned orders rejecting the applications is passed; that the original defendants filed reply-cum-written statement on 15.11.2022 along with list of documents and also filed an application under Section 8 of the Arbitration and Conciliation Act in the suit, which is nothing but delaying the process of the civil suit; that the learned Judge has, without holding trial, came to the conclusion that the then existing construction was in a dilapidated condition which was not fit state for the purpose of residence of any person; that the learned Judge erroneously concluded that the document no.4/8 is a `redevelopment' permission granted by Page 6 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined the corporation, more particularly, when the Rajachitti dated 23.6.2022 is challenged before this Court in Special Civil Application No.16579 of 2022; that the learned Judge has erroneously observed that the learned advocate for the plaintiffs did not satisfy the three conditions for exercise of discretion for grant of injunction i.e. prima facie case, balance of convenience or irreparable loss; when the CCTV footage and live whatsapp video call is shown, what more is required and the defendants were demolishing the flats even during the ongoing arguments; that on the sole ground of overreaching the process of court and abuse of process of law, the status-quo ought to have been granted/extended by the learned trial Judge; that the learned Judge has erroneously observed that there was `redevelopment' in spite of the fact that the AMC has categorically observed in its order dated 8.7.2021 that the dispute is between the parties pertains to `sale of the property' which was not within its jurisdiction to decide; that whether the `ourright sale' transaction between the society's members and respondents is covered within the purview of `redevelopment' or not is yet to be decided in the pending litigations before this Court; that the defendants failed to show any document issued by the competent authority which permitted them to demolish the flats of the original plaintiffs; that the balance of convenience, prima facie case was in favour of the plaintiffs and irreparable loss Page 7 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined would be caused to the original plaintiffs, even then, the learned trial Court passed the impugned orders herein, which are required to be quashed and set aside by allowing this petition.
3.3 Learned senior advocate Mr.Shah for the petitioners submitted that on one hand the respondents sought prayers of demolition and eviction on the ground of so called `redevelopment' before this Court in SCA No.17291 of 2021 and on the other hand, on their own, demolished the flats of the plaintiffs by taking law in their hands; that there is no resolution of `redevelopment' amongst the members of the society with the respondents, rather the dispute pertains to `outright' sale and therefore the criteria of 75%-25% as provided u/s 41A of the Gujarat Ownership Flats Act would not apply to the present case; that there is a clear device and designs to displace the petitioners of their possession and title of the suit properties without any authority of law; that even in the affidavit-in-reply filed by the AMC in SCA No.17291 of 2021, it clearly indicates that even AMC has not given any direction for demolition, rather it categorically stated that the ultimate result of such direction would amount to infringement of civil rights of private individuals; that the respondents acted in a high handed manner so as to throw away the petitioners in all Page 8 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined possible manners, unauthorizedly entered into the flats owned by petitioners, not allowed the petitioners and court commissioner to conduct court commissioning, demolished the flats without any authority/permission from court and/or competent authority.
3.4 Learned senior advocate Mr.Shah has, therefore, prayed to allow this petition.
3.5 In support of his submissions, learned senior advocate Mr.Shah has relied on the following citations:
1. Sujal Leasing and Finance Limited V/s Pathal Ganga Tube Well reported in 1998(2) GLH (UJ) 1, paragraph 5.
2. Bhupatlal Govindji V/s Bhanumati Dayalal reported in (1983) 24(2) GLR 1137, paragraphs 8 to 10.
3. Savjibhai Korat Trust through Trustee Jasumatiben Savjibhai Korat passed in SCA No.15508 of 2013, paragraphs 18 to 25.
4. Salim Ahmed Mathada V/s Aminabai Hussein Bela reported in 1995(2) GLH (UJ) 22
5. Bhanubhai Mohanlal Bhatt and Another V/s M/s Vinayak Developers, Bhuj through its partners reported in 1996(1) GLH(UJ) 28
6. Dhariwal Tobaco Products Lts. And Ors. V/s State of Page 9 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined Maharashtra and Ors. reported in AIR 2009 SC 1032, paragraph 14.
7. V.O.John v/s Catholic Syrian Bank Ltd. And Ors., reported in ILR 2009(1) Kerala 596
8. State of Gujarat V/s Mangubhai Kikabhai Halpati through heirs and legal representatives reported in 1999(3) GLR 2732, paragraphs 8 to 10.
9. Sarojben Kiritbhai Shah since deceased through heirs V/s Ahmedabad Municipal Corporation passed in LPA No.1075 of 2022, paragraph 52.
10. Municipal Corporation of Delhi V/s R.P.Khaitan reported in 1990(0) AIJEL-SC 18435, paragraph 4.
11. AIR 1987 Gauhati-16, paragraphs 9 to 12.
4. Per contra, learned senior advocate Mr.Dhaval Dave for learned advocate Mr.Mrugen Purohit for the respondents-defendants has submitted that this petition itself is not maintainable before this Court. He submitted that the application for granting status-quo is under Order 39 Rule 1 against which order, the appeal from order under Order 43 Rule 1(r) is required to be filed and not petition under Article 227 of the Constitution of India. He, therefore, submitted that this petition itself is not maintainable before this Court.
Page 10 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024
NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined 4.1 Learned senior advocate Mr.Dave for the respondents has further submitted that even if the present petition is to be entertained, then also the learned trial court has refused to extend the order of status-quo which was granted for only one day, that too, not on merits but solely for exploring the possibility of settlement and that no prima facie case or balance of convenience is found in favour the petitioners; that when all the members of the society barring these two petitioners have consented for redevelopment of the society, the two petitioners cannot be permitted to create a stumbling block in the process of redevelopment particularly, when they are not staying in the concerned flats; that the question of overreaching the process of law would arise if some act is done by a party pending adjudication of an application for interim relief so as to frustrate the prayer sought for therein; that the present act complained of against the respondents was done by the respondents only upon rejection of the concerned applications for interim protection moved by the petitioners vide the impugned orders and not prior thereto. He, therefore, submitted to dismiss this petition.
4.2 In support of his submissions, learned senior advocate Mr.Dave has relied on the following citations:
1. Patel Jasmat Sangaji V/s The Gujarat Electricity Board Page 11 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined and Others reported in 1982 GLH 463.
2. Sandesh Limited V/s Transmedia Software Limited reported in (2016)1 GLR 574.
3. Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others V/s Tuticorin Educational Society and Others reported in (2019)9 SCC 538, paragraphs 12 and 13.
4. Mohamed Ali V/s V.Jaya and others reported in (2022)10 SCC 477, paragraphs 17, 18 and 19.
4.3 In rejoinder, as against the submission of maintainability of this petition, learned senior advocate Mr.Shah for the petitioners has submitted that the impugned orders cannot be said to have been passed under Order 39 Rule 1 & 2 of CPC, rather the impugned orders can be said to have been passed by exercising powers under Section 148 and/or 151 of the CPC and therefore the present petition is maintainable.
5. I have heard learned advocate for the parties. I have also perused the material placed on the record including the impugned orders.
6. It transpires that initially the court has passed order below Exh.18 granting order of status-quo till 2.11.2022 11 A.M. It also transpires that at that point of time Page 12 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined demolition of flats was continued and during the hearing of application which is filed under provisions of Order 7 Rule 11 of CPC, the learned trial court has not extended order of status quo by stating that status quo was only upto 11 a.m. And that is also for the purpose of settlement. It also transpires that the learned trial court has considered the aspect that the document no.4/8 which is considered by the learned trial court is the redevelopment permission granted by the corporation, though it is contended by the learned advocate for the petitioners that when the rajachitti dated 23.6.2022 is challenged before this Court in SCA No.16579 of 2022, the learned trial court has erroneously observed that the learned advocate for the plaintiffs did not satisfy the three conditions for exercise of discretion i.e. prima facie, balance of convenience and irreparable loss. It also transpires that there is some CCTV footage, live whatsapp video call is also produced before the learned trial court whereby the defendants were demolishing the flats in question,
7. From the record of the matter, it transpires that initially when the meeting is held in the year 2019, the society has passed resolution for redevelopment whereby the present petitioners have also attending the meeting and in fact they have consented. Thereafter, though at that point of time, the persons with whom the redevelopment is decided, Page 13 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined could not be materialized and thereafter the proposal is materialized with another person at that point of time, the present petitioners who are flat holders having three flats in total in the society of more than 66 units have decided to object by filing suit which shows their conduct.
8. The other aspect is also required to be considered that under the provisions of Section 41A of the Gujarat Ownership Flats Act, if 75% of the members are giving consent, then, the society can go into redevelopment. Whether, in the present case, it is of redevelopment or outright sale can be decided conclusive by full fledged trial after leading the evidence. Prima facie, it seems that there is material available on the record that society and the members of the society have decided for redevelopment. Though in words, it is not on the record, the intention can be gathered for considering the prima facie case. It is not in dispute that the petitioner is one of the owner of the flats in question. Initially when the petitioners have consented for the proposal with Bansari reality and thereafter, when the proposal did not work with Bansari reality and it was given to some other developer-respondents, for the reasons best known to the petitioners, they started raising objections and filing various litigations, which are still pending in one forum or another. Therefore, by keeping in mind the principle of Page 14 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined larger interest and also considering the conduct of the petitioners, it transpires that the learned trial court has rightly rejected the application under provisions of Order 39 Rule 1 of CPC. It transpires that the learned trial court has granted the status-quo only for one day and that too with an intention to see that if the parties can arrive at an amicable settlement, looking to the facts of the case and the larger interest of all the members. However, when the settlement was not arrived at, the learned trial court did not extend the status-quo granted, which in my opinion, is just and proper and no illegality or perversity or impropriety is found in the said order. If the status-quo would have been extended further, then all the members would be at a loss and in that sense, the petitioners would not have been benefitted by such status-quo order and therefore no case is made out by the petitioners before the learned trial court and this court.
9. With regard to the argument advanced with regard to maintainability of whether the petition under Article 227 of the Constitution of India is maintainable or not, the application at Exh.18 before the learned trial court itself mentions that as prima facie case, balance of convenience is in favour of the plaintiffs and irreparable loss which cannot be compensated in terms of money will be caused to the plaintiffs, if such status-quo order is not passed in favour of Page 15 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined the plaintiffs, it can be construed that the application is filed under the provisions of the application under Order 39 Rule 1 and 2 of CPC and the order is also passed pursuant thereto, which is impugned in this petition, the petition is not required to be entertained under Article 227 of the Constitution of India as there is a specific provision of appeal from order under Order 43 Rule 1(r) of CPC. It cannot be said that the impugned order passed can be considered under Section 148 and 151 of CPC in view of the fact that the powers under Section 151 of CPC can be exercised only in the case where there is no specific provision available under CPC for exercising the powers as prayed in that application. Therefore, this petition is also required to be dismissed as the alternative efficacious remedy is available with the petitioner.
"Order 43 of CPC reads as under:
1. Appeal from orders.--An appeal shall lie from the following orders under the provisions of section 104, namely:
--
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order VII has been followed];
(c) . an order under rule 9 of order IX rejecting an Page 16 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
(f) an order under rule 21 of Order XI;
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; [ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;]
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;]
(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of order Page 17 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined (XXVIII);
(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1, or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re- admit, or under rule 21 of Order XLI to re-hear, an appeal; (u) an order under rule 23 1 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(w) an order under rule 4 of Order XLVII granting an application for review."
Order 39 of CPC reads as under:
1. Cases in which temporary injunction may be granted.--
Where in any suit it is proved by affidavit or otherwise--
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,] the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose Page 18 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach.
--(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.
[2A. Consequence of disobedience or breach of injunction.--(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court Page 19 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.]
3. Before granting injunction, Court to direct notice to opposite party.--The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:
[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant--
(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with--Page 20 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024
NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant, relies, and
(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.] 1 [3A. Court to dispose of application for injunction within thirty days.--Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.]
4. Order for injunction may be discharged, varied or set aside.--Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order: 2
[Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it Page 21 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined considers that it is not necessary so to do in the interests of justice:
Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.]
5. Injection to corporation binding on its officer.--An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain.
151. Saving of inherent powers of Court.--Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
Articles 226 and 227 of the Constitution of India read as under:
226. Power of High Courts to issue certain writs (1)Notwithstanding anything in article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or Page 22 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantor and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.[(1-A) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."; was inserted after 15th Amendment][Editorial comment-The Constitution (Fifteenth Amendment) Act, 1963, this was amended to include clause (1A). It states that the High Court, whose territorial jurisdiction the cause of action originates under, may also have the ability to issue directives, orders, or writs to any government, authority, or person, even if their seat or place of abode is beyond the high court's territorial jurisdiction.](2)The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the scat of such Government or authority or the residence of such person is Page 23 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined not within those territories.(3)Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without--(a)furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and(b)giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open;
and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. (4)The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
227. Power of superintendence over all courts by the High Court (1)Every High Court shall have superintendence over all Page 24 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.
(2)Without prejudice to the generality of the foregoing provisions, the High Court may--
(a)call for returns from such courts;
(b)make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c)prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3)The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision or any law for the time being in force, and shall require the previous approval of the Governor.
(4)Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."
10. One more aspect which is required to be considered is that the impugned order is passed in the year Page 25 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined 2002, the civil suit is pending before the learned trial court, this petition is filed in the year 2002, the notice and notice as to interim relief is issued in the year 2002, thereafter no interim relief is granted. Therefore, there is no order or status-quo or any interim relief which is in operation as on today. It is brought to the notice that the construction is going on and it has reached the 1 st floor and therefore, it can be said that equities are created in favour of the respondents by passage of time.
11. There cannot be any dispute with regard to the ratio laid down in the judgments cited by learned advocate for the petitioners. However, considering the facts of the case, when the larger interest of the members of the society is the issue, the ratio laid down in the cases relied on by learned advocate for the petitioners are not applicable to the facts of the present case.
12. In the case of Dhariwal Tobaco Products Ltd. (supra), relied on by learned senior advocate Mr.Shah for the petitioners, it is held in paragraph 14 as under:
"14. It is interesting to note that the Bombay High Court itself has taken a different view. In a decision rendered by the Aurangabad Bench of the Bombay High Court, a learned Page 26 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined Single Judge in Vishwanath Ramkrishna Patil (supra), where a similar question was raised, opined as under:
It is difficult to curtail this remedy merely because there is a revisional remedy available. The alternate remedy is no bar to invoke power under Article 227. What is required as to see the facts and circumstances of the case while entertaining such petition under Article 227 of the Constitution and/or under Section 482 of the Criminal Procedure Code. The view therefore, as taken in both the cases V.K.Jain and Saket Gore, no way expressed total bar. If no case is made out by the petitioner or the party to invoke the inherent power as contemplated under Section 482 of Criminal Procedure Code and/or the discretionary or the supervisory power under Article 227 of the Constitution of India they may approach to the revisional Court, against the order of issuance of process.
11. Taking into consideration the facts and circumstances of those cases, the learned Judge has observed in V.K.Jain and Saket Gore (supra) that it would be appropriate for the parties to file revision application against the order of issuance of process. There is nothing mentioned and/or even observed that there is total bar to file petition under Section 482 of Criminal Procedure Code and/or petition under Article 227 of the Constitution of India.
12. The Apex Court's decision already referred above, Page 27 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined nowhere prohibited or expressly barred to invoke Section 482 of Criminal Procedure Code of Article 227 of the Constitution of India against the order of issuance of process.
In Keki Bomi Dadiseth (supra), another learned Single Judge of the Nagpur Bench of the Bombay High Court entertained an application under Section 482 of the Code, where summons have been served for commission of offence under the Prevention of Food Adulteration Act, 1954, holding:
33. In view of the ratio laid down by the Apex Court in the above referred cases, it is well settled that inherent power under Section 482 can be invoked by the accused in the appropriate case irrespective of other factors and this Court can exercise the same in a deserving case within parameters of law and, therefore, the contentions canvassed by the learned Additional Public Prosecutor in this regard are misconceived and same are rejected."
13. In the recent judgment of the Hon'ble Apex Court which is relied on by learned senior advocate Mr.Dave in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others (supra), it is held in paragraphs 12 and 13 as under:
"12. But courts should always bear in mind a distinction Page 28 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya De Rai v. Ram Chander Rai , pointed out in Radhey Shyam v Chhabi Nath that "orders of civil court stand on different footing from the orders of authorities of tribunals or courts other than judicial/civil courts."
13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision Page 29 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil procedure itself."
The above judgment relied on by learned senior advocate Mr.Dave is helpful in the facts of the present case.
14. With regard to the exercise of powers under Article 227 of the Constitution of India is concerned, the Hon'ble Apex Court has recently, in the case of M/s. Garment Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181, more particularly in paras 15 to 17, observed 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 Page 30 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, 1 Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217 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.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on Page 31 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if 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, which the court or Page 32 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined tribunal has come to."
17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting Page 33 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."
15. In view of the above discussion and in view of the subsequent development, I am of the opinion that the prayers in this petition have now as such become academic and petition actually in substance has become infructuous to that extent. For all these counts, I am of the opinion that the powers under Article 227 of the Constitution of India are not required to be exercised, more particularly, the petitioners are having alternative efficacious remedy by way of appeal from order and also in view of the subsequent development, no fruitful purpose will be served by considering the present petition. Otherwise also, the petition is found meritless as there is no perversity or illegality of impropriety in the impugned order passed by the learned trial Court and Page 34 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024 NEUTRAL CITATION C/SCA/23800/2022 JUDGMENT DATED: 06/05/2024 undefined therefore required to be dismissed. Accordingly, dismissed. Notice is discharged.
16. Learned advocate Mr.Patel for learned advocate Ms.Vyas for the petitioners submits that the substantial application for injunction is pending before the learned trial Court. Therefore, he prays that the learned trial Court may decide the said application independently without being influenced by any of the observation made by this Court in this order.
17. The request seems reasonable. The learned trial Court is expected that the said application will be considered independently and in accordance with law by giving opportunity to the parties and without influenced by this order.
(SANDEEP N. BHATT,J) SRILATHA Page 35 of 35 Downloaded on : Wed May 08 20:43:32 IST 2024