Gujarat High Court
Prakash Manojkumar Dholani vs Manoj Khanchand on 23 August, 2013
Author: S.H.Vora
Bench: S.H.Vora
PRAKASH MANOJKUMAR DHOLANI....Appellant(s)V/SMANOJ KHANCHAND GURBANI....Respondent(s) C/AO/117/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER NO. 117 of 2013 With CIVIL APPLICATION NO. 3382 of 2013 In APPEAL FROM ORDER NO. 117 of 2013 ================================================================ PRAKASH MANOJKUMAR DHOLANI....Appellant(s) Versus MANOJ KHANCHAND GURBANI....Respondent(s) ================================================================ Appearance: MS BHAVIKA H KOTECHA, ADVOCATE for the Appellant(s) No. 1 MR KIRANKUMAR R DAVE, ADVOCATE for the Respondent(s) No. 1 MR LV MANSINGHANI, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.H.VORA Date : 23/08/2013 ORAL ORDER
1. Challenge in this appeal from order is order dated 27.4.2012 passed by the learned City Civil Judge, Ahmedabad below notice of motion application in Civil Suit No.1638 of 2010, whereby the learned trial Judge was pleased to dismiss notice of motion application filed by the appellant.
2. It is the case of the appellant plaintiff that plot No.9/A is a common plot of society, namely Ahuja Park situated in Kubernagar, Ahmedabad. On perusal of the impugned order, it appears that the learned trial Judge has found that there is nothing on record to show that the disputed plot is common plot of the society. The learned advocate appearing on behalf of the appellant could not point out or place any evidence on record to show that the disputed plot is common plot of the society.
3. The present appeal is filed under the provisions of Order 43 Rule 1(r) of the Code and challenge in this appeal is the discretionary order passed by the trial Court under the provisions of Order 39 Rule 1 and 2 of the Code whereby, the learned trial Judge dismissed the notice of motion for interim relief. If this Court elaborately deal with the matter on its own merits, it is likely that same would prejudice the case of either side. Therefore, it is also well settled law that the Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant-original plaintiff has made out a prima facie case or not for grant of interim injunction. It is well settled law that the Appellate Court may not interfere with the exercise of discretion of the Court at first instance and substitute its own discretion except when the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or when the Court has ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. So, the Appellate Court cannot reassess the material and reach a conclusion different from the one reached by the Court. Keeping in mind the limited scope of present appeal, this Court is required to see whether discretion exercised by the learned trial Judge is perverse, arbitrary, capricious or against any settled principles of law or not? No such finding is shown so as to interfere with in the appeal.
4. In the result, there is no merit in the appeal from order and the same stands disposed of accordingly. The learned trial Judge is directed to expedite the hearing of the suit and dispose of the suit on merit as early as possible, but not later than one year. The parties to the proceedings shall cooperate the learned trial Judge for expeditious hearing of the suit and shall not seek unnecessary adjournment.
5. While parting with the order, it is clarified that this Court has examined the impugned order passed by the learned trial Judge within the limited scope of provisions of Order 43 Rule 1(r) of the Code, whereas the main controversy involved in the suit is at large before the trial Court to be adjudicated through full-fledge trial. Therefore, the learned trial Judge shall not be influenced by any observations recorded in the impugned order and observations recorded by this Court herein above while deciding the suit at the end of trial. The findings recorded either by the trial Court or by this Court at inter locutory stage of the suit are tentative in its nature and the learned trial Judge shall decide the case on its merit and as per evidence that may be led during the course of trial and decide the suit in accordance with law.
6. In view of dismissal of appeal from order, civil application does not survive and the same stands disposed of accordingly.
(S.H.VORA, J.) shekhar Page 3 of 3