Gujarat High Court
Saikrupa Organisors A Registered Firm & ... vs Motisinh Pahadsinh Kher Rajput Falia & on 25 July, 2014
Author: S.H.Vora
Bench: S.H.Vora
C/AO/40/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 40 of 2014
With
CIVIL APPLICATION NO. 954 of 2014
In
APPEAL FROM ORDER NO. 40 of 2014
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SAIKRUPA ORGANISORS A REGISTERED FIRM & 4....Appellant(s)
Versus
MOTISINH PAHADSINH KHER RAJPUT FALIA & 11....Respondent(s)
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Appearance:
MR RR MARSHA, SR. ADVOCATE with MR ADIL R MIRZA, ADVOCATE for
the Appellant(s) No. 1 - 5
MR HARSHADRAY A DAVE, ADVOCATE for the Respondent(s) No. 1 - 11
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 25/07/2014
ORAL ORDER
1. Challenge in this appeal from order is order dated 21.4.2012, whereby the learned Judge was pleased to reject application Exh.5 filed by the appellants - original plaintiffs in Special Civil Suit No.75 of 2008.
2. Parties to the proceedings would be referred to as their original status in the plaint.
3. I have heard the submissions of learned Counsel Mr. Marshall appearing with learned advocate Mr. Mirza for the appellants and learned advocate Mr. Dave for the respondent Page 1 of 6 C/AO/40/2014 ORDER Nos.1 and 2.
4. Briefly stated, subject matter of land bearing survey No.188/1 situated at village Mangrol, Dist: Rajkot was agreed to be sold by the father of defendant Nos.1 to 5, namely Pahadsinh Kher to the plaintiffs by way of registered sale agreement dated 23.8.1985. According to the case of the plaintiffs, price per acre was settled at Rs.28,001/- and earnest money to the tune of Rs.31,101/- was paid by the plaintiffs to the deceased Pahadsinh. The said land was converted into NA land and 203 plots were made by the plaintiffs. It is specific case of the plaintiffs that plaintiff No.3 was given power of attorney with a permission to sell the plots by deceased Pahadsinh, who expired on 14.1.1996. Pursuant to the said power of attorney in favour of plaintiff No.3, the plaintiffs sold 22 plots to the third party, whereas rest of the land admeasuring 24,755 sq mtr comprising of common plot and margin land lying unsold. Upon demise of Pahadsinh on 14.1.1996, names of defendant Nos.1 to 11 were mutated in the revenue records. It is specific case of the plaintiffs that the plaintiffs were required to pay balance consideration within 12 months.
5. The learned trial Judge, after hearing the submissions made at bar and considering the pleadings and documentary evidence on record, observed that the plaintiffs have no prima facie case in their favour, as the plaintiffs have filed suit after 23 years from the date of sale agreement dated 23.8.1985 and further, there is a arbitration clause in the said sale agreement. Thus, on account of delay and laches, the learned trial Judge refused to grant interim relief in favour of the Page 2 of 6 C/AO/40/2014 ORDER plaintiffs and against the defendants.
6. Considering the submissions made at bar, it is mainly submitted that deceased Pahadsinh has executed power of attorney in favour of plaintiff No.3 with a power to sell the plots. Upon demise of Pahadsinh in the year 1996, such power, if any, does not remain in force and it stands terminated upon demise of deceased Pahadsinh. Apart from it, the plaintiffs slept over their right for a considerable period of 23 years and not only that in the year 2005, the defendant No.1, as a power of attorney holder of legal heirs of deceased Pahadsinh, sold the suit land to defendant No.16 by way of registered sale deed dated 8.12.2005. So, the registered sale deed is a notice of the transaction in question. According to section 3 of the Transfer of Property Act, such registration instrument is always to be considered as deemed knowledge to the plaintiffs. However, the plaintiffs have not mentioned anything about the transaction that took place before filing of the suit in the injunction application and therefore, the learned trial Judge rightly refused the injunction application in favour of the plaintiffs. Learned Senior Counsel could not point out any infirmity in the impugned order and therefore, no case is made out to entertain the present appeal from order.
7. It is required to be kept in mind that the present Appeal from Order is filed under the provisions of Order 43 Rule 1(r) of the Code and challenge in this appeal is a discretionary order passed by the learned trial Judge under the provisions of Order 39 Rules 1 and 2 of the Code. In case of Matrix Telecom Pvt.Ltd. V/s. Matrix Cellular Services Pvt. Ltd.
Page 3 of 6 C/AO/40/2014 ORDERreported in 2011(3) GLR 1951, this Court, in paras 6 and 6.1, observed as under:-
"6. Before proceeding further it is required to be noted that the present appeal is against the rejection of interim relief and the main suit is still pending. If this court elaborately deals with the matter on merits it is likely that the same would prejudice the case of either side. Therefore, it is well settled law that this 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-plaintiff has made out a prima facie case or not for grant of interim injunction.
6.1. It is required to be noted that it is well settled law that the Appellate Court may not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion."
8. Similarly, in the case of Wonder Ltd. and another V/s. Antox India Pvt. Ltd. reported in 1990 (Supp.) SCC 727, the Hon'ble Supreme Court in para 9 of the said decision, after considering the scope of Order 43 Rule 1(r) of the Code in an appeal wherein, the discretionary order passed by the learned Page 4 of 6 C/AO/40/2014 ORDER trial Court is under challenge, observed as under:-
"9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated "...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience lies".
The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted."
9. So, in light of the limited powers of this Court, the Appellate Court can interfere with the discretionary order Page 5 of 6 C/AO/40/2014 ORDER passed by the trial Court only in exceptional circumstances and the Appellate Court cannot interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except, where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. In nutshell, an appeal against exercise of discretion is said to be an appeal on principle. To put it differently, the Appellate Court cannot reassess the entire evidence so as to come to its own conclusion contrary to the conclusion arrived at by the trial Court, if two views are possible.
10. In the result, present appeal from order fails and stands dismissed. Consequently, civil application also stands disposed of.
(S.H.VORA, J.) shekhar Page 6 of 6