Gujarat High Court
Yogeshbhai Bachubhai Solanki vs Partners Of Aditya Infra Partnership ... on 25 February, 2025
NEUTRAL CITATION
C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10176 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 10176 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10182 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 10182 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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YOGESHBHAI BACHUBHAI SOLANKI
Versus
PARTNERS OF ADITYA INFRA PARTNERSHIP FIRM, JUNAGADH & ORS.
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Appearance:
MR VIKRAM J THAKOR(2221) for the Petitioner(s) No. 1
MR. VINOD PANDYA(6977) for the Petitioner(s) No. 1
MR DIGANT B KAKKAD(6523) for the Respondent(s) No.
1,1.1,1.2,1.3,1.4,1.5
MR HS MUNSHAW(495) for the Respondent(s) No. 2
MS KOMAL D KHATRI(12176) for the Respondent(s) No.
1,1.1,1.2,1.3,1.4,1.5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/02/2025
ORAL JUDGMENT
1. The present applications are filed under Article 227 of the Constitution of India seeking the following reliefs:- Page 1 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025
NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined "A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to call for the records and proceedings of Misc. Civil Appeal Nos. 02/2022 and 04/2022 filed in the Court of Ld. Principal District Judge, Junagadh and having examined legality, validity and propriety of the proceedings, be pleased to quash and set aside the impugned common order 07.05.2022 passed by the Ld. Principal District Judge, Junagadh in Misc. Civil Appeal Nos. 02/2022 and 04/2022 (Annexure-A) and be pleased to restore the common order dated 31.12.2021 passed by the Ld. 3rd Additional Civil Judge, Junagadh below Ex. 5 and 27 (Annexure-B) in Regular Civil Suit No. 45/2020.
(C) During the pendency and till final disposal of this petition, by way of interim relief, Your Lordships may be pleased to stay the operation, implementation and execution of the impugned common order 07.05.2022 passed by the Ld. Principal District Judge, Junagadh in Misc. Civil Appeal Nos. 02/2022 and 04/2022 (Annexure-A).
(D) Any other relief deemed just and proper may please be granted in the interest of justice."
2. So far as possible, the parties will be referred to as per their original position.
3. The short facts of the case appear to be as under:-
3.1 The petitioner herein has filed Regular Civil Suit No. 45 of 2020 before the Civil Judge, Junagadh against the respondents of the present application as well as his cousin brothers. The suit is filed seeking a declaration, injunction and Page 2 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined various other reliefs. The plaintiff is claiming a right of pre-
emption in relation to the suit property, which was earlier an ancestral property of father of the plaintiff, as well as defendant Nos.1 and 2 and defendant Nos.4 and 5. 3.2 The plaintiff is the son of one Bachubhai s/o Gokulbhai Kalabhai. The defendant No. 5 happens to be his real brother, while defendants No.4/1 and 4/2 are his nephews being the sons of his real brother, Nirmalbhai. Whereas, Defendant Nos.1 and 2 are the cousin brothers of plaintiff, who happen to be the son of Tulsibhai. The petitioner has submitted a pedigree chart at Annexure "C" to the petition, which is reproduced as under:-
3.3 It is the case of the plaintiff that the father of the Page 3 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined plaintiff and father of defendant No.1 and 2 were real brothers. The father of the plaintiff had filed Partition Suit No. 181 of 1951 against his brothers, including the father of defendant Nos.1 and 2, wherein a compromise decree was passed on 21.04.1951.
3.4 As per the compromise decree passed in the said suit, in paragraph 11, it was observed that the residence of Solanki House is situated on one plot, thereby if any brother wants to either sell the entire house or its parts thereof, then the first right to purchase shall be available to the other brother who is residing adjacent to the such house. If that brother is not ready to purchase, then it will be available to the other brothers. It is also mentioned that, in case of a dispute regarding its value, both sides can appoint an arbitrator for adjudication of the value of such house, and thereafter, if any brother does not want to purchase the house, he shall declare it in writing. Only after such declaration, it can be sold to a third party.Page 4 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025
NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined 3.5 The aforesaid decree was passed in the year 1951, whereby all four brothers, who happen to be the sons of Gokulbhai Kalabhai, received their respective shares of the house. It remains undisputed that as on the date of filing the suit by the petitioner-plaintiff, none of the brothers - sons of Gokulbhai Kalabhai were alive including father of plaintiff. 3.6 Defendant Nos.1 and 2 being the sons of Tulsibhai, intended to sell the suit property, which is confirmed from a public notice dated 17.10.2018 published by them in a newspaper.
3.7 The plaintiff came to know about such notice and declared his intention to purchase the suit property by issuing notice upon defendant Nos.1 and 2 on 24.10.2018 itself, declaring his intention to purchase the suit property. 3.8 It is the case of the plaintiff that defendant Nos.1 and 2, vide their reply dated 29.10.2018, admitted the right of the plaintiff to first purchase the suit property, so asked plaintiff to provide a demand draft of Rs.25,00,000/-. It appears that at Page 5 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined the given point in time, plaintiff has not acted upon such request of defendant No. 1 and 2.
3.9 Defendant Nos.1 and 2 put up a development plan with defendant No.6 - Jamnagar Municipal Corporation - respondent No. 2 herein on 30.11.2018. Thereafter, defendant Nos.1 and 2 appear to have executed a sale deed in favor of original defendant No 3 - respondent Nos. 1/1 to 1/5 of the suit property on 30-04-2019.
3.10 The suit came to be filed on 25.02.2020, wherein the plaintiff preferred an injunction application below Exhibit 5, stating that defendant No.3 had already started construction. A separate application below Exhibit 27 was also filed, requesting the trial court to direct defendant No.3 not to complete the construction and to maintain the status quo. 3.11 After hearing the parties, the trial court, vide its common judgment and order dated 31.12.2021, partly allowed the injunction applications filed by the plaintiff, thereby directing defendant No. 3 not to further construct and to Page 6 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined maintain the status quo till the disposal of the suit. Defendant No.3 was further directed not to transfer the suit property until the disposal of the suit. Defendant No.6 - Jamnagar Municipal Corporation was directed not to grant any further development permission till the disposal of the suit. It is pertinent to note that Exhibit 5 & 27 application were filed only against defendant Nos. 3 and 6, which is confirmed by reading its cause title.
3.12 Defendant No.3, being aggrieved by the said order of injunction granted by the trial court, preferred Miscellaneous Civil Appeal No. 2 of 2022 along with Miscellaneous Civil Appeal No.4 of 2022 before the Appellate Court - Jamnagar under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC').
3.13 After hearing the parties, the Appellate Court allowed both these appeals, thereby quashing and setting aside the impugned order passed by the trial court, which had injuncted defendant No. 3 and 6 as the case may be.
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4. Thus, the original plaintiff has preferred the present applications under Article 227 of the Constitution of India, challenging the common judgment and order dated 07.05.2022, passed by the learned Principal District Judge, Junagadh in Miscellaneous Civil Appeal No. 2 of 2022 and Miscellaneous Civil Appeal No. 4 of 2022 respectively.
5. SUBMISSION OF THE PETITIONER- PLAINTIFF 5.1 Learned advocate Mr. Vikram J. Thakor for the petitioner - plaintiff would submit that appeals which were filed by the respondent nos.1/1 to 1/5 ought to have been dismissed on the ground that all the parties to the suit were not joined. Learned advocate Mr.Thakor for the petitioner - plaintiff would submit that provision of Order 41 Rule 20 of CPC would apply to the appeal filed under Order 43 of the CPC.
5.2 Learned advocate Mr. Thakor for the plaintiff would submit that the appellate court has erroneously applied Section 8 of Limitation Act thereby, held that the suit is filed beyond the period of limitation as father of the plaintiff had right Page 8 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined being a pre-emptor as per the decree dated 08.09.1951, who died long back.
5.3 Learned advocate Mr. Thakor would further submit that the Appellate court has erroneously observed that right of father of the plaintiff flowed from decree dated 08.09.1951 is not inheritable right accrued in favour of the plaintiff thereby, plaintiff cannot seek relief as prayed in the suit. 5.4 Learned advocate Mr. Thakor would submit that appellate court has not considered Article 97 of Limitation Act, whereby the suit was filed within time as the execution of sale deed on 30th April, 2019 whereas suit was filed on 25 th February 2020, which was within one year from date of execution of sale deed.
5.5 Learned advocate Mr. Thakor would further submits that considering the conduct of respondent no. 1/1 to 1/5 herein, trial court has correctly granted injunction in favour of the plaintiff which was erroneously disturbed by the appellate Court by exceeding its power so vested in it. 5.6 Learned advocate Mr. Thakor would further submit Page 9 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined that defendant no.1 and 2 have not appeared before the Trial Court and filed their written statement thereby right of pre- exmption claimed by plaintiff could not have been denied especially when the defendant No.1 & 2 in their reply to the notice served by the plaintiff prior to filing of suit, has admitted the right of plaintiff to first purchase suit property. 5.7 Learned advocate Mr. Thakor would submit that merely because the respondent nos.1/1 to 1/5 have developed the property, would not be a ground to vacate the interim relief so granted by Trial Court, when plaintiff has proved all the three ingredients i.e. prima facie case, balance of convenience and irreparable loss thereby, secured injunction in his favour.
5.8 Learned advocate Mr. Thakor would respectfully submit that when the trial court has exercised its power and discretion in favour of plaintiff then, as an appellate court, it could not have interfered with such discretionary order, which is otherwise not contrary to settle principle of law. 5.9 To buttress his argument, he has relied upon para 5 of Page 10 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined the decision of Hon'ble Supreme Court of India in the case of Babu Ram Versus Santokh Singh (DECEASED) Through His Lrs And Others reported in (2019) 14 SCC 162.
5.10 Making the above submission, he requested to allow the present petition.
6. SUBMISSION OF RESPONDENT NOS.1/1 TO 1/5 - DEFENDANT NOS.3/1 TO 3/5 6.1 Per contra, learned Senior Counsel Mr.R.S.Sanjanwal with Mr.Digan B. Kakkad, learned advocate appearing for the respondent nos.1/1 to 1/5 has vehemently objected the present application contending, inter alia, that appellate court has after considering question of law involved in the matter, allowed the appeals thereby correctly vacated the injunction so granted by Trial Court.
6.2 Learned Senior Counsel Mr. Sanjanwal would submit that appellate court has correctly exercised its appellate power under order 43 of CPC thereby, appropriately interfered with the order passed by the Trial Court which was passed contrary to position of law.
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NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined 6.3 Learned Senior Counsel Mr. Sanjanwal would submit that father of the plaintiff had entered into compromise with his brother, who happens to be Class-I heirs of Gokulbhai Kalabhai thereby a consent decree was passed, which gave right to the father of the plaintiff to first purchase the suit property had he alive on the date of suit. He would further submit that such right, which is not inheritable, would not available with plaintiff, thereby, considering the settled principle of law, the suit itself was timed barred thereby not maintainable.
6.4 Learned Senior Counsel Mr. Sanjanwal would submit that right of pre-emption is a weak right and it can be defeated by estoppel. He would further submit that when the defendant no.1 and 2 had called upon the plaintiff to provide Rs.25,00,000/- demand draft and he failed to provide such amount in favour of defendant no.1 and 2, by his conduct, the plaintiff is estopped in claiming any relief in the suit, especially when the sale deed was long back executed by defendant no.1 and 2 in favour of defendant no. 3/1 to 3/5 Page 12 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined prior to filing of suit.
6.5 Learned Senior Counsel Mr. Sanjanwal would strenuously submit that right of pre-emption is not an inheritable right and as per Section 22 of Hindu Succession Act, it would confine and available to Class-I legal heirs of deceased. He would state that admittedly plaintiff and defendant no.1 and 2 are not Class-I legal heirs of Gokulbhai Kalabhai who happens to be their grandfather. 6.6 Learned Senior Counsel Mr. Sanjanwal would submit that Trial Court has not considered the basic issue of law involved in the suit and without appreciating the provisions of law thereby overlooked the binding principle erroneously injuncted the defendant nos.3/1 to 3/5 thereby, not allowed to develop the suit property.
6.7 Learned Senior Counsel Mr. Sanjanwal would further submit that plaintiff could have responded to the response of defendant no.1 and 2 given on 29 th October, 2018 either by filing civil suit and/or recourse as suggested in the consent decree dated 08.09.1951 but having so waited for long time, Page 13 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined after about 10 months from execution of sale deed in question and more than a year and half from response to defendant nos. 1 and 2 has filed suit, disentitled the plaintiff to pray for the injunction as sought for.
6.8 Lastly, learned Senior Counsel Mr. Sanjanwal would submit that defendant no.31 to 3/5 not only purchased the suit property from its real owner but have invested huge amount thereby developed the property and entire complex is ready for sale, which is constructed after obtaining requisite permission through sanction plan from respondent no.2 - defendant no.6
- corporation, thereby considering these peculiar facts and circumstance of the case, neither balance of convenience nor irreparable loss would tilt in favour of the plaintiff. 6.9 To buttress his arguments of Hon'ble Supreme Court of India in the case of Indira Bai vs. Nand Kishor reported in AIR 1991 SC 1055.
7. Learned advocate Mr. H.S.Munshaw, would submit that as such, respondent no.2 - corporation has acted in accordance with law thereby sanctioned the plan in favour of defendant Page 14 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined no.3/1 to 3/5 for suit property, wherein development permission has already granted on 30 th November, 2018, which was applied by the erstwhile owner of suit property i.e., defendant no.1 and 2. So learned advocate Mr. Munshaw would submit that this court may pass appropriate order in accordance with law.
ANALYSIS.
8. Before adverting to the issue involved in the matter, I would to remind myself scope and power available to this Court while exercising its power under Article 227 of the Constitution of India which is succinctly discussed in following two decisions of Honourable Supreme Court of India. First one in a case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374, the relevant observation of the aforesaid judgment reads as under:-
"[6] In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 6 SCC 675. After considering various facets of the issue, the two Judge Bench culled out the following principles:Page 15 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025
NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined (1) Amendment by Act No. 46 of 1999 with effect from 01-
07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave Page 16 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. ( (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between Page 17 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.
7. The same question was considered by another Bench in Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49) "(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid Page 18 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the principles in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.
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(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
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(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
(Emphasis supplied)
9. The second decision in a case of Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein the Hon'ble Supreme Court of India has held as under:-
15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [ Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] 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 substitute its own decision on facts and conclusion, for that of the inferior Court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, 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. [Estralla Rubber v.
Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101- 102, para 6) "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 Page 21 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined of decisions of this Court. The exercise of power under this article involves a duty on 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 tribunal has come to."
(Emphasis supplied)
10. The present application having filed under Article 227 of the Constitution of India thereby challenged the judgment and order passed appellate Court exercising its power under order 43 of CPC, thereby, disturb the order of injunction granted by Trial Court in favour of plaintiff.
11. The petitioner is thereby challenged incongruous finding so recorded by Appellate Court while exercising its appellate power whereby vacated the injunction so granted by trial Court in favour of plaintiff.
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NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined
12. It is well settled legal position of law that ordinarily when trial court has exercised its discretion in favour of plaintiff while granting interim injunction pending suit, unless the order of trial court granting injunction is either arbitrary, erroneous or perverse or contrary to basic principle of law, appellate court while exercising its power under order 43 of CPC, should not interfered with such order passed by trial Court. (See Wander Ltd V/s Antox India P. Ltd. reported in 1990 (1) Supp. SCC 727 & Ramakant Ambalal Choksi V/s Harish Ambalal Choksi reported in 2024 SCC Online SC 3538)
13. At the same time, when this Court exercises its power under Article 227 of the Constitution of India being an appellate court to the District Court/Trial Court as the case may be, would also require to follow the principles, so enumerated by Hon'ble Apex Court of India in the case of Sameer Suresh Gupta (Supra) and Garment Craft (supra) and, whereby, this Court may not interfere with well-reasoned order passed by Appellate Court / Trial Court as the case may be, on the ground that merely some other view can be taken by this Page 23 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined Court. It is now well settled legal position of law that mere error of law on the part of courts below, this Court may not interfered with impugned order challenged in the applicati0n filed under Article 227 of the Constitution of India.
14. So far first limb of argument made by learned advocate Mr. Vikram Thakore is concern about non- maintainability of civil misc. appeals before appellate court as per Order 41 Rule 20 CPC as all parties were not joined, such an argument is misconceived on facts as well as law. It can be seen from plain reading of injunction application so filed by plaintiff before trial court, he has only joined defendant no. 3/1 to 3/5 and defendant no.6-corporation. So, when plaintiff himself had only joined these two set of defendants in his injunction application, he has no right to agitate before this Court that civil misc. appeals filed by defendant no. 3/1 to 3/3 would not be maintainable. Furthermore, no serious prejudice caused to present applicant-petitioner due to none joining other defendants in appeals filed before appellate court as main contesting party would be plaintiff which was very must joined Page 24 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined and heard by appellate court.
15. Thus, in view of aforesaid, such an argument made by the petitioner is thoroughly misconceived rather gone contrary to his own conduct before trial court vis-a-vis not joined all parties to the suit in his injunction application.
16. Now to appreciate the real controversy so germane in the matter, it is apt to refer to and rely upon the ratio of decision of Hon'ble Supreme Court of India in the case of Sham Sundar and Ors. V/s. Ramkumar and Ors. reported in (2001) 8 SCC 24, wherein in para 10, it has held as under:-
"[10] An analysis of the aforesaid decisions referred to in first category of decisions, the legal principles that emerge are these:
1. The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the Court of the first instance only.
2. The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first Court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit the suit for pre- emption must fail.
3. A pre-emptor who has a right to preempt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first Court would not affect his right or maintainability of the suit for pre-emption.Page 25 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025
NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined
4. A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first Court, has obtained a decree for pre-emption by the Court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation."
(Emphasis supplied)
17. Keeping in mind the ratio of the said decisions, and above position of law stand as on date, I would like to examine and deal with the submissions canvassed by learned advocates appearing for the respective parties.
18. It is an undisputed fact that the father of the plaintiff had filed partition suit 181 of 1951 against his real brother including father of defendant no.1 and 2 wherein a consent decree has been drawn on 08.09.1951. As per the consent decree, at the time of selling the house by any brother, another brother who is residing adjacent to such brother who intend to sell house, has a first right to purchase is recognized and agreed upon.
19. It is also an undisputed that during the life time of father of the plaintiff, no such occasion arise to claim such pre- Page 26 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025
NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined emptory right to purchase the suit property as none of his brother had an intention to sell any of their respective houses. The father of the plaintiff died long back. Likewise, father of the defendant nos. 1 and 2 also died. The relationship between the plaintiff and defendant nos.1 and 2 are admittedly of cousin brothers, who are admittedly not the Class-I legal heirs of Gokulbhai Kalabhai as he happened to be their grandfather.
20. At this stage, it would apt to refer to Section 22 of the Hindu Succession Act, which reads as under:-
"22. Preferential right to acquire property in certain cases.
--
(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.1
(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.Page 27 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025
NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined (3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation.--In this section, "court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf."
21. As per the plain reading of section 22 of the Hindu Succession Act, it would apply to Class -I legal heirs of deceased. Admittedly, the plaintiff and defendant nos.1 and 2 are not fall within Class-I heir of said Gokulbhai Kalabhai, then considering the aforesaid provision, plaintiff would not entitle to claim any pre-emptory right over the suit property, which admittedly owned by his uncle and succeeded in favour of his Class-I legal hears i.e., defendant Nos.1 and 2. Thus, ratio of decision in the case of Babu Ram (supra) would not apply to the facts of the case.
22. Assuming for the time being, that provisions of Hindu Succession Act, 1956, may not be applicable to the facts of the case as consent decree was passed on 08.09. 1951, then also whether plaintiff can pre-empt the right which was available to Page 28 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined his father under the decree needs examination.
23. The plaintiff is claiming right of pre-emption as per the aforesaid consent decree dated 08.09.1951 drawn in favour of his father along with other brothers of his father. The trial court has believed that such right of pre-emption as available to father of plaintiff is inherited by plaintiff, even though, two brothers of plaintiff who are joined as defendant no.4 (4/1 and 4/2) as well as defendant No.5, have not claimed it. Such an approach on the part of the trial court is erroneous as prima facie, right of pre-emption would not be an inheritable right in favour of successor in interest of deceased.
24. It is apt and also profitable to rely upon the observations made by Punjab and Haryana High Court in the case of Kamal Goel vs. Purshotam Dass (Deceased by Lrs) reported in AIR 1999 P&H 258; 1999 LawSuit (P&H) 1979, wherein held as under:- Para 11 to 13 and 14.
"[11] From a reading of above Section, it is clear that it confers a right on Class-I heir only to seek the transfer of property in his or her name when the other co-heir proposes to sell the property. This Section is also applicable to the interest already transferred, but the intention of enacting the Section is to see that the property will remain in the hands of co-heirs only and to prevent the] Page 29 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined strangers from acquiring any interest of the coheir. Further it is clear that the provisions of this Section are confined only to Class-I heirs specified in the Schedule. It is only a personal right given to one or other of the co-heirs. That right is neither transferable nor inheritable. In such cases, the common law maxim actio personalis moritur-cum persona (a personal right of action dies with the person).
[12] Admittedly, Chalti Devi died during the pendency of the suit. Therefore, the right to have the property transferred in her name and to get the sale deed executed by the defendants in favour of the appellant set aside also ceased to exist. Her other son namely the 1st respondent cannot have any right to continue the suit since he has no right and the right of his mother Chalti Devi cannot be inherited by him. It is further to be noticed that all other Class-I heirs except Chalti Devi sold their share of the property to the appellant. When Chalti Devi died before a decree was passed in her favour, the right to continue the suit will not survive. Since the right conferred under Section 22 of the Succession Act is a personal one, it is extinguished by the death of Chalti Devi. Therefore, the suit filed by her stands abated as she died before the adjudication of her right.
[13] The learned Counsel for the appellant and respondents are not able to draw my attention to any reported decision on the question whether the right conferred Under Section 22 of the Hindu Succession Act survives on the death of Class-I heir instituted the suit claiming the said right, but I am able to lay my hands on an analogous principle in Mohummudan Law. The right of pre-emption was available to a Sunni of Hanifi Sect. That right was known as Shaffa. It signifies the becoming of proprietor of lands sold for the price at which the purchaser has purchased them. A person claiming the right of a sort of pre-emption is called Shafee. The right of Shaffa (the right of like pre-exmption) is available to a co-sharer in the property of the land sold. Under the Muslim Law if the Shafee i.e. the person claiming the right of pre-exmption dies, his right of Shaffa becomes extinct. It is an express condition of Shaffa that a man be firmly possessed of the property from which he derives his right of Shaffa at the time when the subject of it is sold, a condition which does not hold on the part of the heirs. It is moreover a condition that the property of the Shafee remains firm until the decree of the Kazee be passed as this does not hold on the part of the deceased shafee, the shaffa is not established in respect to any of his descendants because of the failure of its conditions. Relying on the passages of Baillie's Page 30 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined Mohummudan Law in Hamilton's Hadaya by Grady, 2nd. Edition page 560 and Baillie's Mohummudan Law, 2nd Edition at page 505, Tagore Law Lecturers 1873 (Shama Charan Sarear) page 534, Tagore Law Lecturers 1884 (Ammer Ali) 2nd. Edition, Vol. I, page 603, a Division Bench of the Allahabad High Court in Muhammad Hussain v. Niamat-Un-Nissa, (1898) ILR 20 All 88 held as follows :--
The short point which we have to decide is ........ did the right of pre-emption determine upon the death of Muhammad Hasan? All the authorities of which we are aware show that it did; that the right of pre-emption is gone when the pre-emptor is a Sunni of the Hanifi sect and has not obtained his decree during his lifetime and that the right to sue docs not survive to his heirs."
(Emphasis supplied)
25. Thus, in view of the aforesaid, prima facie, plaintiff could not have claimed right of pre-emption so available to his father, which would not survived in favour of plaintiff after death of his father. The Trial Court has not considered such vital aspect of the case thereby erroneously held in favour of the plaintiff that he has inherited right of pre-emption from his father.
26. As per the decision of Hon'ble Apex Court in the case of Sham Sundar (Supra), the right of pre-emptor should survive not only on the date of sale, but it should also requires to be survived on the date of filing of the suit and further requires to subsist till passing of the decree by the court of first Page 31 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined instance. The pre-emptor who claims the right to pre-empt on the date of sale must prove that such right continued to subsist till passing of the decree of the first court. If he fails to do so, suit for pre-emption must fail.
27. This position of law which emerges from the aforesaid decisions of Hon'ble Apex Court as well as decision of P&H High Court, prima facie, it would suggest that in the present case, as on the date of filing of suit, plaintiff has no right of pre-emption in his favour thereby can maintain the suit. When, the maintainability of suit itself is under cloud, there would not be any prima facie case in favour of the plaintiff then, granting of injunction in favour of the plaintiff without verification and discussing the aforesaid position of law can be said to be an erroneous and perverse approach on the part of trial court thereby, appellate court had a right to interfere with such order.
28. At this stage, it is also profitable to refer the observations so expressly made by Hon'ble Apex Court in the case of Indira Bai (Supra), wherein in para 5, it has observed and held as Page 32 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined under:-
"[5] Exception to this universal rule or its non-availability is not due to absence of any provision in the Act excluding its operation but welfare of society or social and general well- being. Protection was, consequently, sought not on the rationale adopted by the High Court that in absence of notice under Section 8 of the Act estoppel could not arise but under cover of public policy. Reliance was placed on Shalimar Tar Products v. H. C. Sharma, AIR 1988 SC 145, a decision on waiver, and Equitable Life Assurance Society of the United States v. Reed, 1914 Appeal Cases 587, which laid down that there could be no estoppel against statute. Equity, usually, follows law. Therefore that which is statutorily illegal and void cannot be enforced by resorting to the rule of estoppel. Such extension of rule may be against public policy. What then is the nature of right conferred by Section 9 of the Act? In Bishen Singh v. Khazan Singh, AIR 1958 SC 838 this court while approving the classic judgment of Mahmood J, in Gobind Dayal v. Inayatullah, (1885) ILR 7 All 775 (FB), that the right of pre-emption was simply a right of substitution' observed that, 'Courts have not 1ooked upon this right with great favour, presumably, for the reason that it operated as a clog on the right of the owner to alienate his property. In Radha Kishan v. Shridhar, AIR 1960 SC 1368, this Court again while repelling the claim that the vendor and vendee by accepting price and transferring possession without registration of sale deed adopted subterfuge to defeat the right of pre- emption observed that, 'there were no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre-emption by any legitimate means is not fraud on the part of either the vendor or .the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means'. Such being the nature of right it is harsh to claim that its extinction by conduct would amount to statutory illegality or would be opposed to public policy. The distinction between validity and illegality or the transaction being void is clear and well known. The former can be waived by express or implied agreement or conduct. But not the latter. The provision in the Act requiring a vendor to serve the notice on persons having right of pre-emption is condition of validity of transfer, and therefore a pre-emptor Page 33 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined could waive it. Failure to serve notice as required under the Act does not render the sale made by vendor in favour of vendee ultra vires. The test to determine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved. If the answer is latter then it may be difficult to put estoppel as a defence. But if it is right of party alone then it is capable of being abnegated either in writing or by conduct. The Act does not provide that in case no notice is given the transaction shall be void. The objective is to intimate the pre- emptor who may be interested in getting himself substituted. The Act does not debar the pre-emptor from giving up this right. Rather in case of its non-exercise within two months, may be for the financial reasons, the right stands extinguished. It does not pass on to anyone. No social disturbance is caused. It settles in purchaser. Giving up such right, expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy."
(Emphasis supplied)
29. It is by now well settled legal position of law that right of pre-emption is a weak right, which may be defeated by estoppel and considering the conduct of the plaintiff, the court may also refused to grant any relief in favour of plaintiff.
30. As noted hereinabove, when the plaintiff has called upon defendant nos.1 and 2 thereby, exercise his right to first purchase on 24.10.2018, which was responded by defendant nos.1 and 2 on 29.10.2018, thereby, called upon plaintiff to provide demand draft of Rs.25,00,000/- which was not acted Page 34 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined upon by plaintiff at the relevant point of time, would disentitle him to get injunction as prayed for in the suit filed on 25 th February, 2020.
31. It is also required to be noted that defendant nos.3/1 to 3/5 having purchased the suit property by way of registered sale deed dated 30th April, 2019 and as per the development permission/ sanction plan have already put up the construction, which is ready for sale, considering these facts and circumstances also, balance of convenience and irreparable loss would not tilt in favour of plaintiff which also disentitles him to claim injunction as prayed for in the impugned applications filed in the suit.
32. Thus, in view of above, the appellate Court has correctly examined all niceties of law so involved in the matter and after referring several decisions of different High Courts on the issues germane comes to the conclusion that The Trial Court has erroneously granted injunction in favour of the plaintiff. As such, after going through impugned judgment and order passed by the appellate court and trial court as the case may be, I am Page 35 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined in complete agreement with the view taken by the Appellate Court, which is nether erroneous nor perverse nor exceeding the jurisdiction so vested in it, thereby, this Court would not like to interfere with the impugned order by exercising its power under Article 227 of the Constitution of India.
33. Before parting with, this Court would like to observe that it has examined submissions of the parties and decided issue involved in the present applications, so need to observe the merit. Nonetheless, any observations made herein above by this Court and or by appellate Court or as the case may be by trial Court would not come in way of any of the parties to suit in any respect. As such trial Court need to frame necessary issues out of the pleading and after recording of the evidence coming forth on the record then after, requires to decide the lis between parties strictly in accordance with law without being influenced by any of judgement/order passed by trial Court itself/appellate Court and or this Court as the case may be.
34. With the aforesaid observations, discussions, reasons and Page 36 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025 NEUTRAL CITATION C/SCA/10176/2022 JUDGMENT DATED: 25/02/2025 undefined findings, I am of the view that there is no gross error of law and/ or jurisdictional error committed by appellate Court while allowing the appeals filed by defendant nos.3/1 to 3/5 filed under Order 43 of CPC.
35. Thus, the present applications lack merits and require to be dismissed, which is hereby dismissed. Notice discharged. Interim relief stands vacated forthwith. No order as to costs.
The connected Civil applications are also disposed of
accordingly. Sd/-
(MAULIK J.SHELAT,J)
MOHD MONIS
FURTHER ORDER
After pronouncement of judgement, learned advocate Mr.Vikram Thakor appearing for the petitioner requests for extention of interim relief, which is strongly objected by learned Senior Counsel Mr.R.S.Sanjanwala appearing for respective respondents.
Consdering the observations so made in the judgment, request so made by learned advocate for the petitioner is turned down.
Sd/-
(MAULIK J.SHELAT,J) MOHD MONIS Page 37 of 37 Uploaded by MOHD MONIS(HC01900) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:43:03 IST 2025