Gujarat High Court
R L Dhingra vs Ashok Avas Makers Pvt Limited on 8 March, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SA/271/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 271 of 2016
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R L DHINGRA....Appellant(s)
Versus
ASHOK AVAS MAKERS PVT LIMITED....Respondent(s)
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Appearance:
MR KUNJAL D PANDYA, ADVOCATE for the Appellant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 08/03/2017
ORAL ORDER
1. Present Second Appeal is filed by the appellant-original plaintiff under Section 100 of the Code of Civil Procedure being aggrieved with the impugned judgment and order in Regular Civil Appeal No. 21 of 2008 by the learned 3rd Additional District Judge, Bharuch, dated 02.07.2016 confirming the judgment and order in Regular Civil Suit No. 28/93 by the learned 7th Additional Senior Civil Judge, Bharuch, dated 28.12.2007, posing the substantial questions of law as follows:-
"(I) Whether the Courts below have erred in dismissing the suit on the ground that it is not complied with the provsions of Section 91 of the CPC?
(II) Whether the Courts below have erred in Page 1 of 4 HC-NIC Page 1 of 4 Created On Sun Aug 13 22:09:36 IST 2017 C/SA/271/2016 ORDER holding that the defendant has right to restrain the society from constructing wall though he is not owner of the land in question?
(III) Whether the Courts below have failed to appreciate the provisions of Transfer of Property Act and the judgment and order passed by the Courts below are against the settled principles of law?
(IV) Whether the Courts below have failed to appreciate that, the G.R.No. 86 produced by the plaintiff, wherein it is specifically stated that the developer has no right in common plot as the common amenities of the society?
(V) Whether the learned Lower Appellate Judge exceeded his jurisdiction in confirming the findings of learned Trial Judge on all issues, without giving any specific reasons?
(VI) Whether the findings of the Courts below in regard that the defendant can restrain the plaintiff from constructing the wall, though he is not the owner of the land, are perverse on facts and law?
(VII) Whether the Courts below have failed to appreciate that the defendant, without consent of the members of the society got the combined Page 2 of 4 HC-NIC Page 2 of 4 Created On Sun Aug 13 22:09:36 IST 2017 C/SA/271/2016 ORDER plans revised and shown the road of the society as his exit road in violation of the Transfer of Property Act more particularily, when he has no locus standi after sale of the plots to respective members of Shantiniketan Society?
(VIII) Whether the Court below have failed to appreciate the combined plans are an illegal plans?
(IX) Any other and further substantial question of law which the Hon'ble Court deem fit and proper be framed?
2. Heard learned advocate Shri Kunjal Pandya for the appellant. He has referred judgments of both the Courts below and submitted that whether the organizer has any right, title or interest in respect of the land or the road of the society after the allotment has been made or not ? He, therefore, tried to submit that both the Courts below have failed to appreciate the relevant aspects. He also made feeble attempt to convenience the Court with regard to his right. Further, as discussed in both the judgments, the plaintiff has not filed suit in his representative capacity and the competent authority was not joined as a party. Moreover, the society was not joined as the party. Further, even as per the say of the learned advocate for the appellant that defendant has illegally and without having any right and interest demolished the disputed wall. He further submitted that the application filed by the applicant regarding such act was also dismissed by the Court. Therefore, the appellant herein has filed present appeal seeking relief Page 3 of 4 HC-NIC Page 3 of 4 Created On Sun Aug 13 22:09:36 IST 2017 C/SA/271/2016 ORDER that he may not be restrained from making construction of the wall in respect of the internal road of the society. Thus, it appears that there is a conflict of interest between the plaintiff and the defendant as a member of the society. Therefore, both the Courts below have appreciated this relevant aspect and have not entertained the suit, which cannot be said to be erroneous which would call for any interference in the Second Appeal. The questions of law which has been posed are only with regard to the appreciation of material evidence and it cannot be said to be any substantial questions of law.
3. The Hon'ble Apex Court has laid down broad guidelines with regard to scope of discretion under Section 100 of the Civil Procedure Code, 1908. A word of caution has been expressed that while exercising discretion 100 of the Code of Civil Procedure the concurrent finding of facts may not be disturbed unless there is substantial questions of law which can be said to have been involved. As stated above, there is hardly any question of law, much less any substantial question of law involved in the matter. Therefore, concurrent findings of fact may not call for any interference.
4. The findings of fact and conclusion arrived at by both the Courts below does not call for any interference as it cannot be said to be erroneous or perverse. The present Second Appeal deserves to be dismissed and accordingly stands dismissed.
(RAJESH H.SHUKLA, J.) Girish Page 4 of 4 HC-NIC Page 4 of 4 Created On Sun Aug 13 22:09:36 IST 2017