Gujarat High Court
Lumbaram Simataramji Bhil vs Desai Parbatbhai Dahyabhai on 10 April, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/AO/47/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 47 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/APPEAL FROM ORDER NO. 47 of 2019
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LUMBARAM SIMATARAMJI BHIL
Versus
DESAI PARBATBHAI DAHYABHAI & 2 other(s)
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Appearance:
MR HRIDAY BUCH(2372) for the Appellant(s) No. 1
MR VIJAY H NANGESH(3981) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 10/04/2019
ORAL ORDER
1. The present Appeal from Order is filed under Order 43 Rule 1(r) of the Code of Civil Procedure for the purpose of challenging the legality and validity of order dated 30.3.2018 passed by the learned Principal Senior Civil Judge, Deesa below Exh.5 in Special Civil Suit No.208/2014 whereby an application Exh.5 came to be allowed. As a result of this, present Appeal from Order is filed.
2. At the outset, learned advocate Mr.Hriday Buch appearing for the appellant has submitted Page 1 of 8 C/AO/47/2019 ORDER that first and foremost contention is that the impugned order passed by the learned trial Judge is practically without assigning any cogent reasons. Resultantly, there is no conclusion with regard to the prima facie case, balance of convenience or irreparable loss and this being equitable relief, aforesaid consideration ought to have been considered by the Court below. As a result of this, the order is supported by no reasons at all and the same deserves to be corrected. Alternatively, a request is made to direct the learned trial Judge to reconsider Exh.5 application.
3. To oppose the stand taken by the learned advocate for the appellant, Mr.Vijay H. Nangesh, learned advocate for the respondent has submitted that while exercising discretion, the learned Judge appears to have considered the material on record. However, he could not withstand the contention about the nonassigning of reasons. As a result of this, matter is left it to the Page 2 of 8 C/AO/47/2019 ORDER discretion of Court.
4. Having heard the learned advocates for the parties and having gone through the material on record, exfacie appears from the impugned order that the impugned order is not supported by any reasons, muchless a valid reason. It also appears clearly that there is no conclusion about three material ingredients while exercising discretion under Order 39 Rule (1) (2) of the Code of Civil Procedure and also there is no satisfaction about the prima facie case or balance of convenience or irreparable loss. As a result of this, it looks like an order laconic in nature.
5. As held by catena of decisions, the reasons are part and parcel of principle of natural justice. Apart from that, even reasons are treated as heartbeats of decision making process and in one of the decision of the Hon'ble Apex Court has observed like this.
Page 3 of 8 C/AO/47/2019 ORDER
(1) A decision in case of Assistant Commissioner, Commercial Tax Department, Works Contract & Leasing, Kota v. M/s.Shukla & Brothers, rendered in SLP (C) No.16466 of 2009, decided on 15.4.2010. Relevant observations are as under :
"In a very recent judgment, the Supreme Court in the case of State of Orissa v. Dhaniram Luhar (2004) 5 SCC 568 while dealing with the criminal appeal, insisted that the reasons in support of the decision was a cardinal principle and the High Court should record its reasons while disposing of the matter.
The Court held as under:
"8. Even in respect of administrative orders Lord Denning, M.R. In Breen v. Amalgamated Engg. Union observed:
"The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree it was observed: "Failure to give reasons amounts to denial of justice."
"Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in Page 4 of 8 C/AO/47/2019 ORDER adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speakingout. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasijudicial performance."
Following this very view, the Supreme Court in another very recent judgment delivered on 22nd February, 2008, in the case of State of Rajasthan v. Rajendra Prasad Jian, Criminal Appeal No. 360/2008 (Arising out of SLP (Crl.) No. 904/2007) stated that "reason is the heartbeat of every conclusion, and without the same it becomes lifeless."
Providing of reasons in orders is of essence in judicial proceedings. Every litigant who approaches the Court with a prayer is entitled to know the reasons for acceptance or rejection of such request. Either of the parties to the lis has a right of appeal and, therefore, it is essential for them to know the considered opinion of the Court to make the remedy of appeal meaningful. It is the reasoning which ultimately culminates into final decision which may be subject to examination of the appellate or other higher Courts. It is not only desirable but, in view of the consistent position of law mandatory for the Court to pass orders while recording reasons in support thereof, however, brief they may be. Brevity in reasoning cannot be understood in legal parlance as absence of reasons. While no reasoning in support of judicial orders is impermissible, the brief reasoning would Page 5 of 8 C/AO/47/2019 ORDER suffice to meet the ends of justice at least at the interlocutory stages and would render the remedy of appeal purposeful and meaningful. It is a settled canon of legal jurisprudence that the Courts are vested with discretionary powers but such powers are to be exercised judiciously, equitably and in consonance with the settled principles of law. Whether or not, such judicial discretion has been exercised in accordance with the accepted norms, can only be reflected by the reasons recorded in the order impugned before the higher Court. Often it is said that absence of reasoning may ipso facto indicate whimsical exercise of judicial discretion...."
6. Considering the aforesaid proposition of law, only on this ground, the impugned order dated 30.3.2018 requires to be set aside with a consequential direction to reconsider the issue of interim relief application at Exh.5 afresh.
7. Accordingly, the present Appeal from Order is disposed of with following directions: (A) The impugned order dated 30.3.2018 passed by the learned Principal Senior Civil Judge in Special Civil Suit No.208/2014 is hereby quashed and set aside and Page 6 of 8 C/AO/47/2019 ORDER consequently, the the learned Principal Senior Civil Judge is directed to rehear Exh.5 application submitted in Special Civil Suit No.208/2014 on its own merits after hearing both the parties.
(B) It is further expected that in view of the aforesaid observations, the decision be taken at application Exh.5 in accordance with law after assigning proper reasons and arriving at a detailed conclusion on three main issues governing grant or refusal of injunction under Order 39 Rule (1) (2) of the Code.
(C) Since the Court has practically remanded the matter back for reconsideration of application Exh.5, no opinion is expressed by the Court on any of the contention of either side and it is open for the learned concerned Judge to hear and decide the same without being influenced by any of the Page 7 of 8 C/AO/47/2019 ORDER observations made by this Court.
8. With the above observation and direction, this Appeal from Order stands disposed of. Since the main matter is disposed of, connected Civil Application does not survive and it is disposed of accordingly.
(A.J. SHASTRI, J) *** Vatsal Page 8 of 8