Gujarat High Court
Imran Shabbir Ahemad Shaikh vs Vakil Ahemad Abdul Aziz Pathan on 11 August, 2014
Author: S.H.Vora
Bench: S.H.Vora
C/AO/264/2010 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 264 of 2010
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IMRAN SHABBIR AHEMAD SHAIKH....Appellant(s)
Versus
VAKIL AHEMAD ABDUL AZIZ PATHAN....Respondent(s)
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Appearance:
MR C G SHARMA, ADVOCATE for the Appellant(s) No. 1
MR JINESH H KAPADIA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 11/08/2014
ORAL ORDER
1. Challenge in this appeal from order is order dated 21.7.2010, whereby the learned Judge was pleased to pass following order.
"The notice of motion taken out of the plaintiff is hereby dismissed. The relief prayed by the defendant in his counterclaim application vide Exh.17, for restoration of the suit premises is hereby granted. The plaintiff is directed to handover the peaceful possession of the suit premises to the defendant within 15 days from today."
2. I have heard submissions of learned advocate Mr. C.G. Sharma for the appellant and learned advocate Mr. J.H. Kapadia for the respondent.
Page 1 of 7 C/AO/264/2010 ORDER3. Party to the proceedings would be referred to as per their original status.
4. The dispute relates to plot No.93 situated in the area known as Noornagar, Rakhial, Tal: City, Dist: Ahmedabad (hereinafter referred to as "the suit property"). It is the case of the plaintiff that the plaintiff has never rented suit property to the defendant. It is the case of the plaintiff that the defendant has filed one H.R.P. No.2036 of 2007 before the Court of Small Causes, but because of defendant's continuous absence, the said suit was dismissed for default on 12.5.2010. It is specific case of the plaintiff that the defendant demanded some amount and as the said amount was found reasonable to the plaintiff, he paid the same to the defendant and then the defendant vacated the suit premises on 13.5.2010 and since then, the plaintiff is in possession of the suit property. Whereas, the defendant has denied the facts as stated by the plaintiff in the plaint and injunction application. It is the case of the defendant that he has never vacated the suit premises, but he is residing in the suit property since last 20 years. It is further the case of the defendant that he is having ration card, election card etc. It is specific case of the defendant that on 15.5.2010, the plaintiff had broken the door, which is situated to the rear portion of the suit premises and at that time, the defendant went to civil Hospital for treatment of his wife and thus, taking advantage of such situation, the plaintiff has thrown out his articles outside the suit property and when the defendant came about this, he made call on No.100 to the police. Pursuant to that, a complaint was registered against the plaintiff and others vide C.R. No. I - 68 of 2010 under sections 143, 452 and 427. It is specifically contended by the Page 2 of 7 C/AO/264/2010 ORDER defendant that he has never handed over possession to the plaintiff nor has taken any amount or demanded any amount. Lastly, it is contended that the plaintiff has illegally taken possession and he has handed over the possession to the plaintiff.
5. In reply to the defendant's case, the plaintiff has filed his rejoinder affidavit below Exh.20 before the trial Court, wherein the plaintiff has denied all the averments and allegations made by the defendant and further contended that after dismissal of H.R.P. No.2036 of 2007, the defendant approached the plaintiff and after making compromise, voluntarily vacated the premises after accepting the money.
6. In the said suit, the defendant has also filed counterclaim for injunction vide Exh.17. The learned trial Judge after hearing both the sides, dismissed the Notice of Motion Exh.6/7, whereas relief prayed for by the defendant in his Notice of Motion Exh.17 for restoration of possession of the suit premises was granted.
7. I have heard the submissions made at bar. Learned advocate Mr. Sharma contended that the defendant ought to have filed substantial suit for possession and therefore, Notice of Motion Exh.17 filed by the defendant is not maintainable at law. The said submission is not legal and valid for the simple reason that the plaintiff has filed suit for injunction, wherein the defendant has claimed possession and therefore, considering the nature of counterclaim for possession, such claim could be entertained by operation of Order 8 Rule6(A) (1) of the Code of Civil Procedure, 1908. Such principle is Page 3 of 7 C/AO/264/2010 ORDER settled by the Hon'ble Apex Court in case of Gurbachan Singh Vs. Bhag Singh and others reported in AIR 1996 SC 1087. Therefore, there is no substance in the submissions made by learned advocate Mr. Sharma to the effect that the defendant is required to file substantial suit for possession.
8. I have minutely examined the findings recorded by the learned trial Judge in para Nos.7 to 10. Learned advocate Mr. Sharma for the appellant could not point out any infirmity in the findings recorded by the learned trial Judge to the effect that the defendant was in lawful possession of the suit property before filing of the suit and also the plaintiff unlawfully and illegally evicted the defendant on 15.5.2010. Therefore, the learned trial Judge has rightly directed the plaintiff to hand over the peaceful possession to the suit property to the defendant within 15 days from the date of order passed on 21.7.2010. No ground or reason exists in favour of the plaintiff to entertain the present appeal, as the defendant has been evicted without following due procedure of law and in illegal manner and therefore, present appeal from order is meritless both on law and on facts.
9. 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. reported 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 Page 4 of 7 C/AO/264/2010 ORDER 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."
10. 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 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 Page 5 of 7 C/AO/264/2010 ORDER 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."
11. So, in light of the limited powers of this Court, the Appellate Court can interfere with the discretionary 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 Page 6 of 7 C/AO/264/2010 ORDER 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.
12. In the result, present appeal from order fails and accordingly stands dismissed.
(S.H.VORA, J.) shekhar Page 7 of 7