Kantilal Keshavlal vs Sohan Jayantilal Patel and 3

Rajesh H. Shukla, J.—The present Appeals from Order have been filed under Order 43 Rule 1 of the Code of Civil Procedure, 1908 being aggrieved with the order passed below Exhibits 6 and 18 in HRP Suit No. 1215 of 2010 as well as HRP Suit No. 1216 of 2010 by the Small Causes Court, Ahmedabad dated 28.6.2012 on the grounds stated in the Appeals from Order. Heard learned Advocate Shri Pinakin M. Raval for the Appellants and learned Advocate Shri Premal R. Joshi for the Respondents.

Learned Advocate Shri Pinakin Raval has referred to the papers, including the proceedings of the earlier Civil Suit No. 952 of 2010. Thereafter the development, which has taken place that the original owner has sold the property, and therefore, the present Suits have been filed again. Further, he has also referred to the report of the Court Commissioner to emphasize his submission about demolition of the wall on the Southern side of the shop and has pressed that it requires repairing so as to protect his goods, and the wall has been demolished by taking the law into the hands. He therefore submitted that the present Appeal from Order may be allowed.

Learned Advocate Shri Premal Joshi for the Respondents has submitted that earlier the interim order was passed, which has been modified as recorded in the impugned order and it has been specifically observed that it is a matter of appreciation of evidence and the permission has been granted by erecting wire fencing, and therefore, his interest is protected. He submitted that therefore the present Appeal from Order may not be entertained as the order cannot be said to be perverse.

In view of this rival submissions and having regard to the facts, the present Appeals from Order cannot be entertained as the permission has been granted to secure his place and the goods by erecting the wire fencing. However, learned Advocate Shri Pinakin Raval has stated that the wall has been demolished which he desires for the protection of the goods and his interest. Again, it would be a matter, which could be considered by the trial court as the approach in the present Appeals from Order has to be on the basis of material evidence to consider whether the order passed by the Small Causes Court calls for any interference. For that purpose, it is well accepted that normally, the appellate court would not interfere with the discretionary order unless it is stated to be perverse or contrary to the material evidence or has failed to take into consideration the relevant material evidence or is contrary to any statutory provision of law.

In the facts of the present case, broadly, it is a matter of evidence and the situation prevailing, for which, different court commissioners have also made a report. Therefore, it would not be desirable for this court to interfere and the present Appeals from Order deserve to be dismissed and accordingly stand dismissed.

Learned Advocate Shri Pinakin Raval has submitted that liberty may be reserved for the Appellants to approach the Small Causes Court with a fresh application with necessary justification that permission for constructing the wall on the Southern side may be granted. The liberty as prayed is granted.

It goes without saying that as and when such an application is made, the Small Causes Court shall decide the same in accordance with law on merits after considering the rival submissions.

Accordingly, both the Appeals from Order stand rejected with the aforesaid observations. The Civil Applications does not survive. Notice discharged.