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Judgment
Divyesh A. Joshi, J
Challenge in this Appeal from Order, under Order 43 Rule 1(r) of the Code of Civil Procedure (hereinafter referred to as “the CPC” for short), is the order dated 09.11.2023 passed below application, Exh.5 by the learned 3rd Additional Senior Civil Judge, Jamnagar in Special Civil Suit No.33/2023 (Old Regular Civil Suit No.38/2023, whereby the injunction application preferred by the appellants has been partly allowed so far as Property No.2 of Scheduled – A, whereas said application qua Property Nos.1, 3 & 4 has been rejected.
Heard learned advocate, Mr. Nishit Gandhi for the appellants. Though served, none appears for the respondents.
Learned advocate submitted that the appellants herein are the original plaintiffs and the respondents herein are the original defendants in the suit filed by the original plaintiffs being Special Civil Suit No.33/2023 (Old Regular Civil Suit No.38/2023). Learned advocate submitted that the aforesaid suit has been filed for the land bearing Survey No.605 (Old Survey No.306/pk.1) admeasuring 2-92-61 Sq.Mtrs., Survey No.646 (Old Survey No.379/pk.2) admeasuring 2-99-47, Survey No.662 (Old Survey No.307/pk.2) admeasuring 0-92-40 and Survey No.663 (Old Survey No.307/pk.1) admeasuring 0-62-22 situated in the sim of Village : Mota Thavariya, Taluka & District : Jamnagar (hereinafter referred to as “the land in question” for short). Learned advocate submitted that initially the suit was filed by the original plaintiffs inter alia praying for partition, declaration and permanent injunction before the court of the learned Civil Judge, Jamanagar against the original defendant nos.1 and 2, where it has been registered as Regular Civil Suit No.38/2023, however subsequently, it has been renumbered and registered as Special Civil Suit No.33/2023. Learned advocate submitted that after filing of the suit, notice was issued upon the original defendant nos.1 and 2 and in pursuance thereto, they have appeared before the learned civil court through advocate. Learned advocate submitted that however pending suit, sale transaction had taken place between the defendant nos.1 and 2 and one Rambhai Dahyabhai Vesara for the Property Nos.1, 3 and 4 of Scheduled - A, which led to filing of an amendment application, Exh.14 in the plaint for joining him as party defendant no.3, which was eventually granted by the learned trial court by an order dated 12.06.2023 and accordingly, amended plaint was placed on record. Learned advocate submitted that in fact, the original plaintiff nos.1 to 4 are the original defendant no.2 are real brother and sisters and are the legal heirs of the original defendant no.1. Learned advocate submitted that land in question is ancestral properties and thus, the original plaintiffs have got equal share in the said ancestral properties but as stated above, an attempt is made to deprive the rights of the original plaintiffs by selling the ancestral property to third party as stated above and to protect their rights, aforesaid suit has been preferred. Learned advocate submitted that along with the suit, an application for injunction has been preferred by the original plaintiffs, however, the said application has not been considered by the learned trial court for all the ancestral properties, therefore, the present Appeal from Order has been preferred. Learned advocate submitted that in fact, the impugned judgment and order passed by the learned trial court is contrary to law and against the evidence on record as the original plaintiffs have successfully proved all basic and necessary ingredients i.e. prima facie case, balance of convenience and irreparable loss and damage going to cause to the original plaintiffs if the injunction is not granted but despite said fact, the learned trial court has partly allowed the injunction application as stated in impugned order. Learned advocate submitted that at the time of deciding the injunction application, the learned Judge has come to a conclusion that there are total four parcels of land (land in question), which have been mentioned in Schedule-A, out of which, only property mentioned at Sr. No.2 prima facie found to be ancestral property, whereas rest of the properties are self-acquired properties of the original defendant no.1. Learned advocate submitted that the original defendant no.1 happens to the father of the original plaintiffs and as per their case, they are permanently residing at Surat and earlier point of time, the original defendant no.1 was residing with them, however, the learned Judge has given specific finding to the effect that the said land is in the name of father and he has purchased the said property from his earning, therefore, the said property can be said to be self-acquired property and, therefore, the original defendant no.1 has got valuable right to sell the said property as per his will and wish. Learned advocate submitted that along with the suit, they have produced certain documents, which clearly goes on to show that the said property is ancestral property. He submitted that total four parcels of land have been mentioned in Schedule-A but the learned Judge has partly considered that the property mentioned at Sr. No.2 in the Schedule-A belongs to ancestral properties, therefore, stay qua the said Property No.2 of Schedule – A had been granted, whereas the property mentioned at Sr. No.1 of Schedule - A has been transferred in the name of the defendant no.1 through gift deed and entry to that effect came to be mutated in the revenue record, therefore, he had become absolute owner and occupant of the said property on the basis of the gift deed executed by his uncle, whereas the properties mentioned at Sr. Nos.3 and 4 were purchased by him, however, the original plaintiffs have failed to produce any documentary evidence to show that the said properties are the ancestral properties and the name of forefather of the plaintiffs were running in the revenue record since long and in absence of those material, the learned Judge has come to a conclusion that the said properties are self-acquired properties of the defendant no.1, therefore, the original plaintiffs have not got any right upon the said property, therefore, the injunction application qua said properties has not been considered by the learned trial court. Learned advocate submitted that in fact, the revenue record was produced along with the suit, which clearly goes on to show that the property mentioned at Sr. Nos.3 and 4 were transferred in the name of defendant no.1 by executing exchange-deed with the original owner of the said property and there was family settlement between the parties and as a part of the said settlement, the said parcel of land has been transferred in the name of third party by executing exchange-deed and third party has also executed exchange-deed in favour of the defendant no.1 and, therefore on the strength of the exchange-deed executed between the parties, the properties have been exchanged, therefore, the documents pertaining to revenue record produced by the original plaintiffs clearly goes on to show that on the strength of the exchange-deed executed by the parties, the properties are transferred in the name of the defendant no.1, therefore by no stretch of imagination, it can be said that the properties, wherein the name of the defendant no.1 is reflecting as owner and occupier, is self acquired property of the defendant no.1, however on the strength of exchanging the ancestral property, the defendant no.1 had become absolute owner and occupant of the said property and the said fact is clearly fortified from the revenue record. Learned advocate submitted that so far as entry regarding the property pursuant to the entrustment of the property to the defendant no.1 by his uncle by executing gift deed is concerned, the said entry had not been certified as parties have approached the Hon’ble Court and due to which, entry was mutated but subsequently it had become cancelled, therefore, all those properties are ancestral property of the original plaintiffs and, therefore, they have got indefeasible right to seek demand of their share in the said property and without taking them in confidence, the property of their share cannot be sold to third party. Learned advocate submitted that the mode and manner entire transaction took place clearly goes on to show that with sole intent to frustrate the prayer made in the suit in a very hastily manner, the defendant no.1 had executed registered sale deed of those properties in favour of the defendant no.3 and thereby created third party rights, therefore, act, action and mode and manner transaction took place clearly goes not to show that the defendant no.3 is not a bonafide purchaser and at the time of filing of the written statement, he has come with specific case that he is aware about the pending proceedings, despite the said fact, he had entered into an agreement and within a period of seven days, entire transaction took place without obtaining title clearance certificate of the said document. Learned advocate submitted that in fact, as soon as the original plaintiffs have come to know about the said development, immediately they have issued public notice in the newspaper by narrating above facts, despite the said fact, the original defendant no.3 had entered into transaction with sole intent to frustrate the valuable rights of the original plaintiffs. He further submitted that if the interim injunction as prayed for is not been granted, in that event, there are all possible chances that they will create third party rights, which ultimately frustrate the proceedings and it would create multiplicity of proceedings and just to avoid such position, an order of status quo ought to have been granted.
Learned advocate submitted that as stated above, notice has been issued in the present proceedings upon the respondents, which was duly served to the respondents but despite the said fact, they have chosen not to remain present before this Court to defend the proceeding, which clearly goes on to show their intention to prolong the proceeding. Learned advocate has reiterated the facts of the case and submitted that if the injunction as prayed for is not granted, in that event, the purpose of filing suit would be frustrated and the rights of the original plaintiffs having right, title and interest in the land in question, may be affected, therefore to protect the rights of the parties till final disposal of the suit pending before the learned civil court, injunction as prayed for may be granted.
In support of the aforesaid submissions, learned advocate for the appellants has put reliance upon following decisions,
(1) the judgment of the Hon’ble Supreme Court in case of Julien Educational Trust Vs. Sourendra Kumar Roy & Ors., reported in (2010) 1 SCC 379;
(2) the judgment of the Hon’ble Supreme Court in case of Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, reported in AIR 2005 SC 104;
(3) the judgment of the Hon’ble Andhra Pradesh High Court in case of Purna Bai & Ors., Vs. Ranchhoddas & Ors., reported in AIR 1992 ANDHRA PRADESH 270;
Relying upon the ratio enunciated in the aforesaid decisions, it is submitted that the present case is squarely covered by the said decisions, therefore, the relief as prayed for may be granted by allowing the present Appeal from Order.
Having heard the learned counsel for the respective parties and on perusal of the impugned judgment and order, the issue falls for consideration of this Court is as to whether the impugned judgment and order declining the injunction partly suffers from any error of law which calls for interference in the exercise of appellate jurisdiction?
It is well settled principles of law that in an Appeal against exercise of 'discretion' by the Court of first instance, the power of appellate Court to interfere with the exercise of discretion is restrictive. Merely because on facts, the appellate Court would have concluded differently from that of the learned Civil Court, that would not, by itself, provide justification for appellate Court to interfere. To justify interference, the appellant would have to demonstrate that 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 injunction. An appeal against the exercise of discretion is an appeal on principle. In the case of Wander Ltd. Vs. Antox India P. Ltd., reported in 1990 (Supp1) SCC 727, it has been adumbrated by the Hon’ble Supreme Court that the Appellate Court ought not to "re-assess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by that 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. If the discretion has been exercised by the trial Court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view, may not justify interference with the trial Court's exercise of discretion".
In view of the above settled principles of law, power of this Court, as an Appellate Court, to interfere with the order passed by the trial Court is very limited and only in exceptional circumstances, the Appellate Court can interfere with the discretionary order passed by the trial Court. The Appellate Court cannot re-evaluate the entire evidence and arrive at a conclusion contrary to the conclusion arrived at by the trial Court. However, in case where the order passed by the trial Court is found to be invalid, illegal, arbitrary, perverse or contrary to the settled principles of law, the Appellate Court has all powers to interfere with the same. Considering the above principles of law, this Court has only to see as to whether the trial Court has committed any error in passing the impugned order. It has also to see whether the main basic principles of law namely, prima-facie case, balance of convenience and irreparable loss are satisfied or not in passing the order.
Before adverting to the contentions, I would like to refer to the settled principles with regard to grant or refuse of temporary injunction and power and scope of the Appellate Court to interfere with the order of granting/ refusing the interim injunction. The grant of temporary injunction is discretionary and the appellate court will not interfere with the exercise of discretion of court at first instance 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. Aforesaid aspect has been dealt with by Hon'ble Supreme Court in the case of Esha Ekta Appartments CHS Limited & Ors. Vs. Municipal Corporation of Mumbai & Anr., reported in (2012) 4 SCC 689, wherein while dealing with the issues, the Hon’ble Supreme Court has observed in Paragraph Nos. 19 & 20 as under,
"19. We have considered the respective submissions and carefully scrutinized the record. The scope of the appellate Court's power to interfere with an interim order passed by the Court of first instance has been considered by this Court in several cases. In Wander Ltd. vs. Antox India (P) Ltd. 1990 Supp SCC 727, the Court was called upon to consider the correctness of an order of injunction passed by the Division Bench of the High Court which had reversed the order of the learned Single Judge declining the respondent's prayer for interim relief. This Court set aside the order of the Division Bench and made the following observations:
"In such appeals, the appellate court will 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. 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 that 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. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
In Skyline Education Institute (India) Pvt. Ltd. vs. S.L. Vaswani, (2010) 2 SCC 142, the 3-Judge Bench considered a somewhat similar question in the context of the refusal of the trial Court and the High Court to pass an order of temporary injunction, referred to the judgements in Wander Ltd. v. Antox India (p.) Ltd, (supra), N.R.Dongre v. Whirlpool Corpn., (1996) 5 SCC 714 and observed:
"The ratio of the abovenoted judgements is that once the court of first instance exercises its discretion to the grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the Court and is supported by cogent reasons, the appellate Court will be loath to interfere simply because on a de novo form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity."
It is thus apparent that the scope of interference by the Appellate Court with the order granting or refusing the temporary injunction is limited. Further, the interference can be made only in situations, where the Appellate Court is satisfied that the trial Court has acted arbitrarily or contrary to law or that, findings of the trial Court are perverse or capricious, palpably incorrect and are wholly untenable.
Thus considering the above ratio enunciated in the aforesaid decisions, coming to the facts of the case of the plaintiffs available from the facts and pleadings and furthered by submissions canvassed, it is found out that the appellants have filed Special Civil Suit No.33/2023 (Old Regular Civil Suit No.38/2023) inter alia praying for partition, declaration and permanent injunction for the land in question against the original defendant nos.1 and 2 and pending said suit, as there was sale transaction of the land in question in favour of the original defendant no.3, an application for joining him as party defendant no.3 was filed, which was eventually considered by the learned trial court and, thereafter, an application for injunction was heard and it was decided partly, which led to filing of present appeal just to protect their rights in the land in question.
It is not in dispute that the original plaintiff is the son and the original defendant no.2 is the daughter of the original defendant no.1 respectively. It is also not in dispute that the land in questions were running in the name of the original defendant no.1 as owner and occupier of the land and those are self-acquired and ancestral properties of the defendant no.1 being father, therefore, other legal heirs are having equal share in the said properties as per the provision of law. Here in the present case, the dispute pertains to four parcels of land i.e. the land in questions, wherein the appellants being legal heirs of the original defendant no.1 are claiming their share, for which, aforesaid suit has been filed and just to protect their rights and to avoid multiplicity of proceedings, an application for injunction had been filed, however pending hearing of the suit as also injunction application, the original defendant no.1 had entered into sale transaction with the original defendant no.3 for three parcels of land out of land in question knowingfully well about the pendency of the suit and the said fact was also well within the knowledge of the original defendant no.3 and the said fact is also admitted by him in reply, Exh.23 to the application, Exh.14. Thus not only the original defendant no.1 but also the original defendant no.3 are aware about the pendency of the suit and having full knowledge about the same, they have entered into sale transaction, therefore so far as the original defendant no.3 is concerned, the principle of ‘buyers beware’ is squarely applicable to the facts of the present case and the fate of said sale transaction between the original defendant no.1 and the original defendant no.3 would be decided at the time of deciding the suit.
At this stage, it is relevant to refer to the provisions Order XXXIX Rule 1 and 2 read with Section 151 of the Civil Procedure Code, 1908, which are reproduced as under:
"Order XXXIX Rule 1 and Order XXXIX Rule 2
Cases in which temporary injunction may be granted.-- Where in any suit it is proved by affidavit or otherwise--
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,] the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property 1 [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.
Injunction to restrain repetition or continuance of breach.--
(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.
SECTION 151 OF THE CIVIL PROCEDURE CODE:
Saving of inherent powers of Court.--
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
While considering the application under Order XXXIX Rule 1 and 2, the Court has to consider the factors like, prima facie case, balance of convenience and irreparable loss in terms of money, if injunction is not granted. This Court has powers under Order XLIII Rule 1 of the CPC, which is discussed by the Hon'ble Apex Court in the leading judgment rendered in the case of Wander Ltd & Anr. Vs. Antox India P. Ltd., reported in 1990 (Supp) 1 SCC 727.
A useful reference can be made to the judgment rendered by the Hon’ble Supreme Court in the case of Ramdev Food Products (P) Ltd. Vs. Arvindbhai Rambhai Patel & Ors., reported in (2006) 8 SCC 726, more particularly, paras 125 to 127, which are as under:
“125. We are not oblivious that normally the appellate court would be slow to interfere with the discretionary jurisdiction of the trial court.
The grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate courts will usually not interfere with it. However, appellate courts will substitute their discretion if they find that discretion has been exercised arbitrarily, capriciously, perversely, or where the court has ignored settled principles of law regulating the grant or refusal of interlocutory injunctions. This principle has been stated by this court time and time again.
The appellate court may not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that 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.”
At this stage, I would like to refer to the judgment of the Hon’ble Supreme Court in case ofN. Srinivasa Vs. Kuttikaran Machine Tools Ltd., reported in (2009) 5 SCC 182, wherein the Hon’ble Supreme Court has observed in Paragraph Nos.27 & 28 as under,
“27. In a contract for sale of immovable property, normally it is presumed that time is not the essence of the contract. Even if there is an express stipulation to that effect, the said presumption can be rebutted. It is well settled that to find out whether time was essence of the contract, it is better to refer to the terms and conditions of the contract itself.
Further more, the High Court, in our view, has failed to appreciate that by the impugned order they have also limited the scope of arbitration if ultimately the allegations made by the appellant are found to be true. That is to say, if an order restraining the respondent from creating any third party interest or from transferring the property in dispute is not granted till an award is passed, the appellant shall suffer irreparable loss and injury and the entire award if passed in his favour, would become totally negated.”
Thus in view of the proposition of law enunciated in the aforesaid decisions of the Hon’ble Supreme Court as well as considering the facts of the case on hand, it is found out that the appellants - plaintiffs have established prima facie case as also balance of convenience in their favour on the strength of the material available on record. Over and above that, the facts of the case as narrated hereinabove clearly goes on to show that this is one such case where an interim order is required to be passed to maintain the status quo of the land in questions, during the pendency of the suit filed by the appellants but at the same time, appropriate directions should also be given so that the suit is disposed of expeditiously. Further at this stage, it would not be appropriate in my part to express any further opinion on the merits and demerits of the suit. Therefore, the present Appeal from Order deserves to be allowed.
In the result, present Appeal from Order succeeds and is hereby allowed. The impugned order dated 09.11.2023 passed below application, Exh.5 by the learned 3rd Additional Senior Civil Judge, Jamnagar in Special Civil Suit No.33/2023 (Old Regular Civil Suit No.38/2023 is hereby modified to the extent that the parties are directed to maintain status quo with regard to the lands in question till final hearing and disposal of Special Civil Suit No.33/2023 pending before the court of the learned 3rd Additional Senior Civil Judge, Jamnagar. It is expected that the learned Civil Judge shall proceed with the plaint in accordance with law without being influenced by the observations made by this Court in the present order and decide the plaint as early as possible.
In view of above order passed in main Appeal From Order, connected Civil Application for stay does not survive and same stands disposed of accordingly.