Kanaiyabhai lalbhai Contractor, of Indian Inhabitant vs Kalpesh Patel

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 625

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S.PATEL, MADHAV J. JAMDAR, JJ
Kanaiyabhai lalbhai Contractor, of Indian Inhabitant – Appellant
Versus
Kalpesh Patel - Respondent
Ordinary Original Civil Jurisdiction Appeal No. 13 of 2022 In Interim Application (L) No 13158 of 2021 In Suit No. 78 of 2022 With Interim Application (L) No. 25334 of 2021 In Appeal No. 13 of 2022
Decided on : 01-04-2022

Advocates:
Advocate Appeared:
For the Appellant Ms Ferzana Behramkamdin, Shlesha Sheth, i/b FZB & Associates.
For the Respondents: Dr VV Tulzapurkar, Mandar Soman, Sean, Wassoodew & Rupesh Mandhare, Mr SC Naidu, with Divya Yajurvedi & Pradeep Kumar, i/b CR Naidu & Co

Headnote:
Evidence Act, 1872 - Sections 91, 92 and 99 - Property - Suit For Declaration And Partition - Application For Injunction - Whether Kanhaiya pleads rights in form of a ‘joint tenancy’ with four unities known to law - Whether Plaintiff had put before learned Single Judge enough material to unequivocally establish his case – Held, There is no attempt to explain his conduct except to state that record of rights is not evidence of title - Import of having supported an application for deletion of his name and having stood by that till date of suit is immense and has not been explained satisfactorily - All other contentions in support of plaint pales into insignificance in absence of a challenge to Release Deed and implementation of it - Law is that revenue records do not confer title and are not documents of title - But they do reflect changes in title by other documents - Thus, for instance, a change in record of rights deleting name of Plaintiff cannot be wholly ignored - By itself, that change in record of rights does not extinguish title; but it can certainly be used to show (particularly at an interim stage) that title stood extinguished by some other document, act, deed or thing - In other words, but for that other document, there could not have been such a change in record of rights - Prima facie case is not established - Balance of convenience is clearly against plaintiff on his own formulation of case; and case of irreparable prejudice answers itself against plaintiff too - Development of property cannot be held up for years together on a case by plaintiff that is entirely speculative and invites nothing but conjecture and surmise by convoluted reasoning - There is documentary material against Plaintiff, and his own conduct does not substantiate his case - There is no material on facts nor any law cited that could persuade Court to interfere - Ms Behramkamdin applies for a continuation of ad-interim stay against demolition that has continued, and which the learned single Judge continued from date of the impugned order - It has continued since until today - Dr Tulzapurkar and Mr. Naidu oppose application - They maintain that mere fact that an ad-interim order has continued because Court could not take up matter earlier is no reason to continue it - Had the Plaintiff been able to show some vestige of a case, perhaps things might have been different - But having been able to show no prima facie case at all, they submit, it would be wholly unfair to continue ad-interim stay any further - Notably, they point out, Plaintiff does not offer any security for loss or damage caused by continuing stay – Court is inclined to agree with Dr Tulzapurkar and Mr Naidu – Court find no reason to continue ad-interim stay - Appeal dismissed.

JUDGMENT :

G.S. Patel, J.

1. The Appeal assails an order dated 25th October 2021 by a learned Single Judge made on the Appellant’s Interim Application for injunction and other reliefs in a suit for declaration and partition of immovable property[Interim Application (L) No 13158 of 2021 in Suit No. 78 of 2022].

2. We have heard Ms Behramkamdin for the Appellant at some considerable length. We have considered the material on record and studied the impugned judgment and order declining interim relief. Having considered all the material on record and the submissions on behalf of the Appellant, we are of the view that the learned Single Judge’s careful and elaborate judgment requires no interference. Indeed, we believe the view the learned Single Judge took is not only a plausible view; it is the only possible view in the circumstances of the case. We have held that the Interim Application was correctly dismissed. Our reasons follow.

3. We begin this judgment by first referring to the decision of the Supreme Court in Wander Limited v. Antox India Pvt Ltd., 1990 (SUPP) SC 727. In paragraph 14, the three-Judge Bench of the Supreme Court said:

“14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. 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 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. 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. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) :

“... These principles are well established, but as has been observed by Viscount Simon in

Charles Osention & Co. v. Johnston ‘…the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.”

The appellate judgment does not seem to defer to this principle.” (Emphasis added)

4. It is also well settled that when considering an application for interim relief, a Single Judge is not expected and is in fact not permitted to conduct mini-trial. It is the prima facie case that is to be assessed.[SM Dyechem Ltd v Cadbury India Ltd, (2000) 5 SCC 573; Anand Prasad Agarwalla v Tarkeshwar Prasad & Ors, (2001) 5 SCC 568; Zenit Mataplast Pvt Ltd v State of Maharashtra & Ors, (2009) 10 SCC 388.]

5. Further, as the Supreme Court said in Monsanto Technology LLC v Nuziveedu Seeds Ltd, (2019) 3 SCC 381 the appeals court must not ‘usurp the jurisdiction of the Single Judge’; it must confine itself to an adjudication of whether the impugned order was or was not justified in the facts and circumstances of the case. Where there are complicated mixed questions of law and fact, these cannot be dealt with in a summary adjudication, but must be examined on evidence led in the suit.

6. It is also settled, as the Supreme Court said in paragraph 31 of Alka Gupta v Narendra Kumar Gupta, (2010) 10 SCC 141 that it is not open to

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2022 Supreme(Bom) 625

Cases Referred (9)