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2009 Supreme(Guj) 269
2009 (3) GCD 1823 (Guj)
Hon’ble Mr. Justice C.K. Buch
Thakkar Raghurambhai Ranchhodbhai
Versus
President, Radhanpur Municipality & Ors.
Special Civil Application No. 2325 of 20091—Decided on 28/04/2009
Appearance :
Mr. S.M. Shah with M.M. Tirmizi, for Petitioner No. 1.
Mr. Deepak P. Sanchela, for Respondent No. 1.
None for Respondent No. 2.
Ms.Vandana Bhatt, Asst. Government Pleader, for Respondent No. 3.
Point in Issue :
Whether order of First Appellate Court reversing the finding and order of trial Court sustainable?
Headnote:Head Note :
Civil Procedure Code, 1908 — Order 39 Rules 1 and 2 read with Section 151, Order 43 Rule 1 — Gujarat Municipality Act — Section 258 — Specific Relief Act — Section 34 — Bombay Land Revenue Code — Section 61 — Constitution of India, 1950 — Article 227 — Interim relief — Granted by trial Court — Set aside by First Appellate Court on different independent reasons — And material not on record of Lower Court — Held, jurisdictional error committed by First Appellate Court — Court reversed the finding of First Appellate Court and restored order passed by Trial Court.
Held :
The suit before the lower Court is nothing but a plaint governing grievances against the local self government which was out to act in highhanded manner and when the Judge found that the action taken by the Municipality appears to be highhanded action and the act is also nothing but forcible dispossession of a person without serving notice, the Court decided to grant ad-interim mandatory relief. The case positively fall in the category where the ad-interim mandatory relief was required to be granted. True it is that normally the Court should go very slow in granting ad-interim mandatory relief but on going through fact at least this Court is able to reach to the conclusion that there was no scope for the appellate authority to reverse the finding for different independent reasons and on the material which was not on record of the lower Court. In my view, this is a case of jurisdictional error committed by the appellate authority which deals with the appeal preferred under Order 43 Rule 1 of CPC. The appeal preferred under Section 96 of CPC, is substantially different then the jurisdiction vested with the appellate Court exercising powers under Order 43 Rule 1 and 2 of the CPC. In my view therefore, the appellate Court has grossly erred in passing the order under challenge committing jurisdictional error and basing the same on some extraneous evidence. Therefore, the same requires to be quashed and order passed by the trial Court being just, legal and proper based on sound appreciation of evidence, requires to be uphold. [Para 19]
Law Laid Down :
The appeal preferred under Section 96 of CPC is substantially different then jurisdiction vested with appellate Court exercising power under Order 43 Rules 1 and 2 CPC.
C.K. Buch, J.—Invoking the writ jurisdiction of this Court under Article 227 of the Constitution of India, the petitioners have prayed for issuance of appropriate writ, order or direction quashing and setting aside the orders under challenge passed by the learned Presiding Officer, Fast Track Court, Patan dated 17/02/2009 in Civil Misc. Appeal No. 23 and 22 of 2008 preferred by the org. defendants.
2. Both the petitions are titled as petition preferred under Articles 226 and 227 of the Constitution of India. However, Mr. S.M. Shah, learned Senior Advocate appearing with Mr. M.M. Tirmizi, learned Advocate for the petitioner has clarified that petitioners propose these petitions as petition under Article 227 of the Constitution of India and same may not be treated as petitions, under Article 226 of the Constitution of India.
3. When these petition were listed for admission hearing, the Court decided to pass interim order on 16/03/2009 and the Court has referred only Article 227 of the Constitution of India by observing that petitioners have filed these petition under Article 227 of the Constitution of India.
4. As the controversy between the parties is in reference to supplementary proceedings drawn in the main suit under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, the original plaintiffs - petitioners had prayed for interim mandatory injunction placing gross circumstances before the Court and administering the action of respondent - Radhanpur Municipality. In the suit, before the trial Court the highhanded action violating principles of natural justice by the respondent-Radhanpur Municipality was placed before the learned Civil Judge and the learned Civil Judge decided to grant interim relief to the petitioner and after hearing parties and considering the documents produced vis-a-vis the written statement filed by respondent-Municipality, confirmed the earlier interim relief granted by the trial Court. The say of the petitioners is that the order passed by the learned Civil Judge was challenged by respondent-Radhanpur Municipality by way of filing appeals under Order 43, Rule 1 of CPC being Civil Misc. Application No. 22 and 23 of 2008. The first appellate Court reversed the finding of the learned lower Court and order granting interim mandatory injunction was quashed and set aside vide order dated 17/02/2009 in both the appeals. Hence, the petitioners have approached this Court by way of filing these two petitions invoking the writ jurisdiction of this Court. As the common question of law and fact is involved, the Court has decided to hear and dispose of both these petitions together by way of common judgment.
5. The Court is inclined to reproduce certain paragraph from the interim order passed by this Court in SCA No. 2325 of 2009 while granting interim relief to the petitioner vide order dated 16/03/2009:—
1. This petition is filed by the petitioner under Article 227 of the Constitution of India, who is original plaintiff of Regular Civil Suit No. 69 of 2008 pending in the Court of learned Principal Civil Judge, Radhanpur.
2. Collector, Patan be joined as party Respondent No. 3.
3. Heard Mr. P.M. Thakkar, learned Sr. Advocate appearing with Mr. M.M. Tirmizi, learned Counsel appearing for the petitioner.
4. Notice for final disposal returnable on 15th April, 2009. Mr. Dipak Sanchela waives service of notice on behalf of the respondent Municipality. Collector be served with notice with a direction that copies of all orders, if are passed as reasoned orders for cancellation or suspension of resolution passed by the respondent Municipality as reflected in the petition granting and renewing the lease, be brought before this Court on the next date of hearing.
5. Registry shall now list this petition for final disposal on 15th April, 2009.
6. It is the case of the petitioner that a parcel of land was given on lease to the petitioner and after due approval from the Respondent No. 1 Municipality, som
