Back
2024 Supreme(Online)(GUJ) 12645
HIGH COURT OF GUJARAT
MR. JUSTICE J. C. DOSHI, J
JADAVA RAMJI PADHARA – Appellant
Versus
JALUBEN HAJIIBRAHIM BAFAN – Respondent
R/SPECIAL CIVIL APPLICATION NO. 7467 of 2019
MR. RAJU N DESAI(7029), MS POOJA D RAVAL(11867), MR PARESH M DARJI(3700), NOTICE SERVED BY DS
The appellate court cannot substitute its discretion for that of the trial court without demonstrating a flagrant error, and a suit for mere declaration without seeking consequential relief is not maintainable.
Headnote:(A) Constitution of India - Article 227 - Civil Procedure Code - Order 43 Rule 1(r) - Challenge to appellate court's order quashing trial court's injunction - Appellate court exceeded jurisdiction by substituting its discretion for that of the trial court without establishing a flagrant error - The trial court's order was comprehensive and based on established legal principles regarding interim injunctions. (Paras 10, 16, 18)
(B) Specific Relief Act, 1963 - Section 34 - Suit for declaration without seeking consequential relief of possession is not maintainable - Plaintiffs failed to demonstrate a prima facie case or urgency for injunction, thus the appellate court's order was erroneous. (Paras 18, 22)
Facts of the case:
The petitioners challenge an appellate court's order that quashed a trial court's injunction against transferring disputed land, arguing the plaintiffs lacked a prima facie case and the trial court acted within its discretion. (Paras 5.1, 6)
Findings of Court:
The appellate court's order was set aside, affirming the trial court's discretion in denying the injunction based on established legal principles. (Paras 19)
Issues: Whether the appellate court exceeded its jurisdiction in quashing the trial court's injunction and the maintainability of the suit without seeking possession. (Paras 10, 18)
Ratio Decidendi: The appellate court must respect the trial court's discretion unless a clear error is shown; a suit for mere declaration without seeking further relief is not maintainable. (Paras 10, 18)
Result: Petition allowed; appellate court's order set aside.
| Table of Content |
|---|
| 1. the short facts of the case (Para 5 , 6 , 7) |
| 2. appellate court exceeded the jurisdiction (Para 8 , 9) |
| 3. appellate court's order is erroneous (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22) |
ORAL ORDER
Learned advocate for the petitioner submits that Respondent No.10 has expired prior to filing of the suit and therefore he may be permitted to delete respondent no.10. Permission, as prayed for, is granted. Necessary amendment be carried out.
2. Heard learned Advocates for the respective parties.
3. The instant petition is filed under Article 227 of the Constitution of India seeking to challenge the order dated 16/03/2019 passed in MCA No.17 of 2017 by the learned 6th Additional District Judge, Bhuj.
4. On 16/04/2019, the co-ordinate Bench issued Notice and the order passed by the learned appellate court is kept in abeyance and thereby water-down the effects of the injunction granted by the appellate court.
5. The short facts of the case are as under:
5.1 The respondent no.1 to 4 are the original plaintiffs filed special civil suit no.59 of 2016 before the trial court challenging the various sale deeds executed in the year 2004, 2005, 2007 and 2008 and also sought declaration that original plaintiffs has share/ inheritance share in the disputed land and also sought permanent injunction. Petitioners have appeared and filed their written statement.
5.2 The petitioners – org. defendants no.4 and 8 have preferred application under order 7 Rule 11 of the CPC to reject the plaint as bar by law of limitation and other grounds below exhibit 47. That trial court was pleased to dismiss said application on 19/10/2016 which was challenged by filing Civil Revision Application before this Court wherein the said CRA is permitted to be withdrawn by directing the trial court hear and decide the suit expeditiously.
5.3 The respondents-plaintiffs have also preferred application below Exh.5 with the suit and same was rejected by trial court by reason order dated 06.03.2017 and being aggrieved and dissatisfied with the order below Exhibit 5, original plaintiffs have filed Appeal No. 17 of 2017 before Appellate Court which was allowed by quashing and setting aside the order passed below Exh.5 which has given rise to the present petition.
6. In essence, the petitioners – org. defendant nos.4 and 8 challenges the order passed by the appellate court passed under O.43 R.1(r) of the CPC whereby order passed by trial court below Exh.5 is quashed and set aside whereby trial court issued injunction restraining the petitioners from transferring, selling and alienating the disputed land.
7. Learned Advocate for the petitioners while taking this Court through the pleading of the plaintiff, as well as, impugned order passed by the appellate court, pleadings would suggest that order passed by the court below is comprehensive order under the discretionary jurisdiction believing that plaintiff has no prima facie case, no balance of convenience is in favour of the plaintiff and if the injunction is not granted, the plaintiff would not suffer irreparable loss. He would submit that case of the plaintiff in brief was that the forged power of attorney of the plaintiff was used by defendant no.1-her real brother to transfer the subject matter of land. Whereas, plaintiff nos.2 to 5 claimed that they are left out from the joint property as some fraud took place in mutating the revenue entries. He would submit that the sale-deeds which were challenged by way of filing suit are eight to ten years old and the petitioners have purchased the suit property after giving public notice in the newspaper regarding title clearance which indicates that the petitioner is bona fide purchaser.
7.1 He would further submit that admittedly the petitioners are in possession of the disputed property. In a suit, the plaintiff has not claimed title of the property; nor has sought possession of the disputed property which indicates that the suit of the plaintiff i
