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AO/120/2008 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 120 of 2008
With
CIVIL
APPLICATION No. 4494 of 2008
In
APPEAL
FROM ORDER No. 120 of 2008
With
APPEAL
FROM ORDER No. 121 of 2008
With
CIVIL
APPLICATION No. 4495 of 2008
In
APPEAL
FROM ORDER No. 121 of 2008
With
APPEAL
FROM ORDER No. 138 of 2008
With
CIVIL
APPLICATION No. 5493 of 2008
In
APPEAL
FROM ORDER No. 138 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=============================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=============================================
MAGANBHAI
BHAYABHAI GELANI & 4 - Appellant(s)
Versus
JAGADGURU
SHRI VALLABHACHARYA VISHVAKALYAN TRUST & 11 - Respondent(s)
=============================================
Appearance :
MR
AJ YAGNIK for Appellant(s) : 1 - 5 in AO No. 120/2008 &
138/2008. MR SHALIN N MEHTA for Appellant(s) : 1 -
4 in AO No. 121/2008
MR PR NANAVATI for Respondent(s) : 1, 3,
MR
AY KOGJE for Respondent(s) : 2,
NOTICE SERVED BY DS for
Respondent(s) : 4 - 12.
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 14/06/2010
CAV
JUDGMENT
1. As
these Appeal from Orders arise out of one order passed by the learned
trial Court below Exh. 5, but by different appellants-original
defendants, they are being disposed of by this common judgement and
order.
1.1 Appeal
from Order No. 120/2008 under Order 43 Rule 1 (r) of the Code
of Civil Procedure has been preferred by the appellants-original
defendants nos. 3 to 7 to quash and set aside the impugned judgement
and order dated 15/12/2007 passed by the learned 11th
Additional Senior Civil Judge and Judicial Magistrate First Class,
Surat below Exh. 5 in Regular Civil Suit No. 480/2004 (old) and
Special Suit No. 225/2007 (new) by which the learned trial Court has
allowed the said interim injunction application submitted by
respondents nos. 1 to 4-original plaintiffs.
1.2. Appeal
from Order No. 121/2008 has been preferred by the appellants-original
defendants nos. 8 to 11 to quash and set aside the aforesaid order
passed below Exh. 5 in Regular Civil Suit No. 480/2004 (old) and
Special Suit No. 225/2007 (new).
1.3. Appeal
from Order No. 138/2008 has been preferred by the appellants-original
defendant no. 14 to quash and set aside the aforesaid order passed
below Exh. 5 in Regular Civil Suit No. 480/2004 (old) and Special
Suit No. 225/2007 (new).
2. Respondents
nos. 1 to 4 herein-original plaintiffs had instituted Regular Civil
Suit No. 480/2004, which has been subsequently given new Special Suit
No. 225/2007, in the Court of learned Civil Judge (Senior Division),
Surat for declaration and permanent injunction declaring that the
appellants-original defendants do not have right and/or interest in
the suit property in the campus of Jagadguru Vallabhacharya Vidyadham
run by respondent no. 1-original plaintiff no. 1 Public Trust and
to declare that the original plaintiffs have a right to use,
administer the aforesaid trust and the school premises. In the said
suit, respondents nos. 1 to 4-original plaintiffs also prayed for
permanent injunction restraining the appellants-original defendants
from interfering them from /using/occupying the school/suit premises.
In the said suit, original plaintiffs submitted interim injunction
application under Order 39 Rule 1 and 2 of the Code of Civil
Procedure below Exh. 5 restraining the appellants-original defendants
from obstructing the original plaintiffs from using the school
premises and the suit property. It was contented on behalf of the
original plaintiffs that original plaintiff no. 1-Trust, through
their trustees, is running the school since 1991, after obtaining
requisite permission from the State Government and the District
Education Officer and they are also running ‘gaushala’ in the said
premises and the appellants-original defendants are trying to disturb
their possession without following due procedure of law. The interim
injunction application was resisted by the appellants-original
defendants nos. 3 to 11 by filing reply at Exh. 32. It was submitted
that one Saurashtra Vaishnav Seva Samaj entered into agreement to
sell to purchase the suit property/land vide sale deed dated
01/01/1995 and,
thereafter, the respondents-original
plaintiffs-land owners executed the sale deed in favour of Saurashtra
Vaishnav Seva Samaj vide registered sale deed dated 26/07/2004 and,
therefore, the respondents-original plaintiffs have no right, title
or interest in the suit property in question. It was submitted that
as their Guru Shri Balkrushnaraiji Govindraiji Maharaj, who was the
head of Vaishnav Samaj and with whose guidance the Saurashtra
Vaishnav Seva Samaj was functioning, was permitted to use the suit
property, however, it is submitted that the respondents-original
plaintiffs have no right, title or interest in the suit property in
question. After hearing the learned advocates appearing on behalf of
the respective parties and considering the documentary evidence on
record and having found that the respondents-original plaintiffs,
more particularly, original plaintiff no. 1 is in possession of the
suit property in question and is running the school, after obtaining
necessary permission from the competent authority, and the
‘gaushala’, the learned trial Court vide impugned order dated
15/12/2007 has been pleased to allow the interim injunction
application, Exh. 5 granting the interim injunction in terms of
paragraph 5 of the interim injunction application restraining the
appellants-original defendants from obstructing the original
plaintiffs in using, administering the suit property and restraining
the appellants-original defendants from entering into the suit
premises and also restraining the appellants-original defendants from
putting up any construction and/or transferring the suit property
till the final disposal of the suit. Being aggrieved and
dissatisfied with the impugned order passed by the learned trial
Court below Exh. 5 dated 15/12/2007 in Regular Civil Suit No.
480/2007 (old) and Special Suit No. 225/2007 (new), the
appellants-original
defendants nos. 3 to 7, 8
to 11 and 14 have preferred the present Appeal from Orders.
3. Shri
Anand Yagnik, learned advocate has appeared on behalf of the
appellants-original defendants nos. 3 to 7 of Appeal from Order No.
120/2008 and appellant-original defendant no. 14 of Appeal from Order
No. 138/2008, Shri Shalin Mehta, learned advocate has appeared on
behalf of the appellants-original defendants nos. 8 to 11 of Appeal
from Order No. 121/2008 and Shri P.R. Nanavati, learned advocate
has appeared on behalf of the original plaintiffs.
4. The
learned advocates appearing on behalf of the respective
appellants-original defendants have submitted that the learned trial
Court has materially erred in allowing the application, Exh. 5 and
granting the injunction as prayed for in favour of the original
plaintiffs and against the appellants-original defendants. It is
submitted that as the original plaintiffs have no right, title or
interest on the disputed suit property in question and only the
religious head was permitted to use the suit property for charitable
purpose, who can be said to be the permissive user, the learned
trial Court is not justified in granting the injunction, more
particularly, when there was a ‘satakhat’/agreement in favour of
Saurashtra Vaishnav Seva Samaj in the year 1995 and the registered
sale deed came to be executed in favour of Saurashtra Vaishnav Seva
Samaj in the year 2004. It is submitted that the shops were also
constructed by the purchaser, after obtaining necessary permission
from the Surat Municipal Corporation, and, therefore, the learned
trial Court has committed an error in granting the injunction
restraining the appellants-original defendants
from using the suit property. It is further submitted that though
the original plaintiffs have failed to establish the possessional
title on the entire disputed property, the learned trial Court has
passed the impugned order granting the interim injunction and
allowing the application, Exh. 5, which deserves to be quashed and
set aside and, therefore, it is requested to allow the present Appeal
from Orders.
5. All
these Appeal from Orders are opposed by Shri P.R. Nanavati, learned
advocate appearing on behalf of the original plaintiffs. It is
submitted that when admittedly the original plaintiffs are in
occupation and possession of the disputed suit property and are
running the school/educational Institution since 1991-1992, after
obtaining permission from the District Education Officer and others
and are also running the ‘gaushala’, the learned trial Court has
rightly exercised the discretion judiciously and has rightly granted
the interim injunction, which is not required to be interfered with
in exercise of the appellate jurisdiction.
6. Shri
P.R. Nanavati, learned advocate appearing on behalf of the original
plaintiffs has relied upon the decision of the Hon’ble Supreme Court
in the case of WANDER LTD. AND ANR Vs. ANTOX INDIA P. LTD.
reported in 1990 (Supp) SCC 727 wherein
it is held by the Hon’ble Supreme Court that;
“The
appellate Court will not interfere with the exercise of discretion 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 or principle.
Appellate Court will not
reassess the material and seek to reach a conclusion different from
the one reached by the Court below 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.”
6.1. In
view of the above decision, it is submitted by Shri P.R. Nanavati,
learned advocate appearing on behalf of the original plaintiffs that
as held by the Hon’ble Supreme Court if it is found that the learned
trial Court has exercised the discretion judiciously, the same is not
required to be interfered with by the appellate Court and, therefore,
it is requested to dismiss the present Appeal from Orders.
7. Heard
the learned advocates appearing on behalf of the respective parties
at length. It is to be noted that the original plaintiffs have
instituted the suit for declaration and permanent injunction. It is
an admitted position that the original plaintiffs are in occupation
and possession of the disputed suit property atleast since many years
and are running the educational Institution, after obtaining
necessary permission from the competent authority. It is also to be
noted that in some part of the property ‘gaushala’ is also being run
by the original plaintiffs. The original plaintiffs, more
particularly, original plaintiff
no. 1, was permitted to use the property for educational
Institution, other religious and charitable purpose, which is not
disputed by the appellants-original defendants. Under the
circumstances, when the learned trial Court has exercised the
discretion in favour of the original plaintiffs and has granted the
injunction as prayed for restraining the appellants-original
defendants from obstructing the original plaintiffs from using the
suit property during the pendency of the suit, it cannot be said that
the learned trial Court has committed any error as the original
plaintiffs are in possession and are running the Institution/school
since many years, and, therefore, the balance of convenience is in
favour of the original plaintiffs. If the interim injunction as
prayed for is not granted there shall be irreparable loss to the
original plaintiffs. Under the circumstances, it appears that no
illegality has been committed by the learned trial Court in granting
the injunction. As held by the Hon’ble Supreme Court in the case of
WANDER LTD. AND ANR
(Supra), unless it is
found that the learned trial Court has exercised the jurisdiction
perversely and/or non-judiciously, the appellate Court should not
interfere with the order passed by the learned trial Court. It is to
be noted that the suit is yet to be decided by the learned trial
Court. Under the circumstances, any further order on merits would
prejudice the case of either parties to the suit. Suffice it to say
that the learned trial Court has rightly exercised the discretion in
favour of the original plaintiffs, as admittedly the original
plaintiffs are running the educational institution, after obtaining
permission from the competent authority and are running the
‘gaushala’ in the suit property since many years.
8. Under
the circumstances and for the reasons stated hereinabove, the present
Appeal from Orders are required to be dismissed and are dismissed
accordingly.
CIVIL
APPLICATION Nos.4494/2008, 4495/2008 & 5493/2008
In
view of dismissal of the Appeal from Orders, no order in the Civil
Applications.
(M.R.
SHAH, J.)
siji
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