IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9291 of 2002 with SPECIAL CIVIL APPLICATION No 10359 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- BHAGWANBHAI KARAMANBHAI BHARVAD Versus AROGYANAGAR CO.OP.HOUSING SOCIETY LTD. -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9291 of 2002 MR SB VAKIL SR COUNSEL WITH MR ASPI M KAPADIA for Petitioner No. 1 MR MC BHATT SR. COUNSEL WITH MR SHITAL R PATEL for Respondent No. 1 MR YOGESH S LAKHANI for Respondent No. 2-8 2. Special Civil Application No. 10359 of 2002 MR YOGESH S LAKHANI for Petitioner No. 1 MR MIHIR THAKORE SR. COUNSEL WITH MR SHITAL R PATEL for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE KUNDAN SINGH Date of decision: 06/21-02-2003 COMMON ORAL JUDGEMENT 1. Rule. Heard the learned counsel for the parties. Both these petitions are filed against the judgment and order dated 30-8-2002 passed by the Fourth Extra Assistant Judge, Ahmedabad (Rural), Navrangpura in Misc. Civil Appeals No. 95 of 2001 and 96 of 2001. As both these petitions are arising out of the same judgment and order of the trial Court, these petitions are disposed of by common judgment. 2. The plaintiff filed Regular Civil Suit No. 513 of 1999 for declaration and permanent injunction along with the application exh. 5 for interim injunction. The defendants also filed an application exh. 51 for vacating ex-parte interim order, wherein both the parties were directed to maintain status-quo vide order dated 23-11-2001 by the trial Court. Initially, the ex-parte order was passed by the trial Court but subsequently after hearing both the parties to the aforesaid suit, the final order of status-quo was passed allowing the application exh. 5 and confirmed the ex-parte interim order and rejected the application exh. 51 of the defendants. Against the said common judgment and order dated 23-11-2001 passed in the aforesaid civil suit, the plaintiff also filed Civil Misc. Appeal No. 96 of 2001 and the defendant No. 6 filed Civil Misc. Appeal No.95 of 2001. Civil Misc. Appeal No. 96 of 2001 filed by the plaintiff was allowed and Civil Misc. Apeal No. 95 of 2001 of the deefndant no. 6 was dismissed by the 4th Extra Assistant Judge, Ahmedabad (Rural) vide his common judgment and order dated 30-8-2002. As such, the defndants being aggrieved and dissatisfied by the common judgment and order dated 30-8-2002 passed Regular Civil Suit No. 513 of 1999, the defendant no. 6 filed Special Civil Application No. 9291 of 2002 and the defendants no. 1 and 3 to 5 and heirs and legal representatives of the original defendant no. 2 filed Special Civil Application No. 10359 of 2002. 3. The brief facts of the case are that the defendants no. 1 to 5 were original owners of the land bearing Survey No. 864 admeasuring 19602 sq. mtrs. situated in the sim of village Vejalpur, District, Sub District Ahmedabad and they decided to sell the said land and hence they executed "banakhat" (agreement to sell) in favour of the plaintiff - the Arogyanagar Cooperative Housing Society Ltd. after receiving the entire consideration of Rs.7,84,080-00 by cheque and in cash on 2-3-1993. On the same day, they executed other document i.e. a notarized supplementary agreement for possession in favour of the plaintiff society. Irrevocable Specific power of attorney was also executed by the defendants no. 1 to 5 in favour of one Jayantibhai C. Patel. They have also executed notarized indemnity bond and notarized "Sogadhnama" (affidavit). On behalf of the defendants no. 1 to 5 the power of attorney holder executed five separate sale deeds on 8-4-1999 in favour of the plaintiff - society. Those separate five sale deeds were produced before the Sub-Registrar, for registration on 17-7-1999. As the plaintiff was not an agriculturist, permission for transfer of an agricultural land to a person not an agriculturist was required. The permission of transfer of the land in question u/s 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 was granted by the Collector concerned on 24-7-1999. Therefore, aforesaid five sale deeds were registered on 3-8-1999 by the Sub-Registrar and thereafter the mutation entries were also effected on 18-12-1999 in the record of rights i.e. village form no. 7-12 and other revenue records, and those entries were certified by Mamlatdar on 1-2-2000. It shows that the defendants no. 1, 3, 4 and 5 have also executed registered sale deeds on 26-12-1997 in favour of the defendants no. 6 as well as notarized power of attorney in favour of Amrutbhai and notarized supplementary agreement for possession was also executed on the same day. The sale deeds were also executed by the defendants no. 1, 3, 4 and 5 in favour of the defendant no. 6 by the power of attorney holder on 24-5-1999. Mutation entries were also made on 31-5-1999 in the record of rights of village Vejalpur Panchayat. The Mamlatdar cancelled the mutation entry on 24-1-2000 against which an objection was raised and appeal was filed by one Bharwad against the order of the Mamlatdar. The Dy. Collector dismissed the appeal vide order dated 22-2-2001. Thereafter, Revision Application was filed by Bhagwanbhai Bharwad before the Gujarat Revenue Tribunal which was also rejected on 8-10-2002, as per the statement of the learned counsel for the plaintiff. The Court Commissioner was appointed and his report dated 20-7-2001 shows the construction of the plaintiff on the disputed land. 4. In the present case, the following question arise: A. The first question is regarding maintainability of the writ petition against the interlocutory order for interim injunction passed in Civil Misc. Appeal by the District Court and the scope of jurisdiction under Article 227 of the Constitution of India. As invalid deeds of conveyance were not declared by any court of law or by any competent authority, they will be treated as valid more so the permission has been granted by the Collector concerned u/s 63 of the Tenancy Act for transfer of the property to a person who was not an agriculturist i.e. the plaintiff society. From the facts and circumstances of this case, the sale deeds executed in favour of the plaintiff society by Jayantibhai C. Patel power of attorney holder on behalf of the original land owners - i.e. defendants no .1 to 5 will operate from the date of execution of the sale deeds and not from the date of registration. The learned counsel for the petitioner at the out set contended that the sale deeds executed in favour of the plaintiff society by the power of attorney holder on behalf of the land owners are antedated and cannot be relied and the court below has committed manifest error in relying the sale deeds executed by the power of attorney holder on behalf of the land owners which are antedated. Learned counsel for the petitioner referred to the date of execution of the sale deeds 8-4-1999 in favour of the plaintiff society by the power of attorney holder Jayantibhai C. Patel and those sale deeds were presented for registration in the office of the Sub-Registrar, Ahmedabad on 17-7-1999 after about three months. There was no need for keeping the sale deeds in their possession for about three months. They could have been presented before the Sub-Registrar, Ahmedabad for registration on the very next date of the execution. Non-presentation of those sale deeds before the Sub-Registrar, Ahmedabad for about three months, will raise an adverse inference that those sale deeds were executed antedated in order to make them operative and effective from the date of the execution, as the sale deeds were executed in favour of the defendant no. 6 by the power of attorney holder on 24-5-1999. I have considered the contention of the learned counsel for the petitioner but he could not convince this Court to hold that the sale deeds executed by the power of attorney holder in favour of the plaintiff society were antedated in absence of any material on record to show otherwise. Moreso delay in presenting sale deeds before the Sub-Registrar is not sufficient to draw adverse inference for holding that the sale deeds are antedated. Thus, the contention of the learned counsel for the petitioner in this respect is not tenable at all. The learned counsel for the petitioner/defendant no. 6 contended that this Court has wide power and jurisdiction under Article 227 of the Constitution to entertain a writ petition against an order passed by the Court below or Lower Appellate Court wherein the order is erroneous, illegal, invalid, against the law and not sustainable in the eye of law, even an appeal lies against the order of lower court and appeal is not adequate and efficacious and expeditious remedy this Court can entertain writ petition. Learned counsel for the petitioner relied on the following decisions of the Apex Court and this Court. (i) In the case of Ram And Shyam Company V. State of Haryana and others reported in 1985 (3) SCC 267, wherein it is held as under : "The rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion, a self-imposed restraint on the court, rather than a rule of law. it does not oust the jurisdiction of the Court. Where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Article 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government . An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits." (ii) In the case of Board of Trustees, Kandla Port Trust V. Mulraj Ashokkumar Mathreja reported in 1986(1) G.L.R. 442, it has been held as under : "Amplitude of power under Article 227 of the Constitution of India is very wide. It would depend upon the facts and circumstances of each case and the question whether the Court should exercise this power even when an appeal or a revision is maintainable and even at the interim stage of a proceeding pending before the lower Court, will be determined mainly on the basis of the facts and circumstances of the case. It is clear that in the instant case the respondent-plaintiff has, by obtaining interim order from the Court of Civil Judge (J.D.), Gandhidham-Kutch abused the process of the Court. There is irregularity entertaining the suit and this irregularity touches upon the jurisdiction of the Court itself. The Trial Court has conducted the proceedings before it in a manner which is contrary to the accepted rules of procedure and it certainly offends the Court's sense of fair play and justice. In such a situation it becomes an imperative duty of the High Court to exercise its power under Article 227 of the Constitution of India and interfere with the interim order passed by the Trial Court. If this is not done, immense harm and injury will be caused to the cause of justice which cannot be permitted to be perpetuated on the ground that the interim order passed by the Trial Court could have been challenged by way of appeal and/or revision." (iii) In the decision in the case of Baby V. Trancorer Devaswom Board and others reported in 1998 (8) SCC 310, the Supreme Court has held as under : "The High Court had still powers under Article 227 of the Constitution of India to quash the orders passed by the tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents the consideration of which could have led to an opposite conclusion. This power of the High Court under the Constitution of India is always in addition to the powers of revision under Section 103 of the Act. In that view of the matter, the High Court rightly set aside the orders of the tribunals." (iv) In the decision of this Court in the case of Sizerali Mohamedali Lodhia V. Gujarat State Road Transport Corporation reported in 2001 (2) G.L.R. 1120, it has been held as under : " In view of the Scheme of the Act under consideration and in view of the fact that our own Court itself has entertained such petitions in large number of cases including the question as to whether writ petition should be entertained or not, this Court has held that the petitions are maintainable and they cannot be thrown on the objection of the order being revisable. The Court also finds that in such cases, the revision as such may not be equally efficacious and alternative remedy. One more consideration which prevails is that in such cases, when different orders are passed by the district Courts as an appellate authority under the provisions of the Act and in such cases if it is held that the revision lies under Section 115 of the C.P.C. merely because the order is passed by the appellate authority - Dist. Judge as a Court and not as a persona designata, it will over burden the Court with flood of civil litigations under Sec. 115 of the C.P.C. which will not be even otherwise conducive and expedient for the purpose of deciding such controversies by way of revision. In cases of this nature, when orders are passed by the appellate authority under the provisions of the Act, the writ petition before this Court cannot be thrown out on such grounds. The Constitutional remedy under Art. 226/227 is equitable and discretionary jurisdiction which may be invoked only in appropriate cases. The revision petition under Sec.. 115 of the C.P.C., does not lie in such cases i.e. cases of present nature arising under a special enactment (with finally given by the positive mandate of legislature) against the orders passed by the appellate authority - may be Dist.. Judge acting as a Court. Assuming for the sake of argument that the revision lies, the Court finds that in such cases, revision cannot be said to be an efficacious, adequate and alternative remedy so as to throw out the petitions under Art. 226 and/or 227 of the Constitution of India by this Court. Not entertaining the petitions on the ground of availability of any alternative remedy is only a self-imposed discipline by the Court and the principles are well-settled in this regard that there is no constitutional impediment to entertain such petitions. Therefore, the Court does not feel inclined to throw away the petition in the facts of the present case on the ground of preliminary objection as has been raised by the applicant and this preliminary objection fails." Thus, on the basis of the aforesaid circumstances, the High Court has power under Article 227 to quash the orders passed by the tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents. The learned counsel for the petitioner also relied on the following decisions : (v) In the case of Achutananda Baidya V. Prafullya Kumar Grayen and others reported in AIR 1997 SUPREME COURT 2077, wherein it has been observed as under : "If the evidence on record in respect of a question of fact is not at all taken into consideration and without reference to such evidence, the finding of fact is arrived at by inferior Court or Tribunal, such finding must be held to be perverse and lacking in factual basis. In such circumstances, in exercise of the jurisdiction under Article 227, the High Court will be competent to quash such perverse finding of fact. Where the appellate authority under W.B. Restoration of Alienated Land Act, 1973 gave a finding that there was no oral agreement for reconveyance, without considering evidence on record, the High Court was justified in interfering with such finding of fact and setting it aside." (vi) In the decision in the case of Industrial Credit and Investment Corporation of India Ltd. V. Grapco Industries Ltd. and others reported in 1999 (4) SCC 710, the Supreme Court has held as under : "There was no bar on the High Court to itself examine the merits of the case in the exercise of its jurisdiction under Article 227 if the circumstances so require. The High Court can even interfere with interim orders of the courts and tribunals under Article 227 if the order is made without jurisdiction. But then a too technical approach is to be avoided. When the facts of the case brought before the High Court are such that the High Court can itself correct the error, then it should pass appropriate orders instead of merely setting aside the impugned order of the Tribunal and leaving everything in a vacuum." (vii) In the decision of the Hon'ble Supreme Court in the case of Shama Prashant Raje V. Ganpatrao and others, reported in 2000 (7) SCC 522, it has been held as under : "In view of the rival submissions we have carefully scrutinised the orders of the Controller, that of the appellate authority under the Control Order and the order of the learned Single Judge which has been affirmed by the Division Bench. Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution of the High Court cannot sit in appeal over the findings recorded by a competent tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently Article 226 is not intended to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But notwithstanding the same, on a mere perusal of the order of an inferior tribunal if the High Court comes to a conclusion that such tribunal has committed manifest error by misconstruing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior tribunal or the inferior tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior tribunal. Then again the two questions on which the Tribunal under the Rent Control Order was required to give finding, namely, habitual defaulter and subletting are not pure questions of fact but can be held to be mixed questions of fact and law. In this view of the matter, on going through the appellate order passed by the District Collector as well as the order of the learned Single Judge, we are not in a position to hold that the High Court exceeded the parameters prescribed for interference with the findings of an inferior Tribunal." (viii) In the case of Ouseph Mahai and others Versus M. Abdul Kadir reported in 2002 (1) SCC 319, the Apex Court has held as under : "Proceedings under Article 227, not being the extension of the proceedings under the Act would not automatically authorise the court to extend the time under the aforesaid proviso. However, it does not mean that in no case the High Court can extend the time. Exercise of such a power may be necessary if it is shown that grave injustice has been done to a party and the case was a fit case where the High Court should have exercised the extraordinary discretionary power in favour of the defaulting party." Learned counsel for the petitioner pointed out the objects and the reasons for making amendment made in Section 115 of the Code of Civil Procedure. By Clause 45 of the Bill, Section 115 of the Code was proposed to be omitted. The question whether it is at all necessary to retain section 115 was carefully considered by the Committee. The Law Commission has expressed its view that in view of Article 227 of the Constitution, Section 115 of the Code is no longer necessary. The Committee, however feel that the remedy provided by Article 227 of the Constitution is likely to cause more delay and involve more expenditure. The remedy provided in Section 115 is on the other hand, cheap and easy. The Committee, therefore, feel that Section 115, which serves a useful purpose, need not be all together omitted particularly on the ground that an alternative remedy is available under Article 227 of the Constitution. The Committee, however, feel that in addition to the restrictions contained in Section 115 of the Civil Procedure Code, an over all restriction on the scope of application for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its 14th and 27th Reports, the Committee recommended that section 115 of the Code should be retained subject to the modification that no revision application shall lie against an interlocutory order, unless either of the following conditions is satisfied, namely, (i) if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceeding, or (ii) That if the order, is allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury. Learned counsel for the respondent also pointed out that Clause (b) of Section 115 of the Code of Civil Procedure, has been deleted by the Act 46 of 1999, wherein Clause (b) : "the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made" has been deleted by the Act 46 of 1999. The submission of the learned counsel for the petitioner is that the Legislature has wisdom that even after the omission of relevant provision u/s 115 of the CPC the High Court will have jurisdiction of superintendence ove lower judiciary under Article 227 of the Constitution to interfere with an interlocutory orders passed by the trial Court or lower appellate Court and/or confirmed or refused to confirm by lower appellate court in an exceptional case for keeping lower, within its limit and authority where the findings are perverse or not based on any material evidence or based on in admissible evidence or it has resulted in manifest and gross injustice. 5. On the contrary Mr. M.C. Bhatt learned counsel for the respondent - plaintiff raised preliminary objection that there is no scope for entertaining writ petition under Article 227 of the Constitution of India for challenging the order passed by the trial Court or the lower Appellate Court on the application exh. 5 for interim injunction particularly revisional powers of the High Court under Section 115 of the Civil Procedure Code have already been taken away by the legislature. In this respect, learned counsel for the respondent relied upon the following decisions : (i) the decision of the Apex Court in the case of Mohd. Yunus V. Mohd. Mustaqim, reported in AIR 1984 SUPREME COURT 38, wherein it is held as under : "A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority" and