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M/s. Vashishta Projects, Through its partners A. Vidyasri Bhaskar & Others v/s Indubhushan & Another

    Writ Petition. No. 256 of 2022
    Decided On, 19 January 2022
    At, In the High Court of Bombay at Nagpur
    For the Petitioner: M.G. Sarda, counsel. For the Respondents: ------

Judgment Text
Oral Judgment:

1. The petitioner is the plaintiff in Regular Civil Suit 6/2021 instituted against the respondents herein seeking a decree for permanent injunction restraining the respondents from disturbing his peaceful possession over the suit land, without due process of law.

2. The petitioner and the respondents shall be hereinafter referred to as plaintiff and defendants.

3. The plaintiff averred to have accepted the execution of rehabilitation and up-gradation of Arvi – Talegaon road and to the said end to have obtained the leasehold rights of land admeasuring 1.5 acre from survey 131/1/C vide agreement dated 17.5.2019. The plaintiff then claimed to have converted the lease land from agricultural to non-agricultural and to have set up plant and ancillary machinery, described in Annexure A.

4. The plaintiff claimed to be in possession of the lease property and averred that on 25.1.2021, the defendant had attempted to forcibly dispossess the plaintiff.

5. Perusal of the cryptic plaint reveals that the plaintiff did not disclose that the period of lease expired on 16.04.2020.

6. The plaintiff preferred an application under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure (“CPC”, for short) which application too does not disclose that the lease period expired on 16.04.2020.

7. Perusal of the lease agreement dated 17.5.2019 reveals that the lease was granted for the period 17.5.2019 to 16.4.2020. Clause 16 obligates the lessee to hand over the possession immediately on the expiry of the lease period if the lease is not terminated earlier. Notably, it is not even the case of the plaintiff either in the plaint or in the application seeking temporary injunction, that any amount was paid to the lessor as occupation charges after the lease period ended on 16.04.2020.

8. While defendant 1 is the lessor, defendant 2 is the firm which was allotted the work after the Public Works Department terminated the contract of the plaintiff. The defendant 2 contended that after the lease between plaintiff and defendant 1 ended, the defendant 1 executed agreement dated 10.12.2020 in favour of defendant 2 and that the defendant 2 is in possession of the suit land and is carrying on its manufacturing activities from the said land.

9. The learned trial Judge rejected application seeking temporary injunction vide order dated 8.3.2021. A prima facie finding is recorded, on the basis of evaluation of material on record, that it is the defendant 2 and not the plaintiff, who is in possession.

10. After meticulous consideration of the material on record, the learned trial Judge observes thus:

“11. Thus, from the material produced on record, prima facie, it appears that, initially the Suit Property was taken on lease by the applicants for the period of 11 months. Thereafter, it has not been renewed or extended by the either parties. It further appears that, in the meanwhile, the Government terminated the contract with the applicants. Thereafter, it is alleged that, the Non-applicant No.1 took the possession of the Suit Property which fact appears to have been fortified by him in a new lease agreement executed with Non applicant No. 2 whereby the Suit Property was given on lease to the later. The application is silent on the point that the material pending on the Suit Property belongs to the applicants. Even the material mentioned in report, dated 13.1.2021, do not show that it is of applicants. The R.M.C. plant on Suit Property belongs to Dattakrupa Associates whose plant operator filed an affidavit stating Non-applicant No. 2 possession over the Suit Property. Likewise, the other documents also prima facie show the Non-applicants possession over the Suit Property. The applicants, except above, filed no documents on record to show their alleged possession over the Suit Property. There is no convincing material on record even to prima facie show the applicants possession over the Suit Property”.

11. The plaintiff was aggrieved by the rejection of the application seeking temporary injunction, and preferred Miscellaneous Civil Appeal 14/2021, which is dismissed by the District Judge-1, Wardha vide judgment dated 24.11.2021.

12. The learned Judge of the appellate Court reconsidered the material on record and concurred with the finding recorded by the trial Judge that the plaintiff is not in possession of the suit property.

13. The learned Judge of the appellate Court noted that the plaintiff heavily relied on the report of the Talathi dated 13.1.2021, submitted to the Tahsildar and the reply of the lessor dated 20.1.2021. The submission of the plaintiff that the aforesaid two documents indicate its possession is considered thus:

“24. On going through the report dated 13.1.2021, it reveals the suit land property was converted for non-agricultural purpose and the said land was belonging to the respondent no. 2, Bhagwandas Rathi and Kushalchand Rathi. However, there is mention about the permission given to the appellant up to 16.4.2020 in respect of usage of the suit land property as non-agricultural purpose and lying of some material at that time.

25. The reply of the respondent no. 1 dated 20.1.2021 speaks about the validity of the agreement between the appellant and the respondent No. 2, which came to an end on 16.4.2020. However, it is specifically mentioned about non payment of the rent and issuance of the notice dated 26.6.2020 to the appellant for vacating the suit land property by the appellant. The photograph filed and relied upon by the appellant depicts about lying of some material and installation of some machinery. However, nowwhere it suggests that the material lying at the spot of photographs and the machinery installed therein is belonging to the appellant. Furthermore, on going through the invoice also filed and relied upon by the appellant it depicts that it pertains to the year 2019 and 2020.

26. To substantiate its claim in respect of the possession of the suit land property the respondent No. 2 filed the letter dated 18.11.2020. However, on going through the letter dated 18.11.2020, it suggest that the Government of Maharashtra allotted the balance work of rehabilitation and up-gradation of existing carriageway to two lane with paved shoulder standard in Arvi to Talegaon Section of NH-347 A from Km 99+700 to Km 86/000, section of NH 347 A in the State of Maharashtra on Engineering, Procurement and construction Mode.

27. Furthermore, the letter dated 25.9.2020 depicts that the same is in respect of termination of works wherein the recommendation was made for the proposal of termination of work. However, the letter dated 4.12.2010 suggests that the balance work in respect of Arvi to Talegaon section was allotted to the respondent No. 2 and in pursuance of the said work order the agreement was executed in between the President of India through the Ministry of Road Transport and Highway by its Secretary and the respondent No. 2”.

14. The learned Judge of the appellate Court further relied on the affidavit of Mr. Santosh Karade, who is the Plant Operator, as did the trial Judge.

15. The learned counsel for the plaintiff Mr. M.G. Sarda would invite my attention to several decisions which according to him articulate that the party in settled possession cannot be evicted without taking recourse to due process of law.

16. I need not burden this order by discussing the statements of law in the decision cited for the simple reason that the plaintiff is found not to be in possession, and therefore, the question of dispossession without following the due process of law does not arise.

17. The grant or refusal to grant injunction is ordinarily in the discretionary jurisdiction of the trial Court and unless the discretion exercised by the trial Court is found arbitrary or otherwise illegal, the appellate Court would be slow to interfere. While exercising writ jurisdiction, against concurrent views of the trial and the appellate Court, I must be conscious of the settled position of law that jurisdiction under Article 227 is limited and cannot be exercised to correct every error of fact or then of law.

18. The observations of the Hon’ble Supreme Court in M/s Garment Craft Vs. Prakash Chand Goel (Civil Appeal 314 of 2022), reproduced below are apposite.

“18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.1 The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:-

“6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant vio

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lation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” 19. I am satisfied that the Courts below have not committed any error, much less an error which would warrant exercise of writ jurisdiction, in refusing injunctive relief. No fault can be found with the consideration of the material on record by the Courts below. Independently of the concurrent views, I am satisfied that the plaintiff has not proved possession as on the date of the institution of the suit and it is the defendant 2, who appears to be in possession. 20. The petition is dismissed.