Sangeeta Bijalwan vs Bhuwanesh Prasad Devrani

Vipin Sanghi, CJ

1) The petitioner has preferred the present petition under Article 227 of the Constitution of India to assail the order dated 31.10.2022, passed by the learned District Judge, Dehradun, in Misc. Civil Appeal No. 60 of 2021, preferred by the respondent under Order 43 Rule 1(r) CPC. By the impugned order, the said appeal preferred by the respondent was allowed, and the injunction granted in favour of the petitioner / plaintiff under Order 39 Rules 1 and 2 CPC, was vacated.

2) The brief facts may be taken note of, before I proceed to deal with the present petition.

3) The petitioner, who is the plaintiff, claims to have purchased a plot of land from Smt. Sumanlata Kainthola and Smt. Kusumlata Devrani, who in turn had purchased the plot from Ganesh Prasad, Sudhir Kumar and Kamleshwar Prasad. The aforesaid three persons, in turn, purchased the land from one Naresh Chand, the original owner of the land. The sale deed of the petitioner recited that on the South of the plot sold to the petitioner, there is a 14 feet wide passage, and beyond that, the land of the defendant is situated (on the southern side). Petitioner produced the following plan along with the plaint to show the position at site, as it exists:

4) The case of the petitioner in the suit was that the 14 feet wide passage had been carved out by the predecessors-in-interest of the petitioner, to grant access to the plots carved out by the predecessors-in-interest alone. Since, the predecessors-in-interest have sold their land to various persons – including the petitioner, they were not left with any right qua 14 feet passage, which was exclusively meant for use of the petitioner and other plot owners, who have been sold the plots carved out by the predecessors-in-interest of the petitioner. The petitioner claim that the defendant, who was the owner of the land, lying to the South of the 14 feet passage, has access to his land from the main road, i.e., the colony road, as shown in the plaint. However, to carve out smaller plots, the defendant was seeking to use the 14 feet passage to access the plots upon them being carved out. The plaintiff, accordingly, filed her suit for perpetual injunction to restrain the defendant from using the 14 feet wide passage.

5) The trial court granted an interim injunction in favour of the petitioner vide order dated 27.10.2021 under Order 39 Rules 1 and 2 CPC. Against the grant of the said injunction, the respondent preferred the statutory appeal under Order 43 Rule 1(r) CPC, which has been allowed by the impugned order.

6) The submission of Mr. Garg, learned counsel for the petitioner, is that the impugned order has been passed by the learned District Judge beyond his jurisdiction and, therefore, the present petition is maintainable. He submits that in Wander Ltd. Vs Antox India (P) Ltd., 1990 Supp SCC 727, the Supreme Court has laid down the principles on which an order passed by the trial court, on an interim relief application, should be dealt with by the appellate court. In para 14 of the judgment in Wander Ltd. (supra), the Supreme Court, inter alia, observed :

“14. …In such appeals, the appellate court will not interfere with the exercise of discretion of the court 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 on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the mater 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.”

7) Mr. Garg submits that the trial court having appreciated the prima facie case of the parties; balance of convenience, and; irreparable loss and injury which could be caused by grant, or refusal, of interim relief of injunction, the appellate court could not have interfered with the same, unless it was shown that the exercise of discretion by the trial court in granting the injunction was arbitrary, capricious and perverse. The appellate court could not have reassessed the material to reach a conclusion different from the one reached by the trial court, since the conclusion reached by the trial court was reasonably possible on materials placed on record. Merely because the appellate court may have arrived at a different conclusion on its own appreciation of the respective case of the parties, the appellate court could not have interfered with the interim injunction granted by the trial court. Thus, the submission of Mr. Garg is that, since the appellate court has exceeded its jurisdiction, which should not have been so exercised, the present petition under Article 227 of the Constitution is maintainable.

8) I have heard Mr. Garg, perused the judgment cited before me in Esha Ekta Appartments CHS Limited and others Vs Municipal Corporation of Mumbai and another, (2012) 4 SCC 689, which cites Wander Ltd. (supra), and perused the orders passed by the trial court, as well as the first appellate court.

9) In my view, the present petition is not maintainable, for the reason that the first appellate court namely, the District Judge, cannot be said to have exercised jurisdiction in excess of jurisdiction vested in him. The court of the District Judge, being the appellate court, was entitled to hear appeals under Order 43 Rule 1(r) CPC, and was entitled to, for reasons to be recorded, either allow the appeal, or reject the same, or pass such other orders as may be called for in the facts and circumstances of the given case. Merely because the appeal under Order 43 Rule 1(r) CPC has been allowed by the learned District Judge, it does not tantamount to the District Judge exceeding his jurisdiction. The jurisdiction to entertain the appeal is vested in the learned District Judge by Order 43 Rule 1 CPC. The jurisdiction to entertain the said appeal is not dependent on the legality of the order that may be passed by the District Judge. The submission premised on Wander Ltd. (supra) is a submission on merits of the decision rendered in the appeal, to argue that the appellate decision is wrong. Even if, it were to be accepted for the sake of argument that the appellate court has fallen in error, that is an error within jurisdiction. The so called error does not impinge on the jurisdiction of the appellate court, namely, the District Judge, and it cannot be said that the appellate court has exceeded its jurisdiction by allowing the appeal.

10) Even otherwise, on perusal of the sale deed of the petitioner, it is clear that she was merely granted right of passage over the 14 feet passage to access her plot, which did not create any exclusive right in the petitioner, or exclusive right in only the vendees from the predecessors-in-interest of the petitioner, to use the said 14 feet passage. The respondent places reliance on Easementary Letter dated 02.08.2017, executed by the predecessors-in-interest of the petitioner, which acknowledges that the 14 feet passage had been developed with contribution of land by the defendant. Pertinently, the petitioner has not even impleaded her predecessors-in-interest as party defendants in the suit.

11) For the aforesaid reasons, I find no merit in this petition. The writ petition is, accordingly, dismissed.

12) It goes without saying that the observations made by me, have been made on prima facie evaluation of the case, and would not influence the case of either party before the trial court.