Appellate Court Can't Interfere With Interim Order Unless Trial Court Did Not Consider Material In Proper Perspective/ Misdirected Itself: Gujarat HC

Affirming the settled law that Appellate Courts must not disturb the discretionary order of the Trial Court at interim stage even if second view of the matter is possible, the Gujarat High Court has allowed an appeal challenging lower court's order declining to grant interim injunction in respect of a construction, allegedly interfering with Appellant's easementary rights.The Bench of Justice AP Thaker ordered status quo with respect to the construction towards the eastern wall of the Plaintiff's residence till both the parties lead their evidence in support of their claim and counter-claim. It said,"Prima facie, it appears that the plaintiffs have put up this construction in his own land keeping certain portion of land open for common wall. Now, on perusal of the Photograph produced in the matter, it clearly appears that the constructions of the defendant is completely adjacent with the wall of the plaintiffs. At this juncture, it is also pertaining to note that defendant has also filed counter claim for closure of the window and balcony of the plaintiffs which is on the eastern side wall of the property of the plaintiff. Thus, prima-facie it appears that when suit was filed there was no construction, obstructing the window and balcony of the plaintiff's property on the eastern side. Now, there is allegation and counter allegation, regarding the easementary right as well as regarding illegal construction and there is also counter claim for removal of window and balcony. Under these facts and circumstances, it is necessary that status-quo be maintained till both the parties lead their evidence in support of their claim and counter-claim."The Court was hearing a Civil Application where the Appellants/Original Plaintiffs preferred an appeal under Section 104 read with Order 43 Rule 1 of CPC where the injunction application of the Appellants was dismissed. At the outset, the High Court noted that so far as the appeal against the interim order is concerned, the Appellate Court is very much circumscribed and the Appellate Court may not disturb the discretionary order passed by the trial Court even if second view of the matter is possible.However, it added that if it appears that the trial Court has not considered the material placed on record in its proper perspective or has mis-directed itself or the order is perversed one, the appellate Court can interfere in such order which is passed under discretionary authority at interim stage, by the trial Court.In the instant case, the High Court noted that the Trial Court had only referred to one document with no specific averment regarding easementary rights. The issues of common wall, timing of the suit, the existing window and balcony in the eastern wall etc. were not considered by the Court. There was a clear 'triable issue' per the Bench. It remarked: "it is desirable that status-quo qua the construction towards the eastern wall of the plaintiff is maintained till the final disposal of the suit." Accordingly, the appeal was allowed but it was clarified that the observations of the Court were for adjudicating the interim injunction application. Case Title: Shantaben Ambalal Patel & 1 Other(S) Versus Sunitaben Vijaykumar Joshi Case No.: C/AO/16/2022 C/AO/16/2022Click Here To Read/Download Order

Appellate Court Can't Interfere With Interim Order Unless Trial Court Did Not Consider Material In Proper Perspective/ Misdirected Itself: Gujarat HC

PRIYANKA PREET

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