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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
WRIT PETITION NO.51324/2015 (GM-CPC)
BETWEEN:
SRI.H.A.MUKTHIYAR
S/O. H.A.ABDUL REHMAN,
AGED ABOUT 43 YEARS,
PROPRIETOR
M/S.REHAMATH STONE CRUSHERS,
RESIDING AT 7TH CROSS,
ASHOKNAGAR
TUMAKURU - 572 101.
...PETITIONER
(BY SRI.ASHOK HARANAHALLI, SEN.ADV. FOR
SRI. S.G.PANDIT, ADV.)
AND:
1. SRI.GOPAL RAO
S/O. LATE VENKATASUBBAIAH,
AGED ABOUT 63 YEARS,
RETIRED ASST. REGIONAL
TRANSPORT OFFICER, NO.256,
5TH 'A' MAIN ROAD, N.G.E.F.
LAYOUT, SADANANDA NAGAR
BENGALURU 560 038
ALSO RESIDING AT HIREGUNDAGALLI
VILLAGE, OBALAPURA POST,
KORA HOBLI, TUMAKURU
TALUK AND DISTRICT - 572 101.
2. SRI. KRUPASHANKAR,
S/O. LATE CHANNABASAPPA,
AGED ABOUT 54 YEARS,
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3. SRI. ANANDA MURTHY,
S/O. LATE RAJANNA,
AGED ABOUT 50 YEARS,
4. SRI. BOOTHAIAH,
S/O. MUDDAMALLAIAH,
AGED ABOUT 55 YEARS,
5. SRI. HANUMAIAH,
S/O. HANUMANTHARAYAPPA,
AGED ABOUT 50 YEARS,
6. SR. VEERANNA,
S/O. LATE PUTTAIAH,
AGED ABOUT 50 YEARS,
7. SRI. DODDATHIMMAIAH,
S/O. GOVINDAIAH,
AGED ABOUT 32 YEARS,
8. SRI. LAKSHMAIAH,
S/O. LATE GOVINDAIAH,
AGED ABOUT 28 YEARS,
SL.NO.2 TO 8 ARE RESIDING AT
HIREGUNDAGALLI VILLAGE,
OBALAPURA POST, KORA HOBLI,
TUMAKURU TALUK & DISTRICT - 572 101.
....RESPONDENTS
(BY SRI JAYAKUMAR S.PATIL, SEN.ADV. FOR
SRI KESHAVA BHAT FOR C/R-1,
SRI SANATH KUMAR SHETTY K., ADV. FOR R2-R8)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 26.9.2015 IN O.S.NO.712/2015 ON THE FILE OF
THE III ADDL. CIVIL KJUDGE & JMFC, TUMAKURU (ANNX-A) BY
WHICH THE AD-INTERIM INJUNCTION U/O XXXIX RULE 1 & 2
OF CODE OF CIVIL PROCEDURE IS REJECTED AND ALSO
ORDER DATED 29.10.2015 IN M.A.NO.55/2015 ON THE FILE OF
THE II ADDL. SENIOR CIVIL JUDGE & JMFC, TUMKUR (ANNX-
B).
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This petition is filed by the petitioner-plaintiff requesting the Court to set-aside the order dated 26.09.2015 passed on I.A.NO.1 filed under Order XXXIX Rule 1 and 2 of CPC in O.S.NO.712/2015 on the file of III Addl. Civil Judge and JMFC, Tumakuru, produced as per Annexure-A, and also the order dated 29.10.2015 passed in M.A.No.55/2015 on the file of II Addl. Senior Civil Judge & JMFC, Tumakuru, which is produced at Annexure-B.
2. Petitioner-plaintiff has filed the suit against the respondents herein for the relief of permanent injunction restraining the defendants, their agents, servants or anybody acting under them from interfering with the smooth running of the jelly crusher by the plaintiff over the suit schedule property. The plaint schedule property is bearing Sy.No.30/3 measruing 2 acres consisting of Jelly/Stone crusher situated at Gerahally Village, Kora Hobli, Tumkur Taluk, the 4 boundaries are also mentioned in the schedule. Along with the plaint, plaintiff has also filed application I.A.NO.1 under Order XXXIX Rule 1 and 2 of CPC requesting the Court to grant ad-interim temporary injunction order restraining the respondents and their agents, servants or anybody acting under them from interfering with the smooth running the jelly crusher by the plaintiff over the suit schedule property. Said application was objected by the respondents by filing the objection statement. The Trial Court after considering the merits of the case, ultimately, rejected the said application filed seeking temporary injunction. Being aggrieved by the said order of rejection of the application I.A.No.1 by the Trial Court, petitioner- plaintiff has preferred an appeal before the appeal Court in M.A.No.55/2015.
The appeal Court also, after hearing the matter, dismissed the appeal imposing the cost of Rs.1,000/- and confirmed the order passed by the Trial Court. Being aggrieved by the orders passed by the Trial Court 5 as well as the appeal Court, petitioner is before this Court.
3. Heard the arguments of the learned senior counsel appearing for the petitioner-plaintiff, the arguments of the learned senior counsel appearing for respondent No.1 and also the learned counsel appearing for respondent Nos.2 to 8.
4. Learned senior counsel for the petitioner- plaintiff during the course of his arguments has submitted that, plaintiff to run the stone crusher unit has taken the consent and permission from the competent authorities under the relevant provisions of the Acts, and the said authorities, before granting such permission to the said area, wherein the stone crushing unit is to be carried on is considered as it comes under the safer zone. Even the Pollution Control Board has also given its consent for carrying on the said unit. He has submitted that initially the said consent was given 6 by the Pollution Control Board was upto 30.06.2015, but subsequently, the same was renewed upto 30.06.2016. He has further submitted that the Trial Court wrongly read the documents produced by the petitioner and it has not all looked the consent renewed by the Pollution Control Board and it has lost sight of the said document.
5. With regard to the other documents produced in the case and the observations made by the Trial Court in its order that there are complaints by the neighbours, school authorities, that there is noise and the houses nearby the said area were having cracks in the walls and the petitioner is using the explosives is concerned, learned senior counsel has submitted that the documents produced in the case shows that it is not in respect of Sy.No.30/3 in which the stone crushing unit is carrying on by the petitioner-plaintiff, but it is in respect of Sy.No.31, which is not the subject matter of the suit; hence, he has submitted that even with regard 7 to this said aspect also Trial Court has wrongly observed that there are so many complaints in respect of carrying the stone crushing unit. Learned senior counsel for the petitioner has further submitted that when there is a licence and the permission under the relevant Acts, unless and until those permission and licences were cancelled or revoked by the competent authorities, petitioner is having every right to carry on the said stone crushing unit. He has also submitted that if the other side is aggrieved, there is a provision under the relevant Act to approach the authorities by filing the appeal, which they have not invoked in this case.
6. Learned senior counsel for the petitioner has further submitted that the public approached this Court by filing the Public Interest Litigation making the complaint about carrying the stone crushing unit in the said area; the Division Bench of this Court, after hearing the said Public Interest Litigation, disposed of 8 the same giving a direction to the petitioners therein to approach the appropriate authorities in the matter. Being unsuccessful in the said Public Interest Litigation, the same public started to make the complaints only with a malafide intention to stall the stone crushing activities carried on by the petitioner- plaintiff. It is further submitted that, even though all these material aspects were brought to the notice of the Trial Court, the Trial Court has not considered all these aspects of the matter and wrongly read the documents and wrongly interpreted about the factual aspects and passed an illegal order. He has also submitted that when an appeal was preferred before the appellate Court, the appellate Court also without appreciating the materials placed on record and without examining whether that in view of the facts and circumstances of the case and production of the materials before the Trial Court, the order passed by the Trial Court is legal or not, but the appellate Court just endorsed its view to that of the views taken by the Trial Court. 9
7. So far as concurrent findings of the Courts below is concerned, learned senior counsel for the petitioner has submitted that it is not that when there are concurrent findings, this Court has no jurisdiction to interfere into the said orders and if the petitioner is able to show to the Court that there is material irregularity and the relevant materials were not considered by the Courts below, this Court can very well interfere into the findings of the Courts below, even though there are concurrent findings. In this regard, he has relied upon the decision reported in (1997) 5 SCC 76 in the case of Achutananda Baidya vs. Prafullya Kumar Gayen and others and draw the attention of this Court to paragraph Nos.9 and 11 of the said decision. Learned senior counsel has also submitted that regarding the jurisdiction of the Courts are concerned, the Court has to appreciate whether the entire materials were considered by the Courts below or not and in this regard, he has relied upon the decision reported in AIR 1996 SC 906(1) in the case of State of 10 Kerala vs. M.K.Kunhikannan Nambair Manjeri Manikoth, Naduvil (dead) and others. He has further submitted that when there is patent illegality committed by the Courts below, this Court has every right to interfere into such findings also, to do justice to the parties. Hence, he has submitted to allow the petition and to set-aside the impugned orders passed by the Trial Court as well as the appeal Court and to allow the application I.A.No.1 filed before the Trial Court seeking injunction as against the respondents herein.
8. Per contra, learned senior counsel for respondent No.1 during the course of his arguments has submitted that the Trial Court has rightly appreciated the materials placed on record and rejected the injunction application and hence, no illegality has been committed by the Trial Court. It is no doubt true, when the consent order given by the Pollution Control Board initially, it was upto 31.06.2015 and it was the decision of the Board, but the renewal of the said 11 consent, which is relied upon by the petitioner is not by the Pollution Control Board and it is only by an Officer of the said Board. Therefore, it cannot be considered as the consent in the eye of law. Hence, the Trial Court is justified in ignoring the said document i.e., the renewal of consent by the Pollution Control Board.
9. Learned senior counsel for respondent No1. has further submitted that when the entire materials was appreciated by the Trial Court and the injunction application was rejected, which was confirmed by the appellate Court, this Court i.e., in the writ jurisdiction, cannot interfere into the said orders of the Courts below, though such orders may be right or wrong. The writ Courts are having limited jurisdiction and in this connection, learned senior counsel has relied upon the decision reported in AIR 1973 SC 76 in the case of The Managing Director (MIG) Hindustand Aeronautics Ltd., Balanagar, Hyderbad and another vs. Ajit Prasad Tarway, Manager (Purchase and Stores) 12 Hindustand Aeronautics Ltd. Balanagar, Hyderbad, and the relevant paragraph No.5, AIR 1971 SC 2324 in the case of M/s.D.L.F.Housing and Construction Co.(P) Ltd. Vs. Sarup Singh and others relevant paragraph No.8 and another decision of the Hon'ble Supreme Court rendered in Civil Appeal No.678 of 2013 (arising out of SLP (Civil) 31559 of 2012) and the relevant paragraphs are 14 and 15. Hence, he has submitted that this Court cannot interfere into the orders passed by the Courts below. He has also submitted petitioner has not made out a case even on merits also to interfere into the orders passed by the Courts below. Hence, submitted to reject the petition.
10. Learned counsel for respondent Nos.2 to 8 during the course of his arguments has submitted that with regard to the contention of the other side regarding the permission and licence granted by the statutory authorities cannot be set-aside by the Civil Court and Civil Court has no jurisdiction and there is a Bar to 13 entertain the same, he has submitted that it is not the correct position and the Civil Court is having jurisdiction to cross-examine whether the permissions and licences granted by the statutory authorities are in accordance with the mandatory provisions of the relevant Act or not. In this connection, he has relied upon the decision reported in AIR 1971 SC 71 in the case of Sree Raja Kandregula Srinivasa Jagannadharao Panthulu Bahadur Guru (dead) by his legal representatives vs. The State of A.P. and others and the relevant paragraph No.7. Hence, he has submitted that licences and permissions granted by the Pollution Control Board and also the Authority under the Karnataka Regulation of Stone Crushers Act 2011, are not at all as per the requirements of the conditions laid down in the said enactments. Therefore, he has submitted that these aspects were properly appreciated and considered by the Courts below and hence, no illegality has been committed by the Courts below in coming to such conclusion. He has also submitted that 14 there are concurrent findings by the Courts below. The petitioner has not made out a case to interfere into the orders passed by the Courts below and submitted to dismiss the petition.
11. I have perused the grounds urged in the petition, order passed by the Trial Court rejecting the injunction application, the judgment and order passed by the appellate Court, so also perused the pleadings of the parties i.e., copy of the plaint as well as the written statement, application I.A.No.1 filed before the Trial Court along with the supporting affidavit and the objections filed by respondents-defendants.
12. I have also perused the materials produced in the case. Petitioner-plaintiff has produced the document i.e., the proceeding of the Karnataka State Pollution Control Board, which is produced at page No.181, and in the document produced at page No.183 it is mentioned that the consent is valid for the period 15 upto 30.06.2015 only. The Trial Court taking into consideration the said document i.e., proceeding of the Karnataka State Pollution Control Board, interpreted in its order that it was for the period upto 30.06.2015 only and the petitioner-plaintiff has not produced the document to show the extension or renewal of the consent by the said Board and which is also one of the reason for the Trial Court for rejecting the injunction application. But perusing the document produced at page No.184, which is dated 29.06.2015, which is styled as "Consent for discharge of Emissions under the Air (Prevention and Control of Pollution) Act, 1981, at the bottom, it is mentioned that consent is granted for the period upto 30.06.2016. The said document is signed by the Environmental Officer, KSPCB, RO: Tumkur, for and on behalf of the KSPCB. The Trial Court has not looked into the said document and has lost sight of the same while considering the case of the petitioner. Though it is the contention of the respondents herein that the consent of renewal is not from the Board and it 16 is only from the Environmental Officer and hence, it cannot be construed as the renewal of consent, but it is not the observation by the Trial Court in its order that the said document is not from the Pollution Control Board and it is only from the Environmental Officer, therefore, it is not going to accept the said document as renewal of consent from the Pollution Control Board. Hence, as I have already observed above, the said document was not looked into by the Trial Court and it snatched the attention of the Trial Court while passing the order.
13. So far as the contention of the learned counsel for the petitioner that some of the documents, which goes to the very root of the matter and on which the entire case of the petitioner is depends, were not looked into by the Trial Court and it proceeded to pass a wrong order is concerned, with regard to the said document that whether it is a valid document or not, it is for the Trial Court to come to the right conclusion 17 during the course of trial, after recording the evidence of both sides, but while dealing with the interim application, which are in the nature of aid to the main relief claimed in the suit, the Court has to prima-facie see the document and not supposed to conduct a mini- trial at that stage to ascertain whether the said document is a valid document or not.
14. With regard to the other aspect i.e., the complaints made by the public, so also the resolutions passed by the Panchayat, I have perused the document i.e., resolution passed by the Panchayat and also the complaint made by the public in respect of carrying-on the stone crushing unit by the petitioner. Perusing these documents, again the Trial Court has committed serious error while appreciating the said documents also, as the said documents are in respect of Sy.No.31, whereas, the suit schedule property is bearing No.30/3, wherein the petitioner-plaintiff claims that he is carrying the stone crushing unit. Therefore, even with 18 regard to this document, which is produced at page No.277, the endorsement issued from the office of the Deputy Director of Mines and Geology Department, Gandinagar, Tumakuru, which is dated 27.04.2015, the Trial Court has taken this document into consideration and observed in its order that there are complaints from the public at large in respect of carrying-on the stone crushing unit by the petitioner-plaintiff and hence, the serious objections are also one of the reason for the Trial Court to reject the injunction application. I have perused the said document, as I have already observed above, the said document is pertaining to Sy.No.31 and it is not pertaining to Sy.No.30/3. Therefore, even with regard to this document also, the Trial Court has misdirected itself to hold that the complaints from the public are also pertaining to the suit schedule property, which was also one of the reason for the Trial Court to reject the injunction application. The persons, who have filed the said complaints, have also approached this Court by filing the Public Interest Litigation in 19 W.P.NO.30447/2015(GM-MM-S-PIL). The first petitioner is mentioned as Sri Anjaneyaswamy Yuvaka Raita Sangha (R), if perused the endorsement document, which is produced at page No.277, as I have already made a reference above, the said endorsement was addressed to Sri Rangaswamaiah Kunchagi, President of Sri Anjaneyaswamy Yuvaka Raita Sangha. Therefore, learned counsel for the petitioner-plaintiff is justified in submitting that as the said Sri Anjaneyaswamy Yuvaka Raita Sangha was not succeeded in getting the orders in the Public Interest Litigation, made such complaint before the authorities. The documents produced by the plaintiff also shows that the permission was granted by the office of Deputy Commissioner, Tumakuru, holding that the said stone crushing unit carried-on by the petitioner-plaintiff comes under the safer zone. Therefore, before issuing such permission, the authorities have already examined about the consequences of giving the permission to carry-on such stone crushing unit in the said area and at that time, it 20 was their opinion that it comes under safer zone, hence, there are no hurdles for issuing consent to carry-on the said unit.
15. The factual aspects clearly shows that permissions were granted by the competent authorities to carry on the said unit under the Air (Prevention and Control of Pollution) Act, 1981 and also under the Karnataka Regulation of Stone Crushers Act, 2011 and those licences and permissions are still in existence and they were not cancelled or revoked by the said authorities. Therefore, as submitted by the learned counsel for the petitioner-plaintiff, unless and until those licences and permissions granted by the licencing authorities and the other competent authorities, were cancelled, the petitioner has got every right to carry-on his stone crushing unit. Hence, these aspects were also not properly appreciated by the Courts below. 21
16. With regard to the concurrent findings by the Courts below, I have perused the decisions relied upon by the learned senior counsel for respondent No.1, which are referred above.
In the decision reported in AIR 1971 SC 2324 in the case of M/s.D.L.F.Housing and Construction Co.(P) Ltd. Vs. Sarup Singh and others, paragraph No.8 of the said decision, reads as under:
8. The position thus seems be firmly established that while exercising the jurisdiction under section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional district Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors 22 of fact or of law they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under S. 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceeding pending decision of the appeal, could hardly justify interference on revision under S. 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.
In the decision reported in AIR 1973 SC 76 in the case of The Managing Director (MIG) Hindustand Aeronautics Ltd., Balanagar, Hyderbad and another vs. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustand Aeronautics Ltd. Balanagar, Hyderbad, para 5 read as under: 23
5. In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate court. it is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under S. 115 of the Civil Procedure Code; See the decisions of this Court in Pandurang Dhoni V. Maruti Hari Jadhav, (1996) 1 SCR 102 = (AIR 1966 SC
153), and D. L. F. Housing and Construction Co. (P.) Ltd., New Delhi v. Sarup Singh, (1970) 2 SCR 368 = (AIR 1971 SC 2324).
In the decision rendered by the Hon'ble Supreme Court of India in Civil Appeal No.678/2013, para 14 and 15 reads as under:
14. There is yet another dimension to the issues arising in the present appeal. The interim relief granted to the plaintiffs by the Appellate Bench of the High Court in the present case is a mandatory direction to handover possession to the plaintiffs. Grant of mandatory interim relief requires the highest degree of satisfaction of the Court;
much higher than a case involving grant of prohibitory injunction. It is, indeed, a rare power, the governing principles whereof would hardly require a reiteration inasmuch 24 as the same which had been evolved by this Court in Dorab Cawasji Warden Vs. Coomi Sorab Warden and Others has come to be firmly embedded in our jurisprudence. Paras 16 and 17 of the judgment in Dorab Cawasji Warden (supra), extracted below, may be usefully remembered in this regard:
"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-
contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trail may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent
irreparable or serious injury which
25
normally cannot be compensated in
terms of money.
(3) The balance of
convenience is in favour of the one
seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
15. In a situation where the learned Trial Court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While 26 we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the Trial Court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd. Para 14 of the aforesaid judgment which is extracted below would amply sum up the situation:
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. 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 matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably 27 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. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) "... These principles are well established, but as has been observed by viscount Simon in Charles Osenton & Co. v. Jhanaton '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."
The appellate judgment does not seem to defer to this principle."
Looking to the decision of AIR 1973 SC 76, it is observed at para 5 by Their Lordships that "It is not the case that first appellate Court exercised its jurisdiction either illegally or with material irregularity. So it is clear that if the First Appellate Court exercised its jurisdiction either illegally or with material irregularity, this Court can interfere even though there are concurrent findings by the Courts below. But looking to the orders passed by the Courts below and the 28 discussion that I have made above, when the material documents were not considered and some of the documents were wrongly read by the Trial Court, about which without making proper enquiry in the appeal, when the appeal Court endorsed its view with that of the Trial Court, clearly shows that the exercise of jurisdiction by the Appellate Court is not in accordance with law and there is material irregularity in exercise of jurisdiction by the appellate Court. Under such circumstances, this Court can interfere into the orders passed by the Courts below even though there are concurrent findings by the Courts below. In this regard, I refer to the decision of the Hon'ble Supreme Court reported in (1997) 5 SCC 76 in the case of Achutananda Baidya vs. Prafullya Kumar Gayen and others and the relevant paragraph 9 and 11, wherein it is held by Their Lordships as under:
9. We are, however, unable to accept such contention of Mr. Bhattacharyya. In this case, the High Court has rightly held that the appellate authority came to the finding of non-existence of oral agreement of reconveyance without 29 considering the evidence on record. If the appellate authority does not consider the materials on record having a bearing on a finding of fact and makes the finding of fact, such finding of fact arrived without consideration of relevanat materials on record cannot be sustained in law. The High Court, in such circumstances, will be competent to consider the validity of the finding of fact assailed before it with reference to materials on record.
11. 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.
Looking to the principles enunciated in the said decision also, it clearly shows that this Court can interfere even in the writ proceedings, if the orders passed by the Courts below are not in accordance with law. Therefore, the contention of the learned counsel for the respondents that as there are concurrent findings by the Courts below, hence, this Court cannot 30 interfere into the orders passed by the Courts below, cannot be accepted at all.
17. In view of the legal position and also the documents produced by the petitioner-plaintiff and my above discussion, I am of the clear opinion that petitioner-plaintiff has made out a case to interfere into the orders passed by the Courts below. Hence, petition is allowed and the impugned order 26.09.2015 passed on I.A.NO.1 filed under Order XXXIX Rule 1 and 2 of CPC in O.S.NO.712/2015 on the file of III Addl. Civil Judge and JMFC, Tumakuru, and also the order dated 29.10.2015 passed in M.A.No.55/2015 on the file of II Addl. Senior Civil Judge & JMFC, Tumakuru, are hereby set-aside and the matter is remanded back to the Trial Court. The Trial Court is hereby directed to consider the application I.A.NO.1 afresh, giving opportunity to both the sides to file to their additional statements, if any, so also to produce additional documents, if any, and the Trial Court has to consider 31 the documents produced in the case by both sides and to dispose of the said application in accordance with law.
However, it is made clear that the observations made by this Court in the body of this order is only for the purpose of disposal of this petition and the Trial Court has to consider the application afresh independently without being influenced by the observations made by this Court in this order.
Sd/-
JUDGE BSR Ct-sm