High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 784 OF 2012WITHCIVIL APPLICATION NO. 13614 OF 2012Shaikh Maheboob Shaikh Thr Lrs Shaikh Sarvar And OrsVERSUSMushtak Ahmed Khan Saddat Khan Thr Lrs Zaker Begum And OrsMr. S. S. Bora, Advocate for AppellantsMs. Manjushri Narwade h/f Mr. A. S. Rasal, Advocate for RespondentsCORAM: R. M. JOSHI, J.DATE: 28 July, 2025PER COURT :-1.This appeal is filed under Section 100 of Code of Civil Proceduretaking exception to concurrent findings of facts and dismissal of suit filed byappellants/plaintiffs. The Second appeal can be entertained only in case thereexists substantial question of law. In absence thereof, the Court cannot exercisejurisdiction to pass any order. 2.Appellants/original plaintiffs in this second appeal are seekingrelief which was not sought before the Trial Court as well as First AppellateCourt when the plaintiffs were unsuccessful in getting perpetual injunctionagainst the defendants in the suit.3.Parties are referred to as ‘Plaintiffs’ and ‘Defendants’ for the sake15-SA-784-20121 of 6 of convenience.4.Plaintiffs filed suit against the defendants bearing Regular CivilSuit No. 489/1993 for declaration, specific performance and perpetualinjunction. The suit came to be dismissed by the Trial court by the judgmentand decree dated 22.11.2010. Plaintiffs being aggrieved by the denial of theperpetual injunction in respect of remaining portion of suit land preferred inRegular Civil Appeal No. 190/2010. In this appeal no modification ofjudgment and decree passed by Trial Court was sought. Appellate Court wasnot even called upon to modify the injunction to the extent of not dispossessingthe plaintiffs from the portion of suit property without following due process oflaw. Since the appeal came to be dismissed by First Appellate Court on merit,this second appeal.5.Learned counsel for the appellants submits that apart from themerit of the appeal essentially the substantial question of law involved herein isthat the Trial Court as well as the First Appellate Court have committed error innot moulding relief sought by the plaintiffs. It is his contention that admittedlythe plaintiffs are in possession of the portion marked 2 of suit property inrespect of which the relief of injunction has been denied to the plaintiffs.Similarly suit for specific performance is also dismissed. It is his contentionthat once it is held by the Trial Court that the plaintiffs are in possession of the15-SA-784-20122 of 6 suit property, it was incumbent on the part of the Trial Court to prevent thedefendants from dispossessing the plaintiffs from suit property except dueprocedure of law. In order to support his submissions with regard to the powerof the Court to mould the relief, he has placed reliance on the judgment ofHon’ble Supreme Court in case of J Ganapatha and ors Vs. N. SelvarajalouChetty Trust and Ors 2025 (2) CCC wherein it is held by the Supreme Courtthat the concept of ‘Moulding of relief’ refers to the ability of Court to modifyor shape a relief sought by party in legal proceedings based on thecircumstances of the case. Similarly, he placed reliance on the judgment ofHon’ble Supreme Court in case of Ramesh Chand Ardawatiya Vs. AnilPanjwani 2003 (7) AIC 625 in order to submit that the Supreme Court hasgranted the relief of injunction against the defendants by restraining thedefendants from interfering with the possession of the plaintiffs over the suitproperty except by due procedure of law, as in the said case too, the plaintiffswere in position to prove possession over a suit property. Similarly, he took aidof the judgment of Supreme Court of Rajendra Tiwary Vs. Basudeo Prasadand Ors. AIR 2002 SC 136 in order to support his submission that the largerrelief being already sought, the relief of injunction restraining the defendantsfrom dispossession without due procedure of law is not likely to cause anyprejudice to the other side.15-SA-784-20123 of 6 6.Learned counsel for respondents supported the impugned order.7. This appeal being under Section 100 of the Code of CivilProcedure, cannot be entertained unless substantial question of law is involvedtherein. There cannot be any dispute with regard to the proposition of law thatit is open for the Court to mould the relief. Moulding of relief however wouldbe a discretion to be exercised by the Court in the facts and circumstances ofthe case. The Trial Court has refused to such discretion on the ground that thesince the title of the plaintiffs has not been established in respect of the portionof the suit property and that plaintiffs are not entitled for decree of specificperformance in respect of suit property (portion marked 2) and hencedefendants cannot be perpetually injuncted from dispossessing the plaintiffsfrom the suit property. In the facts of the case and having regard to theevidence on record, such refusal of relief by the Trial Court cannot be called asperverse. Non exercise of the discretion by the Court in the facts of the casewould not be construed as perverse finding. Hence such non exercise of thediscretion by itself will not become substantial question of law, having regardto facts and circumstances of present case.8.From the facts appearing from record, it could be seen thatplaintiffs always desired only to seek perpetual injunction against thedefendants and never intended to ask for limited relief of injunction from15-SA-784-20124 of 6 dispossession except due process of law. This interference is inevitable in viewof the fact that Trial Court denied perpetual injunction in respect of suitproperty portion Marked 2. The plaintiffs having knowledge that they are notgranted relief of perpetual injunction against defendants, do not seek evenalternatively modification of relief before the First Appellate Court. It wasalways open for the plaintiffs to call upon the First Appellate Court to modifythe said relief and to seek a limited injunction against the defendants. Havingthis not been done consciously, the plaintiffs have sought to challenge thejudgment and decree passed by the Trial Court and sought perpetual injunction.Thus, plaintiffs never had intention to seek the relief which is now sought inthis second appeal.9.As far as the judgments cited supra, there cannot be any disputemade with regard to the proposition of law sought to be canvassed on behalf ofthe learned counsel for the appellants that in appropriate cases, it would beopen for the Court to modify the relief. However it does not mean that nonexercise of such discretion will have to be treated as perversity in theimpugned order in all cases. In case of Ramesh Chand (cited supra), theHon’ble Supreme Court has set aside the impugned judgment and decree andthereafter has prevented the defendants therein from dispossessing theplaintiffs from the suit property without due process of law. Here, in this case,15-SA-784-20125 of 6
Legal Reasoning
there is no reason or justification for causing interference in the findingsrecorded by the Trial Court denying specific performance and injunction inrespect of suit property maked 2, which has affirmed by the First AppellateCourt. As far as the judgment in case of J Ganapatha (cited supra) is concerned,the Hon’ble Supreme Court has held that the modification or moulding of therelief by the Trial Court was justified. Thus, these two judgments would notsupport the contention of the learned counsel for the appellants that thereinvolves a substantial question of law in the present case.10.Since no substantial question of law is involved in this appeal.Question of grant of any relief to the appellants does not arise. Appeal,therefore, deserves to be dismissed and accordingly dismissed. Pending civilapplication stands disposed of.11.At this stage, learned counsel for appellants seeks continuation ofthe interim relief for a period of six weeks to take exception to this orderbefore the Hon’ble Supreme Court. Learned counsel for respondentsvehemently opposed the said request on the ground that litigation is pendingsince long.12.Since, interim relief is in force for more than 12 years, the same isextended for six weeks.(R. M. JOSHI, J.)bsj15-SA-784-20126 of 6