Retail Marts P. Ltd. Vs. New Era Fabrics Ltd.  INSC 1607 (18 September
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6634 OF
2009 (Arising out of SLP)No.20138 of 2009) Home Care Retail Marts P. Ltd.
...Appellant Versus New Era Fabrics Ltd. ...Respondent
This appeal is directed against the judgment and order dated 16th
of July, 2009 passed by the High Court of Judicature at Bombay in Writ Petition
No.5756 of 2008 by which the High Court, in the exercise of its power under
Article 227 of the Constitution of India, had set aside the concurrent findings
of fact arrived at by the courts below by which an application for injunction
filed by the appellant in a pending suit was allowed in the manner indicated in
the said order.
appellant before us is the original plaintiff in the suit which has been filed
for declaration and injunction. As noted herein earlier, against the order of
the High Court setting aside the concurrent orders of the courts below allowing
an application for injunction pending disposal of the suit, the plaintiff/appellant
has come up to this Court by way of a special leave petition which on grant of
leave was heard in the presence of the learned counsel for the parties.
We have heard Mr. Shyam Divan, learned senior counsel appearing
for the plaintiff/appellant and Dr.A.M.Singhvi, learned senior counsel
appearing for the defendant/respondent. We have examined the impugned order as
well as the orders of the courts below in depth and in detail. We have also
heard the learned senior counsel for both the parties in extenso. In our view,
the findings arrived at by the courts below cannot be said to be perverse or
arbitrary for which the High Court could set aside the said orders in the
exercise of its power under Article 227 of the Constitution. On a thorough
reading of the judgment of the High Court which is under challenge before this
Court and also the orders of the courts below, it can be said that there is
some arguable point to be gone into for the purpose of deciding whether the
plaintiff/appellant is entitled to an order of injunction restraining the
respondent from interfering with the access to the said premises from the Mogul
Lane side by the appellant and its customers in addition to the gate on the
other side of its Hypermarket. Since this is a question to be gone into on
evidence at the time of trial and in view of the fact that the
plaintiff/appellant and their customers were using the said entry from Mogul
Lane to the Hypermarket, we are of the view that at this stage, the High Court
was not justified in exercising its power under Article 227 of the Constitution
to set aside the concurrent orders of 3 the Courts below which by any means
cannot be said to be perverse or arbitrary.
19], this Court has observed that when the findings of fact recorded by the
courts below are supportable on the evidence on record, the revisional court
must be reluctant to embark upon an independent reassessment of the evidence
and to supplant a conclusion of its own. In the present case, the question
arose whether under the Leave and Licence Agreement entered into by the
parties, the plaintiff/appellant was entitled or is entitled to use the gate
from Mogul Lane for the access to its Hypermarket or not. At this stage, it is
very difficult to say that the two courts below were not justified in holding
prima facie that such right exists to the plaintiff/appellant, this aspect can
only be gone into by the parties on the evidence to be produced at the time of
final hearing of the suit.
A substantial question on the interpretation of the rights of the
parties to use the gate from the Mogul Lane to the Hypermarket of the
plaintiff/appellant had arisen and, therefore, there was no reason for the High
Court to interfere with the concurrent orders of the courts below in the
exercise of its power under Article 227 of the Constitution. In The Managing
Director (MIG) Hindustan 4 Prasad Tarway, Manager (Purchase and Stores),
Hindustan Aeronautics Ltd., Balanagar, Hyderabad [AIR 1973 SC 76], this Court
observed as follows :- "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 so, the High Court could not have invoked its jurisdiction under
S. 115 of the Civil Procedure Code:
decisions of this Court in Pandurang Dhoni V. Maruti Hari Jadhav, (1996) 1 SCR
102 = (AIR 1966 SC 153), and D.L. F. Housing & Construction Co. (P) Ltd.,
New Delhi V. Sarup Singh, (1970) 2 SCR 368 = (AIR 1971 SC 2324)"
Therefore, we are of the view that the impugned order of the High
Court is liable to set aside and the orders passed by the Courts below are to
However, it is needless to say that the order of injunction
granted by the courts below shall continue till the final disposal of the suit
on condition that the appellant shall go on paying the amount that it is liable
to pay in terms of the Leave and Licence Agreement dated 27th of August, 2005.
In default of payment or deposit of the said amount, the injunction granted by
the courts below shall stand vacated and the order of the High Court shall
Considering the facts and circumstances of the present case, we
direct the Court of Small Causes at Bombay before which the suit is now
pending, to decide the suit at an early date preferably within six months from
the date of supply of a copy of this order to it without granting any unnecessary
adjournments to either of the parties.
Mr. Shyam Divan, learned senior counsel appearing for the
appellant submits, on instruction, that I.A.No.2 of 2009 filed by the appellant
in this Court, which is for some direction, shall not be proceeded with and,
therefore, he prays for withdrawal of the same.
prayer of Mr.Divan is, therefore, allowed and the application for direction
being I.A.No.2/2009 is treated as withdrawn.
learned senior counsel submitted that since the Leave and Licence Agreement has
already been terminated, it may not be taken that the said agreement is still
continuing as we have directed the appellant to deposit or pay in terms of the
We make it clear that our direction to continue the order of
injunction granted by the trial court on the aforesaid condition shall not mean
that the Leave and Licence Agreement is still continuing.
questions are kept open to be gone into at the time of hearing of the suit.
For the reasons aforesaid, the impugned order of the High Court is
set aside and that of the Courts below are restored and the appeal is allowed
to the extent indicated above. There will be no order as to costs.
.........................J. [Tarun Chatterjee]