IN THE 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

O R D E R

1. Leave granted.

2. 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.  

The 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.

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3. 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  

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the Courts below which by any means cannot be said to be perverse  

or arbitrary.  

4. In Smt. Rajbir Kaur & Anr. Vs. M/s.S.Chokesiri & Co. [1989  

(1) SCC 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  

Aeronautics  Ltd.,  Balanagar,  Hyderabad  and  another  Vs.  Ajit  

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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:   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 & Construction Co. (P) Ltd.,   New Delhi  V. Sarup Singh,  (1970)  2 SCR 368 = (AIR  1971 SC 2324)”    

5. 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 be restored.   

6. 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 stand restored.  

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7. 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.

8. 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.  

The prayer of Mr.Divan is, therefore, allowed and the application for  

direction  being  I.A.No.2/2009  is  treated  as  withdrawn.  

Dr.A.M.Singhvi,  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  said  

agreement.  

9. 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.  

All  these questions are kept  open to be gone into at  the time of  

hearing of the suit.

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10. 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]  

New Delhi;                  …………………….J. September 18, 2009.         [R.M.Lodha]

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