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1996 DIGILAW 894 (RAJ)

Abdul Razak v. Narain Das

1996-08-09

SHIV KUMAR SHARMA

body1996
Honble SHARMA, J. – Short question in this revision petition is a to whether the relief sought in the main suit can be granted by the trial Court at the time of issuance of interim mandatory injunction. (2) The plaintiff non- petitioner No. 1 Narain Das instituted as suit along with an application submitted u/O.39 Rr. 1 & 2 CPC for issuance of temporary as well as interim mandatory injunction in which it was averred that the plot mentioned in para No. 2 of the plaint had been in the tenancy of the plaintiff at the rate of Rs.25/- per month. The plaintiff was doing business of Banas, Balliyan on the said plot and with the permission of the non- petitioner No. 2 Ranjeet Singh the plaintiff had brought material for constructing a boundary will but the plaintiff petitioner in co- llusion with the servants of non-petitioner No. 2, forcibly took possession of South Western portion of the disputed land measuring 15 x15 , on which the defendant petitioner was exhibiting video films. It was requested that the defendant petitioner be restrained from interfering in the possession of the plot and a temporary injunction be issued against the defendant petitioner and non-petitioner No. 2 res- training them from interfering in the possession and business of the plaintiff, and interim mandatory injunction was also sought to oust the plaintiff petitioner from the disputed plot and restore its possession to the plaintiff. (3) The non-petitioner No. 2 submitted reply and stated that the plaintiff and defendant petitioner wanted to grab his land and both were trespassers. It was also submitted that the suit was not maintainable against the actual owner. The defendant petitioner in his reply averred that the petitioner and non-petitioner No. 2 had no right over the disputed land as the same belonged to Municipal Board Bundi.The defendant petitioner was running a carpenter shop on the said land for a period of last 13 years. The plaintiff and non-petitioner No. 2 had no right over the plot and there was no likelihood of any loss or inconvenience to the plaintiff and non-petitioner No. 2 as such the application deserve to be dismissed. (4) The Munsif and Judicial Magistrate Bundi vide order dated 30. 1.1993 allowed the application of plaintiff non-petitioner No. 1 and passed order under the provisions of 0.39 Rr. (4) The Munsif and Judicial Magistrate Bundi vide order dated 30. 1.1993 allowed the application of plaintiff non-petitioner No. 1 and passed order under the provisions of 0.39 Rr. 1 and 2 CPC restraining the defendant petitioner from for- cibly dispossessing plaintiff from the land in dispute. An interim mandatory injunction was also issued against the defendant petitioner to remove the tent and furniture from the North Western side of the land in dispute within a period of 15 days and handing over its possession to the plaintiff and not to interfere in the possession of the plaintiff in near future also. (5) The plaintiff petitioner filed an appeal under the provisions of O.43 R.1 CPC against the said order before the District Judge Bundi, who transferred the said appeal to the Court of Civil Judge cum Chief Judicial Magistrate and the learned Civil Judge vide judgment dated 31.8.1994 dismissed the appeal preferred by the petitioner and while upholding the judgment passed by the Munsif and Judicial Ma- gistrate. Against the said orders of the Court below this revision petition has been preferred by the defendant petitioner. (6) I have heard the arguments of the counsel for the parties and perused the impugned orders. (7) Mr. B.L. Mandhana learned counsel for the non-petitioner No. 1 raised preliminary objection that the revision petition was not maintainable as the interim mandatory order was passed under the provisions of Sec. 151 CPC by the learned Munsif and Judicial Magistrate Bundi, and no appeal under the provisions of O.43 R 1 CPC was maintainable against the said order as it was not passed under the provisions of O.39 Rr. 1 & 2 CPC. The defendant petitioner ought to have challenged the order of the Munsif and Judicial Magistrate Bundi by preferring revision petition against the said order and as the revision was not preferred against the said order the revision petition against the order of the Civil Judge Bundi passed under the provisions of O.43 Rr. 1 & 2 CPC was not maintainable. (8) It has further been averred by the learned counsel for the defendant petitioner that the High Court should not interfere in revision even if the order is right or wrong or in accordance with law or not unless the Court below exercised its jurisdiction illegally or with material irregularity . (9) Mr. 1 & 2 CPC was not maintainable. (8) It has further been averred by the learned counsel for the defendant petitioner that the High Court should not interfere in revision even if the order is right or wrong or in accordance with law or not unless the Court below exercised its jurisdiction illegally or with material irregularity . (9) Mr. Mandhana has placed reliance on the case of Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar & Anr. vs. Ajit rasad Tarway(1) in which Apex Court has observed as under : ``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 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 u/s 115 of the CPC: See the decisions of this Court in Pandurang Dhoni vs. Maruti Hari Jadhav, 1966 And D.L.F. Housing and Construction Co. (p) Ltd. New Delhi vs. Sarup Singh, 1970(2) SCR 368 : AIR 1971 SC 2324 . (10) Reliance has also been placed on 1985 RLW 22 & 1996 DNJ (Raj.) 277, in support of the arguments raised. (11) In Goverdhan Dutt Thanvi vs. Jagdamba Lal & Ors, 1996 DNJ Raj. 277(supra), it was held that for entertaining revision u/s 115CPC,a mere jurisdictional error is not sufficient. The Court is also required to examine as to whether if the order impugned is allowed to stand, it would occasion a failure of justice or it would cause irreparable injury to the revisionist . (12) Mr. Sanjay Mehrish, learned counsel for the petitioner has contended that the revision petition is maintainable as the appeal under the provisions of O.43 R. 1& 2 CPC was maintainable as the trial Court passed a composite order under the provisions of O.39 Rr. 1 & 2 CPC r/w Sec. 151 CPC. He has placed reliance on Bhinya Ram S/0 Shera Ram vs. Hukma Ram & two Ors. 1 & 2 CPC r/w Sec. 151 CPC. He has placed reliance on Bhinya Ram S/0 Shera Ram vs. Hukma Ram & two Ors. (4), in which it was observed that composite order of prohibitory and mandatory injunction passed on one single application addressed u/s 151 CPC and O.39 Rr.1 & 2 CPC without disclosing under what provision such order was passed such composite order would always be ap- pealable. (13) Reliance has also been placed on lkbal & Ors. vs. His Holiness Dr. Syedna Mohd. Burhanuddin Saheb through his Attorney Holder,(5) and Dalpat Kumar & Anr.vs. Prahlad Singh & Ors. (6) in which the Apex Court has observed as under : ``4. Order 39 R. 1(c) prorides that temporary injunction may be gran- ted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to disposses the plaintiff or otherwiseCause injury to the plaintiff in relation to any property in the suit, the Court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing ..... or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission Cl.(c) was brought on statute by Sec. 88(i)(c) of the Amending Act 104 of 1966 with effect from,1.2.1977. Earlier thereto there was no express power except the inherent power u/s 151 CPC to grant ad interim injunction against dispossession. Rule 1 primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the Court, on exercise of the power of granting ad interim injunction, is to pre- serve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. In other words, the Court, on exercise of the power of granting ad interim injunction, is to pre- serve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the Court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the Court, there is probability of his being entitled to the relief asked for by the plaintiff/ defendant;(2) the Courts interference is necessary to protect the party from species of injury.In other words, irreparable injury or damage would ensue, before the legal right would be established at trial; and (3) that the comparative hardship of mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it. (14) I have given my anxious consideration to the arguments advanced before me. Perusal of the order dated 30.1.1993 passed by the learned Munsif and Judicial Magistrate reveals that in the main suit the plaintiff non-petitioner No. 1 sought two fold relief. A request was made for issuance of permanent injunction against the defendant with regard to land in dispute together with another request for issuance of mandatory injunction pertaining to the land 15 x 15 was made and it was requested that the defendant be dispossessed from the said land and possession be restored to the plaintiff. In the application submitted u/O 39 Rr. 1& 2 CPC also issuance of temporary injunction restraining defendant non-petitioner from land in dispute was prayed and also a prayer for interim mandatory injunction similar to the prayer sought in the main suit was made. The defendant petitioner submitted reply to the application and pleaded that the land in dispute was never in possession of the plaintiff and the plaintiff and defendant No. 2 attempted to dispo- ssess the defendant petitioner from the plot in dispute collusively.The disputed land belonged to the Municipal Board on which the defendant petitioner was in possession for more than 30 years. The defendant petitioner did not take forcible possession of the land measuring 15 x15 but he has been continuously running shop of carpenter for a period of 30 years and in the garb of the suit the plaintiff wanted to dispossess him for which the plaintiff had no right. (15) The learned Munsif Bundi decided this disputed question of fact at the stage of issuance of interim injunction without recording evidence of the parties. In the impugned order the learned Munsif observed that from bare perusal of the reply submitted by the defendant petitioner it was revealed that the defendant pe- titioner committed trespass over the said land without any legal basis and there was no justification to allow the defendant petitioner to continue his trespass over the said land till the decision of the suit. This finding of the learned Munsif Bundi is illegal and without jurisdiction. The disputed question of fact ought to have been decided by him after recording the evidence of the parties and no interim mandatory injunction could have been issued. The appeal submitted by the defendant petitioner against the order of the Munsif and Judicial Magistrate under the provisions of O.43 R 1CPC was maintainable as from the order itself it is apparent that it was issued under the provisions of O .39 Rr 1 & 2 CPC and even if the prayer of interim mandatory injunction was granted, it may be termed as composite order issued under the provisions of O. 30 Rr. 1 & 2 CPC r/w Sec. 151 CPC, as has been rightly held in Bhinya Ram vs. Hukma Ram & two Ors. (supra) by this Court. (16) The Civil Judge Bundi while deciding the appeal preferred under the provisions of O. 43 R.1 CPC also did not appreciate that the interim mandatory in- junction in the instant case could not have been issued as the facts pleaded in the plaint were disputed by the defendant petitioner and unless the possession over the land in dispute is decided after recording evidence of the parties, interim mandatory injunction could not have been issued. Therefore, I am of the considered view that both the Courts below have committed illegality in exercise of juri- sdiction vested in them and if impugned order pertaining to issuance of interim mandatory injunction allowed to stand, it would occasion failure of justice and it would cause irreparable injury to the revisionist. The relief sought in the plaint could not have been granted by issuing interim mandatory injunction. So far as the issuance of temporary injunction in favour of the petitioner is concerned, the Co- urts below have rightly discussed the points pertaining to prima facie case, balance of convenience and irreparable loss and no illegality has been committed by the Courts below in issuing the order of temporary injunction in favour of the plaintiff. (17). Upshot of the above discussion is that the revision petition is partly allowed and the order of the Courts below pertaining to issuance of interim man- datory injunction with regard to land is set aside and the temporary injunction issued by the Court below restraining defendant petitioner from interference in the plaintiffs possession with regard to land in dispute is confirmed. Costs made easy.