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2000 DIGILAW 265 (ORI)

BHOLESWAR SAHU v. RAMA CHANDRA BEHERA

2000-05-12

P.K.MISRA

body2000
P. K. MISHRA, J. ( 1 ) DEFENDANTS 2 and 3 are the petitioners. Plaintiff-opposite parties 1 and 2 filed Title Suit No. 79 of 1997 in the court of the Civil Judge (Senior, Division), angul, for declaration that the sale deed dated 22. 6. 1994 executed by defendant No 1 in favour of defendant No. 3 is null and void and for permanently injuncting defendants 2 and 3 from coming over the disputed plot and restraining them from making any further construction over the disputed plot and other reliefs. The disputed land is AC 0. 20 decimals from the middle portion of southern side of ac. 0. 67 decimals in plot No 292, khata No 281. The two plaintiffs and defendant No 1 are three brothers. It is claimed in the plaint that the plaintiffs and defendant No 1 succeeded to the disputed plot No. 292 after death of their parents. It is further claimed that the said property is the joint family property and there has been no partition by metes and bounds and for convenience, the plaintiffs have constructed a residential house on part of the disputed plot. It is further alleged that defendant No. 1 has illegally sold the disputed land to defendant No. 3. Subsequently, when the plaintiffs found that defendants 2 and 3 were making preparation for construction of house on the disputed land, a proceeding under Section 145, Code of Criminal Procedure, was initiated and subsequently, the said proceeding having been dropped, the suit was filed after the Summer Vacation of the year 1997. ( 2 ) DEFENDANTS 1 to 3 filed joint written statement denying the allegations made in the plaint. It was claimed that the parties were separate in mess and property and after partition, the parties were enjoying their respective portions separately ( 3 ) DURING pendency of the suit, an application under Order 39, Rules 1 and 2, Code of Civil Procedure, had been filed wherein initially the trial court had passed an order directing both parties to maintain status quo in respect of the disputed land. Subsequently, after hearing the parties the trial court confirmed the order of status quo. Subsequently, after hearing the parties the trial court confirmed the order of status quo. In appeal, the said order having been affirmed, the present Civil revision has been filed ( 4 ) THE trial Court found that there was no evidence that the disputed property had been partitioned by metes and bounds among the three brothers and as such, a prima facie case in favour of the plaintiffs had been established. It was further found that since the property had not been partitioned, no party should be allowed to raise valuable construction over the disputed land. The appellate court after noticing the contentions of both sides, affirmed the order of the trial court with the following observation :"4. Heard counsel on both sides. Taking facts and circumstances into consideration, it is abundantly clear that the land in question has been mortgaged. The other brothers of defendant No. 1 are the sureties for the said loan. Secondly, as it is the mortgaged property, the transaction made by defendant No 1 in favour of the appellants appears to be not genuine If the building is constructed and the appellants are permitted to stay in the building after vacation of the the injunction order, then the very purpose for instituting the suit would be frustrated The learned court below has elaborately given adequate reasons before confirming the ad-interim order of injunction dated. 25. 6. 1997 There is nothing to interfere with that order at this stage. Consequently, the order passed by the learned court below in m. J. C. No. 97 of 1997 dated 23 2 1998 must be confirmed. " ( 5 ) ORDINARILY, a revisional Court should not interfere with the discretionary orders passed by the Courts below. A bare perusal of the orders passed by the Courts below particularly the appellate Court, makes it clear that the order of injunction has been passed without keeping in view the relevant principles relating to grant of injunction. Law is now well settled that before granting an order of injunction, the Court must be satisfied that there is a prima facie case and irreparable loss would be caused to the party seeking injunction unless interim injunction is granted and the balance of convenience lies in favour of the party seeking inerim injunction. Law is now well settled that before granting an order of injunction, the Court must be satisfied that there is a prima facie case and irreparable loss would be caused to the party seeking injunction unless interim injunction is granted and the balance of convenience lies in favour of the party seeking inerim injunction. Even if prima facie case is established, unless it is found that irreparable loss would be caused and balance of convenience is in favour of the party seeking interim injunction, no such order should be passed. ( 6 ) IN the present case, it cannot be said at this stage that there is no prima facie case in favour of the plaintiffs as the question as to whether the property still continues as joint property or has been partitioned, in a matter which can be decided only after evidence is adduced. However, even assuming that there is prima facie case, order of injunction should not be granted unless the other two elements are satisfied. In the present case, it is apparent from the discussion made by the trial Court that by the time of filing of the suit, construction had been made by defendants 2 and 3 to a considerable extent. In fact, after the proceeding under Section 145, Code of Criminal procedure, was initiated, it was so reported by the Police Officer to the concerned Magistrate. Even though the learned counsel for opposite parties stated that such report had been illegally procured by the present petitioners, at this stage it cannot be so assumed. At any rate, even the trial court had come to the conclusion that construction upto a substantial extent had been made. The appellate Court also appears to have concluded like-wise. When a building has been constructed upto a considerable extent, it cannot be said that balance-of convenience would lie in favour of the party opposing such construction. It has to be kept in mind that the very fact that construction had been made by defendants 2 and 3 clearly indicated prima facie about the possession of defendants 2 and 3 after the purchase in the year 1994. The plaintiffs would not again anything if further construction in the shape of finishing work is stopped, whereas defendants 2 and 3 are likely to be prejudiced by such stoppage as the expenditure is likely to be increased. The plaintiffs would not again anything if further construction in the shape of finishing work is stopped, whereas defendants 2 and 3 are likely to be prejudiced by such stoppage as the expenditure is likely to be increased. The decisions reported in (Narayan Bisoi and another v. Raghunath Bisoi)1 and (Dorab caioasji Warden v. Coomisorab Warden and others)2 are clearly distinguishable. As such, in the facts and circumstances of the present case, it cannot be said that the balance of convenience was in favour of the plaintiffs. ( 7 ) EVEN, it cannot be said that the plaintiffs would suffer irreparable loss if the construction is allowed to be completed. The plaintiffs have not based their claim on the alleged violation of any right of privacy or easementary right. Since, prima facie, plaintiffs are not in possession of the disputed land, that is to say, the Ac. 0. 20 decimals sold by defendant No. 1, it cannot be said that they would suffer any irreparable loss if the construction is completed by undertaking the finishing work, as in case the plaintiffs ultimately succeed in the suit, necessary order regarding restoration of possession can be made. ( 8 ) THE question as to whether a party should be permitted to complete a half-constructed building would always depend upon the peculiar facts and circumstances of a particular case. Where construction is at anascent stage, the Courts may keeping in view the facts and circumstances prevent further construction. On the other hand, where construction has been made upto a considerable extent, it may not be in the interest of justice to stop further construction. No hard and fast rule can be laid down and the matter has to be decided keeping in view all the relevant circumstances. In the present case, the plaintiffs are not likely to suffer any prejudice if the construction is completed, as status quo ante can be restored if they ultimately succeed. As already indicated, the appellate Court without considering these aspects has mechanically affirmed the order of the trial Court. As such, it can be said that the appellate Court has exercised jurisdiction with material irregularity. As already indicated, the appellate Court without considering these aspects has mechanically affirmed the order of the trial Court. As such, it can be said that the appellate Court has exercised jurisdiction with material irregularity. ( 9 ) THE learned counsel appearing for the opposite parties contended that since the order of status quo is operative for about two and half years, the same should be continued and the trial of the suit may be directed to be expedited. In this connection, he has submitted that the hearing in the suit has already commenced and the suit may be disposed of at an early date. Such submission of the learned counsel for the opposite parties though prima facie attractive cannot be accepted in the peculiar facts and circumstances of the present case and it would not be proper to perpetuate such order merely because the order has remained in force for quite some time. If such logic is accepted, in many cases such illegal orders of restraint may have to be continued for considerable length of time due to pendency of appeal and further appeals against the flinal decisions in the suits irrespective of the relevant considerations for passing an order of injunction. ( 10 ) FOR the aforesaid reasons, the Civil revision, is allowed and the impugned orders are not aside It is, however, made clear that defendant-petitioners shall not claim any equity for any construction made during pendency of the suit and in case the plaintiffs succeed in the suit, they shall give vacant delivery of possession. The trial Court should dispose of the suit as expeditiously as possible. It is needless to observe that the suit should be disposed of in accordance with law Ou he basis of materials on record without being influenced by any observations made in the present order. There will be no order as to costs. Revision allowed.