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2000 DIGILAW 317 (HP)

DWARKI DEVI v. H. P. HOUSING BOARD

2000-12-14

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.:- This revision petition under Section 115 of the code of Civil Procedure (hereafter referred to as the Code), is directed against the order dated 4th September, 1999, passed by the learned District Judge, Solan, in Civil Misc. Appeal No. 17-S/14 of 1999 affirming the order passed by the learned Sub Judge, 1st Class, Kandaghat in CM. A. No. 72-S/6 of 1998 filed in civil suit No.35-S/1 of 1998 on 19th May, 1999, whereby the application of the plaintiff- petitioners (hereafter referred to as plaintiffs), under order 39 Rules 1 and 2 of the code, praying for restraining the defendant- respondent (hereafter referred to as defendant) from interfering in and dispossessing the applicants from the land comprised in Khasra No.47/2/1 measuring 17 biswas situated at Mauza Gumma, Pargana Baghet, Tehsil Kasauli, District Solan, Himachal Pradesh, has been dismissed. 2. The brief facts leading to the presentation of the present revision petition are that the plaintiffs have instituted a suit for declaration that they are the joint owners in possession of the suit land and the order dated 20th May, 1998 passed by the Commissioner, Shimla Division, directing the ejectment of the plaintiffs from the suit land under the provisions of H.P. Public Premises (Eviction and Rent Recovery) Act, 1971 (hereafter to be referred to as the Act), is illegal, unauthorised, void and without jurisdiction and not binding on the plaintiffs and, for injunction restraining the defendant from interfering with the suit land and from dispossessing the plaintiffs therefrom on the basis of the said order. 3. The case of the plaintiffs, as made out in the plaint, is that initially khasra No.47 measured 20-06 Bighas and the plaintiffs had 1/2 share therein and the remaining 1/2 share was owned by one Shiv Dayal. Out of this land, one Biswa was acquired by Punjab State Electricity Board, which was specified as Khasra No. 47/1. The remaining land was specified as Khasra No. 47/2 measuring 20-5 bighas. Since the land was to be acquired by the defendant for establishing a township, a Notification dated 24th July, 1970 was issued under Section 4 of the Land Acquisition Act for acquisition of land situated in different villages, including the land in suit. The plaintiffs had two houses on the land owned and possessed by them. Since the land was to be acquired by the defendant for establishing a township, a Notification dated 24th July, 1970 was issued under Section 4 of the Land Acquisition Act for acquisition of land situated in different villages, including the land in suit. The plaintiffs had two houses on the land owned and possessed by them. When the land was acquired pursuant to the aforesaid Notification, one of their houses was acquired alongwith other land specified as Khasra No.47/2 but a parcel of land measuring 17 biswas specified as khasra No. 47/2/1, on which the house of the plaintiffs was standing, was not acquired. The acquired area specified as khasra No. 47/2/2 is only 19-8 bighas. The Land Acquisition Officer, Solan, passed a Supplementary Award on 25th June, 1976 in respect of the house standing on the acquired land which was an old structure and the said award mentions 17 Biswas of land (Khasra No.47/1) as having been acquired wrongly whereas the said 17 biswas of land whereon the hosue of the plaintiffs is standing, remained in the possession. The defendant initiated proceedings under the Act, seeking the ejectment of the plaintiffs from the land specified as Khasra No.47/2/1 alongwith the house standing thereon and recovery of damages. These proceedings terminated in favour of the plaintiffs. The defendant, however, preferred an appeal before the Divisional Commissioner, Shimla and finally, the order of ejectment had been passed, which is illegal, perverse and erroneous. The plaintiffs approached the High Court against the said order of ejectment by filing C.W.P.No. 431 of 1998. (The said writ petition was dismissed by the High Court with liberty reserved to the plaintiffs to avail any other alternate remedy for the redressal of their grievance). Hence the suit. 4. The defendant has contested the suit on various grounds, including the objection about the maintainability of the suit, jurisdiction of the Civil Court to entertain the suit that the suit property has been duly acquired and the plaintiffs had ceased to have any right, title or interest in the suit property etc. Hence the suit. 4. The defendant has contested the suit on various grounds, including the objection about the maintainability of the suit, jurisdiction of the Civil Court to entertain the suit that the suit property has been duly acquired and the plaintiffs had ceased to have any right, title or interest in the suit property etc. It was alongwith the suit that the plaintiffs had filed an application under Order 39 Rules 1 and 2 of the Code, summarily reiterating the averments as made in the plaint and claiming that they have a good prima facie case in their favour, and in case the injunction as prayed for, is not granted, they would suffer irreparable loss or injury which cannot be compensated in terms of money and the purpose of filing the suit will also be defeated and that the balance of convenience is in their favour. 5. The defendant contested the application. In the reply, the defendant raised preliminary objections, namely, that the suit was not maintainable for want of service of notice as required under Section 50 of the H.P. Housing Board and that the Civil Court had no jurisdiction to entertain the suit. It was further contended that the suit property has been acquired and the plaintiffs had not right to retain it because of their possession being unauthorised. 6. The learned trial Judge, vide its order dated 19th May, 1999, dismissed the application on the grounds that the suit land has been acquired by the supplementary award and the Civil Court had no jurisdiction to entertain the suit, therefore, there was no prima facie case in favour of the plaintiffs. 7. On an appeal filed before the learned District Judge against the order of the trial court the learned District Judge concurred with the findings of the learned trial Judge and dismissed the appeal. Hence the present revision. 8. I have heard the learned counsel for the parties and have also gone through the records. 9. It was contended by the learned counsel for the plaintiffs that the requirement of showing a prima facie case as one of the essentials for grant of temporary injunction, has been mis-understood by the Courts below to mean that the plaintiffs must have a case which must invariably be decreed. 9. It was contended by the learned counsel for the plaintiffs that the requirement of showing a prima facie case as one of the essentials for grant of temporary injunction, has been mis-understood by the Courts below to mean that the plaintiffs must have a case which must invariably be decreed. In fact what is meant by prima facie case is that the plaintiff must disclose an arguable case at the initial stage which will be treated as prima facie good case apart from balance of convenience and likelihood of irreparable injury in the event of refusal of injunction. It has further been contended that in the facts and circumstances, as they emerge from the records, the plaintiffs have made out an arguable case, that is a prima facie case, for the purpose of grant of temporary injunction and the plaintiffs being in admitted possession of the suit property, the balance of convenience was in favour of the grant as in event of their dispossession the defendants would take possession of the house of the plaintiffs which is bound to cause irreparable injury to them. 10. It may be pointed out that while dealing with application under Order 39 Rules 1 & 2 of the Code of Civil Procedure the Courts are not expected to come to a definite and precise conclusion which may by necessary implications amount to a final decision of the dispute between the parties as appears to have been done by the learned trial Judge when he has concluded that "In fact the supplementary award pertains to the structure only and it is admitted case of the applicant that structure were also on an area of 0-17 biswas. If it is so, it cannot be said that land in question had not been acquired or that applicants had not received compensation of structure." and that "Once it is established that land in question stand acquired, it had become the premises as defined under Section 2 (d) and (e) of the H. P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971. Section 15 of the said Act specifically bars the jurisdiction of the Civil court to entertain any proceeding. Section 15 of the said Act specifically bars the jurisdiction of the Civil court to entertain any proceeding. If it is so, then the proceedings were rightly initiated before the Collector Solan and this Court has certainly no jurisdiction to entertain the application." In fact, these are such conclusions which could have been arrived at only after the full trial. At the initial stage only a prima facie view as would emerge from the records, would have been taken. 11. The learned District Judge though in the impugned judgment has not rendered the conclusive findings having bearing on merits of the dispute, yet has come to the conclusion that from the material on record prima facie the disputed property appears to have been acquired and that prima facie the jurisdiction of the civil Court appears to be barred in such eventuality. Thus, the Courts below have not found a prima facie case in favour of the plaintiffs. 12. It is not in dispute that the Courts below have the jurisdiction to decide the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure either way. The dismissal of the applicaton is based on concurrent findings that the plaintiffs have failed to make out a prima facie case. Therefore, it is not a case where the Courts below have exercised the jurisdiction not vested in them or might have failed to exercise the jurisdiction which vested in them nor it is a case of exercise of such jurisdiction with material illegality or irregularity so far as the prima facie position of the factual aspect of the case is concerned. 13. Even otherwise, the prima facie conclusion that the disputed property stood acquired, arrived at by the learned District Judge, is supportable on the basis of the material on record. 14. In view of the above discussion, I find that this is not a case where the impugned order is called for to be interfered with by this Court. It may, however, be observed that the trial court shall proceed to try the suit and to dispose it of independently of its present conclusion that the Civil Court has no jurisdiction to try the suit and determine the question of jurisdiction on the merits of the case at the trial. 15. With the aforesaid observations, the present revision petition is dismissed. 15. With the aforesaid observations, the present revision petition is dismissed. The parties are directed to appear before the trial Court on 5.1.2001. The records of the Courts below the returned forthwith.