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2001 DIGILAW 59 (HP)

RAM PIARI VERMA v. ANAND SWAROOP

2001-04-24

M.R.VERMA

body2001
JUDGMENT M. R. Verma, J.—This Revision Petition under Section 115 of the Code of Civil Procedure (hereinafter referred to as the Code) has been preferred by the petitioners-plaintiffs (hereinafter referred to as the plaintiffs) against the order dated 5.10.2000 passed by the learned Additional District Judge, Shimla, in CMA No. 24-6/ 14 of 2000 thereby affirming the order dated 29.5.2000 passed by the learned Sub-Judge 1st Class (II), Shimla in CMA No. 21/6 of 2000 in Civil Suit No. 26/1 of 2000 whereby the application of the plaintiffs under Order 39 Rules 1 and 2 of the Code for grant of interim injunction restraining the respondent-defendant from interfering with the possession of the plaintiffs over the land comprising khasra Nos. 98, 99, 94, 96, 100, 95, 97 measuring 2-18 bighas situate at Khalini, Pargana Jajhot, Tehsil and District Shimla (hereinafter referred to as the suit land) had been dismissed. 2. Brief facts leading to the filing of the present Revision Petition are as follows : 3. The plaintiff instituted a suit against the defendant for declaration and injunction. Their case is that they are recorded owners in possession of the land comprising khasra Nos. 95 and 97 and are non-occupancy tenants of the land comprising khasra Nos. 98, 99, 94, 96, 100 and that the sale deed executed by Ramneek Kumar impleaded as defendant No. 2 in the suit and Will executed by one Sushila Devi in favour of the defendant are illegal, void, inoperative and no right, title or interest of any kind has accrued to the defendant-respondent through these deeds. In the first week of February, 2000 the defendant tried to dispossess the plaintiffs from the suit land and is still threatening to do so. Hence, the suit for declaration and permanently injunction. 4. It was alongwith the plaint that an application under Order 39 Rules 1 and 2 of the Code was also filed by the plaintiffs for grant of interim injunction restraining the defendants from interfering with their possession over the suit land till the disposal of the suit. 5. The defendant contested the suit. 4. It was alongwith the plaint that an application under Order 39 Rules 1 and 2 of the Code was also filed by the plaintiffs for grant of interim injunction restraining the defendants from interfering with their possession over the suit land till the disposal of the suit. 5. The defendant contested the suit. In his written statement he raised the preliminary objections that the suit was hit by principle of res judicata, that the plaintiffs have not come to the court with clean hands; that the suit is bad for mis-joinder of necessary parties and on facts it has been claimed that the plaintiffs were never inducted as tenants over the suit land and the entries showing them as such are void and illegal and that the mutation of ownership in favour of the plaintiffs has already been set-aside and the plaintiffs are out of possession, hence the claim has been denied in toto. The application was also contested on the same grounds. 6. The trial Court dismissed the application after coming to the conclusions that the plaintiffs have not come to the Court with clean hands and that there is no prima facie case in their favour. Being aggrieved the plaintiffs preferred an appeal which was dismissed by the Additional District Judge, Shimla by the impugned order. Hence, the present Revision Petition. 7. I had heard the learned Counsel for the parties and have also gone through the records. 8. It was contended by the learned Counsel for the plaintiffs that a highly contentious question as to the possession of the suit land is involved in the matter and even in view of the inquiry regarding status of the plaintiffs and their right to acquire ownership in the suit land instead of the inference that the plaintiffs are not in possession of the suit land as drawn by the Courts below, the inference would have been that they are in possession and in fact the entries in the latest revenue records show them in possession of the suit land, therefore, the relief of temporary injunction has wrongly been denied to them. 9. 9. On the other hand the learned Counsel for the respondent has contended that the challenge in this petition is to the concurrent findings of the courts below which call for no interference and even otherwise the findings recorded and orders passed by the courts below are fully justified in the facts and circumstances of the case as they can be gathered at this stage from the material on record. 10. In exercise of its revisional jurisdiction High Court may interfere with any revisable order passed by a Court subordinate to it if the following conditions are satisfied:— (1) That such subordinate Court while passing the order: (a) has exercised a jurisdiction not vested in it, or (b) has failed to exercise a jurisdiction vested in it, or (c) has acted in the exercise of its jurisdiction illegally and with material irregularity, and (2) That it will occasion a failure of justice or irreparable injury to the party against whom such order is made, if such order is allowed to stand. 11. In case the aforesaid conditions are not satisfied, the High Court shall not interfere merely on the ground that a different view on facts as on record is possible. 12. In The Managing Director (MIG) Hindustan Aeronatics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (P&S) Hindustan Aeronatics Ltd. Balanagar, Hyderabad, AIR 1973 SC 76, the Honble apex Court held 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 the 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 with material irregularity. The order of the first appellate Court may be right or wrong; may be in accordance with the 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 with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code: See the decisions of this Court in Pandurang Dhoni v. Maruti Hari Jadhav, (1966) 1 SCR 102 : AIR 1966 SC 153) and D.L.F. Housing and Construction (P) Ltd. New Delhi v. Sarup Singh, (1970) 2 SCR 368 - AIR 1971 SC 2324." 13. This is not a case of exercise of a jurisdiction not vested in the Courts below nor it is a case of failure to exercise the jurisdiction vested in them. Therefore, in view of the above stated position in law the impugned order does not call for interference on the grounds of want of jurisdiction or failure to exercise a jurisdiction vested in the Courts below. 14. Both the courts below have found that the plaintiffs have not made out a prima facie case for grant of temporary injunction as prayed for. Evidently the aforesaid conclusion had been arrived at by the courts below on the basis of the material on record. Apart from giving some of its own reasons to support the impugned order, the lower appellate court has concluded that the impugned order reveals that the findings of the trial court are based on material available on the record and the same cannot be termed as unwarranted, unjust, arbitrary or illegal and it has taken appropriate view of the matter in the facts and circumstances and the material available on the record. Thus, the lower appellate court fully concurred with the findings of the trial Court that plaintiffs have not come to the court with clean hands and have also failed to show a prima facie case for grant of temporary injunction prayed for. 15. The learned Counsel for the plaintiffs had taken me through the material placed on record to come to a conclusion contrary to the concurrent findings of the two courts below. 15. The learned Counsel for the plaintiffs had taken me through the material placed on record to come to a conclusion contrary to the concurrent findings of the two courts below. However, the view taken by them is possible even if a partially or wholly different view on the facts is possible. However, that cannot be a ground to interfere with the concurrent findings of facts in exercise of the revisional jurisdiction under Section 115 of the Code. This view is fully fortified by the ratio laid in the Municipal Corporation of Delhi v. Suresh Chandra Jaipuria and another, AIR 1976 SC 2621. 16. In The Municipal Corporations case supra the Hon’ble Supreme Court considered the scope of interference with concurrent findings of the lower courts in exercise of the revisional jurisdiction by the High Court under Section 115 of the Code. In the said case the trial Court and the lower appellate Court had refused to grant interim injunction in favour of the plaintiff. The High Court interfered with the concurrent findings in exercise of its revisional jurisdiction and granted interim injunction. The Apex Court however held that the interference by the High Court with the concurrent findings was not justified as it had over-looked the principles governing interference under Section 115 of the Code. 17. On the basis of the findings that the plaintiffs have not approached the court with clean hands and they have no prima facie case, the relief of interim injunction has been rightly and legally refused to the plaintiffs by the courts below. Therefore, the impugned order does not call for any interference by this Court. 18. As a result this Revision Petition merits dismissal and is accordingly dismissed. 19. Parties through their counsel are directed to appear before the trial Court on 14.5.2001. Revision dismissed.