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2008 DIGILAW 708 (ORI)

SAGARIKA SENAPATI v. RAMA MANI DEI

2008-08-18

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - This is an application under Article 227 of the Constitution of India. Challenge has been made in this Writ Petition to the Order Dated 23.5.2008 passed by the Learned District Judge, Puri in FAO No. 31 of 2008 confirming the Order Dated 6.2.2008 passed by the Learned Civil Judge (Senior Division), Nimapara in Interim Application. No. 94 of 2007 arising out of C.S. No. 166 of 2007. 2. The Petitioner is Defendant No. 1 and Opposite Parties 1 to 4 are the Plaintiffs. The disputed properties belong to Gopinath Nath. He established a medicine store in Schedule-A property. After the death of Gopinath, the Plaintiffs being the successors-in-interest were managing the said medicine store. On 16th December, 2007, Defendants tactfully put a lock over the lock put by the Plaintiffs on the wooden door of the said medicine store and when the Plaintiffs on 17th December, 2007 went to open the medicine shop, they came 11 know about the Illegal act of the Defendants and when they tried to remove the said lock, the Defendants threatened them to kill and being afraid they returned to their house. After knowing the mischief of the Defendants, they filed the suit and also filed an interim application seeking ad interim mandatory injunction to remove the lock put by the Defendants and restraining them from disturbing in the peaceful possession over Schedule-A and B properties. 3. In the said interim application, the present Petitioner-Defendant filed an objection stating therein that the shop room in question belongs to her father and as she married to a person belonging to different caste, her in-law's family did not allow her to stay in the joint family. Therefore, her father helped her and she along with her husband are staying in a rented house and managing the medicine',5hop for their family maintenarice and she is in possession of the said shop room after her husband's death. The Plaintiffs with an ill motive tried to dispossess the Defendants and created the concocted stories. As they are running the medicine shop for their livelihood from its income, no mandatory injunction should be granted and the plaintiffs had no prima facie case and balance of convenience was in tier favour and she would suffer irreparable loss if the injunction would be granted by the Court below. 4. As they are running the medicine shop for their livelihood from its income, no mandatory injunction should be granted and the plaintiffs had no prima facie case and balance of convenience was in tier favour and she would suffer irreparable loss if the injunction would be granted by the Court below. 4. The Court below on considering the plea of the parties held that the present Petitioner being the daughter of Gopinath, has a right over the house and property left by Gopinath and since Schedute-B property is a homestead land of Gopinath and Defendants 1 and 2 are staying over the said land, they cannot be injuncted from entering into the said property. The Court below passed the order of status quo in respect of Schedule-B property till final disposal of the suit and directed the Petitioner in form of ad interim mandatory injunction to remove the lock from the entrance wooden door of medicine store situated over Schedule-A property. It directed the Defendants not to disturb in the possession of the Plaintiffs over Schedule-A property. Being aggrieved by the said order, the Defendants filed FAO No. 31 of 2008 before the Learned District Judge, Puri challenging the order of the Learned Civil Judge on the ground that without giving a specific finding regarding the possession of t e parties or without enquiring the same, mandatory injunction should not be granted by the Trial Court. In support of their contention, they cited a decision of the Supreme Court in the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden and others. The Learned District Judge by Order Dated 23.5.2008 dismissed the appeal of the Petitioner confirming the order of the Trial Court. 5. The Learned Counsel for the Petitioner submitted that before granting the relief of ad interim mandatory injunction, the Court below should have enquired into the possession of the parties and without coming to a definite finding regarding the same on the date of filing of the suit, the ad interim mandatory injunction should not have been passed. 5. The Learned Counsel for the Petitioner submitted that before granting the relief of ad interim mandatory injunction, the Court below should have enquired into the possession of the parties and without coming to a definite finding regarding the same on the date of filing of the suit, the ad interim mandatory injunction should not have been passed. Before granting relief of mandatory injunction the following principles should be taken into consideration i.e. (i) the Plaintiff has a strong case for trial, i.e., it shall be of higher standard than a prima facie case that is normally required for a prohibitory injunction; (ii) it is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money and (iii) the balance of convenience is in favour of one seeking such relief. 6. The Learned Counsel appearing for the Opposite Parties-Plaintiffs submitted that the Opposite Parties being the widow and minors have no other source of income for their sustenance. So, considering the same, both the Courts below passed the order of ad-interim injunction and they being the wife and successors-in-interest of Gopinath managing the medicine store. Therefore, the impugned order need not be interfered with. 7. Before granting interim mandatory injunction, the Court must keep in mind the following principles: During pendency of the suit the relief can be granted which amounts to full relief before final hearing is given to a party to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining, since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm to her. Therefore, the Court must consider those principles. As both the Courts below did not consider the same, the order is liable to be interfered with by this Court. 8. Therefore, the Court must consider those principles. As both the Courts below did not consider the same, the order is liable to be interfered with by this Court. 8. This Court heard the submissions of the Teamed Counsel for the parties and after going through the records it appears that the Trial Court granted interim mandatory injunction without specific finding regarding the possession of the parties on the date of filing of the suit and the Appellate Court confirmed the same. Both the Courts below proceeded only on the basis of prima facie case, balance of convenience and irreparable loss or injury, the three principles which are necessary to be considered before granting order of injunction simpliciter. 9. The Apex Court in the case of Kishore Kumar Khaitan and Another Vs. Praveen Kumar Singh, has categorically stated that while granting mandatory injunction the Court has to enquire into the fact as to who was in possession of the property in question on the date when the suit was filed. While granting the order of interim mandatory injunction directing the Defendants to put the Plaintiff in possession of the suit premises, the principles to be kept in mind by the Court that whether the Plaintiff has proved that he was in possession on the date of suit and on the date of the order he had been dispossessed the next day. Unless a clear prima facie finding that the Plaintiff was in possession on those dates is entered, an order for interim mandatory injunction could not have been passed and any such order passed would be one without jurisdiction. That having not been done in the present case, the findings of the Courts below are perverse. Where the Court below comes to a finding of fact by asking itself a wrong question or approaches the question in an improper manner, the said finding cannot be said to be one rendered with jurisdiction and, therefore, is amenable to correction under Article 227 of the Constitution. 10. Hence, this Court in exercise of its jurisdiction under Article 227 of the Constitution of India sets aside the impugned Order Dated 23.5.2008 passed by the Learned District Judge, Purl in FAO No. 31 of 2008 and directs the Learned District Judge to hear the matter afresh. 11. The Writ Petition is allowed accordingly. Final Result : Allowed