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2009 DIGILAW 608 (HP)

GIAN CHAND v. RAJINDER KRISHAN

2009-06-29

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J.-The present petition has been preferred by the petitioners under Article 227 of the Constitution of India against the order dated 21.8.2008 passed by the learned Additional District Judge, Shimla in CMA No. 33S/14 of 2008. 2. Brief facts necessary for the adjudication of this petition are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit against the petitioners-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) for permanent prohibitory injunction restraining the defendants not to raise any type of construction or structure and alienating, selling encumbering dispossessing, creating any charge over any portion of the land comprised in old Khasra No. 37 Min, Khata Khatauni No. 14/25 and 26, new Khasra Nos. 121,122,123 and 124 measuring 0-01-67 HT situated at Mauja Jungle Khalini, as per jambandi for the year 2000-01 directly or indirectly in any manner through themselves, their family members, agents, power of attorneys, servants, labourers, contractors etc. The defendants filed the written statement. The plaintiff also filed an application under order 39 rules 1 and 2 of the Code of Civil Procedure seeking ad interim injunction. The learned Civil Judge (Junior Divison), Shimla allowed the application preferred by the plaintiff for grant of ad-interim injunction. The defendants preferred appeal before the learned Additional District Judge, Shimla against the order passed by the learned Civil Judge, Junior Division dated 8.7.2008. The learned Additional District Judge, Shimla partly allowed the appeal. The present petition has been preferred against the judgment dated 21.8.2008 passed by the learned Additional District Judge, Shimla 3. Mr. Bhupender Gupta, Senior Advocate has strenuously argued that both the courts below have erred in law by not taking into consideration the settled principles governing order 39 rules 1 and 2 of the Code of Civil Procedure. He then contended that in view of para three of the plaint, the Civil Judge (Junior Division) and the learned Additional District Judge could not grant the injunction. He lastly contended that both the courts below have failed to take into consideration well settled principles enshrined under the Specific Relief Act and Transfer of Property Act, more particularly, ‘lis pendens’ 4. Mr. G.D. Verma, Senior Advocate has supported the order as well as the judgment passed by both the courts below. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Mr. G.D. Verma, Senior Advocate has supported the order as well as the judgment passed by both the courts below. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. It will be apposite to reproduce paragraph 3 of the plaint filed by the plaintiff before the learned Civil Judge (Junior Division), which reads thus: “3. That the defendants are owners in possession of land comprised in new khasra Nos. 121 to 124, kitas, measuring 0-01-67 HT.” 6. The defendants in their written statement have averred that they are in possession of the land comprised in khasra Nos. 121 to 124, khata khatauni No.14/25 and 26 measuring 0-01-67 HT on the portion of which the building has been constructed in the year 1985 after seeking permission from the Town and Country Planning Department. According to them, the plaintiff had no right, title or interest over the suit land and building. 7. In view of the specific averments contained in para 3 of the plaint, it was not open to both the courts below to grant injunction against the defendants in the present form. The plaintiff has admitted that the defendants are owners in possession of the land comprised under new Khasra Nos. 121 to 124, Khata Khatauni No. 14/25 and 26, kitas 4 measuring 0-01-67 HT. The revenue entries also prima facie support the case of the defendants. It may be true that the plaintiff has preferred an application before the Settlement Collector for correction of revenue entries under section 37 of the Himachal Pradesh Land Revenue Act, 1953. However, he has not placed on record any order passed by the Settlement Collector. The learned courts below have over looked the settled principles of ‘lis pendens’ while granting injunction in favour of the plaintiff. The learned Additional District Judge has placed much reliance on Sajra Latha without there being any demarcation carried out by the revenue agency. 8. In order to seek interim injunction, the plaintiff has to establish: (i) there exists a prima facie case; (ii) balance of convenience lies in his favour; and (iii) unless the prayer was granted he would suffer irreparable loss and injury. The Court has also to take into consideration that the contention of the plaintiff is bona fide and question sought to be tried is a serious question and not merely triable issue. 9. The Court has also to take into consideration that the contention of the plaintiff is bona fide and question sought to be tried is a serious question and not merely triable issue. 9. Accordingly, in view of the observations made hereinabove, the petition is allowed. The order dated 8.7.2008 passed by the learned Civil Judge (Junior Division) and judgment dated 21.8.2008 passed by the learned Additional District Judge are set aside. The matter is remanded back to the learned Civil Judge (Junior Division), Court No. VI, Shimla to decide the application afresh within a period of four weeks from today. The parties through their counsel are directed to appear before the Civil Judge (Junior Division), Court No. VI, Shimla on 3.7.2009. No costs.