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Madhya Pradesh High Court · body

2012 DIGILAW 148 (MP)

State of M. P. v. Govind Gaushala, Datia

2012-02-02

SHEEL NAGU

body2012
ORDER 1. This writ petition has been filed under Article 227 of the Constitution of India against the final order dated 29.09.2011 passed in MCA No.02/2011 by the First Additional Judge to the Court of District Judge, Datia, whereby the first appellate Court has directed for maintenance of status quo in regard to the disputed land till the final disposal of the suit after disposing of the appeal filed by the plaintiff against the interlocutory order dated 25.02.2011 rejecting the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for temporary injunction filed by the plaintiff in Civil Suit No.2-A/2011. 2. The contention of the learned Additional Advocate General for the State is that despite finding the plaintiff not to be in possession and despite the plaintiff having failed to make out a prima-facie case, the first appellate Court has wrongly granted status quo, thereby prejudicing the case of the State, which was requiring the suit land for public purpose. 3. The trial Court while refusing temporary injunction to the plaintiff was of the view that since the land in question has already been transferred to the State and the plaintiff has failed to prima-facie prove his possession, the basic and foremost ingredient of “prima-facie case” has not been made out. It is further contended by the State that while testing the legality and validity of the order of the trial Court refusing temporary injunction, the first appellate Court by the impugned order was also of the view that the plaintiff prima-facie is not in possession, but concluded that irreparable loss will be occasioned to the plaintiff if status quo is not granted as the plaintiff still holds the right to revoke the gift deed after passage of the period of three years since the date of execution of the gift deed and the plaintiff may after expiry of the said period, choose to revoke the gift deed. 4. Learned counsel for the respondent, on the other hand, has supported the order of the first appellate Court stating that the same is reasonable and it protects and preserves the property in question to be available for satisfaction of the decree, which may be passed in favour of the plaintiff and therefore deserves to be upheld. Counsel for respondent no.1 has placed reliance on various decisions, namely, Mst. Rukhmabai Vs. Counsel for respondent no.1 has placed reliance on various decisions, namely, Mst. Rukhmabai Vs. Lala Laxminarayan & Others AIR 1960 SC 335 ; Kalyan Singh Vs. Vakil Singh & Others 1990 MPJR 177 ; Chhote v. Pancham 1992 (II) MPWN, 10; 1985 CCLJ 306; Mukesh Vs. Deonarayan & Others AIR 1987 MP 85 ; Preetpal Singh & Others Vs. State of MP & Others 1988 JLJ 549; and Gautam Nagar Residents Association Vs. Karmika & Others (2002) 10 SCC 260 in support of his contention. 5. The arguments of the learned counsel of the rival parties are heard and the record is perused. 6. A bare reading of the order of the trial Court refusing temporary injunction and also the impugned order of the first appellate Court disclose that both the Courts below had prima-facie come to the finding that the plaintiff is not in possession and, therefore no prima-facie case was held to be made out in his favour. 7. To establish a case of temporary injunction under Order 39 Rules 1 and 2 of CPC, three basic ingredients of prima-facie case, irreparable loss and balance of convenience in favour of the party seeking temporary injunction should not only exist, but should co-exist and the existence of only on ingredient will not satisfy the requirement for grant of temporary injunction unless all the three said ingredients exist simultaneously. 8. Moreover, the very basic ingredient for entitlement of temporary injunction is making out of a prima-facie case and it is only when a prima-facie case is made out that the Court concerned is required to ensure the co-existence of the other two ingredients,i.e., irreparable loss and balance of convenience. 9. In the instant case, it is to be seen that the gift deed executed by the plaintiff was revocable after three years on the failure of the beneficiary to carry out the purpose of the gift deed and since the period of three years had expired without fulfilling the purpose, the gifted land automatically reverted to the plaintiff impelling the plaintiff to file the Civil Suit for claiming declaration of title of the said suit land in his favour and a permanent injunction against the defendant. It is further to be seen that the plaintiff in his suit stated that he was in possession, but both the Courts below have rightly held that the plaintiff has not established on a prima-facie basis that he was in possession as the documents available on record indicate that the possession was handed over by the plaintiff. 10. From the facts available before the Court below, it is evident that the plaintiff certainly had a prima-facie case in his favour, but could not establish the factum of possession over the suit land. 11. The element of irreparable loss, which has also been gone into by the Court below requires some consideration. The first appellate Court has held that irreparable loss may be caused to the plaintiff if the defendants are permitted to undertake the construction which they intend over the disputed land. The factual matrix involved in the case indicates that if the construction of Airport is permitted to proceed, the plaintiff may be put to irreparable loss as the property in question on account of the proposed construction might undergo irretrievable changes. 12. From the above detailed discussion, this Court is of the view that a prima-facie case having been made out by the plaintiff, the ingredients of irreparable loss and balance of convenience were also existing in favour of the plaintiff. 13. Having held so, this Court is further required to consider the aspect of public interest raised by the State which appears to be the main factor compelling the State to approach this Court under Article 227 of the Constitution of India. 14. The State contends that there is a proposal for construction of an Airport on the suit property, for which consent has already been accorded. The construction of the Airport is without doubt a public purpose, which involves urgency as the said public purpose has a direct bearing on the over all development of the area concerned. It is held by various decisions that if the grant of temporary injunction leads to adverse effect to any work involving public interest, then the temporary injunction should not be granted even if the said three basic ingredients for the same have been made out. The decisions in the cases of American President Lines Ltd. v. Board of Trustees, Bombay Port AIR 2004 Bom. The decisions in the cases of American President Lines Ltd. v. Board of Trustees, Bombay Port AIR 2004 Bom. 162 (166); Nagar Nigam Aligarh v. Udai Singh AIR 2003 All 34 (42); Sambhu Chandra Sarkar v. State of West Bengal AIR 2004 NOC 146; Simanchal Padhy and etc. v. State of Orissa AIR 2003 NOC 386 : [2001 91 Cut LT 584 (Ori) ] ; Envision Engg. v. Sachin Infa Enviro Ltd. AIR 2003 Guj 164 (171); Satya Prakash v. Ist Additional District Judge, Etah, AIR 2002 All 198 (202); and Jokin Kurkalang Kseh v. Governing Body Upper Shillong College AIR 2002 NOC 90 (Gau) can profitably be referred to for this purpose. 15. In the conspectus of the facts and the discussion made above, this Court is though of the view that a prima-facie case for grant of temporary injunction was made out by the plaintiff/respondent, but on account of the intervening public interest, which is likely to be hampered, if the temporary injunction is granted, the plaintiff was not entitled to grant of any temporary injunction and the first appellate Court, therefore fell in error to ignore the all important aspect of public interest. 16. Accordingly the impugned order dated 29.09.2011 passed in MCA No.02/2011 is hereby set aside and the order of the trial Court dated 25.02.2011 is upheld. 17. Before parting with this case, looking to the nature of the dispute and the anxiety of the plaintiff to establish his right over the property, this writ petition is allowed in terms of what has been said (Supra) with a direction to the trial Court to conclude the suit as expeditiously as possible preferably within six months from the date of receipt of certified copy of this order.