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2013 DIGILAW 17 (MEG)

Kup Synrem, Sordar Rngi v. Trial Synrem

2013-05-23

T.NANDAKUMAR SINGH

body2013
JUDGMENT : T. Nanda Kumar Singh, J. 1. Heard Mr. VGK Kynta, learned counsel appearing for the petitioner/defendant. None appears for the respondents, despite proper service of notice upon them, without showing any cause. 2. This revision petition is directed against the Judgment and Order dated 26.7.2012 passed in Misc. Appeal No. 9 of 2011. The impugned Judgment and Order dated 26.7.2012 is voluminous and consists of 101 pages. As the impugned Judgment and Order is so voluminous, this Court had given anxious consideration as to what are the contents of the voluminous impugned Judgment and Order. But surprisingly, there is not even a whisper in the impugned Judgment and Order as to whether there is irregularity or otherwise, in exercise of discretion by the Trial Court for refusing to grant temporary injunction order. It is only the submission of Mr. V.G.K. Kynta, learned counsel appearing for the petitioner that the first appellate Court had utterly failed to discharge its functions and duties in an appeal against the Judgment and Order of the Court below refusing to pass the injunction order. 3. Mr. V.G.K. Kynta, learned counsel appearing for the petitioner by referring to the document annexed by plaintiff/respondent in TS No. 8 of 2010 contended that the suit land is a community land i.e. "Ri Raid Land". Under the prevailing custom as well as the law, the Ri Raid Land is a property of the people of the Raid and every member of the Raid has the right to cultivate everywhere in the vacant part of the village for a particular period, normally three years and he/she to whom the said land is allotted, incase of vacating it, it should be returned to the community. 4. Mr. V.G.K. Kynta, learned counsel by referring to the plaint of the said TS No. 8 of 2010 and also to the written statement contended that the suit land which is a part of the Ri Raid Land was once allotted to the respondent/plaintiff under the agreement which is mentioned in the impugned Judgment and Order, but because of her greediness, the land i.e., the suit land which is part of the Ri Raid Land allotted to her had been withdrawn. As per the record as well as the submission of the learned counsel, Mr. As per the record as well as the submission of the learned counsel, Mr. V.G.K. Kynta, it appears that there is a dispute as to who is in possession of the suit land. 5. It is an admitted fact from the record that the respondent/plaintiff had approached the Trial Court for passing injunction orders in her favour in respect of the suit land in the said TS No. 8 of 2010 and also that the Trial Court had passed an ex-parte injunction order dated 8.4.2010. However, after hearing the parties and perusal of the respective pleadings of the parties, the Trial Court passed the Judgment and Order dated 28.9.2010 refusing and declining to pass the injunction order or to make ex-parte injunction order absolute. In the result, the ex-parte injunction order had been vacated. The reasons for declining to pass the injunction order by the Trial Court mentioned in the Judgment and Order dated 28.9.2010 read as follows:- ...........................Having evaluated the submission of the Ld. Counsel for the petitioner and having perused all the documents enclosed in the plaint, it found that the possession of the petitioner is not clear as the petitioner is searching for her right of title only in the year 2008 and that her claim of possession right from the year 1966 has not been substantiated by any specific proof, even though if it is to be taken into consideration that the petitioner has been allotted land in the said village right from the year 1976, whereas there is nothing to show that the petitioner has improve and develop the land for cultivable purposes or if the land is not suit for cultivation as there are minerals under the earth but there is nothing on record to show that the suit land has been started for mining or quarrying purposes. It may even be taken into account that the suit land is a Ri Raid Land since the petitioner is silent on this point but I am of the opinion that since the petitioner originally belongs from the village Rngi Mawsaw, the village Durbar might have allotted land to her since the land is a Ri Raid Land, but I am of the view that the petitioner has failed to prove her continuous possession over the suit land since the year 1966 as claimed by her till the year 2008, as I have already given my opinion that there is nothing to prove that the suit land is having any plantation nor any mining purposes being carried out or any homestead present within the suit land. Moreso, speaking of secondary importance of a prima facie case, it is found that all the documents enclosed by the petitioner, there is nowhere being mentioned that the petitioner is in possession of the suit land as even the Sordar of Rngi Mawsaw at annexure 4 of the plaint has stated that from the 2nd April, 2008 the petitioner can work within the suit land from that day onwards which goes to show that the petitioner has left the suit land in between the period from 1966 - 2008 and from the year 2008 onwards the same need not to be described as since that year her possession is not reflected in any document as the petitioner is busy fighting for her right/ownership over the suit land, where I am of the opinion that the petitioner may have the right to fight for ownership over the suit land even though she is not a resident of Rngi Mawsaw village but her possession over the suit land is not suffice by any prove. Further, I am of the opinion that in between the year 1996-2008, as the petitioner has left the suit land without taking care of it, the land might have revert to the village Durbar, but since the petitioner originally belongs from Rngi Mawsaw village, the Durbar being run for the welfare of the people may decide to allot land to the petitioner which once owned by her way back in the year 1976 based upon her request. Therefore in my above observations that the petitioner is not in possession over the suit land and hence having no prima facie case for grant of temporary injunction, (2) Balance of Convenience:- While considering this particular ingredient, I would like to compare as to whether it could cause greater inconvenience to the opp. parties if the injunction is granted to the other side would be put if the injunction is not granted. As regard to this point, I am of the opinion as observed by me while considering a prima facie case. 1 am therefore of the opinion that the petitioner shall not suffer any inconvenience even if the temporary injunction is not granted as the balance of convenience is not in her favour of granting the same. (3) Irreparable loss and injury: While considering the above first two points where I have observed that the petitioner has got no prima facie case and that the petitioner shall not suffer any irreparable loss and injury if the temporary injunction is not granted but it is the opp. parties who shall suffer irreparable loss and injury if the temporary injunction is granted. Based on the above points of observations that the petitioner is not entitled for making the ad interim injunction order absolute, therefore the ad-interim injunction order dt. 8.4.2010 stands vacated. 6. Mr. V.G.K. Kynta, learned counsel appearing for the petitioners referred to the decision of the Apex Court in Bruce Vs. Silva Raj & Ors.; 1987 (Supp) SCC 161 and contended that the injunction order could be granted in favour of the person only if she is in possession of the land and if she is not in possession of the suit land, injunction order cannot be passed in as much as the purpose of the injunction is not to create the new status of the suit land but to maintain the present status of the suit land. On perusal of the documents and pleadings, there is a disputed question as to who is in possession of the suit land. It is the case of the petitioner/defendant that the suit land is Ri Raid Land and the village members of the community are in possession of the suit land. To the contrary, the only case of the respondent/plaintiff is that the suit land was allotted to her under the settlement deed dated 2.4.2008. It is the case of the petitioner/defendant that the suit land is Ri Raid Land and the village members of the community are in possession of the suit land. To the contrary, the only case of the respondent/plaintiff is that the suit land was allotted to her under the settlement deed dated 2.4.2008. The present petitioner also referred to the letters written by the respondent and contended that she is disputing the settlement deed dated 2.4.2008. Therefore, it appears prima facie that there is a dispute as to who is in possession of the suit land, and this Court is in agreement with the reasoned finding of the Trial Court regarding, no doubt prima facie, the dispute between the parties for possession of the suit land. 7. It is further submitted by Mr. V.G.K. Kynta, learned counsel appearing for the petitioners that the Appellate Court should not interfere with the exercise of discretion by the Trial Court for refusing to grant temporary injunction. He further contended that in the present case, the trial court vide Judgment and Order dated 28.9.2010 had given sufficient reasons and materials for not exercising its discretion to grant temporary injunction in favour of the respondent/plaintiff. He further contended that the trial Court, while refusing to grant temporary injunction had carefully considered three Golden points required to be considered in an application for temporary injunction by giving reasons i.e. prima facie, balance of convenience, irreparable injury and equity. 8. The Apex Court in Wander Ltd. Vs. Antox India P. Ltd., 1990 (Supp) SCC 727 clearly held that- 14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals the Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by the Court was reasonably possible on the material. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by the Court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph (1960) 3 SCR 713 , AIR 1960 SC 1156 (SCR 721) These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton; 1942 AC 130 ...the law as to the reversal by a Court of appeal of an order made by a Judge below in the exercise of his discretion is well established and any difficulty that arises is due only to the application of well settled principles in an individual case. The appellate judgment does not seem to defer to this principle. 9. The Apex Court in Wander Ltd. case (supra) held that the Appellate Court will not interfere with the exercising of discretion by the Court of first instance and substitute its own discretion except when the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or ignored the settled principles of law regulating grant or refusal of interlocutory order for injunction. In the present case, according to Mr. V.G.K. Kynta, learned counsel that there is no finding of the first Appellate Court in the impugned Judgment and Order dated 26.7.2012 that the Trial Court had arbitrarily, or capriciously or perversely exercised its discretion in refusing to grant the injunction order. This Court had also carefully perused the impugned Judgment and Order dated 26.7.2012 and on such perusal, it is clear that there is no finding of the first Appellate Court that the discretion exercised by the Trial Court for refusing to pass the injunction order is arbitrary and capricious. 10. This Court had also carefully perused the impugned Judgment and Order dated 26.7.2012 and on such perusal, it is clear that there is no finding of the first Appellate Court that the discretion exercised by the Trial Court for refusing to pass the injunction order is arbitrary and capricious. 10. The Apex Court in Sree Jain Swetambar Terapanthi Vid(s) Vs. Phundan Singh & Ors.; (1999) 2 SCC 377 , held that the first Appellate Court in the case of reversing the Judgment and Order of the Trial Court, more particularly, the injunction orders, there should be reasons for setting aside the finding of the Trial Court basing on the materials in the record. Para 12 in Sree Jain Swetambar Terapanthi Vid's case (supra) read as follows:- 12. It may be pointed out that it is one thing to conclude that the trial Court has not recorded its prima facie satisfaction on merits but granted the temporary injunction and it is another thing to hold that trial Court has gone wrong in recording the prima facie satisfaction and setting aside that finding on the basis of the material on record because it has not considered the relevant material or because it has erroneously reached the finding or conclusions on the facts established. In the first situation, the appellate Court will be justified in upsetting the order under appeal even without going into the merits of the case but in the second eventuality, it cannot set aside the impugned order without discussing the material on record and recording a contrary finding. The High Court proceeded to set aside the order of the trial Court on the first ground ignoring the aforementioned findings of the trial Court, the order under appeal is, therefore, unsustainable. 11. The Apex Court in Laxmikant V. Patel Vs. Chetenbhel Shah & Anr.; (2002) 3 SCC 65 held that: 17. We are conscious of the law that this Court would not ordinarily interfere with the exercise of discretion in the matter of grant of temporary injunction by the High Court and the Trial Court and substitute its own discretion therefore except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the order of the Court under scrutiny ignores the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. The appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Courts exercise of discretion ((see Wander Ltd. v. Antox India P. Ltd., 1990 (Supp) SCC 727 : 1991 SCC (Cri) 145 and N.R. Dongre v. Whirlpool Corpn. (1996) 5 SCC 714 ). However, the present one is a case falling within the well accepted exceptions. Neither the Trial Court nor the High Court have kept in view and applied their mind to the relevant settled principles of law governing the grant or refusal of interlocutory injunction in trade mark and trade name disputes. A refusal to grant an injunction in spite of the availability of facts, which are prima facie established by overwhelming evidence and material available on record justifying the grant thereof, occasion a failure of justice and such injury to the plaintiff as would not be capable of being undone at a latter stage. The discretion exercised by the Trial Court and the High Court against the plaintiff, is neither reasonable nor judicious. The grant of interlocutory injunction to the plaintiff could not have been refused, therefore, it becomes obligatory on the part of this Court to interfere. 12. Once the Trial Court exercises its discretion to grant or refuse temporary injunction and if such discretion had been exercised on consideration of the matter placed before the Court and is supported by cogent reasons, the Appellate Court will be loath to interfere simply because there is another possible view. 13. The Apex Court in Skyline Education Institution (India) Private Limited Vs. S.L. Vaswani & Anr.; (2010) 2 SCC 142 held that: 20. In Wander Ltd. v. Antox India (P) Ltd. : 1990 Supp SCC 727 this Court was called upon to determine the scope of appellate Court's power to interfere with the discretion exercised by the Court of first instance in granting or refusing the prayer for temporary injunction. S.L. Vaswani & Anr.; (2010) 2 SCC 142 held that: 20. In Wander Ltd. v. Antox India (P) Ltd. : 1990 Supp SCC 727 this Court was called upon to determine the scope of appellate Court's power to interfere with the discretion exercised by the Court of first instance in granting or refusing the prayer for temporary injunction. The facts of that case were that in the suit filed by it, respondent Antox India (P) Ltd. had prayed for restraining the appellant from using registered trade mark "Cal-De-Ce". The learned Single Judge of the High Court refused to entertain the respondent's prayer but on reconsideration of the matter the Division Bench passed an order of injunction. The Court reversed the order of the Division Bench and observed: (SCC p. 733, para 14) 14.....In such appeals, the appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the order of the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion. 22. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion. 22. The ratio of the above noted judgments is that once the Court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the Court and is supported by cogent reasons, the appellate Court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate Court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity. 14. For the foregoing reason, this Court is of the considered view that the petitioner is able to persuade this Court to interfere the impugned Judgment and Order dated 26.7.2012 passed in the Misc. Civil Appeal No. 9/2011. Accordingly, the impugned Judgment and Order dated 26.7.2012 is hereby set aside. The Trial Court shall proceed the trial of TS No. 8/2010. In the peculiar nature of this case and so also to straight the balance of justice, status quo of the suit land as on today shall be maintained by the parties.