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2016 DIGILAW 1193 (ORI)

Siba Sankar Mohanty v. Basanti Patra

2016-12-03

D.DASH

body2016
JUDGMENT This appeal has been filed challenging the order dated 12.04.2016 passed by learned District Judge, Balasore in Interim Application No. 169 of 2015 arising out of Regular First Appeal No. 282 of 2015. 2. The respondent no. 1 as the plaintiff has filed C.S. No. 246 of 2012 in the Court of Sr. Civil Judge Balasore seeking declaration that the suit land is the only passage for ingress and egress to the main road from her residential plot of land where stands a building and decree of permanent injunction directing the appellants and other respondent nos. 2 to 4 to remove the side fence including the blockage from the suit land. The suit stood dismissed. The respondent no. 1 thus being non-suited has filed the regular fist appeal as noted above. During pendency of this first appeal, the present respondent no. 1 filed an application under Order 39 Rule 1 & 2 read with Section 151 of the Code of Civil Procedure seeking temporary injunction in a mandatory form directing the appellant and respondent no. 2 to 4 to remove blockade from the suit land so as to make it fit for ingress and egress to her house and to maintain status-quo in so far as said passage is concerned till disposal of the appeal. 3. Learned District Judge after hearing the parties has passed the following orders:- “The O.Ps. are directed to remove the blockage over the suit passage and to facilitate the petitioner for her ingress and egress to the public road from her residential house and after removal of such blockage, both the parties are directed to maintain status-quo over the suit passage till the final disposal of this appeal. If the O.P. would not remove the blockage forthwith, then the petitioner may take the assistance of local police for implementation of the order.” This order is now under challenge here in this appeal. 4. For the sake of convenience in order to avoid confusion and bring in clarity, the parties hereinafter are being called for their position as assigned in the trial Court. 5. In order to appreciate the matter, the essential rival case of the parties which is required to be kept in view may be stated. 4. For the sake of convenience in order to avoid confusion and bring in clarity, the parties hereinafter are being called for their position as assigned in the trial Court. 5. In order to appreciate the matter, the essential rival case of the parties which is required to be kept in view may be stated. The case of the plaintiff is that the suit land initially stood recorded in the name of one Panu Barik which subsequently came to the hands of Madan and Netra. Later upon partition of said property and their other properties, the suit land was come to be allotted in the share of Netra. Netra then sold Ac. 0.05 decimals towards south of said plot of land to one Prahallad and Ratnakar and they came to possess the same being so delivered with. It is stated that they again sold the suit land of Ac. 0.05 decimals to defendant no. 1 and 2 and who also possessed the same. Next, it is stated that after death of Netra, his son Mayadhar being absolute owner remained in possession of rest of the area of that Ac. 0.14 decimals. It is pleaded that Mayadhar while in possession had proposed defendant no. 1 and 2 to purchase the said land, but as they could not arrange the money, it was sold to plaintiff no. 1 and her husband who purchased Ac. 0.07 decimals of land. They purchased said Ac. 0.07 decimals of land with the assurance that they would also purchase further Ac. 0.07 decimals. It is stated that during discussion for the said transaction, it had been the agreement that the plaintiff would be using said land as road for ingress and egress from her purchased property. So, with this condition, the plaintiff said to have gone ahead with the purchase Ac. 0.07 decimals towards south-west of land measuring Ac. 0.14 decimals and she accordingly began to possess the same. It is further stated that on that very day, defendant no. 2 purchased Ac. 0.07 decimals towards south-east from that area Ac. 0.14 decimals and took possession. The plaintiff then constructed her house over the purchased land with due permission and plan being approved by the local authority and then used the passage as decided. It is alleged that legal heirs of Madan in order to harass the plaintiff sold Ac. 2 purchased Ac. 0.07 decimals towards south-east from that area Ac. 0.14 decimals and took possession. The plaintiff then constructed her house over the purchased land with due permission and plan being approved by the local authority and then used the passage as decided. It is alleged that legal heirs of Madan in order to harass the plaintiff sold Ac. 0.14 decimals to Ramamani and one Jali Kahali. After purchase they filed the suit for partition which is C.S. No. 139 of 1998. In the said suit, the defendant no. 1 and 2 had admitted about the existence of passage and the right of user as such by the plaintiff for ingress and egress from her house to the main road. The matter while was standing thus, the defendant no. 1 and 2 sold the suit land i.e. the passage and other land appertaining thereto to the defendant no. 3 after the plaintiff failed so purchase due to paucity of funds. Allegations have been leveled that after purchases, the defendant no. 3 in collusion with his vendors has demolished the gate of the house of the plaintiff and caused other damages including blocking the so called passage for which suit has been filed. The defendant no. 3 denied the plaintiff’s right over the suit land for its user as passage. The factual aspects as pleaded by plaintiff in support of the assurance given by the vendors and leaving the suit land for being used as passage etc have been denied. He claimed the right, title and interest over the property as also the right to possess the same exclusively as its owner. 6. The trial Court on such rival pleadings framed six issues and out of those the follow one as stated is relevant for the matter in hand:- “Whether the suit ‘B’ land was used by the plaintiff for her ingress and egress from her house to the main road and the defendant no. 3 has blocked the same?” The trial Court in the backdrop of the pleadings and having scrutinized the evidence on record, in view of the position of law as discussed has answered the issue against the plaintiff. 7. At this stage, it is felt pertinent to mention that althrough during the pendency of the suit the so called passage was not having any such blockade. 7. At this stage, it is felt pertinent to mention that althrough during the pendency of the suit the so called passage was not having any such blockade. However, during pendency of the appeal, it is stated that being emboldened by the order of dismissal of the suit, the defendant no. 3 had blocked that passage and thus it is not been able to be used as such and it is further alleged that they have been proceeding in that way so as to totally close it forever. The lower appellate Court upon a motion by the unsuccessful plaintiff who had knocked the door as appellant, has passed the interim order as aforesaid till disposal of this appeal, which is in a mandatory form, finding it to be a case wholly covered by the principles laid down in the decision of the Apex Court in case of Dorab Cawasji Warden Vrs. Coomi Soarab Warden; AIR (1990)2 SCC 117 . This order has been impugned in the present appeal. 8. Mr. Ashok Mohanty, learned Senior Counsel appearing on behalf of the appellant submits that after the dismissal of the suit filed by plaintiff, the lower appellate Court ought to have viewed the matter from a different angle as by then the plaintiff’s entitlement to the exercise of said right of passage over the suit land had already been negatived. According to him, although in exceptional cases, the Court has the power to pass temporary injunction in mandatory form but that is sparingly done and in a very special case not as a matter of routine as it has the tendency to place the holder of the order in the position of the successful party to the litigation even before its culmination and here it has put a party as that who has already been unsuccessful in the first round. He further contends that the facts and circumstances as have been projected by the plaintiff in support of her claim and to seeking the relief are not only vague but also absurd. It is contended that without an exceptional case being made out, the lower appellate Court has committed grave error of law by issuing mandatory injunction as an interim measure. It is contended that without an exceptional case being made out, the lower appellate Court has committed grave error of law by issuing mandatory injunction as an interim measure. Thus he sums up, that here is a case where at best the Court should have passed an order of maintenance of present status with regard to the nature and character of the suit land and ought not to have passed the order which has the affect over the present situation as it prevails and by bringing in the changes. 9. Mr. S.P. Mishra, learned Senior Counsel contends all in support of the order passed by the lower appellate Court and according to him, the facts and circumstances of the case as placed clearly go to show that it is an exceptional one and unless the mandatory injunction, as an interim measure is passed, the hardship to the plaintiff would be of such measure and extent that even if she succeeds in the long run it would practically mean nothing especially because her purchased property till then would no more remain available to be enjoyed and in that situation, the plaintiff’s first appeal questioning the findings of the trial Court for their scrutiny both on fact and law would stand purposeless. 10. In case of Dorawb Cawasji (supra), the Apex Court has set out the legal principles as follows:- “It has been stated that the relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the part complaining. But 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, Courts have evolved certain guideline. Generally settled these guidelines are:” (i) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. Generally settled these guidelines are:” (i) The plaintiff has a strong case for trial. That is, it shall be of a 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. (iii) The balance of convenience is in favour of the one seeking such relief. 11. The lower appellate Court has examined the case in hand in the light of the above principles and has arrived at a conclusion with regard to satisfaction of all those guidelines. It is further apposite at the stage also to take note of the decision of the Apex Court in case of Deoraj Vrs. State of Maharashtra; 2004 (4) SCC 697. It has been held therein that:- “11. The Courts and Tribunals seized of the proceedings within their jurisdiction take a reasonable time in disposing of the same. This is on account of fair procedure requirement which involves delay intervening between the previous and the next procedural steps leading towards preparation of case for hearing. Then, the Courts are also overburdened and their hands are full. As the conclusion of hearing on merits is likely to take some time, the parties press for interim relief being granted in the interregnum. An order of interim relief may or may not be a reasoned one but the factors of prima facie case, irreparable injury and balance of convenience do work at the back of the mind of the one who passes and order of interim nature. Ordinarily, the Court is inclined to maintain status quo as obtaining on the date of the announcement of the proceedings. However, there are a few cases which call for the Court’s leaning not in favour of maintaining the status quo and still lesser in percentage are the cases when an order tantamounting to a mandamus is required to be issued even at an interim stage. There are matters of significance and of moment posing themselves as moment of truth. Such cases do cause dilemma and put the wits of any Judge to test. 12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. There are matters of significance and of moment posing themselves as moment of truth. Such cases do cause dilemma and put the wits of any Judge to test. 12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case-of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief through it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in justice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be see and the Court may put the parties on such terms as may be prudent.” 12. So, now in this appeal it calls for examination as to whether such conclusion for the interim arrangement by issuance of temporary injunction in mandatory form has been properly arrived at or not. The defendant no. 1 and 2 admit in their written statement as regards the plaintiff’s user of the suit land as passage for ingress and egress. The defendant no. 3 has asserted that the plaintiff has the alternative road to the north of her purchased land which in turn is in acceptance of the present user of suit land as road. The lower appellate Court for the purpose of coming to a prima facie conclusion in this regard has taken note of Exts. The defendant no. 3 has asserted that the plaintiff has the alternative road to the north of her purchased land which in turn is in acceptance of the present user of suit land as road. The lower appellate Court for the purpose of coming to a prima facie conclusion in this regard has taken note of Exts. 9 and 10 as also the evidence of D.W. 1 to 3. It has referred to the evidence of D.W. 1 to 3 as regards the existence of public road to the west of the suit land, the approved plan showing that towards the south of the land of the plaintiff there exists the suit passage as also the evidence thereon record that there is a fence in between the suit land and the land of plaintiff. The evidence of D.W. 2 who is the defendant no. 2 on a plain reading shows the extent of the passage as also the existence of road to the south of the suit land. 13. Next it has made the discussion which being relevant in the matter under consideration may be reproduced as under:- “The land of Harekrushna Mohanty situates at the eastern side of the entire suit land of Ac. 0.19 dec. and one Satpathy is staying at the western side of the suit land. One Basanti i.e. the petitioner is the north side tenant of the suit land. In paragraph-3 she has stated that there is a green fence in between the suit land and the land of Basanti. He has got no claim over the 2 ½ dec. land as she has already sold the same to O.P. No. 3. The western side of the suit land has been identified by concrete poles. There is a wall in between the suit land and the land of Satpathy. The northern side of the house of Basanti is lying vacant but the north side of his house has been identified by wall. Said Mr. Satpathy has been examined as D.W. 3 who in his cross-examination at paragraph-2 has stated that Basanti is his northern side neighbour. There is no private land at the northern side of the suit land of the O.P. No. 3. The land of the father of Siba Shankar Mohanty, the O.P. No. 3, situates at the eastern side land of Basanti. He is the western side neighbour of Basanti. There is no private land at the northern side of the suit land of the O.P. No. 3. The land of the father of Siba Shankar Mohanty, the O.P. No. 3, situates at the eastern side land of Basanti. He is the western side neighbour of Basanti. He has constructed the house lying in between his land and the land of Basanti. The said boundary covers the north side boundary. There is no passage for Basanti through his land for her ingress and egress. Similarly, there is no way at the eastern side of the land of Basanti for her ingress and egress as well as in the southern side.” 14. The above materials on record when taken into consideration in their proper prospective, prima facie go to show that towards western side of the suit land, the land of that Manoj Kumar Satpathy, P.W. 2 situates. He has covered it by the boundary wall around. In such state of affair, the lower appellate Court appears to have rightly taken the view that the existence of an alternative road towards north of the land of the plaintiff as per the plea of the defendant no. 3 prima facie does not find support. In that view of the matter, the conclusion for the purpose now stands that the subject matter of the suit is the only passage available to the plaintiff for having ingress and egress to her land from the main road. Taking into account the situation of the land of the plaintiff as also the placement of the main road, admittedly when the property in question was purchased by the plaintiff there were no houses nearby and therefore prima facie a view arises that the vendor in selling the property being expected to provide by making necessary arrangement with regard to the entry to the said sold land from the road has so done in the case. The appeal which is a continuation of the suit being now before the first appellate Court, that answer of the trial Court on issue no. 5 would come up for necessary legal scrutiny as regards its sustainability both on fact and law. The appeal which is a continuation of the suit being now before the first appellate Court, that answer of the trial Court on issue no. 5 would come up for necessary legal scrutiny as regards its sustainability both on fact and law. Thus cumulatively viewing all the above, I find that a strong prima facie case which is of a standard higher than just prima facie case stands in favor of the plaintiff and the considerations of balance of convenience and irreparable injury forcefully tilts to the side of the plaintiff. In the facts and circumstances, thus a case is prima facie found to be surfacing where in case of withholding of the issuance of temporary injunction in mandatory form, would prick the conscience of the Court and that would do violence to the sense of justice, resulting injustice being perpetuated through the hearing of the first appeal in a way that at the end the Court would not be able to vindicate the cause of justice. So for the present, in my considered view the case falls within that rare category and the injury complained of is so immediate and pressing that it would cause extreme hardship in the event of denial of the relief as prayed for till disposal of the first appeal. For the aforesaid discussion and reasons, this Court finds that the impugned order is not liable to be interfered with. 15. The appeal thus stands dismissed. In the facts and circumstances, no order as to cost is passed. 16. However, at the end of the aforesaid exercise, it may be made clear that whatever have been expressed hereinabove are for the purpose of demonstrating and disposing the prayer as made in this appeal and those have been done at this interim stage. The life of the order being not beyond the final disposal of the first appeal, all the expressions do survive for that limited period maximum stretching till the disposal of the suit or any further order whichever is earlier. The lower appellate Court is thus free to decide the appeal in accordance with law examining and recording findings on the issues on the basis of pleadings and evidence on record, being untrammeled by the orders on these interim applications as also the expressions and observations made for the purpose. The lower appellate Court is thus free to decide the appeal in accordance with law examining and recording findings on the issues on the basis of pleadings and evidence on record, being untrammeled by the orders on these interim applications as also the expressions and observations made for the purpose. As I find the factual as well as the legal controversies in the suit roam within a circle having a short radius, I would like to observe that the lower appellate Court would do well to take up the hearing of the appeal early and make all endeavour to dispose of the same on its own merit and in accordance with law as expeditiously as possible. Appeal dismissed.