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2017 DIGILAW 1186 (ORI)

Bhabadeuti Sahoo v. Sukanta Behera

2017-10-23

BISWANATH RATH

body2017
JUDGMENT : BISWANATH RATH, J. 1. This Civil Miscellaneous Petition has been filed at the instance of defendant no.12, the petitioner herein assailing the order dated 7.3.2017 passed by the learned Civil Judge (Senior Division), Kujanga in CMA No.12 of 2016 arising out of Civil Suit No.3 of 2013 2. Short background involved in the case is that the plaintiff-opposite party no.1 filed Civil Suit No.3 of 2013 in the Court of Civil Judge (Senior Division), Kujanga for declaration of his right in respect of Ac.0.31 ½ decimals of property out of Hal Khata No.597, Hal Plot No.1348, area Ac.0.36 decimals out of Ac.0.72 decimals from a huge patch of Ac.7.23 decimals corresponding to Sabik Khata No.31, Sabik Plot No.1432, area Ac.07.23 decimals. Leaving apart the details of the case of plaintiff as well as defendant in contest, as the same is not necessary for the purpose of determination of the case at hand, this Court only takes up the relevant factors necessary for effective adjudication of the case which reads herein under. In filing the Civil Suit No.3 of 2013, at a subsequent stage finding the necessity of addition above petitioner-defendant nos.12 and defendant no.13 filed I.A. No.3 of 2013. The court below considering the necessity of such addition, by order dated 4.12.2014 allowed the petition and added the present petitioner and proforma opposite party no.13 as defendant no. 12 and 13 in the suit. On being added as defendant no.12, the present petitioner filed written statement. During pendency of the suit, plaintiff-opposite party filed I.A.No.3 of 2013, an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure seeking injunction against the contesting defendants in respect of the disputed property. Petitioner along with other defendants contested the Injunction application. I.A.No.3 of 2013 was disposed of by the Civil Judge (Senior Division), Kujanga vide his order dated 27.4.2015 directing the parties in the suit to maintain status quo over the suit land till disposal of the suit. The petitioner arrayed as party started construction of a building over his purchased land pertaining to Khata No.881/723, Plot No.1348/1803, area Ac.0.09 decimals being aggrieved by the status quo order filed F.A.O. No.70 of 2015 before the learned District Judge, Jagatsinghpur. The petitioner arrayed as party started construction of a building over his purchased land pertaining to Khata No.881/723, Plot No.1348/1803, area Ac.0.09 decimals being aggrieved by the status quo order filed F.A.O. No.70 of 2015 before the learned District Judge, Jagatsinghpur. The above F.A.O. was disposed of on contest by order dated 11.8.2015 whereby the learned District Judge while allowing the F.A.O. set aside the order passed by the trial court with permission to the present petitioner to proceed with the construction of the building over his purchased land indicated hereinabove but however subject to giving an undertaking in the suit that he shall give vacant possession of the suit land in the event the case land falls to Sambari Dalai and he will also not claim any equity involving the cost of construction in the meanwhile. Being aggrieved, plaintiff-opposite party filled C.M.P.No.1093 of 2015 before this Court and this Court by order dated 23.9.2016 passed the following order: “Considering the submissions made and perusing the impugned judgment of the learned District Judge, I am not inclined to interfere with the same. However, it is directed that if the opp. parties 1 and 3 make any construction over their purchased land pertaining to Khata No.881/723, Plot No.1348/1803, measuring an area of Ac.0.09 dec. corresponding to C.S.Khata No.31, Plot No.1432 without encroaching the petitioner’s land, they shall file an undertaking before the learned trial court that they will not claim any equity for construction, if any, made by them during the pendency of the suit.” 3. Basing on the direction of this court, defendant-petitioner in compliance of the said direction, filed necessary undertaking in the trial court. On acceptance of the undertaking filed by the defendant-petitioner, the trial court directed the petitioner to proceed with the construction over the disputed property. While the position stood thus, plaintiff-opposite party accompanied with 30 to 40 antisocial persons armed with deadly weapons not only came to the spot but also attempted to stop the construction work threatening the petitioner with dire consequence. Finding no other alternate, the petitioner was constrained to file F.I.R. on 9.10.2015 before the I.I.C. Lock Police Station registered as P.S. Case No.143 of 2015 and a case has been registered against the plaintiff-opposite party for alleged commissioning of offence under Sections147,148,149,447,294/506 of the Indian Penal Code. Finding no other alternate, the petitioner was constrained to file F.I.R. on 9.10.2015 before the I.I.C. Lock Police Station registered as P.S. Case No.143 of 2015 and a case has been registered against the plaintiff-opposite party for alleged commissioning of offence under Sections147,148,149,447,294/506 of the Indian Penal Code. Since the position did not improve in spite of police case, the petitioner was constrained to file the petition before the trial court for rendering necessary police help for effective implementation of the order passed by the lower appellate court and being confirmed by this Court. The Misc. Case was registered as C.M.A.No.89 of 2015. The Misc. Case was also disposed of on contest by the trial court by order dated 16.12.2015 observing as follows: “This Court is duty bound to protect the administration of justice by effective implementation of the orders of the superior Court in letter and spirit and in the instant case the ends of justice will be best achieved by protecting the rights of the defendant-petitioners granted by the Hon’ble Courts. Thus the petition filed by the defendant-petitioner U/s151 CPC is allowed for providing necessary police protection for the implementation of the order of the Hon’ble Court and the police shall be duty bound to give protection for effective implementation of the order of the Hon’ble Courts. Thus, allowing the petition filed by the defendant-petitioners U/s.151 CPC, the I.I.C. Paradip Lock P.S. is directed to provide necessary police assistance to the defendant-Petitioners while making construction in their purchased land appertaining to Khata No.881/723, Plot No.1348/1803, area Ac.0.09 dec. corresponding to C.S.Khata No.31, Plot No.1432”. 4. Challenging the aforesaid direction, plaintiff-opposite party approached this Court by filing C.M.P.No.1661 of 2015 and this Court upon hearing the parties concerned while dismissing the C.M.P. observed as follows: “In view of the clear direction given by the lower Court allowing the Opp. Parties to proceed ahead with the construction by filing an undertaking not to claim any equity for such construction and further since the Opp. Party Nos.1 and 3 have already filed the undertaking in terms of the direction of both the Court, this Court is not inclined to entertain this Civil Miscellaneous Petition at this stage, consequently, this Civil Miscellaneous Petition is accordingly dismissed for having no merit. In view of dismissal of this Civil Miscellaneous Petition, all the pending Misc. Party Nos.1 and 3 have already filed the undertaking in terms of the direction of both the Court, this Court is not inclined to entertain this Civil Miscellaneous Petition at this stage, consequently, this Civil Miscellaneous Petition is accordingly dismissed for having no merit. In view of dismissal of this Civil Miscellaneous Petition, all the pending Misc. cases arising out of this petition stands dismissed accordingly.” 5. The further case reveals is that after the finality of the application for police help in this Court, the petitioner approached the local police to take appropriate step for implementation of the order passed by the courts of law. It is alleged by Sri N.K.Sahu, learned counsel for the petitioner that the local police instead of rendering police help to work out the orders passed by the courts of law, asked the Tahasildar, Kujanga to depute an Amin for demarcation of the disputed lands in order to facilitate implementation of the orders passed by the courts. It is at this stage, the Tahasildar, Kujanga deputed Revenue Inspector and on submission of a report of the Revenue Inspector, the local police orally informed the petitioner that the order of the court is not implementable for the position at the spot and thus asked the petitioner to seek appropriate remedy in the pending proceeding. It is at this stage, the defendant no.1-petitioner filed C.M.A. No.12 of 2016 before the learned Civil Judge (Senior Division), Kujanga praying therein issuing a mandatory injunction directing removal of unauthorized construction made by the plaintiff, which petition was finally heard and disposed of by order dated 7.3.2017. The trial court therein while holding that there was no specific direction for deputation of Amin Commissioner from any of the courts to which either parties had approached and moreover as the report of Amin has not been scrutinized and accepted, no decision or reliance can be placed on such report came to observe that for the continuance of the injunction order in favour of the present petitioner, prayer for mandatory injunction in the midst of suit being a harsh prayer and as a consequence rejected the application under Section 151 of the Code of Civil Procedure for issuing mandatory injunction. 6. 6. Assailing the impugned order, Sri Sahu, learned counsel referring to the contentions made in C.M.A.No.89 of 2015 and C.M.A. No. 12 of 2016 submitted that while filing the aforesaid application the defendant no.12 had specifically stated that the plaintiff-opposite party in between entered into spot of the petitioner and made unauthorized construction over the same. Sri N.K.Sahu, learned counsel appearing for the petitioner also contended that the observation of the Amin deputed by the Tahasildar on the direction of the I.I.C. that their exists an ajbestus house over the disputed property is a development at the instance of the plaintiff in existence of the order of injunction with permission to this petitioner to go ahead for the construction. This being the admitted situation, the defendant no.12-petitioner had no other option than to seek mandatory injunction to get the benefit of the order of injunction and to go ahead with the construction order passed earlier by the appellate court and being confirmed by the High Court. Sri N.K.Sahoo further contended that once a party is in enjoyment of an interim order, the courts are duty bound to see the implementation of such orders by passing appropriate order to overcome the hindrances. Referring to three decisions in the cases of Nandan Pictures Ltd., v. Art Pictures Ltd. and others, 1956 Calcutta 428, Indian Cable Company Limited v. Smt.Sumitra Chakraborty, AIR 1985 Calcutta 248 and in the case of Mrs.Vijay Srivastava v. M/s.Mirahul Enterprises and others, AIR 1988 Delhi 140, Sri Sahu, learned counsel further contended that for the decision therein, the petitioner has a justified claim for mandatory injunction. Sri Sahu thus contended that the trial court has not only failed in appreciating the contingency involved in the in the application for mandatory injunction but has also failed in appreciating the settled position of law therein in the aforesaid decisions. Under the circumstances, Sri Sahu prayed this Court for interfering in the impugned order and setting aside the same and thereby granting appropriate relief to the petitioner at least to maintain the sanctity in the orders passed by courts of law. 7. Under the circumstances, Sri Sahu prayed this Court for interfering in the impugned order and setting aside the same and thereby granting appropriate relief to the petitioner at least to maintain the sanctity in the orders passed by courts of law. 7. Sri A.R.Dash, learned counsel appearing for the opposite party no.1 though not disputed the developments taken place involving the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure in different courts at different stages and not disputed the institution of a criminal case against the opposite parties but taking help of the observations made in the report submitted by the Amin after a spot inquiry submitted that the interlocutory orders passed favouring the petitioner remains un-implement-able. Further, supporting the impugned order, Sri Dash also submitted that the trial court is justified in holding that entertaining such application at that particular time will be harsh to the opponents and further holding that the application is not maintainable at that stage remains justified. Sri Dash, learned counsel appearing for the plaintiff-opposite party no.1 thus requested this Court for rejecting the application so moved. 8. Considering the rival contention of the parties and taking into consideration the development taken involving the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, this Court finds not only the order of the lower appellate court has been confirmed by this Court in the disposal of C.M.P.No.1093 of 2015 but the petitioner is also in enjoyment of the order to proceed ahead for construction and also an interim relief by the trial court in the matter of police assistance which have again been confirmed by this Court in disposal of C.M.P.No.1661 of 2015. However under the circumstances and the developments taken in the meantime, the scope of this Court is confined to find out the correctness of the impugned order involving Annexure-3 whereby the application of the petitioner for mandatory injunction by way of interim measure has been held to be not maintainable. On scan of the orders passed at different stages and relied upon by the parties to contest, this Court finds that the disposal of the F.A.O. No. 70 of 2015, the learned District Judge passed the following order: “12. On scan of the orders passed at different stages and relied upon by the parties to contest, this Court finds that the disposal of the F.A.O. No. 70 of 2015, the learned District Judge passed the following order: “12. In view of the aforesaid finding, the order of status-quo passed by the learned trial Court is not sustainable and I am not at one with the same needs interference. Hence it is order. 13. The appeal is allowed on contest against the respondent Nos.1, 3 and 4 and exparte against Respondent No.2. The impugned order passed on dtd. 27.4.2015 in I.A.No. 3 of 2013 by the Civil Judge (Sr.Division), Kujang in C.S.No.3 of 2013 is hereby set-aside. The I.A.No.3 of 2013 filed by respondent No.1/petitioner is hereby dismissed. The appellant shall file an undertaking that he will give vacate position, in the event the case land falls in the share of Sambari Dalai and in that event, he will not claim equity. As both the parties have claimed title and the title shall be decided in the suit, so in such circumstances, the parties are to bear their own costs.” The aforesaid order being challenged before this Court in C.M.P.No. 1093 of 2015, this Court while maintaining the order of the learned District Judge was pleased to further observe as follows: “However, it is directed that if the opp. parties 1 and 3 make any construction over their purchased land appertaining to Khata No.881/723, plot No.1348/1803 measuring an area Ac.0.09 decimals corresponding to C.S.Khata No.31, plot no.1432, without encroaching the petitioner’s land, they shall file an undertaking before the learned trial court that they will not claim any equity for construction, if any, made by them during the pendency of the suit”. There appears there is a further modification of the order passed by the learned District Judge but to the advantage of the plaintiff that there shall be no claim of equity on construction. It is at this stage, this Court observes while in the order of the learned District Judge, the petitioner was permitted to go ahead with construction without claiming any equity and subject to filing an undertaking to that effect but however in the High Court there is further direction that the construction whatsoever will be made by the present petitioner will be without encroaching the petitioner’s land. It is, therefore, finding the difficulty to work out the order passed by the learned District Judge vide F.A.O. No.70 of 2015, the I.I.C. found it difficult to work out the go ahead with construction order and in such process an inquiry was conducted without being opposed by the petitioner and the inquiry report reveals the working out of the order in favour of the petitioner is impracticable necessitating an application at the instance of the petitioner before the trial court for issuing mandatory injunction. Coming back to the question as to whether any such contingency, an application for mandatory injunction is maintainable or not? This Court taking into consideration the decisions cited by Sri Sahoo, learned counsel for the petitioner in the case of Nandan Pictures Ltd., v. Art Pictures Ltd. and others, 1956 Calcutta 428 (supra), in paragraph 4, the Division Bench of the Calcutta High Court held as follows: “4. It appears to me that regarded as a mandatory injunction, the order complained of cannot be held to have been properly made. I need not refer to any of the collateral questions to which Mr.Meyer referred, because each one of them is of a controversial character and remains to be decided in the suit or in the application for an injunction during the pendency of the suit, which is still pending before the learned trial Judge. I consider it sufficient to point out that it is only in very rare cases that a mandatory injunction is granted on an interlocutory application and instances where such an injunction is granted by means of an ‘ad interim’ order pending the decision of the application itself are almost unknown. I do not wish to say, because it is not necessary for the purposes of this case to say so, that in no circumstances will the court have any jurisdiction to issue an ad interim injunction of a mandatory character pending the disposal of an application for an injunction. Injunctions are a form of equitable relief and they have to be adjusted in aid of equity and Justice to the facts of each particular case. No court, therefore, ought to lay down absolute propositions when such are not necessary and forge fetters for itself. Injunctions are a form of equitable relief and they have to be adjusted in aid of equity and Justice to the facts of each particular case. No court, therefore, ought to lay down absolute propositions when such are not necessary and forge fetters for itself. At the same time, I may point out what the accepted principles have been and what has been according to the reported cases, the practice of the Courts. It would appear that if a mandatory injunction is granted at all on an interlocutory application, it is granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted. The one case in which a mandatory injunction is issued on an interlocutory application is where, with notice of the institution of the plaintiff’s suit and the prayer made in it for an injunction to restrain the doing of a certain act, the defendant does that act and thereby alters the factual basis upon which the plaintiff claimed his relief. An injunction issues in such a case in order that the defendant cannot take advantage of his own act and defeat the suit by saying that the old cause of action no longer survived and a new cause of action for a new type of suit had arisen. When such is found to be the position, the Court grants a mandatory injunction ever on an interlocutory application, directing the defendant to undo what he has done with notice of the plaintiff’s suit and the claim therein and thereby compels him to restore the position which existed at the date of the suit. As far as I have been able to find, even such an order has been made only when the application for an ad interim injunction pending the disposal of the suit is finally disposed of and not during the pending of the application itself as made in the present case. Here an ad interim injunction of a restrictive character was in fact granted on the 7th of the March pending the disposal of the application and what was done on the 12th of the March was to make another order of the nature of an injunction by way of implementing what was thought to have been the ad interim order made on the earlier date. The order was not made on the basis of anything done by the applicants since the institution of the suit and with notice of the plaintiff’s claim and, therefore, the basis on which ad interim injunctions of a mandatory character are generally granted under the approved practice was lacking”. From the above, this Court finds the Division Bench has the clear view that in very rare cases there is scope for consideration of application for mandatory injunction and the decision has the support of the case of the petitioner as there is no bar in moving any such application. In the case of Indian Cable Company Limited v. Smt.Sumitra Chakraborty, AIR 1985 Calcutta 248 (supra), a Division Bench of Calcutta High Court for similar situation in paragrfaphs-7 and 9 held as follows: “7. All the points thus raised by Mr.Kapoor have been strongly contested by MrChakrabarti appearing on behalf of the defendant landlady. According to Mr.Chakrabarti the learned Subordinate Judge was right in taking the view that in the facts and circumstances the plaintiff company was not entitled to any mandatory injunction on an interlocutory application for restoration of possession when admittedly the plaintiff had been dispossessed long prior to the suit and when such a mandatory injunction was the principal relief in the suit. On the facts again, Mr.Chakrabarti has strongly relied upon the materials on record in contending that the defendant having been put into lawful possession of the suit property on March, 24, 1982, the court should not throw her out on an interlocutory application and even before it is finally decided whether she is really guilty of any wrongful act of dispossessing the tenant. 8. I have carefully considered the rival contentions put forward before us. Before I proceed to consider the plaintiff’s claim for injunction by way of restoration on its merits, I must clear the two grounds on which according to the learned Subordinate Judge, the plaintiff’s prayer must fail in law. I my view, the learned Judge clearly overlooked the provision of O. 2, R. 2 in taking the view that the present suit filed by the plaintiff company will be barred under such a provision only because the earlier suit filed by the plaintiff company, being Title Suit No. 168 of 1982 is still pending. I my view, the learned Judge clearly overlooked the provision of O. 2, R. 2 in taking the view that the present suit filed by the plaintiff company will be barred under such a provision only because the earlier suit filed by the plaintiff company, being Title Suit No. 168 of 1982 is still pending. What this rule requires is that every suit shall include the whole of the claim arising from one and the same cause of action and not that every suit shall include every claim or every cause of action which the plaintiff may have against the defendant. The plaint in Title Suit No. 168 of 1982 is to be found at page 126 of the informal paper book prepared for our present purposes. It was based upon a cause of action which arose on and before March 15, 1982 and as pleaded in paragraphs 6,7and 8 of the plaint. In those paragraphs of that plaint it was clearly pleaded that the plaintiff had been in quiet and peaceful possession of the suit property until March 15, 1982, when the defendant started harassing the plaintiff’s men and agents in the matter of getting access to the suit property. In the plaint of that suit there was no allegation of dispossession from the first floor flat. What was being alleged was that the defendant was wrongfully putting padlocks on the outer door thus making it difficult for the plaintiff’s men getting access to the first floor. As a matter of fact the factum of dispossession was not known to the plaintiff until April 2, 1982, when for the first time the defendant disclosed the said fact in their affidavit-in-opposition. That was a simple suit for injunction valued at Rs.50/-, while the present suit is a suit based on a different cause of action, namely, the dispossession itself which arose only on March 27, 1982 This being as suit for recovery of possession on declaration of tenancy rights along with damages valued at more than Rs.33,000/-obviously such a claim could not have been added to the earlier plaint pending in the court of the learned Munsif not having the necessary pecuniary jurisdiction to entertain such a suit. Thus, the cause of action of the two suits being totally different, in my opinion the learned Subordinate Judge was in error in thinking that the present suit is prima facie barred under the provision of O.2, R.2 of the Code and as such, no interim prayer in support of such a suit can be entertained in law. The first reason assigned by the learned Subordinate judge in refusing the prayer for injunction, therefore, is clearly unsustainable”. From the above, this Court finds there is no absolute bar in entertaining an application for mandatory injunction as interim measure. In the case of Mrs.Vijay Srivastava v. M/s.Mirahul Enterprises and others, AIR 1988 Delhi 140 (supra), the Delhi High Court taking into consideration several decisions on the above point in paragraph-32 came to observe as follows: “32. A review of these decisions, therefore, leads to the conclusion that there is no bar to the Courts granting interlocutory relief in the mandatory form though in doing so, the Court should act with greatest circumspection and such powers can be exercised only in rare and exceptional cases. Whether or not a case comes in the category of ‘rare’ and ‘exceptional’ one is to be judged according to the facts and circumstances surrounding it.” 9. Taking into consideration another decision on this aspect, in the case of Ranbaxy Lab. Ltd. v. Doon Apartments, 1979, Rajdhani L.R.7, in deciding such issue, it was observed therein that the object of the temporary injunction is to maintain status quo and not to order (alter) the status quo particularly when the injunction is granted ex-parte and without notice to the defendant. On merits, it was found that there was no prima facie case for grant of injunction. This decision can, thus, not be said to be an authority for the proposition that no mandatory injunction can be granted on an interlocutory application even after notice to the defendant and after hearing the parties. 10. On merits, it was found that there was no prima facie case for grant of injunction. This decision can, thus, not be said to be an authority for the proposition that no mandatory injunction can be granted on an interlocutory application even after notice to the defendant and after hearing the parties. 10. Considering the admitted position available in the case at hand that the petitioner is in enjoyment of an order to go ahead with the construction subject to the condition stipulated by the learned District Judge and being added by the High Court in disposal of C.M.P.No.1093 of 2015 and further taking into consideration the specific allegation of the petitioner in filing the C.M.A. No.89 of 2015 and C.M.P.No.1093 of 2015 that there has been some construction by the plaintiff in the meantime, there arose an impediment in the implementation of the interim protection granted in favour of the petitioner by the learned District Judge and modified by this Court in disposal of C.M.P. No.1093 of 2015. This Court is of the considered view that the court must come to the end of the party in enjoyment of the interim protection and this being a rare situation in entertaining of the application for mandatory injunction to preserve the order passed in favour of the petitioner becomes a necessity and failure of which will be amounting to frustrating the orders already passed in favour of the petitioner. This Court here observes that this Court is not entering into the merit of the mandatory injunction and the observation herein above only be read as maintaining the application for mandatory injunction at this stage of the matter. The case at hand having fall within the category of ‘rare’ and ‘exceptional’ case where power to issue mandatory injunction by way of interlocutory application must be exercised. As a consequence, finding the impugned order at Annexure-13 not sustainable, this Court while setting aside the order at Annexure-13 remits the matter back to the learned Civil Judge (Senior Division), Kujanga to re-hear the C.M.A.No.486 of 2016 and conclude the same in accordance with law but however giving opportunity of hearing to the parties to contest and keeping in view sanctity in the orders prevailing and role of courts not to frustrate its own order. 11. 11. While parting with the case at hand, this Court taking into consideration the repeated direction of this Court for expeditious disposal of the suit within specific time, the order involving C.M.P will not stand as a bar for disposal of the suit as expeditiously as possible. 12. In the result, the Civil Miscellaneous Petition allowed. No order as to cost.