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2017 DIGILAW 926 (GAU)

Rintu Lahon v. Surender Prasad Shah

2017-07-16

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. PJ Saikia, the learned counsel for the petitioner as well as Mr. GP Bhowmick, the learned senior counsel for the respondents. By filing this revision application under Article 227 of the Constitution of India, the petitioner has challenged the judgment and order dated 19.09.2016 passed by the learned Civil Judge, Dibrugarh in Misc. Appeal No. 8/2014 by which the order dated 30.08.2014 passed by the learned Munsiff No. 1, Dibrugarh in Misc (J) Case No. 55/2014 was reversed. The learned Munsiff No. 1, Dibrugarh had directed the parties to maintain status quo in respect of the suit land. The appellate court by setting aside the order of status quo, directed the parties not to alienate the suit property so that suit property can be preserved till disposal of the main suit. 2. Owing to the nature of the dispute raised in the present revision, I do not like to burden this judgment with the disputed facts of the case as set out in the pleadings of the parties. It would be sufficient to indicate herein that while the plaintiff has claimed right, title and interest over the suit land described in Schedule-B of the plaint, the defendant No. 1 has also set up a claim for right, title and interest over the same land, which is being adjudicated in Title Suit No. 49/2014 which is pending for adjudication before the court of learned Munsiff No. 1, Dibrugarh. 3. Being aggrieved by the order dated 30.8.2014, by which the learned Munsiff No. 1, Dibrugarh had directed the parties to maintain status-quo in respect of the suit land, the defendant No. 1 had filed an appeal being Misc. Appeal No. 8/2014 before the court of learned Civil Judge, Dibrugarh. The learned first appellate court on the basis of materials available on record, formulated the point of determination- whether the order dated 30.8.2014 passed by the learned Munsiff No. 1, Dibrugarh in Misc.(J) Case No. 49/2014 requires any interference in appeal. 4. Appeal No. 8/2014 before the court of learned Civil Judge, Dibrugarh. The learned first appellate court on the basis of materials available on record, formulated the point of determination- whether the order dated 30.8.2014 passed by the learned Munsiff No. 1, Dibrugarh in Misc.(J) Case No. 49/2014 requires any interference in appeal. 4. The learned first appellate court arrived at a finding that the learned trial court had failed to consider that the suit land was in possession of the defendant No. 1 and that the court below did not discussed the three golden principles of injunction i.e., existence of prima facie case, balance of convenience and irreparable loss and injury while directing the parties to maintain status quo in respect of the suit land. 5. The learned first appellate court on the basis of the decision of the Apex Court in Terene Traders v. Ramesh Chandra Jamma Das and Co. reported in AIR 1987 SC 1492 , had arrived at a conclusion that the party not in khas possession are not entitled to injunction. It was further held that as the defendant No. 1 was in possession of the suit land, any order preventing him from carrying out his construction work will definitely cause inconvenience to the opposite party/defendant No. 1 than the petitioner/plaintiff and if the plaintiff is able to establish his case in the trial, then the construction made by the defendant No. 1 could be demolished at the cost of defendant No. 1. It was further held that the learned Munsiff No. 1 had failed to consider the three golden principles while discussing the petition under Order XXXIX Rule 1 & 2 of Code of Civil Procedure, which requires interference and the order of status quo against the construction by the defendant No. 1 was set aside, but both the parties were directed not to alienate the suit property so that the suit property can be preserved till disposal of the main suit. 6. 6. The learned counsel for the petitioner has made his submissions on two specific grounds, firstly, that merely because a construction can be demolished, is not a ground to permit the construction to come in the first place because if any construction comes up on a land, it will definitely cause damage to the land and secondly, under the same principle on which the appellate court had applied with regard to the absence of three golden principles i.e., existence of prima facie case, balance of convenience, irreparable loss and injury, being the ground on which the order of the trial court was reversed, the same principles had vitiated the appellate judgment because while issuing the direction not to alienate the suit property in any manner to preserve the suit property, the said order also amounted to grant of injunction. But, while passing the said order, even the appellate court did not follow its own finding and those three golden principles of injunctions have not even been discussed in the appellate judgment. Hence, it was argued that on both these grounds, the appellate judgment is not sustainable. 7. Per contra, Mr. GP Bhowmick, the learned senior counsel for the respondents submits that by virtue of prayer (f) made in the plaint, if the plaintiff succeeds in the suit he would become entitled to a decree for khas and vacant possession by evicting the defendants and by demolishing his construction of the pucca house standing thereon and by removing their materials from the suit land. It is submitted that this is indicative that there exists a pucca house in the suit land. Therefore, it is not material if a fresh pucca house is constructed on the suit land or the old pucca house remains in the suit land because in both the cases, the construction would have to be demolished in terms of the prayer made in the plaint. It is further submitted that in his written statement, the defendant No. 1 had set up his own title in respect of the suit land. Therefore, he further submits that it is not in dispute that the defendant No. 1 is in possession of the suit land and, as such, till the possession is not disturbed by a lawful decree, the defendant No. 1 cannot be prevented from enjoying his own land as per his desire. 8. Therefore, he further submits that it is not in dispute that the defendant No. 1 is in possession of the suit land and, as such, till the possession is not disturbed by a lawful decree, the defendant No. 1 cannot be prevented from enjoying his own land as per his desire. 8. Having heard both sides, J have perused the materials on record. It is seen that the learned first appellate court had taken note of the principles to be followed by the appellate court for grant of temporary injunction, by referring to the cases of :- (1) Wander Ltd. & Anr. v. Antox India P. Ltd. 1990 (SUPP) SCC 727 by quoting the following- "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." (2) Radhabari Tea Company (P) Ltd. v. Mridul Kumar Bhattacharjee & Ors., 2010(1) GLT 189; "(45) Thus, an appeal against exercise of discretionary jurisdiction is really an appeal in principle and that is why, unlike a regular appeal, in ordinary sense, where whole evidence on record is examined anew by the appellate Court, what is really examined, in an appeal against exercise of discretionary jurisdiction, is the legality and validity of the order and it can be set aside and should be set aside only when there is a patent error on the face of the record ' or the order is against the established or settled principles of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a trial Court, the other view, howsoever appealing, would not be allowed to be substituted in place of the trial Court's views, which are, otherwise, reasonable and logical." (3) Sharmila Vijay Shetty v. Hemendra Prasad Barooah & Ors., (2016) 3 GLR 50. "Injunction is a discretionary relief pending adjudication of the suit. Discretion has to be exercised on sound principals keeping in mind the golden principles governing grant of injunction. Appeal against exercise of discretion is an appeal on principle. Appellate Court would normally not interfere with the exercise of discretion if the conclusion reached by the trial Court is reasonably possible based on the materials on record." Thereafter, the learned first appellate court had relied on the case of Terene Traders (supra), wherein the Hon'ble Supreme Court held that- ".....The City Civil Court on a careful consideration of the evidence came to a definite conclusion that the plaintiff-respondent No. 1 was not in possession of any portion of the suit premises on the date of the institution of the suit. Even the learned single Judge has not come to a different conclusion as he observes that the plaintiff was not in 'khas' possession. There was no occasion for the High Court to have granted temporary injunction. It is not the case that the City Civil Court acted either illegally or with material irregularity in dismissing the plaintiffs application for temporary injunction." 9. The learned first appellate court had arrived at a finding that the defendant No. 1 was in possession of the suit land and preventing him from constructing any house in accordance with legal permission would definitely cause inconvenience to the opposite party than the petitioner at this stage, further it was held that if the respondent is able to establish its case after trial/appeal then the structure constructed by the opposite party can be demolished at the cost of the defendant No. 1. 10. A perusal of the judgment of Terene Traders (supra), what appears is that the Hon'ble Apex Court did not decide the issue of injunction at all. 10. A perusal of the judgment of Terene Traders (supra), what appears is that the Hon'ble Apex Court did not decide the issue of injunction at all. As reflected in the said judgment, the said civil court in exercise of its discretion refused to grant injunction and arrived at a finding that plaintiff No. 1 was not in possession of any portion of the premises on the date of institution of the suit. In the said judgment, it does not contain information about any facts involved in the said case. It is, however, mentioned that in that event, the learned City Judge has not come to a different conclusion as he observed that the plaintiff was not in a khas possession, there was no occasion for the trial court to grant temporary injunction. The relevant part starts thereafter that- "....It is not the case that the said civil court acted either illegally or with material irregularity in dismissing the plaintiff's application for temporary injunction. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Code." The said judgment is a very short judgment and, as such, the same is quoted below: "(1) Leave granted. Arguments heard. (2) In this case a learned Judge of the Bombay High Court by his order dated July 1, 1986 has in revision set aside the order of the Bombay City Civil Court dated September 5, 1983and allowed the plaintiffs' application for grant of temporary injunction under Order XXXIX, R. I of the Code of Civil Procedure, 1908. (3) Normally, this Court does not, as a rule, interfere with an interlocutory order of this nature except under very exceptional circumstances. Unfortunately this is a case of that kind. The learned single Judge in dealing with the revision observes that even though respondent No. 1 Rameshchandra Jamnadas and Company were not doing business for some time because of financial hardship and were not in 'Khas' possession, that was not a ground on which it can be denied temporary injunction. We are afraid, the learned Judge was quite oblivious to the limitations of the powers of the High Court under S. 115 of the Code. We are afraid, the learned Judge was quite oblivious to the limitations of the powers of the High Court under S. 115 of the Code. The Bombay City Civil Court in a suit for declaration and injunction brought by plaintiff-respondent No. 1 Ramesh chandra Jamnadas and Company, after hearing both the parties, refused to grant its application under Order XXXIX, R. 1 of the Code. The grant or refusal of temporary injunction was in the discretion of the City Civil Court. No doubt, that discretion was a judicial one to be exercised in accordance with reason and on sound judicial principles. It was not satisfied that the plaintiff had any prima facie case to justify the grant of such temporary injunction or that the balance of convenience required it. The City Civil Court on a careful consideration of the evidence came to a definite conclusion that the plaintiff-respondent No. 1 was not in possession of any portion of the suit premises on the date of the institution of the suit. Even the learned single Judge has not come to a different conclusion as he observes that the plaintiff was not in 'khas' possession. There was no occasion for the High Court to have granted temporary injunction. It is not the case that the City Civil Court acted either illegally or with material irregularity in dismissing the plaintiff's application for temporary injunction. That being so, the High Court could not have invoked its jurisdiction under S. 115 of the Code." 11. Therefore, on perusal of above quoted judgment of Terene Traders (supra), the principle or ratio of the said case is that unless the trial court is found to have exceeded its jurisdiction, or if it is found that it had acted illegally or with material irregularity in dismissing the plaintiff's application of temporary injunction, the High Court could not have invoked its jurisdiction under Section 115 of the Code to reverse the judgment and substitute its discretion or views on the judicial discretion exercised by the trial court. 12. 12. It further appears that the learned first appellate court had interfered with the injunction order passed by the trial court on the ground that there was no discussion about three golden principles for grant of injunction i.e., the existence of prima facie case, balance of convenience and the irreparable loss and injury, however, the first appellate court also did not discuss those principles while passing an injunction directing both the parties not to alienate the said property so that the suit property can be preserved till disposal of the main suit. 13. In my opinion, the meaning of 'status quo' is that the court is not adjudicating the rights of the parties finally. By passing the said orders of status quo, the civil court only gives direction to the parties in terms of the order passed by the said court, without giving any finding on any of the issues in respect of which the order of status quo was passed and the legal commutation of the word 'status quo' it implies the existence state of things at the said given point of time. 14. In the present case in hand, when the trial court had passed the order of status quo, the learned first appellate court appears to be correct to hold that status quo which amounted to prevent the defendant No. 1 from making any construction is equivalent to an order of temporary injunction. However, when the first appellate court is passing an order of status quo, directing the parties not to alienate the suit premises in any manner, the said order indicates the mind of the court that the intention of the court is that the suit property can be preserved till disposal of the main suit. Although both orders are akin to an order of injunction, but in the later case, it is not required for the appellate court while passing an order of status quo of such nature to discuss the three golden principles for grant of injunction as the appellate court was not exercising original jurisdiction under Order XXXIX Rules 1 & 2 but it was passing order under first appellate jurisdiction. Whereas in the first case, the parties were directed to maintain status quo by the trial court, it had the effect of preventing the proposed construction where it was obligatory for the trial court to discuss the reasons for which the construction was stopped till the disposal of the suit. Hence, for the aforesaid reasons, I do not find any error in the appellate judgment whereby it was held that the trial court had not discussed the three golden principles while dismissing the petition under Order XXXIX Rule 1 & 2 read with 151 of the Code of Civil Procedure. 15. Moreover, whether a party praying for injunction is in possession or not is a important factor for grant of injunction, but this has to be examined on the facts of each case and a straight-jacket formula cannot be laid down on this point. In the present case in hand, the learned appellate court held that lack of possession disentitled the petitioner herein for an order of injunction. As the order passed by the learned trial court is held to be not sustainable, this issue is not gone into at this stage. 16. Therefore, for the reasons given above, I do not find any infirmity in the impugned judgment passed by the first appellate court wherein it had not discussed the three golden principles for grant of injunction as I find that such a discussion was not warranted in the facts of that case where 'status quo' was granted only to prevent alienation of the suit land, which in any way is covered by the doctrine of lis pendens. 17. Insofar as the construction carried over the suit land by the respondent is concerned, I am of the opinion that when prayer (f) of the plaint empowers the court to demolish the construction standing on the disputed land, it is also prima facie indicative that a pucca construction is indeed standing over the suit land on the date when the plaint was filed. Hence, if any further construction is made over the suit land will continued to be covered by the said prayer. Needless to state herein that whatever construction is being made by the defendant No. 1, would obviously be subjected to the decision in the main suit. 18. Hence, if any further construction is made over the suit land will continued to be covered by the said prayer. Needless to state herein that whatever construction is being made by the defendant No. 1, would obviously be subjected to the decision in the main suit. 18. Therefore, notwithstanding the learned first appellate court had not correctly interpreted the ratio of the judgment and Terene Traders (supra), I find that the said error has not caused any prejudice to the appellant herein, because the learned trial court while making the ad-interim injunction/status quo absolute till the disposal of the suit, had not discussed the three golden principles for grant of injunction, which is mandatory. 19. For the said view of the matter, I do not find it a fit case for interference with the impugned judgment and order dated 19.9.16 passed by the learned Civil Judge, Dibrugarh in Misc. Appeal No. 8/2014. Hence, this revision is dismissed. Parties are left to bear their own costs. Application Dismissed.