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2019 DIGILAW 233 (UTT)

Pratap v. Anil

2019-03-25

LOK PAL SINGH

body2019
JUDGMENT : Lok Pal Singh, J. Writ petition under Article 227 of the Constitution of India has been preferred by the petitioners against the order dated 23.01.2015, passed by Addl. District Judge, Laksar, District Haridwar, whereby the said court has quashed the order dated 24.03.2012, passed by learned Civil Judge (Jr. Div.), Laksar, District Haridwar in O.S. no. 93 of 2011, Anil vs Pratap and another and allowed the appeal filed by the plaintiff-appellant Anil (respondent herein) restraining the defendants (petitioners herein) not to interfere in the peaceful possession of the property in suit. (2) Brief facts of the case are that the respondent filed suit for prohibitory injunction, being O.S. no. 93 of 2011, Anil vs Pratap and another, stating therein that the plaintiff (respondent herein) is the owner in possession of the land bearing khasra no. 321, measuring 0.53 Hectare situated at Mauja Village Kalsia, Pargana Gordhanpur, Tehsil Laksar, District Haridwar and his sugarcane crop is standing over said land. It is contended that the petitioners (defendants) are threatening to dispossess the respondent (plaintiff) and to take illegal possession over the land in dispute and to harvest the crop. The petitioners (defendants) put in appearance and filed their objections, stating that the plaintiff is not in possession over the property in dispute and the defendants are in possession over the property in dispute. It is contended that a suit was filed by the petitioners for declaration of the bhumidhari rights under Section 229B of the U.P.Z.A. & L.R. Act., which was dismissed and the appeal is pending. It is further contended that status quo order has been granted by the learned Addl. Commissioner, Garhwal Division, Pauri in the aforesaid appeal. (3) I have heard leaned counsel for the parties and perused the material available on record. (4) Learned counsel for the petitioners would submit that since the plaintiff (respondent) did not come with clean hands before the learned trial court, learned trial court vide its order dated 24.03.2012 has rejected the interim relief application filed by the plaintiff. Learned counsel for the petitioners would further submit that the learned appellate court has committed illegality in allowing the appeal directing the petitioners not to interfere in the peaceful possession of the plaintiff (respondent). Learned counsel for the petitioners would further submit that the learned appellate court has committed illegality in allowing the appeal directing the petitioners not to interfere in the peaceful possession of the plaintiff (respondent). (5) A perusal of the order passed by the learned trial court would show that the learned trial court did not record any reason in regard to the prima facie case, balance of convenience and irreparable loss. Learned trial court in a cursory manner though has referred the documents filed by the plaintiff viz. a copy of the khatauni, khasra and letter of possession issued in favour of the plaintiff, but did not record any reasons that the plaintiff could not prove his prima facie case, balance of convenience in his favour and in case interim injunction is not granted he will face any irreparable loss. (6) Feeling aggrieved by order dated 24.03.2012, Misc. Appeal under Order 43 Rule 1(r) of CPC was filed. Learned Appellate Court having considered the copy of khatauni, khasra and letter of possession issued in favour of the plaintiff (respondent) and after considering the other documents available on record i.e. report of the Consolidation Officer has recorded its finding that the plaintiff (respondent) has successfully proved prima facie case, balance of convenience and irreparable loss in his favour and directed the defendants (petitioners) not to interfere in the peaceful possession of the plaintiff over the property in suit. (7) Learned counsel for the respondent would submit that respondent/plaintiff is not party to the suit filed by the petitioners for declaration of their alleged rights over the property in dispute. He would also submit that since the respondent/plaintiff is not party in the appeal pending before the Addl. Commissioner, Garhwal Division, Pauri, any order of status quo passed by learned Addl. Commissioner is not binding upon the plaintiff. Learned counsel for the respondent would further submit that the learned trial court was influenced by the order of status quo passed by Addl. Commissioner, Garhwal Division without adverting to the fact that the plaintiff is neither party nor the order of status quo is binding upon him. He would further submit that status quo order passed by the Appellate Court without suggesting what kind of status quo the parties shall maintain, the same does not bind the plaintiff in any manner. Commissioner, Garhwal Division without adverting to the fact that the plaintiff is neither party nor the order of status quo is binding upon him. He would further submit that status quo order passed by the Appellate Court without suggesting what kind of status quo the parties shall maintain, the same does not bind the plaintiff in any manner. Thus, learned trial court has committed illegality in rejecting the interim injunction application and the learned Appellate Court having considered the fact that the plaintiff is the owner in possession of the suit property and there was a threat from the petitioners to dispossess the plaintiff and to harvest the sugarcane crop of the respondent/plaintiff, the prima facie case was in favour of the plaintiff and also the balance of convenience is in favour of the respondent/plaintiff and, in case, of non-grant of any interim injunction to protect the rights of the plaintiff, the plaintiff has to suffer irreparable loss and injury which cannot be compensated in any terms of money. Learned counsel for the respondent would contend that no interference is called for in a well reasoned judgment of the Appellate Court. (8) A perusal of the impugned order would show that the learned Appellate Court has recorded a categorical finding in regard to the prima facie case, balance of convenience and irreparable loss in favour of the plaintiff (respondent). Nothing has been brought on record to show that the defendants (petitioners) are either the owners or in possession over the property in dispute. (9) Since the learned trial court in a cursory manner had rejected the interim injunction application of the plaintiff, learned appellate court rightly set aside the order in appeal and allowed the interim injunction application after being satisfied with basic ingredients of prima facie case, balance of convenience in non-granting the injunction in favour of plaintiff, the plaintiff has made to suffer irreparable loss and the suit would render in fructuous, if interim order is not granted in favour of the plaintiff. (10) Findings in this regard recorded by the learned Appellate Court are based on the material evidence available on record. Petitioners could not show any illegality or perversity in the impugned order passed by the appellate court. This Court in exercise of its jurisdiction under Article 227 of the Constitution of India cannot act like an appellate court. (10) Findings in this regard recorded by the learned Appellate Court are based on the material evidence available on record. Petitioners could not show any illegality or perversity in the impugned order passed by the appellate court. This Court in exercise of its jurisdiction under Article 227 of the Constitution of India cannot act like an appellate court. Petitioners also failed to show any miscarriage of justice cause to them. In other words, whereas the petitioners could not prove the title and possession over the property in dispute, the respondent has successfully proved prima facie case, balance of convenience in his favour and irreparable loss suffered by him. (11) The jurisdiction under Article 227 of the Constitution of India is a limited jurisdiction. The Court can only interfere when the petitioners are able to successfully prove that miscarriage of justice has been done to them, while passing the impugned order. (12) Their Lordships of the Hon’ble Apex Court in the case of Anil Kumar Singh vs Vijay Pal Singh, (2018) 12 SCC 584 has held as under: “28. As mentioned above, the High Court should have seen that the scope of writ petition was confined to examine the question as to whether the Trial Court and Revision Court were justified in allowing the application filed by the plaintiff under Order XXIII Rule 1 of the Code and to decide this question, the High Court should have confined its inquiry to examine as to whether the requirements of Order XXIII Rule 1 were complied with or not but not beyond it. 29. There was, therefore, no justification on the part of the High Court to have travelled in the issues relating to the grant of injunction in relation to the suit land and give direction to the appellant (plaintiff) to place respondent no. 1 in possession of the suit land. 30. The High Court should have seen that the issue of grant of injunction was not the subject matter of the writ petition and, therefore, it had nothing to do with the question of withdrawal of the suit and secondly, the withdrawal of a suit was governed by Order XXIII Rule 1 of the Code whereas the injunction was governed by Order XXXIX Rules 1 and 2 of the Code. Both operate in different spheres. Both operate in different spheres. That apart, the defendant did not challenge the ex-parte grant of injunction order in appeal under Order XLIII Rule 1(r) and nor contested it before the Trial Court. It was only in these two forums, the issue of injunction could be considered by the Courts, but not in present proceedings which, as mentioned above, were confined only to the question of withdrawal of suit and nothing else.” (13) The Hon’ble Apex Court in the case of Radhey Shayam and another vs Chhabi Nath and others, (2015) 5 SCC 423 considering the nine-Judge Bench judgment in Naresh Shridhar Mirajkar vs State of Maharashtra, AIR 1967 SC 1 has held that the remedy under Article 226 / 227 of the Constitution of India is not an appealable remedy and can be used only in a very exceptional cases when manifest miscarriage of justice has been occasioned and where there is some perversity in the order passed by the court. (14) In view of the facts and circumstances enumerated above, I do not find any perversity and illegality in the order impugned. The writ petition fails and is dismissed. No order as to costs. Interim order dated 13.02.2015, passed by this Court, is hereby vacated.