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2020 DIGILAW 340 (JK)

Gurbachan Singh v. Teja Singh

2020-07-27

SANJEEV KUMAR

body2020
Judgment Sanjeev Kumar, J.—This miscellaneous appeal by the appellant, who was plaintiff before the 2nd Additional District Judge, Jammu (hereinafter referred to as the ‘trial Court’) is directed against the order dated 14.01.2020 passed by the trial Court in a civil suit titled ‘Gurbachan Singh vs Teja Singh and others whereby the trial Court has disposed of the application of the appellant for interim relief filed under Order 39 Rule 1 and 2 of CPC. The trial Court while disposing of the application has passed the following interim order. (i) The defendants shall not create any third party interest qua the subject matter of suit property by any mode till the disposal of the suit and any construction raised by them shall be subject to permission from the competent authorities and subject to outcome of the suit; (ii) That any change in the user of land shall be subject to permission from the competent authority and on their own risk and responsibility and shall be outcome of the suit. (iii) Defendants shall file an undertaking in terms of the above order. 2. The appellant is not satisfied with the interim order and has impugned the same, inter alia, on the ground that once the Tribunal found a prima facie case in favour of the appellant as also balance of convenience, it was not justified in permitting the defendants to raise the construction on the suit property and making it only subject to the outcome of the suit. 3. Mr. R.P. Sharma, learned counsel for the appellant vehemently submits that the appellant has a strong prima facie case in his favour and the trial Court has also found so, as such, it was necessary for the trial Court to preserve the lis and avoid multiplicity of litigation He, therefore, urges that the impugned interim order passed by the Trial Court, overlooking the cardinal principles governing the grant of injunction, is not sustainable in law and has resulted in serious miscarriage of justice. 4. Per contra, Mr. Sethi, learned senior counsel, appearing for the respondents submits that the appellant is guilty of suppression of material facts from the trial Court. He also urges that even the maintainability of suit before the civil Court is in serious contention. 4. Per contra, Mr. Sethi, learned senior counsel, appearing for the respondents submits that the appellant is guilty of suppression of material facts from the trial Court. He also urges that even the maintainability of suit before the civil Court is in serious contention. He submits that, with regard to the same subject matter, the parties are already litigating before the Revenue Courts and the instant suit by the appellant is only to involve the respondents in multiplicity of litigation. 5. Having heard learned counsel for the parties and perused the record, I am of the considered view that the impugned interim order passed by the trial Court is perfectly valid in the given facts and circumstances of the case, except that the trial Court with a view to preserve the lis and avoid multiplicity of litigation, ought to have directed the respondents in possession of the suit property to submit an undertaking that in case they ultimately lose and the appellant succeeds in the suit, they would hand over that much of suit property to which the appellant is found entitled to by the trial Court, free from any encumbrance. This is so, because admittedly the suit property is in possession of the respondents for the last several years. 6. The claim of the appellant in the suit is that the suit property was allotted to the family, consisting of appellant and respondents and, therefore, the appellant was entitled to a share in the property. It is the claim of the appellant that since other brothers had taken up separate residences and were having separate allotments, as such, the suit property was liable to be partitioned between the appellant and respondent No.1 in equal shares. The appellant, therefore, stakes claim to half of the suit property. 7. Indisputably, the appellant has never been in possession of the suit property and is out of possession for the last several years. Whether or not, this amounts to an ouster, is a question of fact, to be determined in the suit. Similarly, the plea of Mr. Sethi that the Civil Court has no jurisdiction to entertain the suit qua the subject matter is again a mixed question of law and fact which needs to be determined in the trial of the suit. 8. Similarly, the plea of Mr. Sethi that the Civil Court has no jurisdiction to entertain the suit qua the subject matter is again a mixed question of law and fact which needs to be determined in the trial of the suit. 8. Be that as it may, the trial Court has found that certain triable issues have emerged for determination in the suit which can only be settled in the light of evidence that may be led by the parties during trial. The Trial Court, however, found the balance of convenience tilting in favour of both the parties. 9. Needless to say that paramount consideration for grant of interim relief under Order 39, Rule 1 and 2 of CPC is to preserve the lis and avoid multiplicity of litigation. The interim order should be such which strikes balance between the competing rights of the parties and ensures that during the pendency of the suit, the parties, by their acts or omissions, do not encumber the property and create third party rights. In appropriate cases, an injunction to maintain status quo with regard to subject matter may also be called for. 10. In the instant case, it is not disputed that the respondents have been enjoying the suit property since long and that the appellant is not in possession of even an inch of the alleged joint property. The impact of earlier litigation between the parties on the suit and the issue of its maintainability, are also serious issues that are required to be determined by the trial Court. 11. In this backdrop, I find that the order passed by the trial Court is justified except that the trial Court should have insisted the defendants to submit an undertaking that in case the appellant succeeds and is found entitled to a share in the suit property, the same shall be delivered to him, free from any encumbrance and such share would go to the appellant either along with construction raised thereon or after removing the construction. This has not been done by the trial Court and the order has, by that reason, become slightly one sided. 12. The judgment rendered in the case of Maharwal Khewaji Trust (Regd.) Faridakot vs Baldev Dass, 2004 (8) SCC 488 , relied upon by Mr. R.P.Sharma, learned counsel for the appellant is distinguishable on facts. This has not been done by the trial Court and the order has, by that reason, become slightly one sided. 12. The judgment rendered in the case of Maharwal Khewaji Trust (Regd.) Faridakot vs Baldev Dass, 2004 (8) SCC 488 , relied upon by Mr. R.P.Sharma, learned counsel for the appellant is distinguishable on facts. The grant or refusal of interim order is in the discretion of the trial Court and is required to be passed in the given facts and circumstances obtaining in the case. There could not be a strait jacket formula that can fit in all the cases. 13. For the foregoing reasons, this appeal is partly allowed and it is provided that the impugned interim order shall remain intact subject to the respondents’ submitting an undertaking that in case the appellant succeeds ultimately and is held entitled to a share in the subject matter of the suit, the respondents shall hand over the same to the appellant, free from all encumbrances. The undertaking shall further provide that the share in the subject matter to which the appellant is found entitled to, shall be handed over to the appellant either with construction, free of any cost or after removing the construction raised thereon during or prior to filing of the suit. 14. With the aforesaid modification, the impugned interim order passed by the trial Court is upheld.