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2020 DIGILAW 795 (JHR)

Abdul Mian v. Ibrahim Ansari

2020-08-24

RAJESH SHANKAR

body2020
JUDGMENT : The present case is taken up through video conferencing. 2. The present writ petition has been preferred for quashing the order dated 07.05.2018 passed by the Principal District Judge, Latehar in Civil Misc. Appeal No.03 of 2017 whereby the order dated 20.05.2017 passed by the Civil Judge (Senior Division)-II, Latehar in Original Suit No. 16 of 2016 dismissing the application filed by the plaintiffs/respondents under Order XXXIX Rule 1 and 2 read with section 151 CPC has been set aside with a direction to the defendant/petitioner not to interfere with the peaceful possession of the plaintiffs/respondents upon the suit land. 3. The learned counsel appearing on behalf of the petitioner submits that the plaintiffs/respondents filed Original Suit No.16 of 2016 claiming right, title, interest and possession over the suit land appertaining to plot No.288/1006, khata No.78/102 situated at Mouza-Baresarh measuring an area of 3.20 acres on the ground that the said land was initially settled to the defendant/petitioner vide Settlement Case No.269/55-56 but in his Patta, instead of village Baresarh, where the land was actually situated, it was written as village Mayapur and the defendant/petitioner subsequently transferred the same to Nasiban Bibi-the mother of the plaintiff nos. 1 to 3 through registered deed no.1289 dated 31.01.1974. Thereafter, Nasiban Bibi came in peaceful possession of the suit land and she got her name mutated for the same. The plaintiffs/respondents filed a petition under Order XXXIX Rule 1 and 2 read with section 151 of CPC seeking temporary injunction alleging therein that the defendant/petitioner was trying to complete construction on portion of the suit land rapidly. The defendant/petitioner filed written statement-cum-counterclaim stating that the land under Mouza–Baresarh appertaining to Khata No.78/97-1202/N measuring an area of 6.74 acres comprising four plots was settled in his favour vide Settlement Case No. 269/55-56 and the said land was never transferred to Nasiban Bibi. He also denied the possession of the plaintiffs over the suit land and further averred that a collusive order of mutation was passed in favour of Nasiban Bibi. The Civil Judge, Senior Division-II, Latehar vide order dated 20.05.2017 dismissed the petition for temporary injunction filed by the plaintiffs/respondents. Aggrieved thereby, the plaintiffs/respondents filed Civil Misc. Appeal No.03 of 2017 before the learned Principal District Judge, Latehar who vide impugned order dated 07.05.2018 allowed the said appeal setting aside the order dated 20.05.2017 passed by the trial court. The Civil Judge, Senior Division-II, Latehar vide order dated 20.05.2017 dismissed the petition for temporary injunction filed by the plaintiffs/respondents. Aggrieved thereby, the plaintiffs/respondents filed Civil Misc. Appeal No.03 of 2017 before the learned Principal District Judge, Latehar who vide impugned order dated 07.05.2018 allowed the said appeal setting aside the order dated 20.05.2017 passed by the trial court. It is further submitted that the learned appellate court while allowing the petition for interim injunction failed to appreciate the legal principles laid down for the same. It is also submitted that the court below has failed to take into consideration the documents available on record in true perspective. 4. Heard the learned counsel for the petitioner and perused the materials available on record including the impugned order dated 07.05.2018 passed in Civil Misc. Appeal No.03 of 2017 by the Principal District Judge, Latehar who reversed the order passed by the Civil Judge (Sr. Division)-II, Latehar in Original Suit No. 16 of 2016 and allowed the appeal preferred by plaintiffs/respondents by granting interim injunction in the matter. 5. The Hon’ble Supreme Court in catena of decisions has reiterated the principle for granting interim temporary injunction under Order XXXIX Rules 1 and 2 CPC. It has been held that the plaintiff is bound to establish that there exists a prima facie case as well as balance of convenience in his favour and if his prayer for interlocutory injunction is not allowed, he will suffer irreparable loss and injury. Only after establishing the said conditions, the court can grant interim injunction in the suit. 6. In the case of Hindustan Petroleum Corpn. Ltd. Vs. Sriman Narayan & Another reported in (2002) 5 SCC 760 , the Hon’ble Supreme court has held as under:- “7. It is elementary that grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the court. While exercising the discretion the court normally applies the following tests: (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. 8. While exercising the discretion the court normally applies the following tests: (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. 8. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the “balance of convenience” lies. (See Gujarat Bottling Co. Ltd. v. Coca Cola Co. [ (1995) 5 SCC 545 ] SCC at p. 574.) 9. In Dorab Cawasji Warden v. Coomi Sorab Warden [ (1990) 2 SCC 117 ] this Court, discussing the principles to be kept in mind in considering the prayer for interlocutory mandatory injunction, observed: (SCC pp. 126-27, paras 16-17) “16. 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 party 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 guidelines. Generally stated these guidelines are: (1) 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. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. 17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as a prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” 7. In the case in hand, the learned appellate court while allowing the appeal of the plaintiffs/respondents observed that as per the claim of the plaintiffs, the suit land was purchased by their mother Nasiban Bibi way back in the year 1974 and the suit land was also mutated in her name. The said fact of mutation was not disputed by the defendant, rather he claimed that an application for cancellation of mutation was still pending. The plaintiffs’ claim that the suit land is situated at village Baresarh as would be evident from the boundary of the land but in the Patta it has wrongly been written as Mayapur, has been found a disputed fact by the learned appellate court observing that the same would finally be determined in the suit. The plaintiffs’ claim that the suit land is situated at village Baresarh as would be evident from the boundary of the land but in the Patta it has wrongly been written as Mayapur, has been found a disputed fact by the learned appellate court observing that the same would finally be determined in the suit. After considering the aforesaid fact, the learned appellate court found prima facie case and balance of convenience in favour of the plaintiffs/respondents and also observed that the defendant did not deny the claim of the plaintiffs that he was not making any construction over the suit land or alternatively was not objecting the possession of the plaintiffs. The learned appellate court further observed that if the interest of bona fide purchaser relating to existing feature of the suit land was not protected at the right moment and was left on the peril of the defendant, the plaintiffs would certainly be put to irreparable loss. Having found a prima facie case in favour of the plaintiffs and balance of convenience in their favour, the learned appellate court allowed the appeal and restrained the defendant/petitioner from interfering with the possession of the plaintiffs or doing any act which might tantamount to interference in possession of the plaintiffs. 8. I do not find any infirmity in the impugned order dated 07.05.2018 passed by the court below as the same has been passed after discussing the facts of the case and the legal principles laid down by the Hon’ble Supreme Court for determining any application filed under Order XXXIX Rules 1 and 2 of CPC. No doubt, interim injunction to maintain status quo in respect of suit premises is granted only when it is proved by sufficient material that there exists a strong prima facie case in favour of the one seeking such relief and that he is in peaceful possession of the suit land. In the present case, the plaintiffs/respondents have claimed that since the suit land has been purchased by their mother and the land has also been mutated in her name, there is a prima facie case in their favour. In the present case, the plaintiffs/respondents have claimed that since the suit land has been purchased by their mother and the land has also been mutated in her name, there is a prima facie case in their favour. Moreover, the possession upon the suit land has been proved by them, on the basis of which the learned appellate court found that the plaintiffs would suffer irreparable loss and injury, if they were dispossessed from the portion of suit land and thus rightly passed the impugned order. 9. The writ petition having no merit is, accordingly, dismissed.