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2020 DIGILAW 969 (KER)

T. M. Aysha Jasmitha v. C. P. Abdul Rasheed

2020-11-13

R.NARAYANA PISHARADI

body2020
JUDGMENT : R. Narayana Pisharadi, J. 1. The petitioner is the second defendant and the first respondent is the plaintiff in the suit O.S. No. 55/2020 on the file of the Munsiff's Court, Thalassery. The second respondent is the first defendant in the suit. 2. The suit is instituted for granting a decree for demarcation of the eastern boundary of the plaint A schedule property owned by the plaintiff. The plaintiff has also sought a decree of prohibitory injunction restraining the defendants from trespassing into the plaint A schedule property and making any construction in that property. 3. The material averments in the plaint are as follows: The plaint A schedule property belongs to the plaintiff. The property on the eastern side of the plaint A schedule property, which is described in the plaint B schedule, jointly belongs to the defendants. There is definite boundary on all sides of the plaint A schedule property, except on the eastern side. There was a small mud varamba on the eastern side of the plaint A schedule property separating it from the plaint B schedule property. This varamba collapsed and it is not in existence now. The defendants are making some construction in their property. On 31.01.2020, the employees of the defendants tried to construct a basement in the plaint A schedule property. They failed in their attempt due to the obstruction made by the plaintiff. The defendants have declared that they would trespass upon the plaint A schedule property and make construction in it. Hence the suit. 4. Along with the suit, the plaintiff filed an application as I.A. No. 2/2020 for granting an order of temporary injunction restraining the defendants from trespassing into the plaint A schedule property and making any construction in it. 5. The second defendant alone filed objection to the above application, mainly raising the following contentions. She is the absolute owner of the plaint B schedule property. The first defendant had released his right over the property in her favour by executing a document. The first defendant had constructed a boundary wall on the eastern side of the plaint A schedule property in the year 2013. The averment in the plaint that there was a mud varamba on the eastern side of the plaint A schedule property is not correct. The first defendant had constructed a boundary wall on the eastern side of the plaint A schedule property in the year 2013. The averment in the plaint that there was a mud varamba on the eastern side of the plaint A schedule property is not correct. The plaint B schedule property is having separate, definite and clear boundary on all four sides including the western side. The second defendant is making construction in the plaint B schedule property. She has not made any attempt to trespass upon the plaint A schedule property. No incident occurred on 31.01.2020 as alleged in the plaint. 6. As per Ext. P4 order dated 16.06.2020, the trial court dismissed the application for temporary injunction filed by the plaintiff. 7. Aggrieved by the dismissal of the application for temporary injunction, the plaintiff filed appeal as C.M.A. No. 12/2020, challenging Ext. P4 order. 8. As per Ext. P5 judgment dated 14.08.2020, the appellate court allowed the appeal and granted an order of temporary injunction in favour of the plaintiff and against the second defendant, restraining the second defendant from proceeding with the construction of the building in the disputed portion of the property. 9. The second defendant has filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext. P5 judgment. 10. Since no order of injunction has been granted against the first defendant in the suit and since he has no substantial interest in the subject matter of dispute, service of notice on him, who is arrayed as the second respondent in the original petition, is dispensed with. 11. Heard learned counsel for the petitioner and also the first respondent. 12. Learned counsel for the petitioner contended that the appellate court has arbitrarily exercised its jurisdiction to reverse the finding made by the trial court and substituted its own view in passing Ext. P5 judgment and granting an order of injunction in favour of the plaintiff. Learned counsel would submit that the petitioner is constructing a multi-storied building in her property and the order of injunction passed against her has caused irreparable injury to her because she would not be able to complete the construction till the proceedings in the suit reach finality, which may take years. Learned counsel would submit that the petitioner is constructing a multi-storied building in her property and the order of injunction passed against her has caused irreparable injury to her because she would not be able to complete the construction till the proceedings in the suit reach finality, which may take years. Learned counsel would submit that, the plaintiff has suppressed in the plaint and in the application for temporary injunction the material fact that there is a definite physical boundary demarcating her property from the property of the second defendant and therefore, the plaintiff is not entitled to get an order of injunction, which is an equitable relief. Learned counsel for the petitioner also contended that granting an injunction against the construction of the building is barred under Section 41(ha) of the Specific Relief Act, 1963 (for short 'the Act'). 13. Learned counsel for the first respondent submitted that the second defendant has made construction in the property owned by the plaintiff and such construction cannot be allowed to continue till the disposal of the suit. Learned counsel would submit that, if the order of injunction is vacated or set aside, it would cause irreparable injury to the plaintiff. 14. At the outset, it is to be mentioned that there is no merit in the contention of the learned counsel for the petitioner that granting injunction against construction of the building is barred under Section 41(ha) of the Act. Section 41(ha) of the Act provides that, an injunction cannot be granted if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility related thereto or services being the subject matter of such project. This provision was introduced in the Act by Act 18 of 2018. Every infrastructure project will not come within the purview of Section 41(ha) of the Act. The Explanation provided to Section 20-A (1) of the Act states that, for the purpose of clause (ha) of Section 41 of the Act, the expression "infrastructure project" means the category of projects and infrastructure Sub-Sectors specified in the Schedule of the Act. Every infrastructure project will not come within the purview of Section 41(ha) of the Act. It is only an infrastructure project of one of the categories mentioned in the Schedule of the Act which would come within the sweep of Section 41(ha) of the Act. Every infrastructure project will not come within the purview of Section 41(ha) of the Act. It is only an infrastructure project of one of the categories mentioned in the Schedule of the Act which would come within the sweep of Section 41(ha) of the Act. In the instant case, there is no material to find that the building being constructed by the petitioner is an "infrastructure project" which would come under any of the categories mentioned in the Schedule of the Act. 15. There is no dispute with regard to the fact that the plaintiff is the owner of the plaint A schedule property and the second defendant is the owner of the plaint B schedule property. The plaint B schedule property is situated on the immediate eastern side of the plaint A schedule property. 16. The suit for granting a decree for demarcating the eastern boundary of the plaint A schedule property is instituted by the plaintiff with a specific plea that there is no definite boundary on the eastern side of that property demarcating it from the plaint B schedule property. 17. On 05.02.2020, immediately after the institution of the suit, the Advocate Commissioner appointed by the trial court had inspected the properties. Ext. P6 is the copy of the report filed by the commissioner after inspection of the properties on 05.02.2020. Ext. P6 report shows that, when the commissioner inspected the property on 05.02.2020, he saw a boundary wall made of two layers of laterite stones on the eastern side of the plaint A schedule property demarcating it from the plaint B schedule property. The commissioner has also reported that this boundary wall appeared to be of two years old (As per Ext. P6 report, the position of this boundary wall is on the western side of the property of the plaintiff. This statement in Ext. P6 is evidently a mistake. The rough sketch prepared by the commissioner, which is attached to Ext. P6 report, would show that the boundary wall is on the eastern side of the property of the plaintiff and not on the western side of that property). 18. Ext. This statement in Ext. P6 is evidently a mistake. The rough sketch prepared by the commissioner, which is attached to Ext. P6 report, would show that the boundary wall is on the eastern side of the property of the plaintiff and not on the western side of that property). 18. Ext. P6 report of the commissioner would also show that the commissioner had measured the property of the plaintiff on the basis of the measurements shown in the document given to him by the plaintiff and then it was found that the plaintiff had property further to the east beyond the above boundary wall. This disputed portion of the property is shown as FDCGF in the rough sketch prepared by the commissioner. 19. The same Advocate Commissioner had again inspected the properties on 07.03.2020 and measured the properties with the assistance of a private surveyor. Ext. P7 is the copy of the report filed by the commissioner after inspection of the properties on 07.03.2020. In the plan attached to Ext. P7 report, the property of the plaintiff is shown as ABCDEA and the property of the second defendant is shown as PQRSTUVP. The disputed portion of the property is marked in the plan as UVCDTU. The commissioner also found that a portion of the construction made by the second defendant is in the disputed portion marked as UVCDTU. 20. As per Ext. P4 order, the trial court dismissed the application for temporary injunction filed by the plaintiff mainly for the reason that the plaintiff suppressed the material fact that there exists a boundary wall on the eastern side of his property demarcating it from the property of the defendants. As noticed earlier, when the commissioner inspected the property immediately after the institution of the suit, he had seen a boundary wall on the eastern side of the property of the plaintiff demarcating it from the property of the second defendant. 21. Learned counsel for the first respondent/plaintiff has not offered any explanation for suppressing in the plaint the material fact that there exists a definite physical boundary to demarcate the property of the plaintiff from the property of the second defendant. 22. Ext. 21. Learned counsel for the first respondent/plaintiff has not offered any explanation for suppressing in the plaint the material fact that there exists a definite physical boundary to demarcate the property of the plaintiff from the property of the second defendant. 22. Ext. P4 order passed by the trial court shows that the plaintiff had taken a contention before the trial court that the boundary wall on the eastern side of his property is one constructed by the defendants after the institution of the suit by trespassing into his property, with the knowledge of institution of the suit. The trial court has rightly negatived this plea for the reason that the notice on the application for injunction was served on the second defendant only on 12.02.2020. 23. The appellate court ignored the fact that the suit itself is instituted by the plaintiff for demarcation of the eastern boundary of the plaint A schedule property on the specific allegation that there exists no definite boundary there to separate it from the property of the defendants. On the other hand, the appellate court considered the fact that the property of the plaintiff and the property of the defendants earlier belonged to one and the same person as a single plot and that it was the plaintiff who had purchased the property first and that the defendants acquired their property only much later and therefore, they could have obtained only the property which was left there. The appellate court also heavily relied upon the plan submitted by the Advocate Commissioner after measuring the properties on the basis of the measurements shown in the title deeds of the parties. While doing so, the appellate court ignored the fact that, even at the time of the institution of the suit, there was a definite physical boundary between the property of the plaintiff and the second defendant and that the plaintiff was in actual possession of only the property within that boundary. The appellate court was conscious of this fact but it has observed that the plaintiff may amend the plaint seeking a relief for recovery of possession of property. 24. The appellate court was conscious of this fact but it has observed that the plaintiff may amend the plaint seeking a relief for recovery of possession of property. 24. It is trite that an order of temporary injunction can be granted by the Court only if it is satisfied that the plaintiff has made out a prima facie case; that balance of convenience is in favour of passing an order of injunction; and that irreparable injury will be caused to the plaintiff, if the order of injunction sought is not granted. 25. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. 26. 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. 27. What is meant by 'prima facie case'? The contention of the plaintiff must be bona fide. The Court must weigh one need against another and determine where the "balance of convenience" lies. 27. What is meant by 'prima facie case'? The contention of the plaintiff must be bona fide. The question sought to be tried must be a serious question and not merely a triable issue. In Muthukoya v. Muthukoya : 1988 (1) KLT 664 , a Division Bench of this Court has held as follows: "It is not every contention which is bona fide; it is not every question which is a serious question. Where can the court draw the line? There must be some material on record in support of the claim of legal right put forward by the person who seeks interlocutory relief of injunction; such material must, either by itself or in the light of material placed before the court by the opposite party, satisfy the court that it could, at that stage and under those circumstances act on it. This is precisely what can be comprehended by the expression 'prima facie case'." 28. Even if it is prima facie found that the plot marked as UVCDTU in the plan filed by the commissioner is covered by the title deed of the plaintiff, when the plaintiff is not in possession of the said disputed plot, he cannot have the boundary fixed as per the measurements in his title deed without seeking a relief for recovery of possession of the disputed plot. A suit for fixation of boundary cannot be a short cut or substitute for recovery of possession (See Anjil Vellachi v. Mamuni Bhaskaran: 2009 (3) KHC 728 ). In the instant case, the plaintiff is not in possession of the disputed portion of the property. Therefore, it cannot be found that the plaintiff has got a prima facie case to get an order of temporary injunction in respect of that property. 29. No doubt, when there is no boundary to demarcate the properties of two persons or when there is some confusion or dispute with regard to the boundary, a suit for fixation of boundary would lie (See Achuthan Nair v. Narayanan Nair: AIR 1987 SC 2137 ). 29. No doubt, when there is no boundary to demarcate the properties of two persons or when there is some confusion or dispute with regard to the boundary, a suit for fixation of boundary would lie (See Achuthan Nair v. Narayanan Nair: AIR 1987 SC 2137 ). But, this is a case where the plaintiff has instituted the suit for fixation of boundary on the allegation that there exists no definite boundary on the eastern side of his property to demarcate it from the property of the defendants but there exists a definite physical boundary between the two properties. 30. It is trite that a plaintiff who approaches the Court, seeking an equitable relief of injunction, must make true and correct statements in the plaint or in the application seeking such interim relief. Suppression of any material fact would be sufficient to decline the discretionary relief of injunction. A party seeking discretionary relief has to approach the court with clean hands and is required to disclose all material facts which may, one way or the other, affect the decision. A person deliberately concealing material facts from court is not entitled to any discretionary relief. A person seeking relief of injunction is required to make honest disclosure of all relevant statements of facts otherwise it would amount to an abuse of the process of the court. 31. In the instant case, the plaintiff not only suppressed the material fact regarding the existence of the boundary wall on the eastern side of his property but also he made a false statement in the plaint that there is no definite boundary there. On this ground alone, he is not entitled to get an order of temporary injunction. 32. Regarding the scope of the power of the appellate court to interfere with an interim order passed by the court of first instance, the Apex Court has held in a catena of decisions that, 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 by the trial court arbitrarily or capriciously or perversely or where the trial 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. 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 below was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner, the fact that the appellate court would have taken a different view, may not justify interference with the trial court's exercise of discretion. Once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity (See Esha Ekta Apartments v. Municipal Corporation of Mumbai: AIR 2012 SC 1718 ). 33. In the instant case, the trial court had objectively considered the matter and taken a reasonable view. The appellate court was not justified in substituting its own view by reversing the well considered order passed by the trial court. 34. Ext. P6 report of the commissioner would show that, at the time of institution of the suit, the second defendant had already started construction of the building in the property in her possession. An order of injunction granted against the construction at such a stage would cause irreparable loss and injury to the second defendant as she would not be able to utilise her property till the suit is finally disposed of, which may take several years at the original stage and thereafter, several more years at the appellate stages. An order of injunction granted against the construction at such a stage would cause irreparable loss and injury to the second defendant as she would not be able to utilise her property till the suit is finally disposed of, which may take several years at the original stage and thereafter, several more years at the appellate stages. At the same time, the interest of the plaintiff can be protected by directing the second defendant to file an affidavit in the trial court that she would unconditionally demolish and remove the construction made in the disputed property in case the decision in the suit goes against her. 35. Consequently, the original petition is allowed and Ext. P5 judgment is set aside and Ext. P4 order of the trial court is restored. The petitioner/second defendant shall file an undertaking in the form of an affidavit in the trial court that, if ultimately, the decision in the suit goes against her, then she would unconditionally demolish and remove the construction made in the disputed property without raising any objection and without claiming any compensation for the work done by her in that portion of the disputed property. Till such affidavit is filed by the petitioner, she is restrained from making any construction in the disputed property shown as UVCDTU in the plan attached to Ext. P7 report of the commissioner.