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2022 DIGILAW 758 (HP)

Neelam Kumari v. Catholic Diocese Society

2022-11-25

VIRENDER SINGH

body2022
JUDGMENT : VIRENDER SINGH, J. 1. Petitioner, through her GPA Sh. Dinesh Negi, has filed the present petition under Article 227 of the Constitution of India, against the order passed by learned Additional District Judge-II, Solan in Civil Appeal No. 3 ADJ-II/14 of 2019, decided on 30.10.2019, whereby, learned Additional District Judge-II affirmed the order passed by learned Civil Judge, Court No. 1, Solan, in an application filed under Order 39 Rule 1 and 2 CPC. 2. For the sake of convenience, the parties to the present petition are referred in the same manner, in which, they have been referred by learned Civil Judge, Court No. 1, Solan (hereinafter referred to as “the trial Court”) as well as by learned Additional District Judge-II, Solan (hereinafter referred to as “the first appellate Court”). 3. The plaintiff has filed a suit for permanent prohibitory injunction against the defendant-society for restraining it from causing any interference in the property, comprised in Khata/Khatauni No. 58 min/143 min, Khasra No. 596, measuring 00-00-96 hectares alongwith one storeyed old house having plinth area 96 square meters, situated in Mohal Ber Khas, Hadbast No. 44, Tehsil and District Solan, H.P. (hereinafter referred to as “the suit property” and also for mandatory injunction and recovery of mesne profit @ 7500/- per month, w.e.f. 23.3.2018 upto 28.2.2019 and future mesne profit from 1.3.2019 till the locks of the same are unlocked. 4. The plaintiff has asserted her claim on the ground that she has purchased the suit property vide sale deed dated 23.3.2018 and as such, she has become the absolute owner of the suit land, as mutation, on the basis of sale deed, was also sanctioned on 26.4.2018. The defendant-society is stated to be running a school and it has purchased the land from the previous owner. It has got sanctioned a map and a path has been shown passing through the land of the defendant-society, comprised in Khasra Nos. 97, 108, 1075/81, 1076/81, which is shown to be in the ownership of the defendant-society. 5. The said path is also stated to be the only access for the plaintiff to approach the suit land. After purchasing the suit land, the plaintiff got demarcation of the land through revenue agency by associating the defendant society. 97, 108, 1075/81, 1076/81, which is shown to be in the ownership of the defendant-society. 5. The said path is also stated to be the only access for the plaintiff to approach the suit land. After purchasing the suit land, the plaintiff got demarcation of the land through revenue agency by associating the defendant society. However, in the said demarcation process, the authorized representatives of the defendant society had refused to make any statement, but later on, they had filed the objections, which were rejected, as such the said demarcation is stated to have attained finality. 6. To the utter surprise of the plaintiff, the defendant-society had, through its employees, put a lock over the suit land, for which it has no right to do so. The plaintiff was also prevented from entering the suit property. 7. On the basis of above facts, the plaintiff has sought the relief, as referred above. 8. Alongwith the suit, the plaintiff has filed an application under Order 39 Rule 1 and 2 CPC read with section 151 CPC for interim mandatory injunction, in which, a prayer has been made to direct the respondent-society to unlock the suit premises on the ground that her title over the suit land is undisputed. 9. It is the further case of the plaintiff that her title over the suit land has been well defined by the trial Court in Civil Suit No. 496/1/2004/03, decided on 25.5.2006, whereas the entries in favour of the defendant-society was held to be illegal. 10. When put to notice, the suit has been contested by the defendant by filing written statement, in which preliminary objections have been taken that the suit is not maintainable, as the plaintiff has approached the Court with unclean hands, as the decree passed in Civil Suit No. 496/1/2004/03 is stated to be the result of fraud. According to the defendant-society, the suit is bad for mis-joinder of necessary parties, as the legal heirs of one Gajjan Singh are necessary parties, which have not been impleaded in the present case. 11. The plaintiff is also stated to be out of possession, as such, according to the defendant-society, although it is stranger to khasra No. 596, but, the plaintiff is not entitled for possession, as claimed, in the suit, as she is not in possession of the suit land. 12. Other averments have also been denied. 11. The plaintiff is also stated to be out of possession, as such, according to the defendant-society, although it is stranger to khasra No. 596, but, the plaintiff is not entitled for possession, as claimed, in the suit, as she is not in possession of the suit land. 12. Other averments have also been denied. The very existence of the path has also been disputed, as the said property is stated to be absolutely in possession of the defendant-society and defendant has not permitted anyone to use the property. 13. On the basis of the stand taken in the written statement, a prayer has been made to dismiss the suit. 14. Almost on similar lines, the application under Order 39 Rule 1 and 2 CPC has also been contested. 15. Learned trial Court, after hearing learned counsel for the parties, has dismissed the application for interim mandatory injunction, vide order dated 13.8.2019 by holding that the controversy in the present case revolves around the fact that there is a path connecting the suit land through the land of the defendant. 16. Apart from this, learned trial Court has also held that the plaintiff could not make out a case for exercising the powers of the Court under Order 39 Rule 1 and 2 CPC to issue interim mandatory injunction. 17. Aggrieved from the said order, the plaintiff assailed the said order before learned first appellate Court. The learned first appellate Court has also affirmed the findings of learned trial Court on the ground that the plaintiff could not establish the prima-facie case, seeking relief of interim mandatory injunction, as according to learned first appellate Court, for obtaining the said interim mandatory injunction, the plaintiff should have proved her case, which could be of the higher standard than the prima-facie case and the said relief is only for preventing the irreparable injury, which cannot be compensated in terms of money. 18. Feeling aggrieved from the said order, the present petition under article 227 of the Constitution of India has been filed, assailing the aforesaid two orders, on the ground that both the Courts have wrongly decided the matters against the plaintiff, as in the written statement, the defendant-society has admitted that they have no concern whatsoever with khasra No. 596. It is the stand of the defendant-society that no lock was ever put upon the house existing over khasra No. 596. It is the stand of the defendant-society that no lock was ever put upon the house existing over khasra No. 596. 19. Highly relying upon the demarcation report, the findings have been assailed on the ground that the trial Court as well as first appellate Court has ignored the fact that by putting the lock over the house situated over the suit land, the civil rights of the plaintiff have been restricted to enter the suit land. As such, according to the plaintiff, she is entitled for interim mandatory injunction. In this regard, the alleged contradictory stand of the defendant-society has also been highlighted. 20. On all these submissions, Mr. Sudhir Thakur, Senior Advocate, assisted by Mr. Karun Negi, Advocate has prayed that the appeal may kindly be accepted by setting aside the orders passed by the learned first appellate Court as well as by learned trial Court, by allowing the application under Order 39 Rule 1 and 2 CPC, as prayed for. 21. For contrary, the said prayer has been opposed by Mr. Vipin Pandit, Advocate, appearing for the respondent on the ground that the factual position involved in the present case has duly been considered by learned trial Court and affirmed by learned first appellate Court and as such there is no scope for interference by this Court under Article 227 of the Constitution of India. The factual position, which has been asserted by the plaintiff, has been contested by the defendant. 22. Primary purpose of Order 39 Rule 1 and 2 CPC is to preserver the subject matter of the lis, as it exists on the inception of the lis. It is also no longer res-integra that by way of interim mandatory injunction, final relief cannot be granted. 23. In order to get relief for interim mandatory injunction, during the pendency of the lis, it is for the plaintiff to show that she is having the case in her favour, which is more than the prima-facie case. 24. It is also no longer res-integra that by way of interim mandatory injunction, final relief cannot be granted. 23. In order to get relief for interim mandatory injunction, during the pendency of the lis, it is for the plaintiff to show that she is having the case in her favour, which is more than the prima-facie case. 24. Hon’ble Supreme Court in Dorab Cawasji Warden vs. Coomi Sorab Warden and Others, have incorporated certain guiding principles before granting temporary mandatory injunction, a relevant paragraph of which is extracted hereinafter: “The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which proceeded 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 complainant. 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. 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 or complete or absolute rules and there may be exceptional circumstances needing action, applying them as per-requisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” 25. Though the above guidelines are neither exhaustive or complete or absolute rules and there may be exceptional circumstances needing action, applying them as per-requisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” 25. Judging the factual position, in light of the decision of Hon’ble Apex Court in Dorab Cawasji Warden’s case supra, the case of the plaintiff is to be seen, as in order to succeed, the plaintiff is to stand upon his/her legs. 26. The entire pleadings of the plaintiff are silent qua the fact that when the lock was allegedly put by the defendant over the house situated over the suit property. A vague averment has been made in Para-6 of the plaint by stating that after registration of the sale deed, the husband of the plaintiff had gone to the suit property and found that the defendant had put a lock over the same. The sale deed was allegedly executed on 23.3.2018 and the demarcation was allegedly conducted on 15.9.2018. This is how the plaintiff is asserting the claim as per Para-1 of the plaint. It is yet to be proved during the trial that the lock was put by the defendant after the execution of the sale deed or prior to the execution of the sale deed, as the defendant has denied the said fact. 27. This Court is in full agreement with the reasons given by learned trial Court while deciding the application under Order 39 Rule 1 and 2 CPC. The findings, so recorded by learned trial Court, from any stretch of imagination, cannot be said to be perverse or suffering from any patent illegality, as learned trial Court has considered the stand of the parties, as pleaded in the plaint as well as in the written statement. At the sake of repetition, the plaintiff could not make out a case for giving relief of temporary mandatory injunction. 28. In such situation, there is no occasion for this Court to interfere in the findings given by the learned trial Court, which have been affirmed by learned first appellate Court. 29. However, keeping in view the prayer of learned counsel for the plaintiff that he has moved another application under Order 39 Rule 1 and 2 CPC for temporary injunction, copy of which is annexed with the application, as Annexure P7. 29. However, keeping in view the prayer of learned counsel for the plaintiff that he has moved another application under Order 39 Rule 1 and 2 CPC for temporary injunction, copy of which is annexed with the application, as Annexure P7. The learned trial Court is directed to decide the same within the stipulated period as per the code of Civil Procedure, from the date of receipt of the record. 30. In view of the observations made hereinabove, the present petition is dismissed, so also the pending applications, if any. 31. The parties, through their counsel, are directed to appear before learned trial Court on 7.12.2022. 32. Any observations, made herein above, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined only to the disposal of the present petition.