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2024 DIGILAW 209 (JK)

Parshotam Singh Slathia v. Harbans Chand Katoch

2024-04-25

SANJAY DHAR

body2024
JUDGMENT : The petitioner has filed the instant revision against order dated 12.06.2023 passed by the Additional District Judge, Jammu(‘the trial Court’ for short) whereby in the application filed by the/defendant, a direction has been issued to the/plaintiff for removing the gate if the same has been installed in front of the plot of respondent/defendant. A further direction has been issued by the trial Court that in case the gate is not removed, the SHO Police Station, Pacca Danga, Jammu shall go on spot and assist the respondent/defendant in removing the said gate. 2 Heard and considered. 3. It appears that the petitioner/plaintiff has filed a suit against the respondent/defendant before the trial Court seeking possession/ mandatory injunction directing the respondent/defendant to handover the vacant possession of land measuring 3 marlas, 234 sq. feet falling under khasra No.95 min situated at Karan Nagar, Jammu. Compensation in the amount of Rs.3.00 lacs for illegal occupation of the aforesaid land has also been sought. The petitioner/plaintiff has further sought consequential relief of permanent injunction against the respondent/defendant restraining him from changing the nature of the suit land as also of the green strip towards the eastern side of the suit land. 4. Briefly stated, the case of the petitioner/plaintiff before the trial Court is that he has purchased the suit land vide a sale deed dated 28.05.1999, whereas, vide sale deed dated 03.04.1979, the respondent/defendant purchased 10 marlas of land adjacent to the suit land. It has been pleaded that an additional piece of land measuring 3 marlas, 189 sq. feet was purchased by the respondent/defendant vide sale deed dated 09.12.1998 towards the northern side of the plot of petitioner/plaintiff. Thus, according to the petitioner/plaintiff, the respondent/defendant owns land measuring 13 marlas and 189 sq. feet adjacent to the suit land owned by the petitioner/plaintiff. It has been further pleaded that the respondent/defendant dismantled the wall of his plot towards the plot of the petitioner/plaintiff and included the suit land belonging to the petitioner/plaintiff within his land, where-after, he filed a suit for permanent prohibitory injunction against the petitioner/plaintiff before the Court of learned Munsiff (Forest Magistrate), Jammu. It has been pleaded that, towards the eastern side of the suit land, there exists a green strip in the form of slope adjoining to the house of the respondent/defendant. It has been pleaded that, towards the eastern side of the suit land, there exists a green strip in the form of slope adjoining to the house of the respondent/defendant. It has been further submitted that the respondent/defendant is in the process of digging and removing soil from the slope which belongs to Hari Tara Chand Charitable Trust and this is going to cause extensive damage to the residential house of the petitioner/plaintiff as also the suit land. It has been submitted that the respondent/defendant has made several attempts to remove the slope and the green strip to encroach upon the said land. 5. The respondent/defendant in his written statement pleaded that he has not encroached upon any portion of the land belonging to the petitioner/plaintiff. According to the respondent/defendant, it is the petitioner/plaintiff, who has encroached upon 8 to 9 marlas of land. It has been pleaded that it is the petitioner/plaintiff who is trying to encroach upon the green strip in the form of slope towards the eastern side of the plot purchased by the respondent/defendant from one Vijay Kumar. According to the respondent/defendant, neither he, nor the petitioner/plaintiff has any right upon the green strip unless specifically permitted by Hari Tara Chand Charitable Trust. It has been further contended that the petitioner/plaintiff has constructed a house and he has also encroached upon the green strip by raising 20 feet high concrete retention wall.It has been contended that the petitioner/plaintiff has also constructed his kitchen on the said green strip. 6. During the pendency of the suit, an application came to be filed by the respondent/defendant in which it was pleaded that the plot purchased by him on 09.02.1998 has a public lane about 12 feet which also leads to the plot purchased by the petitioner/plaintiff and that the petitioner/plaintiff has installed a gate in front of the plot that was purchased by the respondent/defendant on 09.02.1998, thereby covering the public lane. It was submitted that due to installation of the said gate, access of respondent/defendant to his land has been blocked. 7. The petitioner/plaintiff resisted the application by filing a reply thereto. In his reply, it has been submitted that in order to protect his house, he has installed an iron gate at the entrance of his own residential house which has been constructed on 06 marlas of land purchased by him from Sh. 7. The petitioner/plaintiff resisted the application by filing a reply thereto. In his reply, it has been submitted that in order to protect his house, he has installed an iron gate at the entrance of his own residential house which has been constructed on 06 marlas of land purchased by him from Sh. Swaran Singh and that the said land is not subject matter of dispute. It has been further submitted that the petitioner/plaintiff has installed a gate on his own land which is in existence for the last so many years to which the respondent/defendant did not raise any objection. 8. After hearing the learned counsel for the parties, the learned trial Court allowed the application of respondent/defendant in terms of the impugned order. The relevant portion of the impugned order is reproduced as under: “9. The facts as are visible from the pleadings the plaintiff claims to be the owner of 4 marlas of land but as per sale deed on record he is owner of 3 malras and 234 sq.ft and the defendant who has two sale deed in his favour has every right to enjoy to that property. In view of these facts,I think the case as projected by the plaintiff which has been challenged on the facts by the defendant who has stated that on his plot plaintiff has already raised construction and has nothing to do with any other land. Two plots of land which stand purchased by H.C.Katoch one measures 10 marlas of plot and other 3 malras 189 sq.ft. 10. Inthese facts this application is allowed with direction to the plaintiff to remove the gate if it has been installed in front of the plot of H.C.Katoch which stand purchased by him and in case plaintiff does not remove the gate SHO Police Station Pacca Danga, Jammu shall go on spot and assist the defendant in removing the gate in front of plot of H.C. Katoch as identifiable by the map annexed with the file. A copy of this order shall be given to plaintiff in the first instance and if does not remove the gate installed, the defendant shall approach the SHO Police Station Pacca Danga, Jammu for assistance so that gate installed by the plaintiff can be removed. A copy of this order shall be given to plaintiff in the first instance and if does not remove the gate installed, the defendant shall approach the SHO Police Station Pacca Danga, Jammu for assistance so that gate installed by the plaintiff can be removed. A copy of this order and photocopy of map shall be sent to SHO Police Station Paca Danga for information and compliance” 9. The main contention raised by learned Senior Counsel appearing for the petitioner for assailing the aforesaid order is that no no interim injunction could have been passed against the petitioner/plaintiff as the relief sought by the respondent/defendant does not fall within the parameters of Order 39 Rule 1 (a) of CPC which is the only provision that empowers a civil Court to pass an order of interim injunction in favour of a defendant. It has been contended that it is not the case of the defendant that the property in dispute in the suit was in danger of being wasted, damaged or alienated, therefore, no injunction order could have been passed in favour of the defendant. It has been further contended that even otherwise the relief sought by the defendant was not pertaining to subject matter of the suit, as such, without any counter claim from the defendant, it was not open to the learned trial Court to pass the impugned order in his favour. 10. There can be no dispute to the fact that the relief that was sought by the defendant before the trial Court is not covered under Order 39 Rule 1 (a) of CPC. However, it is a well settled position of law that Order 39 Rule 1 CPC is not the sole repository of the power of the Court to grant injunction. A civil Court can grant an injunction in favour of either party to the suit even in circumstances which are not covered by provisions of Order 39 Rule 1 and 2 of CPC. In this regard, support can be had from the judgment of the Supreme in the case of Manohar Lal Chopra vs Rai Bahader Rao Raja Seth Hiralal, AIR 1962 SC 527 . 11. However, the question arises as to whether an order of interim injunction can be passed in respect of a property which is not subject matter of the suit. 11. However, the question arises as to whether an order of interim injunction can be passed in respect of a property which is not subject matter of the suit. The principles under which a defendant may seek and obtain an order of temporary injunction have been stated in Collison vs Warren, 1901 (1) Ch. 812 wherein it was observed as under: "The question is this -- whether the defendant can move for an injunction against the plaintiff without filing a counter-claim or issuing a writ in a cross-action. In my opinion, he can in some cases, but only in cases where the defendant's claim to relief arises out of the plaintiffs cause of action, or is incidental to it." Buckley, J., also referred to the decision of Davey, L.J., in the same case wherein it is stated thus:-- "In my opinion, it must be relating to or arising out of the relief sought in the action which is before the Court, and that any other injunction cannot properly be granted in the action." The principles stated in the above decision have been followed by this Court and it is only in cases where the defendants' claim to relief arises out of the plaintiffs cause of action or is incidental to it that he can ask for a temporary injunction against the plaintiff”. 12. From the foregoing enunciation of law on the subject, it is clear that the relief sought by a defendant by way of an interim measure has to arise out of the relief sought in the action which is before the Court meaning thereby that it is only in cases where the defendants’ claim to relief arises out of the plaintiff’s cause of action or incidental thereto that he can ask for a temporary injunction against the plaintiff. 13. In light of the aforesaid principles of law, let us now advert to the facts of the instant case. The respondent/defendant, by virtue of his application, has sought a relief against the petitioner/plaintiff that he should remove his gate installed in front of his plot of land which is located adjacent to the plot of land belonging to the petitioner/ plaintiff. The respondent/defendant, by virtue of his application, has sought a relief against the petitioner/plaintiff that he should remove his gate installed in front of his plot of land which is located adjacent to the plot of land belonging to the petitioner/ plaintiff. It is to be noted that the petitioner/ plaintiff claims that some portion of the land, which is in possession of the respondent/defendant, is actually the land which he had purchased by virtue of a sale deed dated 28.05.1999, whereas the respondent/defendant claims that whatever land is in his possession is owned by him by virtue of two sale deeds dated 03.04.1979 and 09.12.1998. It is only during trial of the case that it can be ascertained whether the suit land, which is admittedly in possession of the respondent/defendant, is actually the same land that was purchased by the petitioner/plaintiff in the year 1999. The defendant has claimed that the plaintiff has installed a gate in such a manner that his access to the aforesaid disputed land has been blocked. Thus, the relief sought by the respondent/defendant in his application for removal of gate, is incidental to the plaintiff’s cause of action. Therefore, the learned trial Court possessed jurisdiction to entertain and adjudicate upon the application of the respondent/defendant. 14. However, there is yet another aspect which is required to be noticed. The learned trial Court has passed a very cryptic order without giving any tentative opinion as to whether any gate has been installed by the plaintiff in front of plot of the defendant and if so, when the said gate was installed by him. The order impugned has been passed by the learned trial Court subject to ‘ifs and buts’ by observing that if the gate has been installed in front of plot of the defendant, the same shall be removed by the plaintiff and in case the plaintiff does not remove it, SHO P/S Pacca Danga shall assist the defendant in removing the same. A judicial order cannot be passed subject to ‘ifs and buts’. It was incumbent upon the learned trial Court to first come to a tentative conclusion on the basis of material available on record as to whether the plaintiff has installed a gate in such a manner as to block the passage of defendant to his plot. A judicial order cannot be passed subject to ‘ifs and buts’. It was incumbent upon the learned trial Court to first come to a tentative conclusion on the basis of material available on record as to whether the plaintiff has installed a gate in such a manner as to block the passage of defendant to his plot. It was also incumbent upon the learned trial Court to record a tentative opinion as to whether or not, the defendant had acquiesced in the action of plaintiff’s installation of the gate as the same has been specifically pleaded by the plaintiff in his reply to the application filed by the defendant. Without undertaking such an exercise, the learned trial Court has passed the impugned order which, in fact, is incapable of being executed having regard to the fact that the same is dependant upon determining the position of the gate installed by the plaintiff. The learned trial Court has delegated this task of determining the position of the gate to the police which is legally impermissible. A Court cannot delegate the function of judicial determination of a fact to any other authority.. 15. When a civil Court does not undertake the exercise of analyzing the material on record so as to give a tentative finding about the existence or otherwise of a fact in issue, it leads to many complications, particularly when it comes to implementation of orders passed in such manner. This drives the parties to file contempt petitions and applications for implementation through police. Even the Implementing Agencies feel helpless while complying with such type of court orders. The impugned order passed by the learned trial Court is a classic example of such type of order. It decides less and confuses more. 16. In view of the above, the impugned order passed by the leaned trial Court is not sustainable in law. Accordingly, the instant petition is allowed and the impugned order is set aside. The case is remanded to the trial Court with a direction to hear the parties afresh and thereafter decide the application of the defendant after analyzing the material on record and recording a tentative opinion about the factual aspects indicated hereinbefore.