Punjab-Haryana High Court
Maya Devi And Ors. vs Mehria Gram Dall Mill And Ors. on 28 April, 1987
Equivalent citations: AIR1988P&H176, AIR 1988 PUNJAB AND HARYANA 176, (1987) 2 CURLJ(CCR) 152, (1987) 2 LANDLR 591, 1987 REVLR 342, (1987) 91 PUN LR 647
JUDGMENT
1. This regular second appeal is directed against the judgment and decree dated 21-4-1986 passed by the learned Additional District Judge, Hissar, affirming in appeal the judgment and decree dt/- 21-3-1986 passed by the learned Sub Judge Ist Class, Hissar whereby the suit filed by the plaintiff-respondent No. 1 was decreed ex parte holding that it is entitled to the restoration of possession of the property mentioned in the heading of the plaint and ordering restoration accordingly and further restraining the defendants from dispossessing it from the premises in dispute without following the due course of law.
2. The facts in brief are that respondent No. 1 through its proprietor Harbans Lal Aggrawal filed a suit on 5-6-1981 for permanent injunction restraining defendants Nos. 1 to 5 (who are appellants Nos. 2 to 4 and respondents Nos. 2 and 3 in the present appeal) from taking forcible possession of the Dal Factory including machinery and Dai Plant situated at Balasmand Road Hissar; without due process of law. The boundaries and the location of the factory were described in the plaint which are not in disputes. Respondent No. 1 alleged that it is. in possession, of the factory in dispute as its lessee for a period of 99 years; that an ejectment application was filed against it by appellant No. 2 which was pending in the, Court of the learned Senior Sub Judge, Hissar, and was fixed for 20-8-1983 for the remaining evidence; that the ejectment application was false and frivolous arid was liable to be dismissed; and that appellant No. 2 an account of frustration wanted to dispossess respondent No. 1 forcibly and without due process of law. For this purpose, he had agreed to sell the factory to appellants Nos. 3 and 4 and respondents Nos. 2 and 3 who, being forceful persons, would riot care for the law of the land and there is apprehension that respondent No. 1 may be dispossessed. It was Further alleged that appellant No. 3 came to respondent No. 1 a day earlier arid required it to vacate the premises within. a week or else the same would be got vacated by force. It was alleged that the aforesaid defendants had no right to dispossess respondent No. 1 by force. Along with the suit, an application for grant of a temporary injunction restraining the defendants from dispossessing plaintiff-respondent No. 1 from the factory was also filed. Notice of the suit was issued to the defendants and vide order dated 5-6-1981 they were restrained from forcibly dispossessing respondent No. 1 and were required to show cause why the said interim injunction be not made absolute. Defendants Nos. 1 to 5 put in appearance through their counsel Shri M.R Aggrawal. Written statement dt./- 21-10-1981 was filed on behalf of respondents Ns. 2 to 5 who pleaded that the factory had been purchased by Smt. Maya Devi vide sale deed dt. 19-6-1981 and she had leased out the premises to M/s. Siri Sham Cotton Factory which is in possession of the factory in dispute at the spot. They pleaded that the suit against them had been filed with an ulterior motive. Ram Kumar defendant No. 1, however, did not file his written statement. Respondent No. 1 moved an application under O. I, R. 10, Civil P. C. stating therein that since the property had been sold by defendant No. I to Smt. Maya Devi vide registered sale deed dt./- 19-6-1981 and she is interfering with its possession, she may be impleaded in the suit as defendant No. 6. This application was allowed and amended plaint was filed. Notice was issued to Smt. Maya Devi defendant No. 6, who filed her written statement dt./- 30-11-1982 through her counsel Shri O.P. Jain Advocate. To the specific averment in the plaint the respondent No. I was in possession of the factory as a lessee, her reply :n Para. 3 of the written statement is that of bare denial. She stated that the factory and the building in dispute were purchased by her vide sale deed dt/- 19-6-1981 and thereafter she leased it out to M/s. Siri Sham Cotton Factory and the said lessee is in actual possession on the spot. It was alleged that since respondent was not in possession of the factory in dispute, it had no cause of action against her. It is to be noted that defendants Nos. 2 to 5 in spite of having filed their written statement did not file their reply to the application for temporary injunction. However, Jai Narain defendant No. 3(respondent No. 2 in the present appeal made an application dt/- 7-8-1981 for vacation of the ad interim injunction stating that respondent No. 1 had not come to the Court with clean hands, that it was occupying the premises in question as a statutory tenant under defendant No. 1, that the tenancy was up to 31-3-1979, that respondent No. 1 had not paid the arrears of rent for over two and a I half years, that till it deposits the rent it is not entitled to any injunction, that the premises in question along with the machinery etc. were put on fire by respondent No. 1 on 6/7-1-1979 and had caused huge loss to defendant, No. 1. It was alleged that under the cover of ad interim injunction respondent No. l wanted to remove and sell the machinery of the factory. Its proprietor Harbans Lal Aggrawal had already removed a 30 H.P. motor and a case under S. 406, I.P.C. had been registered against him. However, a perusal of the file shows that no stage the ad interim injunction dt./- 5-6-1981 was ever vacated by the trial Court.
3. On the pleadings of the parties, the learned trial Court framed the following issues :
1. Whether the plaintiff is entitled to the relief of injunction prayed for ? OPP
2. Whether defendants violated order dt./- 5-6-1981 ? If so, to what effect ? OPP
3. Whether the suit is maintainable in the present form ? OPD
4. Whether the plaintiff has got no locus standi to file the present suit.? OPD
5. Whether the plaintiff is estopped by his own act and said conduct ? OPD
6. Relief.
4. It is to be noted that respondent No. 1 moved an application dt./- 4-8-1983 under Order VIII, Rule 10 read with S. 151 of the C.P.C. (for short 'the Code') for ordering defendant No. 1 for filing written statement in the case or in the alternative passing a decree against him. This application came up for consideration before the learned trial Court on 4-8-1983 and defendant No. 1 was directed to file his written statement on 20-8-1983. Costs of Rs 15/- were also imposed on him. On 20-8-1983, however. Sh. M.P. Aggrawal Advocate made a statement before the Court which was to the effect that he had no instruction from defendant No. 1 to appear on his behalf and since none was present on behalf of defendant No. 1 he was proceeded against ex parte. The order dt./- 20-8-1983 further shows the presence of the counsel for the parties recorded as under :--
"Shri S.L. Sardana counsel for the plaintiff. Shri M.P. Aggarwal counsel for defendants ;Nos. 2 to 5. Shri O.P. Jain counsel for defendant No. 6."
5. On 30-1-1986 during the course of trial of the suit the learned trial Court passed the following order :--
"Present Shri S.K. Sardana Advocate for the plaintiff.
"Shri M.P. Aggarwal appeared and recorded his statement by which he pleaded 'no instruction'. Case called many times since morning, but nobody appeared on behalf of defendants. Defendant No. 1 had already (been proceeded against) ex parte on 20-8-83. Hence defendants No. 2 to 6 are hereby proceeded against ex parte. Let the statement of the plaintiff be recorded."
6. It appears that at this stage Mr. M.P. Aggrawal Advocate who was appearing for defendants Nos. 2 to 5 pleaded. 'no instructions' while no counsel put' in appearance on behalf of Smt. Maya Devi defendant No. 6(who is appellant No. I in the present appeal). After recording the remaining evidence of the plaintiff, ex parte judgment and decree aforesaid were passed by the trial Court on 21-3-1986. As already mentioned an appeal against the same was dismissed by the learned Additional District Judge vide judgment and decree which are the subject-matter of the present appeal.
7. I have heard the learned counsel for the patties. The learned counsel for the appellants has raised the following contentions, before me :--
1. That the appellants were wrongly proceeded against ex parte. If the counsel pleaded 'no instructions', the trial Court ought to have issued notice to the appellants.
2. That the suit filed by respondent No. 1 was for permanent prohibitory injunction restraining the defendants from dispossessing it. The Courts below, on the other hand, have ordered restoration of possession of the premises in dispute to respondent No. 1 and in addition restrained the appellants and defendant-respondents Nos. 2 and 3 from dispossessing it from the Nos. 2 and 3 from dispossessing it from the remises. The relief for the restoration of possession granted by the learned Courts below is beyond the scope of the suit filed by respondent No. 1. It was necessary for it to amend the plaint and seek such a relief. Notice of such amended plaint was required to be served on the defendants who had been proceeded against ex parte so that they could be apprised of the fact that their interests was going to be harmed if they did not come forward to contest the suit.
3. Smt Maya Devi appellant No. 1 who purchased the property from Ram Kumar appellant No. 2 had leased out the same to, M/s. Siri Sham Cotton Factory. An amount of Rs. 2,50,000/- had been spent on installation of machinery, renovation of the burnt factory and bringing to order the disused factory components. The decree ordering restoration of possession of the factory in dispute passed by the learned Courts below does not take into account all these facts. If in compliance with the decree, the appellant No. 1 is made to restore the factory back to respondent No. 1 huge financial loss would be caused to her and to the lessees from her. This would be complete denial of justice to them.
8. To buttress his above submissions, the learned counsel for the appellants moved C.M. No. 2339-C of 1986 under O. XLI, R. 27, read with S. 151 of the Code for allowing the appellants to produce additional evidence to the effect that new machinery had been installed, repairs had been carried out and loan to the tune of Rs. 1,50,000/- had been raised from the Haryana Financial Corporation for setting up the machinery and the plant and further to prove that the present market value of the land, building, machinery, plant etc. would not be less than rupees seven lacs as the prices have risen very high. C.M. No. 2338-C of 1986 was also filed seeking dispensing with the requirement of filing a certified copy of Annexure 'A' to C.M. No. 2339-C of 1986. C.M. No. 2340-C of 1986 was filed under O. XXVII, Rr. 9 and 10 read with S. 151 of the Code for appointment of a Local Commissioner to visit the Dal Plant (the property in dispute) and prepare an inventory of the machinery and the plant installed there.
9. The first submission on behalf of the appellants, in my view, is not tenable. Ex parte proceedings against defendants No. 1 to 6 were taken by the trial Court virtually in three phases, which can be detailed thus. When Ram Kumar defendant No. 1(appellant No. 2 herein) did not file any written statement on an application filed by respondent No. 1 the trial Court issued a notice to his counsel requiring him to file the same. On 20-3-1983 when compliance with that notice was to be made and written statement was to be filed, his counsel Shri M.P. Aggrawal pleaded 'no instructions' on his behalf. No one else was present on his behalf. Therefore, he was proceeded against ex parte. It is to be noted that under R. 10 of O. VIII of the Code, where any party from wham a written statement is required under R. 1 or 9 thereof fails to present the same within the time permitted an fixed by the Court the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. In the situation obtaining on 20-8-1983 the trial Court had no option but to proceed against Rami Kumar defendant No. 1 ex parte. It is further to be noted that after 20-8-1983 the proceedings in the suit continued till 10-3-1986 and the hearing of the case took place on numerous dates. Ram Kumar defendant dad not take any step whatsoever to have the ex parte proceedings against him set aside. It appears that he rest content with the order dt./- 20-8-1983 till the decree dt./- 21-3-1986 was passed by the trial Court. There can he no reason whatsoever for setting aside the ex parte proceedings or the ultimate ex parte decree passed by the trial Court against him Again, on 30-1-1986 Shri M.P. Aggarwal Advocate pleaded 'no instructions' on behalf of defendants Nos. 2 to 5 who, as is apparent from the proceedings dt./- 20-8-1983 reproduced above, were being represented by Shri Aggarwal. In such a situation, when nobody was appearing on behalf of these defendants the trial Court rightly proceeded against them ex parte. The third phase is the ex parte proceedings taken against defendant No. 6 Smt. Maya Devi who is appellant No. 1 herein. It is interesting to note that she filed her written statement in Court through Shri O.P. Jain Advocate and she was being represented by Shri Jain in the proceedings in the trial Court all along. However, on 30-1-1986, for reasons best known to Mr. O.P. Jain Advocate which are not clear from the record, he did not put in appearance an her behalf. The learned trial Court, therefore,. took ex parte proceedings against her also. The learned counsel for the appellants invited my attention to a Vakalatnama at page 87 on the file and submits that Shri M.P. Aggarwal was the Advocate on behalf of Smt. Maya Devi appellant No. 1 also. Therefore, since he was present in Court on 30-1-1986 she was fully represented. I cannot persuade myself to agree with this submission for the reason that while making his statement Shri M.P. Aggarwal did not mention for which of the defendants he was pleading 'no instructions'. He simply pleaded 'no instructions'. The Court called the case many a time since morning but nobody appeared on behalf of any of the defendants. Hence, defendants Nos. 2 to 6 were proceeded against ex parte. This makes it clear that after pleading 'no instruction' on behalf of the defendants whom Shri M.P. Aggarwal was representing, he left it to the Court to proceed with the case in accordance with law. He did not state that he had instructions on behalf of Smt. Maya Devi appellant or that he was appearing. on her behalf. As already noted, Shri O.P. Jain Advocate was appearing on her behalf on the previous hearing and in fact she filed her written statement through Shri Jain. No doubt the Vakalatnama at page 86 of the trial Court, file purports to have been signed by Smt. Maya Devi and Ram Kumar in favour of Shri M.P. Aggarwal Advocate, but there are some conspicuous features of this Vakalatnama which requires to be noticed. The court-fee stamp on this Vakalatnama is dt./- 24-7-1981. By that date Smt. Maya Devi was not even a party to the suit. Further the heading of the Vakalatnama shows that Shri M. P. Aggarwal Advocate had filed the same on behalf of defendant No. 1 i.e. Ram Kumar. It is not clear on what date this Vakalatnama was filed in Court. Most of the documents placed on the file contain on their reverse an endorsement with a date of their filing in Court. There is no such endorsement on the two Vakalatnamas filed by Shri M.P. Aggarwal Advocate appearing at pages 85 and 87. Strangely enough, however, the Vakalatnama executed by Smt. Maya Devi in favour of Shri O.P. Jain Advocate through whom she filed her written statement in Court is not on the record of the trial Court Another interesting feature to. note is that the Vakalatnama at page 85 of the file executed m favour of Shri M. P. Aggarwal Advocate contains the signatures of Ram Kumar defendant also. This Vakalatnama bears the court-fee stamp dt./- 7-8-1981. It is thus, not possible to comprehend in what circumstances Ram Kumar signed another Vakalatnama in favour of Shri M.P. Aggarwal which is at page 87 and which also contains the signatures of Smt. Maya Devi. From all these features of the aforesaid Vakalatnama a reasonable doubt can be entertained about its genuineness and the fact that it was actually filed in Court on 29-7-1981 or a few days later. After 30-1-1986 on which date defendants Nos. 2 to 6 were proceeded against ex parte in the circumstances mentioned above. They did not move any application for setting aside the ex parte proceedings against them. In fact, after the said date the case was fixed for hearing on 31-1-1986, 26-2-1986, 28-2-1986, 4-3-1986 and lastly on 10-3-1986. These defendants had enough opportunity to approach the Court with an application to set aside the ex parte proceedings. In fact, it appears that neither the trial Court was in a hurry to pass an ex parte decree nor the counsel for respondent No. 1 had any eagerness to secure such a decree.
10. In fact it is candidly admitted that after the ex parte decree dt./- 21-3-1986 no application under O. IX, R. 13 of the Code was moved by any of the defendants before the trial Court for setting aside the same. Sub-section (2) of the S. 96 no doubt provides for an appeal against an ex parte decree but in such an appeal an error, defect or irregularity which has affected the decision of the case can be challenged. Such an appeal cannot be converted into proceedings for setting aside the ex parte decree. The Code prescribes the remedy for the setting aside of the ex parte decree under O. IX, R. 13 and when a plea under the said provision fails an appeal is specifically provided under Clause (d). of R. 1 of O. XLIII of the Code against an order of the trial Court refusing to set aside the ex parte decree. It is by now well settled that when a particular remedy is provided for setting aside an ex parte decree and there is by way of appeal, another special remedy against an order refusing to set aside such a decree, these remedies alone and none other can be taken resort to. Therefore; when these remedies have not been availed of in an appeal under S. 96(2) or in the second appeal under S. 100 of the Code no ground can be entertained that the ex parte proceedings were wrongly taken against the appellant which resulted in passing of the ex parte decree. A similar view was taken by a Division Bench in Nagar Palika Nigam, Gwalior v. Motilal Munnalal, AIR 1977 Madh Pra 182. Therefore, both on facts and law I find no substance in the submission of the learned counsel for the appellants that the order proceeding ex parte against them was not lawful a that the ex parte decree against them was wrongly passed. I, therefore, reject this contention.
11. Now coming to the second submission of the learned counsel for the appellants, it is necessary to take note of certain undisputed facts which have come on the record Ram Kumar appellant No. 2 was the owner of the Dal Mill in dispute. He alleged that he had leased out the said factory to respondent No. 1 for about 10 months only, i.e. from 18-5-1978 to 31-3-1979, but on the expiry of the said lease period respondent No. 1 continued running the said factory and remained in its possession unauthorisedly. He filed a suit on 8-2-1979, inter alia, claiming a decree for mandatory and prohibitory injunction in which the learned Senior Sub Judge, Hissar, passed an order dated I I-3-1980, a certified copy of which is Ex. P-5, to the effect that the statements of the parties had been recorded, respondent No. 1 had undertaken not to remove or damage any machinery of the factory in question as per the report of the Local Commissioner. Thus, a decree for prohibitory injunction was passed restraining respondent No. 1 from removing or damaging the machinery etc. of the factory but it was held that it is entitled to the possession of the premises. Thereafter Ram Kumar appellant i filed an application dated 16-3-1979 Ex. P 2 under S. 13 of the Haryana Urban Control of Rent and Eviction Act, 1973, for ejectment of respondent No. 1 from the. factory in dispute in the Court of the Rent Controller, Hissar. Therein he alleged that the factory was leased out to respondent No. 1 for six months only i.e. 1-10-1978 to 31-3-1979, but during the night between 6th and 7th of Jan., 1979, respondent No. 1 so as to avoid his liability under Sales Tax Act and Income tax Act put the said factory on fire and that the factory is now unfit and unsafe for human habitation. Respondent No. 1 filed a reply dt./- 5-4-1980 Ex. P 3 to the said application. He claimed therein that he had taken the factory on lease for a period of 99 years. While denying the allegations made in the application, he asserted that the cause of fire in the factory was vis major, and it had suffered a loss of Rs. 75,000/- on that count. It asserted its possession and denied that it was liable to ejectment. When the proceedings before the Rent Controller were pending Smt. Maya Devi appellant No. 1 moved an application dt./- 18-9-1981 Ex. P 1. She stated that vide registered sale deed dated 19-6-1981 executed by Ram Kumar appellant in respect of the premises in dispute she had become the owner of the same. She, therefore, had got the right to be added as a petitioner and to continue with the eviction application made originally by Ram Kumar defendant. She also filed. a photostat copy of the registered sale deed along with that application. On 24-4-1982. however, the Rent Controller dismissed the eviction application vide order Ex. P 4 as no one appeared on behalf of the landlord petitioner. The case was called many times since morning and it was ultimately dismissed in default under O. IX, R. 8, of the Code and the file was directed to be consigned to the record room. It is also necessary to make a reference to the sale deed dt./- 19-6-1981 executed by Ram Kumar in favour of Smt. Maya Devi, certified copy of which is Ex. P 6 on the record. There is a specific mention in the sale deed that the said Dal Mill had been given on lease to respondent No. 1 in the year 1978-79 for a limited period but respondent No. 1 committed breach of its commitment and did not deliver back the possession to Ram Kumar vendor. Reference to the documents Exs. P 1 to P 6 leaves no scope for doubt that on 5-8-1981 what ex parte ad interim injunction was granted by the trial Court restraining the defendants from dispossessing respondent No. 1 except in due course of law, respondent No. 1 was very much in possession of the said factory. This ad interim injunction was never vacated by the trial Court at any stage. Respondent No. 1 moved an application before the trial Court on 1-10-1981 stating therein that the defendants entered the factory premises forcibly along with many others armed with deadly weapons on 28-9-1981. They broke the wall and took away the material in a truck. He thus prayed that contempt proceedings against the defendants should i be initiated. The trial Court issued notice of this application to Mr. M.P. Aggarwal Advocate, counsel for the defendants, for 2-10-1981. No reply to the application was filed on that date and the case was adjourned to 21-10-1981, 10-11-1981, 23-3-1982 etc. Reply to this application appears to have been filed by defendants Nos. 1 to b on 6-1-1982 wherein it is stated that plaintiff-respondent No. 1 is not in possession of the building in dispute as a lessee. Its lease had since expired and M/s: Siri Sham Cotton Factory were in its possession as a lessee under Smt. Maya Devi. It was stated that respondent No. 1 had got ad interim injunction by misrepresentation and misstatement of facts. It was not in, possession of the factory on the date of filing of the suit. Thus, the allegations contained in the application of respondent No. 1 were controverted. It is noteworthy that Smt. Maya Devi the vendee from Ram Kumar appellant, was keen to continue with the ejectment application filed against respondent No. 1 in the Court of the Rent Controller and had moved an application Ex. P 1 on 18-9-1981 for being brought on record as landlord petitioner. This very fact makes it evident that at least till 18-9-1981 respondent No. 1 was in possession of the factory in dispute. Therefore, his allegations in the application filed on 1-10-1981 that the defendants had forcibly entered the premises in dispute on 28-9-1981 appears to have credibility. The learned Courts below have rightly come to the conclusion that respondent No. 1 was in possession of the premises in dispute on the date of the filing of the suit and that it was dispossessed forcibly during its pendency in violation of the ad interim injunction order dt./- 5-8-1981.
12. In the context of these established facts, it is to be seen whether the Courts below acted within their jurisdiction ordering the appellants and respondents Nos. 2 and 3 to restore back the possession of the factory in dispute to respondent No. 1 through the decree under appeal. The learned counsel for the appellants first of all placed reliance on Mohd Sultan Wani v. Qasim Ali, AIR 1977 J & K 21, and contended that even where a plaintiff in a suit for permanent injunction is dispossessed by the defendant during the pendency of the suit the Court has no power under O. VII, R. 7 of the Code to grant relief of possession to the plaintiff without notice to the defendant and without asking the plaintiff to amend the plaint. He submitted that the scope of O. VII, R. 7 of the Cede is limited to the grant of ancillary relief in addition to the relief claimed in the plaint and not grant of a relief quite in consistent with the case originally set up by the plaintiff. He then contended that when respondent No. 1 was required to amend the plaint to claim relief of restoration of possession, it was enjoined on the trial Court to issue notice of such an amended plaint or of the proposed amendment so that the appellants could have an opportunity to agitate against the same. He placed reliance on Jharkhand Mines and Industries Ltd. v. Nand Kishore Prasad, AIR 1969 Patna 228 to buttress this argument. Lastly, he sought to seek support from Puran Chand Sant Lal v. Nitya Nand, AIR 1958 Punjab 460 to canvass the argument that in a suit for prohibitory injunction restraining the defendant from making construction on a joint site a decree for mandatory injunction cannot be granted without amendment of the plaint.
13. I have considered these submissions but find no force in them. Here is a glaring, case of violation of the ad interim injunction of the trial Court. It is established as a fact on the record that when the injunction was granted respondent No. 1 was very much in possession of the factory in dispute. One of the defendants who is now respondent No. 2 in this appeal had even sought vacation of the ad interim injunction through his application dt/- 1-8-1981. He admitted therein that respondent No. 1 was in occupation of the factory as a statutory tenant but pleaded that its term of tenancy was up to 31-3-1979. It had not paid the arrears of rent for two and a half years and was, therefore, not entitled to the relief of ad interim injunction. Thus, it appears that being fully conscious of the interim injunction granted by the trial Court the defendants took the law into their own hands and dispossessed respondent No. 1 from the premises in dispute. Not only that they had the temerity to violate the Court injunction, they later felt cozy and chose not to participate in the proceedings of the suit at its later stages as if having taken the law into their own hands and having secured possession of the premises their possession was beyond the reach of law. Such situation cannot be countenanced by law and it is the duty of the Court to compel the offending, party to make reparation and restore the injured party to the position in which it would have been but for the violation of the injunction order. I find support for this view from Mehar Chand v. Milkhi Ram, AIR 1932 Lahore 401(FB), Magna v. Rustam, AIR 1963. Raj 3, Bhim Singh v. Ratnakar Singh, AIR 1971 Orissa 198, Hari Nandan Agarwal v. S.N. Pandita, AIR 1975 All 48, and Satish Chandra Maity v. Smt. Saila Bala Dassi, AIR 1978 Cal 499.
14. It has been held by the final Court in Pasupuleti Venkateswarlu v. Motor & General Traders, AIR 1975. SC 1409, that for making the right or remedy claimed by the party just and meaningful as also legally and factually, in accord with the current realities, the Court, can, and in many cases must take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. The same rule has, been followed in Rameshwar v. Jot Ram, AIR 1976 SC 49, wherein it has been observed that it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts then he is entitled to its enforcement. Later developments cannot defeat his right. The Court's procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action. The Courts, can, however, take note of subsequent events and mould the relief accordingly but this can be done only in exceptional circumstances. I find that the subsequent development in the form of dispossession of respondent No. 1 from the premises in dispute was of the making of defendants themselves. Therefore, they could not ask for any opportunity before the wrong done by them to respondent No. 1 was undone by the Court vide decree under appeal particularly when they chose not to participate in the proceedings of the suit and allowed themselves to be proceeded against ex parte. In the present case the defendants not only took the law into their own hands but consciously violated the ad interim injunction order of the Court when they dispossessed respondent No. 1. Neither the law nor the Courts are helpless in affording effective and real relief to the aggrieved party. It was, therefore, in my view, an exceptional case contemplated by the final Court in Rameshwar's case (supra) where the relief was rightly molded by the Courts below to require the defendants to restore back the possession to respondent No. 1. It was not necessary in the circumstances for respondent No. l to seek amendment of the plaint for modification of the relief because of the above mentioned subsequent developments. The Courts below rightly exercised their powers and the relief granted is well within their jurisdiction.
15. Now coming to the last contention raised by the learned counsel for the appellants, he has stated that after Smt. Maya, Devi appellant took possession of the premises, the burnt factory was renovated The present occupants, i. e. M/s. Raj Kumar Sanjay Kumar took a loan of Rs. 1,65,000/- from the Haryana Financial Corporation, invested money from their own sources also, purchased and installed new machinery as per the list attached with C.M. No. 2339-C of 1986, Annexure 'A' to C.M. No. 2340-C of 1986 is a true copy of the certificate dated 15-5-1986 issued by the Branch Manager, Haryana Financial Corporation evidencing the sanction of loan accorded to the present occupants to the tune of Rs. 1,80,000/- and actual advancement of loan to the tune of Rs. 1,65,000/- . The purpose for which the loan was given is setting up of a Dal Mill on the premises in dispute. It has been certified therein that the said party has set up the Dal Mill with the help of the above amount, the loan has not been repaid so far fully and the amount outstanding is Rs. 1,35,958.76 with further interest from 1-12-85 at the rate of 18% per annum. It has further been averred in these applications that the present value of the plant, machinery and the premises is to the tune of rupees seven lacs. It is, thus, submitted that ii would be altogether inequitable if the appellants are made to restore, possession of the premises to respondent No. 1 in compliance with the decree under appeal. This submission, in my view, is of no avail. The investment made on the premises in dispute is undisputedly after respondent No. 1 was dispossessed of the premises in dispute in violation of the injunction order. No specific date has been mentioned when the loan was sanctioned by the Haryana Financial Corporation and when the machinery has been actually purchased and installed and renovation of the premises carried out but it is clear that all these developments on the premises in dispute have been carried out after respondent No. 1 was dispossessed therefrom. The appellants cannot raise the plea of equity when they themselves acted in deliberate violation of the injunction order of the court. To allow them to retain possession of the premises on the ground that they have made the above said improvements thereon would amount to putting premium on lawlessness. When the appellants violated the injunction order by dispossessing respondent No. 1 they ought to have been aware of the consequences which would follow. Disobedience of the order of injunction provides the foundation for punishment and not the bass for a claim. The appellants cannot take shelter behind their own wrong which has been further accentuated by changes in the form of improvements on the premises made by them. Respondent No. 1 cannot be deprived of his right to restoration of possession of the premises in dispute. While taking this view, I take support from a Full Bench judgment of the Kerala High Court in Kanakku Kumara Pillai Thanu Pillai v. Mathevan Mathevan of Aravamkadu Karakkattu Madatu Veedu, AIR 1963 Kerala 179. In view of the decisions that I have arrived at, I do not find any substance in C.M. Nos. 2338-C, 2339-C and 2340-C of 1986 which are dismissed.
16. As a result of the above discussion, the appeal is dismissed with costs.
17. Appeal dismissed.