Himachal Pradesh High Court
Ashwani Kumar And Ors. vs Lachi Ram And Ors. on 1 July, 2002
Equivalent citations: AIR2003HP28
Author: M.R. Verma
Bench: M.R. Verma
ORDER M.R. Verma, J.
1. This revision petition under Section 115 of the Code of Civil Procedure is directed against the order dated 5-7-2001 passed by the learned District Judge, Sirmaur at Nahan in Civil Miscellaneous Appeal No. 8-CMA/14 of 2001 thereby affirming the order dated 14-2-2001 passed by the learned Sub Judge, I-Class (i), Paonta Sahib whereby an interim restraint order and temporary mandatory injunction have been passed in favour of the respondents.
2. Brief facts leading to the presentation of this petition are that the respondents/ plaintiffs (hereafter referred to as 'the plaintiffs') instituted a suit against the petitioners/defendants (hereafter referred to as 'the defendants') for declaration that the plaintiffs are entitled to use eleven feet wide path existing in Khasra No. 61, Khata Khatauni No. 78 min/140 min, situate in village Arnarkot, Tehsil Paonta Sahib for ingress to and outgress from their house built on Khasra No. 61 and for taking water from a well situate near the houses of the plaintiffs and the defendants by way of easementary right with consequential relief of permanent prohibitory injunction restraining the defendants from causing any obstruction in the said path. The case of the plaintiffs, as made out in the plaint, is that the said path has been in their use since last three generations for more than 200 years as a matter of right and the defendants have no right to obstruct the same. However, the defendants threatened to close the path completely and started stacking stones, vehicles, tractors etc. on the path so that the plaintiffs could not pass through it. Hence, the suit.
3. Along with the suit an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure was also moved by the plaintiffs praying for grant of temporary injunction restraining the defendants from causing any obstruction in the path in suit.
4. The defendants contested the suit as well as the application. In their written statement the defendants raised preliminary objections that the suit was not legally maintainable as the plaintiffs have no locus standi or cause of action to maintain the suit and that the plaintiffs have suppressed the material facts and have not come to the Court with clean hands. On merits, the existence of any path, as claimed by the plaintiffs, has been denied and the claim of the plaintiffs has been refuted.
5. The defendants filed reply to the application under Order 39. Rules 1 and 2 of the Code of Civil Procedure and resisted the application on the grounds as taken in the written statement.
6. During the pendency of the suit, the plaintiffs filed another application under Order 39, Rules 1 & 2 read with Section 151 of the Code of Civil Procedure for grant of temporary mandatory injunction for demolition of the wall raised by the defendants on the path in suit on the grounds that taking undue advantage of the Dussehra Holidays, the defendants raised the wall with a view to block the path in suit and have raised the well upto the height of two three feet thereby preventing the plaintiffs from using the path in suit.
7. This application was also resisted by the defendants on the grounds that the plaintiffs are claiming ownership as well as easement over the same land, therefore, the plea are mutually destructive, that the plaintiffs have not come to the Court with clean hands and that no path ever existed as alleged. The raising of the wall during Dussehra Holidays has also been denied.
8. After the filing of the application for grant of temporary mandatory injunction by the plaintiffs, the learned trial Judge appointed a Local Commissioner to visit the spot and submit the report.
9. After receipt of such report and on hearing the parties, the learned trial Judge, on the basis of the material on record, allowed both the applications vide order dated 14-2-2001 and restrained the defendants from blocking the path in suit and further directed the defendants to remove the obstruction caused by them by way of raising a boundary wall on the spot.
10. Being aggrieved, the defendants preferred an appeal in the Court of the learned District Judge, Sirmaur at Nahan which was dismissed. Hence, the present petition.
11. I have heard the learned counsel for the parties and have also gone through the records.
12. It was contended by the learned counsel for the petitioners that the suit of the plaintiff is for declaration and permanent prohibitory injunction. There is no prayer in the suit for demolition of the boundary wall. Therefore, by an interlocutory order, the order regarding demolition of the wall could not have been passed as the relief thereby allowed is beyond the scope of the suit. To substantiate his contention, learned counsel had relied on Sree Jain Swetamber Terapanthi Vid(s) v. Phudan Singh (1999) 2 SCC 377 : (AIR 1999 SC 2322) and tiurcharan Singh v. District/Chief Agricultural Officer, Jallander (1996) 114 Pun LR 573 : (1997 AIHC 1605).
13. On the other hand, the learned counsel for the respondent had contended that the brick wall in question was raised by the defendants during the pendency of the suit and after the ad-interim injunction restraining the defendant from obstructing the path in suit was granted by the trial Court vide its order dated 26-10-1999. Therefore, the temporary injunction in mandatory form could be issued to restore the path to the position in which it existed at the time of passing of the restraint order. To support his contention, learned counsel for the respondent has relied on Century Floor Mills Ltd. v. Suppiah, AIR 1975 madras 279, Sujit Pal v. Prabir Kumar Sun, AIR 1986 Calcutta 220 and Delhi Development Authority v. Skipper Construction Co. (P) Ltd. (1996) 4 SCC 622 : (AIR 1996 SC 2005).
14. There is no dispute that the suit was instituted on 15-10-1999 and an application under Order 39, Rules 1 & 2, CPC was also moved by the plaintiff on the same day praying for grant of temporary injunction restraining the defendants from causing any obstruction on the path in suit. On 26-10-1999, ad interim ex-parte injunction restraining the defendants from causing any obstruction to the path in suit was issued and was served on the defendants on 28-10-1999. The defendants were further required to show cause on 3-11-1999 as to why the said ad-interim ex-parte order be not made absolute till the disposal of the suit. Defendants filed reply dated 2-12-1999 to the show cause notice. In the said reply, they did not aver that there is any boundary wall in existence on the spot. Even in their initial written statement, they did not raise the plea regarding existence of any boundary wall. In the meanwhile, the plaintiff filed another application on 25-10-1999 alleging therein that during Dussehra holidays, defendants started raising a wall in order to block the path in suit and that they be directed to demolish the wall. Thus, according to the plaintiff, the wall in question was raised after the institution of the suit and passing of the ad-interim temporary injunction restraining them from obstructing the path in suit. The defendants filed reply to this application wherein they did not take the plea that said boundary wall had been raised before the institution of the suit or the passing of the restraint order. On the contrary, they pleaded that they did not build any wall as alleged. On this application, the trial Court appointed a local commissioner in the presence of the parties vide its order dated 17-2-2000. It was after the said order appointing the local commissioner calling the report about the spot position that the defendants moved an application for amendment of their written statement on 29-2-2000 to add additional plea in the written statement that the brick boundary wall had been constructed by them more than 5 years ago. The amendment has been allowed by the trial Court.
15. As per the report of the Local Commissioner dated 7-3-2000, the wall in dispute was not more than 6 months old, and the construction material was found on the spot even at the time of his visit to the spot. On the basis of the material on record, the trial Court came to the conclusion that it was during the pendency of the suit and after grant of ad-interim injunction by it that the wall was raised by the defendants in disregard of the order. Therefore, to "restore the things that existed at the time of filing the suit, will not tantamount to a decree in the suit" and accordingly granted the temporary mandatory injunction. These findings of the trial Court have been concurred with by the appellate Court.
16. It is a question of fact as to whether the wall in question has been raised before or after the passing of the restraint order and the findings recorded by the Courts below in this regard that the wall has been constructed during the pendency of the suit and in disregard of the ad-interim temporary injunction granted by the Court, cannot be interfered with, more so, when such conclusion is prima facie supported by the material on record. It is pertinent to mention here that the plea that the wall in dispute has been constructed more than 5 years before, had not been taken by the defendants in their original written statement and in the replies filed to the applications under Order 39, Rules 1 & 2. CPC. In fact, they moved for the amendment of the written statement to add this plea only after the local Commissioner had been appointed to visit the spot and give report about the spot position. Allowing the amendment of the written statement to include the aforesaid plea therein does not mean that the alleged existence of the wall for the last more than 5 years is a fact proved. On the contrary, prima facie the plea which has been taken at a belated stage and was not earlier raised despite occasions to raise it. appears to be an after thought. This view is prima facie strengthened by the fact that at the time of filing of the initial written statement, the defendants filed a few documents therewith. One of such documents in Aks tatima and filed book. In the Aks Tatima, the spot position has been indicated by red lines. However, this tatima which is filed and relied by the defendants themselves does not show existence of any wall on the spot. In these circumstances, the concurrent findings of the Courts below for the purpose of disposal of the application under Order 39, Rules 1 & 2 CPC, that the wall in question has been raised after issue of the temporary injunction do not call for any interference in exercise of the revisional powers of this Court.
17. The authorities cited by the learned counsel for the petitioner need not be referred to herein in detail for the reason that it is well settled that in adversial litigation, the relief has to be granted to the parties based on their pleadings and no relief should be granted in interlocutory proceedings beyond the scope of the suit. However, this principle will apply only to such a cause of action and relief which could be pleaded and claimed at the time of institution of the suit. If after the grant of temporary injunction by the Court, a pasty brings about any change in the subject-matter of the suit in disregard of the orders of the Court, it is within the powers of the Court to restore the things to the position where they stood immediately before the grant of the ad-interim injunction.
18. In Century Floor Mills case (supra), a Full Bench of the Madras High Court, held as follows (at page 272) :
"In our opinion, the inherent powers of this Court under Section 151, CPC are wide and are not subject to any limitation. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. In our view, the inherent power will not only he available in such a case, but it is bound to be exercised in that manner in the interests of justice. Even apart from Section 151, we should observe that as a matter of judicial policy, the Court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the Court's orders. But in this case it is not necessary to go to that extent as we hold that the power is available under Section 151, CPC."
19. In Sujit Pal's case (supra), the plaintiff therein had filed a suit for declaration of his tenancy and for permanent injunction restraining the defendants from interfering with his possession of the premises. An interim injunction was granted restraining the defendants from interfering with the possession of the plaintiff. Defendants forcibly dispossessed the plaintiff and took possession of the premises in violation of the interim injunction. Against this background, a Division Bench of the Calcutta High Court held as under (at page 223) :--
"11. Thus it is apparent from the said observation of the Supreme Court that no technicality can prevent the Court from doing justice in exercise of its inherent power. Order 39, Rule 2-A lays down a punitive measure for the purpose of compelling a party to comply with the order of injunction. The process as contemplated by the said provision may or may not be ultimately effective but, in any event, the procedure laid down in Order 39, Rule 2-A is incapable of granting an immediate relief to a party who has been forcibly dispossessed in violation of an order of injunction. We do not think that in such a case the Court is powerless to grant relief to the aggrieved party in exercise of its inherent power. The very object for which Order 39, Rule 2-A has been enacted will be fulfilled by the grant of a temporary mandatory injunction and restoration of possession of the aggrieved party. The inherent power of the Court as recognised in Section 151 of the Code is in addition to the power conferred on the Court under the provisions of the Code. All that the Court is concerned is to prevent abuse of the process of Court and to do justice by immediately intervening under circumstances which require such intervention by the Court.
12. The view which we take finds support from a decision of the Rajasthan High Court in Magna v. Rustam, AIR 1963 Raj 3. In that case, it has been observed that though Order 39, Rule 2(3) of the Code is exhaustive on the subject of imposing of penalty on the party guilty of disobedience, it does not provide any relief to the parry in whose favour the order of temporary injunction is passed. Further, it has been observed that the object of such an order is to safeguard the rights of a party against a threatened invasion by the other party, and that if in disobedience of the order of injunction such rights are invaded during the pendency of the suit, relief can only be granted to the aggrieved party by invoking the inherent power of the Court under Section 151, of the Civil P.C.
13. In Hari Nandan v. S.N. Pandita, AIR 1975 All 48, the Allahabad High Court has taken the same view as we have, namely, that when a party has been dispossessed in disobedience of the order of injunction, the Court can in exercise of its inherent power pass such order for ends of justice as would undo the wrong done to the aggrieved party.
14. In our opinion, therefore, the learned Judge was perfectly justified in passing the impugned order of mandatory injunction under Section 151 of the Civil P.C. by directing the police to restore possession to the opposite party of the room in question."
20. In Delhi Development Authority's case (supra), the Hon'ble Supreme Court approved of the ratio in Century Floor Mills and Sujit Pal's cases (supra) and held that there is no doubt that the salutary rule as laid in the aforesaid cases has to be applied and given effect to, if necessary, by overruling any procedural or other technical objections.
21. In view of the above settled position in law, where a party to the suit had, in violation of the interim injunction, brought about any change in the position, situation and status of the property in suit, the Court in exercise of its inherent powers under Section 115 of the Code of Civil Procedure, can and must set the wrong right.
22. In the case in hand, as already stated hereinabove, there are concurrent findings of both the Courts below that the wall in question had been raised in disregard of the temporary injunction granted by the Court. Therefore, the grant of temporary mandatory injunction directing the defendants to demolish the wall was well within the jurisdiction of the trial Court and it did not commit any jurisdictional error in granting such injunction. Therefore, the impugned order does not call for any interference.
23. As a result, this petition merits dismissal and is accordingly dismissed. There is, however, no order as to costs.
24. Parties through their counsel are directed to appear before the trial Court on 7-8-2002.