Allahabad High Court
Sayed Shahabuddin vs Rajeev And 6 Others on 6 April, 2015
Author: Krishna Murari
Bench: Krishna Murari, Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 3 Case :- FIRST APPEAL FROM ORDER No. - 787 of 2015 Appellant :- Sayed Shahabuddin Respondent :- Rajeev And 6 Others Counsel for Appellant :- A.P. Tewari,S.S. Tripathi Hon'ble Krishna Murari,J.
Hon'ble Pratyush Kumar,J.
The instant appeal is directed against the judgment and order dated 17.3.2015 passed by Civil Judge (S.D.), Gorakhpur in O.S. No.963 of 2014, Sayed Shahabuddin Vs. Rajeev and others, whereby application for temporary injunction filed by the plaintiff/appellant (hereinafter referred as "appellant") was rejected.
Heard learned counsel for the appellant.
Learned counsel for the appellant in support of the appeal has contended that the appellant is Bhoomidhar in possession of plot nos.83 & 85, construction of his dwelling house is going on, defendants/respondents (hereinafter referred as "respondents") with a view to grabbing the property are creating obstruction and claiming that they would make nurses' hostel and doctors' residences over the land of the appellant. In Civil Misc. Writ Petition No.17147 of 2009 this court has passed interim order, which is still operative, but the respondents are disobeying the order. When the appellant filed a suit before the court below on the strength of order dated 31.3.2009, application for temporary injunction was illegally rejected.
Learned counsel for the appellant submits further that in favour of the appellant prima facie case is made out. Balance of convenience lies in his favour and due to obstruction created by the respondents he is likely to suffer irreparable loss, but the court below misread the evidence and erroneously rejected the application for temporary injunction.
In order to appreciate the above arguments, we would like to mention briefly facts of the respective parties.
Property in dispute comprises gata nos.83 & 85 surrounded by appellant's boundary wall. In the year 2009 respondents tried to dispossess him and appellant had to file O.S. No.589 of 2008 before the court of Civil Judge (S.D.), Gorakhpur, he had also filed C.M.W.P. No.17147 of 2009, Sayed Shahabuddin Vs. Civil Judge (S.D.), Gorakhpur and others wherein on 31.3.2009 the following order was passed by this Court:-
"In spite of time granted by this Court on 27.03.2009 learned Standing Counsel could not seek instruction required for by the Court.
Today the case is taken again on request made by the learned counsel for the petitioner as it was directed to be taken up today.
Notice on behalf of respondent nos.3 to 10 has been accepted by learned Standing Counsel.
Issue notice to the respondent no.2 returnable at an early date.
Respondents are directed to file counter affidavit within a period of four weeks. Petitioner shall have three weeks thereafter to file rejoinder affidavit.
List thereafter.
Till the next date of listing, the respondents are restrained from demolishing the disputed construction existing over the suit property and they are further restrained from raising any construction thereon.
The Senior Superintendent of Police, Gorakhpur is directed to ensure compliance of order passed by this Court."
In spite of the knowledge of the afore-quoted order, the respondents are illegally creating obstruction in the construction of the appellant and they are claiming that they would construct a nurses training centre, nurses' hostel and doctors' residence for which Government have sanctioned Rs.10 crore. After committing embezzlement of that amount, respondents are claiming that the aforementioned buildings have been constructed. On 10.7.2014 the respondents again interrupted the construction of the appellant. A suit for prohibitory injunction is filed with the prayer that the respondents be restrained not to interfere in use, occupation and possession of the appellant on property in dispute and they be further restrained not to create obstruction in the construction of the appellant. Along with the plaint an application under Order 39 Rule 1, 2 and Section 151, C.P.C. was also moved duly supported with affidavit.
Against this application respondent nos.2 to 7 have filed their objections along with counter affidavit wherein averments of the plaint and supporting affidavit have been denied and it has been stated that the appellant has nothing to do with the property in dispute. His subsequent suit is liable to be stayed under section 10, C.P.C. He is a very cunning and shrewd person. By forging order dated 28.9.2001 he got mutated his name in the revenue record of the property in dispute, when this fact came to the knowledge, S.D.M. Sadar held an inquiry. On this inquiry report Collector, Gorakhpur on 8.11.2008 directed the revenue records be corrected. It has been further stated that in nurses' hostel difficulty is being faced for supplying water. Adjacent to the hostel for construction of residential complex to house doctors and other departmental employees a project was undertaken in October 2008, which is near completion. Only roofs are to be led. After this Court had passed order dated 31.3.2009, construction work was stopped.
Appellant also filed rejoinder affidavit whereby he has denied averments of the counter affidavit and reiterated his earlier averments.
After hearing both the parties, the court below has passed the impugned order and recorded the finding that no prima facie case in favour of the appellant is made out. This civil court has no jurisdiction to adjudicate rights and title of Bhoomidhari land for which a proceeding is pending in revenue court. The appellant has failed to prove his possession. Balance of convenience is not in his favour, he is not likely to suffer any irreparable loss.
Before proceeding further we would like to refer the case of Dalpat Kumar and another Vs. Prahlad Singh and others, (1992) 1 SCC 719. In this case the Hon'ble Apex Court has very lucidly enumerated the principle, which require to bear in mind while disposing of request for interim injunction. Para 4 & 5 of the said case are extracted hereinunder:-
"4. Order 39, Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing... or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause(c) was brought on statute by Section 88(i)(c) of the Amending Act 104 of 1966 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under Section 151, C.P.C. to grant ad interim injunction against dispossession. Rule 1 primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court in exercise of the power of granting ad interim injunction is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.
5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."
The first question arises in the matter in hand is whether there is a serious disputed question to be tried in the appellant's suit with the probability of his being successful. In another words we have to form an opinion as to whether prima facie case is made out in favour of the appellant. In the opinion of the court below, no prima facie case was made out in favour of the appellant. The learned Civil Judge has discussed this point on page 4 & 5. As per plaint averment the appellant claims himself to be Bhoomidhar and in possession of property in dispute. The learned Civil Judge has indicated his reservation about the proprietary rights of the appellant on the ground that appellant had not disclosed how he became Bhoomidhar and entered into possession over the property in dispute. Even in para 4 of the plaint the appellant has stated that order dated 31.3.2009 of this Court is the basis of his suit. An interim order cannot be treated to be basis of the suit because interim orders do not adjudicate rights of the parties, they are merely passed to protect the bonafide litigant for the period, adjudication of his rights can be made by the Court.
In State of Assam Vs. Barak Upatyaka D.U.Karmachari Sanstha, (2009) 5 SCC 694, para 21 is relevant for the present purpose, which is quoted hereinbelow:-
"21. A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing."
Thus, for determining existence of prima facie case from the plaint averments we get no assistance.
The appellant has heavily relied on the khatauni to show that he is Bhoomidhar, therefore, enjoys proprietary rights. The learned Civil Judge has dealt with this argument and opined that revenue records are meant for collection of revenue. They are not evidence of title in themselves. His opinion gets fortified from the view expressed by the Hon'ble Apex Court in Naval Shankar Ishwarlal Dave and another Vs. State of Gujarat and others, AIR 1994 SC 1496.
Thereafter the learned Civil Judge has dealt with the question of possession of the appellant and observed that he has failed to show that how he came into the possession of the property in dispute, if at all, by a lawful manner. Failure to do so makes his assertion in this regard meaningless.
Learned Civil Judge has also observed that since there are two plots, gata nos.83 and 85, on which plot construction of the appellant exists, has not been made clear by the appellant.
For these reasons the learned Civil Judge concluded that no prima facie case in favour of the appellant is made out.
We find that arguments advanced by the learned counsel for the appellant are only rhetorical and they are not substantiated from the record.
So far as weighing of balance of convenience is concerned, the learned Civil Judge has observed that balance of convenience does not lie in favour of the appellant. The appellant by way of interim order wishes the Court to restrain the respondents not only to restrain them from allegedly making interference in the use, occupation and possession of the property in dispute, but also to restrain them from stopping the appellant from making his construction, thereby changing the nature of the suit property. The object of interim injunction is always to preserve the suit property in its present form. The Court would not become a party to get the property in dispute converted into the property of a different nature i.e. from open land to a constructed residential house, therefore, balance of convenience is not in favour of the appellant.
By the change of the nature of the suit property the respondents are likely to suffer irreparable loss for the reason they would be stopped to complete their housing project and from laying down water supply to nurses hostel. However, when injunction is refused, the appellant would loose nothing. If in the revenue case he becomes successful, he would get the property in dispute in any condition.
The arguments advanced by the learned counsel for the appellant have no substance. The appeal is devoid of merit and deserves to be dismissed.
The appeal stands dismissed.
Order Date :- 6.4.2015 T. Sinha