Himachal Pradesh High Court
Tulshi Ram vs The Superintending Engineer on 13 October, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CMPMO No.18 of 2014.
Judgment reserved on: 08.10.2015.
Date of decision: October 13th , 2015.
Tulshi Ram .....Petitioner.
of
Versus
The Superintending Engineer, HPPWD .....Respondent s.
and other s rt
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes For the Petitioner : Mr.Rajiv Jiwan, Advocate.
For the Respondents : Mr.V.K.Verma and Ms.Meenakshi
Sharma, Additional Advocate
Generals with Ms.Parul Negi,
Deputy Advocate General, for
respondents No.1 and 3.
Mr.Rajiv Rai, Advocate, for
respondents No.4 and 5.
Tarlok Singh Chauhan, Judge.
This petition under Article 227 of the Constitution of India is directed against the order passed by the learned District Judge, Bilaspur, on 31.10.2013 whereby the appeal preferred by the petitioner against the order dated 11.04.2013 passed by the learned Civil Judge (Senior Division), Bilaspur, in an application under Order 39 Rule 1 and 2 CPC readwith Section 151 CPC, was ordered to be dismissed.
The facts, in brief, may be noticed.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 2
2. The petitioner filed a civil suit for permanent prohibitory injunction for restraining respondents No.1 to 3 from interfering in the .
land comprised in Khasra No.154, Khewat/Khatauni No.11/21 min, measuring 2-12 bighas, situate at Village Suin, Pargana Bahadurpur, Tehsil Sadar, District Bilaspur ( hereinafter referred to as suit land). It was averred that the petitioner was joint owner in possession with his of brother in the suit land. It was further averred that the respondents were trying to raise construction over the said land. Alongwith the suit, rt the petitioner had also filed application under Order 39 Rule 1 and 2 CPC for grant of injunction restraining the respondents from doing such acts.
3. On the other hand, the respondents in their written statement denied that any construction was being raised over the suit land. It was averred that there was a 'katcha' passage over Khasra No.155 which was constructed by the Gram Panchayat, Suin Surhar in the year 1995 and this passage had been taken over under the scheme known as 'PMGSY' in the year 2008-2009 for the construction of the road. The respondent No.1 floated tender for this work and the work was awarded to the respondent No.2. It was further averred that when the work reached at Khasra No.155, the petitioner raised objection and after demarcation, it was found that the construction of the road is over Khasra No.155 and not 154.
4. The learned trial Court vide order dated 11.04.2013 dismissed the application under Order 39 Rules 1 and 2 CPC observing that the petitioner had failed to show prima facie case, balance of convenience and irreparable loss which are sine qua non for the grant of interim injunction. The appeal filed by the petitioner against ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 3 the aforesaid order also came to be dismissed vide order dated 31.10.2013 passed by the learned District Judge, Bilaspur, leading to .
the filing of the present petition.
5. It is vehemently argued by Shri Rajiv Jiwan, Advocate, that the findings recorded by the learned Courts below are not only against fact but also against law. It is further argued that once the petitioner is of indisputably the owner of the suit land comprised in Khasra No.154 as revealed by the revenue record, then there was no reason why the rt respondents should not be restrained from interfering in his possession qua this khasra number. It is also argued that before proceeding on the merits of the case, the trial Court should have appointed a Local Commissioner to demarcate the land as it was then alone that the issue in controversy could have been settled once for all.
I have heard the learned counsel for the parties and have gone through the records of the case.
6. The factors required to be borne in mind while granting or refusing injunction have been succinctly dealt with by the Hon'ble Supreme Court in M.Gurudas and others versus Rasaranjan and others (2006) 8 SCC 367 in the following manner:-
"18.While considering an application for injunction, it is well- settled, the courts would pass an order thereupon having regard to:
(i) Prima facie case
(ii) Balance of convenience
(iii) Irreparable injury.
19. A finding on 'prima facie case' would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. Rajeev Dhawan that the decision of House of Lords in American ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 4 Cyanamid v. Ethicon Ltd. (1975) 1 All ER 504 would have no application in a case of this nature as was opined by this Court .
in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd.(1999) 7 SCC 1 and S.M. Dyechem Ltd. v. Cadbury (India) Ltd. (2000) 5 SCC 573, but we are not persuaded to delve thereinto.
20. We may only notice that the decisions of this Court in Colgate Palmolive (supra) and S.M. Dyechem Ltd (supra) relate to intellectual property rights. The question, however, has been of taken into consideration by a Bench of this Court in Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd. (2006) 1 SCC 540 stating: (SCC pp. 552-53, paras 36-40) rt "36.The Respondent, therefore, has raised triable issues.
What would constitute triable issues has succinctly been dealt with by the House of Lords in its well-known decision in American Cyanamid Co. v. Ethicon Ltd.(1975)1 All ER 504 holding: ( All ER p.510 c-d) 'Your Lordships should in my view take this opportunity of declaring that there is no such rule.
The use of such expression as 'a probability', 'a prima facie case', or 'a strong prima facie case' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.' It was further observed (All ER pp.511 b-c & 511j) 'Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 5 greater inconvenience to him since he would have to start again to establish it in the event of his .
succeeding at the trial.
* * * The factors which he took into consideration, and in my view properly, were that Ethicon's sutures XLG were not yet on the market; so that had no of business which would be brought to a stop by the injunction; no factories would be closed and no workpeople would be thrown out of work. They rt held a dominant position in the United Kingdom market for absorbable surgical sutures and adopted an aggressive sales policy.'
37.We are, however, not oblivious of the subsequent development of law both in England as well as in this jurisdiction. The Chancery Division in Series 5 Software v. Clarke (1996) 1 All ER 853] opined: (All ER p.864 c-e) 'In many cases before American Cyanamid the prospect of success was one of the important factors taken into account in assessing the balance of convenience. The courts would be less willing to subject the plaintiff to the risk of irrecoverable loss which would befall him if an interlocutory injunction was refused in those cases where it thought he was likely to win at the trial than in those cases where it thought he was likely to lose. The assessment of the prospects of success therefore was an important factor in deciding whether the court should exercise its discretion to grant interlocutory relief. It is this consideration which American Cyanamid is said to have prohibited in all but the most exceptional case. So it is necessary to consider with some care what was said in the House of Lords on this issue.'
38. In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. (1999) 7 SCC 1, this Court observed that Laddie, J. in Series 5 Software (supra) had been able to resolve the issue without any departure from the true perspective of the judgment in American Cyanamid. In that case, ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 6 however, this Court was considering a matter under Monopolies and Restrictive Trade Practices Act, 1969.
.
39.In S.M. Dyechem Ltd. v. Cadbury (India) Ltd. (2000) 5 SCC 573, Jagannadha Rao, J. in a case arising under Trade and Merchandise Marks Act, 1958 reiterated the same principle stating that even the comparative strength and weaknesses of the parties may be a subject matter of consideration for the purpose of grant of injunction in of trade mark matters stating : (SCC p.591, para 21) '21.....Therefore, in trademark matters, it is now rt necessary to go into the question of "comparable strength" of the cases of either party, apart from balance of convenience. Point 4 is decided accordingly.'
40.The said decisions were noticed yet again in a case involving infringement of trade mark in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.(2001) 5 SCC 73."
21. While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue.(See Dorab Cawasji Warden v. Coomi Sorab Warden and Others , (1990) 2 SCC 117, Dalpat Kumar v. Prahlad Singh(1992) 1 SCC 719, United Commercial Bank v. Bank of India (1981) 2 SCC 766, Gujarat Bottling Co. Ltd. v. Coca Cola Co. (1995) 5 SCC 545, Bina Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev (1999) 5 SCC 222 and Transmission Corpn. of A.P. Ltd (supra)."
7. Adverting to the facts of the case, it would be noticed that the petitioner is admittedly a co-owner in joint possession alongwith his brother over Khasra No.154 as emerges from the record and his case is that the respondents/defendants are trying to raise construction of road over the suit land. Whereas, the specific case of the ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 7 respondents/defendants is that the road in question is being constructed over Khasra No.155 that too after taking due demarcati on .
from the revenue authorities and that the demarcation report dated 02.02.2011, prima facie, shows that no road has been laid over the suit land.
8. The respondents-State has specifically stated that the of proceedings for eviction under Section 163 of the H.P. Land Revenue Act have already been initiated against the petitioner for encroaching rt upon the government land comprised in Khasra No.155 and the same is delineated by Khasra No.155/1 measuring 1-0 bigha over which the petitioner has allegedly raised three storeyed building including bathroom and retaining wall.
9. To my mind, once the respondents have, prima facie, established that the road in question is being laid after due demarcation and also that the petitioner is facing eviction proceedings under Section 163 of the H.P. Land Revenue Act and the petitioner having failed to file a counter-document to the documents relied upon by the respondents, then it can conveniently be held that the petitioner has failed to carve out a prima facie case in his favour. Therefore, there is no question of any irreparable loss or injury being caused to him.
10. That apart, the work carried out by the respondents is that of laying down the road which is meant for larger public interest including the petitioner and, therefore, in such circumstance, injunction cannot normally be granted as the right of an individual is subservient to the rights of the public at large. The Court while exercising its equity jurisdiction in granting injunction has also jurisdiction and power to grant adequate compensation to mitigate the damages caused by the ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 8 opposite party and it is not necessary that in all cases even upon establishment of the prima facie case that injunction ought to be .
granted.
11. The Court is also required to find out whether the plaintiff would be adequately compensated for damages, if injunction is not granted. Public interest is one of the material and relevant of considerations in either exercising or refusing to grant injunction. The Courts in the cases where injunctions are to be granted should rt necessarily consider the effect on public purpose thereof and, therefore, also suitably mould the relief and injunctions as against public purpose, especially, in cases relating to public purpose like construction or widening of the road should normally not be granted. This was so observed in Mahadeo Savlaram Shelke and others versus Pune Municipal Corporation and another 1995 (1)Scale 158: (1995) 3 SCC 33, wherein the Hon'ble Supreme Court held as under:-
"7. In Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993) 3 SCC 161, a Bench of three Judges of this Court held that(SCC p. 175, paras 30, 31) ".....A party is not entitled to an order of injunction as a matter of course. Grant of injunction c is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles-ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 9 maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause .
irreparable injury to him."
Further "The court should be always willing to extend its hand to protect a citizen who is being wronged or is being of deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial rt proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court."
8. In Dalpat Kumar v. Prahlad Singh(1992) 1 SCC 719, a Bench of two Judges (in which K. Ramaswamy, J. was a Member) of this Court held that the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The Court further held:
(SCC p.721, para 5) "The existence of prima facie right and infraction of the enjoyment of him 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 ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 10 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 balance of convenience must be in favour of granting injunction. The court while granting or of refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or rt injury which is likely to be caused to the parties if the injunction is refused and compare it with that which 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. The court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."
9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. It is true that the appellants placed reliance in their plaint on resolutions passed by the municipality on 11-11-72 and 29-11-
72. A reading of those resolutions would prima facie show that possession would be taken where the acquisition proceedings have become final and land acquisition proceedings would not he pursued where award has not been made as on the date of the resolutions. In this case since the acquisition proceedings have become final, then necessarily possession has to be taken by the Corporation for the public purpose for which the acquisition was made. In that context the question arises whether the appellants can seek reliance on two resolutions. They furnish no prima facie right or title to the appellants to have perpetual injunction restraining the Corporation from taking possession of the building. The orders of eviction were passed by due process of law and had become final. Thereafter no right was created in favour of the appellants to remain in possession. Their possession in unlawful and that therefore, they cannot ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 11 seek any injunction against the rightful owner for evicting them. There is thus neither balance of convenience nor irreparable .
injury would be caused to the appellants.
10. In Woodroffe's Law Relating to Injunctions, 2nd revised and enlarged Edn., 1992, at page 56 in para 30.01, it is staled that "an injunction will only be granted to prevent the breach of of an obligation (that is a duty enforceable by law) existing in favour of the applicant who must have a personal interest in the matter. In the first place, rt therefore, an interference by injunction is founded on the existence of a legal right, an applicant must be able to show a fair prima fade case in support of the title which he asserts".
At page 80 in para 33.02, it is further stated that "if the court be of opinion that looking to these principles the case is not one for which an injunction is a fitting remedy, it has a discretion to grant damages in lieu of an injunction. The grounds upon which this discretion to grant damages in lieu of an injunction should be exercised, have been subject of discussion in several reported Indian cases".
At page 83, is stated that "the court has jurisdiction to grant an injunction in those cases where pecuniary compensation would not afford adequate relief. The expression "adequate relief is not defined, but it is probably used to mean - such a compensation as would, though not in specie, in effect place the plaintiffs in the same position in which they stood before. The determination of the question whether relief by injunction or by damages shall be granted depends upon the circumstances of each case.
11. In Law of Injunctions by L.C. Goyle, at page 64, it is stated that "an application for temporary injunction is in the nature of a quia timet action. Plaintiff must, therefore, prove that there is an imminent danger of a substantial kind or that the apprehended injury, if it does come, will be ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 12 irreparable. The word "imminent" is used in the sense that the circumstances are such that the remedy sought .
is not premature. The degree of probability of future injury is not an absolute standard : what is aimed at is justice between the parties, having regard to all the relevant circumstances".
At page 116, it is also stated that of "in a suit for perpetual or mandatory injunction, in addition to, or in substitution for, the plaintiff can claim damages. rt The court will award such damages if it thinks fit to do so. But no relief for damages will be granted, if the plaintiff has not claimed such relief in the suit."
12. In Modern Law Review, Vol. 44, 1981 Edition, at page 214, R.A. Buckley stated that "a plaintiff may still be deprived of an injunction in such a case on general equitable principles under which factors such as the public interest may, in an appropriate case, be relevant. It is of interest to note, in this connection, that it has not always been regarded as altogether beyond doubt whether a plaintiff who does thus fail to substantiate a claim for equitable relief could be awarded damages". In The Law Quarterly Review" Vol 109, at page 432 (at p. 446), A.A.S. Zuckerman under Title "Mareva Injunctions and Security for Judgment in a Framework of Interlocutory Remedies stated that "if the plaintiff is likely of suffer irreparable or uncompensable damage, no interlocutory injunction will be granted, then, provided that the plaintiff would be able to compensate the defendant _for any unwarranted restraint on the defendant's right pending trial, the balance would tilt in favour of restraining the defendant pending trial. Where both sides are exposed to irreparable injury ending trial, the courts have to strike a just balance".
At page 447, it is stated that "the court considering an application for an interlocutory injunction has four factors to consider : first, whether the ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 13 plaintiff would suffer irreparable harm if the injunction is denied; secondly, whether this harm outweighs any .
irreparable harm that the defendant would suffer from an injunction; thirdly, the parties' relative prospects of success on the merits; fourthly, any public interest involved in the decision. The central objective of interlocutory injunctions should therefore be seen as reducing the risk that rights will be irreparably harmed of during the inevitable delay of litigation".
13. In Injunctions by David Bean, 1st Edn., at page 22, it is rt stated that "if the plaintiff obtains an interlocutory injunction, but subsequently the case goes to trial and he fails to obtain a perpetual order, the defendant will meanwhile have been restrained unjustly and will be entitled to damages for any loss he has sustained. The practice has therefore grown up, in almost every case where interlocutory injunction is to be granted, of requiring the plaintiff to undertake to pay any damages subsequently found due to the defendant as compensation if the injunction cannot be justified at trial. The undertaking may be required of the plaintiff in appropriate cases in that behalf."
In "Joyce on Injunctions" Vol. 1 in paragraph 177 at page 293, it is stated "Upon a final judgment dissolving an injunction, a right of action upon the injunction bond immediately follows, unless the judgment is superseded. A right to damages on dissolution of the injunction would arise at the determination of the suit at law. "
14. It would thus be clear that in a suit for perpetual injunction, the court should enquire on affidavit evidence and other material placed before the court to find strong prima facie case and balance of convenience in favour of granting injunction otherwise irreparable damage or damage would ensue to the plaintiff. The court should also find whether the plaintiff would adequately be compensated by damages if injunction is not ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 14 granted. It is common experience that injunction normally is asked for and granted to prevent the public authorities or the .
respondents to proceed with execution of or implementing scheme of public utility or granted contracts for execution thereof. Public interest is, therefore, one of the material and relevant considerations in either exercising or refusing to grant ad interim injunction. While exercising the discretionary power, the court should also adopt the procedure of calling upon the of plaintiff to file a bond to the satisfaction of the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the rt loss ensued due to the order of injunction granted in p favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction has also jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction restraining the defendant to proceed with the execution of the work etc., which is retrained by an order of injunction made by the court. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the court. The pecuniary jurisdiction of the court of first instance should not impede nor be a bar to award damages beyond it pecuniary jurisdiction. In this behalf, the grant or refusal of damages is not founded upon the original cause of action but the consequences of the adjudication by the conduct of the parties, the court gets inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complained of in the suit It is common knowledge that injunction is invariably sought for in laying the suit in a court of lowest pecuniary jurisdiction even when the claims are much larger than the pecuniary jurisdiction of the court of first instance, may be, for diverse reasons. Therefore, the pecuniary jurisdiction is not and should not stand an impediment for the court of first instance in determining damages as the part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for damages. This procedure would act as a check on abuse of the process of the court and ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 15 adequately compensate the damages or injury suffered by the defendant by act of court at the behest of the plaintiff.
.
15. Public purpose of removing traffic congestion was sought to be served by acquiring the building for widening the road. By orders of injunction, for 24 years the public purpose, was delayed. As a consequence execution of the project has been delayed and the costs now stand mounted. The courts in the of cases where injunction are to be granted should necessarily consider the effect on public purpose thereof and also suitably mould the relief. In the event the plaintiffs losing ultimately the rt suit, they should necessarily bear the consequences, namely, escalation of the cost or the damages the Corporation suffered on account of injunction issued by the courts. Appellate court had not adverted to any of the material aspects of the matter. Therefore, the High Court has rightly, though for different reasons, dissolved the order of ad interim injunction. Under these circumstances, in the event of the suit to be dismissed while disposing of the suit the trial court is directed to assess the damages and pass a decree for recovering the same at pro rata against the appellants."
12. The petitioner has not been able to prima facie establish that the road in question has been constructed or is being constructed over the suit land and even if all other considerations including public interest are kept aside, even then the petitioner has not been able to carve out a prima facie case in his favour for gr ant of injunction.
Therefore, no fault can be found with the orders concurrently passed by the learned Courts below refusing the grant of injunction to the petitioner. The findings recorded by the learned Courts below do not suffer from any illegality, perversity or impropriety so as to call for interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India.
::: Downloaded on - 15/04/2017 19:11:54 :::HCHP 1613. Accordingly, there is no merit in this petition and the same is dismissed, leaving the parties to bear their own costs. Pending .
application, if any, also stands disposed of.
October 13, 2015. (Tarlok Singh Chauhan), (krt) Judge.
of rt ::: Downloaded on - 15/04/2017 19:11:54 :::HCHP