Smt. Bachchi Devi vs 3Rd Addl.District Judge Balrampur And ... on 27 April, 2022

[Cites 19, Cited by 0]

Allahabad High Court

Smt. Bachchi Devi vs 3Rd Addl.District Judge Balrampur And ... on 27 April, 2022

1. This petition has been filed praying for setting aside the order dated 25.10.2019 and the order dated 02.07.2019 passed by the learned Appellate Court in Civil Appeal no.02 of 2014 and the order dated 28.01.2014 passed by learned Trial Court in Regular Suit No.478 of 2011.

2. Heard Sri Virendra Mishra, learned counsel for the petitioner and Sri Md. Ali, learned counsel for the respondent no.3.

3. The case set up by the petitioner before this Court is that as per the pedigree given in paragraph-3 of the petition, one Jagannath was the owner of two houses situated adjacent to each other. He had two sons, namely, Chhailbihari and Lalta Prasad, both are now dead. Chhailbihari had one son Ram Pratap, who has been arrayed as respondent no.3 and Dwarka Prasad also had one son who was differently abled and died a long time ago and the petitioner is the widow of Dwarka Prasad. There are two houses situated adjacent to each other. The house of the petitioner is existing in a single storey in a dilapidated condition, whereas the house of the respondent no.3 situated next to it is double storey and has a shop also in it. Whereas the house of the respondent no.3 has all basic amenities like electricity connection and water pipeline, the house of the petitioner is in a pitiable condition with no electricity connection or water pipeline. She being a widow, is somehow surviving in the said house. The respondent no.3 taking the benefit of her old age and being a stamp vendor in the Civil Court and aware of court procedure, tried to grab her house by instituting a Regular Suit for permanent injunction against the petitioner on false allegation that he is the exclusive owner in the possession of the house in dispute i.e. the house which is adjacent to his own house and in dilapidated condition in which the petitioner lives, alleging that the father of the plaintiff Chhailbihari and the husband of the defendant Dwarka Prasad were real brothers and the ancestral house which was situated near Cooperative Seed Godown in front of Hatan road had been left by the father of the plaintiff in favour of his brother i.e. the husband of the defendant has he too was differently able and feeble minded.

4. Since the husband of the petitioner and her son were both feeble minded, it was alleged that the plaintiff brought them in the his house and the defenant sold the ancestral house and started residing with the plaintiff. Thereafter the plaintiff got allotted the House no.3/26 in favour of defendant/ petitioner in Kashiram Shahri Awas Yojana and accordingly the defendant/ petitioner shifted in the said house along with her son who died on 12.08.2011. It has been submitted that the petitioner/ defendant was shown to be residing at the house situated in Kashiram Shahri Awas Yojana and not in Mohalla Shubhash Nagar by way of an amendment in the plaint which was allowed on 02.07.2019, which order has also been challenged in this petition. Such amendment was carried out only to avoid proper service of the plaint in Regular Suit being made upon her. It was alleged in the plaint that after the death of her son, the defendant/ petitioner tried to sell the house in dispute in favour of a muscleman after taking forcible the possession from the plaintiff, accordingly necessity arose to file the Suit.

5. It has been submitted by Sri Virendra Mishra, learned counsel for the petitioner that initially the respondent no.3 had shown the correct address of the petitioner i.e. the house in dispute, however mischievously the said plaint was amended and she was shown to have been residing at the house situated at Kashiram Shahri Awas Yojana. This was only to enable the plaintiff to manage that the notice of the Regular Suit be not served upon the petitioner and he may be able to obtain ex parte injunction. It has been submitted that after notice was issued, since the petitioner could not be served, the same was published in some newspaper and such condition was found to be sufficient by the Trial Court and initial date was fixed as 17.04.2012 for considering the application for temporary injunction.

Later on an application was moved on 26.03.2012 by the plaintiff for preponing the date fixed by the Trial Court. The date was preponed and fixed for 07.02.2012 with a direction to the plaintiff to inform the defendant of such preponing of the date. However, no intimation whatsoever regarding change of date was given to the defendant/ petitioner and accordingly learned Trial Court when it took up the matter on 07.04.2012 while observing that the defendant was not present restrained the defendant/ petitioner from selling the house in dispute till the next date of listing. The defendant/ petitioner is illiterate, old and ailing lady and she was also mentally disturbed in 2011-2012 due to the death of her young son. Any publication made in any newspaper could not have been read by her and she did not have any information of the pendency of the said Regular Suit. Anyhow when she came to know of the ad-interim injunction dated 07.04.2012, she appeared through the counsel and filed written statement and detailed objections to the application for temporary injunction.

6. It was stated in the objections and in the written statement that about 40 years ago, a partition/ family settlement has taken place and the house in dispute fell in the share of the husband of the petitioner/defendant, whereas the portion on the eastern side fell in the share of the father of the plaintiff. Since then both the parties were in possession of their respective portions of the house and the plaintiff is not the owner, nor in possession of the house as shown in the letters A, B, C & D and had no right to file the Suit for permanent injunction. The defendant/ petitioner also filed photocopies of ration card, receipts of house tax etc. to prove that she had been the owner in possession of the disputed house.

7. Learned Trial Court however passed an order on 28.01.2014 allowing the application under Order 39 Rule 1 C.P.C. moved by the plaintiff by going much beyond the pleadings on record and also the final prayer made in the Suit. By this order, the Trial Court not only restrained the petitioner from selling the property in dispute but also restrained the petitioner from using the same for residing therein. There was no finding on record that the petitioner was not in possession of the house and that she is not residing therein, nor she is the legal owner thereof.

8. Learned counsel for the petitioner has further submitted that since the order dated 28.01.2014 was completely against the record and much beyond the final relief that was claimed by the plaintiff in the Regular Suit itself, the defendant/ petitioner filed Misc. Civil Appeal under Order 41 Rule 1 C.P.C. registered as Misc. Civil Appeal No.02 of 2014. During the pendency of the Appeal, an application was filed under Order 41 Rule 27 by the defendant/ petitioner with a request for admitting certain documents/ papers in additional evidence to prove that the disputed house infact is ancestral and was not the self-acquired property of the father of the plaintiff but had been left by way of family settlement in the name of her dead husband by her father-in-law. She filed a copy of the sale deed dated 17.10.1967 where Jagannath, her father in law had executed sale deed of the property situated opposite Cooperative Seed Go-down towards Hatan Road. It has been argued that when the house/ property situated near Cooperative Seed godown has already been sold out in 1967, there was no question of such house being left in favour of her dead husband Dwarka Prasad by his father Jagannath. The Appellate Court allowed this application on 19.11.2018 and admitted the document in additional evidence.

The plaintiff filed an Appeal before the Appellate Court for amendment of the plaint by which he tried to change his stand. Such application was erroneously allowed on 02.07.2019 which order has also been challenged before this Court. By the order impugned dated 25.10.2019, the Appellate Court has rejected the Appeal filed by the petitioner and affirmed the order passed by the Trial Court dated 28.01.2014.

9. Learned counsel for the petitioner has read out the operative portion of the order dated 28.01.2014 passed by the learned Trial Court, wherein the learned Trial Court has observed that prima facie the plaintiff had been able to show that he is the owner and in possession of the house in question and therefore balance of convenience and the question of irreparable loss has also been shown to be in favour of the plaintiff. The application for temporary injunction was allowed with a direction to the defendant/ petitioner that during the pendency of the Suit, she should not interfere in the plaintiff's peaceful possession of the house situated at Subhash Nagar, Pargana and Tehsil Utraula, District Balrampur, shown in the plaint with the letters A, B, C & D by taking forcibly the possession thereof or by selling it off.

10. Learned counsel for the defendant/ petitioner has read out the operative portion of the order passed by the Appellate Court on 25.10.2019 rejecting the Appeal filed by the defendant/ petitioner. The Appellate Court found that notice had not been served as the service report initially stated that she lived currently in House No.1/26 Kashiram Shahri Awas Yojana and in another service report, the Process Server has stated that the defendant had refused to accept the notice. After publication of notice, the defendant/ petitioner had appeared and had showed her residence as Mohalla Subhash Nagar, Hatan Road, Pargana Utraula, District Balrampur.

11. Learned counsel appearing for the petitioner has pointed out that the application of the petitioner under Order 41 Rule 27 having been allowed and the additional evidence having been admitted, a duty was cast upon the Appellate Court to consider such additional evidence and give its finding specifically on the points raised in argument on the basis of such additional evidence. He has referred to the judgment rendered by Hon'ble Supreme Court in K.V. Muralidhar Vs. K.V. Ananda Rao and others, 2016 (16) SCC 109, and the judgment rendered by a Coordinate Bench in Rajesh Jaiswal and another Vs. Amit Shyam and another, 2012 SCC OnLine All 4007 and the judgment rendered by another Coordinate Bench in Dr. Chandra Deo Tyagi Vs. Additional District Judge, Court No.1, Meerut and others, 2020 (7) ADJ 216, where similar observations have been made that not only the additional evidence can be filed in an Appeal against a judgment and decree, but also in an Appeal against the order passed on an interlocutory application; if such additional evidence is allowed to be filed and taken on record then the same should be considered and specific finding be recorded thereon.

12. Learned counsel for the petitioner has referred to the judgment rendered by this Court in Shri Ram Singh and another Vs. Special Judge, E.C. Act, Additional District Judge, Ballia and others, AIR 1993 ALL 236, where this Court after considering the scope of judicial review under Article 226 and 227 has also considered the scope of Appeal under Order 43 Rule 1 against an order passed on an interlocutory order under Order 39 Rule 1 C.P.C. It has been held that in an Appeal unless the statute restricts the power of the Appellate Court, it has, as a general rule, the same powers as are open to the original authority or court from whose decision the appeal is preferred and a court of appeal has no fetters on it to decide all questions of law and fact which crop up in the case but ordinarily, a court of appeal will not tend to interfere with the exercise of discretion by the lower court and substitute for it, its own discretion unless of course, it is found by the court of appeal that the original court misdirected itself on any question of law or it failed to consider the relevant factors governing the exercise of discretion or its discretion is otherwise vitiated by reason of mis-construction of any statutory provision or on account of misreading of any evidence on record.

13. Learned counsel for the petitioner has placed reliance upon the judgment rendered by Supreme Court in Metro Marins and another Vs. Bonus Watch Co. (pvt) Ltd. and other, 2004 (7) SCC 478, where in paragraph-9, the Court had observed that an interim mandatory injunction can be granted only in exceptional cases as noted in the judgment rendered by it in Dorab Cawasji Warden Vs. Coomi Sorab Warded, 1990 (2) SCC 117. In Dorab Cawasji Warden (supra), the Supreme Court has observed in paragraph 16 as follows:-

"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief."

14. Learned counsel for the petitioner has referred to the judgment rendered by this Court in Ashok Kumar Bajpai Vs. Dr. (Smt.) Ranjana Bajpai, 2003 SCC OnLine ALL 1296 , and paragraph 14 to 17 thereof which mainly consider the judgements relating to interim relief granted in writ jurisdiction by the High Court which amounts to final relief and inadmissibility thereof and is of not much relevance to the controversy in hand.

15. Learned counsel for the petitioner has also referred to another judgment rendered by this Court in Banshi Lal Vs. Radhey Shyam, 2013 (31) LCD 1530, where this Court has observed that even in the Second Appeal, interference can be made in findings of fact when material or relevant evidence is not considered, which if considered, would have led to opposite conclusion and where a finding has been recorded by the Appellate Court by placing reliance upon in-admissible evidence which if would have been omitted, an opposite conclusion would have been possible.

16. Learned counsel for the petitioner has further placed reliance upon Dilbagrai Punjabi Vs. Sharad Chandra, AIR 1988 SC 1858, paragraph-5 thereof which also relates to the Second Appeal and there is reference to the arguments made by the learned counsel appearing on behalf of the respondent which this Court does not consider necessary to refer to in detail as they are not of much relevance to this case filed under Article 227 of the Constitution.

17. Learned counsel for the petitioner has placed reliance upon the judgment rendered by Supreme Court in Jagdish Singh Vs. Natthu Singh, 1992 (1) SCC 647, and paragraph-10 thereof where the Supreme Court has made observations regarding jurisdiction of the High Court to re-appreciate the evidence in a Second Appeal. However such observations are unnecessary to be referred to in detail in view of the fact and circumstances of this case.

18. It is the case of the respondent as argued by Md. Ali that the petitioner is the paternal Aunt/ Chachi of the respondent no.3. At the time when the father of the respondent no.3 was alive, a family settlement had taken place in which the ancestral house situated at Hatan road opposite Cooperative Seed godown had been given to the husband of the petitioner who was feeble minded and incapable of earning a livelihood on his own. The father of the respondent no.3 had shifted to a house that he had bought from his own earning as stamp vendor in Mohalla Subhash Nagar at Hatan road in Utraula town. On the said property, he had constructed two shops and was also residing. The house was recorded in the name of the father of the respondent no.3 in the municipality records and he had been paying water tax and electricity bill etc. before his death and after his death the respondent no.3 came into possession of the entire house. Since the petitioner who was his Chachi and her husband Late Dwarka Prasad were living penurious condition at Hatan road in the ancestral house, he used to take care of both his Chacha and Chachi and their feeble minded son, and after the death of his Chacha, he had brought his Chachi and her son to the house situated at Subhash Nagar. After his family grew in size, there was a lack of space and therefore the respondent no.3 made great effort in getting allotted a separate residential house under Kashiram Shahri Awas Yojana in the name of his Chachi where she went to live in 2010 along with her son. When her son died there was no one to look after her and then he brought his Chachi back to his house in Subhash Nagar but she appeared to have changed her mind and with malafide intent wanted to grab the house in which the respondent was living with his family therefore, for the said purpose she approached land mafia and anti-social elements with the intention to forcibly grab the possession of the house in question and to sell it off behind the back of respondent no.3. Being apprehensive of being thrown out of his own house, the respondent no.3 filed a Suit for permanent injunction along with an application for temporary injunction.

19. Notice was initially tried to be served through registered post and process server of the Court upon the petitioner but contradictory reports were returned therefore substituted service was affected and such service was found sufficient on the defendant/ petitioner. The defendant filed objections to the application for temporary injunction and written statement in the said Suit which was duly considered by the Trial Court and the learned Trial Court after considering the facts and documentary evidence placed on record came to the conclusion that the plaintiff i.e. the respondent no.3 had been able to establish a prima-facie case in his favour for grant of interim injunction. Hence the order dated 28.01.2014 was passed injuncting the defendant/ petitioner from interfering and forcibly taking possession of the house in question or trying to sell it off during the pendency of the Suit. The petitioner thereafter filed an Appeal and again documentary evidence was considered by the Appellate Court and it found no perversity or illegality in the order dated 28.01.2014 and eventually rejected the Appeal by its order dated 25.10.2019.

20. It was found on the detailed examination of evidence that the defendant/ petitioner did not dispute at any stage the contention of the plaintiff that a separate house was allotted to her in Kashiram Shahri Awas Yojana finding her to be homeless and destitute. The Appellate Court also took into account the agreement to sell made out allegedly by the defendant/ petitioner in favour of one Taufeeq Ahmed to sell off the house in dispute for consideration of Rs.4 lakhs and receipt of advance of Rs.1000/- from him. The Appellate Court observed that in view of such evidence of avoiding of service of notice, and then appearing after publication of the same in newspaper, and allotment of separate house at Kashi Ram Shahri Awas Yojana finding her to be homeless and the agreement to sell, it was evident that the plaintiff was right in his submission before the Trial Court that being homeless she tried to take forcibly the possession of the house in dispute, and had also intended to sell it off to a third person.

21. The Appellate Court thus found that a prima facie case had indeed been made out by the plaintiff against the defendant and with regard to irreparable loss also the Appellate Court found that the apprehension of the plaintiff of being deprived of the house in question and the intention of the defendant to sell it off had not been suitably controverted by the defendant.

22. The Appellate Court has referred the agreement to sell dated 28.08.2013 and other documentary evidence filed by the plaintiff which was not specifically controverted by the defendant, and it also referred to balance of convenience being in favour of the plaintiff as had been shown on the basis of receipts issued by the Municipality that the house in question was recorded in the name of his father and he had been paying house tax, water tax, electricity tax, etc. since much before the cause of action for institution of Suit arose in 2011, whereas the defendant had produced receipts which were much of later date i.e. of the year 2013 onwards. After referring to the evidence considered by the learned Trial Court, the Appellate Court found no good ground to interfere in the interim injunction granted by the Trial Court on 28.01.2014 and affirmed the same by its order dated 25.10.2019.

23. Learned counsel for the respondent has placed reliance upon Raj Kumar Bhatia Vs. Subhash Chander Bhatia 2018 (2) SCC 87, and paragraph-12 thereof, where the scope of interference by the High Court under Article 227 of the Constitution has been considered by placing reliance upon Sadhana Lodh Vs. National Insurance Company Ltd., 2003 (3) SCC 524, where it was held that supervisory jurisdiction conferred upon the High Court under Article 227 is confined only to see whether an inferior court or Tribunal has proceeded within the parameters of its jurisdiction. In its exercise of jurisdiction under Article 227, the High Court does not act as Tribunal and it is not open for it to review the order or reassess the evidence upon which the Trial Court has passed an order.

24. Learned counsel for the respondent no.3 has also placed reliance upon Pepsico India Holding Private Limited Vs. Krishna Kant Pandey, 2015 (4) SCC 270, and paragraph-14 thereof where similar observations have been made by the Supreme Court by considering the earlier binding precedents such as Chandavarka Sita Ratna Rao Vs. Ashalata S. Guram, 1986 (4) SCC 4447 and Waryam Singh Vs. Amarnath, AIR 1954 SC 215 and Nagendra Nath Bora Vs. Commissioner of Hills Division, AIR 1958 SC 398.

25. Learned counsel for the respondent no.3 has also placed reliance upon Hammad Ahmed Vs. Abdul Majeed and others, 2019 (14) SCC 1, and paragraph-57 and 58 thereof, where it has been observed that the grant of mandatory injunction is not prohibited in all cases if a clear prima facie material is placed which justifies a finding that status quo may be altered by one of the parties if the order of mandatory injunction is not given. It has been observed that an ad-interim mandatory injunction can also be given on strong circumstances so as to protect the rights and interest of the parties and so as not to frustrate their rights regarding mandatory injunction. Such interim relief can be granted if the Court is satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing and at the end the Court would not be able to vindicate the cause of justice.

26. This Court having heard the counsel for the parties has also perused the order impugned. It is evident that both the courts below have considered documentary evidence filed by the plaintiff which included receipts starting from the year 1983 onwards of various years till 2009 i.e. before the Suit was filed in 2011. They have also considered the specific case of the plaintiff that a separate house under Kashiram Shahri Awas Yojana had been allotted to the defendants in which due enquiry was held finding the defendant to be homeless which specific case was not controverted by the defendant in any of her affidavits. Learned Trial Court as well as the Appellate Court has also considered the agreement to sell made out on 28.08.2013 after the order of the maintenance of status quo was passed by the Trial Court at the stage of ad-interim ex parte hearing of the said Suit, and after the defendant had appeared before the Trial Court and filed her objections and written statement. The trial court as well as the Appellate Court on the basis of evidence led by the parties came to the conclusion that prima facie plaintiff was residing in the house built by his father and that the defendant was trying to sell it off and this apprehension was fortified by agreement to sell made out after the order by the Trial Court for maintenance of status quo passed.

27. In this fact and circumstances, this Court does not find it appropriate to interfere in the orders impugned in this petition.

28. However, since the Suit has been pending since 2011 and evidence has been led by both the parties therein and even additional evidence has been filed which has been taken on record by the Appellate Court, the Trial Court shall try and dispose of the Suit on its merits as expeditiously as possible.

29. Any observations made by this Court in this order have only been made to come to the conclusion regarding justifiability of the orders impugned passed by the Trial Court and the Appellate Court and such observations shall not prejudice the rights of any of the parties in the Suit which is yet to be decided on merits by the competent court.

30. This petition is accordingly disposed of.

Order Date :- 27.4.2022 Rahul [Justice Sangeeta Chandra]

Unlock Advanced Research with PRISMAI

Allahabad High Court