Karnataka High Court
Thimappa Basappa Doddayankannavar ... vs Krishnappa Gangadharappa Naikar on 8 September, 2000
Equivalent citations: AIR2001KANT57, AIR 2001 KARNATAKA 57, (2001) 3 KANT LJ 545
ORDER Hari Nath Tilhari, J.
1. Heard Sri B. S. Keshava Iyengar, learned counsel for the revision petitioner and Smt. Manjula Devi T. M. holding brief for Sri F. V. Patil.
2. This revision petition arises from the judgment and order D/-13-10-1999 passed by the learned Civil Judge (Senior Division) and JMFC, Ranebennur, in Miscellaneous Appeal No. 20/95 allowing the defendant's appeal and setting aside the judgment and order dt. 17-7-1995 passed by the learned Civil Judge (Junior Division), Hirekerur, on I.A.I. filed in O.S. No. 165/95.
3. The facts of the case in brief are, that the above suit was filed by the plaintiff/ revision petitioner for decree for permanent injunction restraining the defendants from interfering with the plaintiff's lawful possession and enjoyment of the suit schedule property as well as from interfering with plaintiff's right to lift water from the well situated in the suit schedule property. The plaintiff alleged that there has been an agreement of sale of suit schedule property with two bore-wells vide agreement dt. 5-1-1991 whereunder the defendant had agreed to transfer, by sale, the said property for a sale consideration of Rs. 90,000.00 and in pursuance thereof, the plaintiff/revision petitioner paid a sum of Rs. 50,000.00 as advance and the defendant/respondent, after having received the sum of Rs. 50,000.00 which was paid as advance, handed over the possession of the suit property along with two borewells to the plaintiff/revision petitioner. It was agreed that the plaintiff after repaying out standing loans, he has to obtain the clearance certificate from the State Bank of India and the defendant would receive the balance from the plaintiff on or before 31-5-1996 and get the sale-deed registered. The other terms of the agreement are not very necessary and according to the plaintiff/ revision petitioner, the plaintiff had got the possession of the suit property and raised khariff and rabi crops etc. According to the plaintiff, he had himself discharged the defendant's loan. But the defendant did not executed the sale-deed inspite of notice being issued to him, The plaintiff's case is that the defendant, on 18-4-1995 when the plaintiff was carrying out the agricultural operations in the suit schedule property, tried to interfere illegally with the plaintiff's lawful possession. So, plaintiff filed the suit for permanent Injunction. After filing the suit, the plaintiff filed an application for grant of temporary injunction as well vide Order 39 Rule 1 of CPC and prayed for grant of temporary injunction restraining the defendant. his men or attorneys from interfering with the peaceful and lawful possession and enjoyment of the suit property. The defendant filed his written statement as well as objections to I.A.I. that is to interim relief application. The trial Court after considering the material on record, opined that the plaintiff has proved the prima facie case and possession with reference to the suit property and balance of convenience was in his favour and so it opined that it was necessary to protect the plaintiff/revision petitioner's lawful possession over the suit schedule property. Having opined as above, the trial Court allowed the application for temporary injunction and restrained the defendant or his men, attorneys, power of attorneys, agents from interfering with the peaceful possession and enjoyment of the suit schedule property with irrigation set attached to the suit schedule property.
4. Feeling aggrieved from the judgment and order of the trial Court, the defendant filed the appeal namely Miscellaneous Appeal under Order 43 Rule 1 of CPC. The said appeal has been allowed by the appellate Court by its order Dt/- 13-10-1999.
5. I have heard the learned counsel for the revision petitioner as well as the learned brief holder on behalf of the learned counsel for the respondent, as mentioned earlier.
6. I have been taken through the judgment of the trial Court and appellate Court. It has been contended on behalf of the revision petitioner that the appellate Court has proceeded with the appeal as if it was hearing the appeal for final decree and it has decided the matter as if the original suit was decided on merits or the appeal from decree is decided on merits. The learned counsel contended that firstly the lower appellate Court acted illegally at this stage in examining the suit on merits or the plaintiff's claim on merits. The learned counsel further contended that the learned Court below did not even make reference to the Division Bench decision in the case of Mahadevamma v. B. S. Lingaraju, reported in 1981 (2) Karnataka Law Journal 388 which had been cited before it. It had only relied on a Single Judge's decision in the case of Sharma v. Puttegowda, which decision has been held to be not lying down good law in other case namely Kantappa v. Krishnabai as the decision of the Division Bench has not been taken note of by the learned Single Judge. The learned counsel contended that the Court below while dealing with the injunction claim, had not to embark enquiry on the merits of the suit and record finding. He submitted that the Court below has acted illegally and even against the law laid down in the case of Nagaraj v. Krishna, in which this Court, following the earlier Division Bench decision of this Court namely Krishna Moorthy v. Bangalore Turf Club reported in 1975 (2) Karnataka Law Journal 428 and others, had held and deprecated the practice of the Court while dealing with the application for temporary injunction to embark enquiry on the whole merits of the case and record a finding in one way or the other. The learned counsel contended that, what is prima facie case, has also been explained in Nagaraj's case and the trial Court was justified in granting the injunction order as prima facie case was there. He submitted that firstly it was shown prima facie plaintiff was in possession, as per documents on record as possession had been handed over when advance was paid and the plaintiff was entitled to protect his possession. The learned counsel for the revision petitioner further contended that the appellate Court has not touched or examined the question of prima facie possession. I have been taken through the judgment.
7. These contentions of the learned counsel for the revision petitioner have hotly been contested by Smt. Manjula. Smt. Manjula contended that the plaintiff's suit was not maintainable. The plaintiff should have filed the suit for specific performance of contract and suit not having been filed and having become barred by limitation, the plaintiffs suit for injunction was not maintainable. The learned counsel contended that the relief for specific performance had become barred by the time the injunction order had been passed and therefore, the trial Court erred in granting the injunction and the lower appellate Court was justified in allowing the appeal and setting aside the order of temporary injunction.
8. I have applied my mind to the contentions raised by the learned counsel for the parties.
From the judgment of the lower Appellate Court it appears as per the observations made hereinafter :--
"Here in the instant case, no where the trial Court taken into consideration of the maintainability of the suit itself for bare injunction without enforcing the specific performance arbitrarily observed that the recitals in the agreement of sale for the possession is a prima facie case. Even in the decision relied upon by the learned counsel for the respondent-plaintiff it has been clearly observed that the plaintiff basing on agreement of sale, not only filed a suit for enforcing the specific performance, but also prayed for ad-interim injunction."
The lower appellate Court observed.
"I do not think that the trial Court has rightly exercised its discretion judiciously, in favour of the plaintiff, when the agreement of sale itself is doubtful one and no injunction could be granted in favour of the plaintiff,"
The lower appellate Court observed that as per Section 53A of the T.P. Act, the plaintiff was not entitled for any relief of injunction and it observed that the observation of the learned Munsiff that the plaintiff, as per the provisions of Section 53A of the T.P. Act, is entitled for injunction is illegal, perverse, and unsustainable in law.
9. What is prima facie case in a suit for injunction or with reference to matter of grant of temporary injunction has been explained by the Court in various cases and in the case of Nagaraj v. Krishna, this Court has observed and laid down as under at page 207, of AIR :--
"Prima facie case has always got to be distinguished from prima facie title. The prima facie case really means that there is a case which requires trial and that the case is not the one based on erroneous and vexatious grounds. When deciding the question prima facie case, it is generally not desirable and open for the Court to record a decision on the merits of the pleas taken in the suit. ......Whatever findings have been recorded by the Courts below -- Whether the appellate Court or the Trial Court, those findings will not have any binding effect on the parties at the time of the final hearing of the case and it shall always be open to raise respective contentions and it is for the Court to decide according to law at that stage."
This Court laid down that where there is a case in which pleas are required to be answered, then it is said to be a prima facie case which requires trial and decision, while prima facie title of the parties had to be determined at the trial and final disposal of the suit. As regards possession whether possession had actually been delivered in terms of the agreement, no doubt, that has also to be decided at the time of final decision, but prima facie if documents reveal that possession had been delivered, then a person who is prima facie found to be in possession is entitled to protect his possession. In this case, I find that the lower appellate Court has not considered the question whether the plaintiff prima facie was shown to be in possession and whether the finding recorded by the trial Court was correct or incorrect. That finding remains intact and had not been interfered with by the appellate Court. The lower appellate Court appears to have embarked enquiries and proceeded with the decision as if it was deciding the claim made in the suit on merits which it was not open to it at this stage.
10. It may also to be observed that faith of the people in the institutions of judiciary has to be maintained by all those who are part and parcel of the institution, be it is the Presiding Officer, be it Member of the Bar of who are attached as members of the Staff and no impression should be given to anybody that judiciary is not acting fairly. The duty of the Court is also that when a relevant case law is placed before it, it has to apply its mind to the case and deal with them, either distinguishing them or following them. But, it is not fair if the cases which are cited before the Court are ignored from being considered. Such a course being adopted by any Court is likely to mar the image of the Courts. That will be a sad day. So, our Judicial Officers must be very cautious to take note of the case law cited before them.
11. In the present case, it appears that the approach of the Court below suffers from illegality as firstly it has not applied its mind to the question whether prima facie the plaintiff was in possession or not and it has not applied its mind on the point whether triable question was there or not and it has not applied its mind to the question and finding as to whether suit was filed on vexatious ground? Without applying its mind to the above mentioned questions, the Court has set aside the order. Whether suit is maintainable or not in view of Section 53A, that was also a question to be argued in the suit on merits and contentions, for and against, might have been made. Order 14 Rule 2 generally mandates the Courts to decide all the issues at one time and generally ordains against piecemeal trial except in cases which may be covered under Sub-rule (2) of Rule 2 of Order 14 where suit involves a pure question of law touching or affecting the jurisdiction of the Courts to entertain the suit or bars the suit. The trial Court might have thought that the suit requires full trial and prima facie plaintiff has been shown to be in possession and granted the injunction. So, it cannot be said that, in such a situation, the trial Court committed any error.
12. Any way, the suit is old one pending since 1995. The suit deserves to be disposed of at the earliest. In my opinion, the jurisdiction exercised by the lower appellate Court suffers from jurisdictional error coming within Clause 'c' of Section 115. It is also made clear and it is necessary to clarify that the findings, if any, are recorded either by the trial Court or by the appellate Court on the merits of the case, will not, and are expected not to affect the mind of the trial Court without deciding the suit. Even any observation, if any, is in the judgment of this Court, because this Court has observed so far question as prima facie possession is concerned this finding does not suffer from any error, this observation should not itself affect the mind of the trial Court.
13. With these observations, I allow the revision petition. The order passed by the trial Court granting temporary injunction is maintained and order of the appellate Court is set aside as it suffers from jurisdiction.
14. The revision is allowed. The order of the appellate Court is set aside and the order of the trial Court granting temporary injunction is maintained. The trial Court is directed to decide the suit expeditiously within a period of one year from the date of service of the copy of this order or direction. Costs of the revision are made easy.