Himachal Pradesh High Court
Defendant vs Murtu on 31 August, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
Reportable
.
RESERVED ON 23.8.2022
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 31st DAY OF AUGUST, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL MISC. PETITION MAIN (ORIGINAL) No.211 of 2022
Between:
SHRI BHAJNA NAND (AGED 75 YEARS)
SON OF SHRI UMA DUTT VILLAGE
NALAG, P.O. PAHAL, SUB TEHSIL
DHAMI, DISTRICT SHIMLA (HP)-171007.
....DEFENDANT-PETITIONER
(BY MR. BHUPINDER GUPTA, SENIOR
ADVOCATE WITH MR. JANESH
GUPTA, ADVOCATE)
AND
SHRI BHARAT RAM SON OF SHRI UMA
DUTT, VILLAGE NALAG, P.O. PAHAL,
SUB TEHSIL DHAMI, DISTRICT
SHIMLA (HP)-171007.
....PLAINTIFF-RESPONDENT
(MR. G.D. VERMA, SENIOR
ADVOCATE WITH MR. B.C. VERMA,
ADVOCATE)
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2
Whether approved for reporting?.
.
This petition coming on for admission this day, the Court passed the following:
ORDER
Instant petition filed under Article 227 of the Constitution of India, lays challenge to judgment dated 4.5.2022, passed by the learned District Judge Shimla, HP, in CMA No. 11-S/14 of 2022 (CNR No. HPSH100023452022, reversing the order dated 12.4.2022, passed by the learned Civil Judge-3, Shimla, r District Shimla, H.P., in CMA Filing No. 391/2022 (CNR No. HPSH 120003942022; Registration No. 215/2022) in CS No. 30 of 2022, whereby learned trial court dismissed the application filed by the respondent-plaintiff (hereinafter referred to as "the plaintiff") for grant of temporary injunction, restraining the petitioner-defendant (hereinafter referred to as "the defendant"), from causing interference in any manner by way of raising construction, digging and excavating the suit land.
2. Precisely, the facts of the case as emerge from the record are that plaintiff filed a suit for permanent prohibitory injunction as well as mandatory injunction against the defendant, claiming himself to be owner of the suit land. Plaintiff also prayed for permanent prohibitory injunction restraining the defendant from raising any kind of construction, digging, encroaching upon the suit land bearing khasra No. 565 or any portion ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 3 thereof and Khata Khatauni No. 57/55 to 60/58, total plots 105 measuring .
05-43-67 hectares situate at Mauja Nalag, Tehsil and District Shimla (HP) till the same is partitioned by metes and bounds. Alongwith the aforesaid suit, plaintiff also filed application under Order 39 Rules 1 & 2 CPC, praying therein to grant temporary injunction, restraining the defendant from causing any interference in the suit land till the disposal of the main suit. In the application, it came to be averred by the plaintiff that plaintiff and defendant are co-owner in the suit land and till date, same has not been partitioned by metes and bounds. Plaintiff averred that he has filed application for partition of the suit land before the Assistant Collector, 2nd Grade Dhami, which is pending adjudication. It has been further averred that until and unless, suit land is partitioned by metes and bounds, no co-
owner has right to change the nature of suit land either by way of raising construction or by way of excavation or digging up the specific portion of the suit land. Plaintiff alleged in the application that defendant, without seeking any permission from him, started raising construction on the suit land comprising khasra No. 565, which is a valuable portion of the land abutting to the road and in case, he is permitted to go ahead with the construction, irreparable loss would be caused to him, which cannot be compensated in terms of cash or any kind. Besides above, plaintiff prayed ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 4 that there is prima-facie case in his favour and balance of convenience also .
lies in his favour.
3. Aforesaid prayer made on behalf of the plaintiff came to be resisted by the defendant, who by way of reply to the application while admitting factum with regard to revenue entries qua the suit land claimed that though land is joint inter-se parties, but parties are in their settled possession as per the family arrangement, which took place between the parties 40 years ago and stands duly recorded in the revenue record.
Defendant also claimed that parties are in exclusive possession of the particular khasra number, which fact is duly recorded in the revenue record on the basis of actual possession that too after due verificaiton.
Besides above, defendant also submitted that plaintiff is in exclusive possession of khatauni No. 55 old (new khatauni No. 60) Kitas 49 measuring 02-51-07 hectares as per Jamabandi for the year 1997-98 and still so recorded in successive jamabandies for the years 2001-02, 2006-07, 2011-12 and 2016-17 and he is in exclusive possession of the suit land as per the family arrangement comprised in Khatauni No. 57 old (new khatauni No. 62) Kitas 51 measuring 02-83-39 and other remaining land in other khewats are still lying joint. Defendant also averred in the reply to the application that he has developed the land in his possession from time ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 5 to time by spending huge money and at no point of time, any objection .
came to be raised qua the same by the plaintiff. Defendant also submitted before the court below that on one hand, plaintiff himself has raised the construction of his house in the suit land by way of family arrangement but on the other hand he with a view to harass him has unnecessarily filed the instant suit. Defendant also submitted in the reply that both the parties have raised construction over the land in their possession as per family arrangement and plaintiff has not only exchanged the some portion of the land, but also gifted the land to him as well as some other persons. He submitted that since he is owner of half share of the khata, he cannot be termed as encroacher on his own land. He claimed that plaintiff is in possession of khasra No. 522 measuring 00-04-87 hectares situate at the distance of 150 meters and khasra No. 384 situate on the same vicinity i.e. within radius of 20 meters from the suit land is also adjoining and abutting to the road side. Lastly, defendant submitted before the court below that he is not raising any construction beyond/ exceeding his share.
4. Learned trial court on the basis of aforesaid pleadings adduced on record by the respective parties dismissed the application filed under Order 39 Rules 1 & 2 CPC by the plaintiff. Being aggrieved and dissatisfied with aforesaid order passed by the learned trial court refusing the ad-
::: Downloaded on - 02/09/2022 20:01:42 :::CIS 6interim injunction, plaintiff filed an appeal in the court of learned .
Additional District Judge, Shimla, which came to be allowed vide judgment dated 4.5.2022 (Annexure P-9). In the aforesaid backdrop, defendant has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to restore the order dated 12.4.2022, passed by the learned Civil Judge, Shimla, after setting aside the judgment dated 4.5.2022, passed by the learned District Judge.
5. Mr. Bhupender Gupta, learned Senior Counsel representing the petitioner-defendant vehemently argued that impugned judgment passed by the learned District Judge is not sustainable in the eye of law as same is not based upon the proper appreciation of the facts as well as law, as such, same deserves to be quashed and set-aside. While making this court peruse the pleadings adduced on record by the respective parties, Mr. Gupta contended that when at no point of time, factum with regard to family arrangement arrived inter-se parties forty years ago came to be disputed and it stands duly established on record that parties are in settled possession of the respective shares in the suit land, there was no occasion, if any, for the learned District Judge to reverse the findings of the learned trial court merely on the ground that family arrangement/settlement arrived inter-se parties forty years back was not placed on record. While ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 7 making this court peruse revenue record placed on record alongwith the .
application filed under Order 39 Rules 1 and 2 CPC, Mr. Gupta submitted that as per revenue record, both the plaintiff and defendant are in possession of their specific shares and both the parties prior to filing the suit at hand have already raised construction on the land under their possession. While fairly admitting that land comprising khasra No. 565 is abutting to the road, Mr. Gupta, submitted that as per revenue record and other material placed on record, land compromising khasra No. 522 on which, plaintiff has already raised construction is also abutting to the road.
Mr. Gupta argued that though suit land is joint inter-se parties, but since both the parties are in possession of their specific shares as given to them by way of family arrangement, defendant cannot be stopped from raising the construction on the land, which is exclusively in his possession. He stated that defendant is owner of one half of the property, whereas construction is being raised by him on the very small portion of the land comprising khasra No. 562. He strenuously argued that since no prima-
facie case exists in favour of the respondent-plaintiff and he himself has already raised construction on some portion of the joint land, there was no occasion, if any, for the learned District Judge, Shimla, to set-aside the finding returned by the learned trial court being based upon the proper ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 8 facts and law. With a view to prove that co-owner can be permitted to raise .
construction in the land still to be partitioned among co-owners, Mr. Gupta placed reliance upon Ajay Kumar and Ors v. Ishwar Dutt, 2021 (3) SLC 1714, Chaman Lal v. Smt. Dropti and Ors, 2021 (2) SLC 1145 and judgment dated 28.7.2022, passed by this Court in CMPMO NO. 431 of 2022 titled Dharam Prakash v. Jeet Ram, wherein it has been held that grant of temporary injunction is not to be claimed by a party as a matter of right nor can be denied by a court arbitrarily rather, discretion in this regard is to be exercised by a court on the basis of principles i.e. prima-
facie, balance of convenience and irreparable loss.
6. Per contra, Mr. G.D. Verma, learned Senior Counsel appearing for the respondent-plaintiff while supporting the impugned judgment passed by the learned District Judge, submitted that since no family arrangement depicting apportionment of the land inter-se plaintiff and defendant ever came to be placed on record, learned trial court could not have proceeded to conclude factum with regard to specific possession, if any, of the defendant over a specific portion of the land in the joint land on the basis of revenue record. Mr. Verma further submitted that since partition proceedings are pending adjudication before the Assistant Collector 1st Grade and defendant was aware of this fact, there was no ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 9 occasion for him to start the construction on the land, which is still to be .
partitioned. While referring to the revenue record placed on record, Mr. Verma, submitted that though as per revenue record, plaintiff and defendant are shown to be in the possession of the different khasra numbers in one khata number, but since khata is still to be partitioned by metes and bounds, defendant cannot be permitted to raise construction over one portion of the suit land. Mr. Verma further submitted that suit land comprising khasra No. 565, on which the plaintiff is intending to raise construction is most valuable portion of the suit land and in case, he is permitted to go ahead with the construction, plaintiff will suffer irreparable loss, which cannot be compensated in terms of money, whereas no prejudice, if any, would be caused to the defendant if he is restrained from raising the construction on the suit land comprising khasra No. 565 till the time entire suit land is ordered to be partitioned by metes and bounds. He submitted that it is well settled that till the time joint land is not partitioned by way of metes and bounds, there is right of every co-owner over every inch of joint land. Lastly, Mr. Verma submitted that otherwise also, since there is no illegality and infirmity in the judgment passed by the learned District Judge, Shimla, this court may not interfere with the same save and except it is established by the defendant on the record the finding returned ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 10 by the learned District Judge being not based upon proper facts and law .
are perverse. In support of his aforesaid submissions, he also placed reliance upon following judgments: Garment Craft v. Prakash Chand Goel, 2022 (4) SCC 181, Raj Kumar Bhatia v. Subhash Chander Bhatia 2018 (2) SCC 87, Sadhana Lodh v. National Insurance Co Ltd and Anr, 2003 (3) SCC 524, Jai Singh and Ors v. Gurmej Singh (2009) 15 SCC 747, Keshavadas Shridharao Savakar and Ors v. Assistant Commissioner and Land Acquisition Officer and Another, 2011 (11) SCC 476, Mangat Ram v. Gulat Ram (Since deceased) through his LRs Jagdeep Kumar and Ors, Latest HLJ 2011 (HP) 274, T. Ramalingerswara Rao (dead) through Legal Representatives and Another v. N. Madhava Rao and Ors, (2019) 4 SCC 608 and Ashok Kapoor v. Murtu Devi 2016 (1) Shim. LC 207.
7. Before ascertaining the correctness and genuineness of the aforesaid submissions made by the learned counsel for the parties, this Court, at the first instance deems, it fit to deal with specific question raised with regard to maintainability of the petition filed under Article 227 of the Constitution of India, laying therein challenge to the finding rendered by the learned District Judge in an appeal filed against the order passed by the learned trial court in application filed under Order 39 Rules 1 & 2 CPC.
::: Downloaded on - 02/09/2022 20:01:42 :::CIS 11At this juncture, it would be apt to take note of the judgment passed by the .
Hon'ble Apex Court in case titled Garmet Craft v. Prakash Chand Goel, 2022 4 SCC 181, wherein it has been specifically held that while exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court does not act as a Court of First Appeal to re-
appreciate, reweigh the evidence or facts upon which the determination under challenge is based. It has been further held in the afore judgment that supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. Power under Article 227 of the Constitution of India is to be exercised where there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion arrived at by the Courts below. Relevant part of the judgment reads as under:
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 12 the court or tribunal has come to. It is axiomatic that such .
discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2 has observed: (SCC pp. 101-102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds oftheir authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
8. There cannot be any quarrel with the aforesaid exposition of law laid down by the Hon'ble Apex Court because admittedly, while exercising supervisory jurisdiction under Article 227 of the Constitution of India, this Court cannot act as court of First Appeal and as such, cannot re-appreciate the evidence on facts while ascertaining the correctness of the order impugned in such proceedings. However, this Court would be justified in exercising power under Article 227 of the Constitution of India in such like cases where the findings are not based upon the evidence ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 13 available on record or same are so perverse that no reasonable person .
could possibly come to such a conclusion as has been arrived by the court.
9. Now being guided by the aforesaid principle of law laid down by the Hon'ble Apex Court with regard to exercise of supervisory jurisdiction under Article 227 of Constitution of India, this court proceeds to ascertain on the basis of material available on record whether findings returned by learned District Judge while setting aside the order passed by the learned trial court dismissing the application filed under Order 39 Rules 1&2 CPC are based upon material/evidence adduced on record by the respective parties or same is totally contrary to the record and the evidence.
10. No doubt, until partition is complete, parties are to be treated as co-owners in the joint land. It is well settled that possession of one of the co-sharers is possession of all in the eye of law, unless the person, who has been in exclusive possession asserts his title, in himself to the exclusion of the other co-sharers, which may amount to ouster. All the co-
owners have equal rights and coordinate interest in the property though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoy the possession equally to that of co-owner. It has been repeatedly held by Hon'ble Apex Court as well as this Court that a person, ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 14 who has been in the possession of joint property, is holding the property .
not only of himself, but also in favour of other co-sharers. Similarly, by now it is well settled that mere fact that one of the party is recorded as co-
owner of the suit land cannot deprive or suppress the right of other co-
owners to utilize the land by raising construction. Issue with regard to rights and liabilities of the co-sharers has been aptly dealt with by Coordinate Bench of this Court in case titled Ashok Kapoor vs. Murtu Devi 2016 (1) Shim. LC 207 (2015) ILR H.P.1312. Relevant paras of aforesaid judgment are as under:-
"46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:-
i) a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession.
ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.
(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.
(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-
owner out of possess ion can seek an injunction to prevent such act which is detrimental to his interest.
::: Downloaded on - 02/09/2022 20:01:42 :::CIS 15(v) before an injunction is issued, the plaintiff has to .
establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with.
(vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.
47. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff:-
(i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction;
(ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's right or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and
(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands."
11. In the case at hand, pleadings adduced on record by the respective parties clearly reveal that parties to the lis are recorded as co-
owners in the big chunk of the joint land. Copies of jamahbandis for the year, 1997-98, 2001-02, 2006-07, 2011-12 and 2016-17 with regard to suit land clearly reveal that though plaintiff and defendant are co-owners in the suit land, but in column of possession, they stand recorded in separate possession as per their respective shares. Though case of the ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 16 plaintiff is that defendant has raised construction on the suit land more .
than his share, but no material worth credence ever came to be led on record to rebut the revenue entries, perusal whereof clearly reveals that defendant is raising construction on the suit land measuring khasra No. 565, which as per the revenue records is in possession of the defendant.
Revenue record clearly reveals that defendant is in exclusive possession of the suit land comprising khasra No. 565 on the spot and it has been further claimed by the plaintiff that suit land comprising khasra No. 565 is more valuable being abutted to the road and same is trying to be grabbed by the defendant on the basis of his possession despite the fact that main Khata, in which entire suit land situate is not partitioned inter-
se parties. On the other hand, defendant has categorically submitted that plaintiff is in possession of the land measuring khasra No. 522 and 384 which are also adjoining to the roadside. Plaintiff has not specifically denied being in possession of khasra Nos. 522 and 384. Order passed by the learned trial court, which subsequently came to be set-aside by the order passed by the learned District Judge clearly reveals that defendant successfully proved by placing on record the photographs that plaintiff has constructed house/structure on the suit land comprising khasra No. 384.
Otherwise also, perusal of revenue record clearly reveals that plaintiff has ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 17 already raised construction on khasra Nos. 522 and 384 and as such, he is .
estopped at this stage to claim that defendant cannot be permitted to raise construction on the suit land till the time same is not partitioned by metes and bounds, especially when there is no dispute that defendant is in exclusive possession of the land comprising khasra No. 565. Learned trial court having taken note of the revenue record as has been detailed herein above, rightly arrived at a conclusion that when there is no dispute that parties are in possession of the separate khasra numbers in joint land and they have already raised some construction on the land in their possession and as such, there was no occasion for the learned District Judge to set-
aside the aforesaid finding on the ground that no family arrangement arrived inter-se parties was on record. True it is that family arrangement, if any, arrived inter-se parties never came to be placed on record by the defendant, but same time, revenue record as has been taken note by the learned trial court while dismissing the application filed under Order 39 Rule 1 &2 CPC was never rebutted by the plaintiff. Revenue record i.e. Jamabandi for the year 1997-98, 2001-02, 2006-07, 2011-12 and 2016-17 clearly reveals that parties to the lis though are joint owner of the land in question, but they are in possession of the specific khasra number in the joint land in one khata, if it is so, non-placing of family ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 18 arrangement/settlement, if any, by the defendant is of no consequence.
.
Once plaintiff himself has not denied the factum with regard to his having possession over some khasra numbers as is reflected in the revenue record placed on record, coupled with the fact that he has already raised construction on khasra Nos. 522 and 384, which are in his possession, he cannot be permitted to seek discretionary relief of injunction from the competent court of law on the ground that land is still joint and yet to be partitioned by metes and bounds. Leaving everything aside, this Court finds that defendant is raising construction only on small portion of land whereas he is owner of the half portion of the entire suit land. Plaintiff as well as defendant have already raised some construction on the land adjoining to the road and much area is vacant which is available for partition. Since it is not in dispute that defendant is already in possession of the land, over which he has raised some construction, coupled with the fact that plaintiff has already rasied construction on some portion of the land adjoining to the road and area of the land is still left, it cannot be said that construction if permitted would amount to ouster of the plaintiff from the suit land. Since defendant is intending to raise construction over the small portion of the land in his possession, no prejudice would be caused to the plaintiff in case he is permitted to go ahead with the construction, ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 19 especially when it stands established on record that plaintiff himself has .
already raised some construction on his portion of the land.
12. By now it is well settled that before grant of injunction, Court must be satisfied that the party praying for relief has a prima facie case and balance of convenience is in its favour. Besides above, while granting injunction, if any, Court is also required to consider that whether the refusal to grant injunction would cause irreparable loss to such a party.
Apart from aforesaid well established parameters/ingredients, conduct of the party seeking injunction is also of utmost importance, as has been held by Hon'ble Apex Court in case M/S Gujarat Bottling Co. Ltd. & Ors. Vs. The Coca Cola Co. & Ors., AIR 1995, 2372. In case a party seeking injunction fails to make out any of three ingredients, it would not be entitled to injunction. Phrases, "prima facie case", "balance of convenience"
and "irreparable loss", have been beautifully interpreted/defined by Hon'ble Apex Court in case titled Mahadeo Savlaram Shelke v.The Puna Municipal Corpn., J.T. 1995(2) S.C. 504 relying upon its earlier judgment in case titled Dalpat Kumar v. Prahlad Singh (1992) 1 SCC 719 has held as under:-
"...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 ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 20 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 existence of prima fade right and infraction of the enjoyment of him property or the right is a condition forthe 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 420 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 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 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 discretion in granting or refusing the relief of ad interim injunction pending the suit."
13. As has been stated hereinabove, conduct of the parties seeking injunction is very relevant for considering prayer made for injunction. In the case at hand, conduct of the plaintiff is not above the board. He after having raised construction on some portion of the joint land under his ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 21 possession, filed suit restraining the defendant from raising construction .
on the pretext that suit land is still un-partitioned. In case titled M/S Gujarat Bottling Co. Ltd. & Ors.' case supra, it has been categorically held that while passing interim order of injunction under Order 39 Rule 1 & 2 CPC, court besides taking into consideration three specific principles, i.e. "prima facie case", "balance of convenience" and "irreparable loss", must also take into consideration the conduct of the parties. In the case at hand, interestingly, plaintiff himself has already raised construction on the best piece of joint land and as such, his action of stopping other co-owner, i.e. defendant from raising construction on the specific portion of the land, adversely reflect upon his conduct and as such, he is otherwise not entitled to discretionary relief of injunction. Once plaintiff has been not able to dispute that defendant is co-owner in the suit land and he is in possession over specific portion of the suit land, over which, he is raising construction coupled with the fact that he has already raised construction on the best portion of the land, he is estopped from claiming discretionary relief of injunction on the ground that since suit land is still un- partitioned, defendant cannot raise construction.
::: Downloaded on - 02/09/2022 20:01:42 :::CIS 2214. Hon'ble Supreme Court in Seema Arshad Zaheer & Ors. Vs. .
Municipal Corporation of Greater Mumbai & Ors. (2006) 5 SCC 282, has held as under:-
"29. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands."
15. It can be safely inferred from aforesaid law laid down by this court that grant of temporary injunction is not to be claimed by a party as a matter of right nor can be denied by a court arbitrarily rather, discretion in this regard is to be exercised by a court on the basis of principles, as have been enunciated in the aforesaid judgment.
16. Consequently, in view of the detailed discussion made herein above, this court finds merit in the present petition, accordingly same is allowed and order/judgment dated 4.5.2022, passed by the learned District Judge, Shimla in CMA No. 11-S/14 of 2022, is quashed and set-
aside and order dated 12.4.2022, passed by the learned trial Court below ::: Downloaded on - 02/09/2022 20:01:42 :::CIS 23 is restored. Needless to say, observation/finding given in the instant .
judgment shall have no bearing on the merit of the main case, which shall be decided by the court below on the basis of totality of facts and law. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any.
31st August, 2022 (Sandeep Sharma),
manjit Judge
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