Allahabad High Court
Govardhan And 4 Others vs Smt. Jaldhara Devi Maha Vidyalay And ... on 9 December, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 66 Case :- MATTERS UNDER ARTICLE 227 No. - 3462 of 2020 Petitioner :- Govardhan And 4 Others Respondent :- Smt. Jaldhara Devi Maha Vidyalay And Another Counsel for Petitioner :- Rakesh Kumar Mishra Hon'ble J.J. Munir,J.
This petition under Article 227 of the Constitution is directed against an order dated 31.01.2020 passed by learned Additional Sessions Judge, Court No. 5, Hathras passed in Civil Revision No. 10 of 2016, allowing the said revision and setting aside an order of the Civil Judge (Senior Division), Hathras made in Original Suit No. 715 of 2013, rejecting the temporary injunction application made by the plaintiff. The learned Additional Sessions Judge has, by the impugned order, directed parties to maintain status quo regarding the property in dispute, pending suit.
2. Heard Mr. Rakesh Kumar Mishra, learned counsel for the petitioners.
3. O.S. No. 715 of 2013 was filed by the plaintiff-respondent nos. 1 and 2 against the defendant-petitioner nos. 1 to 4, arrayed as the defendants first set, and petitioner no. 5 along with four other defendants, arrayed as the defendants second set, seeking a mandatory injunction to the effect that defendant nos. 1 to 4 be ordered to remove their constructions standing over the suit property, denoted by letters 'A' 'B' 'C' 'D' in the plaint map and shown in red colour, and further that they should, after removal of the illegal constructions, remove debris of the demolished building, vacating the suit property within time, to be specified by the court; and upon failure to comply with the decree, the decree be ordered to be carried into execution through process of Court at the defendants' expense.
4. A temporary injunction application was made in the said suit, where it was alleged that the defendants are attempting to raise constructions over the suit property, in addition to the existing ones, in respect of which, a decree of mandatory injunction has been claimed. The basis of the suit appears to be that the plaintiffs are owners in possession of Khasra No. 52/5, admeasuring 0.5 hectares, situate in Kasba Hasayan. This land was originally a part of Khasra No. 52, admeasuring 1.405 hectares. Khasra No. 52 had a number of co-sharers. A suit for partition was filed by a co-sharer, being Suit No. 205 of 2010-2011, under Section 176/182 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 19501. The suit was decreed, where a preliminary decree was passed by the Revenue Court, on 24.08.2011. A final decree followed on 27.08.2011. In the final decree, lots were drawn and Khasra No. 52/5 fell to the plaintiff's lot. It is land bearing Khasra No. 52/5, admeasuring 0.55 hectares, which is the property in dispute.
5. After the Revenue Court passed a final decree for partition and Khas possession to be delivered to parties, an application was made by the plaintiff-petitioner no. 2 Durga Prasad, seeking that the land in dispute be declared an abadi under Section 143 of the Act of 1950. This application of the second petitioner's was registered as Case No. 15 on the file of the Sub-Divisional Magistrate concerned and the land in dispute was declared an abadi. Thus, the petitioners became owners in possession of the abadi. About two years ago, the plaintiffs established over the land in dispute an educational institution known as the Jaldhara Devi Inter College, Hasayan, District - Hathras. It was claimed that defendant nos. 1 to 4 to the suit, who are in connivance with the defendant nos. 5 to 9, are land grabbers and intended to usurp the property in dispute. The defendants first and second set are all kinsmen. About an year anterior to the institution of the suit, defendants first set, in connivance with the defendants second set, encroached upon a part of the property in dispute, the encroachment being 103 meters in length, running from East to West, and 4 meters in width, running from North to South. They illegally and forcibly constructed a pucca room and a kachcha boundary wall around that room. It is to remove the aforesaid encroachment that the suit for mandatory injunction was brought. Since the defendants intended to raise some further constructions in order to consolidate their possession and usurp a larger area of the plaintiffs' land, the temporary injunction application was made. The Trial Court rejected the temporary injunction application by an order dated 02.02.2016. The Trial Court went by the reasoning that the suit was one for mandatory injunction, where the defendants were in possession, wrongfully or rightfully. There was no relief by way of permanent prohibitory injunction, seeking to raise further constructions or doing further encroachment. In the opinion of Trial Court, in the absence of there being a permanent injunction claimed by way of prohibitory relief, the temporary injunction, prohibitory in nature, could not be granted in a suit where the relief sought was one for mandatory injunction alone.
6. The plaintiffs went up in revision to the learned District Judge, Hathras. The revision was numbered on the file of the learned Sessions Judge, Hathras as Civil Revision No. 10 of 2016. It was assigned to the learned Additional District Judge, Court No. 5, Hathras. The revision came up for determination before the learned Additional Judge, Hathras on 31.01.2020. The learned Additional Judge, Hathras by his jugdment and order dated 31.01.2020, allowed the revision and ordered both the parties to maintain status quo regarding the property in dispute, pending suit. The Revisional Court held that it is yet to be determined whether constructions raised by the defendants are ones that encroach into Khasra No. 52/5 on its southern side, or located in Khasra No. 50. This determination would have to await trial. The learned Additional District Judge held, however, that an interim injunction granting prohibitory relief to preserve the property in dispute pending suit could be granted, where the relief claimed is for a mandatory injunction. For the purpose, the Revisional Court relied on the decision of this Court in Shiv Ram Singh, Appellant v. Smt. Mangara & Others, Respondents2 and a decision of the Supreme Court in Meera Chauhan v. Harsh Bishnoi & Another3.
7. In the opinion of this Court, the purpose of an interim injunction under Order XXXIX Rule 1 and 2 of the Civil Procedure Code, 19084 is to preserve the property in dispute pending suit, where the property is in danger of being wasted, damaged or alienated by any party to the suit, or where the defendants threaten to dispossess the plaintiff, or otherwise cause injury to the plaintiff, in relation to the suit property. Rule 2 particularly postulates an injunction to restrain repetition or continuation of breach. Fundamentally, an interim injunction is designed to act in aid of the final relief and to eschew pendente lite injury by the wrongful action of one party against the other, before their rights are determined. In this connection, the provisions of Rule 1 and 2 of Order XXXIX may be quoted with profit :
1. Cases in which temporary injunction may be granted.- Where in any Suit it is proved by affidavit or otherwise--
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to 5[defrauding] his creditors, 6[(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,] the court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property 7[or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach.-(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
8. The Revisional Court, or for that matter, the Trial Court, do not doubt the fact that prima facie, the plaintiffs have title to and possession of Khasra No. 52/5. The dispute is whether on the southern boundary, there is an encroachment by the defendant-petitioners. The constructions sought to be removed by mandatory injunction are there, but the fact whether these constructions have been raised by the defendants in some part of Khasra No. 52/5 or in their own land, is yet to be determined. In case, during this period of time, the defendants raise further constructions there, or make more encroachment, it would complicate rights of parties and also cause more injury to the defendants, if at the hearing, it were found that in fact, the defendants are trespassers and have to be removed. Clause (c) of Rule 1 of Order XXXIX is designed to prevent the defendant from dispossessing the plaintiff or otherwise causing injury to the plaintiff vis-à-vis the suit property, until time that rights are determined. Rule 2 primarily relates to a remedy about restraining the defendants from committing a breach of contract or other injury of any kind. Rule 2 may relate primarily to cases of injuries flowing from breach of contract, but the scope of Rule 1 is wide enough to preserve immovable property in the state that it exists pending hearing of the suit, where a prima facie case is made out. The purpose is to preserve the property in its existing form and curtail as much mischief at an interlocutory stage as can be, before rights of parties to the property subject matter of the suit are determined. There is, therefore, no warrant to conclude that in a suit where the final relief is a mandatory injunction, preventive relief by way of temporary injunction cannot be granted. If the Court finds that a prima facie case is made out and the other two ingredients to grant a temporary injunction established, it matters little whether the final decree claimed in the suit is a mandatory injunction alone with no prohibitory injunction sought In this view of the matter, the impugned order passed by the Revisional Court cannot be faulted.
9. It was argued by learned counsel for the petitioners that an order disposing of a temporary injunction application is appealable as an order, under Order XXXIX Rule 1 (r) of the Code and that, therefore, a revision would not lie. He has relied upon the provisions of Section 115 of the Code, as amended, in their application to the State of U.P. vide Act No. 14 of 2003. Section 115 of the Code (as amended in its application to the State of U.P.) reads thus :
" 115. Revision.-(1) A superior court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court where no appeal lies against the order and where the subordinate court has-
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in exercise of its jurisdiction illegally or with material irregularity.
(2) A revision application under sub-Section (1), when filed in High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district court.
(3) The superior court shall not, under this section, vary or reverse any order made except where,-
(i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.
(4) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the superior court.
Explanation I. - In this section,-
(i) the expression ''superior court' means-
(a) the district court, where the valuation of a case decided by a court subordinate to it does not exceed five lakh rupees;
(b) the High Court, where the order sought to be revised was passed in a case decided by the district court or where the value of the original suit or other other proceedings in a case decided by a court subordinate to the district court exceed five lakh rupees;
(ii) the expression ''order' includes an order deciding an issue in any original suit or other proceedings.
Explanation II.-The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement. [Vide U.P. Act 14 of 20038, S.2] (emphasis by Court)
10. It is true that the power to revise an order of a subordinate court is available to a superior court, where no appeal lies against that order. The impugned order here is an order rejecting a temporary injunction application and that order is clearly appealable under Order XLIII Rule 1 (r) of the Code. Going by the provisions of Section 115 of the Code, a revision against the order passed by the Civil Judge would not lie to any superior court, including the District Judge. In that view of the matter, the learned Additional District Judge would not have jurisdiction to entertain and decide the civil revision, where the order impugned has been passed. But that is not the end of the matter in a case like the present one. If this Court were to technically hold the revision not maintainable and set aside the impugned order, the Court would, in fact, be restoring an illegal order on the merits of the parties' case. The impugned order made by the learned Additional District Judge is flawless on merits, may be passed in proceedings that were not competent. He could have required the plaintiffs to convert the revision into a miscellaneous appeal under Order XLIII Rule 1(r) of the Code and decided the same, may be, reaching the same conclusions. It is the essence of this Court's jurisdiction under Article 227 of the Constitution that interference with orders of subordinate courts and Tribunals is not to be made on grounds of illegality or even patent illegality alone. The order impugned should also be unjust and iniquitous. If the order is one that does substantial justice, and the flaw even about jurisdiction is one merely about the form of remedy, in the opinion of this Court, the order ought not be interfered with. Even if the plaintiffs were compelled to choose the remedy of an appeal under Order XLIII Rule 1(r) of the Code, it would lie before the same forum. Had the wrong remedy chosen made a difference in forum, different principles would apply. But, this is not the case here.
11. In the circumstances, this Court does not find the case to be one at all where the order impugned ought to be interfered with by this Court in exercise of its jurisdiction under Article 227 of the Constitution.
12. However, looking to the entirety of the circumstances that the parties are in strife, where there is apparently little dispute about title, but one over demarcation of their properties, giving rise to the cause of action involved, it would be in the interest of justice that the Trial Court may be required to expedite hearing and endeavour to conclude the trial within a period of eight months of the receipt of a copy of this order, in accordance with law.
13. This petition stands disposed of in terms of the aforesaid orders.
14. Let this order be communicated to the learned Additional District Judge, Court No. 5, Hathras through the learned District Judge, Hathras by the Joint Registrar (Compliance).
Order Date :- 09.12.2020 I. Batabyal/Anoop