Himachal Pradesh High Court
__________________________________________________ vs Himachal Pradesh Waqf Board And Ors on 15 October, 2019
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. : 185 of 2012
.
Decided on : 15.10.2019
__________________________________________________
Jaspal Singh ......Appellant
Versus
Himachal Pradesh Waqf Board and Ors. ........Respondents
Coram:
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? Yes.
For the appellant : Mr. G.D. Verma Sr. Advocate with
Mr. B.C. Verma, Advocate.
For the respondents : Mr. R.K. Bawa, Sr. Advocate with
Mr. Ajay Kumar Sharma, Advocate,
for respondent No. 1.
Mr. G.C. Gupta, Sr. Advocate, with
Ms. Meera Advocate for respondent
No. 2.
Jyotsna Rewal Dua, Judge (Oral)
Challenge in the instant appeal is to the order dated 3.4.2012 passed by the learned District Judge, (Exercising the powers of Tribunal under Wakf Act), Shimla, whereby application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as CPC) ::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 2 moved by the respondent No. 1/plaintiff was allowed with following operative directions:-
.
"... The allegations of the plaintiff could not be treated without any basis. As such, the defendant No. 1 is liable to be restrained from further transferring the possession of the suit shop to third parties. The defendants No. 1 and 2 are also restrained from carrying out partition of the suit shop. The application under Order 39 Rules 1 and 2 read with Section 151 CPC of the plaintiff is accordingly allowed. Nothing herein contained shall be deemed as an expression of opinion on the merit of the dispute...."
2. The parties hereinafter are being referred as they were before the learned Court below.
3. Brief facts necessary for adjudication of this appeal may be noticed hereinafter:-
3(i) Suit for permanent prohibitory injunction was filed by the plaintiff primarily seeking following prayer:
"(a) Restraining the defendants to handover the possession of shop No. 123/7 situated at Lower Bazar Shimla to third person and to change the nature of the said shop and to cause any damage to the said shop and to affect partition of the shop in ::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 3 question in any manner whatsoever through their legal heirs, representatives, assigns, agents, servant etc....."
.
3(ii) The basis of the prayer as contained in the plaint was:- plaintiff is owner of shop in dispute situated at Lower Bazar Shimla; shop was given on rent to one Sh. Bhupinder Singh, father of the the defendant No. 1 by the then Punjab Waqf Board (now Himachal Pradesh Waqf Board) on monthly rent of Rs. 70.20 paise; however, rent w.e.f. 1.4.1985 had not been paid till the filing of the plaint; plaintiff had come to know from print media that defendant No. 1, claiming to be the owner of the shop in dispute being son of Sh. Bhupinder Singh, had sublet the shop to defendant No. 2; defendant No. 2 claimed himself to be the owner in possession of the shop; on this account, there was a dispute going on between both the defendants and the matter had also been reported to the local police; to the knowledge of the plaintiff, both the defendants were negotiating with strangers for transferring the possession of the shop for a handsome amount against the interest of plaintiff; plaintiff also apprehended about defendants effecting partition of the shop in question; plaintiff therefore pleaded that irreparable loss and injury will be caused ::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 4 to the plaintiff in case the defendants are not restrained from parting with the possession of the shop and from effecting .
partition of the shop.
3(iii) Separate written statements were filed by both the defendants. Defendant No. 1 asserted that:- he is the tenant in the premises; he had not sublet the shop in question to anyone;
the suit has been filed by the plaintiff in collusion with defendant No. 2; litigation in resepct of the title of the property in question was already pending between the plaintiff and Custodian Department; the defendant No. 2 was not his subtenant, but was actually his servant.
3(iv) Defendant No. 2 in his written statement took a stand that:- he alongwith his brother are in exclusive possession of the suit premises w.e.f. 2.10.1996 and were continuously carrying out business in the name and style of Fashion King; this fact was in the knowledge of the plaintiff from the very beginning; defendant No. 1 had threatened defendant No. 2 and his brother of forcible dispossession from the shop, whereafter the matter was reported to the police on 30.10.2011; the situation was defused at that time, however on 31.10.2011 defendant No. ::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 5 1 forcibly placed his locks over the premises; consequently, defendant No. 2 and his brother lodged an FIR under Sections .
448 and 342 of IPC; having failed to get the possession of the shop, defendant No. 2 approached SDM Urban, Shimla under Section 145 Cr. P.C., who vide order dated 3.11.2011 refused to take cognizance of the matter; this order has been further challenged by defendant No. 2; these proceedings are still pending adjudication before competent authority; defendant no.
2 and his brother had been paying Rs. 6000/- per week to defendant No. 1 as rent, in lieu of the tenancy rights sublet to them by defendant No. 1.
4. The application moved by the plaintiff under Order 39 Rule 1 and 2 CPC was allowed vide impugned order dated 3.4.2004, the operative part of which has been extracted above.
Feeling aggrieved, instant appeal has been preferred by defendant No. 1.
4(i) I have heard Mr. G.D. Verma, learned Sr. Counsel for the appellant/defendant No.1, Mr. R.K. Bawa, learned Sr. Counsel for respondent No. 1/plaintiff and Sh. G.C. Gupta, ::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 6 learned Sr. Counsel for respondent No. 2/defendant No. 2 and with their assistance have gone through the record.
.
Observations:
4(ii) In my considered opinion, the directions contained in the operative part of the impugned order do not suffer from any illegality or material irregularity for the following reasons:
(a) There is no dispute between the parties that plaintiff is the owner of the suit premises.
(b) Suit premises were given on rent to one Sh.
Bhupinder Singh. Defendant No. 1 is son of Sh. Bhupinder Singh.
(c) Defendant No. 2 claimed to be in possession of the shop on payment of Rs. 6000/- per month as rent to defendant No. 1. This fact has been disputed by defendant No. 1. Dispute between both the defendants in respect of suit property is an alive and apparent fact and in fact, proceeding under Section 145 of the Cr. P.C. in this regard between the two defendants is pending adjudication.
(d) In such circumstances, the apprehension of the plaintiff that both the defendants are negotiating with strangers ::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 7 for handing over the possession of the shop/suit premises or the apprehension that they may effect partition of the suit property .
causing irreparable loss and injury to the plaintiff, can not be said to be unfounded or without substance. In view of ongoing dispute between the two defendants in respect of suit premises, plaintiff would certainly be justified in seeking to protect the suit premises, admittedly owned by it. In respect of parameters for grant of injunction under Order Rule 1 and 2 CPC. Hon'ble Apex Court has observed in (2009) 11 SCC 229, titled Kishorsinh Ratansinh Jadeja Vs. Maruti Corporation and Others., as under:-
"36 .It is well established, that while passing an interim order of injunction under Order 39 Rules 1 and 2 CPC, the court is required to consider three basic principles, namely,
(i) prima facie case;
(ii) balance of convenience and inconvenience; and
(iii) irreparable loss and injury;
None of the said principles have been considered by the High Court while passing the second and third interim orders dated 22.4.2008 and 7.5.2008, nor has the High Court taken into account the long silence on the part of Respondent 1 Corporation in filing a suit after 19 years."
::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 8It has further been observed by Hon'ble Apex Court in (2009) 10 SCC 388, titled Zenit Mataplast Private Limited Vs. .
State of Maharashtra and Others., in paras No. 30, 32 and 33 as under:-
"30. Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (vide Anand Prasad Agarwalla vs. Tarkeshwar Prasad (2001)5 SCC 568 and State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha (2009)5 SCC 694.
31. Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan and Shridevi V. Muralidhar) Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction [vide S.M. Dyechem Ltd. V. Cadbury (india) Ltd. and Anand Prasad Agarwalla, SCC P. 570, para 6] ::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 9
32. In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court .
hearing the application or petition for the grant of injunctions are as below :
(i) Extent of damages being an adequate remedy;
(ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;
(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others;
(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;
(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case;
(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;
(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise."
33. In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., (1992) 1 SCC 719, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-
"6........The phrases `prima facie case', `balance of convenience' and ` irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations ::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 10 presented by men's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion .
to meet the ends of justice. The facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience."
It has further been observed by Hon'ble Apex Court in (2013) 9 SCC 221, titled Mohd. Mehtab Khan and Others Vs. Khushnuma Ibrahim Khan and Ors., in paras No. 17, 18 and 19 as under:-
"17........It is neither feasible nor practical to take the view that interim matters, even though they may be inextricably connected with the merits of the main suit, should always be answered by maintaining a strict neutrality, namely, by a refusal to adjudicate. Such a stance by the courts is neither feasible nor practicable. Courts, therefore, will have to venture to decide interim matters on consideration of issues that are best left for adjudication in the full trial of the suit. In view of the inherent risk in performing such an exercise which is bound to become delicate in most cases the principles that the courts must follow in this regard are required to be stated in some detail though it must be made clear that such principles cannot be entrapped within any straitjacket formula or any precise laid down norms. Courts must endeavour to find out if interim relief can be granted on consideration of issues other than those involved in the main suit and also whether partial interim relief would satisfy the ends of justice till final disposal of the matter. The consequences of ::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 11 grant of injunction on the defendant if the plaintiff is to lose the suit alongwith the consequences on the plaintiff where injunction is refused but eventually .
the suit is decreed has to be carefully weighed and balanced by the Court in every given case. Interim reliefs which amount to pre-trial decrees must be avoided wherever possible. Though experience has shown that observations and clarifications to the effect that the findings recorded are prima facie and tentative, meant or intended only for deciding the interim entitlement of the parties have not worked well and interim findings on issues concerning the main suit has had a telling effect in the process of final adjudication it is here that strict exercise of judicial discipline will be of considerable help and assistance. The power of self-correction and comprehension of the orders of superior forums in the proper perspective will go a long way in resolving the dangers inherent in deciding an interim matter on issues that may have a close connection with those arising in the main suit.
18. There is yet another dimension to the issues arising in the present appeal. The interim relief granted to the plaintiffs by the Appellate Bench of the High Court in the present case is a mandatory direction to handover possession to the plaintiffs. Grant of mandatory interim relief requires the highest degree of satisfaction of the Court; much higher than a case involving grant of prohibitory injunction. It is, indeed, a rare power, the governing principles whereof would hardly require a reiteration inasmuch as the same which had been evolved by this Court in Dorab Cawasji Warden vs. Coomi Sorab Warden and Others has come to be firmly embedded in our jurisprudence.
19. Paras 16 and 17 of the judgment in Dorab Cawasji Warden (supra), extracted below, may be usefully remembered in this regard:::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 12
"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.
17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case.
Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying ::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 13 them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
.
Applying the above well settled parameters for grant of injunction to the facts of instant case, no infirmity can be found in the directions issued in the impugned order passed by the learned District Judge (Exercising the powers of Tribunal under Wakf Act).
5. Sh. G.D. Verma, learned Sr. Counsel for the defendant No. 1/appellant has made a statement at bar that his client/defendant No. 1 undertakes not to transfer the possession of the suit premises to 3rd party, in terms of directions issued in the impugned order. However, he has expressed his strong objections to certain observations contained in the impugned order in respect of proceedings under Section 145 Cr. PC as well as reference to alleged possession of defendants over the suit premises and observations in respect of rent amount paid by defendant No. 2 to defendant No. 1. In my considered view, some of these observations made in para 16 and 17 of impugned order perhaps were not necessary at this stage of adjudication of application under Order 39 Rule 1 and 2 of the Code of Civil ::: Downloaded on - 18/10/2019 20:24:12 :::HCHP 14 Procedure. Learned Court below though has itself observed that observations made in the order are only meant for adjudication .
of the application, yet by way of abundant caution, it is ordered that learned Court below shall decide the main matter on its own merit in accordance with law, independently, without being influenced by any of the observations including those contained observations, petition r to in para 16 and 17 of the impugned order.
stands disposed off
With these
along with
Miscellaneous applications, if any. Parties through their learned counsels are directed to remain present before learned trial Court on 5.11.2019. Record is ordered to be returned forthwith.
(Jyotsna Rewal Dua) Judge October 15, 2019 (Anant Parihar) ::: Downloaded on - 18/10/2019 20:24:12 :::HCHP