Madhya Pradesh High Court
State Of Madhya Pradesh And Anr. vs Hariom General Industries And Anr. on 3 April, 1991
Equivalent citations: 1993(0)MPLJ614, AIR 1992 MADHYA PRADESH 286, (1993) MPLJ 614 (1993) 2 CIVLJ 819, (1993) 2 CIVLJ 819
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT R.C. Lahoti, J.
1. The defendants are aggrieved by the impugned order of the trial court disposing of the prayer made by plaintiffs for grant of ad interim injunction whereby the defendant/appellants have been temporarily restrained from interfering with the use, enjoyment and possession of the suit property by the plaintiff/respondents and also from making its allotment and delivery of possession to anyone else.
2. The suit property consists of 47 Bighas 10 Biswas of land with superstructures in the nature of the factory building, go-downs, residential quarters, offices, well etc. and situated at Gospura, Birlanagar locality of city of Gwalior. The plaintiffs have narrated a long history of title alleging that they are in possession of the property and the authorities of the State were taking steps to strike off their names from the land records and were also attempting at their dispossession. It is also alleged that Act No. 15 of 1984, namely, Madhya Pradesh Nagariya Kshetron Ke Bhumiheen Vyakti (Pattadharit Adhikaron Ke Pradan Kiya Jana) Adhiniyam, 1984, though came into force, yet was not applicable to the suit property and still the defendant No. 4, namely, the Competent Authority under the Act had moved to make allotment of land in favour of others, casting a cloud on the title and rights of the plaintiffs and also causing apprehension of disturbance of possession to them. The plaintiffs seek a declaration of their title with an injunction restraining the defendants from interfering with their possession and making allotment of the land to others. An ad interim injunction in similar terms has also been prayed for.
3. The defendants in their written statement, as also in reply to the application for grant of temporary injunction, have denied the case of the plaintiffs with vehemence and taken up the plea that plaintiffs do not have any title in the suit property nor any right to possess the same and hence are liable to be evicted therefrom.
4. The trial court in its impugned order has found that the plaintiffs had made out a prima facie case; that they were in possession, prima facie not as trespassers; and that if not protected they would irreparably suffer if dispossessed or if the property in suit or any part thereof was allotted to others. With these findings, an ad interim injunction has been granted in favour of the plaintiffs.
5. The defendants No. 1 and 2 have come up in appeal.
6. At the hearing, the learned Government Advocate for defendants has vehemently attacked several findings recorded by the trial court and has submitted that if only the trial court would have taken care to peruse several documents filed by the parties, in the light of the law governing the property from time to time, then it would certainly have arrived at a finding that there was no prima facie case available to the plaintiff/ respondents and hence no injunction could have been granted in that case. The learned counsel for the plaintiff/respondents has, on the other hand, supported the impugned order on all counts.
7.1 During the course of hearing, a little strange and unusual fact came to the notice of the Court. The impugned order is dated 5-4-85. The suit was instituted on 28-6-84 im-pleading (i) the State of Madhya Pradesh through Collector, Gwalior; (ii) the Secretary, Industries Department, Government of M.P., Bhopal; (iii) the Municipal Corporation, Gwalior; and, (iv) the Competent Authority & A.D.M., Gwalior, as defendants. On record there is no mention that there is any other suit pending between the parties. However, during the course of hearing the learned counsel for the plaintiff/respondents pointed out that in favour of the same plaintiffs and as against the State there is yet another order of. injunction dated 11-5-84 touching this very property whereby the possession of the plaintiffs has been protected restraining the defendant/State from making any allotment of the land or properties in favour of anyone else and that order has stood confirmed in appeal on 5-4-85. A copy of the order dated 5-4-85 having been made available for perusal of the Court, the record of the proceedings of thai suit was called for.
7.2 It was noticed that as back as on 25-8-75 these very plaintiffs had filed a suit impleading (i) the State of Madhya Pradesh through Collector, Gwalior and (ii) the Tehsildar, Gwalior; in respect of this very property, registered as C.O.S. No. 200-A/75 in the Court of IVth Civil Judge, Class II, Gwalior, presently renumbered as C.O.S. No. I24-A/89 in the Court of VIIIth Civil Judge, Class II, Gwalior.
7.3 On being asked as to how and where had arisen an occasion and necessity for filing the subsequent suit when one suit was already pending along with an order of injunction in favour of the plaintiffs, the learned counsel for the plaintiff/respondents explained by saying that there were additional defendants in the subsequent suit and the occasion for filing the suit arose because of Act No. 15 of 1984 having been brought to Statute-Book during the pendency of earlier suit where under the Municipal Corporation and the Competent Authority-cum-A.D.M., Gwalior became active to deprive the plaintiffs of their possession over the property. This Court has grave doubts if it was open to the plaintiffs to have filed such a subsequent suit and whether or not the purpose would have been served or better served by praying for simple amendment in the earlier suit itself. This Court also cannot resist observing that presumably the plaintiffs have indulged in forum-hunting, because the earlier suit instituted on 25-8-75 has been valued at Rs. 200/- merely, while the later suit instituted on 26-8-84 has been valued at Rs. 45,960/-, though the property in both the suits is the same. However, it is not necessary to dilate much on this aspect of the matter because of the view that is being taken untimely in this order.
8. It can be presumed that the suit property is a valuable property situated in the city of Gwalior and must be priced at lacs, if not crorcs, looking to the market trends in lauded properties. Strangely enough the suit pending in the Court of VIIIth Civil Judge, Class II, Gwalior, i.e. C.O.S. No. 124-A/89 is proceeding ex parte against the State. Though written statement was filed and it appears that the State was hotly contesting the suit to begin with, but ever since 9-1-84 none is appearing in the Court for the defendants i.e. the State of M.P. through Collector, Gwalior, and Tehsildar, Gwalior. Thanks to the plaintiffs that they have been taking several adjournments for producing ex parle evidence and that is why the suit has not seen its end; otherwise the plaintiffs, could very well have got an ex parte decree in their favour dropping a final curtain on the controversy between the parties.
9. Not this one alone, but it has come to the notice of the Court on several occasions that there are several suits in the courts at Gwalior though pending but proceeding ex pane against the State and there are similar suits decided in which ex parte decrees have been passed against the State. If citizens, which the plaintiffs in those suits were, have been allowed to have their dues/claims settled through ex parte decrees, or if the State has chosen not to contest those suits because it was convinced of the justness or the rightfulness of the claims canvassed in those suits, then it is painful to notice why if at all the State forced those plaintiffs to file the suits in the Court of law. Why they were not given their dues or why their claims were not considered and settled giving relief to them when they had served notices under Section 80, C.P.C. on the State so as to avoid litigation in Courts? Otherwise what is the purpose behind retaining Section 80 in the Code of Civil Procedure which mandatorily provides for every suit against State being preceded by a notice of two months' duration.
9.1 In Raghnath Das v. Union of India, AIR 1969 SC 674, their Lordships highlighted the object of the notice under Section 80, C.P.C. in litigation against State in following words (para 8):--
"The object of the notice contemplated by Section 80, Civil P. C. is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to-make amends or settle the claim, if so advised without litigation. The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations."
9.2 In State of Punjab v. Geeta Iron & Brass Works Ltd., AIR 1978 SC 1608, their Lordships once again reiterated the law saying (para 4):--
"A statutory notice of the proposed action under Section 80, C.P.C. is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted. A litigative policy for the State involves settlement of governmental disputes with citizens in a sense of conciliation rather than in a fighting mood."
9.3 On the contrary, if the claim preferred by any plaintiff is false or frivolous or is at least such as deserves to be contested so as to invite adjudication from the competent Court oflaw, then why the State chooses to remain ex parte and go by default? The apprehension is inherent that by means of ex parte decree or ex parte proceedings on account of negligence, carelessness or inadvertence on the part of the State or its officials or the Government Advocate or Panel Lawyers (and sometimes convenience thereof too) the State runs the risk of losing its valuable public property by conceding or defaulting it to private litigants, unscrupulous sometimes.
9.4 The Government Advocates and the Panel Lawyers frequently change. The changes take place often with the change in political scenario. In Ku. Shrilekha Vidyarthi v. State of U.P., (1990) 4 JT (SC) 211 : (AIR 1991 SC 537), their Lordships have condemned en bloc change in holders of the office of Government, Advocates without application of mind to individual cases, holding such action to be arbitrary.
9.5 It is well known that in every suit instituted against the State, there is an officer in-charge appointed. The Collector is the accredited attorney of the State and the law has vested confidence in him, hoping that he would take care of the State as a litigant and protect its interests just as a guaidian ad interim or a next friend would do of a minor litigant. It is necessary to streamline the working of the office of the Collector in so far as the litigation section is concerned, so that a responsible officer is fixed with the responsibility of keeping a watch and touch on and with those entrusted with legal cases on behalf of the State in the subordinate courts and the State and public at large do not suffer by lapse or default on the part of any one concerned, 9.6 The legal section in the office of the Collector must maintain a record of the cases instituted on behalf of or against the State. In the event of an Officer In-charge being changed or rendered unable to work, say, on account of transfer, retirement, suspension or otherwise, another officer in-charge should be promptly appointed and intimation given to the court concerned and the advocate in-charge of the case. So also in the event of a Government Advocate or a panel Lawyer vacating his office, he should be obliged to inform the Collector in writing so that the case may be assigned to his substitute or successor under intimation to the Court and the Officer In-charge of the case. In the event of a case going by default, the matter should not be left at that, but apart from seeking restoration, steps should be taken to fix the responsibility and taking action against the erring official, so that the public property is not wasted or unjustly lost and the public at large do not suffer consequently. It is expected that the Law Department of the State would act and do the needful.
9.7 The Government Advocate having been appointed at any place, a practice can be adopted or prescribed that all matters filed by or against the State are entrusted to the Government Advocate having it to his discretion to distribute the briefs amongst additional hands and the panel lawyers. One matter should be assigned to one hand and that hand must remain in charge of that matter till its end. Briefs changing hands with every next date of hearing are sure to remind one of the morale flowing from the popular saying "Too many cooks spoil the mess".
10. The State is one of the largest litigants. The State is awarded a treatment by courts of law, same as any other litigant deserves. Their Lordships in Collector, Land Acquisition, Ananantnag v. Mst. Katiji, AIR 1987 SC 1353, took judicial notice of the experience of lethargy on the part of the State as a litigant on account of its being an impersonal machinery (no one in charge of the matter directly hit or hurt by the adverse judgment) and the inherited bureaucratic methodology imbued with the note-making, filed pushing and passing-on-the-back ethos, less difficult to understand, more difficult to approve. Their Lordships observed (at p. 1354) :--
"In any event the State which represents the collective cause of the community, does not deserve a litigant non-grata status."
10A. Now merits of the case at hand. It is not proposed to repeat and burden this order with enumeration and analysis of several documents filed by the parties because that exercise has already been done, satisfactorily in the opinion of this Court> by the court below, in its impugned order. Suffice it to say that the plaintiff may win or fail ultimately, but at this stage he has certainly raised serious questions of law and facts deserving a trial by the Court. The case pleaded by the plaintiff does not appear to be false or frivolous ex facie.
11. As to what is a prima facie case in the context of prayer for the grant of ad-interim injunction, eminent jurist G.P. Singh J. (as his Lordship then was) spoke in Shankarlal v. State of M.P., 1978 MPLJ 419:--
"Although it is often said that plaintiff must show a prima facie case in support of the right claimed by him in the suit before he can be granted temporary injunction, the "real thing to be seen is only that plaintiffs claim is not frivolous or vexatious; in other words that there is a serious question to be tried. Plaintiff is not required to make out a clear legal title but has to satisfy the Court that he has a fair question to raise as to the legal right claimed by him in the suit. It is not the function of the Court at that stage to resolve disputed questions of fact or difficult questions of law which should be left to be decided at the conclusion of the trial."
12. In Tahir Ali v. Cantonment Board, Mhow, (1980) 2 M.P.W.N. 95, this Court summed up the law in the following words:--
"Injunction is a preventive relief granted to a litigant quia t'est. The predominant purpose is to preserve the subject matter of the suit is status quo.
It is a trite law that the principles which govern the exercise of the discretion conferred on Court under Order 39 Rules 1 and 2 for grant of temporary injunction are that the applicant seeking temporary injunction must satisfy the Court:--
(i) That there is a prima facie case.
(ii) That to protect him from irreparable injury Court's injunction is necessary;
(iii) The balance of convenience lies in the issuance of the temporary injunction.
For the purpose of prima facie case the real thing to be seen is only that "plaintiffs claim is not frivolous or vexatious and that there is a serious question to be tried. It is not that the plaintiff is required to make out a clear legal title, he is only required to satisfy the Court that he has a fair question to raise as to the legal right claimed by him in the suit. At that stage it is not the function of the Court to resolve the disputed question of fact or difficult question of law; they are to be left to be decided at the conclusion of the trial."
13. In Durg Transport Co. Private Ltd. Durg v. R.T.A., Raipur, AIR 1965 Madh Pra 142 a Division Bench of this Court observed:--
"A stay order or an ad-interim injunction is issued to maintain and preserve the status quo existing at the time of the institution of the proceedings. The real point, which has to be decided when an application for stay or for a temporary injunction is made, is not how the question ought to be investigated; but it is whether the matter should not be preserved in status quo until the question can be finally disposed of."
14. Reference may also be had to The State of M.P. v. Mohammad Hanif, 1983 M.P.W. No. 34; Mohan v. Narain, 1983 M.P.W. 170 and Krishnarao v. Kesharsingh, 1983 M.P.W. No. 466.
15. The learned Government Advocate has submitted that there are questions arising as to whether the several predecessors-in-title of the plaintiffs in view of the limited nature of title which vested in them could at all have transferred the property to their respective successors; whether the law relating to land applicable to this part of the State would leave the title surviving in the predecessors of the plaintiffs and would rather vest the same in the State. The Government Advocate submits that the plaintiffs are rank traespassers and the Court of law should not show indulgence in protecting their possession. Suffice it to observe that on the basis of several documents placed on record by the plaintiffs, it will be a pill difficult to swallow to hold the plaintiffs as rank trespassers. Though the title is certainly questionable, nevertheless, as already noticed, the plaintiffs claim cannot be called frivolous or vexatious. There are serious questions to be tried. Hence, the plaintiffs do have a prima facie case.
16. As the plaintiffs are admittedly in. possession of the suit property, the balance of convenience lies in their favour. If dispossessed from the suit property and/ or if the suit property or parts thereof are allotted to third persons and/or settled with the occupants under Act No. 15 of 1984, there would be multiplicity of litigation, complexity of proceedings and certainly injury to the plaintiffs which may not be capable of being repaired.
17. The questions as to the balance of convenience and irreparable injury deserve to be answered, and have been rightly answered by the court below, in favour of the plaintiff.
18. The learned Government Advocate has submitted that the plaintiffs have not paid proper court-fees and, therefore, the plaint deserves to be rejected. That is an argument, which deserves to be taken care of primarily by the trial Court.
19. Last but not the least, the learned government Advocate has also submitted and rather with vigour and force that the plaintiffs are realising substantial rent every month from the suit property and if the Court were to protect the possession of the plaintiffs, maintaining the injunction granted by the trial Court, then this Court should appoint a Receiver to realise rent or at least direct the plaintiffs to deposit the rent in the court so that in the event of the suit being dismissed, the rent realised may be available to the State. Reason and reasonability are writ large in the prayer made by the learned Government Advocate. However, entertaining this prayer at this stage would tantamount to usurping the jurisdiction of the trial court and also taking the plaintiffs by surprise. Such a prayer was not made before the trial court and not even in the memo of appeal filed in the year 1985. It will be in the fitness of things if liberty is left open to the State to make such a prayer to the trial court which if made, shall be considered and disposed of by the trial court on its merits.
20. For the foregoing reasons the impugned order deserves to be confirmed and the appeal deserves to be dismissed, however, subject to certain observations as made hereinafter.
21. It will be needless wastage of public time and money if the two suits instituted by the plaintiffs are permitted to proceed separately in two courts. C. O. S. No. 124-A/89 is pending in the Court of VIIIth Civil Judge, class II, while C.O.S. No. 200-A/S5 is pending in the Court of Additional District Judge, Gwalior. It is directed that C.O.S. No. 124-A/89 pending in the Court of VIIIth Civil Judge Class II, Gwalior shall stand transferred to the Court of IVth Additional Judge to the Court of District Judge, Gwalior, both suits to be heard and disposed of together. Outwardly, it appears that there are 4 defendants in the later-instituted suit while only two in the earlier-instituted suit, but substantially, the interests of all the four defendants are the same. Substantially the pleas raised are similar. Both the suits are, therefore, directed to be consolidated. The trial Court shall proceed to try consolidated issues to be drawn up by the IVth Additional Judge to the Court of District Judge, Gwalior.
22. The earlier suit was instituted in the year 1974, The later suit was instituted in the year 1984. Of course, a period of 5 years has been lost during the pendency of this appeal in this Court. In view of the time that has already been lost, it is directed that the trial Court shall now proceed expeduiously with trial of consolidated suits and as far as practicable conclude the trial within a period of one year.
23. Subject to the abovesaid direction as to consolidation and the observations made in the interest of expeditious trial, the appeal is dismissed. There shall be no order as to costs. Counsel fee as per schedule, if certified.
24. Parties through their respective counsel are directed to appear in the Court of IVth Additional Judge to the Court of District Judge, Gwalior on 29-4-91.
25. While hearing any subsequent interlocutory application which might be filed in the case and also at the trial of the issues in the suits, needless to say, the trial court shall not feel embarrassed by whatever the trial court had said in passing the impugned order or by the fact that this appeal has been dismissed.
26. Let copies of the order be communicated to the District Judge, Gwalior and also to the Vlllth Civil Judge, Class II, Gwalior to enable transfer of C.O.S. No. 124-A/89 to the Court of IVth Additional Judge to the Court of District Judge, Gwalior.
27. Let copies of the order be also communicated to the Chief Secretary, The Secretary Law Department, and the Collector Gwalior, inviting their attention to the observations made by this Court in paras 7, 8 and 9 above.