Madhya Pradesh High Court
Rajesh Mishra vs Ram Vilas Singh Kushwaha on 12 March, 2015
Equivalent citations: AIR 2015 (NOC) 829 (M.P.) (GWALIOR BENCH)
W.P.3571/14 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No.3571/14
Rajesh Mishra
Vs.
Ram Vilas Singh Kushwaha
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Shri H.K.Shukla, Advocate for the petitioner.
Shri Harish Dixit, Advocate for the respondent.
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ORDER
( 12 / 03 /2015) This petition filed under Article 227 of the Constitution takes exception to the order passed by the trial Court dated 20.12.2013 whereby the application of the present petitioner/defendant preferred under Order 39 Rule 1 & 2 was rejected by the trial Court. The order passed in Miscellaneous Appeal No. 4/14 and 9/14is also called in question whereby the Lower Appellate Court in exercise of power under Order 43 Rule 1CPC passed injunction in favour of the respondent/plaintiff.
2. The necessary facts for adjudication of this order are that the respondent/plaintiff filed a suit for declaration and permanent injunction (Annexure P-3). Along with the said suit, he filed an application under Order 39 Rule 1 & 2 CPC (Annexure P-4). The present petitioner therein filed his counter claim and application under order 39 Rule 1 & 2 (Annexure P-5). In the said counter claim, he also prayed for grant of injunction. The trial Court heard the parties and passed the order dated 20.12.2013 (Annexure P-2).
3. Shri H.K.Shukla, learned counsel for the petitioner, submits that the property in question is situated at survey No. 1976, Gram Gospura. The said property is recorded in the revenue records in the name of petitioner's father, late Prem Narayan Mishra, who was a freedom fighter. It is the case of the petitioner that a rent agreement (Annexure P-10) was entered into between the petitioner and one Shri Sudhir Singh Parihar. As per the said agreement, the land in question was manned by said Sudhir W.P.3571/14 2 Singh Parihar for some time. However, the said rent agreement came to an end on 31.3.2013. It is contended by Shri Shukla that on 2.10.2013 the respondent/defendant forcibly entered into the property and took possession of it. A complaint was lodged in police station Thatipur on 3.10.2013 (Annexure P-7). It was followed by other complaints seeking protection from the police authorities. These complaints dated 10.10.2013 (Annexure P-8) and 21.10.2013 (Annexure P-9) are placed on record. It is the case of the petitioner that the respondent/defendant was never engaged as a tenant and he had forcibly taken possession of the property. The same stand is taken in the counter claim and the counter application. Shri Shukla referred para 3 of the plaint filed by the plaintiff, wherein it is averred that the rent was regularly paid by him to the present petitioner and entry in this regard is mentioned in the diary kept by the plaintiff in the handwriting of the present petitioner. He submits that this best evidence was not produced before the courts below which shows that the whole story of plaintiff is concocted and like house of cards.
4. The trial Court in order dated 20.12.2013 opined that the property in question is in the name of "Mangal Marriage Garden". The statutory authority under M.P. Shop and Establishment Act, 1958 issued a registration certificate dated 22.10.2010 in favour of the respondent/plaintiff. Apart from this, the trial Court has taken note of various documents which show that the said marriage garden was booked by the respondent/plaintiff. The stand of respondent/plaintiff was recorded that he is tenant at the rate of Rs.10,000/- per year. The trial Court after considering the documents filed by the plaintiff opined that the electricity bill was actually paid by the plaintiff. There exist internent connection and telephone connection for which payment is being made by the plaintiff. The trial Court gave a finding that the property tax for the period 1.4.2012 to 31.3.2013 is Rs.83621/- and, therefore, it is difficult to accept that plaintiff can be a tenant at the rate of Rs. 10,000/- per year only. On the basis of reasons assigned in the said order, the trial Court opined that although plaintiff is in possession of the property, his possession is in the capacity of W.P.3571/14 3 encroacher and, therefore, he cannot be permitted to enjoy injunction. The claim of present petitioner for injunction was also rejected on the ground that the plaintiff is in possession.
5. The petitioner and respondent/plaintiff filed miscellaneous appeals against the said order of the trial court. The miscellaneous appeals were registered as Misc. Appeal No. 4/14 and 9/14. The appeals were analogously heard and decided by the impugned order dated 5.5.2914 (Annexure P-1)
6. Shri H.K.Shukla, learned counsel for the petitioner, criticized this order by contending that the order of trial court and appellate is based on registration certificate issued under the Shop and Establishment Act. The said certificate was obtained on misrepresentation of fact. Accordingly, the statutory authority by order dated 24.5.2014 (Annexure P-14) cancelled the same. He drew attention of this court on Annexure P-14 which shows the cancellation of registration. Reliance is placed on Anenxure P-15 to submit that the internet connection stood terminated eight months before 16.7.2013. Thus, it is contended that the plaintiff's sole basis for obtaining injunction does not survive in view of said documents. Shri Shukla submits that the plaintiff is an encroacher. On the basis of illegal act and with the help of muscle men he encroached the property of the petitioner. He submits that the equity is not in favour of such litigant/plaintiff and, therefore, court below has erred in allowing the miscellaneous appeal of the plaintiff. He relied on the judgments cited by him before Lower Appellate Court (mentioned in para 20 of the said order). He submits that there is no justification in passing the order dated 5.5.2014. He submits that merely because possession is averred and shown, mechanically injunction cannot be granted. Lastly, Shri H.K.Shukla submits that apart from satisfying necessary ingredients for grant of injunction i.e., prima facie case, balance of convenience and irreparable injury, the courts must see the conduct of parties while considering the prayer for grant of injunction. He submits that injunction being an equitable relief is available only to a person who has a lawful claim. He relied on certain judgments in W.P.3571/14 4 support of his contentions.
7. Shri Harish Dixit, on the other hand, supported the order passed by the Court below. By taking this Court to various paragraphs of the appellate court's order, Shri Dixit contends that the appellate court has dealt with each and every aspect raised by Shri Shukla. He submits that the plaintiff has produced the diary which shows that there were entries and payments made by the parties in favour of the plaintiff who have booked the marriage garden for the purpose of marriage functions. He submits that the electricity bills, telephone bills and internet connection etc. were paid by the plaintiff. He fairly submits that although electricity connection is in the name of present petitioner, fact remains that payments arising out of those electricity bills were paid by the plaintiff. He submits that the petitioner was unable to show any material/documents regarding his possession on the property. On the contrary, the plaintiff was able to show that he has paid the aforesaid bills, marriage garden was booked on various occasions for which amount was received by the plaintiff etc. On the strength of these, it is submitted that the court below has not committed any error of law which warrants interference by this Court. He submits that limited injunction granted by Lower Appellate Court that plaintiff be not evicted without following due process of law, by no stretch of imagination, can be said to be either without jurisdiction or illegal in nature. In respect of aforesaid, he relied on 2001 (1) MPWN SN 3 (Bharosilal Vs. State of M.P.) and 2005 (3) MPLJ 213 (Waheed Khan Vs. Gyani Bai and others). Lastly, Shri Dixit submits that Sudhir Singh Parihar filed an affidavit in support of the plaintiff by contending that the marriage garden is being run by the plaintiff and he is only taking care of lighting and decoration of the marriage garden.
8. No other point is pressed by learned counsel for the parties.
9. I have heard learned counsel for the parties and perused the record.
10. The petitioner, along with the present petition, has filed the W.P.3571/14 5 document Annexure P-14 whereby the registration of marriage garden in favour of the plaintiff was cancelled by statutory authority. The respondent has not chosen to refute the genuineness of this document. The aforesaid factual backdrop shows that the petitioner has promptly informed the police authorities that the plaintiff has forcibly entered into the suit premises and he is an unauthorized occupant. There is not even an iota of material to show that the plaintiff was a tenant of the petitioner. In view of para 3 of the plaint averment, the entry regarding payment of rent is made by the petitioner in a diary maintained by the plaintiff. This was the best piece of evidence available with the plaintiff which was deliberately not produced. There is no justifiable reason assigned for the same. The courts below have rightly doubted and disbelieved the stand of the plaintiff that the land whose annual property tax is Rs.83,621/- can be given on rent for an amount of Rs.10,000/- per year. However, it is seen that the court below is impressed with the aspect of possession of the plaintiff. The reason for giving such finding is telephone, electricity and internet bills paid by the plaintiff, registration under the Shop Act and the continuance booking of marriage garden in favour of customers.
11. The petitioner has relied on various judgments before the court below which are referred in para 20 of order dated 5.5.2014. In the present case, it is clear that the petitioner has promptly lodged the reports about forcible action of encroachment on said property by the plaintiff before the police authorities. He approached from pillar to post for redresasal of grievances. For the reasons best known to the police authorities, no action was taken on the said police complaints. Perhaps the police authorities treated it to be a purely civil dispute. Taking advantage of police inaction, the plaintiff filed a suit seeking declaration that he be declared as a tenant. There is no material whatsoever to suggest that he is a tenant. Merely because an affidavit is filed at later stage by Sudhir Singh Parihar that will not create a strong prima facie material to establish that the plaintiff was a tenant. More so, when in the rent agreement dated W.P.3571/14 6 15.1.2011 (Annexure P-10), the present plaintiff had put his signature in the capacity of a witness only.
12. At the cost of repetition, in my opinion, there is no material at all to prima facie believe that plaintiff was a tenant. On the contrary, petitioner's repeated representations to the police authorities, prima facie establish that the the plaintiff is an encroacher, who forcibly entered the suit premises. The question is whether in these circumstances the injunction could have been granted by the court below in favour of the plaintiff. I find substantial force in the argument of Shri Shukla that the conduct of a party is a relevant consideration for grant of injunction.
13. The Apex Court in 2010 (2) JLJ 210 (Narendra Kante Vs. Aanuradha Kante and others) opined that, while considering an application for grant of injunction, the Court has not only to take into consideration the basic elements regarding existence of a parma facie case, balance of convenience and irreparable injury, it has also to take into consideration the conduct of the parties since grant of injunction is an equitable relief.
14. This Court in 1986 (1) MPWN 159 (Kamal Singh Vs. Jairam Singh) opined that temporary injunction cannot be claimed merely on the basis of possession. The possession must be legal. Possession of trespassers cannot be protected. Same view is taken by this Court in 1990(1) MPWN SN 136 (Dattatraya Vaishampayan Vs. Janakarya Vibhag Karmachari Grih Nirman Sahakari Samiti).
15. The Apex Court in AIR 1995 SCW 3521 (M/s Gujarat Bottling Co. Ltd. And ors. Vs. Coca Cola Company and ors.) opined as under:-
"In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his W.P.3571/14 7 conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief, His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39, Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad- interim or temporary injunction order already granted in the pending suit or proceedings."
16. Same view is taken by Supreme Court in 2008 (11) SCC 1 (Mandali Ranganna & Ors. Etc. Versus T. Ramachandran & Ors.) and 1983 (4) SCC 31 (Gangubai Bablya Chaudhary Versus Sitaram Balachandra Sukhtankar). In view of aforesaid judgments, it is clear that injunction cannot be granted as a matter of course or on mere asking. Apart from three necessary ingredients, i.e., prima facie case, balance of convenience and irreparable loss, the courts are required to see the conduct of the parties. In the present case, the best available evidence with the plaintiff (mentioned in para 3 of plaint) was deliberately suppressed which creates serious doubt about the status of the plaintiff as a tenant. No prima facie case is established by the plaintiff showing that he is a tenant. The conduct of plaintiff also suggest that he was not entitled for any injunction. Mere possession on the basis of forcible entry cannot be a ground for grant of injunction. If injunctions are granted in such cases, it will encourage trespassers and encroachers. They may mis use and abuse the judicial process. The judgments cited by Shri Harish Dixit are based on different factual backdrops. The said judgments have no application in the facts and circumstances of the present case.
17. As analyzed above, in my view, the order dated 5.5.2014 is bad in law and liable to be interfered with. The Courts below have erred in not granting injunction prayed for by the petitioner.
18. Resultantly, the application preferred by the plaintiff under W.P.3571/14 8 Order 39 Rule 1 & 2 is rejected. Accordingly, the order passed on 5.5.2014 (Annexure P-1) is also set aside. In the facts and circumstances of this case, the prayer of petitioner for grant of injunction is granted. The respondent/plaintiff is injuncted from creating any kind of hindrance in the marriage garden in question. It will not be open to the plaintiff to cause hindrance by himself or through anybody else. It is made clear that this finding of this order will not affect the merits of the case before the trial court in any manner. It is expected that the parties will cooperate with the proceedings before the court below and court below will make endeavour to decide the civil suit expeditiously.
19. Petition is allowed to the extent indicated above. No cost.
(Sujoy Paul) Judge vv