Allahabad High Court
Shakir Khan And 2 Others vs Smt. Chameli Dass And 9 Others on 7 February, 2018
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 19 Case :- MATTERS UNDER ARTICLE 227 No. - 6569 of 2017 Petitioner :- Shakir Khan And 2 Others Respondent :- Smt. Chameli Dass And 9 Others Counsel for Petitioner :- Amit Krishna Counsel for Respondent :- Vishwa Pratap Singh,Tarun Varma Hon'ble Manoj Kumar Gupta,J.
A supplementary affidavit has been filed today, which is taken on record.
Sri Tarun Verma, learned counsel for the plaintiff-respondents states that he does not wish to file any reply to the same and the matter may be heard.
The petitioners, by means of instant petition, have questioned the validity of an order of exparte ad interim injunction dated 30.5.2017 passed by the trial court in Original Suit No.210 of 2017 and the order dated 7.10.2017 passed by Additional District Judge, Court No.10, Bareilly in Misc. Civil Appeal No.32 of 2017 dismissing the appeal and affirming the order of the trial court subject to certain modification.
Original Suit No.210 of 2017 was instituted by the plaintiff-respondents against the petitioners and defendant-respondents for permanent prohibitory injunction restraining the defendants from interfering in their possession, enjoyment and the construction work, which was being undertaken by the plaintiffs over the suit property. Plaintiff no.1 claimed that he had purchased part of the suit property, the description whereof was given at the foot of the plaint, from Jitendra Kapoor, registered power of attorney holder of Ram Sahai. Plaintiff no.2 also claimed title over another part of the suit property, also on the basis of sale deed dated 15.2.2012, executed in his favour by Jitendra Kapoor, registered power of attorney holder of Ram Sahai. Plaintiff no.3 claimed title to yet another part of the suit property on basis of registered sale deed dated 25.2.2012 executed in his favour by Jitendra Kapoor, registered power of attorney holder of Ram Sahai. They claimed that on 25.5.2017 they had collected building material for construction of a residential building, but on 28.5.2017 the defendants interfered in the construction work, compelling them to institute the suit. The plaintiff-respondents also filed an application seeking temporary injunction and prayed for grant of ad interim exparte injunction on the date, the suit was instituted. The trial court, by impugned order dated 30.5.2017, after referring to the three sale deeds in favour of the plaintiffs held that in case exparte injunction is not granted in their favour, the very object of filing suit would stand defeated. Accordingly, the defendants were restrained from interfering in the possession of the plaintiffs as well as in their right to raise constructions over the suit property.
The petitioners, who claim to have purchased the suit property by separate registered sale deeds from legal heirs of Late Ram Sahai between 2012 and 2016, feeling aggrieved by the order passed by the trial court granting exparte ad interim injunction, restraining them from interfering in the possession of the plaintiffs as also in their right to raise constructions, filed appeal. The appeal, as noted above, has been dismissed and the order of injunction granted by the trial court has been approved subject to the modification that in case the suit is ultimately decided against the plaintiffs, they would demolish the constructions at their own cost.
Counsel for the petitioners submitted that (i) the trial court, by permitting the plaintiff-respondents to raise constructions, has virtually granted the final relief which is not permissible; (ii) the trial court has granted exparte injunction without recording reasons why the object of seeking injunction would stand defeated, in case exparte injunction is refused; and (iii) the purpose of granting temporary injunction is to preserve the suit property by maintaining status quo, whereas the order of the trial court permitting the plaintiff-respondents to raise constructions even before the application for temporary injunction is decided, is contrary to the well established principles on which injunctions are granted.
Per contra, Sri Tarun Verma, learned counsel appearing on behalf of respondents no.1, 2 and 3 contended that the plaintiffs are owners of the suit property on basis of registered sale deeds. It is submitted that the petitioners are subsequent purchasers of the property knowing fully well that it had been transferred in their favour. It is urged that in such circumstances, the plaintiffs had a strong prima facie case and considering which, the trial court was justified in granting exparte injunction. He also placed reliance on the findings recorded by the appellate court in the impugned judgement in supporting the order of exparte injunction on terms in which it has been granted by the courts below.
The object of granting temporary injunction during the pendency of the suit is to preserve the suit property from being dissipated or destroyed even before the lis is finally decided. The Supreme Court in Shiv Kumar Chadha Vs. Municipal Corporation of Delhi 1993 (3) SCC 161 has dealt with the principles governing grant of interim injunction in great detail. It has been observed that the purpose of grant of temporary injunction is to maintain status quo. The Supreme Court has also considered the impact of the proviso added by the Civil Procedure Code (Amendment Act), 1976 by observing that where the court considers it proper to grant exparte injunction, it must record reasons for doing so and should take into consideration all relevant factors, including as to how the object of granting injunction itself shall be defeated if an exparte order is not passed. The relevant observations made by the Supreme Court are contained in paragraphs 30, 32, 34 and 35 of the judgment, which are reproduced for ready reference:-
"30. It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the Court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course., Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The Court grants such relief according to the legal principles--ex debite justitiae. Before any such order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.
32. Power to grant injunction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circumstances of a particular case. The Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 Order 39 of the Code requires that in all cases the Court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that "where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay...... "
34. The imperative nature of the proviso has to be judged in the context of Rule 3 Order 39 of the Code. Before the Proviso aforesaid was introduced, Rule 3 said "the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party". The proviso was introduced to provide a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance there of will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a conditions has been imposed that Court must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor, (1875) 1 Ch. D. 426, Nazir Ahmed v. Emperor, AIR 1936 PC 253. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramachandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915.
35. As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side. It must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force upto a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English Courts saying:-
"Exparte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion.... An ex parte injunction should generally be until a certain day, usually the next motion day. . . ."
In Harish Chander Vs. Kayastha Pathshala Trust and others JT 1988 (1) SC 265, the Supreme Court considered the question as to whether in an appeal arising out of a suit for permanent injunction, it would be proper to permit a party to raise constructions subject to the condition that in the event appeal is decided against the party, the constructions shall be pulled down. The Supreme Court held that it would not be proper to permit a party to raise constructions only to be pulled down after the final judgment. The principle being that while the matter was being heard, propriety demanded that strict status quo be observed between the parties. The principles laid down by the Supreme Court in Harish Chander (supra) were applied by this Court in the case of Ram Kalap Vs. IVth Additional District Judge, 1989 ACJ 13. In paragraphs 3 and 4 of the report, this Court observed as under:-
"(3). Should the second question be answered in favour of the petitioner then the answer to the first question would not arise. The answer to the second question is now available from a judgment of the Supreme Court laying down the principle on what ought to be the appropriate order when one party restrains the other from raising construction over the property in suit. The Supreme Court in the matter of Harish Chander Verma v. Kayastha Pathala Trust and others, JT 1988 (1) SC 625, held that where a decree for permanent injunction has been sought, it would not be appropriate to permit the defendant to raise construction subject to the condition that in the event of the decree being affirmed, the construction shall be pulled down. The Supreme Court observed, apart from the convenience the parties and equity arising in the facts of the case, a larger principle is involved in the matter. On the face of a decree for permanent injunction, is it appropriate for the appellate Court to allow it to be nullified before the appeal is disposed of? We are of the view that the answer has to be in the negative.
(4). The Supreme Court set aside the order of the High Court on the ground that requiring the party to raise construction only to pull it down, should the decree for permanent injunction be confirmed, would not be an appropriate order. The principle being that while the matter was being heard, propriety demanded that strict status quo be observed between the parties. Thus, this case can be no exception."
In the instant case, the petitioners filed the appeal contending that they were bonafide purchasers of the suit property from the heirs and legal representatives of Late Ram Sahai, who was admittedly the owner. The case of the petitioners was that registered power of attorney in favour of Jitendra Kapoor dated 14.10.2011 was cancelled by Ram Sahai by means of a registered cancellation deed dated 15.2.2012. They claimed that deed of cancellation was got registered at 01:56 p.m. and Jitendra Kapoor was duly apprised of the same. However, in great haste, he proceeded to execute two sale deeds on the same date in favour of Chameli Devi and Nanhey Khan plaintiffs no.1 and 2 respectively. In other words, the case of the petitioners is that Jitendra Kapoor ceased to have authority to execute sale deeds acting as power of attorney of Ram Sahai. On the other hand, Sri Tarun Verma, learned counsel appearing on behalf of plaintiff-respondents contended that the cancellation deed was got registered at Haldwani, whereas the suit property is situated at district Bareilly. According to him, Jitendra Kumar had no knowledge or information about the cancellation of the registered power of attorney. It is submitted that in the absence of any knowledge to the attorney holder about the cancellation of the power of attorney, he was fully competent to execute the sale deeds. He further submitted that sale deed in favour of plaintiff no.3 executed on 25.2.2012 was in pursuance of a prior agreement for sale dated 17.10.2011.
Admittedly, the application for temporary injunction is still pending before the trial court. The trial court, while deciding the application for temporary injunction finally, will have to address these issues, to find out prima facie case of the parties. At the present moment, when only an exparte ad interim injunction has been granted and the application for temporary injunction is yet to be decided, it would not be proper for this Court to express any opinion on these issues lest it may prejudice the decision on application for temporary injunction. However, it is noticeable that the trial court, while granting exparte injunction, after referring to the sale deeds in favour of the plaintiff-respondents, held that the object of seeking injunction would stand defeated unless exparte injunction is granted in favour of the plaintiff-respondents. It thereafter proceeded to injunct the petitioners from interfering in the possession of the plaintiff-respondents and also in their right to raise constructions. In the entire order, the trial court has not recorded any reason why the object of seeking injunction would stand defeated, especially when it was granting an exparte order permitting raising of constructions over the suit property. The trial court has not given any reason as to how the plaintiffs would suffer or the object of seeking injunction would stand defeated if they are not permitted to raise constructions, while the application for temporary injunction is taken up for consideration, after hearing the parties. In the considered opinion of the Court, the part of order of the trial court granting exparte injunction permitting the plaintiff-respondents to raise constructions is contrary to the well established principles which govern the grant of exparte injunctions. As noted above, the object of granting ad interim exparte injunction is to preserve suit property and not to permit its nature and character to be altered by the plaintiffs under the guise of the order of the court.
Although the appellate court has tried to improve upon the order passed by the trial court granting exparte injunction by observing that unless the plaintiffs are permitted to raise constructions, the building material lying at the site would get destroyed, but this Court does not find it to be a valid ground for grant of exparte injunction permitting the plaintiffs to raise constructions. Even the observation made by the appellate court that in the meantime substantial part of construction has been raised was not at all germane as the position existing on the date of institution of the suit should have been considered. The plaintiffs admit in paragraph 5 of the plaint that they collected building material on 25.5.2017 but were not permitted to raise constructions by the defendants on 28.5.2017. The suit itself came to be instituted on 30.5.2017 only two days thereafter. It was not possible for the plaintiffs to raise any substantial construction during this short period.
Sri Tarun Verma has placed reliance on a judgement of the Supreme Court in ECE Industries Limited Vs. S.P. Real Estate Developers Pvt. Ltd. 2009 (12) SCC 776. In the case before the Supreme Court, a suit was filed for recovery of possession and damages. The plaintiffs claimed that the defendants were proceeding to change the nature and character of the suit property and prayed for grant of temporary injunction restraining the defendants from raising constructions. It was found that the defendants, in pursuance of a development agreement between the parties, had already raised substantial constructions over the suit property. It was also found that the defendants, in pursuance of the agreement had already deposited the entire amount and also furnished a bank guarantee. In these circumstances, the courts refused to grant injunction in favour of the plaintiffs. The Supreme Court, having regard to these facts, refused to interfere with the orders of the courts below. In the firm opinion of the Court, the aforesaid judgment of the Supreme Court is not applicable to the facts of the instant case where the plaintiff-respondents had come forward to seek injunction in their own favour permitting them to raise constructions even before the application for temporary injunction is taken up for final decision.
Having regard to the discussion made above, this Court is of the firm opinion that the order of the trial court in so far as it permits the plaintiff-respondents to raise constructions during the pendency of the application for temporary injunction as well as the order of the appellate court affirming the said part of the order of the trial court, subject to the rider that in case the plaintiffs could not succeed, they would remove the constructions, are not sustainable in law and are hereby set aside.
The application for temporary injunction is yet to be considered by the trial court. Sri Amit Krishna, learned counsel appearing on behalf of the petitioners has made a statement at the Bar that the petitioners would file their objections to the application for temporary injunction within two weeks from today. He has also informed the Court that next date fixed before the trial court is 15.2.2018. It is desirable that soon after the objections are filed by the petitioners, the trial court should proceed to decide the application for temporary injunction, without granting undue adjournments, preferably within a period of twelve weeks.
The petition stands allowed to the extent indicated above.
(Manoj Kumar Gupta, J) Order Date :- 7.2.2018 SL