Jharkhand High Court
Jay Dev Mandal Son Of Late Shibu Chandra ... vs Basant Laha Wife Of Amar Shankar Laha on 3 July, 2023
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No.492 of 2022
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Jay Dev Mandal son of Late Shibu Chandra Mandal, resident of H.
No.20, Teachers Colony, Dimna Road, Mango, PO PS Mango,
Jamshedpur, District East Singhbhum.
... Petitioner
-versus-
1. Basant Laha wife of Amar Shankar Laha, resident of H. No.15,
Teachers Colony, Dimna Road, PO PS Mango, Jamshedpur, District
East Singhbhum.
2. Namita Mandal wife of Jubraj Mandal, resident of Holding No.20,
Teachers Colony, Dimna Road, PO PS Mango, Jamshedpur, District
East Singhbhum.
... Opposite Parties
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CORAM : SRI ANANDA SEN, J.
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For the Petitioner : Mr. Indrajit Sinha, Advocate Ms. Prerna Jhunjhunwala Singh, Advocate For the Respondents: Mr. Akshay Kumar Mahto, Advocate
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5/ 03.07.2023 Heard learned counsel for the parties at length.
2. Petitioner has challenged the order dated 19.05.2022 passed by the Principal District Judge, East Singhbhum at Jamshedpur in Civil Miscellaneous Appeal No.1 of 2022, by which the miscellaneous appeal filed under Order XLIII Rule 1 (r) of the Code of Civil Procedure has been dismissed. Petitioner has also prayed to quash the order dated 11.10.2021 passed by the Civil Judge Junior Division 1st, Jamshedpur in Original Suit No.63 of 2019, by which the petition filed by the petitioner under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure for grant of temporary injunction has been dismissed.
3. Plaint was filed by the petitioner herein, which was numbered as Original Suit No.63 of 2019. Prayer in the suit was as follows: -
a) For a decree of permanent injunction restraining the defendant No.1 from wrongful dispossession of the plaintiff from the suit property described in Schedule below without taking any recourse of law and from causing any disturbance in physical possession and enjoyment of -: 2 :- the plaintiff in the suit property by any means or whatsoever;
b) For cost of the suit;
c) For any other relief or reliefs to which the plaintiffs may be found entitled in law and equity;
4. It is the case of the plaintiff that there was an imminent threat of wrongful and illegal dispossession, due to which plaintiff was forced to file the suit, praying therein that the defendants be restrained from forcefully dispossessing the petitioner from the suit property. It is the case of the plaintiff that even if the petitioner-plaintiff is a trespasser, he cannot be forcefully and illegally dispossessed or evicted. He can be evicted only by following due process of law.
5. Defendants had appeared and filed their written statement and a counter claim. In the counter claim, they prayed to evict the petitioner from the suit property.
6. In the aforesaid suit, a petition under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure was filed by the plaintiff. Need of filing the said petition arose as the defendants, according to the plaintiff, are disturbing the possession of the plaintiff and in fact disconnected the electricity and water supply of the premises, which is in the occupation of the plaintiff and have also demolished the latrine and bathroom. It is necessary to quote paragraphs 13 and 18 of the said petition filed under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, which reads as under: -
13. THAT, the Defendant No.1 has now developed an attitude of disturbing in peaceful life of the plaintiff and his family member by disconnecting the electricity line, water connection has also demolished the latrine and bathroom which the plaintiff and his family have been using.
18. THAT, the plaintiff should be directed to restore the electricity and water connection or in the alternative the department concerned should be directed to restore the facilities of electricity and water which the plaintiff and his family member have been enjoying since construction of suit house.
7. The defendants filed a rejoinder to the said petition. In reply to paragraph 13 of the petition filed by the plaintiff, the defendants at paragraph 13 of their reply have stated that the defendants are the absolute owners of -: 3 :- the entire double storied building including the suit premises and they have every right to disconnect the electricity line and water connection and to demolish the latrine and bathroom as plaintiff refused to quit and vacate the suit premises. They have taken a plea that the plaintiff is a trespasser over the suit premises.
8. The Trial Court, thereafter, considering the application of the petitioner, dismissed the petition, holding that the plaintiff has failed to bring any document to show that they were residing in the premises lawfully, thus, no prima facie case is made out and as the defendant No.2 claims that they have purchased the suit property by way of sale deed, hence, balance of convenience does not lie in favour of the plaintiff. So far as irreparable loss is concerned, it has been held that the plaintiff is residing without rent and actually as a trespasser, thus, no damage is caused.
9. Challenging the aforesaid order, an appeal was filed under Order XLIII Rule 1(r), praying for injunction and restoration of basic amenities, but the same was also dismissed by the learned Appellate Court. The appellate Court relied on a judgment of the Hon'ble Supreme Court in the case of Premji Ratansey Shah versus Union of India wherein it has been held that when the possession of the plaintiff is unlawful or that of a trespasser, an injunction could not be issued in favour of the trespasser or a person, who is in unlawful possession, as against the owner. The Appellate Court had held that since injunction cannot be issued against the true owner, appeal is liable to be dismissed. Further, the Appellate Court held that the plaintiff has failed to show that the electric supply was in his own name since the plaintiff has failed to show that electric and water connection was in his own name, thus, no irreparable loss or injury is caused.
10. Counsel appearing for the petitioner submits that admittedly, the plaintiff is in possession of the suit property and the suit was filed, praying therein to restrain the defendants from evicting the plaintiff without taking recourse of law. It is an admitted fact that electricity and water connection were disrupted and latrine and bathroom were demolished. When these facts are admitted, the factor of balance of convience and irreparable loss lie in favour of the plaintiff. So far as prima facie case is concerned, it is well settled principle that even a trespasser cannot be thrown out of the premises without taking recourse of law. Even if for the sake of argument, it is accepted that the plaintiff is a trespasser (though denied), his electricity and water connection -: 4 :- and toilet facility, which he was enjoying, cannot be taken away. As per him, the judgment cited by the defendants is not applicable as in this case it is only reconnection of electricity and water supply and has got nothing to do with restoration or possession or claiming injunction against possession. It is his submission that both the Courts below have failed to take into consideration the aforesaid facts.
11. Counsel for the defendants submits that the plaintiff is trespasser and he is residing in the premises without paying any fee, thus, it is well within the domain of the defendants to take action against the plaintiff, including disconnection of electricity and water connection and demolishing the toilet and bathroom.
12. In an application filed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, three basic ingredients must exist simultaneously so that an injunction can be granted. These are :-
(i) Prima facie case;
(ii) Balance of convenience;
(iii) Irreparable loss.
13. From the pleadings of the parties and also from the petition filed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure and reply thereto filed by the defendants, a fact which is admitted is that the plaintiff is in possession over the suit property. At this stage it is not proper for this Court to enter into the question as to whether the possession is lawful possession or that of trespasser, but the fact remains that the defendants also admit that the plaintiff is in possession. Another fact, which is apparent from the petition filed by the plaintiff and the reply thereto filed by the defendants that the plaintiff was enjoying electricity and water connection along with toilet and bathroom facility, but the defendants have disconnected the electricity and water connection and demolished the toilet and bathroom. This is evident from paragraph 13 and 18 of the petition filed by the petitioner under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure and paragraph 13 of the reply filed by the defendants, which have been dealt hereinbefore.
14. It is a well settled proposition that to evict a person from a premises, procedure of law has to be followed. Even a trespasser cannot be thrown out of the premises without following the process of law. In the instant case, plaintiff has filed the suit praying for a declaration that he cannot be -: 5 :- thrown out from the property without following the process of law. This is apparent from the prayer made in the suit. This claim made by the plaintiff coupled with the admitted fact that he is in possession, makes out a prima facie case in favour of the plaintiff. Admittedly, the plaintiff was enjoying electricity and water supply and the facility of toilet and bathroom. Defendants have admitted that they have right to disconnect the same, meaning thereby that they have done the same. If the facility is not restored, there will be immense inconvenience to the plaintiff, who is aged about 82 years, thus, balance of convenience is in favour of the plaintiff. So far as irreparable loss is concerned, in these modern times, one cannot expect to live without electricity, water and toilet facility. Thus, irreparable loss is caused to the plaintiff, due to taking away of such facilities.
15. These three aspects have been lost sight of while dealing with the petition filed by the plaintiff under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. Admittedly, electricity supply and water connection have been disrupted. The prayer of the plaintiff was not against the possession restraining the defendants from taking possession over the property, rather his prayer was only limited to electric supply and water connection with re-construction of toilet so that basic human needs can be facilitated. Thus, the judgment relied upon by the defendants before the Trial Court is not applicable on the facts of the case.
16. The Hon'ble Supreme Court of India in the case of A. Subramanian & Another versus R. Pannerselvam reported in (2021) 3 SCC 675 at paragraph 23 thereof has held that the common principle of law is that even a trespasser, who is in established possession of the property could obtain injunction. However, the matter would be different if the plaintiff himself elaborates in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief. In the instant case, main prayer of the petitioner is for a declaration that he cannot be evicted illegally. Coupled with the fact that he is in admitted possession, he is entitled for injunction as prayed for, which is limited only to restoration of electricity and water connection and toilet facility.
17. Further, in the case of Madan Lal versus State of Himachal Pradesh & Others reported in 2018 SCC OnLine HP 1495, at paragraph 7 thereof, the Division Bench of the High Court of Himachal Pradesh has held as follows: -
-: 6 :-7. The question that falls for consideration is whether the petitioner, as an interim measure, be allowed the basic amenities of water and electricity. There is no gain insaying that potable water or electricity are integral part of Right to Life within the meaning of Article 21 of the Constitution of India. These are basic necessities for human being and can well be termed as essentials of human rights. If the title dispute, owing to the prescription of right to appeal under the Statute remains pending for considerable long period, we see no reason to deny the petitioner's family the basic amenities of water and electricity, subject to their payment of requisite charges. It goes without saying that in the event of petitioner's having failed to prove his right to retain the possession, both facilities will also go alongwith the residential house.
18. I am well aware of the fact that in an application under Article 227 of the Constitution of India, this Court does not sit as a Court of appeal, but where the order is perverse and perse illegal, Article 227 of the Constitution of India can be invoked. In this case, I find that the orders passed by the learned Civil Judge Junior Division and the Appellate Court, i.e., Principal District Judge, East Singhbhum are illegal and rather infringes the basic human rights without there being a proper adjudication. Further, both the Courts have failed to take into consideration that reconnection of the electricity line and the water connection will not have any bearing on the claim of title of the parties including the defendants.
19. Be it noted that supply of electricity and water will not create any additional right in favour of the plaintiff if an action to evict him is initiated by the defendants, as has been done in this case by counter claim made by the defendants, wherein action has been taken by the defendants to evict the plaintiff in accordance with law.
20. Thus, I find merit in this Civil Miscellaneous Petition. Both the impugned orders, i.e., the order dated 19.05.2022 passed by the Principal District Judge, East Singhbhum at Jamshedpur in Civil Miscellaneous Appeal No.1 of 2022 and the order dated 11.10.2021 passed by the Civil Judge Junior Division 1st, Jamshedpur in Original Suit No.63 of 2019 are hereby set aside. Defendants are directed to reconnect the electricity supply and water connection of the premises in occupation of the petitioner within 48 hours from today and re-construct the latrine and bathroom. Thereafter the defendants -: 7 :- shall file an affidavit before the Trial Court showing compliance of this order. It is made clear that the Trial Court will not proceed with the suit till this order is complied and compliance affidavit is filed.
21. This Civil Miscellaneous Petition is, accordingly, allowed.
(Ananda Sen, J.) Kumar/Cp-02