Karnataka High Court
The Gadag Co. Operative Cotton Sale ... vs Ramanath And Ors. on 10 October, 2002
Equivalent citations: ILR2003KAR2644, 2003 AIR KANT HCR 436, 2003 A I H C 611, (2003) 4 CIVLJ 357, (2003) 1 KCCR 191, (2003) 2 INDLD 453
Author: B. Padmaraj
Bench: B. Padmaraj
ORDER Padmaraj, J.
1. Though the matter is listed for admission, with the consent of both sides, the revision petition itself is taken up for final disposal and the same is accordingly disposed of by this Order.
2. The petitioner herein is defendant no. 4 before the Trial Court, whereas, the first respondent is the plaintiff and the respondent Nos.2 to 4 are the defendant Nos. 1 to 3. The real contest is only between the petitioner and the first respondent herein and respondent Nos. 2 to 4 are only formal parties and their presence may not be needed to dispose of this revision petition. Under the circumstances, therefore, I have heard the arguments of the learned Counsel for the petitioner and the learned Counsel for the respondent No. 1 at a considerable length and carefully perused the entire case papers including the impugned Order made by the Trial Court and confirmed by the Appellate Court in appeal.
3. The first respondent-plaintiff has filed the suit before the Trial Court against the petitioner herein and others for the relief of permanent injunction. Along with the suit, the plaintiff has also filed I.A.No. l under Order 39 Rules 1 and 2 of CPC seeking an ad-interim Order of Temporary injunction. It is the case of the plaintiff that he is a tenant in respect of the suit property, which comprises of the entire first floor of North West corner comprised in CTS No. Section 361 situated in Shindhe Building, Ward No. 1, Keshwapur, Hubli, measuring 2200 sq. ft. It was averred that the defendants 1 to 3 being the sub-lessees of the entire property bearing CTS No. 361 from Gadag Co-operative Cotton Sales Society Limited, Gadag, which claim to be the purchaser of permanent lease-hold right in CTS No. 361. It is the case of the first respondent-plaintiff that the defendants 1 to 3 have let out the first floor marked by the letters ABCD to the plaintiff on a monthly rent of Rs. 1,200/- and permitted the plaintiff to renew the tenancy and to make certain repairs to the suit property and the cost of the repairs and renovation was agreed to be considered as deposit and so also a sum of Rs. 4,000/- was taken as deposit from the plaintiff. Accordingly the plaintiff was put in actual possession and enjoyment of the suit property in the month of December 1998. After renovation of the suit property, the plaintiff claims to have started his business in Home appliances under the name and style of M/s. R.Y. Kalburgi and Sons. He is stated to have obtained the registration certificate of establishment from the Department of Labour and the same was stated to be in force till 31.12.2002. While this was so, it is stated that all of a sudden the defendant Nos. 1 to 3 colluding with defendant No. 4 on 12.2.2001 warned the plaintiff to vacate the suit property, if not, he will face the consequences. In view of such thereat imposed by the defendants, the plaintiff stated to have filed a suit in order to project his right over the suit property and along with the suit, he has also filed an application being I.A.No. l for an interim Order. The further case of the plaintiff before the Trial Court was that during the pendency of the suit, the defendant No. 1 illegally dispossessed the plaintiff from the suit property and hence, he sought for an ad interim Order of mandatory injunction to restore his possession in the suit property till disposal of the suit. After the defendants entered their appearance, they resisted the claim of the plaintiff. The defendants in general and the defendant No. 4 in particular denied that the suit property was at any time in possession of the plaintiff. It is the specific case of the defendant that the plaintiff is neither in possession nor running any business in the suit property as claimed by him. It was also their contention that the plaintiff by taking undue advantage of ex-parte interim injunction tried to forcibly enter into the suit property and tried to create his possession over the same. According to defendant No. 4, he has kept day and night watch and ward over the suit property by engaging the services of Red-lock Detective and Security Agency, Keshawapur, Hubli, who are watching and have kept watch over the property all the 24 hours in a day. It is stated that the plaintiff tried to enter forcibly into the suit property by engaging and threatening the said security agency and that thereupon, the security agency approached the concerned police and gave a complaint in this regard. According to the defendant No. 4, the defendant Nos. 1 to 3 are colluding with each other and also colluding with the plaintiff in order to knock off the suit property. It is the further case of the defendant No. 4 that he has purchased the permanent lease-hold right of the suit property including the other property from the local representatives of Shah Velji Khanji. Some of the legal heirs of the said Shah Velji Khanji had filed suit regarding the suit property and the dispute went up to the Hon'ble Supreme Court and it was finally held that this defendant No. 4 is entitled for 3/8th share and the legal representatives of Shah Velji Khanji are entitled to 5/8th share. Therefore, the decree holders have filed FDP 9/1994 on the file of the Principal Civil Judge, Senior Division, Hubli, for possession and partition of their respective shares. Under the circumstances, the present plaintiff is only trying to create his illegal entry into the suit property by taking undue advantage of certain circumstances. It is also the case of the defendant No. 4 that the defendant nos. 1 to 3 who were in possession of some part of the other portion of the property bearing No. CTS 361 have vacated the premises long back. Even otherwise, he contended that even if any mis-deeds or illegal activities are done by defendant Nos. 1 to 3, such acts are not binding on defendant No. 4. On these and other averments, the defendant No. 4 prayed to reject the I.A.No. l of the plaintiffs. The defendant Nos. 1 to 3 have also filed their objections to I.A.No. 1 denying all the allegations made by the plaintiff. They have denied that the plaintiff is a tenant in the suit property under them. They however admitted that the suit property belongs to defendant No. 4 and they are the sub-lessees of a portion of a building situated in CTS No. 361 of Hubli and that the other portion of the building was in possession of defendant No. 4. They also contended that they were not authorized to sub-lease any portion of the property to any other parties and that the plaintiff by taking undue advantage of their absence from Hubli City is trying to harass them. In all other respects, they toed the line of the defendant No. 4. In support of their respective pleas, the plaintiff as well as the defendant No. 4 placed certain documents before the Trial Court including the affidavits of certain witnesses. The Trial Court on consideration of the entire materials placed on record and after hearing the arguments on both sides on every aspect of the case has recorded a finding that the suit property was in possession of the plaintiff as on the date of the suit and that subsequently during the pendency of the suit, he has been dispossessed. The Trial Court further found that in view of the fact that the plaintiff has been dis-possessed urging the pendency of the suit and more so, after an Order directing both the parties to maintain status-quo has been passed, it can grant the relief of temporary mandatory injunction to the plaintiff in order to restore the status-quo as it existed on the date of the suit. The Trial Court was of the view that such an interim Order could be granted even in the absence of there being any application seeking such specific prayer by the plaintiff. In this view of the matter, while holding that the plaintiff has been able to establish his possession as on the date of the suit and since he has been dis-possessed during the pendency of the suit, the Trial Court proceeded to pass an Order apart from allowing I.A.No. 1 of the plaintiff directing the defendants to open the lock put by them upon the lock put by the plaintiff to the suit property and hand over the possession of the suit property to the plaintiff within ten days from the date of the Order. Aggrieved, the petitioner - defendant No. 4 preferred an appeal before the Appellate Court. In the appeal, the Appellate Court confirmed the order made by the Trial Court and dismissed the appeal filed by the defendant No. 4. The Appellate Court declined to interfere with the Order of the Trial Court on the ground that the same does not suffer from any infirmity so as to be termed as arbitrary or perverse Order. Thus, the Appellate Court has confirmed the Order made by the Trial Court. Against the concurrent findings recorded by both the Courts below, the petitioner has preferred this revision petition.
4. Learned Counsel for the petitioner, while assailing the impugned Order made by the Trial Court and confirmed by the lower Appellate Court has contended before me that the plaintiff failed to produce any material documents such as rent receipts, etc., to establish that he was in possession of the suit property and that he had subsequently been dispossessed during the pendency of the suit. He contended that when the plaintiff claims to be a tenant in respect of the suit premises, the most natural that can be expected of from him is either the lease deed or the rent receipts and when no such documents have been produced, it could not have been presumed by the Trial Court that the plaintiff was a tenant in respect of the suit premises as on the date of the suit. He further contended that the plaintiff failed to establish his prima-facie possession over the suit property as on the date of the suit and hence, the Trial Court was not justified in holding that the plaintiff has made out a prima facie case for grant of an ad interim Order in his favour. He also contended that when the suit of the plaintiff itself is for bare injunction, the Trial Court exceeded in its jurisdiction in granting and issuing directions by holding that the plaintiff is entitled for possession on the ground that he was dis-possessed during the pendency of the suit. He contended that nowhere the plaintiff contended that he was dis-possessed from the suit property after the institution of the suit and that on the other hand, the plaintiff had all along contended that he is in possession of the suit property. He also contended that if really the plaintiff was in possession and had been dispossessed during the pendency of the suit, the most natural thing that is expected of from the plaintiff is to file an application for restoration of possession or to seek for an ad interim Order of mandatory injunction, but no such relief was sought for by the plaintiff alleging that he was dispossessed from the suit property during the pendency of the suit. He, therefore, contended that the Court below have exceeded in their jurisdiction in granting the temporary mandatory injunction. He therefore contended that the impugned Order made by the Trial Court and confirmed by the Appellate Court warrants interference by this Court in revision.
5. As against this, the learned Counsel for the first respondent has contended that there is a concurrent finding by both the Courts below that as on the date of the suit, the plaintiff was in possession of the suit property and that during the pendency of the suit, he has been dispossessed from the suit property and hence, entitled for the relief of ad interim mandatory injunction. In view of such concurrent findings by both the Courts below, he contended that this Court cannot interfere with the same in exercise of its powers under Section 115 of CPC. He also contended that the materials placed on record such as registration certificate etc., clearly establish the possession of the plaintiffs over the suit property and during the pendency of the suit and after an Order was made, directing both the parties to maintain status-quo, the plaintiff has been dispossessed from the suit property and that under the circumstances, the Trial Court was justified in granting the ad interim Order of mandatory injunction even in the absence of there being any application in that regard. He, therefore, contended that the impugned Order made by the Trial Court and confirmed by the First Appellate Court warrants no interference by this Court in revision.
6. Learned Counsel for the respondent No. 1 in support of his submissions has relied upon the two decisions reported in 1964 (1) Mysore Law Journal Page 300 and .
7. Having heard the submissions made on both sides and having carefully perused the impugned Order made by the Trial Court, which has been confirmed in the appeal by the Appellate Court, the short question that arises for consideration is whether the impugned order made by the Trial Court and confirmed by the Appellate Court warrants any interference in revision by this Court.
8. It has to be mentioned that the jurisdiction of this Court under Section 115 of CPC is a limited one. It empowers this Court in the cases where no appeal lies, to satisfy itself on three matters, namely, that the Order made by the Trial Court and confirmed by the Appellate Court is within its jurisdiction, that the case is one in which the Court ought to exercise its jurisdiction and that in exercising the jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law or with material irregularity, that is, by committing some error of procedure. Unless one or the other facet of jurisdiction of the Court passing the Order arises for decision, this Court has no competence to interfere with the Order made by the Trial Court and confirmed by the Appellate Court. This Court can interfere only if the case falls within the scope of Section 115 of CPC, otherwise the decision is binding on the parties. The proviso to sub-section 1 of Section 115 of CPC puts a restriction on the powers of this Court in as much as this Court shall not under Section 115 of CPC vary or reverse any Order made in the course of a suit except where the Order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit. Therefore, under the proviso, this Court would be justified in interfering with the impugned Order made by the Trial Court and confirmed by the Appellate Court, if the said Order finally disposed of the suit. The Order in question by which the Trial Court had granted an ad interim Order of mandatory injunction, could not be said to have been finally disposed of the suit and that therefore, it would not come under the proviso to subsection 1 of Section 115 of CPC. Further more, Section 115 of CPC is not directed against the question of law or fact in which the question of jurisdiction is not involved. An erroneous decision on a question of law or facts reached by the Trial Court and confirmed by the Appellate Court which has no relation to question of jurisdiction of that Court, cannot be corrected by this Court, merely because this Court differs from the conclusions of the Court below on questions of fact or law. In the instant case, the Trial Court has granted an ad interim Order of mandatory injunction, which being not found to be perverse or erroneous by the Appellate Court in the appeal, the same has been confirmed by the Appellate Court. It cannot be said that the Trial Court had no jurisdiction to grant such relief in a suit for injunction, where the plaintiff was stated to have been dispossessed from the suit property in contravention of an Order of status-quo made by the Trial Court directing both the parties to maintain status quo. The said Order of interim mandatory injunction made by the Trial Court being not found to be either perverse or erroneous, the Appellate Court declined to interfere with the same, When the Appellate Court concurs or agrees with the view taken by the Trial Court, it need not reiterate the reasons recorded by the trial Court and it can only interfere with the same, if it is found to be either perverse or illegal. In the instant case, the Appellate Court having found that the Order made by the Trail Court is neither perverse nor erroneous, declined to interfere with the same and thus, it rightly exercised its jurisdiction in dismissing the appeal. It is needless to point out that interim mandatory injunction can be granted in cases when the status-quo existing on the date of the suit is to be restored. That is to say, it is granted to restore the status-quo as it existed on the date of the suit. In the instant case, it is not in dispute that initially the Trial Court had granted an exparte Order of temporary injunction in favour of the plaintiff, which however came to be modified after the appearance of the defendants directing both the parties to the suit to maintain the status-quo. Thus, both the parties to the suit were directed by the Trial Court to maintain the status-quo. The Trial Court on careful perusal of the entire materials placed on record by both the parties has recorded a finding that the plaintiff has been able to establish prima-facie his possession over the suit property as on the date of the suit and was thus, entitled to the relief of temporary injunction during the pendency of the suit, in view of the serious interference on the part of the defendants, who went to the extent of denying the possession over the suit property. This is essentially a finding of fact recorded by the Trial Court, which has been confirmed in appeal by the Appellate Court. No doubt, the plaintiff who claims to be a tenant under the defendant nos. 1 to 3 in respect of the suit property, did not produce any lease deed or the rent receipts. But, then, that by itself is not sufficient to doubt the possession of the plaintiff over the suit property as on the date of the suit especially, when there were other materials on record to show that the plaintiff was in prima-facie possession of the suit property as on the date of the suit. As has been found by the Court below, there were other relevant materials placed on record by the plaintiff to show that in all probability, he was in possession of the suit property as on the date of the suit. The plaintiff claims to be running his business under the name and style of M/s. R.Y. Kalburgi and Sons and the registration certificate etc. issued in respect of such concern would show that it was being run in the suit property. It appears that even one of the documents produced by the petitioners themselves would lend support to the possession of the plaintiff over the suit property as on the date of the suit. The Trial Court on careful perusal of the entire materials placed on record has further found on facts that during the pendency of the suit and after the Order of status-quo was made, the plaintiff has been dispossessed in contravention of the Order of status-quo made by the Court and hence, he should be restored with possession. This is again a finding arrived at by the Trial Court on consideration of the material placed on record and hence it is a finding of fact. Now, the question is whether the Court below could have granted an ad interim Order of mandatory injunction in the absence of an application seeking such interim relief by the plaintiff and without the plaint being amended accordingly. What prompted the Trial Court to grant such an interim Order of mandatory injunction to the plaintiff is that in violation of the Order of status-quo made by the Court, the petitioner herein, who is defendant No. 4 could not gain possession and having so gained possession, there should be an Order to restore the status - quo. When the defendants by violating the Order of status-quo made by the Court below has over reached the Court by gaining possession, the Court below had jurisdiction to restore the status-qua. An ad interim Order of mandatory injunction could be granted to restore the status - quo and more so, when the party has tried to over reach the Court by gaining possession inviolation of a specific Order made by the Court. A mandatory injunction could be issued to restore the status quo in the said situation. When certain unlawful means were adopted by the defendants to gain possession, it is plainly the responsibility of the Court to invoke its inherent jurisdiction to secure the ends of justice to prevent the abuse of process of Court and accordingly, in the exercise of its inherent jurisdiction to prevent the abuse of process of Court, the Trial Court passed an Order to restore the staus-quo by issue of an ad interim Order of mandatory injunction. Such an Order made by the Trial Court cannot be faulted on the facts and in the circumstances of the case. When the Trial Court has ordered for the maintenance of status-quo in the presence of both the parties and the defendants in disregard of such an Order gained possession of the suit property in order to defeat legitimate claim of the plaintiff in the suit, the Court below, under the circumstances of the case was bound to intervene and the said intervention was not to give any unrelated or extraneous relief, but to restore the Order of status - quo made by the Court. When the defendants have gained possession in violation of an Order of status-quo made by the Court, it is the duty of the Court to restore status quo by having recourse to its inherent powers. This view finds acceptance by the decisions relied upon by the Trial Court in its impugned Order , AIR 1992 Ker 371. A reference in this connection may also be made to the two decisions relied upon by the learned Counsel for the respondent no. 1 AND 1964(1) MYSORE LAW JOURNAL PAGE 300. It is to be seen therefore, that interim mandatory injunction could be issued by the Court by invoking its inherent powers to prevent the abuse of process of Court in order to restore the status-quo. That is, what the Trial Court did in this case. Therefore, the Trial Court cannot be faulted for making such order. It was right in passing such Order and accordingly the same has been confirmed by the Appellate Court. The plaintiff deprived of possession of the suit property by outrageous act of the defendants during the pendency of the suit for permanent injunction, is entitled for an Order of interim mandatory injunction in order to restore the status-quo as it existed on the date of the suit. The relief of mandatory injunction granted by the Trial Court and confirmed by the Appellate Court is a discretionary relief and where the Court in its discretion granted such relief, there could be no interference by this Court in revision and more so, when the same has been granted only to restore the status-quo. Therefore, having given my anxious consideration to the entire matter in issue, I find that the impugned Order made by the Trial Court and confirmed by the Appellate Court needs no interference by this Court in revision. Hence, I find no merit in this revision petition filed by this petitioner.
9. In the result, therefore, this revision petition filed by the petitioner is hereby dismissed. But, in the circumstances of the case, there is no order as to costs. It is however made clear that the observations made herein are restricted to this proceeding only.