Orissa High Court
Nabekishore Sahu And Anr. vs East India Arms Co. on 21 January, 1998
Equivalent citations: AIR1998ORI95, AIR 1998 ORISSA 95, 1998 A I H C 1585, (1997) 4 CURCC 137, (1997) 2 CIVILCOURTC 445, (1997) 84 CUT LT 397, (1997) 2 ORISSA LR 273
ORDER R.K. Dash, J.
1. This revision by the plaintiffs is directed against the judgment of the Second Additional District Judge, Puri, in Misc. Appeal No. 14 of 1989 confirming the order of the learned Subordinate Judge, Bhubaneswar (presently designed as Civil Judge, Senior Division) passed in Misc. Case No. 161 of 1987 whereby the plainliffs'prayer for temporary injunction was refused.
2. The plantiffs have filed Title Suit No. 170 of 1987 against the General Administration Department (defendant No. l)Directorof Estates, General Administration Department, Government of Orissa, and M/s. East India Arms Company Chourangi Road, Calcutta, (defendant No. 3) praying for recognition of their tenancy right, confirmation of possession and other ancillary reliefs in respect of an area measuring 150' x 31' appertaining to plot No. 96, Kharabela Nagar, Unit 3, Bhubaneswar (hereinafter referred to as the 'suit land'). Their case, in brief is that the suit land originally belonged to the General Administration Department, Government: of Orissa. In 1955, fathers of the plaintiffs in order to earn their livelihood constructed temporary house with asbestos and thatched roof on the suit land and opened confectionary and grocery shops. During their life time they approached the defendants 1 and 2 for settling the same by way of lease in their favour, but no decision was taken to that effect. However, they continued to possess the suit land til their death and after them, the plaintiffs have been possessing without any disturbance from any quarter. Suddenly on 6-5-1987 some of the employees of defendant No. 3 came to the shop of the plaintiffs and threatened to vacate the suit land since it has been settled in favourof defendant No. 3. Apprehending forcible dispossession by defendant No. 3, they filed the suit claiming the reliefs as aforesaid.
3. Defendant No. 3, the main contestant in the suit, countered the plaint averments and contended, inter alia, that the State of Orissa being the owner of the suit land settled in its favour a period of 90 years by a registered deed of lease dated 19-12-1984 and put it in possession. For constructing a house on the suit land defendant No. 3 applied to the authorities for sanction of the plan and simultaneously collected building materials and stacked on the suit land. As the sanction of the plan was delayed, defendant No. 3 searched for a person to watch the materials. The plaintiffs being roadside hawkers voluntarily offered themselves to watch the suit land as also the materials lying there and sought permission from defendant No. 3 to transact their business on the side of the suit land instead of hawking on the road side. In course of time, however, they raised temporary shed on a portion of the suit land with the permission of defendant No. 3 on condition that they would remove the structure and vacate the land as and when required. Since the Directors of defendant No. 3 are the residents of Calcutta. taking advantage of their absence the plaintiffs subsequently effected some improvements on the temporary shed originally raised. The plaintiffs were the asked to remove the shed and give vacant possession as agreed upon but they did not. Instead they approached the civil Court and filed the aforesaid suit making all false and frivolous allegations.
4. Defendants 1 and 2 filed separate written statement and resisted the claim advanced by the plaintiffs.
5. In the suit the plaintiffs filed a petition for temporary injunction restraining the defendant No. 3 from forcibly evicting them from the suit land till disposal of the suit. This was opposed to by defendant No. 3. In support of their case the plaintiffs filed certain documents, viz., notices/ receipts issued by the municipality and the letter of the P & S Department. Referring to all these documents it was contended by the plaintiffs that as they are in possession of the suit land since long, their possession should be protected till disposal of the suit. Upon hearing the parties, the learned trial Court came to hold that plaintiffs' possession being wrongful and they having not claimed to have acquired title by adverse possession, they are not entitled to the discretionary relief of injunction and consequently rejected the petition.
6. Against the said order, the plaintiffs carried an appeal and before the appellate Court it was contended on their behalf that there being no controversy whatsoever regarding their possession over the suit land the same should be protected till the disposal of the suit. In support of such contention reliance was placed on a decision of the Supreme Court in the case of Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 and a decision of this Court in the case of Sheik Khalilur Raheman v. Estate Officer, Bhubaneswar, AIR 1977 Orissa 201, Distinguishing the said two decisions from the facts of the present case, the learned Additional District Judge held that there being valid grant of the suit land by way of lease in favour of defendant No. 3 by the State and the plaintiffs having not claimed title or ownership by prescription and further there being no reasonable apprehension of their dispossession from that part of the suit land of which they are admittedly in occupation, temporary injunction as prayed for by them could not be granted. Having so observed, he upheld the order of the trial court and dismissed the appeal. It is against that order that the plaintiffs have approached this Court by tiling the present revision.
7. Learned counsel appearing for the plaintiffs vehemently contended that since the plaintiffs are in possession of the suit land for long years, the Court in exercise of its power under Order 39. Rules 1 and 2, C.P.C. which is discretionary one. should protect their possession till their rights as claimed in the suit are finally adjudicated. Per contra, learned counsel appearing for defendant No. 1 would contend that a reading of the pleadings of the plaintiffs, shows that they are rank trespassers and therefore, the Court would be slow to extend its helping hand to protect or perpetuate the wrong committed by them.
8. The principle is well settled that in granting or withholding an injunction the courts exercise a judicial discretion and weigh the amount of substantial mischief done or threatened to the plaintiff and compare it with that which the injunction if granted would inflict upon the defendant. The word 'discretion' means judicial discretion exercised according to something like a settled rule and in such a way as to prevent the defendant doing a wrongful act. It is a sound and reasonable discretion to be reasonably exercised having regard to all circumstances of a particular case. The power which the Court possesses of granting injunction, whether interlocutory or perpetual, should be very cautiously exercised and only upon clear and satisfactory grounds, otherwise it may work great injustice to the person against whom it is sought for. Injunction being an equitable relief the person seeking injunction must come with clean hands. The well known maxim that applies in such matter is, "He who seeks equity must do equity, he who comes into equity must come with clean hands, equity acts the vigilant, not (he indolent." The court grants such equitable relief where it is satisfied that a strong prima facie case has been made out by the plaintiff, including on the question of maintainability of the suit and balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. The phrases "prima facie case", "balance of convenience" and "irreparable loss", in the words of the Supreme Court in Dalpat Kumar v. Prahlad Singh, AIR 1993 SC 276, are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by men's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The Court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The apex Court further observed (Para 5 of AIR) :
" ............ The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossesion. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that 'the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus, the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."
In another decision in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161, the Court observed :
".......... 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 debito 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 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."
The aforesaid two decisions were referred to and relied upon in Mahadeo Salvaram Shelke v. Pune Municipal Corporation, (1995) 3 SCC 33 : (1995 AIR SCW 1439).
9. Keeping in view the aforesaid legal position, it is necessary to find whether in the present case both the courts betow were right in refusing to grant injunction in favour of the plaintiff. As noticed earlier, the plaintiffs have been claiming to be in occupation of the land in question since 1955. Admittedly no lease has been granted in their favour by the owner, namely the State. In paragraph 11 of the plaint they have, inter alia, pleaded that by being in possession as encroachers since long, they have become tenants under the landlord and therefore, they are not liable to be evicted. Admittedly they have not claimed title to the suit land nor have they prayed for such declaration. The reliefs sought for in the plaint are :
"(a) the plaintiffs' possession over the disputed plot be confirmed and (they) be recognised as tenants.
(b) If it is necessary the defendants may be directed to execute the lease deed in favour of the plaintiffs.
(c) The defendants may be directed to cancel the lease granted in favour of the defendant No, 3-
(d) The defendants may be permanently restrained to dispossess or evict the plaintiffs.
xxxx xxxx xxxx xxxx"
10. Defendant No. 3, on the other hand, asserts that it acquired the suit land by way of lease for a term of 90 years from the State of Orissa in 1964 and stacked the materials for construction of a shop-cum-residential building and the plaintiffs being the road side hawkers on their own volition were watching the materials. In course of time, with the permission of defendant No. 3 they raised temporary shed on the suit land in 1973-74 to transact the business on the condition that they will remove and vacate the suit land as and when required, but later on when asked, they did not vacate. In the premises, it was contended by the learned counsel appearing for defendant No. 3 that though initially the plaintiffs' possession was permissive, but later on they turned to be trespassers by not vacating the suit land as agreed upon. Therefore, they being trespassers in respect of the suit land, court should be slow to exercise discretion and grant injunction in their favour. Law on this aspect is well settled that no injunction can be granted against the true owners at the instance of a trespasser or person in unlawful possession. I may in this context refer to a decision in Shiv Kumar Chadha 1993 (3) SCC 161 (supra) where it is observed :
"...,....... the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by aperson who approaches the court."
The aforesaid view has been reiterated in Mahadeo Salvaram Shelke v. Pune Municipal Corporation, (1995) 3 SCC 33, (1995 AIR SCW 1439), where the court in pragraph 9 of the judgment observed :
"It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession.
Similar view has been expressed by several High Courts that injunction cannot be granted in favour of a person who is a trespasser against the true owner (See K.V. Narayan v. S. Sharana Gowda, AIR 1986 Kant 77; Alagi Alamelu Achi v. Penniah Mudaliar, AIR l962 Mad 149; Smt. Bishni Devi v. Bahadur Singh, AIR 1980 All 209; Padmanabhan v. Thomas, AIR 1989 Kerala 188, and Biswabeni Private Ltd. v. Santosh Kumar Dutta, AIR 1964 Cal 235). The above decisions are in accord with the view expressed by Supreme Court in Shiv Kumar Chadha, (1993 (3) SCC 161)(supra) and Mahadeo Salvaram Shelke (1995 AIR SCW 1439) (supra).
11. The question, however, may be different, as in the present case, whether a person who admittedly has no title but for his long and uninterrupted possession can approach the Equity Court to protect his possession till final adjudication of the 'lis'. It is no doubt true that an owner has every right to enter upon his property and restrain the trespasser from perpetuating his illegal occupation. It is not necessary for him to take recourse to a legal proceeding in order to vindicate his rights of ownership and possession in respect of his property of which another person without having any right or title enters into possession. He can throw out a trespasser while he is in act of or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossesses the trespasser by taking recourse to the remedies available under the law. It is well settled that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. (See Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620). The above view has been reiterated in Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097. This is based on the theory of acquiescence, inasmuch as where the defendant acquiescedin the plaintiff's possession, in that case, the plaintiff is entitled to get an injunction to protect his possession from invasion by the defendant. Acquiescence in the wrongful conduct of another by which one's rights are invaded may often operate, upon principles of and in analogy to estoppel, to preclude the injured party from obtaining many distinctively equitable remedies to which otherwise he is entitled. This form of quasi estoppel does not cut off the party's title, nor his remedy at law; it simply bars his right toequitable relief and leaves him to his legal action alone. (See N.D. Basu's Law of Injunction, 1965 Edition page 94). Kerr on Injunctions, Sixth Edition, at page 19, says :
"Parlies who, possessing full knowledge of their rights have lain by, And by their conduct have encouraged others to expend moneys or alter their condition in contravention of the rights for which they contend, cannot call upon the Court for its summary interference. Acquiescence by one of several co-plaintiffs in the act complained of precludes the interference of the Court by injunction".
A man may by acquiescence not only preclude himself from being able to derogate from a state of things which has been brought about by his own conduct, but may even give the adverse parly a right to the interference of the court in the event of his complaining at law. But the court will not act upon light grounds against the legal right of the parties. It requires a clear and strong case to leave the Court to deprive a man of his right at law to prevent a particular act being done, or his right to recover damages if it be done. Where a defendant relies on acquiescence the onus would be on him to show (a) that he had been mistaken as to his legal rights, (b) that he had expended some money or done some act on the faith of his mistaken belief, (c) that the plaintiff knew of the existence of his own right which was inconsistent with the right claimed by the defendant, (d) that the plaintiff knew of the defendant's mistaken belief in his right and (e) that the plaintiff must have encouraged the defendant in his expenditure of money directly or by abstaining from asserting his legal rights. In order to negative acquiescence it is not necessary that the party interrupted should have sued or taken any active step to remove the obstruction. It is enough if he has communicated to the party causing the obstruction that he does not submit to or acquiesce in it.
12. In the case in hand, according to defendant No. 3, plaintiffs' initial entry to the suit land in 1973-74 was permissive. Though defendant No. 3 has urged that their continuance in possession has subsequently become as that of trespassers, but this fact can be determined on the basis of the evidence to be adduced by the parties during trial. In view of the admitted factual position, I am of the opinion that the status quo of the suit land should be maintained ti ll disposal of the suit.
13. Before parting with, another question of" considerable importance that arises for consideration is whether a defendant to a suit against whom an order of interlocutory o interim injunction has been obtained can be compensated if ultimately the plaintiff's suit is dismissed on merit. It is common experience that now a days a suit for injunction simpliciter takes long years to reach its finality in the Court of first instance. In such a suit or any other suit if the plaintiff obtains an order of interim injunction in respect of the property in question and the same remains valid and effective till conclusion of the trial, the defendant who is ultimately found by the Court to be the owner of the property is prohibited or restrained from doing certain acts or dealing with the property in any manner he chooses. Take for example, adefendant desirous of owning a house on the suit land collects material and just before taking up the work he is prohibited by the process of the Court to come over the land and put up a new construction. Had he proceeded with the construction, the expenditure to be incurred would have been less than what he would incur after the suit is finally decided. Though utlimately the Court finds title to the suit property with him, but because of the order of interim injunction, he could not use the some and take up construction of the house. Therefore, while dismissing the plaintiff s suit, it would be within the competence of the court to award damages against him, for obtaining the order of interim injunction. This view of mine gets support from the decision of the Supreme Court in Mahadeo Salvaram Shelke, (1995 AIR SCW 1439) (supra), where the Court observed :
"x x x x While exercising discretionary power the court should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the Court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction has also jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injuction restraining the defendant to proceed with the execution of the work etc. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the court. The pecuniary jurisdiction of the Court of first instance should not impede nor be a bar to award damages beyond its pecuniary jurisdiction. In t his behalf, the grant or refusal of damages is not founded upon the original cause of action but the consequences of the adjudication by the conduct of the parties, the court gets inherent jurisdiction in doing ex debito justitiae mitigating the damages suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. It is common knowledge that injunction is invariably sought for in laying the suit in a court of lowest pecuniary jurisdiction even when the claims are much larger than the pecuniary jurisdiction of the Court of first instance, may be, for diverse reasons. Therefore, the pecuniary jurisdiction is not and should not stand an impediment for the court of first instance in determining damages as part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for damages. This procedure would act as a check on abuse of the process of the court and adequately compensate the damages Or injury suffered by the defendant by act of court at the behest of the plaintiff."
14. In view of the discussions made above, the revision is allowed and the orders passed by both the courts below refusing to grant interim injunction are set aside. Accordingly, it is ordered that the status quo of the suit land as on today should be maintained by both the parties. Since this is a suit of 1987, the learned trial court would do well to take up hearing as expeditiously as possible and dispose of the same by end of April, 1998 under intimation to this Court.
15. Anything said or any observation made in thisjudgment shall not influence the mind of the trial court while disposing of the suit on merits.