Himachal Pradesh High Court
Smt. Kalawati vs Sh. Netar Singh And Others on 11 March, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CMPMO No. 492 of 2015.
Date of decision: March 11, 2016 ___________________________________________________________ Smt. Kalawati ...Petitioner of Versus Sh. Netar Singh and others ...Respondents Coram rt The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes For the Petitioner : Mr. Rajneesh K. Lal, Advocate.
For the Respondents : Mr. G.R. Palsra, Advocate.
Tarlok Singh Chauhan, Judge This petition under Article 227 of the Constitution of India is directed against the order passed by learned District Judge, Mandi whereby he set-aside the order passed by the trial Court and dismissed the application preferred by the petitioner for grant of injunction.
2. The petitioner filed a suit for permanent prohibitory and mandatory injunction on the ground that the suit land was jointly owned and possessed by the parties and therefore, until and unless partition is carried out by metes and bounds, the respondents be restrained from raising construction over the best piece of the land. It was further submitted that once the proceedings for partition were pending before ____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 15/04/2017 19:53:56 :::HCHP 2 the leaned Assistant Collector 1st Grade, then it was of the more .
reasons that the respondents ought to be restrained. Similar prayer was made in the application for interim injunction.
3. The respondents contested the suit as also the application by raising various preliminary objections like maintainability, cause of of action, suppression of material facts, estoppel, misjoinder and non-
joinder of necessary parties, valuation and jurisdiction. On merits, it rt was pleaded that the parties to the lis were in separate possession under family arrangement and that the petitioner had already constructed a house over the suit land. The pendency of the partition proceedings was admitted, but it was denied that the respondents were raising construction on the best part of the suit land, rather it was specifically stated that construction being raised was on a part of Khasra No. 160 which was not abutting to Pairi road.
4. The learned trial Court granted the application by directing the parties to maintain status quo qua nature and possession of the suit land till the disposal of the suit. This order was questioned in appeal before the learned lower Appellate Court, who reversed the order passed by the trial Court and ordered the dismissal of the application. It is against this order that the instant petition has been filed on the ground that once the parties were recorded in joint ownership and possession, then there was no occasion for the learned lower Appellate Court to have dismissed the application when partition had not been effected and proceeding qua the same were admittedly pending before the Collector.
::: Downloaded on - 15/04/2017 19:53:56 :::HCHP 3I have heard learned counsel for the parties and have .
gone through the records of the case carefully.
5. It is not in dispute that the suit land comprises of a fairly big chunk of land wherein the petitioner is having 1/4th share, whereas the respondents are owners to the extent of half share. It is also not in of dispute that insofar as the petitioner is concerned, she has already constructed two house(s) over the suit land. No doubt, learned counsel rt for the petitioner has tried to dispute this position but then the pleadings in the suit stand in the way of the petitioner. The respondents in para 3 of the written statement had clearly averred as under:
".....The plaintiff has already constructed two houses and two cow-sheds over the better portion of the suit land and the defendants Nos. 1 and 2 have not constructed any house over the suit land as yet. Photographs of the house of plaintiff snapped over the suit land are attached herewith for kind perusal of the learned Court, which fact has been suppressed by the plaintiff from this learned Court and thus, the plaintiff has not come with clean hands before the learned Court for redressal ; hence she is not entitled for any equitable relief of injunction against the defendants..."
6. In response to the aforesaid averments, the petitioner in the replication has only come out with the simplicitor denial as would be evident from para-3 of the replication which reads thus:
"3. That para No. 3 of the written statement is also wrong hence denied and that para of the plaint is reaffirmed to be correct."
7. Even if the entire replication is read, it would evident that the petitioner has not at all disputed the aforesaid averments. It is more ::: Downloaded on - 15/04/2017 19:53:56 :::HCHP 4 than settled rule that a specific averment in the pleading is required to .
be rebutted with a specific denial alongwith sufficient explanation and reasons for denial. Once, there is no denial much less specific denial, then the contents of the written statement shall be deemed to have been admitted.
of
8. The factors required to be borne in mind while granting or refusing injunction have been succinctly dealt with by the Hon'ble rt Supreme Court in M.Gurudas and others versus Rasaranjan and others (2006) 8 SCC 367 in the following manner:-
"18.While considering an application for injunction, it is well- settled, the courts would pass an order thereupon having regard to:
(i) Prima facie case
(ii) Balance of convenience
(iii) Irreparable injury.
19. A finding on 'prima facie case' would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. Rajeev Dhawan that the decision of House of Lords in American Cyanamid v. Ethicon Ltd. (1975) 1 All ER 504 would have no application in a case of this nature as was opined by this Court in Colgate Palmolive (India) Ltd. v.
Hindustan Lever Ltd.(1999) 7 SCC 1 and S.M. Dyechem Ltd. v. Cadbury (India) Ltd. (2000) 5 SCC 573, but we are not persuaded to delve thereinto.
20. We may only notice that the decisions of this Court in Colgate Palmolive (supra) and S.M. Dyechem Ltd (supra) relate to intellectual property rights. The question, however, has been taken into consideration by a Bench of this Court in Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd. (2006) 1 SCC 540 stating:
(SCC pp. 552-53, paras 36-40) "36.The Respondent, therefore, has raised triable issues.
What would constitute triable issues has succinctly been dealt ::: Downloaded on - 15/04/2017 19:53:56 :::HCHP 5 with by the House of Lords in its well-known decision in .
American Cyanamid Co. v. Ethicon Ltd.(1975)1 All ER 504 holding: ( All ER p.510 c-d) 'Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expression as 'a probability', 'a prima facie case', or 'a of strong prima facie case' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to rt be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.' It was further observed (All ER pp.511 b-c & 511j) 'Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.
* * * The factors which he took into consideration, and in my view properly, were that Ethicon's sutures XLG were not yet on the market; so that had no business which would be brought to a stop by the injunction; no factories would be closed and no workpeople would be thrown out of work. They held a dominant position in the United Kingdom market for absorbable surgical sutures and adopted an aggressive sales policy.' ::: Downloaded on - 15/04/2017 19:53:56 :::HCHP 6
37. We are, however, not oblivious of the subsequent .
development of law both in England as well as in this jurisdiction. The Chancery Division in Series 5 Software v. Clarke (1996) 1 All ER 853] opined: (All ER p.864 c-e) 'In many cases before American Cyanamid the prospect of success was one of the important factors of taken into account in assessing the balance of convenience. The courts would be less willing to subject the plaintiff to the risk of irrecoverable loss rt which would befall him if an interlocutory injunction was refused in those cases where it thought he was likely to win at the trial than in those cases where it thought he was likely to lose. The assessment of the prospects of success therefore was an important factor in deciding whether the court should exercise its discretion to grant interlocutory relief. It is this consideration which American Cyanamid is said to have prohibited in all but the most exceptional case. So it is necessary to consider with some care what was said in the House of Lords on this issue.'
38. In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd.
(1999) 7 SCC 1, this Court observed that Laddie, J. in Series 5 Software (supra) had been able to resolve the issue without any departure from the true perspective of the judgment in American Cyanamid. In that case, however, this Court was considering a matter under Monopolies and Restrictive Trade Practices Act, 1969.
39.In S.M. Dyechem Ltd. v. Cadbury (India) Ltd. (2000) 5 SCC 573, Jagannadha Rao, J. in a case arising under Trade and Merchandise Marks Act, 1958 reiterated the same principle stating that even the comparative strength and weaknesses of the parties may be a subject matter of consideration for the purpose of grant of injunction in trade mark matters stating :
(SCC p.591, para 21) '21.....Therefore, in trademark matters, it is now necessary to go into the question of "comparable strength" of the cases of either party, apart from ::: Downloaded on - 15/04/2017 19:53:56 :::HCHP 7 balance of convenience. Point 4 is decided .
accordingly.'
40.The said decisions were noticed yet again in a case involving infringement of trade mark in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.(2001) 5 SCC 73."
of
21. While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be rt suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue.(See Dorab Cawasji Warden v. Coomi Sorab Warden and Others , (1990) 2 SCC 117, Dalpat Kumar v. Prahlad Singh(1992) 1 SCC 719, United Commercial Bank v. Bank of India (1981) 2 SCC 766, Gujarat Bottling Co. Ltd. v. Coca Cola Co. (1995) 5 SCC 545, Bina Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev (1999) 5 SCC 222 and Transmission Corpn. of A.P. Ltd (supra)."
9. Learned counsel for the petitioner would vehemently argue that since the respondents are admittedly joint owners of the property, therefore, they should be restrained from raising any construction till the suit is finally ordered to be partitioned more particularly when the same are already pending. The matter is not so simple as is being portrayed by the petitioner. This Court in an elaborate judgment has considered the rights and liabilities of co-owners in CMPMO No. 52 of 2014 titled as Ashok Kapoor vs. Murtu decided on 24.6.2015 and thereafter concluded as follows:
46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:-::: Downloaded on - 15/04/2017 19:53:56 :::HCHP 8
i) a co-owner is not entitled to an injunction restraining another co-
.
owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession.
ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.
of
(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.
(iv) If the acts of the co-owner in possession are detrimental to the interest of rt other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest.
(v) before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with.
(vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.
47. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff:-
(i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction;
(ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's right or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and
(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted.
In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands.
::: Downloaded on - 15/04/2017 19:53:56 :::HCHP 910. It would be evident from the decision, the mere fact that .
the parties are co-owners and joint owners etc. is not the sole criteria for granting or refusing injunction, the conduct of the parties too plays an important role and in such like cases, the plaintiff conduct has to be free from blame so as to enable the court to conclude that the plaintiff of has approached the Court with clean hands. But here is a case where the petitioner though claims herself to be a joint owner with the rt respondents after having already raised construction over the suit land seeks an injunction against the respondents without even disclosing this fact.
11. The injunction being an equitable relief, the person seeking injunction must come with clean hands. The well known mechanism that applies in such matter is "he who seeks equity must do equity". Since the petitioner has admittedly raised construction of her house(s) on a portion of the suit land, she is estopped and has waived of her right to assail and question the construction being raised by the respondents. The fact that the petitioner has not approached the court with clean hands in itself is a sufficient ground for not granting the relief of injunction.
12. Having said so, I find no merit in this petition and the same is accordingly dismissed, so also the pending applications, leaving the parties to bear their own costs. However, before parting, it may be observed that the findings, observations, reasons and conclusions recorded hereinabove are solely for the purpose of determination of this petition and the trial Court shall proceed to decide the matter without being influenced by whatsoever observed hereinabove.
::: Downloaded on - 15/04/2017 19:53:56 :::HCHP 10With these observations, the petition stands disposed of.
.
March 11, 2016 (Tarlok Singh Chauhan)
(GR) Judge
of
rt
::: Downloaded on - 15/04/2017 19:53:56 :::HCHP