Madhya Pradesh High Court
Shajuddin And Ors. vs Nagar Palika Parishad And Anr. on 1 February, 1985
Equivalent citations: AIR 1985 MADHYA PRADESH 252, (1985) JAB LJ 486
ORDER Ram Pal Singh, J.
1. The plaintiff-applicants, aggrieved by the. orders passed by the Additional District Judge, Sheopurkalan in Civil Miscellaneous Appeal No. 54 of 1983, have invoked revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure.
2. This revision was taken up on 13-l-1984 and the notices were ordered to be issued to the defendant-respondents on the point of admission. Today, Shri Rule C. Lahoti appears for the respondents.
3. Both the parties are heard.
4. Short facts, giving rise to this revision, are that the applicants filed Civil Suit No. 134-A of 1983 in the Court of Additional Civil Judge Class I, Sheopurkalan. Their case was that they were sitting as hawkers on the pavement and had constructed wooden temporary structures. Nagar Palik Parishad of Sheopur-Kalan wanted to construct pucca shops, 53 in number, investing about five lacs of rupees. At that time, Nagar Palika Parishad gave them oral assurance that after construction of the shops, the applicants shall be allotted some of the shops. On this oral assurance, they were sitting on the pavements for selling their wares. They further averred in the plaint that after construction of the shops, they came into the possession of these shops and the Nagar Paiika Sheopurkalan is now threatening to evict them and that is why they prayed for declaration and permanent injunction. Along with the plaint, they also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, praying for issuance of temporary injunction against the Nagar Palika Parishad directing it not to evict them from the shops, which are in their possession.
5. The trial Court, after considering the material before it. rejected this application of the plaintiff-applicants. Aggrieved by this order, they preferred a miscellaneous appeal before the first appellate Court. On 2-1-1984, the first appellate Court too, dismissed their appeal. Aggrieved by this order, they have filed this revision petition in this Court.
6. They also filed I. A. No. 267 of 1984, praying that the non-applicants be directed not to dispossess the petitioners from the disputed shops, forcibly, till the decision of this revision petition.
7. Shri N.M. Kaushik, learned counsel for the applicants submitted that the applicants, when filed the suit. Were in possession of the Nagar Palika shops and hence both the Courts below have wrongly refused to maintain the status quo as existed on the date of the suit. He further submitted that the applicants, at this stage, are not required to establish their title because for granting temporary injunction the question of title is wholly irrelevant. According to him, both the Courts below should have kept in view the actual physical possession of the applicants over the Palika shops. In support of his submission, he has cited the cases of Durg Transport Co. v. Regional Transport Authority AIR 1965 Madh Pra 142, Aliahmed v. B. K. Pateria 1970Jab LJ 999 : (AIR 1971 Madh Pra71) Lallu Yeshwant Singh v. Rao Jagdish Singh AIR 1968 SC 620 and numerous cases of this High Court.
8. The first appellate Court, while dismissing the appeal of the applicants, has arrived at the following findings.
(1) Applicants have no prima facie case and they have without any right and without any permission from the Nagar Palika Authorities, forcibly occupied the shops and are in unlawful possession. (2) There is no balance of convenience in favour of the applicants.
(3) The conclusion arrived at by the trial Court on facts is just and proper.
9. Rule 1 of Order 39 of the Code of Civil Procedure lays down the circumstances under which a temporary injunction can be granted. Unless those circumstances exist, Court has no jurisdiction to grant it. But the fact that those circumstances exist does not compel the Court to grant it in all cases inasmuch as the rule only says that in the cases mentioned therein, the Court may grant an injunction. Thus, the granting of an injunction under the rule, is purely within the discretion of the Court. This discretion, however, should like other cases of discretion vested in Courts, be exercised in accordance with reason and on sound judicial principles. The grant of injunction is a serious matter and Courts are required to take good care to grant an injunction is essential. If the plaintiff in his dealings with the person against whom the relief is sought has acted in an unfair or unequitable manner he would not be entitled to the injunction.
10. Both the Courts below have held that after the construction of those shops, the applicants have unauthorisedly occupied the shops. This concurrent finding of fact could not be displaced or demolished by Sri Kaushik, the learned counsel for the applicants. The applicants' claim that some one of Nagar Palika assured them that they will be allotted the shops and hence they took the possession. Assuming it was an oral assurance, did the applicants get any right by it to take the possession? According to the provisions of Section 110 of the Madhya Pradesh Municipalities Act 1961, only the Municipal Council is competent to enter into a contract and that too in writing. Nagar Palika is a public body and none except the Council is competent to enter into a contract. It has not been pleaded by the applicants as to who was the person who permitted them to occupy the vacant newly constructed premises. The Act also provides that such premises are to be allotted by auction. Clearly, be that as it may, the Act does not contemplate any oral contract to be entered into by Nagar Palika. The applicants, thus, according to the concurrent finding of facts, acted in an unfair and unequitable manner. They, without, participating in a prescribed auction, preferred the short cut of high-handed action and took the possession of the public property by force. The conduct of the applicants should have fair and honest and must not have been such as to disentitle them of the assistance.
11. The relief of injunction is an equitable one and the one who prays for it must come with clean hands. The applicants cannot be said to have invoked the equitable relief with clean hands. (See 1983 MPWN 119 Kanhyalal v. J. C. Mills).
12. The cases cited at the bar by Shri Kaushik, on facts, are also based upon this principle but none of them deal with the situation as the present one. In these cases, a prima facie case was in their favour to enjoy the status quo. Hence the applicants cannot get the benefit of 'status quo'.
13. If the Act provides for the auction, the applicants like others can participate in the process and I am sure that the Nagar Palika, in no way will deny this privilege to the applicants, who, to me, do not seem to be very affluent.
14. While exercising the revisional jurisdiction this Court cannot extend any discretionary help to the applicants, who have, to their disadvantage, concurrent findings of fact against them.
15. Before parting with this order, I express my pious hope, that Nagar Paiika, which is a Public Institution, created by statute, to serve the public shall not take a biased stand against the applicants, when they participate in public auction.
16. This petition has no force, hence it deserves to be dismissed. Both the Courts below have committed no error in exercise of the jurisdiction vested in them.
17. The up-shot of the above discussion is that this revision as well as the LA. No. 267/84, both are dismissed at the stage of admission. However, there shall be no order as to costs.