Madhya Pradesh High Court
Kanraj Khatri vs Nathuram Jain on 26 July, 1996
Equivalent citations: AIR1997MP92, 1997(2)MPLJ41, AIR 1997 MADHYA PRADESH 92, (1997) 2 MPLJ 41 (1997) 3 CIVLJ 671, (1997) 3 CIVLJ 671
ORDER S.C. Pandey, J.
1. This revision has been filed by the defendants against the appellate order dated 10-4-96, passed by IIIrd Additional Judge to the Court of District Judge, Bastar, in Misc. Civil Appeal No. 3 of 1996. The lower appellate Court has reversed the order passed by the trial Court refusing the grant of temporary injunction.
2. The non-applicant/plaintiff filed a suit for declaration that he was entitled to right of easement in respect of light and air passing from the windows of the eastern wall of his house and he also claimed permanent injunction that the applicants/defendants shall be restrained from constructing any structure within three meters of his house or any other distance determined by the Court. It was also claimed that a mandatory injunction be issued to the applicants/defendants that in case, they have obstructed the light and air to the house of the non-applicant, then they be asked to remove the structure obstructing the light and air going to the house of the non-applicant.
3. Shortly stated, the case of the non-applicant was that he had constructed a house on Plot No. 124/7, Sheet No. 91, area 1284 sq.ft. in Sadar Ward, Jagdalpur. The applicants purchased an open plot on eastern side of the house in the year 1995. It formed the part of Sheet No. 91, bearing Plot No. 124/9, area 980 sq.ft. and Plot No. 124/10, area 1020 sq.ft. It was further alleged that the applicants were brothers and members of the Joint Hindu Family. They had purchased the aforesaid two plots after dividing them in two parts as aforesaid and got them registered in the individual names. The situation of the two plots was shown in the plaint map from which it was clear that the house of the non-applicant fell to the western side of the plot of both the applicants.
4. It was claimed by the non-applicant that, having purchased the plot in the year 1969 he constructed a new house in the year 1974/75 after demolishing the old house on that plot and since then he was living in that house. It was also pleaded that he had constructed a wall on the eastern side of the house. It had several windows from which the non-applicant was enjoying light and air since the date of construction.
5. When the applicants started construction in their plot, the non-applicant came to know that the applicant shall construct their house very close to eastern wall. Thereupon, the non-applicant orally requested the applicant not to do so. According to the case of the non-applicant, the applicant had then promised that they will not obstruct any light and air in his house. However, they did not fulfil their promise and began to construct their house in accordance with their original plan. It was claimed by the non-applicant that he apprehended that the applicants shall construct their buildings so close to the house of the non-applicant that there shall be no room for light and air entering into his house, through the eastern part of his house, where he had got constructed several windows.
6. Non-applicant claimed that he had enjoyed this right of easement from the date of purchase of the plot and house in the year 1969 and continued to do so without obstruction for twenty years. He claimed that as per Section 15 of the Indian Easements Act the non-applicant has acquired the right of easement which the applicants could not obstruct or interfere with. For this reason, the applicants had filed the suit for the reliefs already indicated above.
7. During the pendency of the suit, the non-applicant also filed an application for grant of temporary injunction claiming that the applicants be restrained from making further construction as was being done by them. This application under Order 39, Rule. 1 and 2 of the Code of Civil Procedure was opposed by the applicants during the trial. They denied the allegations made in the plaint and claimed, inter alia, that the non-applicant 'got constructed his house in the year 1987. They blamed the non-applicant himself for constructing the house without leaving three meters' space around his house as was done previously. It was also claimed that the house constructed by the non-applicant was without sanction of the Municipality and in the old house there were no windows as such. It was further alleged that the suit was filed late when the applicants had already constructed a wall up to 8 to 9 feet. It was asserted that the non-applicant had alternative modes of getting light and air in his house and he could not complain that his light and air have been obstructed.
8. The trial Court dismissed the application, filed by the non-applicant, holding that the non-applicant had no prima facie case in his favour. It found that as per photographs produced in the case there was only one ventilator on the eastern side. There were no windows as claimed by the non-applicant. It was also found that the non-applicant himself had not left three meters' space as per requirement of rules framed under NagarTatha Gram Nivesh Adhiniyam, 1973-1 (hereinafter to be called as the Adhiniyam, for short). In view of this situation, the trial Court held that the non-applicant had not come to the Court with clean hands and he could not obstruct the rights of the applicants, who were constructing the house in accordance with law. It was further held that there was no balance of convenience in favour" of the non-applicant and that there was no possibility of non-applicant's suffering an irreparable injury, in case, the applicants were allowed to continue with their construction activity.
9. The non-applicant filed an appeal against the order refusing the injunction, passed by the trial Court and the Court below has reversed the order of the trial Court. In doing so, the Court below, in paragraph 30 of his order, has relied upon the decision of this Court in the case of Shankerlal Devi Prasad Rathofe v. State of M.P., 1978 MPLJ 4-19. According to the Court below, the allegations made in the plaint, showed that there was a serious question to be tried and in view of this matter, the meaning of these words viz. "serious question to be tried" was held to be that if, the Court came to the conclusion that the suit is not palpably false or was not filed with a view to harass the defendant, then it would be presumed that there is a serious question to be tried. It appears that in the aforesaid situation, it was the view of the lower appellate Court that the plaintiff shall be entitled to injunction provided he succeeded on the point of balance of convenience and irreparable injury. The lower appellate Court found that the balance of convenience was in favour of the non-applicant, because the applicants had not made construction to such extent so as to cause obstruction of light and air to the non-applicant. It was also found that the light and air are very necessary for the health of a person and, therefore, the non-applicant shall suffer irreparable injury, if temporary injunction was not granted until the suit was finally decided. Accordingly, the Court below granted temporary injunction in favour of the non-applicant/plaintiff, and against the applicants/defendants.
10. Learned counsel for the applicants has assailed the conclusion of the lower appellate Court urging in this Court 'vehemently that the non-applicant had no equitable case in his favour. His claim was not prima facie proved that the non-applicant can claim that he was entitled to a temporary injunction. In this connection, the learned counsel for the applicants cited two decisions of the Supreme Court, firstly, being the case of Gujarat Bottling Co. Ltd. v. The Coca Cola Co., 1995 (6) JT (SC) 3 (at page 7) and the other is the case of Mahadeo Savalram Sheike v. The Puna Municipal Corpn., 1995 (2) JT (SC) 504. According to the counsel for the applicants, injunction should be granted only when equities are in favour of the plaintiff. The plaintiff must come before the Court with clean hands. He cannot take advantage of his own wrong. The learned counsel contended that the non-applicant was not entitled to injunction as a matter of course. The discretion should be exercised in a judicial manner. The learned counsel further urged that the trial Court had taken all the equitable considerations in favour of the applicants and had declined to grant temporary injunction in its discretion. The lower appellate Court should not have interfered with the discretion of the trial Court to supplement its own view in the matter.
11. The counsel for the non-applicant/ plaintiff, on the other hand, supported the order passed by the lower appellate Court and argued that the lower appellate Court rightly pointed out that the trial Court had not considered the case of the non-applicant from the point of view that he had claimed a right of easement. The trial Court did not refer to the right of easement in its order and, therefore, the lower appellate Court was entitled 'to examine the matter afresh in order to determine whether the non-applicant was entitled to temporary injunction or not during the pendency of his suit.
12. It is well established, as was held by the Supreme Court, in the-case of Dalpat Kumar v. Prahlad Singh, AIR 1993 SC 276 (at page 278): 1992 (1) SCC 719, that :--
"..... The phrases "prima facie case",: "balance of convenience" and "irreparable loss" 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....."
13. It was held in Mahadeo Savalram Shelke's case, (supra) that :--
"..... 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 ....."
So, we have to look into whether any substantial question has been raised in this case. In case, this Court comes to the conclusion that no substantial question has been raised or no serious question has to be tried for grant of easement, as claimed by the non-applicant, then there would be no option but to hold that the non-applicant had no prima facie case and he is not entitled to any injunction. It is often forgotten that in order to find a prima facie case or a serious or substantial question involved in a case, it may be examined from two points of view. One is that it should appear to the Court that on the facts stated in the plaint, the plaintiff has chance to get a decree. If the facts are not properly pleaded and they have no relation to the relief sought by' the plaintiff, then the only' result would be that the suit would be liable to be dismissed. In the state of such pleadings no Court can come to the conclusion that the plaintiff has a prima facie case in his favour. However, there may be another situation that may arise that apparently, there appears to be no flaw in the facts pleaded as they are logically related to the relief claimed but by application of law the suit may not be maintainable. If such a situation arise then the Court may face some difficulty in deciding the question. It may be totally certain without an iota of doubt that the suit would not be maintainable or it may not succeed in accordance with the law obtaining on the subject matter of the suit. Can it still be said that the plaintiff has a prima facie case? The answer is clearly -- No. There may be another contingency when the allegations, if made, in the plaint are proved or assumed to be correct then still there remains a doubt that the plaintiff may or may not succeed. The necessary doubt gives the right to the plaintiff to claim that he has a serious question of law to be tried. In such cases, the Court may consider the case of the plaintiff and hold it that he has a prima facie case because, the question of law involved in the suit, has to be tried. The Court may then grant temporary injunction, if the plaintiff proves that irreparable injury shall be caused to him which cannot be compensated by money and the balance of convenience was in his favour.
14. It may be remembered that the aforesaid two categories were stated on the assumption that facts stated in plaint and application under Order 39, Rule 1 and 2 of the Code of Civil Procedure are positively true or appear to be true. There may be another category of cases where it appears to the Court that the defendant has brought material on record to controvert the material placed by the plaintiff that on facts probably, there is no or there could be no prima facie case in plaintiffs favour then obviously, temporary injunction has to be refused. On the other hand even if the plaintiff may have a strong case on facts, he may have probably weak case on law then also temporary injunction has to be refused. In all other cases, if the plaintiff has placed such material on record so as to create reasonable possibility of his success then temporary injunction may be granted, provided he proves other well known conditions. However, in absence of strong prima facie material on record in favour of plaintiff suggesting that on facts, he may succeed, there is no case for grant of temporary injunction. So far as question of law is concerned, the test indicated in the previous paragraph should be applied, if the plaintiff has a strong case on facts.
15. These are, however, only broad general observations. Each case has to be examined carefully to see if there is a prima facie case. However, on going through the plaint allegations on the face of it, if it appears to the Court, and there is no room for any doubt, that the plaintiff should not succeed in accordance with law on the subject matter of the plaint, the Court shall hold that there is no prima facie case in favour of the plaintiff. In other words, he has filed a suit without there being any serious question to be tried. The Court will not then grant temporary injunction.
16. Let us examine the case of the non-applicant from this point of view. Now, the non-applicant has claimed that he has equitable right of easement in respect of light and air coming from the windows on the eastern side of wall from the plot of applicants. It is alleged that he had purchased his plot in the year 1969. It is also alleged that subsequently, in the year 1974-75 he had constructed the eastern wall having several windows from which the light and air were coming. Thus, the relief of easement is in respect of light and air coming from these windows which were constructed in the year 1974-75. The relevant portion of Section 15 of Indian Easements Act, 1882 is reproduced as under:--
"15. Acquisition by prescription.-- Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from ..... and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by and person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air support or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested."
17. It may be true that when the applicants purchased the two plots in the year 1995, there may be apparently no obstruction of light and :air 'in-the plot, so far as-the applicants are concerned because they were not in picture, but in' order to show that this right has been enjoyed by the non-applicant;
for twenty years, it was incumbent upon the.
respondents, to plead and prove that previous, owners of the plot had not obstructed light and air prior to selling of the plot to the applicants: 'It) is not enough to say that his light and air were not; obstructed but he must also plead and prove that his enjoyment of obstruction of light and air was peaceable and without any, interruption thereon. The plaint is silent ab6ut right' of easement being exercised by the non-applicant against, the previous owners The Court cannot assume' that merely because it was an open plot on the eastern side of the applicants, there could 'be no obstruction to light and air between 1974- 75 to 1995. Even one day's obstruction of right and air would be enough to debar-the non-
applicant from claiming that right. In absence of such an averment in the plaint it is' very difficult to hold that the non-applicant has a prima facie case. '
18. That apart, learned counsel for the applicants was right in pointing-put that the relief of 'injunction is an equitable relief and the non-applicant is seeking equity. If is a maxim; of equity that "equity follows the laws". Here, the trial Court has recorded .1 finding,, that the non-applicant had violated, the law by constructing his own house, with out leaving a three meters' space as per the rules framed under' the Adhiniyam'. The non-applicant has, therefore, violated a rule of law and has not come to the Court with clean hands. In such a situation, the trial Court was right in refusing to grant the temporary injunction to the non-applicant. The lower appellate Court cted with a material irregularity in exercising its jurisdiction when it altogether aomitted to look into the conduct of the non-applicant. The non-applicant was trying to force the applicants to do a thing which he himself did not do in accordance with law. He had claimed that the applicants should construct their walls three meters away from his eastern wall, but he himself dfd not follow that rule.
19. The next question' that arises' for consideration is whether the Court below was right in holding that there is a balance of convenience in favour of the non-applicant. The suit was filed in the year 1996 when the applicants had already started construction of their house. The non-applicant could hot have waited for the applicants to start their construction and 'allow them to raise their walls to 5 to 8 feet above the ground level. He should have filed the suit at 'the earliest so that loss, if any, to the applicants could be minimized.' The explanation given by the non-applicant in his plaint, in paragraph 3, that the applicants stopped, the construction for some time at his instance, is not sufficient for not filing the suit as there was no express agreement on the 'part of the applicants with the non-applicant regarding his right of easement. It is not even clear that there was any promise made by the applicants regarding right. The' fact, however remains that the applicants, continued their construction and the non-applicant came to the Court when the wall was; raised up to 5 to'8'' feet. Thus, the delay in such institution' matters will be sufficient to disentitle the plaintiff for grant of temporary injunction. The applicants must have made a lot of expense in money and material for starting the Construction and, therefore, it would not be proper, in the interest of justice, to stop their constructions which is not prima facie illegal, because the trial Court has already given a finding in their favour that they are constructing their house according to the sanctional granted to them under 'the Adhiniyam and Municipalities Act. The lower appellate Court has not considered this aspect of the matter.
20. So far as irreparable injury to the non-applicant is concerned, it is held that the non-applicant shall not suffer 'any irreparable injury. There is nothing on record to show that the light and air to the non-applicant shall be obstructed totally; nor the non-applicant has said, in his application, that light and air to him would be obstructed totally. On the other hand, in the reply, the applicants have said that there is alternative way from which light and air can pass to the house of the non-applicant. There is no counter reply filed by the non-applicant, denying this allegation.
21. As a result of the aforesaid discussion, this revision succeeds and the same is, there fore, allowed. The impugned order dated 10- 4-1996, passed by the lower Appellate Court, in M.C.A. No. 3/96, is set aside and that 6f the trial Court; dated 28-2-1996, passed in C.S. No. I7-A/96, is maintained and restored. The injunction application of the non-
applicant/plaintiff is dismissed. There shall be no order as to costs.