Janak LaA Gupta v. Santosh KumarSahu & Ors.

Santosh KumarSahu aged 44 yrs s/o Shri Trilok Sahu (as mentioned in the cause title of impugned order) r/o Gram - Laxmipur, Tah - Ambikapur Distt - Surguja CG Smt Baudhi Devi aged 57 yrs w/o Shri Harihar Sao r/o Gram- Manipur, Near Hanuman Mandir, Tah - Ambikapur, Distt-SurgujaCG Hardeo Sao aged 59 yrs s/o Shri Sakuri Sao r/o Gram - Parasdih, Tah- Wandrafnagar, Distt - Surguja CG State of Chhattisgarh Through : The Collector : Ambikapur Distt - Surguja CG WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA The Petitioner respectfully submits as under ^^^c.<y^^ ^- <ft HIGH COURT OF CHHATTISGARH AT BILASPUR S^B: Hon'ble Shri Prashant Kumar Mishra. J. Writ Petition (227) No. 237/2012 PETITIONER : Janak Lal Gupta Versus RESPONDENTS : Santosh Kumar Sahu and others Shri A.D. Shrivastava, counsel for the petitioner. Shri Ashok Kumar Shukla, counsel for respondent No.1. Shri Avinash K. Mishra, PL for the State/respondent No.4. ORAL ORDER (29.08.2012) This petition under Article 227 of Constitution of India has been preferred by the defendant No.1 challenging the order dated 9/02/2012 passed by the Second Additionai District Judge, Sarguja thereby aliowing the mjscellaneous appeal under Order 43 Rule 1 (r) of CPC filed by the respondent No.l/plaintiff which in turn has arisen out of the order passed by the trial court on 2/05/2011 (Annexure P-2) rejecting his prayer for grant of temporary injunction. (2) In Civil Suit No.74-A/06 preferred by petitioner his title has been dedared on the suit land. In the present suit the plaintiff/respondent No.1 has prayed for a declaration that the judgment and decree dated 12/01/2010 in Civil Suit No.74-A/06 be declared nul!, void and ineffective. Along with the suit he filed an application under Order 39 Rule 1 and 2 of CPC seeking temporary injunction to restrain the defendants No.1, 2 and 3 from raising construction on the suit land and removjng the plaintiff from possession and also for alienating the suit land during pendency of the suit. (3) The trial court by its order dated 2/05/2011 observed that as long as the earlier judgment and decree is not set aside it remains operative and binding and even if the plaintiff of the present case is not a party to the earlier suit, maintainability of the earlier suit cannot be examined at this stage which shall be taken care while dedding the suit finaliy. The appellate court by the impugned ^order, has recorded implied finding that the defendants are in possession, therefore, ^an\ tsiis^^ l 1 s ^ "^r"^' '^>, ^R£<K^P -^ ^ they shal! be free to enjoy the properiy but considering the dispute between the parties they should not raise any constructjon over the suit land and if defendante are restrained from raising any construction or alienating the property they are not likely to suffer any irreparable loss. (4) After hearing learned counsel for the parties and upon perusal of documents, it would appear that the earlier suit was filed for declaration of title and the present suit is also filed for a declaration that the decree obtained by the petitioner in the eariier suit is nuli and void. The plaintiff in the present suit has not ciaimed any consequential relief of delivery of possession or permanent injunction. The prayer for restraining the defendante from raising construction over the land has an eiement of submission to the effect that the defendants are in possession, otherwise any person not in possession would not proceed to raise construction over the property. Be that as it may, since the plaintiif has not claimed any relief for recovery of possession or for issuance of permanent injunction in the present suit, grant of such relief by way of temporary injunction is ordinarily not allowed. (5) Section 38 of the Specific Retief Act, 1963 provides for the contingencies when perpetual injunction can be granted and according to this provjsion, a perpetual injunction may be granted to the plaintiff to prevent the breach of an objigation existing in his favour, whether expressly or by implication and sub-Section (3) thereof further provides that the said perpetual injunction can be granted when the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:- (a) (b) (c) (d) I where the defendant is trustee of the property for the plaintiff; where there exists no standard for ascertaining the actua! damage caused or likelyto be caused, by the invasion; where the invasion is such that compensation in money would not afford adequate relief; where the injunction is necessary to prevent a muitipiicity of judicial proceedings." ^'^^.^ "%€ .^^ ,.f^,-^pl, 1 'e^y '\. -3- (6) Although civil court's power and jurisdiction to grant temporary injunction are governed by the provisions contained in Order 39 Rule 1 and 2 of CPC, however, when exercise of such discretion is undertaken by the trial court it has to keep in mind the guiding princjples provided under Section 38 also. When the plaintiff has not alleged invasion of any of his right by the defendant which may compel him to seek perpetual injunction against the defendant, such plea of invasion only for the purpose of seeking temporary injunction under Order 39 Rule 2 of CPC appears to be jmprobable. There is no whisper in tiie plaint that the plaintiff is in possession of the suit land or that raising of construction on the sujt land is affecting his right and creating cloud on his title. His only grievance is for declaring the previous decree as null and void. Preservation of subject matter of property by grant of temporary injunction is always in favour of the piaintiff's right or entitlement for which he is ultimately found entitled to when the suit is decreed in his favour, however, in a case where the plaintiff has not claimed any relief for recovery of possession or permanent injunction, grant of temporary injunction restraining the defendant from raising construction over the suit land woujd ultimateiy cause jrreparable ioss to the ^ defendant rather than causing any loss to the plaintiff. (7) This is apart from the fact that where the plaintilf has sought relief for dedaring previous decree as null and void, to begjn with, the existence of prima facie case in favour of plaintiff is always difficult to establish at this stage of the proceedings unless the earlier decree appears to be a resuit offraud. (8) In the matter of Wander Ltd. and another Vs. Antox India P. Ltd. reported in 1990 (Supp) SCC 727 the Hon'ble Supreme court, while considering power of the first appeilate court while dealing with an appeal against order passed by the trial court in exercise of discretionary jurisdiction, has held thus in paragraph 14:- "14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court wdt not ^ interfere with the exercise of discretion of the court of first instance and \.:;, ,^:-^. ^-^m. ^ 4- <^ substitute its own discretion except where the discretjon has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of jnteriocutory injunctions. An appeal against exercjse of djscretion is said to be an appeal on prindple. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below ifthe one reached by that court was reasonabty possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it wouid have come to a contrary conclusion. If the discretjon has been exercised by the trial court reasonabiy and in a judicial manner the fact that the appellate court would have taken a different view may notjustify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Piivate Ltd. v. Pothan Joseph (1960) 3 SCR 713 (SCR 721) "....These principjes are well estebHshed, but as has been obsen/ed by Viscount Simon in Charles Osenton & Co. v. Jhanaton 1942 AC 130 '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due onty to the application ofwell settled prindples in an individuat case'." (9) In view of the above discussion, this court is of the considered opinion that the first appellate court has committed manifest illegality and palpabte error of jurisdiction while setting aside the order passed by the trial court and partly allowing the appeal preferred by the respondent No.1 for grant of temporary injunction in terms of the impugned order. (10) At this stage learned counsel the petitioner undertake that petitioner/defendant No.1 shall not alienate the suit property during pendency of the suit. ]<N,, ..•^;..:.. ~5" (11) In view of the above, after recording the underteking made by learned counsel for the petitioner, the impugned order granting temporary injunction restraining the petitioner from raising construction over the suit land is set aside. (12) The writ petition stands allowed in part. (13) It is also made clear that any observation made in this order is only for the purpose of deciding the jssue at this stage for grant of temporary injunction only and the trial court, while dedding the suit, shall not be influenced by any observation made in this order and the decision in the suit shall be madestrictly on the basis of Vl^' evidence adduced by the parties in course of trial. It is also directed that the trial court shall do well to dispose of the suit as early as possible and preferably within a period of six months from the date of presentation of certified copy of this order before the trial court. Sd/- prashant Kumar Mishra Judge ^