High Court
Case Details
CRP 365/2008 BEFORE HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, CHIEF JUSTICE
Legal Reasoning
This petition has been preferred against order of the courts below declining inj unction sought by the petitioners. The respondents (defendants in the suit) had earlier filed a suit for possession being Title Suit No.75/82 in which Karuna Kanta Pathak, father of the petitione rs was a defendant. During pendency of the suit Karuna Kanta Pathak died and his wife Jamini Bala Pathak was impleaded as a party. Narendra Pathak, brother of K aruna Kanta Pathak was also impleaded as a party. The suit was decreed on 19.2.1 986. The said Narendra Pathak filed Title Appeal No.20/96 against the decree of the trial court. During pendency of the appeal, the petitioners were impleaded a s party being heirs of Karuna Kanta Pathak vide order dated 11.8.87 except petit ioner No.4. On due consideration, the appeal was dismissed by the lower appellat e court on 17.11.89. Second appeal was filed in this Court being SA No.205/89 wh ich remained pending for about 7 years and ultimately got dismissed in default o n 8.8.96. The respondents initiated execution proceedings which are still pendin g. In September, 2006 the petitioners who were successors of the defendant judgment debtors filed a fresh suit inter-alia for declaration that the decree dated 19. 2.86 was vitiated by fraud as they had not been impleaded or served. The said de cree was void and inoperative against the plaintiffs. They also filed an applica tion for injunction during pendency of the suit. The respondents contested the suit and injunction application and submitted that earlier decree was after a fair trial in which the petitioners were duly repres ented. No prejudice was caused to them. Finality of the decree could not be reop ened in suit filed twenty years after the decree. The trial court did not find any prima facie case and held that the plaintiffs h ad full knowledge of the Suit and Judgment and Decree passed against them. It wa s observed: (cid:28)On appreciation of the facts and circumstances projected by both the parties, I am of the opinion that the plaintiffs who are the petitioners in this case, the y had full knowledge about T.S.Case No.75.82 and the judgment and decree passed therein. They have challenged the said judgment and decree not only in the immed iate appellate court but also challenged in the form of 2nd appeal. Over and abo ve the decretal land measuring 2 Bighas 2 Kathas 10 Lechas already placed under new dag No.166 of village Bar Chenga which is now standing in the name of the de fendant. Thus, I find there is no existence of prima facie case of the plaintiff s/petitioners and the balance of inconvenience is not in favour of them. On the event of rejecting the present petition, I do not force any irreparable loss and injury will be suffered by the plaintiff/petitioners. Thus in view of above dis cussion, I am of the opinion that it is a fit case to reject the injunction peti tion as prayed for in the present case. Accordingly, the instant petition stands dismissed on contest. (cid:29) The above finding has been affirmed by the lower appellate court as follows: (cid:28)14. In view of the rival submissions and before adverting to the merit of the i mpugned order, it needs to be emphasized that the injunction is an equitable rel ief and norms of exercise of such power is fairly well established. As is well k nown, injunction is a relief founded in equity. The power to grant or declaring injunction lies in the realm of discretion of the court. As the injunction is no t a matter of charity. The norms of exercise of such power are no longer res int egra. It is well acknowledge that before a court grant injunction, it must ascer tain if the plaintiffs seeking injunction has a prima facie case to go for trail , whether the balance of convenience lies in favour of grant or refusal of injun ction and whether the irreparable loss and injury will be caused to the plaintif fs if the injunction is refused. It is must exist as a chain if there is one mi ssing link in the chain then the injunction cannot be granted. Thus injunction b eing an equitable remedy and he who equitably must do equity and he who comes in to equitable must come with clean hands. The power to grant and/or refuse injunc tion is a drastic power and may have the effect of causing serious consequences to the party against whom injunction is granted. The discretionary power has the refore to be exercised with circumspection, care and caution. In a catena of cases, the Hon’ble Apex Court has laid down the scope of 15. the appellate court’s power to interfere with the grant or refusal of injunction . In Wander Ltd. vs. Antox India Ltd reported in (1990) Suppl, SCC 717, the Apex Court has held that unless discretion has exercised by the trial court arbitrar ily, capriciously, whimsically or without regard to the established principles o f Geverning the grant and/or refusal of injunction, the appellate court should b e slow to interfere with the discretion to be exercised by the court below. A vi ew possible on the facts of the case if adopted by the trial court, must be allo wed to prevail, notwithstanding, the fact that the appellate court. On the same facts, might be inclined to take another view. If however, the view taken by the trial court is neither possible nor a reasonable one at all, the appellate cour t can interfere. It is manifest from the record that the learned trial court while reject 16. ing the prayer of injunction of the appellants/petitioners has concluded that th e appellants had full knowledge about T.S.Case No.75/82 and the judgment and dec ree passed therein in as much as appellants ( petitioners challenging the said j udgment and decree not only in the first appellate court but also challenged in the form of 2nd appeal before the Hon’ble High Court, where judgment and decree of learned court of first instance as well as the court of first appellate court were confirmed. In the circumstances the learned trial court disbelieved the ap pellants contention in the petition that they were ignorant about the judgment a nd decree passed in T.S. No.75/82 dtd. 19.02.86 which was adjudicated without ap pointing the guardian on behalf of the minors (plaintiffs). The learned trial co urt has further concluded that the decreetal land measuring 2 Bighas 2 Kathas 10 Lechas has already placed under New Dag No.166 at village Borchenga which now s tanding in the defendants in view of T.Ex. Case No.28/07 initiated by the respon dents/decree holder and for which the appellants have also filed T.S.No.32/07 an d therefore,it has been held by the learned trial court that the appellants coul d not make out a prima facie case and the balance of inconvenience is also not i n favour of the defendants and in the event of rejecting the injunction petition the appellants/petitioners could not suffer irreparable loss and injury. The vi ew taken by the learned court that the appellants have no prima facie case does not at all incorrect in view of the fact that the appellants have admitted that the suit land has already been placed under New Dag No. in the name of the respo ndents in view of the T.Ex. Case No.38/07 arising out of the judgment and decree passed in T.S.No.75/82. That apart it is also apparent from the T.S.No.132/07 t hat the appellants/plaintiffs have filed the suit for declaration of title and f or partition of the legitimate share thereof by evicting the defendants from the land so partitioned for the plaintiffs and for declaration that the judgment an d decree dtd.9.02.86 passed by the learned Munsiff No.2, Barpeta in TS No.75/82 is null and void, fraudulent and inoperative against the plaintiffs along with p ermanent injunction restraining the defendants from proceeding with the executio n of the judgment and decree of T.S. No.75/82. So from the appellants/petitioner s petition as well as from the T.S. filed by the appellants/petitioners as plain tiffs also discloses that the decreetal land which is the part of the suit land has already been placed under new dag standing in the name of the respondents in view of the execution case No.38/07 arising out of T.S.No.75/82. So obviously t he appellants has failed to establish a prima facie case in support of granting injunction by establishing that the appellants were in possession of the suit pr operty on the date of the suit after execution of the decreetal land which the p art of a suit land which has already been placed under new dag and is now standi ng in the name of the respondents in pursuance of the judgment and decree passed in T.S.No.75/82. It is well stated that a person in possession can be evicted b y due process of land and hence even a rightful owner cannot eject him by force. (cid:29) Heard learned counsel for the parties. Learned counsel for the petitioners submits that only mother of the peti tioners was impleaded as a party and the petitioners being minors were not repre sented and thus, the decree was a nullity.
Legal Reasoning
Learned counsel for the respondents supports the impugned order. It is s ubmitted that the father of the petitioners was the original defendant and on hi s death, mother of the petitioners was impleaded as a party and participated in the proceedings. Her interest in the proceedings was in no way adverse to the in terest of the petitioners and after considering the evidence led, the decree was passed which has become final. Proceedings have been pending for more than 30 y ears and decree in favour of the respondents is more than 27 years old. The suit itself has been filed in the year 2006 i.e. after 20 years of the decree. On due consideration, I find that no ground has been made out calling fo r interference with the impugned order. Concurrent finding recorded by the Court s below that on facts and circumstances of the case, the petitioners had no prim a facie case is certainly a possible view. The interest of the petitioners was d uly represented by their father and thereafter by their mother all throughout an d as such the decree cannot be held to be a fraud. The suit has been filed after 20 years of the decree. The petition is dismissed. It is, however, made clear that nothing said hereinab ove may be treated as expression of final view on merits. The parties may now appear before the executing court for further proceedings on 23.5.2013.