Pet it ioners v. Sharda Devi Saxena and Anot her

Pet it ioners have also challenged j udgm ent dat ed

07.03.2024, rendered by 3 rd Addit ional Dist rict Judge, Rudrapur, Dist rict Udham Singh Nagar, in Civil Appeal No. 19 of 2022, whereby Trial Court ’s order was affirm ed.

2. Learned counsel for t he pet it ioners subm it s t hat respondent No. 1 filed a suit for perm anent inj unct ion and declarat ion, in which Divisional General Manager and Assist ant Divisional Manager, Ut t arakhand Transport Corporat ion were added as defendant Nos. 1 and 2 and Municipal Corporat ion, Rudrapur was arrayed as proform a defendant No. 3. He subm it s t hat respondent No. 1, in her suit , did not claim t hat she is owner of t he propert y in quest ion and she sim ply st at ed t hat she is cont inuing in possession over t he 1 land in suit for m ore t han 40 years. He subm it s t hat t he in quest ion is nazul land belonging t o St at e Governm ent , which was allot t ed t o Ut t arakhand Transport Corporat ion for const ruct ion of I nt er St at e Bus Term inal ( I SBT) vide G.O. dat ed 04.10.2011; however, due t o t em porary inj unct ion grant ed in favour of respondent No. 1, const ruct ion work of I SBT is st alled.

3. Learned counsel for t he pet it ioners furt her subm it s t hat learned Trial Court as well as learned Appellat e Court considered whet her plaint iff ( respondent No. 1 herein) has been able t o m ake out any prim a facie case and wit hout considering t he said aspect , t em porary inj unct ion was grant ed t o her. He subm it s t hat plaint iff could not show any prim a facie case, yet t em porary inj unct ion was grant ed in her favour. He furt her subm it s t hat learned Court s below erred in not considering whet her t em porary inj unct ion can be grant ed at t he inst ance of t respasser against t he t rue owner of a propert y.

4. The order passed by learned Trial Court reveals t hat pet it ioner m ent ioned in it s obj ect ion t hat t he land in quest ion was nazul land and St at e Governm ent allot t ed t he sam e t o Ut t arakhand Transport Corporat ion for set t ing up I nt er St at e Bus Term inal, vide G.O. dat ed

04.10.2011. I t furt her reveals t hat respondent no. 1 in her plaint adm it t ed t hat it is a governm ent land and Respondent No. 1 claim ed t hat she applied for freehold right t o t he St at e Governm ent , however, she did not add St at e of Ut t arakhand as defendant in t he suit . 2

5. St and t aken by Nagar Nigam , Rudrapur considered and discussed in para 4 of Trial Court ’s order. Nagar Nigam st at ed t hat house of t he plaint iff is st anding over nazul land, allot t ed t o Ut t arakhand Transport Corporat ion; alt hough plaint iff claim ed t hat she is in possession over t he land in quest ion since last 45 years, however, t here is no evidence what soever t o support t hat claim ; t he land which is occupied by plaint iff is under cont rol of Ut t arakhand Transport Corporat ion and Nagar Nigam has not hing t o do in t he m at t er, t herefore, t here is no cause of act ion available t o plaint iff against Nagar Nigam .

6. Learned counsel for t he pet it ioners subm it s t hat learned Trial Court has not considered relevant aspect s while grant ing t em porary inj unct ion in favour of t he plaint iff ( respondent No. 1) .

7. He subm it s t hat inj unct ion was grant ed m erely because plaint iff claim ed t hat she is in unaut horised occupat ion of t he land in quest ion. He subm it s t hat even if t hat claim is t aken on it s face value, t hen also, t he st at us of t he plaint iff would be t hat of a t respasser and law is well set t led t hat no inj unct ion can be grant ed against t he t rue owner of a propert y at t he inst ance of persons in unlawful possession.

8. He subm it s t hat in t he absence of a st rong prim a facie case, order of t em porary inj unct ion cannot be passed; however, learned Trial Court grant ed t em porary inj unct ion favour of plaint iff in a perfunct ory m anner wit hout considering whet her t here is any prim a facie case in favour of t he plaint iff. 3

9. Learned counsel for pet it ioners placed reliance upon j udgm ent rendered by Hon’ble Suprem e Court in t he case of M a h a d e o Sa v l a r a m Sh e l k e a n d o t h e r s Vs. Pu n e M u n i ci p a l Co r p o r a t i o n a n d A n o t h e r , report ed in ( 1 9 9 5 ) 3 SCC 3 3 . I n para 9 of t he said j udgm ent , Hon’ble Suprem e Court has observed t hat “ I t is set t led law t hat no inj unct ion could be grant ed against t he t rue owner at t he inst ance of persons in unlawful possession” . Para 14 and 15 of t he said j udgm ent are reproduced below: “ 14. I t would t hus be clear t hat in a suit for perpet ual ( sic) inj unct ion, t he court should enquire on affidavit evidence and ot her m at erial placed before t he court t o find st rong prim a facie case and balance of convenience in fav our of grant ing inj unct ion ot herwise irreparable dam age or dam age would ensue t o t he plaint iff. The court should also find whet her t he plaint iff could adequat ely be com pensat ed by dam ages if inj unct ion is not grant ed. I t is com m on experience t hat inj unct ion norm ally is asked for and grant ed t o prevent t he public aut horit ies or t he respondent s im plem ent ing t o proceed wit h execut ion of or schem e of public ut ilit y or grant ed cont ract s for execut ion t hereof. Public int erest is, t herefore, one of t he m at erial and relevant considerat ions in eit her exercising or refusing t o grant ad int erim inj unct ion. While exercising discret ionary power, t he court should also adopt t he procedure of calling upon t he plaint iff t o file a bond t o t he sat isfact ion of t he court t hat in t he event of his failing in t he suit t o obt ain t he relief asked for in t he plaint , he would adequat ely com pensat e t he defendant for t he loss ensued due t o t he order of inj unct ion grant ed in favour of t he plaint iff. Even ot herwise t he court w hile exercising it s equit y j urisdict ion in grant ing inj unct ion has also j urisdict ion and power t o grant adequat e com pensat ion t o m it igat e t he dam ages caused t o t he defendant by grant of inj unct ion rest raining t he defendant t o proceed wit h t he execut ion of t he work et c. The pecuniary award of dam ages is consequent ial t o t he adj udicat ion of t he disput e and t he result t herein is incident al t o t he det erm inat ion of t he case by t he court . The pecuniar y j urisdict ion of t he court of first inst ance should not im pede nor be a bar t o award dam ages beyond it s pecuniary j urisdict ion. I n t his behalf, t he grant or refusal of dam ages is not founded upon t he original cause of act ion but t he consequences of t he adj udicat ion by t he conduct of t he part ies, t he court get s inherent j urisdict ion in doing ex debit o j ust it iae m it igat ing t he dam age suffered by t he inj unct ion defendant by t he act ion rest raining com plained of t hat I t inj unct ion is invar iably sought for in laying t he suit in a court of t he cour t from proceeding wit h t he act of t he defendant is com m on knowledge in grant ing t he suit . 4 t han t he court of j ur isdict ion of t he pecuniary lowest pecuniary j urisdict ion even when t he claim s are m uch larger inst ance, m ay be, for diverse reasons. Therefore, t he pecuniary j urisdict ion is not and should not st and an im pedim ent for t he court of first inst ance in det erm ining dam ages as part of t he adj udicat ion and pass a decree in t hat behalf wit hout relegat ing t he part ies t o a fur t her suit for dam ages. This procedure would act as a check on abuse of t he process of t he court and adequat ely com pensat e t he dam ages or inj ury suffered by t he defendant by act of court at t he behest of t he plaint iff.

15. Public purpose of rem oving t raffic congest ion was sought t o be served by acquiring t he building for widening t he road. By orders of inj unct ion, for 24 years t he public purpose was delayed. As a consequence execut ion of t he proj ect has been delayed and t he cost s now st and m ount ed. The court s in t he cases where inj unct ions are t o be grant ed should necessarily consider t he effect on public purpose t hereof and also suit ably m ould t he relief. I n t he event of t he plaint iffs losing t he suit ult im at ely, t he consequences, nam ely, escalat ion of t he cost or t he dam ages t he Corporat ion suffered on account of inj unct ion issued by t he court s. Appellat e court had not advert ed t o any of t he m at erial aspect s of t he m at t er. Therefore, different reasons, dissolved t he order of ad int erim inj unct ion. Under t hese circum st ances, in t he event of t he suit t o be dism issed while disposing of t he suit t he t rial court is direct ed t o assess t he dam ages and pass a decree for recovering t he sam e at pro rat a against t he appellant s.” t hey should necessarily bear t he High Court has right ly, t hough

10. Learned Senior Counsel appearing for respondent No. 1 support s t he order passed by Trial Court and t he Appellat e Court and subm it s t hat Nagar Nigam , Rudrapur is t he owner of t he land and not Ut t arakhand Transport Corporat ion. He subm it s t hat possession of respondent no. 1 dat es back t o 1980 and t he house const ruct ed by her is sit uat ed in Mohalla Darianagar, Rudrapur, Dist rict Udham Singh Nagar, which is far away from t he land allot t ed t o Ut t arakhand Transport Corporat ion.

11. Learned Senior Counsel furt her subm it s t hat respondent no. 1 is having receipt s of propert y t ax and elect ricit y charges for t he last several decades which 5 prove her claim t hat her house is st anding over t he land in quest ion since 1980. He furt her subm it s t hat condit ional allot m ent of land was m ade in favour of Ut t arakhand Transport Corporat ion vide G.O. dat ed

04.10.2011; he refers t o para 4 of t he said G.O. where it is m ent ioned t hat if t he land is not ut ilised for t he purpose it was allot t ed wit hin t hree years, t hen t he allot m ent shall st and cancelled and land will revert back t o t he Housing Depart m ent of St at e Governm ent . Thus he subm it s t hat since t he land was allot t ed in 2011 and Ut t arakhand Transport Corporat ion has not const ruct ed I SBT up t ill now, even aft er expiry of m ore t han 13 years, t herefore, allot m ent of land m ade in favour of Ut t arakhand Transport Corporat ion st ood cancelled and t he land is now vest ed in t he St at e Governm ent .

12. The issues raised by learned Senior Counsel for respondent No. 1 t ouch t he m erit s of t he suit , t herefore, any observat ion by t his Court on t he said issues would not be warrant ed at t his st age, as t he suit is yet t o be decided by Trial Court .

13. Perusal of t he order on t em porary inj unct ion passed by Trial Court on 26.04.2022 reveals t hat learned Trial Court has considered prim a facie case in a slipshod m anner.

14. I n t he case of Do r a b Ca w a sj i W a r d e n v . Co o m i So r a b W a r d e n , report ed in ( 1 9 9 0 ) 2 SCC 1 1 7 , Hon’ble Suprem e Court held as follows: “ 16. The relief of int erlocut ory m andat ory inj unct ions are t hus grant ed generally t o preserve or rest ore t he st at us quo of t he last non- cont est ed st at us which preceded t he pending cont roversy unt il t he final hearing when full relief m ay be grant ed or t o com pel t he undoing of t hose act s 6 t hat have been illegally done or t he rest orat ion of t hat which was wrongfully t aken from t he part y com plaining. But since t he grant ing of such an inj unct ion t o a par t y who fails or would fail t o est ablish his right at t he t rial m ay cause great inj ust ice or irreparable harm t o t he part y against whom it was grant ed or alt ernat ively not grant ing of it t o a part y who succeeds or would succeed m ay equally cause great inj ust ice or irreparable harm , court s have evolved cert ain guidelines. Generally st at ed t hese guidelines are: ( 1) The plaint iff has a st rong case for t rial. That is, it shall be of a higher st andard t han a prim a facie case t hat is norm ally required for a prohibit ory inj unct ion. ( 2) I t is necessary t o prevent irreparable or serious inj ury which norm ally cannot be com pensat ed in t erm s of m oney. ( 3) The balance of convenience is in favour of t he one seeking such relief.”

15. The expression ‘prim a facie case’ was considered and discussed by Hon’ble Suprem e Court in t he case of D a l p a t K u m a r a n d a n o t h e r Vs. Pr a h l a d Si n g h a n d o t h e r s, report ed in ( 1 9 9 2 ) 1 SCC 7 1 9 . Para 5 of t he said j udgm ent is reproduced below: - t he right t he enj oym ent of his propert y or “ 5. Therefore, t he burden is on t he plaint iff by evidence aliunde by affidavit or ot herwise t hat t here is “ a prim a facie case” in his favour which needs adj udicat ion at t he t rial. The exist ence of t he prim a facie right and infract ion is a condit ion for t he grant of t em porary inj unct ion. Prim a facie case is not t o be confused w it h prim a facie t it le which has t o be est ablished, on evidence at t he t rial. Only prim a facie case is a subst ant ial quest ion raised, bona fide, which needs invest igat ion and a decision on m erit s. Sat isfact ion t hat t here is a prim a facie case by it self is not sufficient t o grant inj unct ion. The Court furt her has t o sat isfy t hat non- int erference by t he Court would result in “ irreparable inj ury” t o t he part y seeking relief and t hat t here is no ot her rem edy available t o t he part y except one t o grant inj unct ion and he needs prot ect ion from t he consequences of apprehended inj ury or dispossession. I rreparable inj ury, however, does not m ean t hat t here m ust be no physical possibilit y of repairing t he inj ury, but m eans only t hat t he inj ury m ust be a m at erial one, nam ely one t hat cannot be adequat ely com pensat ed by way of dam ages. The t hird condit ion also is t hat “ t he balance of convenience” m ust be in favour of grant ing inj unct ion. The Court while grant ing or refusing t o grant inj unct ion should exercise sound j udicial discret ion t o find t he am ount of subst ant ial m ischief or inj ury which is likely 7 t o be caused t o t he part ies, if t he inj unct ion is refused and com pare it wit h t hat which is likely t o be caused t o t he ot her side if t he inj unct ion is grant ed. I f on weighing com pet ing possibilit ies or probabilit ies of likelihood of inj ury and if t he Court considers t hat pending t he suit , t he subj ect m at t er should be m aint ained in st at us quo, an inj unct ion would be t o in grant ing or exercise refusing t he relief of ad int erim inj unct ion pending t he suit . j udicial discret ion t he Court has issued. Thus it s sound

16. The discussion m ade by learned Trial Court on prim a facie case t hus falls short on what is required by law. Therefore, t he order passed by learned Trial Court as affirm ed by Appellat e Court , deserve t o be set aside and are hereby set aside. The m at t er is rem it t ed back t o learned Trial Court t o decide Tem porary I nj unct ion Applicat ion, filed by respondent No. 1 afresh, as per law wit hin t hree weeks. Till disposal of Tem porary I nj unct ion Applicat ion by t he Trial Court , st at us quo, qua possession over t he land in quest ion, as exist ing t oday, shall be m aint ained. Mahinder/ MAHINDER SINGH ( M a n o j K u m a r Ti w a r i , J.)

31.07.2025 DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=da6212e6e78d94ed3134842bc6a8d6ca168979ca7b8c2f031a92d1a18b08923c, postalCode=263001, st=UTTARAKHAND, serialNumber=AB77B7C5B240908B392BE84F5CDD4C2AF35DC4626D305B1BC9EA4BABA43D2B8F, cn=MAHINDER SINGH 8