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Mahadev Bajri Co. and ors. Vs. Kesho Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberS.A.O. No. 21 of 1971
Judge
Reported inAIR1973HP42
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 39, Rules 1 and 2
AppellantMahadev Bajri Co. and ors.
RespondentKesho Dass and ors.
Appellant Advocate S. Malhotra, Adv.
Respondent Advocate Chhabil Dass, Adv.
DispositionPetition allowed
Cases ReferredPrasad Singh v. Amalendu Mukherii
Excerpt:
- .....was granted in favour of the plaintiffs. in the lease document dated 15-1-1971, according to the learned district judge, the passage was exclusively given to the plaintiffs and they were further given the right to exclude others. accordingly the learned district judge, after having found a prima facie case in favour of the plaintiffs, granted the temporary injunction prayed for. 4. the defendant-petitioners have felt aggrieved of the order of the learned district judge and have preferred this revision. 5. from the order of the learned addl, distt. judge, it is abundantly clear that he has not recorded any finding as to the nature of injury which is likely to be received by the plaintiffs in case the injunction is not granted in their favour. he has not given a finding as to whether the.....
Judgment:

D.B. Lal, J.

1. Although the pre-sent proceedings have been submitted to Court in the nature of second appeal, yet the learned counsel agree that the present proceedings are. in fact, invoking revisional jurisdiction of this Court. The petitioners are M/s. Mahadev Bajri Company and others, and their contentions are that they were defendants in a suit filed by respondents Kesho Dass and Onkar Nath for the relief of permanent injunction relating to a land, in all measuring 2070 kanals 6 marlas, which is stated to be under lease with, the plaintiff-respondents from the proprietors of village Mohtli. Tehsil Nur-pur of the District of Kangra. The plaintiff-respondents asserted that they were in peaceful possession over the land and the lease related to. extraction of bairi. stones and sand etc. from the land, including a right of passage which was conferred upon them exclusively and this passage, they have further protected by setting up a barrier. Ac-cording to plaintiffs, the defendant-petitioners have interfered in their possession and have also intended to remove the barrier because the defendants 1 and 2 have leased out some adjoining land to defendants 3 to 5 for a similar purpose and the passage which is said to exclusively belong to the plaintiffs is being intended to be used by the defendants 3 to 5. Therefore, according tp the plaintiff-respondents, the petitioners should be restrained from removing the barrier and from utilising the passage which is exclusively meant for the plaintiffs.

2. The suit was filed before the Senior Sub-Judge. Nurpur. who had first granted an ex parte temporary injunction under Order 39, Rules 1 and 2 of the Civil Procedure Code. He called upon the defendant-petitioners to file their objections which they did. On 6-10-1971, the first Court inspected the site and after making certain observation regarding alternative passage which existed for the plaintiffs, on 8-10-1971 vacated the ex carte injunction order, at the same time ordering the plaintiffs to furnish security to the extent of Rs. 5,000/- for payment of compensation, if any, found due and payable to the defendants. The learned trial Judge found that no prima facie case was made out in favour of the plaintiffs, nor any cause existed for resulting irreparable injury to the defendants. Accord-Ing to him, the balance of convenience was rather against the grant of temporary injunction. In those circumstances, the petition for interim injunction was dismissed and the order of security was made.

3. The plaintiffs came in appeal before the learned Additional District Judge of Kangra and he by his order dated 22-11-1971. reversed the findings of the learned Senior Subordinate Judge. The learned Addl. District Judge found a prima facie case in favour of the plaintiffs as in the 'jamabandi' entry of 1965-66 he found the mutation entry in favour of the proprietors of the village and also the entry of a subsequent lease which was granted in favour of the plaintiffs. In the lease document dated 15-1-1971, according to the learned District Judge, the passage was exclusively given to the plaintiffs and they were further given the right to exclude others. Accordingly the learned District Judge, after having found a prima facie case in favour of the plaintiffs, granted the temporary injunction prayed for.

4. The defendant-petitioners have felt aggrieved of the order of the learned District Judge and have preferred this revision.

5. From the order of the learned Addl, Distt. Judge, it is abundantly clear that he has not recorded any finding as to the nature of injury which is likely to be received by the plaintiffs in case the Injunction is not granted in their favour. He has not given a finding as to whether the plaintiffs are likely to suffer an irreparable injury and as to whether the balance of convenience at all justify the grant of a temporary injunction. It is well settled that a Court while granting the relief of temporary injunction has to satisfy whether its interference is necessary to protect the party applying for such relief from the particular kind of injury which the Court would call 'irreparable', before the legal right of the party is established at the trial. It is further necessary to see that what would be comparative mischief and inconvenience resulting from the refusal of such an injunction in relation to one resulting to the other side in the event of it being granted. It is only after a careful comparison between the convenience of two sides that the Court should arrive at its judicial verdict as to the grant or refusal of such an interim relief. In the instant case, as apparent, the learned District Judge has not applied his mind to this aspect of the question and to that extent he has failed to exercise the jurisdiction vested in him under law.

6. The fact that a prima facie case has been made out by showing that there is a fair question for trial, does not necessarily mean that a temporary injunction must follow restraining the defendant from dealing with the property. In this connection, reliance can be placed upon: Kalyanpur Lime Works Ltd. v. State of Bihar. (AIR 1951 Pat 226); Rajalekshmi Amma v. Kunji-pillai Amma. (AIR 1959 Ker 277) and Girdharilal v. Smt. Mahadevi Sharma, (AIR 1968 Raj 237). In the Kerala case (supra), it has been further observed that in a case where Courts below have omitted to consider the essential ingredients which are required to be proved in order to establish a case for temporary injunction, they can be held to have acted with material irregularity In the exercise of their jurisdiction. In such a situation, the case would clearly fall under Clause (c) of Section 115 of the Civil P. C. and would attract the exercise of the re visional jurisdiction of the High Court. Similarly in Deochan-dra Prasad Singh v. Amalendu Mukherii, (AIR 1958 Pat 146) it has been held, in a converse case, where the Court refused to grant a temporary injunction by exercising its discretion against the well-settled judicial principle, that the Court's order suffered from its failure to exercise jurisdiction vested in it by law and the High Court ought to interfere in revision for the ends of justice. Therefore, in the instant case, the order of the learned District Judge suffers from a serious defect, inasmuch as no finding has been recorded by him on the question of irreparable injury that might be caused to the plaintiffs, or the balance of convenience which might have existed in their favour so as to grant or refuse the interim relief of temporary injunction. Unless those findings were given, the order of the learned District Judge could not be sustained. The learned District Judge can, in fact, be stated to have acted in the exercise of his jurisdiction illegally and also with material irregularity.

7. The learned Senior Sub-Judge made an order calling upon the plaintiffs to remove the barrier, which order was also questioned by the learned counsel for the respondents, inasmuch as, he submitted, that the learned trial Judge could not have ordered for the removal of the barrier as that remedy was not even sought for in the plaint. I would leave this matter for the discretion of the Courts below and they would keep in mind the salutary principle that a plaintiff can only be granted relief which he seeks in the plaint. If the relief regarding removal of barrier was not sought for, the same could not be granted and the learned Senior Sub-Judge could simply reject the application, although at the same time he could have asked for the security. At the same time I refrain from expressing any opinion on merit as regards this, and leave the Courts below to decide the question, keeping regard to the principles of law which are well settled.

8. The only course open to me is to remand the case to the learned District Judge for reconsidering the whole matter confining himself to the findings which he has not vet recorded, namely, irreparable injury which might or might not be caused to the plaintiffs, and the balance of convenience which might or might not exist in favour of the plaintiffs, so that despite a prima facie case of title in their favour the plaintiffs could be granted or refused the relief of interim injunction.

9. After the learned District Judge arrives at a finding on the questions regarding irreparable iniury and balance of convenience, he shall record a finding, against which either party would have a right of appeal or revision, as the case may be.

10. In these circumstances. I allow the petition and set aside the findings of the learned District Judge and remand the case for fresh consideration in the light of my observations made above .

11. No order is made as to costs.


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