Awadhnarayan and Others vs Roopnarayan and Others

Sujoy Paul, J.—By filing this petition under Article 227 of the Constitution, the petitioners/defendants have assailed the order passed in case No. 16/12 by the First Additional District Judge, Ashoknagar, dated 30.11.2012. The relevant facts necessary for adjudication of this matter are as under:-

The plaintiffs/respondents No. 1. to 5 filed an application under Order 39 Rule 1 and 2 read with Section 151 CPC before the trial Court claiming that suit land is a ancestral property from the era of great grand-father of plaintiffs and defendants namely Shobharam. By filing the suit, it is prayed that the plaintiffs be declared co-owners as Bhumiswami in the land in question. Other reliefs are also claimed. The trial Court by order dated 4.10.2012 rejected the said application. Feeling aggrieved with the said order of trial Court, the aforesaid appeal was preferred under Order 43 Rule 1 CPC. The appellate Court allowed the said application and directed that a short temporary injunction is issued against petitioners that they shall not alienate the property during the pendency of the suit. Against this order, the present petition is filed.

Shri N.K. Gupta, learned counsel for the petitioners, submits that the order of the trial Court was in accordance with law and there was no justification in interfering in it by the appellate Court. He submits that without setting aside the findings and the order of the trial Court, there was no occasion for the appellate Court to pass an ad-interim order. He further submits that there is no specific finding about the necessary ingredients for the grant of injunction i.e. prima facie case, balance of convenience and irreparable loss. He submits that in absence of giving specific finding on that, the appellate Court has erred in granting limited injunction. Shri Gupta further submits that para 22 of the impugned order makes it clear that documentary evidence submitted by the defendants were not challenged by the plaintiffs/respondents No. 1 to 5, and therefore, correctness of those documents cannot be doubted, and hence, the Court below has erred in taking a decision contrary to those documents. He further submits that order of the appellate Court is without there being any reason and the said order needs to be interfered. Learned counsel further submits that the revenue documents in favour of the present petitioners were not challenged in the suit, and therefore, no relief was due in favour of the plaintiffs/respondents No. 1 to 5.

Per contra, Shri Amit Lahoti, learned counsel for respondents No. 1 to 5, supported the order and submits that it is a very detailed order rendered in 19 pages and does not require any interference. By taking this Court to various paragraphs of this order, Shri Lahoti submits that the appellate Court has applied mind on the facts of the case and also examined catena of judgments on the points and has given justiciable reason which does not require any interference. He cited certain judgments in his favour.

No other points are pressed by the learned counsel for the parties.

I have heard learned counsel for the parties and perused the record.

The main emphasis of Shri Gupta, learned counsel for the petitioners is on paragraph 46 of the order impugned. In the said paragraph, the learned appellate Court opined that there is a serious dispute/question which needs adjudication in the suit. In view of the same, a prima facie case is made out, balance of convenience is also in favour of respondents No. 1 to 5, and therefore, injunction is required to be granted. Shri Gupta, learned counsel for the petitioners, submits that this is a conclusion without there being any reason for the same. He submits that mere pendency of dispute, cannot be said to be a prima facie case.

It is profitable to quote certain paragraphs of the order impugned:-

A bare perusal of the aforesaid paragraphs shows that the appellate Court has meticulously considered the factual backdrop of the matter and opined that a prima facie case is made out. Thus, I am unable to subscribe to the argument of Shri Gupta that the conclusions arrived at by the appellate Court are without their being any reasons. The appellate Court has considered the factual backdrop and assigned plausible reasons for the conclusions arrived at.

The scope of interference under Article 227 of the Constitution is limited. If the order impugned suffers from any jurisdictional error, palpable procedural impropriety or illegality, shown to be perverse in nature, interference can be made. Another view is possible, is not a ground for interference under Article 227 of the Constitution. The basic purpose is to keep the Courts below within the bounds of their authority. A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The purpose is not to correct an error apparent on the face of the record much less an error of law in exercise of supervisory power under Article 227 of the Constitution. This view was taken by the Supreme Court in Mohd. Yunus Vs. Mohd. Mustaqim and Others, . The Supreme Court in Julien Educational Trust Vs. Sourendra Kumar Roy and Others, in paragraphs 26 and 27 has held as under:-

In such circumstances, we are of the view that this is one such case where an interim order is required to be passed to maintain the status quo of the suit property, during the pendency of the suit for specific performance filed by the appellant Trust, but at the same time appropriate directions should also be given so that the suit is disposed of expeditiously. At this stage, it would not be appropriate on our part to express any further opinion on the merits and demerits of the suit. 27. Having found a prima facie case in favour of the appellant Trust, it is our view that in the light of the principles of balance of convenience and inconvenience, interim relief should be granted to the appellant Trust. Accordingly, we allow the appeals and set aside the order of the High Court and direct that the respondents shall not alienate or encumber the suit property or change the nature and character thereof till the disposal of the suit for specific performance filed by the appellant Trust.

In another judgment reported in Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, , the apex Court opined that without a case of irreparable loss or damage is made out, the Court should not permit the nature of property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and it may be taken into account that if such party is not protected, it may further lead to multiplicity of the proceedings.

In Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, , also the Apex Court by and large taken the same view. In the opinion of this Court, the appellate Court has taken into account the necessary ingredients for grant of injunction. One main contention of plaintiffs'' was that there is no partition deed and the entire partition deed is a forged document. Considering the aforesaid, the appellate Court opined that it will be in the fitness of things to restrain the other side to alienate the property. This limited injunction, in the opinion of this Court, cannot be either said to be without jurisdiction or contrary to law. In the facts and circumstances of the case, the Court has taken a plausible view. Another view is possible, is not a ground for interference. Accordingly, I find no reason to interfere in Article 227 jurisdiction. The petition is dismissed. No costs.