Baijnath vs Munnalal and Others

Dr. T.N. Singh, J.—Petitioner''s counsel was very vocal. At the bar a large number of decisions have been cited, but the point involved is very simple. The root point is-can this Court in revision reappraise evidence and arrive at a finding different from that reached by the appellate Court ? The second question is, whether in a matter relating to grant of temporary injunction, this Court can interfere if discretion to grant injunction has been judicially exercised. These are the only two points which requires my consideration.

So far as the first point is concerned, the law is decisively against the petitioner. Rulings need not be cited to re-establish the deeply entrenched principle that a finding of fact, however, erroneous cannot be challenged in revision. Similarly, this position is also accepted in law that this Court in exercise of its revisional jurisdiction shall not interfere with the decision of Court below in the matter of granting discretionary remedy if the decision does not suffer from any jurisdictional infirmity and if the discretion was judicially exercised.

Shri S.C. Jain, petitioners'' counsel, while assailing the validity of the impugned order contended that the appellate Court decided the matter merely on the question of plaintiff''s title to the suit land on plaintiffs'' submitting sale-deed in respect thereof. Counsel submitted that the Court ought to have directed its attention to the question of possession. Therefore, counsel submits. I have to on look khasra entries. Why should I shift the evidence afresh? Yes, true, question of possession would be material if it was physical and actual possession. But that is not the case here. There is a categorical and definite finding of the appellate Court that the disputed portion of the land was vacant and none was in physical possession of that land. That being the position it is beyond my comprehensive as to how the question of possession should be crucial to the decision in this case.

The plaintiff came with the case that he had title to the disputed land which was about 7,000 s.ft. out of an area of 30,000 s.ft. over which the defendant claimed his right. The appellate Court appointed a Commissioner at the instance of the parties who made local investigation at the site. It had to do because the defendant contended having erected some construction on the land claimed by him and that the construction was incomplete. After investigation at site the Commissioner submitted his report. There was no objection to the Commissioner''s report by any of the parties. It was accepted. On the basis of the Commissioner''s report the findings and conclusion have been reached not only by the impugned order but also an order passed in the same appeal on 14-5-83 to which my attention is drawn by Shri R. D. Jain, non-petitioner''s counsel. This order is placed on record.

I have no doubt at all that the appellate Court has done complete justice to the parties and my interference is wholly unwarranted with such an order. By his order dated 14 5-1983 the appellate Court has allowed the defendant to complete his construction. In the impugned order dated 5-4-1984 he rightly held that in so far as the disputed portion of the land was concerned, on which according to the Commissioner''s report there was no incomplete construction, the status quo should be maintained pending trial of the suit. The land was vacant and it should remain vacant. There was no construction and none should be raised. The order did equity to both parties directing the status quo to be maintained. None should suffer, it intended. And none has suffered. On the face of it the impugned order manifests complete application of mind to all criteria required to be considered in arriving at a reasonable conclusion in exercising discretion by the Court in granting the injunction in the manner stated. The Court held that the plaintiff had prima facie case to go to trial on the basis of a sale-deed which was the basis of his title; the question of possession being immaterial, the land being vacant. On the question of balance of convenience the finding is also unassailable, because the land is vacant. None suffered as there was no construction pending trial. No irreparable injury would be caused to the defendant if he was restrained from interfering with the status quo as there was nothing on that land and he had not done anything on that land.

Counsel persisted that the rulings cited should be noted by me. I have to do so to clear counsel''s conscience. My conscience is very clear. Yet, sometimes, the Court is to be concerned also with Bar''s problems and perceptions. Jaido v. Hariom 1982 MPWN 163 is for the proposition which was canvassed by Shri R. D. Jain, learned counsel for the non-petitioners. I prefer to look first at this decision to see if the view taken by me is not supportable by any judgment of this Court. I am happy that a learned Judge of this Court has taken the same view in this case as I have taken. It was held that the plaintiff was entitled to injunction against construction when he had established his prima facie case by riling documents of title and the defendant had filed to show possession for any length of time. This decision applies in all force to the facts of this case.

Now the case law cited by Shri S.C. Jain. In United Commercial Bank Vs. Bank of India and Others, the question was entirely different on facts but the ratio demolishes the contention pressed. Their Lordships held that no injunction could be granted under 0.39, rules 1 and 2 C. P. C, unless the plaintiffs established that they had a prima facie case meaning thereby that there was bona fide contention of the parties or a serious question to be tried. But the question of balance of convenience had also to be considered as also of irreparable loss, albeit, on the facts of the case. The other decisions are of this Court. Rightly, in Gulab Bai v. Shyamlal, 1982 JLJ SN 23 it was observed that mere by on the finding of prima facie case, the prayer of injunction cannot be granted and there must be co-existence of all three requirements. In Sartaj Khan v. Murti Shri Ganeshji Temple 1976 (1) MPWN 55 this Court held that when defendant was in possession of the disputed land an ad interim injunction cannot be granted. In Ramgopal 1971 (II) MPWN 354, it was held that if the defendant preferred to give an undertaking he should not be restrained from making the construction. It does not appear from the Short Note if it was a case of making new construction or of continuing a construction already undertaken. However, it also does not appear very clear whether the land on which the defendant sought to raise construction was in his possession or it was a vacant land. I propose to take three other decisions together, cited in Makhan Singh v, Ladhbai 1983 MPWN 65, The first Short Note No. 65 is patently against the Counsel''s contention. The finding of fact that the plaintiff was not in possession, the Court held, cannot be interfered in the revision. It was rightly, therefore, held that temporary injunction was rightly refused to plaintiff. In Short Note No. 114 the issue involved related to "actual possession" of the suit-land on the date of suit. This decision also, apparently, on the facts of the instant case, inapplicable as neither party was in "actual possession" in the instant case. The decision in Short Note No. 131 also refers to defendant''s undertaking and holds that in such case injunction may not be refused. Yes, it was a question of discretion to be exercised. Whether injunction had to be refused or not, it was for the Court to decide primarily for the first Court, in the facts and circumstances of the case. I have already observed that the settled law in this matter being the question of exercise of discretion which was crucial to the decision in the matter, this Court his mainly to see if the discretion was judicially exercised.

For the foregoing reasons, the view taken by me being not indented in the least by any of the decisions cited by the petitioners'' counsel, I have to conclude without hesitation that the petition is meritless and has to be dismissed. I find no reason to interfere with the impugned order on law as well as on facts.

However, I have to take care of defendants'' grievance because counsel made vocal submission assailing on facts and findings based on Commissioner''s report as to the extent of defendants'' possession of the land claimed by him. He may have something to say on that point, but not now, in trial, so the trial must be expedited, I accept Shri S.C. Jain''s very reasonable prayer that a direction should issue from this Court for disposal of the suit by the trial Court within six months. Shri R.D. Jain readily and reasonably joins his friend. Both sides are ready. Both sides would be happy if the direction is made. Accordingly, I direct that trial of the suit should be expeditiously completed, if possible, within six months.

In the result, this application fails and is accordingly dismissed. But in the facts and circumstances of the case, I make no order as to costs.