Ganga Prashad vs Baldev Singh

Tarlok Singh Chauhan, J.—The plaintiff is the petitioner, who has preferred this petition under Article 227 of the Constitution of India against the order dated 23.6.2014 passed by the learned Additional District Judge-II, Kangra at Dharamshala, whereby the order dated 31.10.2011 passed by learned Civil Judge (Senior Division), Kangra at Dhaamshala dismissing the application for grant of ad-interim injunction has been affirmed.

The petitioner had preferred a suit seeking declaration to the effect that he was the owner in possession of the suit land, as detailed in the jamabandi for the year 2004-05. It is alleged that the respondent/defendant had no right whatsoever and yet he was causing obstruction in the path leading to the plot of the petitioner from Khasra No. 1749/829 to 1752/829. A separate application for ad-interim injunction was preferred for restraining the respondent from obstructing the path which was dismissed by the learned trial Court and the said findings were affirmed by the learned lower Appellate Court. It is against these orders that the present petition has been preferred.

I have heard learned counsel for the parties and gone through the records of the case. Mr. Subash Sharma, learned counsel for the petitioner has strenuously argued that the learned Courts below have failed to appreciate the existence of three essential ingredients for granting an ad interim injunction and thereafter have reached a wrong conclusion. It is further contended that once the ownership of the petitioner over Khasra Nos. 1749/829 and 1752/829 was not disputed, then the injunction had to be followed. While on the other hand Mr. Ajay Chandel, learned counsel for the respondent has supported the impugned orders.

What factors have to be borne in mind while granting or refusing an injunction have been succinctly dealt with by the Hon''ble Supreme Court in M. Gurudas and Others Vs. Rasaranjan and Others, in the following manner:--

"18. While considering an application for injunction, it is well-settled, the courts would pass an order thereupon having regard to:

(i) Prima facie case

(ii) Balance of convenience

(iii) Irreparable injury.

A finding on ''prima facie case'' would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. Rajeev Dhawan that the decision of House of Lords in American Cyanamid v. Ethicon Ltd. (1975)1 All ER 504 would have no application in a case of this nature as was opined by this Court in Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., and M/S S. M. Dyechem Ltd. Vs. M/S Cadbury (India) Ltd., , but we are not persuaded to delve thereinto.

We may only notice that the decisions of this Court in Colgate Palmolive (supra) and S.M. Dyechem Ltd. (supra) relate to intellectual property rights. The question, however, has been taken into consideration by a Bench of this Court in Transmission Corporation of A.P. Ltd. and Others Vs. Lanco Kondapalli Power Pvt. Ltd., .

"36. The Respondent, therefore, has raised triable issues. What would constitute triable issues has succinctly been dealt with by the House of Lords in its well-known decision in American Cyanamid Co. v. Ethicon Ltd. (1975)1 All ER 504 holding: (All ER p.510 c-d)

''Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expression as ''a probability'', ''a prima facie case'', or ''a strong prima facie case'' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.''

It was further observed (All ER pp.511 b-c & 511j)

''Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.

* * *

The factors which he took into consideration, and in my view properly, were that Ethicon''s sutures XLG were not yet on the market; so that had no business which would be brought to a stop by the injunction; no factories would be closed and no workpeople would be thrown out of work. They held a dominant position in the United Kingdom market for absorbable surgical sutures and adopted an aggressive sales policy.''

We are, however, not oblivious of the subsequent development of law both in England as well as in this jurisdiction. The Chancery Division in Series 5 Software v. Clarke (1996) 1 All ER 853] opined: (All ER p.864c-e)

''In many cases before American Cyanamid the prospect of success was one of the important factors taken into account in assessing the balance of convenience. The courts would be less willing to subject the plaintiff to the risk of irrecoverable loss which would befall him if an interlocutory injunction was refused in those cases where it thought he was likely to win at the trial than in those cases where it thought he was likely to lose. The assessment of the prospects of success therefore was an important factor in deciding whether the court should exercise its discretion to grant interlocutory relief. It is this consideration which American Cyanamid is said to have prohibited in all but the most exceptional case. So it is necessary to consider with some care what was said in the House of Lords on this issue.''

In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., , this Court observed that Laddie, J. in Series 5 Software (supra) had been able to resolve the issue without any departure from the true perspective of the judgment in American Cyanamid. In that case, however, this Court was considering a matter under Monopolies and Restrictive Trade Practices Act, 1969.

In M/S S. M. Dyechem Ltd. Vs. M/S Cadbury (India) Ltd., , Jagannadha Rao, J. in a case arising under Trade and Merchandise Marks Act, 1958 reiterated the same principle stating that even the comparative strength and weaknesses of the parties may be a subject matter of consideration for the purpose of grant of injunction in trade mark matters stating : (SCC p.591, para 21)

''21.....Therefore, in trademark matters, it is now necessary to go into the question of "comparable strength" of the cases of either party, apart from balance of convenience. Point 4 is decided accordingly.''

The said decisions were noticed yet again in a case involving infringement of trade mark in Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd., ."

While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue.(See Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, , Dalpat Kumar and Another Vs. Prahlad Singh and Others, , United Commercial Bank Vs. Bank of India and Others, , M/s. Gujarat Bottling Co. Ltd. and others Vs. Coca Cola Company and others, , Bina Murlidhar Hemdev and Others Vs. Kanhaiyalal Lokram Hemdev and Others, and Transmission Corpn. of A.P. Ltd. (supra)."

The learned Courts below on the basis of the pleadings and documents placed on record came to a categoric conclusion that there exists a path through Khasra No. 1749/829 leading to Khasra No. 1750/829, owned and possessed by the defendant. The learned Courts below for arriving such conclusion has relied upon the jamabandi for the year 2004-05, which shows a path through Khasra No. 1752/829 leading to Khasra No. 1750/829, which is an Abadi. It further relied upon copy of mutation No. 521 which shows a path through Khasra No. 829/1, which was assigned new Khasra No. 1749/829. In fact in the remarks column of the jamabandi for the year 2004-05, it has been specifically mentioned that middle ''beer'' of Khasra No. 1752/829 is the path/approach to the abadi comprised in Khasra No. 1750/829. On the basis of the aforesaid revenue entries, it was concluded that during the partition proceedings an arrangement had been made for path to the respective lands.

Therefore, other question which is now required to be determined is as to what is the scope of interference with the orders concurrently passed by the learned Courts below in exercise of jurisdiction under Article 227 of the Constitution of India. In Surya Dev Rai Vs. Ram Chander Rai and Others, , the Hon''ble Supreme Court discussed the entire case law and culled out the following principles:--

"38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:--

(1) Amendment by Act No. 46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction-by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."

After culling out the aforesaid broad principles and working rules, it was cautioned that these should not be tied down in a strait-jacket formula or rigid rules. But then, it would be clear from the reading of conclusion of paragraph 38(4) to (9) (supra) that mere error in exercise of jurisdiction by the learned Courts below is not sufficient to interfere in the absence of showing of failure of justice resulted therefrom; without which jurisdiction under Article 227 of the Constitution of India is not available.

Moreover, this Court in exercise of its supervisory jurisdiction will not convert itself into a Court of appeal and indulge in re-appreciation and evaluation of evidence or correct errors in drawing inference or correct errors of mere formal and technical character.

Since the petitioner has failed to make out any case, which may call for interference by this Court while exercising jurisdiction under Article 227 of the Constitution of India, therefore, there is no merit in this petition and the same is dismissed, leaving the parties to bear their own costs.

Needless to state that the observations made in this petition are solely for the purpose of deciding the correctness of the orders passed by the learned Courts below and the same shall have no effect or bearing on the merits of the case and the learned Courts below shall proceed with the matter uninfluenced by any of the observations made herein above.