Gram Panchayat and Another vs Harbhajan Singh and Others

G.S. Singhvi, J.—Aggrieved by the order dated 9.8.1995 passed by the learned Additional District Judge, Hoshiarpur who allowed the appeal filed by respondents 1 and 2 and has passed an order of injunction in their favour, Gram Panchayat, Dharamkot and Harbans Lal (petitioners) have filed this revision petition and have prayed for quashing of the impugned order.

Respondents 1 and 2 have filed a suit for permanent injunction against the petitioners and proforma respondents for restraining them from illegally and fo cibly carving out, paving and constructing passage/street over the property forming part of Taur No. 4/18 to 4/21 situated within the Lal Lakir of village Dharamkot, Tehsil and District Hoshiarpur. Alongwith the suit, the plaintiff-respondents 1 and 2 filed an application under Order 39 Rules 1 and 2 read with Section 151 of the CPC for grant of temporary injunction. After considering the pleadings of the parties and hearing their learned counsel, the Subordinate Judge IInd Class, Hoshiarpur held that the plaintiffs have filed to make out a prima facie case for grant of ad-interim injunction. The Learned Sub Judge observed that in respect of the dispute relating to the public street, the jurisdiction of the civil Court is barred and there was no jurisdiction to pass an order of injunction in favour of the plaintiffs. In the appeal filed by respondents 1 and 2, the learned Additional District Judge, Hoshiarpur, passed the impugned order and granted injunction in their favour by directing the parties to maintain status quo regarding existing position at the spot. He further restrained the Gram Panchayat etc. to make further construction and further pavement of the street and further construction of drains. At the same time, he directed the plaintiffs not to demolish the existing street and drains.

The first argument of Mr. Majithia, learned counsel appearing for the petitioners, is that the order of the appellate Court is beyond its jurisdiction because without recording a finding that the order passed by the trial Court dismissing the application for injunction was perverse or contrary to law, the appellate Court could not have interfered with the order of the trial Court. Mr. Majithia submitted that the appellate Court has acted with material irregularity in exercise of its jurisdiction.

The second contention of Mr. Majithia is that the learned Additional District Judge has ignored the basic requirement of law, namely, that it is for the plaintiffs to prove prima facie case, balance of convenience and irreparable injury. Learned counsel contended that the Additional District Judge was not right in placing the burden upon the Gram Panchayat to show that it was owner of the property because it was for the plaintiffs-respondents 1 and 2 to establish that they had any right over the property is dispute.

Mr. K.S. Dadwal, learned counsel for the respondents No. 1 and 2 sup ported the impugned order and argued that when there was a controversy regarding possession over the property, it was the most appropriate course to direct the parties to maintain status quo.

A look at the order of the learned Sub Judge shows that the said Court not only considered the pleadings of the parties but also examined the issue of prima facie case in detail. Learned trial Court opined that the dispute relates to the street in the village and such a dispute cannot be entertained by the civil Court as has been laid down by this Court in Gram Panchayat v. Daljit Singh ILR 1988 1 . 15 and in Jaimal Singh and Ors. v. Gram Sabha 1987 (1) I.L.L.R. 637. Learned Sub Judge further held that the balance of convenience was not in favour of the plaintiffs and they would not suffer any irreparable injury. The trial Court held that interference with the functioning of the Gram Panchayat cannot be permitted by the plaintiffs.

That appellate Court has passed a scatchy and perfunctory order while granting order of injunction. After making a reference to the factum of filing of the suit along with an application for temporary injunction and its dismissal by the learned Sub Judge, the appellate Court has made one line reference to the arguments of both sides and has observed that the respondent has not produced any document showing that the land vests or deemed to have been vested in the Gram Panchayat as a part of the shamlat deh and as there was a dispute between the parties regarding possession, it was necessary to maintain status quo. Not a word has been said by the appellate Court about the order passed by the trial Court. The appellate Court has not held that the trial Court has committed an illegality in dismissing the application for temporary injunction. The appellate Court has not held that the trial Court ignored the settled principles of law which govern the exercise the discretion under Order 39 Rules 1 and 2 of the C.P.C. The appellate Court has not held that the findings of the Sub Judge on the issue of prima facie case, balance of convenience and irreparable injury are erroneous. It is also not the finding of the appellate Court that the order passed by the trial Court is perverse. Learned Additional District Judge, Hoshiarpur has decided the appeal as if he was for the first time deciding the injunction application, a power which could have been exercised only by the learned Sub Judge. In my opinion, the appellate Court has usurped the functions of the trial Court and has, thus acted illegally in passing an order of injunction in favour of respondents 1 and 2.

Even otherwise, I am of the considered opinion that the appellate Court was not entitled to pass an order of injunction in favour of respondents 1 and 2 without setting aside the order passed by the trial Court and there was no reason for the appellate Court on the basis of which it could have interfered with the well reasoned order passed by the trial Court. The order of the trial Court shows that the street has already been constructed by the Gram panchayat and it was in the process of laying drains and construction pavements. This action of the Gram Panchayat is in larger public interest and by granting an order of injunction, the appellate Court has virtually stultified the development activities undertaken by Gram Panchayat. It can, thus, be said that the learned Additional District Judge has passed the order of injunction without directing his attention to the consideration of larger public interest. The order of the learned Additional District Judge further depicts a wholly erroneous approach of the said Court. Learned Additional District Judge has proceeded on an assumption that the burden to prove prima facie case lay upon the defendant (petitioner-Gram Panchayat). It need hardly reiterate that the burden to prove prima facie case, balance of convenience and irreparable injury was clearly upon respondents 1 and 2 and it was none of the duties of the Gram Panchayat to produce evidence to disprove the case of the plaintiffs-respondents, which was never proved.

If the impugned order of the learned Additional District Judge is allowed to continue, grave injustice would be caused to the public at large and, therefore, it is eminently fit case in which this Court must interfere with the order of the lower appellate Court.

Consequently, the revision petition is allowed. The order passed by the learned Additional District Judge, Hoshiarpur on 9.8.1995 is set aside and the injunction application filed by respondents 1 and 2 is dismissed. Respondents 1 and 2 should pay costs of Rs. 2,000/- to the petitioners.