Harivansh Singh vs Ganga Ram and Others

Arun Bhansali, J.—This writ petition has been filed by the petitioner-defendant No. 1 aggrieved against order dated 20.07.2005 passed by Civil Judge (Junior Division), City South, Udaipur and order dated 12.12.2014 passed by Additional District Judge No. 2, Udaipur, whereby, the application filed by respondent No. 1-plaintiff under Order XXXIX, Rule 1 and 2 CPC and application under Section 151 CPC have been accepted and the appeal filed by the petitioner has been rejected, respectively.

Respondent No. 1-plaintiff - Ganga Ram filed a suit for permanent injunction against petitioner - Harivansh Singh, Ejaj Ahmed and Sharif Mohammed, inter alia, with the averments that the petitioner was in possession of plot of land situated at Rata Kheta, Tehsil Girwa, District Udaipur and was conducting business of building material in the name of Guru Kripa Building Material and has set up a office; the defendants were threatening the plaintiff to handover the possession of the plot and the rooms to them and as defendant No. 1 was a influential person, he could indulge in some serious incident and, therefore, he needs to be restrained and sought relief against his dispossession from the plot/rooms in question; along with the suit an application under Order XXXIX, Rule 1 and 2 CPC was also filed.

A reply to the application seeking temporary injunction was filed by defendant No. 1 on 20.03.2001; it was denied that the plaintiff has any ownership or possession of the suit property; it was claimed that the property was purchased by defendant No. 1 vide registered sale deed dated 07.06.1993 and was in his possession and use since 07.06.1993; it was claimed that a boundary wall has been constructed by the defendant; the averments made in the application regarding conducting business by the plaintiff and his possession were denied.

The trial court by its order dated 20.03.2001 appointed local Commissioner for inspecting the disputed plot, who submitted his report on 21.03.2001; it was, inter alia, indicated by the Commissioner in his report that counsel for the parties were informed about the inspection, though plaintiff and counsel for the plaintiff were present, defendant and counsel for the defendant till 06:00 PM did not appear and, whereafter reported that gate at the entrance of the plot indicated Guru Kripa Building Materials Suppliers, the lock of the gate was opened by plaintiff, the rooms in the plot were opened by the plaintiff and in one room certain building material, letter pad, bill books etc. of Guru Kripa Building Materials Suppliers were lying; whereafter, the trial court by its order dated 21.03.2001 after hearing the parties directed that till the next date, both the sides would maintain status quo as it existed on that day and restrained the defendants from dispossessing the plaintiff from the suit property.

Whereafter, an application under Section 151 CPC was filed by the plaintiff, inter alia, seeking mandatory injunction with the averments that despite order dated 21.03.2001, with the connivance of non-applicant No. 2 (the SHO, Nai was impleaded as non-applicant No. 2), an FIR dated 26.03.2001 was lodged against the plaintiff and whereafter when the petitioner went to his plot, the same was found sealed by the Police and, therefore, it was prayed that the status quo as it existed on 21.03.2001 may be restored, the seal may be removed and the defendants be restrained from interfering with the possession of the plaintiff.

A reply to the application under Order XXXIX, Rule 1 and 2 CPC was filed by defendant Nos. 2 and 3 on 04.03.2003; it was claimed that the said defendants were in possession and have constructed boundary wall around the plot and have also constructed rooms; it was claimed that the Commissioner report was incorrect and on 17.01.1998 a report was prepared by Patwari alleging illegal construction by the defendants and proceedings under section 91 of the Rajasthan Land Revenue Act was also initiated against the defendants; the averments made in the application regarding possession were also denied.

From the record though it appears that no reply to the application under Section 151 CPC seeking mandatory injunction was filed by the petitioner, it was, inter alia, claimed that the plot was seized on account of FIR No. 63/2001 and the Additional Chief Judicial Magistrate No. 3, Udaipur directed handing over of possession to the petitioner-defendant No. 1 and, therefore, he has obtained the possession. In the revision petition the matter has been remanded back where it is still pending.

By order dated 21.04.2001 the trial court again appointed Commissioner; the Commissioner submitted his report on 23.04.2001; based on the inspection conducted by him on 21.04.2001 and reported that the gate was locked and it was indicated by the plaintiff that the existing lock had been replaced and key was not available with the plaintiff; the gate was freshly painted black and the lock also had paint stains; near the pillars of the gate, two paint containers were lying and even on the rooms the black paint was visible and as the gate was locked the Commissioner could not enter the premises.

After hearing the parties, the trial court by its order dated 20.07.2005 came to the conclusion that from Commissioner report dated 21.03.2001 it was apparent that the plaintiff was in possession of the suit property and the said position has been disturbed by the defendants; the receipt of possession pursuant to the direction of the Additional Chief Judicial Magistrate No. 3, Udaipur is not denied by defendant No. 3 and it was also apparent that the defendant No. 1 did not disclose before the Additional Chief Judicial Magistrate No. 3, Udaipur the order dated 21.03.2001 and, therefore, it was apparent that the defendant No. 1 had not approached the Court with clean hands and, therefore, it was required of the defendant No. 1 to restore the status as it existed on 21.03.2001 and maintain the same till the disposal of the suit and accordingly directed as such.

Feeling aggrieved, the petitioner approached the appellate court by way of filing an appeal under Order XLIII, Rule 1(r) CPC.

The appellate court after hearing the parties concurred with the findings of the trial court and dismissed the appeal.

It was submitted by learned counsel for the petitioner that the courts below have failed to appreciate that the suit plot was purchased by the petitioner by way of registered sale deed and, as such, no injunction could have been passed against the true owner; the Commissioner report dated 20.03.2001 was prepared in the absence of counsel for the petitioner and the same does not inspire any confidence and the same could not form basis for passing of the order by the two courts below; admittedly petitioner came in possession under the directions of Additional Chief Judicial Magistrate No. 3, Udaipur and passing of the order by the two courts below essentially amounts to reversing the said direction, which is still pending consideration before the competent court; ultimately, it was submitted that in the facts and circumstances of the case, the courts below could have only directed maintenance of status quo and the grant of mandatory injunction, in the facts and circumstances of the present case, was not justified and, therefore, the same deserves to be quashed and set aside.

Reliance was placed on Union of India (UOI) and Another Vs. Kripal Industries, AIR 1998 Raj 224 : (1998) 2 WLC 396 : (1998) 1 WLN 379 .

Learned counsel for the respondent No. 1 - Caveator vehemently submitted that the concurrent orders passed by the two courts below do not call for any interference under extra ordinary jurisdiction of this Court; it was submitted that despite passing of the injunction dated 21.03.2001 by the trial court, the petitioner lodged an FIR on 26.03.2001 and was successful in getting possession of the suit property in violation of the injunction order dated 21.03.2001 and, therefore, the courts below were justified in granting injunction in mandatory form and the same does not call for interference.

I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record.

From the averments made in the plaint and the material placed along with it, it was the specific case of the plaintiff that he was in possession of the plot and rooms constructed thereon and was conducting business in the name of Guru Kripa Building Material from before the time of his father, who, it was claimed, was in possession of the plot for over 26 years and that the defendants were threatening to dispossess the petitioner and sought injunction based on such averments; the averments were denied by the petitioner-defendant No. 1 based on sale deed in his favour and proceedings under Section 91 of the Act having been initiated against him; the trial court appointed Commissioner by its order dated 20.03.2001 and in his report dated 21.03.2001, as noticed hereinbefore, the possession of the petitioner along with photographs in this regard were indicated by the Commissioner; consequently, the trial court by its order dated 21.03.2001 directed for maintenance of status quo and further ordered that the plaintiff shall not be dispossessed from the plot in question; the petitioner despite being well aware of pendency of the suit and the interim order passed by the trial court, lodged a FIR on 26.03.2001, which it appears led to the plot in question being sealed by the Police and ultimately resulted in order passed by Additional Chief Judicial Magistrate No. 3, Udaipur directing handing over of possession to the petitioner; both the courts have concurrently found that the pendency of the proceedings before the Civil Court and the injunction dated 21.03.2001 was not brought to the notice of the Court of Additional Chief Judicial Magistrate No. 3, Udaipur; the plaintiff immediately on 17.04.2001, sought mandatory injunction pointing out the fact that despite injunction dated 21.03.2001, he has been dispossessed from the plot in question, which fact was fortified from the Commissioner''s report dated 21.03.2001, wherein, besides the fact that the gate of the suit plot was locked, the same was freshly painted, apparently to remove the indications of Guru Kripa Building Materials Suppliers, which was found indicated in the Commissioner report dated 21.03.2001.

Before both the courts below and before this Court as well, the petitioner has failed to point out any circumstance, which prevented the petitioner from approaching the trial court, which passed the injunction dated 21.03.2001, before whom, the proceedings relating to the suit property were pending and specific injunction not to dispossess the plaintiff had been passed.

The very fact that the petitioner chose to initiate independent criminal proceedings immediately after passing of the injunction by the trial court, cannot be said to be a bona fide exercise on the part of the petitioner and the trial court was justified in coming to the conclusion that petitioner has not approached the courts with clean hands; the submissions made by learned counsel for the petitioner that passing of the injunctions/upholding of the injunction by the two courts below amounts to annulling the order passed by the criminal court has apparently no substance, inasmuch as, the very fact that the order was passed by Additional Chief Judicial Magistrate No. 3, Udaipur has already been set aside/modified by the revisional court and the same is still pending before the said Court, coupled with the fact that the order in the first instance was obtained by suppressing/not disclosing the material fact about pendency of the suit and grant of injunction by the trial court, the petitioner cannot seek any benefit out of the order passed by the criminal court and his having obtained possession/dispossessing the plaintiff from the plot in question.

The submissions made by learned counsel for the petitioner regarding the fact that the orders passed by the trial court were merely based on the Commissioner report and in view of the law laid down by this Court in the case of Kripal Industries (supra), the disputed fact could only be ascertained during the course of the suit and the Commissioner reports could not form the basis for passing of the injunction has apparently no substance, inasmuch as, the Commissioner reports have not been questioned by the petitioner at any stage except for bald assertion that the same were incorrect. Further, the Commissioner report is not only explicit but is also supported by photographs, which cannot be ignored; irrespective of the above contentions, the fact remains that the trial court by its order dated 21.03.2001 directed maintenance of status quo and that the plaintiff shall not be dispossessed from the plot in question, the petitioner could not have obtained possession of the said plot even under the orders of the criminal court without bringing the same to the notice of the trial court and/or seeking directions in this regard.

The submissions made by learned counsel for the petitioner that in the circumstances of the case, the courts below should have directed maintenance of status quo and passing of mandatory injunction in the facts and circumstances of the case was not justified has also apparently no substance, inasmuch as, the conduct of the petitioner in seeking to frustrate the order of injunction dated 21.03.2001 cannot be encouraged and the grant of status quo order would be putting premium on such conduct. The further facts need to be noticed that the application was filed by the plaintiff under Section 151 CPC way back on 21.04.2001, whereafter, the order was passed by the trial court on 20.07.2005 and the appeal remained pending before the first appellate court for over nine years and the suit apparently remains stuck with no further progress.

In the facts and circumstances noticed hereinbefore, there is no substance in the writ petition filed by the petitioner. The concurrent orders passed by the two courts below do not call for any interference and, therefore, the writ petition filed by the petitioner is dismissed.

In the peculiar facts and circumstances of the case, it is directed that the direction issued by the trial court dated 20.07.2005 shall be complied with by the petitioner within a period of two weeks and the trial court is directed to proceed with the suit as expeditiously as possible.