Kamal Jeet Singh & others vs Narmeet Singh

Sureshwar Thakur, J.

1.The plaintiff/respondent herein, filed, a simplicitor suit, for permanent prohibitory injunction, for, restraining the defendants/petitioners herein, from,

interfering in the suit property, and, for preventing the defendants, from, precluding the plaintiff from exclusively operating the business, from the suit

premises. In the plaint, it is averred of on 22.1.2017, whereat the plaintiff, was, at Delhi, at his in-laws' abode, his thereat hence, receiving a telephonic

intimation of the locks installed by him, upon the suit property, being broken , whereafter he avers of his reporting, the matter through email, on

22.01.2017 to the S.P., Solan. The defendants in the written statement, denied the factum of the plaintiff exclusively, running the apposite business,

from, the suit premises, by changing its hitherto nomenclature from M/s Tarlochan Singh & sons Flour Mills, to, M/s Itan's. In support thereto they

appended certain documentary material. Furthermore, the defendants in the written statement contended qua, after, the demise of late Shri Tarlochan

Singh, rather defendant No.4 inheriting the business, and, hers running it uptill the month of September, 2017, and, thereafter defendant No.1, and, his

younger brother one Ajit Pal Singh mannning the business from the suit premises. It is also contended in the written statement, that, the aforesaid

manner of running of business, from, the suit premises by defendant No.1, and, his younger brother Ajil Pal Singh being a sequel, to an apposite family

settlement, whose making, however, is contended, to be resisted by the plaintiff.

During the pendency of the apposite Civil Suit before the learned trial Court, the plaintiff cast an application, under the provisions of Order 39, Rules

1 and 2 of the CPC, wherein, he canvassed, for, affording vis-a-vis him, the reliefs of temporary ad-interim injunction. Though, the affording of the

aforesaid relief vis-a-vis the plaintiff, was, vehemently resisted by the defendants, yet both the learned Court below afforded vis-a-vis the plaintiff, the

relief of temporary ad-interim mandatory injunction. Now, the defendants/petitioners herein being aggrieved therefrom, hence, institute the instant

petition before this Court.

The merit worthiness, of, the concurrent pronouncements recorded by both the learned Courts below, would be tested on the anvil, of both, bearing

or not bearing in mind the trite principles expostulated, in a verdict rendered by the Hon'ble Apex Court in case titled as Mohd. Mehtab Khan and

others vs. Khushnuma Ibrahim Khan and others, reported in (2013)9 SSC 221, the relevant paragraphs No. 18 & 19 whereof are reproduced

hereinafter:-

“18. There is yet another dimension to the issues arising in the present appeal. The interim relief granted to the plaintiffs by the Appellate Bench of

the High Court in the present case is a mandatory direction to handover possession to the plaintiffs. Grant of mandatory interim relief requires the

highest degree of satisfaction of the Court; much higher than a case involving grant of prohibitory injunction. It is, indeed, a rare power, the governing

principles whereof would hardly require a reiteration inasmuch as the same which had been evolved by this Court in Dorab Cawasji Warden vs.

Coomi Sorab Warden and Others, (1990) 2 SCC 117, has come to be firmly embedded in our jurisprudence.

Paras 16 and 17 of the judgment in Dorab Cawasji Warden (supra), extracted below, may be usefully remembered in this regard:

“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested

status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have

been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a

party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or

alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts haveÂ

evolved certain guidelines. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory

injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion

of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete

or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for  the grant or refusal of such

injunctions would be a sound exercise of a judicial discretion.†and also both the learned Courts, alluding, to the material germane thereto. Before

proceeding to adjudicate whether the trite principles of law governing the affording or declining the relief of ad interim mandatory injunction, stood

hence borne in mind, by both the learned Courts below, it is also imperative to cull out, the requisite principles, principles whereof, are, of the relief of

ad interim mandatory injunction being grantable (a) only for preserving or restoring the last known uncontested status, (b) for undoing the illegal acts

committed, upon, the suit premises, by the errant litigants concerned, (c) obviously thereupon the complaining party, is, enjoined to establish, by

adducing firm material of his or her holding evident possession thereof, six months prior to his purported illegal dispossession therefrom, (d) and,

obviously thereupon alone the further triplicate tests governing the affording or declining of the apposite relief, comprised, in (i) prima facie good

arguable case being established by the complaining party; (ii) balance of convenience being loaded vis-a-vis the complainant party and (c) irreparable

loss or injury being causable to the plaintiff in case ad interim injunction is not granted, also hence visibly begetting concomitant satiation.

Now upon applying the aforesaid tests, governing or regulating the affording or declining of the relief, of, ad interim mandatory injunction vis-a-vis

the material germane thereto, thereupon, a rummaging of the record, reveals that apart from an email, dispatched, on 22.01.2017 by the plaintiff to the

S.P., Solan, (i) his not by other any cogent material, rather prima facie substantiating the factum of his prior, to the institution of the suit, holding,

exclusive possession of the suit premises (ii) nor obviously, he established, of, his being wrongfully dispossessed therefrom (iii) besides obviously hence

the principles enshrined in paragraph No.19 of Hon'ble Apex Court's judgment in Mehtab Khan's case (supra), of relief of ad interim mandatory

injunction, being grantable to him only for preserving or restoring the last known uncontested status vis-a-vis the suit premises or for undoing the

mischief done by the errant defendants, stands unsatiated.

Be that as it may, the evident lack of material, hence, loudly pronouncing, of, satiation being meted vis-Ã -vis all the relevant tests, enshrined in the

Mehtab Khan's case (supra), does obviously make a candid vivid display, of, both the learned Courts below remaining ignorant of the trite principles of

law, governing or regulating the affording or declining of relief of ad interim mandatory injunction also both the learned Courts below proceeding, to

omit, to allude to all the material germane thereto, rather contrarily both the learned courts below have mismaneuvered themselves, both in law or in its

application upon the relevant facts, hence, with theirs rendering pronouncements per incuriam vis-a-vis the pronouncements of the Hon'ble Apex

Court rendered in Mehtab Khan's case supra, thereupon, constrains this Court, to, reverse the orders impugned hereat.

For the foregoing reasons, the instant petition is allowed and the impugned orders are set aside. Consequently, the plaintiff's/respondent's

application, cast under the provisions of Order 39, Rules 1 and 2 CPC, is dismissed. The parties are directed to appear, before, the learned trial Court

on 23rd May, 2018. However, it is made clear that the observations made hereinabove shall have no bearings on the merits of the case. No order as to

costs. All pending applications also stand disposed of . Records be sent back forthwith.