Milkhi Ram vs Dinesh Kumar

Rajiv Sharma, J.—The respondents/plaintiffs (hereinafter referred to as the "plaintiffs" for convenience sake) have filed a civil suit No. 243 of 2011 in the Court of Civil Judge (Senior Division), Nadaun, District Hamirpur, HP, against the petitioners/defendants (herein after referred to as the "defendants" for convenience sake) under Sections 34, 38 and 39 of the Specific Relief Act, 1963 for permanent prohibitory injunction restraining the defendants, their agents, servants, family members and labourers from raising any construction, changing nature of the suit land and dispossessing the plaintiffs therefrom and from further carving any road/path through the land in their possession and removing any trees in Khata No. 209, khatauni No. 277, bearing Khasra No. 1118, 1119, 1120, kita 3, measuring 0-09-35 hectares and Khatauni No. 278, bearing Khasra Nos. 1132, 1133, kita 2, measuring 0-09-66 hectares, total kita 5 measuring 0-19-01 hectares situated in Tikka Mohal Bela, Mouza Jalari, Tehsil Nadaun, District Hamirpur, H.P., till its partition and in case the defendants succeed in raising construction or changing the nature of suit land, in that event, they be directed by way of mandatory injunction to restore the suit land to its original position. According to them, the suit land was joint, un-partitioned and is valuable piece of land. The defendants were causing unlawful interference by way of digging suit land for the purpose of raising construction. They have also stacked huge construction material on the suit land. They were threatening to carve out path/passage through the suit land.

The defendants have contested the claim by filing written statement. According to them, path measuring 7 x 1 meters was existing on the spot. It leads to the house of the parties and their property. The passage was repaired in the month of September/October 2011. The predecessor-in-interest of the plaintiffs, vide agreement dated 18.8.2007, had acknowledged the existence of the path. The defendants also filed counter claim bearing No. 233 of 2012, for restraining the plaintiffs from causing interference in the user and maintenance and changing the nature of the suit land in any manner whatsoever.

The plaintiffs have also filed an application under Order 39 Rules 1 and 2, read with Section 151 CPC, bearing CMA No. 429/2011, praying for restraining the defendants from raising any construction and from carving out any path. The application was contested by the defendants. The defendants have also moved CMA No. 212 of 2012 for restraining the plaintiffs from raising construction, damaging, uprooting the existing path and also from obstructing its user and maintenance thereof. The Learned Civil Judge (Senior Division), Nadaun, decided CMA No. 429/2011 and CMA No. 212/2012 (in Counter Claim No. 233/2012) on 12.10.2012. The learned Civil Judge directed the parties to maintain status quo qua any construction, trees over the suit land till the disposal of the suit. The plaintiffs were also restrained from making any obstruction in the path shown in the spot map of defendants and to remove the obstruction of whatever nature over the path from the starting point/entry point, within 30 days.

The plaintiffs, feeling aggrieved by the common order dated 12.10.2012, in CMA No. 429/2011 and CMA No. 212/2012 filed a Civil Misc. Appeal bearing No. 30 of 2012, before the learned Additional District Judge, Fast Track Court, Hamirpur. The appeal preferred by the plaintiffs was allowed and order dated 12.10.2012 rendered by the learned Trial Court in CMA No. 429/2011 and CMA No. 212/2012 was set aside, directing the parties to maintain status quo qua nature and possession over the suit land including the paths existing therein, till the disposal of the main suit. The interim injunction granted was vacated.

Mr. Ashwani Sharma, Advocate for the petitioner has placed strong reliance on compromise dated 18.7.2007. According to this compromise dated 18.7.2007, the agreement was entered inter se Milkhi Ram i.e. defendant and Roshan Lal son of Sita Ram, resident of Village and Post Office Bela Mouza Jalari, Tehsil Nadaun, District Hamirpur, HP. The predecessor-in-interest of the plaintiffs i.e. Roshan Lal was son of Relu Ram. He was not party to the agreement dated 18.7.2007. The translated copy of the agreement has been placed on the record by the defendants as Annexure P-5. The alleged agreement was entered into on 18.7.2007. However, Roshan Lal son of Relu Ram died on 16.6.2001. Copy of the Jamabandi for the year 2007-08 does not reflect existence of recorded path. The entry of the suit land has been recorded as ''Gair Mumkin Abadi''. It is also not recorded in ''Aks Musabi''. However, site plan has been placed on record. There is a private path, not being used by the public at large. Thus, the same was not recorded in the revenue record. In these circumstances, the learned Civil Judge (Sr. Division) Nadaun, has rightly directed the parties to maintain status quo qua any construction, cutting trees over the suit land. However, he has also given interim mandatory injunction directing the plaintiffs to remove the obstruction within thirty days. The defendants have failed to prove that the plaintiffs have, in any manner, obstructed the path in question. The mandatory injunction can not be granted mechanically. The learned Additional District Judge, Fast Track Court, Hamirpur, has rightly allowed the appeals against the order dated 12.10.2012, whereby the learned Civil Judge (Senior Division), Nadaun has given an interim mandatory injunction for removal of the obstruction on the path within 30 days. The balance of convenience was in favour of the plaintiffs.

Their lordships'' of the Hon''ble Supreme Court in the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, , have laid down the following test qua the interlocutory mandatory injunction:-

"14. 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 have 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 cast 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 or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as pre-requisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."

Consequently, there is no merit in this petition and the same is dismissed.