Ram vs Lahri

Veerendra Singh Siradhana, J.—In the instant writ application, the petitioners/defendants have challenged the legality and validity of the order dated 4th December, 1996 passed by the learned trial Court on an Application No. 27/1995 seeking mandatory interim Temporary Injunction and order dated 17th March, 2012 passed by the appellate Court on and an appeal preferred against the order dated 4th December, 1996. Briefly, the essential material facts necessary for adjudication of the controversy raised are, that the petitioners/plaintiffs instituted a civil suit in representative capacity on 25th July, 1995 for declaration and Permanent Injunction claiming right of way on the property in dispute. The application for mandatory interim Temporary Injunction was responded by the respondents/defendants. On 29th July, 1995, the learned trial Court appointed Court Commissioner to inspect the site and submit a report. It is also urged that on an inspection of the site made earlier in the year 1993, the entire way was shown to be open without any obstruction.

The learned trial Court taking into consideration the pleaded facts and after hearing the counsel for the parties declined the prayer for mandatory interim Temporary Injunction, however, issued an injunction to maintain status quo, in accordance with the status as per the report of the Court Commissioner dated 29.7.1995. The petitioners-plaintiffs assailed the impugned order dated 4.12.1996 before the appellate Court, as is evident from the order dated 18.5.2001; which was subjected to further challenge by way of a writ application before this Court and in consequence, the matter was remanded for decision afresh, setting aside the order dated 18.5.2001, by this Court on 12.12.2003. The learned appellate Court on a re-consideration of the matter passed the impugned order dated 17.3.2012, upholding the order dated 4.12.1996 passed by the learned trial Court, which is again under challenge in the instant writ application.

The counsel for the petitioners/plaintiffs reiterating the pleaded facts argued that the learned trial Court and the appellate Court, committed apparent illegality on the face of record in not taking into consideration the provisions of Section 91 and Order 39 Rules 1 and 2 CPC, for grant of mandatory interim Temporary Injunction. Moreover, the dispute relates to right of public way, but the Courts below by misreading and misconstruing the report of the Court Commissioner dated 29th July, 1995; fell in gross error of law and fact, while declining the relief of mandatory interim Temporary Injunction. The learned counsel urged that the learned Courts below have erred in not appreciating the prima facie case in favour of the petitioners as well as the irreparable loss, and balance of convenience which is heavily loaded in favour of the petitioners.

I have heard the learned counsel for the petitioners/plaintiffs and perused the material available on record.

It is not in dispute that the learned trial Court appointed a Court Commissioner to inspect the site and submit a report, which was submitted on 29th July, 1995. The learned trial Court while deciding the application under Order 39 Rules 1 and 2 CPC, considered the rival claims in the light of the pleaded facts as well as in view of the material available on record and arrived at a finding and conclusion, that the contesting parties could not substantiate the rival claim staked and assertions made, by furnishing any convincing, substantial and reliable evidence. However, in order to balance the competing claims, pending the final adjudication of the matter, the learned trial Court made an order to maintain status quo, in accordance with the report of the site, furnished by the Court Commissioner dated 29th July, 1995 and not to make any change in the nature of the property in dispute by raising any kind of obstructions or constructions. The learned appellate Court has also examined the issue and after a detailed discussion of the factual matrix, in the light of the pleaded facts and material present on record as well as the nature of the rival claims; in order to preserve the property in dispute and so also to prevent multiplicity of litigation, upheld the order dated 4th December, 1996 passed by the learned trial Court.

The learned Trial Court considered all the relevant factors of the matter and thereafter, passed limited interim order to maintain status-quo, in accordance with the report of the site furnished by the Court Commissioner dated 29th July, 1995. The case at hand is not one where a mandatory interim temporary injunction, as prayed for by the petitioners was justified. The learned Trial Court taking into consideration the pleaded facts and material available on record, passed a reasoned order, and, by no stretch of imagination it could be construed that the Trial Court exercised the discretion in an arbitrary, capricious or perverse manner, or ignored the settled principles of law regarding grant or refusal of interlocutory injunction. It is settled law that the reliefs of interlocutory temporary injunction are granted generally to preserve or restore the status-quo of the last not known contested status, which proceeded the pending controversy until the final adjudication. Since grant of injunction to a party, who fails or would fail to establish his right at the trial, may cause a grave inconvenience or irreparable loss to the party against whom the injunction was granted. So also not granting of it to a party who succeeds or would succeed, may equally cause great injustice or irreparable loss and therefore, Courts have evolved the three guiding principles i.e., (a) a strong case for trial in favour of the plaintiff and the standard shall be higher than a prima facie that is normally required for a prohibitory injunction, (b) to prevent irreparable loss or serious injury, which may not be compensated in terms of money at the stage of final adjudication, and (c) balance of convenience heavily loaded in favour of the one seeking such a relief. Moreover, grant or refusal of an interim interlocutory injunction is essentially an equitable relief and shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the peculiar facts, circumstances and material available on record in a given case.

In the case of Kishore Kumar Khaitan and Another Vs. Praveen Kumar Singh, , the Hon''ble Supreme Court reiterating the principles with reference to the interim mandatory injunction held thus;-

An interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of ah interim mandatory injunction; Keeping this principle in mind, it is necessary to see whether in the case on hand, the Addl. District Judge was justified in passing the interim order of injunction.

I have given my anxious consideration to the facts, circumstances and materials available on record and also perused the impugned orders. A bare perusal of the impugned order dated 4th December, 1996; upheld by the appellate Court, would reveal that the learned trial Court as well as the appellate Court exercised the discretion vested in a proper and just manner, and have not committed any error manifest and apparent on the face of record.

There is no element of any grave injustice or gross failure of justice occasioned or ignorance/disregard of the provisions of law, so as to call for interference by this Court under supervisory jurisdiction.

In the case of Abdul Razak (D) through L.Rs. and Others Vs. Mangesh Rajaram Wagle and Others, , the Hon''ble Supreme Court cautioned the High Court to keep in view the limitations of certiorari/supervisory jurisdiction while deciding the writ petitions filed under Article 226 or petitions/applications filed under Article 227 of the Constitution. After a survey of several pronouncements earlier as well as or an analysis of Articles 226 & 227, in case of Abdul Razak (supra), their Lordships held thus:-

If respondent Nos. 1 and 2 had invoked the High Court''s jurisdiction under Article 226, then the learned Single Judge ought to have considered whether the trial Court committed a jurisdictional error by refusing to strike off the additional written statement filed by the appellants or it was a case of failure on the part of the trial Court to exercise the power vested in it under Order VI Rule 16 CPC or the order under challenge was vitiated by an error of law apparent on the face of the record or there was violation of the rules of natural justice. In either case, the learned Single Judge was also required to consider whether there has been substantial failure of justice or manifest injustice has been caused to respondent Nos. 1 and 2 on account of the trial Court''s refusal to strike off the additional written statement. These are the parameters laid down by this Court in Syed Yakoob Vs. K.S. Radhakrishnan and Others, .

If the petition filed by respondent Nos. 1 and 2 was under Article 227 of the Constitution of India, then the learned Single Judge should have taken note of the often quoted judgment in Surya Dev Rai Vs. Ram Chander Rai and Others, , in which a two-Judge Bench, after threadbare analysis of Articles 226 or 227 of the Constitution and considering large number of judicial precedents on the subject, recorded the following conclusions:

(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the CPC 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 CPC Amendment Act 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 a 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 in to exercise its supervisory jurisdiction.