Rameshchandra vs Collector Harda, The State of Madhya Pradesh

Sanjay Yadav, J.—Heard on admission.

Order dated 1.8.2013 passed by First Additional District Judge, Harda in an appeal under Order 43 Rule 1(r), Code of Civil Procedure, 1908 is being assailed vide this petition under Article 227 of the Constitution of India.

Petitioner having proceeded against for demolition of the structure raised over and around the plot admeasuring 60 x 70 in village Behragaon, Tehsil Timarni has brought a suit for declaration of title, permanent injunction and for damages on the contention being an ancestral property, the construction has been raised after due permission granted by Gram Panchayat. Along with the plaint, petitioner also filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 seeking temporary injunction.

The trial court on a finding that the plaintiff has raised hedge and constructed a toilet by encroaching the road declined to grant injunction, observing:

Petitioner preferred an appeal under Order 43 Rule 1(r) CPC wherein he filed certain documents in furtherance to establish a prima facie case. The appellate Court on a finding that these documents reflecting facts which were prior in time has no relevance, it observed:

No exception can be drawn to the decision arrived at by the appellate court and the liberty granted to the petitioner/plaintiff to take steps in the civil suit.

As to injunction the appellate court found that the disputed construction being raised over the public road declined to interfere. The court observed:

No material document has been commended at to establish that the findings arrived at by both the courts below are perverse. No objection certificate, Annexure P/1, filed by the petitioner to establish that the construction raised around the plot is duly authorized is of no avail because petitioner fails to establish that a sanction as per law and procedure was ever granted. Moreover, the certificate has been issued by the Sarpanch, who is not shown to have any authority under the provision of law.

While exercising the discretion for grant of an interim injunction during pending of a suit following three tests are applied, viz., (i) whether plaintiff has a prima facie case (ii) whether balance of convenience is in favour of the plaintiff and (iii) whether the plaintiff would suffer an irreparable injury if Temporary injunction is declined. These parameters are to achieve the object to protect the plaintiff from an injury which cannot be compensated adequately. (Please Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, and Hindustan Petroleum Corporation Ltd. Vs. Sri Sriman Narayan and Another, ).

In the case at hand the petitioner/plaintiff having failed to establish prima facie case, the conclusion arrived at by both the Courts cannot be faulted with as would warrant an interference in a petition under Article 227 of the Constitution of India.

Even otherwise since the scope of interference in writ jurisdiction under Article 227 of the Constitution of India is confined to the extent that subordinate courts remain within their bounds of authority (Please see Waryam Singh and Another Vs. Amarnath and Another, and Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, ).

In view whereof petition fails and is dismissed.