Santosh Kumar and Another vs Pushpa Kumar and Others

Satish K. Agnihotri, J.—Challenge, in this petition is to the order dated 06.11.2008 (Annexure P/1) passed in Misc. Civil Appeal No. 05/2008 by the District Judge, Kabirdham (Kawardha) whereby and where under the order dated 01.08.2008 (Annexure P/12) passed by the Civil Judge Class II, Pandariya, in Civil Suit No. 04-A/2008, rejecting the application filed under Order 39 Rule 1 and 2 of the CPC 1908 (for short ''the CPC'') was set aside and the District Judge granted interim injunction in favour of the respondents/plaintiffs.

The brief facts, in nutshell, as projected by the petitioners/defendants are that the respondents/plaintiffs filed a suit for permanent injunction along with an application under Order 39 Rule 1 and 2 of the CPC seeking temporary injunction against the petitioners/defendants from entering or interfering with the possession of the respondents/plaintiffs of the plaint schedule land. The Civil Judge Class II, Pandariya, Kawardha, after having heard both the parties and considered all the facts, by order dated 01.08.2008, dismissed the application of the respondents/plaintiffs holding that the respondents/plaintiffs have failed to establish a prima facie case, balance of convenience and irreparable loss in their favour. The learned Civil Judge, after considering all the affidavits and documentary evidences, observed that the plaint schedule land is in joint possession of the plaintiffs and the defendant and without considering the case at length, it is difficult to determine the possession of each of the parties so as to grant interim injunction. Earlier, the petitioners/defendants have objected to the respondent/plaintiffs for mutation of the land in their possession. In view of that, it was held that it was not a case for interim injunction.

Being aggrieved, the respondents/plaintiffs filed an appeal before the Additional District Judge, Kabirdham (Kawardha) being Miscellaneous Civil Appeal No. 05/2008. The learned Judge, considering all the aspects held that the respondents/plaintiffs have stated about the partition of the land and the respondents/plaintiffs have produced a document also in support of their statement. The petitioners/defendants have not produced any document in rebuttal of the statement and documents produced by the respondents/plaintiffs. In that view of the matter, the respondents/plaintiffs have prima facie established their possession and as such, the respondents/ plaintiffs have proved that the balance of convenience is in their favour and they would suffer irreparable loss. Accordingly, the order dated 01.08.2008 passed by the Civil Judge, Class II was set aside and the application under Order 39 Rule 1 and 2 filed by the respondents/plaintiffs was allowed by order dated 06.11.2008 (Annexure P/1). Thus, this petition.

Shri Sanjay S. Agrawal, learned counsel appearing for the petitioners/ defendants submit that the order dated 01.08.2008 (Annexure P/12) passed by the Civil Judge, Class II was just and proper as the main dispute between the parties was with regard to partition of the plaint schedule land. The respondents/plaintiffs have failed to establish prima facie case and balance of convenience and irreparable loss in their favour. The finding of the appellate court with regard to partition that partition had taken place is without a plea taken by the plaintiffs. On perusal of the pleadings, it appears that the plaintiffs have not taken plea of partition. Panch Faisla has completely been ignored. Thus, reversal of the findings of the trial court by the first appellate court is without any basis as the learned judge has failed to consider Panch Faisla and the averments in the plaint. It is a Joint Hindu Family property and no injunction could be granted against the co-parceners.

Per contra, Shri Prafull Bharat, learned counsel appearing for the respondents/plaintiffs would submit that the respondents/plaintiffs are holding the suit property as absolute owner and are in settled possession. The revenue records also indicate that the respondents/plaintiffs are the Bhumi Swami of the land in dispute and on the other hand, the petitioners/ defendants have failed to rebut the same by filing any document, as held by learned District Judge. Learned counsel further submitted that for considering the application for grant of injunction, a prima facie case, balance of convenience and irreparable loss of seeker of the interim injunction may be considered. The interim injunction is even otherwise a discretionary jurisdiction of the court.

Having heard learned counsel for the parties, it appears that prima facie petitioners/respondents have failed to rebut the findings recorded by the trial Court. The petitioners/defendants have made some statement without support of any document. At this stage, it is not proper to go into the merits of the case as pleaded by learned counsel appearing for both the parties.

It is well right settled that the High Court while exercising its supervisory jurisdiction under Article 227 of the Constitution of India has limited jurisdiction that unless there is any grave miscarriage of justice or flagrant violation of law or the Court has misdirected its order on law and fact, the High Court should restrain itself from interfering with such finding made by the courts below. In Waryam Singh and Another Vs. Amarnath and Another, , the Supreme Court held that the power of superintendence conferred by Article 227 of the Constitution of India be exercised most sparingly and only in appropriate cases in order to keep the subordinates Courts within the bounds of their authority and not for correcting mere errors.

In case of Sree Jain Swetambar Terapanthi Vid.(S) Vs. Phundan Singh and Others, in para 12 has held as under:

It may be pointed out that it is one thing to conclude that the trial court has not recorded its prima facie satisfaction on merits but granted the temporary injunction and it is another thing to hold that trial Court has gone wrong in recording the prima facie satisfaction and setting aside that finding on the basis of the material on record because it has not considered that relevant material or because it has erroneously reached the finding or conclusion on the facts established. In the first situation, the appellant Court will be justified in upsetting the order under appeal even without going into the merits of the case but in the second eventuality, it cannot set aside the impugned order without discussing the material on record and recording a contrary finding. The High Court proceeded to set aside the order of the trial Court on the first ground ignoring the aforementioned findings of the trial court, the order under appeal is, therefore, unsustainable.

In Surya Dev Rai Vs. Ram Chander Rai & Others, AIR 2003 SC 3049 the Supreme Court reiterated the legal position of law as settled earlier by the Supreme Court in catena of decisions that the High Court in supervisory jurisdiction would not convert itself into a court of appeal indulge in the re-appreciation of evidence or evaluation of errors or correct errors in drawing inference or correct mere technical or formal errors.

In the matter of Hindustan Petroleum Corporation Ltd. Vs. Sri Sriman Narayan and Another, , the Hon''ble Supreme Court observed as under:

It is elementary that grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the court. While exercising the discretion the court normally applies the following tests:

(i) whether the plaintiff has a prima facie case;

(ii) whether the balance of convenience is in favour of the plaintiff; and

(iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.

The ratio laid down in the matter of Hindustan Petroleum Corpn. Ltd. (supra) was reiterated in the matter of Seema Arshad Zaheer and Others Vs. Municipal Corpn. of Greater Mumbai and Others, and held as under:

The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by plaintiff; (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiffs rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiffs rights is compared with or weighed against the need for protection of the defendant''s right or likely infringement of the defendant''s rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiffs conduct is free from blame and the approaches the court with clean hands".

Having applied the ratio laid down by the Supreme Court in the aforementioned cases it is well established that in case of grant of interim injunction, the respondents/plaintiffs have to prove a prima facie case, balance of convenience and irreparable loss in their favour. This Court, in exercise of its jurisdiction under Article 227 of the Constitution of India, should not interfere with any order, unless there is grave miscarriage of justice or flagrant violation of law or the court has misdirected its order on law and fact. The facts of this case are all disputed. Thus, it is difficult to establish a prima facie case for either parties.

Having regard to the facts situation of the case the petition is allowed partly, modifying the appellate order to the extent that the parties shall maintain status quo in respect of all the facets of the case till disposal of the suit before the court of Civil Judge, Class II. No order as to costs.