Takhvinder Singh and another vs Adani Power Ltd., Gurgaon

L.N. Mittal, J.—Plaintiffs Takhvinder Singh and Darshan Singh both sons of Kapoor Singh, who were successful in securing temporary injunction from the trial Court but have been denied the same by the lower appellate Court, have filed this revision petition under Article 227 of the Constitution of India impugning judgment dated 12.03.2012 Annexure P-2 passed by learned Additional District Judge, Kurukshetra. Plaintiffs alleged that they are cosharers in joint possession of the suit land measuring 88 kanals 13 marlas and the said land has not yet been partitioned but the defendant claims to have purchased share in the joint suit land. The defendant threatened to raise construction in the suit land and to change the nature thereof. The plaintiffs accordingly sought permanent injunction restraining the defendant from changing nature of the suit land by raising construction or by lifting earth or by ousting the plaintiffs from joint possession of the suit land forcibly and illegally or in any other manner. Temporary injunction to the same effect during pendency of the suit was also claimed by the plaintiffs by moving separate application.

Defendant resisted the suit and the application by alleging that the defendant has purchased land out of the joint land from the cosharers who were in exclusive possession. Vendors of defendant-respondent handed over possession thereof to the defendant-respondent. The said land has been described in the written statement and reply and is mentioned in paragraph 3 of the impugned judgment of the lower appellate Court. The defendant pleaded that it started raising construction on the said land out of suit land about one year ago and underground construction is being carried for installation of electrodes station and substantial work has already been completed.

Learned Additional Civil Judge (Senior Division), Pehowa vide order dated 14.02.2012 Annexure P-1 allowed plaintiffs'' application for temporary injunction and directed the defendant to maintain status quo regarding further construction/changing nature of the suit land till decision of the suit. However, appeal against the said order preferred by defendant has allowed by learned Additional District Judge, Kurukshetra vide impugned judgment dated 12.03.2012 Annexure P-2 and thereby application for temporary injunction filed by plaintiffs has been dismissed. Feeling aggrieved, plaintiffs have filed this revision petition.

I have heard learned counsel for the parties and perused the case file.

Counsel for the petitioners vehemently contended that out of the land claimed by defendant to be in its exclusive possession, in fact, plaintiffs are in possession of rectangle No.69 Killa Nos.10, 11, 20 and 21/1 as depicted by khasra girdawari and, therefore, defendant has no right to raise construction in the said land. It was also contended that defendant as cosharer cannot change nature of the joint suit land without partition thereof.

On the other hand, counsel for defendant-respondent point out that in the plaint, the plaintiffs pleaded to be cosharers in joint possession of the suit land and did not plead their exclusive possession over any part thereof and, therefore, contention of counsel for the petitioners that plaintiffs/petitioners are in exclusive possession of the aforesaid land out of suit land is not only beyond the pleadings but is in fact contrary to the pleadings of the petitioners themselves. It was also submitted that defendant is carrying on construction in the suit land for almost one year before the filing of the suit and substantial construction had been completed before the filing of the suit and presently 94% construction has been completed. It was also contended that the defendant-respondent is installing underground electrodes station in the aforesaid land in District Kurukshetra for power project of State of Haryana being erected by defendant-respondent in District Mahendergarh and cost of the entire project is about Rs.3,000 crores and cost of the project being installed in part of the suit land is about Rs.130 crores. It was also submitted that defendant-respondent has to pay penalty of Rs.1.5 crores per day in case of delay under the terms of the agreement with State Government.

I have carefully considered the aforesaid contentions. Perusal of plaint instituted by plaintiffs/petitioners as shown by counsel for respondent reveals that petitioners in the plaint specifically pleaded that they are cosharers in joint possession of the suit land. They also sought injunction inter alia against their ouster from joint possession of the suit land. The petitioners in their plaint did not even remotely plead to be in exclusive possession of any part of the suit land. Consequently, contention of counsel for petitioners that petitioners are in exclusive possession of part of the joint land mentioned hereinbefore cannot be accepted being not only beyond the pleadings but in fact being completely contradictory and contrary to their own pleadings.

In addition to the aforesaid, defendant has already allegedly carried out about 94% of its work. Prima facie it appears that the plaintiffs did not approach the Court immediately when the defendant commended the work and approached the Court belatedly. Moreover, admittedly the defendant has already filed partition suit for partition of the joint suit land. Counsel for defendant-respondent stated that if any part of the land where defendant is raising underground installation falls to the share of plaintiffs in partition, the defendant-respondent shall remove its construction from that part and shall not claim any right of preference or priority over it on the basis of its construction. It is also to be noticed that the construction being raised by the defendant is for a big power project and if the project gets delayed on account of temporary injunction, public interest would suffer. Moreover, defendant would suffer irreparable loss and injury by grant of temporary injunction because it would be liable to pay penalty of Rs.1.5 crore per day for the delay, in addition to the other loss and injury resulting from stoppage of the construction. Substantial amount already spent in raising the construction would remain unutilised and would be a wastage. The construction already made would also deteriorate and get dilapidated. The plaintiffs have very small share in the joint suit land whereas defendant has substantial share therein. For all these reasons also, the plaintiffs do not deserve the relief of temporary injunction.

As a necessary consequence of the discussion aforesaid, I have no hesitation in concluding that impugned judgment of the appellate Court does not suffer from any infirmity, much less perversity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. On the other hand, appellate Court has recorded cogent reasons to dismiss application of plaintiffs for temporary injunction and has rightly exercised discretion in the matter. The revision petition is thus meritless and is, therefore, dismissed. However, nothing observed hereinbefore shall be deemed to expression of opinion on the merits of the suit.