Ratanlal Girdharlal Agrawal vs Shantabai Lalchand Wasnik & ...
2017 Latest Caselaw 7181 Bom

                                                             1                                              SA238.2000.odt


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                NAGPUR BENCH : NAGPUR.

                                       Second Appeal No. 238/2000


1.       Ratanlal S/o Girdharilal Agrawal, 
         Aged about 56 years, Occ. Advocate
         R/o Vithalnagar, Laxmibai Ward, 
         Gondia, Tahsil and Dist. Gondia                                                    .....  Appellant


                                        ...Versus...


1.       Shantabai W/o Lalchand Wasnik,
         Aged about 56 years, Occ. Household work,
         R/o Vithalnagar, Laxmibai Ward,
         Gondia, Tahsil and Dist. Gondia

2.       The Municipal Council, Gondia,
         through its Chief Officer, 
         Municipal Council, Gondia,
         Tahsil and Dist. Gondia                                                   ..... Respondents
                                                                     
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                                     Shri J.T. Gilda, Advocate for appellant
                                              None for respondents
------------------------------------------------------------------------------------------------------------------




                                                              CORAM :  A.S. CHANDURKAR, J.

                                                              DATE     :  14/09/2017


Oral Judgment

1. This appeal filed under Section 100 of the Civil Procedure Code,

1908 is by the original defendant no. 1 who is aggrieved by the decree

passed by the first appellate Court decreeing the suit filed by the respondent

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no. 1 herein.

2. The respondent no. 1 is the original plaintiff. It is her case that

she is the owner of the Plot no. 05/33 situated at Gondia. This plot was

purchased by her alongwith her son on 04/08/1983. Towards the western

side of that plot, the house of defendant no. 1 on plot no. 05/18 was

situated. There was a service-lane between both the houses admeasuring

about 348 feet. According to the plaintiff, this service lane was in existence

since long. The defendant no. 1 had constructed a wall at the entrance of the

service-lane without obtaining any permission of the Municipal Council,

hence the Municipal Council removed the said wall. The defendant no. 1 re-

constructed the said wall after obtaining the permission in a illegal manner.

The plaintiff therefore filed a suit for mandatory injunction that the

defendant be directed to remove the said wall and keep the service-lane open

as an approach way.

3. The defendant no. 1 filed his written statement at Exh. 43. It was

pleaded that the defendant no. 1 had purchased a property on 04/08/1983

from the said vendor as that of the plaintiff. It was then pleaded that on

account of directions issued by the defendant no. 2, the wall had been earlier

removed. The same was again raised on the basis of fresh sanction granted

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by the defendant no. 2 on 04/09/1989.

Defendant no. 2 filed its written statement at Exh. 46. It was

stated initially that the permission was granted on 23/03/1986 for

constructing the wall. As the permission thereafter was revoked, the said wall

was removed. Subsequently, permission was again granted on 04/09/1989

and on that basis, the wall was re-constructed.

4. The parties led evidence before the trial Court. It was held that

the plaintiff had failed to prove the existence of the service-lane since 1944.

It was further held that it was not proved that this wall had been illegally

constructed. The suit was therefore dismissed. The appellate Court held that

though it was the case of defendant no. 1 that permission had been granted

for constructing the wall, said order was not produced. An adverse inference

was therefore drawn against the defendant no. 1. On that basis, the

appellate Court allowed the appeal and decreed the suit. Being aggrieved,

this appeal has been filed.

5. Following substantial questions of law were framed while

admitting the appeal.

"i] Whether non-production of a sanction order which according to defendant no. 1 was granted by defendant no. 2 can be used as a circumstance to draw adverse inference against the defendant no. 1?

                                                              4                                              SA238.2000.odt




               ii]    Whether   the   suit   as   framed   and   filed   by   the  
               Respondent   No.   1   for   mandatory   injunction   is  

maintainable especially when there is no challenge to the permission granted by the Municipal Council to the Appellant for construction of the wall?

iii] Whether in absence of any proof any finding of fact can be recorded ? If no, whether the Lower Appellate Court was justified in holding the existence of a service lane since 1944, when no evidence either oral or documentary has been adduced by the Respondent No. 1 on record to prove the said fact ?

iv] Whether a fact requiring documentary proof can be said to have been legally proved, when only oral evidence is adduced ? If no, whether the Lower Appellate Court has erred in relying upon the hear-say testimony of the plaintiff and that of PW-2 to hold the existence of service lane ?"

6. Shri J.T. Gilda, learned counsel for the appellant submitted that

the appellate Court committed an error of drawing an adverse inference

against the defendant no. 1 for not producing the order of sanction granting

permission to construct the wall dated 04/09/1989. It was submitted that in

the plaint it had been pleaded in paragraphs 4 and 5 that such permission

was granted to the defendant no. 1 but the same was illegal. According to

him when it was the case of the plaintiff herself that such permission was

granted, there was no question of drawing any adverse inference against the

defendant no. 1 for non- production of said sanction order. In fact, admission

of existence of such order itself was sufficient. He submitted that despite the

5 SA238.2000.odt

fact that the plaintiff was aware about the existence of such order, no

challenge was raised to the same. The only relief sought was the relief

mandatory injunction calling upon the defendant no. 1 to remove the said

wall. This relief was sought without any legal basis and in view of provisions

of Section 34 of Special Relief Act, 1963, it was not permissible to seek such

relief without challenging the order dated 04/09/1989. It was necessary for

the plaintiff to have challenged the order of sanction as it was the stand of

both the defendants that the wall in question was erected on the basis of said

order of sanction. It was then submitted that the plaint map was not duly

proved as required by Section 83 of the Evidence Act. Without this map

being duly proved, no finding could have been recorded that such lane was in

existence since 1944. He therefore submitted that the trial Court rightly

dismissed the suit but this judgment was reversed by the appellate Court

without considering the aforesaid aspects.

In support of his submissions, the learned counsel relying on the

following decisions:-

a] Mahant Purshottam Dass and others vs Har Narain and another, Indian Law Reports (1978) I Delhi, 458

b] D. Ramanath Gupta by his Power of Attorney Holder G.R. Krishna Murthy vs S.Razaack, Bangalore-I, Indian Law Reports (Karnataka) Series XXXII 579

c] Justiniano Antao and others vs Bernadette B. Pereira reported in (2005) 1 SCC 471

6 SA238.2000.odt

d] State of Kerala vs M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) and others, reported in (1996) 1 SCC 435

e] Union of India vs Ibrahim Uddin and another, reported in (2012) 8 SCC 148

f] Damodaran vs K. Plantations Co. Ltd. AIR 1959 Kerala

7. There is no appearance on behalf of respondent no. 1 despite

due service of notice. The appeal was heard on 11/09/2017 and

12/09/2017. There was no appearance on behalf of respondent no. 1 on the

said dates. Today also, there is no appearance on behalf of respondent no. 1.

With the assistance of the learned counsel for the appellant, I have perused

the records. I have given due consideration to his submissions.

8. As to substantial question of law no. (i):- Perusal of the plaint

indicates that according to plaintiff, the service lane as indicated in the plaint

map was in existence since 1944. A wall was constructed in the year 1986

but this was removed on 03/09/1989 due to the order passed by defendant

no. 2. It is then pleaded that defendant no. 1 again managed to get

permission for erecting the wall. This permission was obtained in an illegal

manner. On the basis of said order, the wall was again constructed. In the

plaint, relief of mandatory injunction against the defendants has been sought

7 SA238.2000.odt

for removing the said wall and keeping the service-lane open. The defendant

no. 1 specifically pleaded that the wall was constructed on the basis of

permission granted by defendant no. 2 on 04/09/1989. The defendant no. 2

did not dispute this fact and pleaded in para no. 5 that such permission was

in fact granted.

9. As can be seen from the pleadings, the plaintiff in the plaint had

referred to the sanction dated 04/09/1989. This order of sanction was

admitted by both the defendants and was set up as a justification for erection

of the wall. Once it was an admitted position on record that there existed an

order of sanction dated 04/09/1989, there was no question of drawing any

adverse inference against the defendant no. 1 for not producing this order.

Failure to produce a document, existence of which is not in dispute can

hardly be a matter for drawing adverse inference. In the matter of drawing of

adverse inference, the Hon'ble Supreme Court in case of Ibrahim Uddin and

another (supra), has held that the aspect of drawing an adverse inference is

required to be decided by the Court after considering the pleadings of the

parties and the evidence on record. It is to be considered as to whether the

other side could have sought for production of such document. Presumption

as to adverse inference is permissible if the other evidence is shown to the

contrary. In the present case, the existence of the sanction order dated

8 SA238.2000.odt

04/09/1989 is not in dispute. The plaintiff did not give any notice to the

defendants to produce this order of sanction under provisions of Order XI of

the Code. The defendant no. 1 was never called upon to produce this

document so as to draw adverse inference against him for its non-production.

It being an admitted position on record that such sanction had been granted,

the appellate Court erred in drawing adverse inference against the defendant

no. 1 for its non-production. The substantial question of law no. (i) stands

answered accordingly.

10. As to substantial question of law no. (ii):- Once it is found that

the order granting sanction to erect the wall on 04/09/1989 could not be

excluded from consideration by drawing adverse inference, said order would

have to be given its full legal effect. According to the defendants, the wall in

question was erected on the basis of this sanction order. There is admittedly

no challenge to this order. The relief sought is a decree for mandatory

injunction for removing the said wall. The order dated 04/09/1989 thus is an

obstacle in the way of the plaintiff in claiming mandatory injunction for its

removal in as much as unless the said order is set aside, no decree of

mandatory injunction could be passed.

In Harchand Singh Gujjar Singh vs Dalip Singh Pritam Singh, AIR

1965 Punjab 468 while considering whether there is a legal necessity for the

9 SA238.2000.odt

plaintiff to get a declaration of his right before he can get an injunction, it

was held that when there is some legal obstacle which has to be first

removed before such relief can be granted, a prayer for a declaration that has

the effect of removing that obstacle is necessary. This decision has been

approved by the Full Bench of the Delhi High Court in Mahant Purshottam

Dass and others (supra) relied upon by the learned counsel for the appellant.

Similarly, in D. Ramanath Gupta (supra), it was held that in a suit for

injunction based on a prescriptive easementary right, the plaintiff should seek

a declaration from the Court that he has so acquired the prescriptive right of

easement.

It is thus clear that it was incumbent for the plaintiff to have

sought a declaration that the order of sanction dated 04/09/1989 was illegal

and thus he was entitled for a mandatory injunction after setting aside the

same. In absence of such declaration being sought, the suit for mandatory

injunction simplicitor could not have been decreed without setting aside the

order of sanction dated 04/09/1989. The trial Court rightly considered this

aspect of the matter but the appellate Court committed an error in holding

otherwise. Substantial question of law no. (ii) is answered accordingly.

11. In view of the answer given to substantial question of law no.

(ii), it is not necessary to answer the other substantial questions of law in as

10 SA238.2000.odt

much as the suit for mandatory injunction simplicitor has been found to be

not maintainable in the form in which it was filed. The answer to substantial

questions of law nos. (iii) and (iv) is rendered academic.

12. As a result of aforesaid discussion, I find that the judgment of

the appellate Court cannot be sustained. Hence, the following order is

passed:-

O R D E R

1] The judgment dated 02/09/2000 in R.C.A No.

90/1994 is quashed and set aside. The judgment of trial Court in

R.C.S No. 337/1989 dated 21/10/1994 stands restored.

2] The second appeal is allowed in the aforesaid terms

with no order as to cost.

JUDGE Ansari