Banwari Lal vs Balak Ram And Others
2021 Latest Caselaw 3660 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No. 126 of 2021 Reserved on: 29.07.2021 Decided on: 06.08.2021

------------------------------------------------------------------------------------- Banwari Lal ......Petitioner/Plaintiff

.

Versus

Balak Ram and others .......Respondents/Defendants

-------------------------------------------------------------------------------------

Coram

The Hon'ble Mr. Satyen Vaidya, Judge

Whether approved for reporting? 1 Yes

For the Petitioner : Mr. V.D. Khidtta, Advocate. For the Respondents : Mr. Neeraj Gupta, Senior Advocate,

with Mr. Janesh Gupta, Advocate.

------------------------------------------------------------------------------------

Satyen Vaidya, Judge

Petitioner, who is plaintiff, before this Court by

way of instant petition, has assailed the order dated

05.03.2021 passed by learned District Judge (Forest),

Shimla in C.M.A. No.1-R/14 of 2020, whereby order dated

20.12.2019 passed by learned Civil Judge, Court No.2,

Rohru in an application under Order 39 Rules 1 & 2 read

with Section 151 of the Code of Civil Procedure (for short

'Code') has been affirmed.

2. The parties herein, shall be referred by same

status as they held before the learned trial Court.

1 Whether reporters of print and electronic media may be allowed to see the order?

3. The facts necessary for adjudication of this

petition are as under:

3.(i) Plaintiff has filed a suit being Civil Suit No. 94/1

of 2019 against the defendants that the suit of the plaintiff

.

may kindly be decreed to the following effects:

a) That the three storeyed house situated upon Khasra

No.594/2 measuring 15x10 = 210 feet in Abadi Deh Jakhnoti, Tehsil Chirgaon is the joint property of the parties to the suit, still subject matter of partition.

b) That the possession upon the said house is intact with

the plaintiff and the defendants No.4 to 6 from the time of their father Shiv Sukh and are enjoying the possession. The defendant No.1 never remained in possession at any point of time over the suit house.

c) That the document alleged fird dated 20.11.1999 is

act of fraud not binding upon the plaintiff and proforma defendants since the same is unregistered and un-stamped documents not tenable in the eyes of

law.

d) That the status of parties under law is still joint and no regular partition by meets and bounds ever took

place between the parties.

e) That the defendant No.1 be restrained from putting

the decree in execution for possession of the said house vide case No.126 of 2008/95 dated 24.10.2008

till the disposal of the case in any manner."

3.(ii). The above noted suit has been filed on the

premise that the suit property i.e. old house situated on

Khasra No. 594/2 (new), Khasra No. 538 min (old) situated

in Village Jakhnoti, Tehsil Chirgaon, District Shimla is joint

and un-partitioned between the parties to the suit since the

time of their ancestors. The plaintiff alongwith proforma

defendants No. 2 to 6 claim exclusive possession on the suit

property.

.

3.(iii). It is stated in the plaint that earlier defendant

No.1 had instituted a Civil Suit under Section 6 of the

Specific Relief Act against plaintiff and proforma defendants

No.2 to 6 in the year 1996, seeking possession of the suit

property. The suit was decreed by learned Sub Judge, 1 st

Class, Court No.2, Rohru on 24.10.2008 as Civil Suit No.

126 of 2008/95. Plaintiff assailed the aforesaid decree in

revision before High Court, which was also dismissed on

28.05.2019 as Civil Revision No. 206 of 2008.

3.(iv). It has further been submitted that High Court

while deciding Civil Revision No. 206 of 2008, observed that

the dismissal of revision petition would not prevent either

party from filing a regular suit establishing his right, title or

interest over the suit property.

3.(v). The document in the shape of "Fird" dated

20.11.1999, on which defendant No.1, is stated to have

based his claim is alleged to be null and void. In this

background of pleadings, the reliefs as noted above, have

been sought by the plaintiff.

3.(vi). Defendant No.1 has resisted and contested the

suit by raising various legal objections. On merits, it has

been stated that the suit property alongwith other joint

properties left behind by common ancestors of the parties,

.

stood legally partitioned between the parties. The suit

property had fallen to the share of defendant No.1, who

holds its exclusive possession in his own right. It has

specifically been averred that the entitlement of parties to

independently claim right, title or interest in the suit

property, as observed by High Court while deciding Civil

Revision No. 206 of 2008, does not imply that plaintiff can

retain the possession of suit property during the pendency

of the suit by obstructing execution of decree passed in

favour of defendant No.1.

3.(vii). Alongwith the suit, plaintiff also filed an

application for interim injunction under Order 39 Rules 1 &

2 read with Section 151 of the Code with a prayer that

respondent(defendant No.1) be restrained from putting the

judgment and decree passed by the trial Court in Case

No.126 of 2008/95 dated 24.10.2008 in execution till the

disposal of the main suit.

3.(viii). In reply to this application, respondent

(defendant No.1) has relied upon the same defence as raised

in written statement and prayer has been made to dismiss

the application with costs.

4. The learned trial Court vide order dated

20.12.2019 passed in C.M.A. No. 32/6 of 2019, dismissed

.

the application of the plaintiff under Order 39 Rules 1 & 2

read with Section 151 of the Code. The order of learned trial

Court has been affirmed in appeal by the learned District

Judge (Forest), Shimla, by way of order impugned in this

petition.

5.

I have heard learned counsel for the parties and

have also gone through the records of the case.

6. The legal position, as far as the applicability of

principles to be applied at the time of deciding application

under Order 39 Rules 1 & 2 of the Code, is well settled. For

adjudication of this petition, it shall be apt and sufficient to

have reference to a recent judgment passed by a co-

ordinate Bench of this Court in Ramesh Kumar vs. Smt.

Sheetal and others 2021 (1) Shim.L.C. 377, wherein it

has been held as under:

"7. It is well settled that before grant of injunction and considering prayer for discretionary relief, court must be satisfied that the party praying for relief has a prima facie case and balance of convenience is also in its favour. While granting injunction, if any, court is also required to ascertain whether refusal to grant

injunction would cause irreparable loss to such party. Apart from aforesaid well established parameters/ ingredients, conduct of a party seeking injunction is also of utmost importance. Reliance in this regard is placed upon judgment rendered by Hon'ble Apex Court in case M/S Gujarat Bottling Co.Ltd. & Ors. v.

.

The Coca Cola Co. & Ors., 1995 AIR(SC) 2372. In case a party seeking injunction fails to make out any of the three ingredients, it would not be entitled to

injunction. Phrases, "prima facie case", "balance of convenience" and "irreparable loss", have been beautifully interpreted/defined by Hon'ble Apex Court

in case Mahadeo Savlaram Shelke v. The Puna Municpal Corpn., 1995 2 JT 504 (S.C.) relying upon its earlier judgment in Dalpat Kumar v. Prahlad Singh, 1992 1 SCC 719 has held as under:

"...the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations

presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends

of justice. The court would be circumspect before granting the injunction and look to the conduct of the

party, the probable injury to either party and whether the plaintiff could be adequately

compensated if injunction is refused. The existence of prima fade right and infraction of the enjoyment of him property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits.

Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction

.

and he needs protection from the consequences of

apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but

means only that the Injury must be a material one, namely one that cannot be adequately compensated by way of damages. The balance of convenience

must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be

caused to the parties if the injunction is refused and

compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that

pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. The court has to exercise its sound judicial

discretion in granting or refusing the relief of ad

interim injunction pending the suit."

[8] Careful perusal of aforesaid judgment rendered by Hon'ble Apex Court clearly suggests that

existence of three basic ingredients i.e. prima facie case, balance of convenience and irreparable loss or injury is mandatory for passing an order of injunction under Order XXXIX, rules 1 and 2 CPC. It is also well settled by now that aforesaid thre ingredients are not only to exist but must coexist. In this regard, reliance is placed upon judgment

rendered by Hon'ble Apex Court in Best Sellers Retail (India) Private Ltd. vs. Aditya Birla Nuvo Ld. and others, (2012) 6 SCC 792, wherein, it has been held as under:

"29. Yet, the settled principle of law is that even

.

where prima facie case is in favour of the plaintiff,

the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable.

30. In Dalpat Kumar & Anr. v. Prahlad Singh & Ors., 1992 1 SCC 719 this Court held:

"Satisfaction that there is a prima facie case by

itself is not sufficient to grant injunction. The Court further has to satisfy that non- interference by the Court would result in "irreparable injury" to the party seeking relief

and that there is no other remedy available to

the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that

there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that

cannot be adequately compensated by way of

damages."

36. To quote the words of Alderson, B. in The Attorney-General vs. Hallett,1857 16 M&W

569 : 153 ER 1316:

"I take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated by any decree which the Court can pronounce in the result of the cause."

[9] Hon'ble Apex Court in Dalpat Kumar and another vs. Prahlad Singh and others, (1992) 1 SCC 719, has categorically held that prima facie case is not to be confused with prima facie title, which requires to be established on evidence at the trial. Mere satisfaction that there is a prima facie case by

.

itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party

seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of

apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely,

one that cannot be adequately compensated by way

of damages. Since purpose of temporary injunction is to maintain status quo, court, while granting such relief, should be satisfied that prima facie case has

been made out and balance of convenience is in favour of the plaintiff and refusal of injunction would cause irreparable loss and injury to him."

7. Applying the aforesaid settled principles of law

to the facts in hand, there is no difficulty in holding that

no interference in the order dated 5.3.2021 passed by

the learned District Judge (Forest), Shimla in C.M.A.

No.1-R/14 of 2020 is warranted. The impugned order has

been passed after thorough consideration of the facts of the

case on the touch-stone of the principles viz. existence of

prima-facie case, balance of convenience, irreparable loss

and multiplicity of litigation.

8. The power of this Court under Article 227 of the

Constitution of India is exercisable for keeping the

.

subordinate Courts within the bounds of their jurisdiction,

when a subordinate Court has assumed jurisdiction which

it does not have or has failed to exercise its jurisdiction

which it does have, or the jurisdiction though is available is

being exercised by the Court in a manner not permitted by

law and failure of justice or grave injustice has occasioned

thereby. By applying the aforesaid principle to the facts of

the case, it cannot be said that the impugned order passed

by the learned District Judge (Forests), Shimla is either

without jurisdiction or is passed in excess of the

jurisdiction vested in it.

9. Undisputedly, Civil Suit No. 126 of 2008/95 was

decreed in favour of defendant No.1 by the learned Civil

Judge (Junior Division), Court No.2, Rohru, District Shimla

on 24.10.2008 after holding a complete trial under Section

6 of the Specific Relief Act. While deciding issue No.1 in the

said suit, learned Civil Judge (Junior Division), Court No.2,

Rohru, recorded specific conclusion as under:

"43. Similarly, it appears that with disbelieving of partition Memo (Ex. PW-6/A) I am of the view that plaintiff also has failed to prove as to whether the disputed house is owned by him or not. But, to my mind, as referred to above, plaintiff was in possession of the same and so long as he was not

.

dispossessed in accordance with law, he was having right to possess the same and he has every right to recover his possession within the meaning of Section

6 of Specific Relief Act. Therefore, plaintiff is very much entitled to the relief of possession of the disputed house from the defendants. Thus, issue

No.1 is answered in favour of the plaintiff."

On such findings a decree of possession of the

suit property was passed in favour of defendant No.1 and

against the plaintiff and proforma defendants. This decree

has attained finality.

10. Plaintiff has sought relief of permanent

prohibitory injunction to restrain defendant No.1 from

putting decree in execution for possession of the suit

property vide case No.126 of 2008/95 dated 24.10.2008. To

similar effect is the prayer made in C.M.A. No. 32/6 of 2019

i.e. application under Order 39 Rules 1 & 2 read with

Section 151 of the Code. Plaintiff is trying to obstruct a

decree passed by a Court of competent jurisdiction by

seeking an injunction to the above effect. Such relief is

specifically barred under Section 41 (a) (b) of the Specific

Relief Act, which reads, as under:

                 "41.    Injunction   when    refused.--An
                 injunction cannot be granted--
                    (a)    to restrain any person from prosecuting a




                                                                     .

judicial proceeding pending at the institution of

the suit in which the injunction is sought, unless such restraint is necessary to prevent a

multiplicity of proceedings;

(b) to restrain any person from instituting or prosecuting any proceeding in a court not sub-ordinate to that from which the injunction is

sought."

Needless to say the trial Court in present case is the court

of co-ordinate jurisdiction that passed decree in Civil Suit

No.126 of 2008/95.

11. The fact of the matter remains that the tone and

tenor of the plaint filed by the plaintiff does not prima-facie

reveal as to on what basis the plaintiff is seeking a better

title to the suit property. As per the case of plaintiff himself,

the suit property is still joint between the parties, if that be

so, the plaintiff cannot be held to have a prima-facie case to

obstruct a lawful decree of possession passed against him

by the Court of competent and co-ordinate jurisdiction.

Such relief shall not be permissible even under the inherent

powers of the Court under Section 151 of the Code.

12. The petition, therefore, is devoid of any merit

and is accordingly dismissed, so also the pending

miscellaneous application(s), if any.

13. It is made clear that expression of opinion, if

.

any, rendered hereinabove shall only be construed for the

disposal of this petition and shall in no manner have

bearing on the merits of the suit pending trial before

learned trial Court.

(Satyen Vaidya)

6th August, 2021.

          (GR)
                      r          to                        Judge