Karnataka High Court
C M Appachchu S/O P.C.Muthanna vs Rama Rao S/O Durgappa Jannu on 30 September, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RFA No. 827 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR FIRST APPEAL NO. 827 OF 2006 (INJ)
BETWEEN:
SRI C.M. APPACHCHU,
S/O P.C.MUTHANNA,
AGED ABOUT 49 YEARS,
R/A NO.1118, 1ST HOUSE, 5TH CROSS,
K.N.EXTENSION, YASHWANTHPURA,
BANGALORE,
REP. BY POWER OF ATTORNEY HOLDER
B.T.MURARAPPA, S/O LATE THIMMAIAH,
AGED ABOUT 48 YEARS,
NO.269, 8TH MAIN, 6TH 'A' CROSS,
RPC LAYOUT, VIJAYANAGAR,
BANGALORE-560 040.
...APPELLANT
[BY SRI A.V. GANGADHARAPPA, ADVOCATE (PH)]
AND:
Digitally signed by
CHANDRASHEKAR
LAXMAN
1. RAMA RAO S/O DURGAPPA JANNU,
KATTIMANI
Location: High
SINCE DEAD BY LRs.
Court of Karnataka
1(a) SMT. SHARADAMMA,
W/O LATE RAMA RAO,
AGED ABOUT 63 YEARS,
1(b) SMT.SASIKALA D/O LATE RAMA RAO,
AGED ABOUT 44 YEARS,
(APPEAL STOOD ABATED
AS AGAINST R-1(b)
VIDE ORDER DATED 17.11.2023)
1(c) SMT. CHAMPA D/O LATE RAMA RAO,
AGED ABOUT 42 YEARS,
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RFA No. 827 of 2006
(APPEAL STOOD ABATED
AS AGAINST R-1©
VIDE ORDER DATED 17.11.2023)
1(d) SMT. ASHA D/O LATE RAMA RAO,
AGED ABOUT 36 YEARS,
1(e) UDAY S/O LATE RAMA RAO,
AGED ABOUT 36 YEARS,
1(f) VASANTH S/O LATE RAMA RAO,
AGED ABOUT 34 YEARS,
ALL ARE R/AT NO.43, 10TH ROAD,
10TH CROSS, 1ST MAIN,
SANJEEVININAGAR,
MOODALAPALYA,
BENGALURU - 560 072.
...RESPONDENTS
[BY SRI N.B. NIJALINGAPPA, ADVOCATE FOR R1(e) (PH);
VIDE R(J) CIRCULAR DATED 25.11.2021 NO.126/2021,
PROPOSED R1 (a, d, & f) ARE SERVED V/O DTD. 17.11.2023;
APPEAL AGAINST R1 (b & c) STANDS DISMISSED AS ABATED]
THIS REGULAR FIRST APPEAL FILED U/S.96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 16.01.2006 PASSED IN
O.S.NO.8011/1996 ON THE FILE OF THE XVII ADDL. CITY CIVIL
JUDGE, BANGALORE (CCH-16), DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.06.2024, THIS DAY THROUGH VIDEO
CONFERENCING, THE COURT PRONOUNCED THE FOLLOWING:
CAV JUDGMENT
Challenging judgment and decree dated 16.01.2006
passed by XVII Addl. City Civil Judge, Bangalore (CCH-16), in
O.S.no.8011/1996, this appeal is filed.
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2. Sri A.V. Gangadharappa, learned counsel for
appellant submitted, appellant herein was plaintiff, while
respondent herein were defendant no.2, before trial Court.
Defendant no.1 had died during pendency of suit and deleted
from array of parties. For sake of convenience, they will be
referred to as such.
3. O.S.no.8011/1996 was filed for permanent
injunction restraining defendants from interfering with plaintiff's
peaceful possession and enjoyment of site bearing no.533 in
Sy.no.52 of Malagalu village, Bangalore North Taluk, ('suit
property' for short). In plaint, it was stated, plaintiff had
acquired suit property on issuance of Hakkupatra by Tahsildar
in June, 1974 and was in peaceful possession and enjoyment
by paying taxes regularly. It was stated, suit property was
within area of Town Municipality, Govindarajnagar, Bangalore.
4. It was further stated, without any manner of right,
title or interest, on 19.11.1996, defendant along with
henchmen tried to interfere with plaintiff's peaceful possession
and enjoyment of suit property. And though plaintiff resisted
same, defendant threatened to come again. When filing of
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complaint before jurisdictional police did not serve any purpose,
he was constrained to file suit.
5. On service of summons, defendant no.2 appeared
and filed written statement, generally denying plaint averments
and specifically stating, neither plaintiff nor executor of Power
of Attorney were owners of suit property, as Hakkupatra was
issued to one M.L. Shankaraiah s/o Nanjaiah, as he belonged to
economically weaker section. Further, his wife purchased site
no.43 of Nagarabhavi village, from M. Ramaiah, on which he
constructed house in 1981 and was residing in it.
6. Even, defendant no.1 purchased site no.44 from
M.Ramaiah and constructed house in 1982. In year 1991,
defendant no.2 agreed to purchase site no.44 from defendant
no.1 and paid entire sale consideration of Rs.35,000/-. But by
that time, registration of sale deeds in respect of revenue sites
was stopped.
7. Therefore, on 29.10.1991, defendant no.1 executed
Power of Attorney in favour of defendant no.2 and handed over
possession along with construction. It was further stated,
during November 1995 and January 1996, plaintiff tried to
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interfere with defendants' peaceful possession of property.
Hence, he filed O.S.no.793/1996 against present plaintiff for
permanent injunction. In said suit, he had obtained order of
temporary injunction on 07.02.1996. Therefore, present suit
was filed as counterblast. It was alleged taking advantage of
order of status-quo granted on 20.04.1996, plaintiff had
repeatedly tried to interfere with defendants' peaceful
possession and enjoyment of defendant's property.
8. Based on pleadings, trial Court framed following
issues :
1. Whether the plaintiff proves his lawful
possession over the suit schedule property?
2. Whether the plaintiff further proves the cause
of action as alleged in the plaint?
3. What order of decree?
9. In support of his pleadings, GPA holder of plaintiff
was examined as PW.1 and Exhibits P1 to P15 got marked;
while in rebuttal, defendant no.2 examined himself as DW.1
and Exhibits D1 to D9 were got marked.
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10. On consideration, trial Court answered issue no.1 in
negative, issue no.2 in affirmative and issue no.3 by dismissing
suit. Aggrieved thereby, plaintiff was in appeal.
11. It was submitted, suit for permanent injunction was
filed based on Ex.P1 - Hakkupatra and asserting possession
over suit property from grant of and alleging illegal interference
by defendants without any right. It was submitted, to establish
identity and possession over suit property, plaintiff produced
Demand Register Extract for year 1986-87 as Ex.P2, wherein
measurement with boundary description of suit property was
mentioned. He also produced property tax paid receipts for
years 1986-87 and 1987-88 and for years 1974-75 to 1985-86
as Ex.P4. Plaintiff also produced public notice about cancellation
of GPA issued by plaintiff in favour of K.Ramesh, as Ex.P6 and
Record of Rights of Sy.no.52 of Malagalu village as Ex.P7.
These showed Janata sites were formed in total extent of 34
Acres 33 guntas.
12. Further, Court Commissioner's warrant, Report and
Survey Sketch in O.S.no.312/1990 were got marked as Exs.P8
and P9. And to substantiate that during pendency of suit,
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defendant no.2 had violated order of status quo and
constructed compound wall after encroaching extent of 8 ft. X
10 ft. of suit property, plaintiff produced Complaint with
acknowledgement, photographs and negatives as Exs.P10 to
P15. It was submitted, empty space shown in photographs
belonged to plaintiff. It was submitted above material duly
established that plaintiff was in lawful possession over suit
property and there was illegal interference by defendant.
13. Learned counsel further submitted, in written
statement defendant no.2 stated that he had not encroached
suit property and claimed suit property and his site were
different. It was submitted, claim of defendant no.2 over site
no.44 formed out of Sy.no.52 of Nagarabhavi village was based
entirely on Power of Attorney and Affidavit allegedly executed
by Harinarayan marked as Exs.D1 and D2. It was submitted
claim about acquisition of title under PoA and affidavit would
not sustain in law, firstly, due to violation of provisions of
Karnataka Stamp Act, and secondly, Registration Act.
14. It was submitted encumbrance certificate and sale
deeds were marked as Exs.D3 and D4, wherein Ex.D4 - sale
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deed dated 19.03.1981 was allegedly executed by Ramaiah in
favour of one Harinarayan Rao (vendor of defendant no.1)
under GPA dated 19.02.1981. Therefore, title acquired was
defective. It was submitted, order of sanction of electricity
connection would not establish possession. Likewise, paper
publication of public notices and acknowledgement for having
filed police complaint, i.e. Exs.D6 to D9 would also serve no
purpose. It was submitted defendant no.2 had failed to produce
approved layout plan, khata certificate and tax paid receipts
etc., to substantiate possession.
15. In cross-examination, DW.1 admitted, he had filed
suit against plaintiff, but denied withdrawing suit after finding it
was government land. Said admission would establish
defendant lacked title. It was submitted, while passing
impugned judgment, trial Court took note of above material
and while answering issue no.1, observed that plaintiff was
granted suit property and was paying taxes in respect of it. It
also observed, defendants failed to establish identity site no.44.
However, ignoring fact that defendants had encroached on suit
property during pendency of suit, it erroneously holds plaintiff
was not in possession of suit property as on date of suit.
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16. It was submitted, when voluminous material was
produced by plaintiff to establish title and possession over
property, there was no need for seeking declaration of title and
possession. Thus, decree passed by trial Court was contrary to
material on record. It was submitted, while answering issue
no.2, trial Court held plaintiff established cause of action, but
without appreciation of material on record dismissed suit, which
called for interference. It was submitted in an appeal under
Section 96 of CPC, scope for judicial review was wide and
appellate Court had power to re-appreciate entire evidence.
17. It was further submitted, though plaintiff had filed
application under Order XXXIX Rule 2-A of CPC, no orders was
passed nor opportunity to lead evidence or cross-examine
witnesses on said application was granted. It was submitted,
even application for recalling witnesses was filed, but rejected
on erroneous grounds. On above grounds sought for allowing
appeal.
18. On other hand, Sri Nijalingappa, learned counsel for
defendant no.2(e) sought to oppose appeal. It was submitted,
defendant no.2 was owner of site no.43 of Nagarbhavi village,
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now known as Sanjeevini layout. Defendant no.2 had acquired
site no.44 under GPA and affidavits due to stoppage of
registration same is marked as Ex.D1 and D2. It was
submitted, Exs.D1 and D2 would establish defendant no.2 had
paid full sale consideration and was put in possession to an
extent of 15 ft. X 10 ft. Thereafter, he had obtained sanction
order from KEB for power connection as per Ex.D5, even during
process of obtaining said permission any objection by plaintiff.
It was submitted, even photos produced by plaintiff showed
existence of shed and defendant no.2 being in possession. It
was submitted, when plaintiff had tried to interfere with
possession, defendant no.2 had filed O.S.no.793/1996 and
obtained temporary injunction against plaintiff, and plaintiff had
thereafter filed false case claiming Tahsildar had issued
Hakkupatra. It was also contended, property of plaintiff and
defendant were different and there was no government land
attached to it. It was submitted, since plaintiff had failed to
establish suit property was same as defendants property, trial
Court had rightly dismissed suit.
19. It was submitted though plaintiff produced various
documents in respect of suit property, none would establish his
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possession and that PW-1 categorically admitted that defendant
no.2 had encroached to extent of 8 ft. X 10 ft. in suit property
and that Smt.Manjulamma was residing in house constructed
by defendant no.2. Same was noted by trial Court while holding
that in suit for injunction, defendant cannot be dispossessed
and plaintiff put in possession, without proper reliefs being
sought. On said observation, trial Court answered issues no.2
and 3 holding possession was with defendant no.2 and
dismissed suit.
20. In reply, learned counsel for plaintiff submitted that
in Ex.P1, boundaries of site were mentioned. As on date of suit,
plaintiff was in possession over suit property and defendant had
put up construction during pendency of suit. Therefore, trial
Court was not justified in holding that plaintiff has to seek relief
of declaration of title and possession. It was submitted, due to
bifurcation of road of Nagarabhavi village, there was mention
about jurisdiction of two different villages. But, tax paid
receipts for years 1974-75 to 1985-86 would establish property
tax was paid to Harohalli village Panchayat. It was submitted,
since defendant no.2 had not produced any documents either
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to substantiate possession or lawful title, trial Court was not
justified in dismissing suit.
21. Heard learned counsel, perused impugned
judgment and decree and record.
22. Appeal is mainly on ground that while giving finding
on issue no.1, trial Court observed plaintiff established grant
was paying property tax regularly, as per Ex.P1 - Hakkupatra
and Ex.P2 property tax register extracts/receipts, established
his possession. When plaintiff vehemently contended, that he
was dispossessed during pendency of suit and after grant of
order of status quo, trial Court ought not to have dismissed suit
merely on ground that plaintiff had admitted defendant being in
possession over portion of suit property. It was alternatively
contended that encroachment in any case was not complete,
but partial. Therefore, there was no impediment for decreeing
suit, at least to remaining extent. It is also contended, trial
Court had disposed of suit without considering plaintiff's I.A.
under Order XXXIX Rule 2A of CPC for action against defendant
no.2.
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23. In view of above, points that arise for consideration
in this appeal are as follows:
1. Whether finding of trial Court about plaintiff not
being in possession over suit property was
contrary to evidence on record?
2. Whether failure to dispose of I.A. under Order
XXXIX 2-A CPC before final judgment and
decree has led to miscarriage of justice?
3. Whether judgment and decree passed by trial
Court dismissing suit calls for interference?
24. While answering issue no.1, trial Court noted
plaintiff examined his GPA holder as PW.1, who deposed in
terms of plaint averments, about suit claim being based on
Hakkupatra issued by Tahsildar in respect of site no.533 and
plaintiff being possession indicated by tax paid receipts. And
assertion about attempt by defendant no.2 to construct wall in
suit property on 25.04.2001, when he filed police complaint
and Exs.P.1 to P.11 got marked. Thereafter it refers to
admission that defendant had encroached suit property to
extent of 8 ft. X 10 ft., constructed an asbestos sheet roofed
house, occupied by tenant, indicated by Exs.P.12 to 14
photographs.
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25. Thereafter, it refers to deposition of defendant no.2
as DW-1, wherein he states that he purchased site no.43 from
Sri M. Ramaiah, while he purchased site no.44 from defendant
no.1. And when plaintiff tried to interfere with possession over
site no.44 in November, 1995 and January, 1996, he filed
O.S.no.793/1996 and obtained order of temporary injunction
against plaintiff on 07.02.1996. It also took note of admissions
elicited that site no.44 was not issued with khata and denial of
suggestion that encroachment and construction in 8 ft. X 10 ft.
area was after grant of order of status-quo in suit. It also refers
to GPA and affidavit marked as Exs.D.1 and D.2; encumbrance
certificate and sale deeds of site no.44 - Exs.D3 and D.4; to
sanction order for power connection - Ex.D.5 and News about
illegal sale of sites, leading to arrest and initiation of
disciplinary action against PW.1 - Exs.D.6 to D.9.
26. Thus trial Court has taken note of entire evidence to
conclude defendant was in possession of suit property. Said
conclusion is based on reasoning that Exs.P.7 and P.12 - RTCs,
established grant of site no.533 of Malagalu village to plaintiff,
Exs.P.8 and 9 Court Commissioner Report in O.S.no.312/1990,
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indicated Sy.no.52 of Malagalu village was not adjacent to
Sy.no.52 of Nagarabhavi village.
27. It concludes mere initiation of prosecution against
PW.1 would not be sufficient would not establish Ex.P.1 was
forged. It concludes Exs.D.1, D.2 and D.4 - GPA, affidavit and
sale deed showed existence of building measuring 15 ft. X 10
ft. and for failure to seek for declaration and possession even
after admitting defendant being in possession of suit property,
it draws adverse inference against plaintiff. And applying
settled legal principle that in absence of possession, suit for
bare injunction would not be maintainable, answered issue no.1
in negative.
28. Likewise, it drew adverse inference for failure of
plaintiff himself to enter witness box even when defendant no.2
denied plaintiff's title and possession over suit property.
Referring to contents of Exs.P.10 and P.11 - complaint and
pleadings/deposition of plaintiff, it concludes defendant had
encroached and constructed building on suit property prior to
filing of suit. Its conclusion insofar as issue no.2, about
existence of cause of action for plaintiff to file suit, is based on
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its finding on issue no.1. Likewise, based on findings on issues
no.1 and 2 that plaintiff was not in possession and suit for bare
injunction was not maintainable, it answers issue no.3 by
dismissing suit.
29. On re-examination, it is seen as per plaintiff, suit
property was vacant land and suit was filed when defendant
no.2 tried to interfere with possession. And further, during
pendency of suit, defendant had dispossessed plaintiff.
30. On other hand, defendant no.2 opposed suit on two
counts. Firstly, denying plaintiff's title, claiming suit property
was granted to one Sri Achappa; and secondly, by asserting
site no.44 purchased by him from defendant no.1 was different
from site no.533 purchased by plaintiff.
31. But, as per material on record, defendant no.2
claimed to have purchased plot no.44, with constructed portion
and was in uninterrupted possession. Thus, suit involved
dispute not only about plaintiff's title over suit property, but
also, as admitted by PW.1 to be with defendant no.2.
Therefore, question would arise whether plaintiff could maintain
suit for bare injunction. Hon'ble Supreme Court in case of
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Anathula Sudhakar v. P. Buchi Reddy, reported in (2008)
4 SCC 594 as follows:
Re: Question (i)
13. The general principles as to when a mere suit for
permanent injunction will lie, and when it is necessary to file a
suit for declaration and/or possession with injunction as a
consequential relief, are well settled. We may refer to them
briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a
property and such possession is interfered or threatened by
the defendant, a suit for an injunction simpliciter will lie. A
person has a right to protect his possession against any
person who does not prove a better title by seeking a
prohibitory injunction. But a person in wrongful possession is
not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is
not in possession, his remedy is to file a suit for possession
and seek in addition, if necessary, an injunction. A person out
of possession, cannot seek the relief of injunction simpliciter,
without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the
property is in dispute, or under a cloud, or where the
defendant asserts title thereto and there is also a threat of
dispossession from the defendant, the plaintiff will have to sue
for declaration of title and the consequential relief of
injunction. Where the title of the plaintiff is under a cloud or in
dispute and he is not in possession or not able to establish
possession, necessarily the plaintiff will have to file a suit for
declaration, possession and injunction."
(emphasis supplied)
32. In instant case, plaintiff had alleged that he was
dispossessed during pendency of suit, but, failed to establish it.
It is held by High Court of Allahabad in case of Basant (Dead)
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by LRs v. Shri (Dead) by LRs & Ors., reported in 2017 SCC
OnLine All 3350 held as follows:
"The plaintiff-appellant submitted that once it was found that
the plaintiff was in possession at the time of the filing of the
suit then dispossession during pendency of the suit could not
disable the Trial Court from putting the plaintiff back in
possession even if there was no prayer.
3. In this regard, he placed reliance on Mir Bazlay
Ali v. Jagirdar Nirkhy Mir Mahammad Ali1 and Hari Nandan
Agrawal v. S.N. Pandita,1 and has submitted that after filing
of the suit the plaintiff's could always be put back in
possession under section 151 of the C.P.C., even when there
was no prayer for being put back into possession.
4. In reply, the Counsel for the respondent-defendant has
submitted that once the plaintiff was found to have been out
of possession then he had to amend his plaint so as to include
the relief of possession and only then could the suit have
proceeded and consequently decreed for the relief of
possession.
5. I have heard the Counsel for the parties and perused the
record. The second appeal was admitted on the substantial
question of law as to whether when the plaintiff's suit had
been decreed by the Trial Court with finding that he was the
owner of the land and charan etc. then could it be dismissed
as whole and be treated as barred under section 34 of the
Specific Relief Act, 1963, because the defendants had illegally
established their possession on the property during the
pendency of the suit.
6. Admittedly, as has been found by the Trial Court, the
appellant was dispossessed from major portion of the
property and he had not claimed any relief for possession.
decree of permanent prohibitory injunction can only be issued
if the plaintiff is found to be in possession, specially when the
title is based on possession. This is what has been laid
in Vittan Devi v. Ranvijay Singh.2 The two decisions which the
appellant has placed before this Court are decisions wherein it
has been held that if during the continuation of the suit,
temporary injunction was violated and the plaintiff had been
dispossessed, then the Court could always put the plaintiff
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back in possession and restore the status quo ante, using its
inherent powers under section 151 C.P.C. In the case at hand
this is not in issue. It has not been alleged by the plaintiff-
appellant that he was dispossessed in violation of any
temporary injunction.
7. The plaintiff claimed his title on the basis of his
possession and had submitted that the land had vested
in him by virtue of Section of the U.P. Act No. of 1951.
The defendant had denied the plaintiff's possesory title
and, thus, if the Trial Court had found that the plaintiff
was out of possession then it could not have put him in
possession, without, his making prayer for being put
back in possession.
8. It mattered little that the Trial Court had found the
title of plaintiff correct. The First Appellate Court rightly
allowed the First Appeal. The suit had to be dismissed
for the want of proper prayer.
(emphasis supplied)
33. Thus finding of trial Court is after extensive
reference to material on record and by assigning detailed
reasons. Insofar as scope for interference with findings of trial
Court in Appeal, Hon'ble Supreme Court in case of Sarju
Pershad v. Raja Jwaleshwari Pratap Narain Singh,
reported in 1950 SCC 714, held as follows:
"8. The question for our consideration is undoubtedly one of
fact, the decision of which depends upon the appreciation of
the oral evidence adduced in the case. In such cases, the
appellate court has got to bear in mind that it has not the
advantage which the trial Judge had in having the witnesses
before him and of observing the manner in which they
deposed in court. This certainly does not mean that when
an appeal lies on facts, the appellate court is not
competent to reverse a finding of fact arrived at by the
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trial Judge. The rule is, and it is nothing more than a
rule of practice, that when there is conflict of oral
evidence of the parties on any matter in issue and the
decision hinges upon the credibility of the witnesses,
then unless there is some special feature about the
evidence of a particular witness which has escaped the
trial Judge's notice or there is a sufficient balance of
improbability to displace his opinion as to where the
credibility lies, the appellate court should not interfere
with the finding of the trial Judge on a question of fact
[Lord Atkin's observations in W.C. MacDonald v. Fred Latimer,
AIR 1929 PC 15 at p.18: 1928 SCC OnLine PC 51]."
(emphasis supplied)
34. Even insofar as contention about, failure to dispose
of I.A. under Order XXXIX Rule 2-A of CPC, in case of
Choorakadan v. Antony, reported in AIR 1991 Ker 44, it
was held:
"4. The proceedings under O. XXXIX, R. 2A, C.P.C. is
separate and independent. Whatever be the orders
passed in O. XXXIX, R. 2A petition, it may not have any
bearing on the decision of the case. Even if the petition
under O. XXXIX, R. 2A was considered and disposed of
along with the suit, the order passed thereunder would
be distinct and separate and an appeal would lie under O.
XLIII, R. 1(r) of the C.P.C. As the respondent herein had not
challenged the order passed under O. XXXIX, R. 2A by a
separate appeal, it was not open to the learned District Judge
to interfere with the order passed by the Munsiff. The order
passed in O. XXXIX, R. 2A petition had not affected the
decision of the case. Therefore, the same cannot be a ground
for objection in the memorandum of appeal in A.S. 42/84. S.
105 of C.P.C. expressly prohibits such recourse. Therefore,
the order passed by the learned District Judge directing the
trial Court to proceed with I.A. Nos. 1925/82 and 621/83 is
without jurisdiction and illegal."
(emphasis supplied)
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35. Further, Full Bench of High Court of Madras in
Century Flour Mills Ltd. v. S. Suppiah, reported in 1975
SCC OnLine Mad 73 held, where an act is done in violation of
an order of stay or injunction, it is duty of Court, as a policy, to
set wrong right and not allow perpetuation of wrongdoing. It
was held, inherent power of Court is not only available, but in
case, it is bound to exercise it to undo wrong in interest of
justice.
36. However, it has to be kept in mind that proceedings
in case of breach of order of temporary injunction are to be
registered as miscellaneous cases and taken up for
consideration separately, as standard of proof in such
proceedings will be proof beyond reasonable doubt, while in
suit, it is by preponderance of probabilities. It is also seen that
application for action for breach of order of status-quo though
filed in year 1996 was not pursued till suit was at its fag end.
37. High Court of Bombay in case of Rampyaribai v.
Niladevi, reported in 2007 SCC OnLine Bom 424, held:
"8. Consideration:
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9. Having heard the learned counsel for the rival parties and
having given my anxious thought in the matter, I find that the
proceedings under Order 39, Rule 2A of the Civil Procedure
Code are absolutely independent proceedings. Whether there
was breach of injunction or not is a question to be decided
upon evidence and the said question has no relevance with
the issues in the suit which are to be decided on merits of the
suit. The eventuality of breach of injunction has occurred not
at the time of filing of the suit but subsequent to the filing of
the suit. The issues framed in the suit on merits of the suit
cannot be mixed up with the trial of the application (Ex. 37)
for breach of injunction. The question whether the petitioners
would be prejudiced or not is not relevant. What is relevant is
the practice and procedure that is required to be adopted
while deciding the suit and the application for breach of
injunction. As a matter of fact, in my opinion, the
application for breach of injunction should be
separately registered as Misc. Judicial case and should
be tried by framing appropriate issues. Thus the
proceedings for breach of injunction has absolutely
nothing to do with the decision of the suit on merits. I
fail to understand as to why the proceedings under
Order 39, Rule 2A of Civil Procedure Code are not
separately registered and separately tried by the
learned trial Court.
10. Insofar as the delay in deciding the application (Ex.
37) is concerned, it appears that the order injunction
that was made was carried in appeal before the District
Judge and, as jointly submitted before me by the
counsel for the parties, same is now sub-judice in the
writ petition which is admitted by this Court. The
petitioners have also given a reason that because of
transfer of the case from one Court to another, the said
application could not be decided. This explanation is
not unbelievable. ....."
(emphasis supplied)
38. However, in instant case, there is absolutely no
explanation by plaintiff for reasons for not pressing application
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earlier, or for not challenging order rejecting application for re-
opening case for leading evidence on said application or for not
filing a Miscellaneous Petition separately. In any case, it is held
in case of Kanwar Singh Saini v. High Court of Delhi,
reported in (2012) 4 SCC 307, that interim order of injunction
granted during pendency of suit would merge with final decree.
In instant case, trial Court has specifically held, plaintiff failed
to establish possession over suit property as on date of suit. It
held, defendant no.2 was in possession. In view of said finding
and fact that suit, ultimately ended in dismissal, order of
status-quo, breach of which is alleged, would stand merged in
decree.
39. In view of above discussion, points for consideration
are answered in negative. Consequently, following:
ORDER
Appeal is dismissed, no order as to costs.
SD/-
(RAVI V HOSMANI)
JUDGE
GRD/EM/CLK
