Church Of North India Trust ... vs The State Of Madhya Pradesh ...
2023 Latest Caselaw 16972 MP

                                                              1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                     BEFORE
                                     HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                               ON THE 12 th OF OCTOBER, 2023
                                              WRIT PETITION No. 26188 of 2023

                           BETWEEN:-
                           CHURCH OF NORTH INDIA TRUST ASSOCIATION
                           THROUGH SECRETARY AND POWER OF ATTORNEY
                           HOLDER MANOJ CHARAN 9, BOUNDARY ROAD
                           RESIDENCY AREA INDORE (MADHYA PRADESH)

                                                                                           .....PETITIONER
                           (BY SHRI ANSHUMAN SINGH AND MS. DARSHANA BAGHEL, LEARNED
                           COUNSEL)

                           AND
                           THE STATE OF MADHYA PRADESH THROUGH
                           COLLECTOR MANDSAUR (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           (BY SHRI VAIBHAV BHAGWAT, LEARNED GOVT. ADVOCATE ON
                           ADVANCE NOTICE)

                                 Th is petition coming on for hearing this day, th e court passed the
                           following:
                                                               ORDER

The present petition is filed under Article 227 of the Constitution of India challenging the impugned order dated 27.09.2023 passed by II District Judge, Mandsaur by which the appeal filed by the petitioner against rejection of its application seeking temporary injunction has been dismissed.

2. The facts of the case succinctly stated that the suit property is part of Church compound is Sitamau, Dist. Mandsaur. 2.378 hectares land was in Survey No. 338/1 and 338/2 was given on concessional lease in 1918-1919 to Canadian Presbyterian Mission. It is stated that the said mission executed a Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 13-10-2023 17:46:38

transfer deed dated 16.04.1974 in favour of United Church of Northern India Trust Association which subsequently executed another transfer deed dated 20.12.1994 in favour of Church of North India Trust Association. The Collector vide order dated 08.05.2006 terminated the lease and passed an order for ejecting from the land in question. The original grantee i.e. Canadian Presbyterian Mission filed a civil suit challenging the order dated 08.03.2006. The said suit was dismissed by order dated 26.02.2010. The first appeal and second appeal filed by the original grantee were also dismissed. Thereafter the petitioner filed Second Appeal No. 252/2011 being aggrieved by the judgment dated 21.01.2011 passed by the Additional District Judge, Mandsaur in Civil

Appeal No. 3A/2010 whereby the judgment dated 26.10.2010 passed by Additional Civil Judge, Class-I, Sitamau filed by Canadian PCP Victorian Sitamau was dismissed. The said Second Appeal was dismissed on the ground that the present petitioner was not party to the aforesaid suit and the original plaintiff had already filed a second appeal No. 113/2011 which was dismissed. The Court dismissed the Second Appeal filed by the petitioner on the ground that the petitioner has no right to challenge the dismissal of suit filed by the original grantee Canadian CP Victorian Sitamau. It was observed that if the appellant is having any independent right then the appellant is free to take appropriate steps to safeguard the rights. This order was passed on 07.05.2011. After period of six years, the petitioner filed suit challenging the same order dated 08.05.2006 passed by the Collector along with an application for grant of temporary injunction under Order 39 Rule 1 & 2 CPC by order dated 08.09.2022, the injunction was rejected. The application for grant of temporary injunction was rejected on the ground that the petitioner has failed to make out

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any prima facie case and other factors of irreparable loss and balance of convenience. Against the said order, the petitioner preferred an appeal before the District Judge, Mandsaur which has been dismissed by impugned order dated 27.09.2023.

3 . Counsel for the petitioner argued that both the Courts have erred while rejecting the application for temporary injunction and the order is contrary to the law laid down by the Apex Court in the case of Express Newspapers Pvt. Ltd. & Ors. Vs. Union of India & Ors. (1986) 1 SCC 133. He referred to para-85 & 86 of the said judgment. He also relied para 30 & 31 of the judgment passed by the Apex Court in the case of State of U.P. & Ors. vs. Maharaja Dharmander Prasad Singh & Ors. (1989) 2 SCC 79.

4. Per contra, counsel for the State supported the order passed by the trial Court as well as by the appellate Court rejecting the application for grant of temporary injunction. It is submitted that the land is said to be allotted to original grantee Canadian Presbyterian Mission. The original grantee has already challenged the order dated 08.05.2006 cancelling the lease deed and passing an order for ejectment under Section 182(2) of M.P. Land Revenue Code (hereinafter referred to as the MPLRC). The suit, first appeal and second appeal filed by original grantee was dismissed. The petitioner has filed present suit challenging the same order dated 08.05.2006. He has not claimed any title in

the present suit. Since the petitioner is claiming right over the land through original grantee i.e. Canadian Presbyterian Mission and his suit first appeal and second appeal have already been dismissed, the petitioner has no right to seek injunction. He could not establish prima facie case in his favour and the other factors of balance of convenience and irreparable loss are also not in his favour as the possession has already been taken over by the State. Both the Courts Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 13-10-2023 17:46:38

below have passed the order after considering the relevant submissions and record recording concurrent findings. There is no illegality or perversity in the order.

5. After hearing learned counsel for the parties and upon perusal of the order, I find that there is no illegality in the impugned orders passed by the trial Court rejecting the application for grant of temporary injunction and also dismissal of appeal by the appellate Court. Upon perusal of the plaint, it is clear that the petitioner is challenging the order dated 08.05.2006 passed by the Collector under Section 182(2) of MPLRC cancelling the lease granted in favour of Canadian CP Victorian. The original grantee Canadian Presbyterian Mission was given the said land on concession lease, and the said Mission executed a transfer deed dated 16.04.1974 in favour of United Church of Northern India Trust Association which subsequently executed another transfer deed on 20/12/1994 in favour of Church of North India Trust Association i.e. the petitioner. Once the suit first appeal and second appeal filed by the original grantee have already been dismissed challenging the order passed by the Collector and the petitioner is claiming rights through the original grantee, no prima facie case is found in favour of the petitioner.

6. The submission of learned counsel for the petitioner is that in the case o f Express Newspapers Pvt. Ltd. (supra) and in the case of Maharaja Dharmander Prasad Singh (supra), it has been held that even after cancellation of the lease, the possession cannot be taken without following due process of law. The case of Express Newspapers Pvt. Ltd. is in respect of a case of unauthorized occupants and was dealing with the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In the said context,

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the Apex Court held in para-85 & 86 that even after that the person cannot be evicted without following due process of law, who is unauthorised occupation.

7. The case of Maharaja Dharmander Prasad Singh (supra) was dealing with the provisions of U.P. Urban and Planning Development Act, 1973 and in the said context in para-30 & 31, it has been held that a lesser has no right to resume possession extra judiciary by use of force from a lessee even after expiry or earlier termination of lease by forfeiture or otherwise. The aforesaid judgments would not render any assistance to the petitioner in the facts of the present case as there is no material to show that the respondents are evicting the petitioner without following due process of law.

8. The law relating to grant of injunction under Order XXXIX Rule 1 & 2 CPC is well settled in the case of Neon Laboratories Ltd. vs. Medical Technologies Ltd. & Ors. (2016) 2 SCC 672 . In para-6, the Apex Court held as under:-

''Before granting an ad interim injunction, the court in seisin of the litigation has to address its attention to the existence or otherwise of three aspects-

(a) whether a prima facie case in favour of the applicant has been established;

(b) whether the balance of convenience lies in favour of the applicant; and

(c) whether irreparable loss or damage will visit the applicant in the event injunctive relief is declined.''

9. The petitioner has utterly failed to establish his prima facie case. The Apex Court in the case of Kashi Math Samsthan and Anr. vs. Shrimad Sudhindra Thirtha Swamy and Anr. , AIR 2010 SC 296 held that if the plaintiff does not establish prima facie case, the rest of the two factors like balance of convenience and irreparable loss if his prayer for interim injunction in dis-allows, need not to be discussed.

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10. The challenge to the order passed by the collector by original grantee has already been dismissed. The first appeal and second appeal filed by the original grantee have also been dismissed. The petitioner is claiming his rights through original grantee. He cannot claim better title than the original grantee. The trial Court has clearly observed in para-3 of the judgment that there is no material to indicate that the respondents are taking forcible possession from the petitioner. The case of the respondent is that the possession is already taken by the State Government. The petitioner has not filed any document to show his possession on the land in question.

11. Considering the aforesaid, I do not find any illegality or perversity in the orders impugned rejecting the application for temporary injunction and dismissing the appeal.

12. Even otherwise , it is settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate Courts within its limitation. It can be exercised where the order is passed in

grave dereliction of duty and flagrant abuse of the fundamental principle of law and justice. [See. Jai Singh and another vs. MCD, (2010) 9 SCC 385 and Shalini Shetty vs. Rajendra S. Patil, (2010) 8 SCC 329].

13. Further, a Co-ordinate Bench of this Court in the case of Ashutosh Dubey and another vs. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another, 2004 (2) MPHT 14 held that supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or the jurisdiction through available is

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being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied - (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law; and (ii) a grave injustice or gross failure of justice has occasioned thereby.

14. In view of the aforesaid enunciation of law, the instant petition is devoid of merit and is hereby dismissed. The order impugned in the present writ petition passed by the Court below is upheld.

(VIJAY KUMAR SHUKLA) JUDGE soumya

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