Manipur High Court

Smt. Yogita Jain vs Shri Mahendra Kumar Jain on 20 April, 2021

                                         [1]


                    IN THE HIGH COURT OF MANIPUR
                              AT IMPHAL
                            MFA No. 1 of 2017


 1. Smt. Yogita Jain, aged about 44 years, W/o Manoj Kumar Jain,
    by profession Business, resident of Assembly road Thangal
    Bazar, P.O. Imphal, P.S. City, Imphal West District, Manipur.
 2. Smt. Puja Jain, aged about 40 years, W/o Manish Kumar Jain,
    by profession Business, resident of Assembly Road Thangal
    Bazar, P.O. Imphal, P.S. City, Imphal West District, Manipur.
 3. Smt. Pallavi Jain, aged about 38 years, W/o Mukesh Kumar
    Jain, by profession Business, resident of Assembly road
    Thangal Bazar, P.O. Imphal, P.S. City, Imphal West District,
    Manipur.
                                                          ... Appellants
                                    -Versus-

     Shri Mahendra Kumar Jain, aged about 59 years, S/o late
     Chandalmal Jain, resident of Thangal Bazar, P.O. Imphal, P.S.
     City Police, Imphal West District, Manipur.
                                                         ... Respondent

-AND-

IN THE MATTER OF:

In JUdl. Misc. Case No. 288 of 2017 Ref:- Original Suit No. 47 of 2017

Shri Mahendra Kumar Jain, aged about 59 years, S/o late Chandalmal Jain, resident of Thangal Bazar, P.O. Imphal, P.S. City Police, Imphal West District, Manipur.

... Plaintiff/ Petitioner

-Versus-

1. Smt. Yogita Jain, aged about 44 years, W/o Manoj Kumar Jain, by profession Business, resident of Assembly road Thangal Bazar, P.O. Imphal, P.S. City, Imphal West District, Manipur.

2. Smt. Puja Jain, aged about 40 years, W/o Manish Kumar Jain, by profession Business, resident of Assembly Road Thangal Bazar, P.O. Imphal, P.S. City, Imphal West District, Manipur.

MFA No. 1 of 2017 & MAF No. 1 of 2021                            Contd.../-
                                         [2]

3. Smt. Pallavi Jain, aged about 38 years, W/o Mukesh Kumar Jain, by profession Business, resident of Assembly road Thangal Bazar, P.O. Imphal, P.S. City, Imphal West District, Manipur.

With MAF No. 1 of 2021

Shri Mahendra Kumar Jain, aged about 64 years, S/o late Chandanmal Jain, a resident of Thangal Bazar, P.O. Imphal, P.S. City, Imphal West District, Manipur-795001.

... Appellant

-Versus-

1. Manoj Kumar Jain, aged about 53 years, S/o (L) Sobhag Chand Jain, a resident of Old Assembly Road Thangal Bazar, P.O. Imphal, P.S. City, District Imphal West, Manipur-795001.

2. Manish Kumar Jain, aged about 46 years, S/o (L) Sobhag Chand Jain, a resident of Old Assembly Road Thangal Bazar, P.O. Imphal, P.S. City, District Imphal West, Manipur-795001.

3. Mukesh Kumar Jain, aged about 43 years, S/o (L) Sobhag Chand Jain, a resident of Old Assembly Road Thangal Bazar, P.O. Imphal, P.S. City, District Imphal West, Manipur-795001.

4. Smt. Yogita Jain, aged about 46 years, W/o Manoj Kumar Jain, by profession Business, a resident of Old Assembly Road Thangal Bazar, P.O. Imphal, P.S. City, District Imphal West, Manipur-795001.

5. Puja Jain, aged about 43 years, W/o Manish Kumar Jain, a resident of Old Assembly Road Thangal Bazar, P.O. Imphal, P.S. City, District Imphal West, Manipur-795001.

6. Pallavi Jain, aged about 41 years, W/o Mukesh Kumar Jain, a resident of Old Assembly Road Thangal Bazar, P.O. Imphal, P.S. City, District Imphal West, Manipur-795001.

                                                     ... Respondents




MFA No. 1 of 2017 & MAF No. 1 of 2021                           Contd.../-
                                          [3]


                          B E F O R E
                HON'BLE MR. JUSTICE KH. NOBIN SINGH
For the Appellants/ respondents         ∷ Shri T. Rajendra, Advocate
For the respondent/appellant            ∷ Shri H. Nabachandra, Advocate
Date of Hearing                         ∷ 08-04-2021
Date of Judgment & Order                ∷ 20-04-2021

                           JUDGMENT & ORDER

[1]       Heard Shri T. Rajendra, learned Advocate appearing for the

appellants in MFA No.1 of 2017 and the respondents in MAF No.1 of

2021 while Shri H. Nabachandra, learned Advocate appearing for the

appellant in MAF No.1 of 2021 and the respondent in MFA No. of 2017.

[2] Since the above appeals have arisen out of a similar set of

facts, the same are being disposed of by this common judgment and

order. For the convenience and in order to avoid any confusion, the

parties in these two appeals have been described as the appellants/

respondents and the respondent/ appellant in line with the cause title as

mentioned in the Misc. First Appeal being MFA No.1 of 2017.

[3.1] The MFA No.1 of 2017 preferred by the appellants/

respondents, is directed against the judgment and order dated

05-08-2017 passed by the learned Civil Judge, Senior Division, Imphal

West (hereinafter referred to as "the learned Civil Judge") in Judl. Misc.

Case No. 288 of 2017 in Original Suit No.47 of 2017. The respondent/

appellant as the plaintiff filed the said O.S No.47 of 2017 praying for a

decree for the recovery of possession of the suit premises; a decree for

the declaration that the sale deed dated 15-01-2016 is void and a decree

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[4]

for permanent injunction restraining the appellants/ respondents from

entering the suit land.

[3.2] The averments made in the plaint are, in short, that in the last

part of December, 2015, the respondent/ appellant borrowed a sum of

Rs.45,00,000/- from the appellants/ respondents by offering a mortgage

of the suit land, for which he signed on some papers with the request to

prepare a mortgage deed and left for Jaipur and returned on 23-01-2016.

On his return, he was informed by the appellants/ respondents that the

mortgage had been completed and registered, to which he remained

contented with the intention to repay the amount. However, on

09-06-2017, the appellants/ respondents told him to vacate the suit land.

[3.3] On a discreet enquiry, the respondent/ appellant discovered

that a mutation order dated 02-02-2016 in Mutation Case No.158/SDC

had been passed on the strength of a fabricated sale deed and being

aggrieved by it, he filed a revision being Misc. Case No.41 of 2017 along

with an application for condonation of delay in filing thereof.

[3.4] The respondent/ appellant further discovered that in order to

evict him from the suit land on the allegation that he was an unauthorised

occupant, an application was submitted by the appellants/ respondents to

the Deputy Commissioner, Imphal West who directed the SDM, Imphal

West to make an enquiry and submit a report thereof. On 22-06-2017, the

respondent /appellant filed a writ petition being WP(C) No.451 of 2017

before this Court challenging the proceedings initiated by the Deputy

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[5]

Commissioner, Imphal West. On the same day, a copy of the order dated

19-06-2017 passed by the SDM under Section 133 of Cr.P.C was served

upon him which directed him to vacate the suit land and remove the

structure by 25-06-2017. Being aggrieved by the said order, the

respondent/ appellant filed a Cril. Revision No.8 of 2017 wherein this

Court passed an order dated 30-06-2017 to the effect that till 05-07-2017,

he should not be evicted from the site in issue which was extended till

07-07-2017 when this Court ordered that the SDM might proceed with the

proceedings but no demolition should be undertaken without the leave of

the Court.

[3.5] In the meantime, on 05-07-2017, the appellants/ respondents

with about 20/30 persons took the law in their hands; stormed into the suit

land; destroyed and stole valuable articles. During the whole night, they

continued the crime by locking the door and by putting ply board. Thus,

the appellants/ respondents forcibly evicted the respondent/ appellant

from some portions of the building which are described as Schedule-C

and from that night, the appellants/ respondents had taken forcible

possession of the suit land. The respondent/ appellant submitted a

complaint to the DGP, Manipur with a copy endorsed to the

Superintendent of Police, Imphal-West but to no effect which compelled

his wife to approach the Hon'ble Chief Minister, Manipur by way of a

representation dated 07-07-2017. But no action was taken nor was an

FIR registered by the police against the appellants/ respondents. The

respondent/ appellant approached this Court by filing a Cril. Petition

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[6]

No.17 of 2017 wherein this Court vide its order dated 14-07-2017 directed

the police to look into the matter and as the police failed to take any

action, a contempt case (Cril) No.1 of 2017 was filed by him

[3.6] Along with the suit, the respondent/ appellant filed an

application being Judl. Misc. Case No. 288 of 2017 for grant of mandatory

ad-interim injunction order to restore possession of the suit premises in

his favour as on 05-07-2017 and also to restrain the appellants/

respondents from entering into the suit premises; disturbing the peaceful

possession and enjoyment of the same by him and executing any sale

deed, gift deed or mortgage deed in respect of the suit premises till the

disposal of the suit.

[4.1] The Appellants/ respondents contested the suit and misc. case

by filing written statement and written objection respectively wherein they

have contended that the suit land and the structure standing thereon

were transferred by the respondent/ appellant by executing a registered

sale deed dated 15-01-2016 and that the respondent/ appellant who is

the paternal uncle of the husbands of the appellants and his family

members were allowed to stay for some time in the suit land on

humanitarian ground. It has further been contended by them that at any

point of time, the respondent/ appellant never borrowed a sum of

Rs.45,00,000/- (Rupees forty five lakhs) from them and never offered the

suit land for mortgaging as a security for repayment of the loan amount.

The Imphal Municipal Corporation vide its notice dated 30-06-2017

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[7]

ordered for demolition of the building of the appellants/ respondents

within a period of 30 days from the date of the receipt of it by strictly

observing the conditions mentioned therein. The Executive Engineer,

Building Division No.I1, PWD, Manipur vide a report dated 05-07-2017

informed the SDO, Imphal-West that the building was leaning towards

Hotel Yaiphaba, Thangal Bazar and gave an observation that the

inclination had also been gradually increased after the earth quake

occurred on 04-01-2016 and as the conditions of the existing building

were structurally very unsafe, the only option was to demolish the existing

building by observing the prevalent of bye-laws of the Imphal Municipal

corporation.

[4.2] The learned Civil Judge after hearing the parties, was pleased

to pass a judgment and order dated 05-08-2017 in Judl. Misc. Case

No.288 of 2017 ordering that the respondent/ appellant be restored the

possession of the suit premises as it was on 05-07-2017 by evicting the

appellants/ respondents therefrom and that the appellants/ respondents,

be restrained from entering into the suit premises till disposal of the suit.

Being aggrieved by the judgment and order dated 05-08-2017 of the

learned Civil Judge, the appellants/ respondents filed a Misc. Civil Appeal

(MCA) Case No.14 of 2017 before the District Judge, Imphal West which

passed an order dated 07-08-2017 staying the judgment and order dated

05-08-2017 passed by the learned Civil Judge. However, the learned

District Judge vide its order dated 09-08-2017 returned the appeal to the

appellants/ respondents to approach this Court, if so desired on the

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[8]

ground that it had no pecuniary jurisdiction to entertain the appeal and

accordingly, the interim stay order granted by it, was vacated.

[4.3] Having no alternative, the appellants/ respondents, preferred

this appeal against the judgment and order dated 05-08-2017 on the

inter-alia grounds that the learned Civil Judge failed to appreciate both

the law and the facts; that the learned Civil Judge came to the conclusion

erroneously that the respondent/ appellant was occupying the building

standing inside the suit land before the night of 05-07-2017; that the order

dated 19-06-2017 passed by the learned SDM had nothing to do with the

present case, as a case being Cril. revision petition No.8 of 2017 was

then pending before this Court; that this Court while passing the order

dated 10-07-2017 had not given any protection regarding the possession

of the building by the respondent/ appellant, rather this Court directed not

to demolish the building without the leave of this Court and that if a

mandatory injunction was to be granted on an interlocutory application, it

could have been granted only to restore the status quo and not to

establish a new state of things, differing from the state which existed at

the date when the suit was instituted.

[5] On 14-08-2017, this Court while issuing notice to the

respondent/ appellant, directed that this appeal be listed on 16-08-2017

for consideration of interim prayer. On 16-08-2017, this Court after

hearing the counsels appearing for the parties, passed an order staying

the operation of the judgment and order dated 05-08-2017 on the ground

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[9]

that the directions contained therein that the possession of the suit land

be restored to the respondent/ appellant as it was on 05-07-2017 and that

the appellants/ respondent be restrained from entering into the suit land,

would tantamount to granting the main relief.

[6.1] During the pendency of the MFA No.1 of 2017, this MAF No.1

of 2021 was preferred by the respondent/ appellant which is directed

against the judgment and order dated 08-12-2020 passed by the learned

Civil Judge in Judl. Misc. Case No.230 of 2020 in O.S No.40 of 2020.

This suit was filed by the respondent/ appellant under Section 60 of the

Transfer of property Act for a decree of redemption allowing him to repay

the sum of Rs.45,00,000/- (Rupees forty five lakhs) which was borrowed

by him from Shri Shobhag Chand Jain, by the amount Rs.1,00,00,000/-

(Rupees one crore); a decree for giving direction to the competent

authority to record his name in the records of rights in respect of the suit

land and a decree for permanent injunction restraining the appellants/

respondents from disturbing his peaceful possession of the suit land.

[6.2] According to the respondent/ appellant, the immediate cause of

filing the suit was that after the order dated 16-08-2017 having been

passed by this Court in MFA No.1 of 2017, the relationship between them

became completely strained and fighting took place between them on

three occasions. Firstly, on 30-08-2020, when the respondent/ appellant

was at home with some of his friends, the appellants/ respondents along

with some persons came to his house and started fighting resulting injury

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[10]

on his part and his wife. Complaints were lodged by both the parties with

the result that the respondent/ appellant and his wife along with some

unknown persons were arrested by the police but they were released on

bail on 02-09-2020 by the CJM, Imphal West. Secondly, on 14-09-2020,

there was a fight between them, because of which the respondent/

appellant filed a complaint before the CJM, Imphal West and at about the

same time, the appellants/ respondents filed an application for

cancellation of the bail granted to the respondent/ appellant. As the

respondent/ appellant and his wife were out of Manipur, a police report

in that regard was submitted. Thirdly, another fight took place on

08-11-2020 which prompted the respondent/ appellant to submit an

application to the OC, Imphal City by way of speed post but no action was

taken thereon.

[6.3] Along with the said suit, the respondent/ appellant filed an

application being Judicial Misc. Case No.230 of 2020 for grant of

temporary injunction restraining the appellants/ respondents from trying to

dispossess him from the suit land. The learned Civil Judge vide its order

dated 08-12-2020 considered and disposed of it by observing that it is too

early for it to decide the conflicting rights of the parties, as two suits are

still pending before it. So far the balance of convenience and the

irreparable injuries are concerned, the same are not seen to be in favour

of the respondent /appellant for the reason that the order dated 05-08-

2017 passed by it, did restore the possession of the suit land but it was

stayed by this Court vide order dated 16-08-2017. It has further been

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[11]

observed that given the danger to human life at hand, it cannot help but

marvel at the tenacity of the parties in claiming the possession of unsafe

building which could collapse at any time and cause serious injuries and

fatalities.

[6.4] Against the order dated 14-01-2020 of the learned Civil Judge,

the respondent/ appellant prefer a MCA No.10 of 2020 before the District

Judge, Imphal West which was admitted on 15-12-2020. After the

necessary action towards the process being taken by the respondent/

appellant, on 14-01-2021 the District Judge passed an order stating that it

had no pecuniary jurisdiction with the advice that he might prefer an

appeal before this Court. A certified copy of the order dated 14-01-2021

was applied on 19-01-2021 which was delivered on 01-02-2021 and thus,

on 18-02-2021, the respondent/ appellant could file the present appeal

before this Court.

[7.1] It has been submitted by Shri T. Rajendra, learned Advocate

appearing for the appellants/ respondents that the learned Civil Judge

was not justified, when it passed the impugned order under the provisions

of the Order 39 Rule 1 of CPC and that the learned Civil Judge committed

an error while passing the impugned order which would amount to

granting the final relief without the trial being conducted by it. In support

of his contention, he has relied upon the decisions rendered by the

Hon'ble Supreme Court as well as the Hon'ble Gauhati High Court. The

first decision is the one rendered in Union of India & ors Vs. M/S

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[12]

Modiluft Ltd, AIR 2003 SC 2218, wherein the Hon'ble Supreme Court

held:

"16. Nextly, we notice that the High Court has granted a relief by way of an interim order which we think it could not have done at the interim stage for more than one reason. The writ petition in question was filed challenging an order made by the Government in revision. The subject-matter of the said petition pertains to the liability of the respondent to pay the tax. In the said writ petition, the respondent has sought an additional prayer by way of a direction to the respondent to grant a NOC to relaunch its airline operations. We do not want to say at this stage that such joinder of two separate causes of actions could be maintained in a writ petition like the one that is filed before the High Court by the respondent. It should be noticed that the authorities empowered to permit relaunching of the airline's operations were not before the Court which we are told is the Department of Civil Aviation. Be that as it may, since the relief as termed in the writ petition being a final relief, we think the same could not have been granted by the High Court at an interlocutory stage. But the learned counsel for the respondent contends that the said prayer is only an incidental prayer because the Civil Aviation authorities have refused to grant necessary permission to relaunch the airline's operations to the respondent only because the customs department which is a respondent before the High Court, has refused to give a NOC therefore in effect what is sought for before the High Court is only a direction to the customs authorities to issue a NOC which in turn may be used by the respondent to obtain the required permission from the competent authorities to relaunch their airline operations. Be that as it may, even accepting the argument of respondent, it is to be noticed that even a NOC from the customs authorities can be directed to be issued by the High Court only after it comes to the conclusion that the amount as determined by it has been paid by the respondent MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[13]

and not by an interim order otherwise it would amount to the granting of a final relief in favour of the respondent who has suffered adverse orders from the authorities below, even before the writ petition is finally decided, and in the event of the ultimate dismissal of the writ petition the respondent would gain an undue advantage in spite of its default and might even give rise to other questions in equity including rights of the third party."

Secondly, in Bruce Vs. Silva Raj & ors, 1987 (Supp) SCC

161, the Hon'ble Supreme Court held that it is well settled that injunction

can be obtained on the basis of possession. Thirdly, in Shri Sishir Das

Vs. State of Tripura & ors, (1986) 2 GLR 83, the Hon'ble Gauhati High

Court had agreed with the law laid down by the Calcutta High Court and

Rajasthan High Court to the effect that injunction is granted only to

restore status quo and not granted to establish a new state of things,

differing from the state which existed at the date when the suit was

instituted. Fourthly, in Brahmaputra Byam Sangha & anr. Vs. Shrew

Prasad Nimadia & ors., (1993) Supp. (1) Gauhati Law Reports 119,

the Hon'ble Gauhati High Court has held that the temporary injunction

can be granted under the provisions contained in Order 39 Rule 1 and 2

of CPC but a party insisting on injunction must first establish his right to

the property and that where in a situation, the defendant threatens to

dispossess the plaintiff or otherwise cause injury to him in relation to a

property in a suit, injunction can be granted.

[7.2] On the other hand, relying upon the decisions rendered by the

Andhra Pradesh High Court and Rajasthan High Court, Shri H.

MFA No. 1 of 2017 & MAF No. 1 of 2021                              Contd.../-
                                         [14]

Nabachandra, learned Advocate appearing for the respondent/ appellant

has supported the judgment and order dated 14-01-2020 passed by the

learned Civil Judge. In Habeeb Khan & ors. Vs. Valasula Devi & ors.,

AIR 1997 AP 53 wherein the validity and correctness of a sale deed was

one of the subject matters in issue, the Hon'ble Andhra Pradesh High

Court held that the sale deed Ex.B/3 was in reality an anomalous

mortgage. In Niranjan Singh & anr. Vs Rajesh Kumar, 2013(4) CCC

369 (Raj.), wherein a son filed a suit against his father, the Rajasthan

High Court held that since the son has sought specific performance of the

agreement allegedly executed by his father, there are triable issues and

that it would be in the interest of justice, if the father is restrained from

transferring or selling the property in question pending the suit.

[8] It is not in dispute that the OS No.47 of 2017 was filed by the

respondent/ appellant against the appellants/ respondents under Section

6 and 31 of the Specific Relief Act, 1963 for a decree for the recovery of

possession of the suit premises; a decree for the declaration that the sale

deed dated 15-01-2016 is void and a decree for a permanent injunction

restraining the appellants/ respondents from entering into the suit land

and from disturbing the peaceful possession and enjoyment of the same

by him. The reason for filing the suit was that while the respondent/

appellant was in possession of the suit land, the appellants/ respondents

had forcibly taken possession thereof. The averments made in his plaint

also have shown that the respondent/ appellant was not in possession of

the suit land at the time, when the suit was filed by him. Denying the

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[15]

averments made in his plaint, it has been stated by the appellants/

respondents in their written statement that the suit land was purchased by

them on the basis of a sale deed dated 15-01-2016 duly executed and

registered and that while they were in possession, they had allowed the

appellant/ respondent being their uncle, to stay therein.

[9] The application being Judl. Misc. Case No.288 of 2017 under

Order 39 Rule 1 of CPC was filed along with the said suit praying for

issuing a mandatory ad-interim injunction to restore the possession of the

suit premises in favour of the respondent/ appellant as on 05-07-2017

and to restrain the appellants/ respondents from entering into the suit

premises. Order 39 Rule 1 of CPC reads as under:

"1. Cases in which temporary injunction may be granted.- Where in any suit it is proved by affidavit or otherwise -

(a) That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) That the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) That the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders."

MFA No. 1 of 2017 & MAF No. 1 of 2021                                  Contd.../-
                                         [16]

This order of CPC confers power upon the Court to grant a

temporary injunction in a suit where any of the circumstances as

mentioned therein is proved by affidavit or otherwise. An injunction is a

specific order of the court forbidding the commission of a wrong

threatened or the continuance of a wrongful course of action already

begun. It has been held by the Hon'ble Supreme Court in a catena of

decisions that while passing an interim order of injunction under Order 39

Rule 1 & 2, the Court is required to consider the following:

(a) Whether there is a prima facie in favour of the plaintiff;

(b) Whether the balance of convenience is in favour of passing the

order of injunction and

(c) Whether the plaintiff will suffer irreparable injury if an order of

injunction would not be passed as prayed for.

The grant of injunction is a discretionary relief. The principles

on which injunctions can be issued are well settled. The power to grant

injunction being discretionary, it shall be used by the Court judicially and if

necessary, sparingly in accordance with the need of the facts of each

case.

[10] From the suit instituted by the respondent/ appellant, it is quite

evident that there are three prayers made therein, while there two prayers

in the application, filed along with it, under the provisions of Oder 39 Rule

1 of CPC-one, to issue a mandatory ad-interim injunction to restore the

possession of the suit premises in his favour as on 05-07-2017 and two,

to restrain the appellants/ respondents from entering into the suit

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[17]

premises. The second prayer can be granted only after the first prayer

having been granted by the Court. The first prayer is to grant a mandatory

injunction under Order 39 Rule 1 of CPC which provides for grant of

temporary injunction in respect of three circumstances-one, where the

property in dispute is in danger of being wasted, damaged or alienated by

any party of the suit; two, where the defendant threatens or intends to

remove or dispose of his property with a view to defrauding his creditors

and three, where the defendant threatens to dispossess the plaintiff or

otherwise cause injury to him in relation to the property in dispute. The

case of the respondent/ appellant as aforesaid does not fall under any of

the above circumstances. It is neither the case of the respondent/

appellant that the suit land is in danger of being alienated by the

appellants/ respondents nor is it that the appellants/ respondents have

threatened to dispossess him of the suit land. The case of the

respondent/ appellant, in short, is that he was the owner in possession of

the suit land which is mortgaged to the appellants/ respondents as a

security for repayment of the loan amount which he borrowed from them

and the appellants/ respondents had taken the suit land forcibly from him.

On the other hand, the case of the appellants/ respondents is that they

purchased the suit land from the respondent/ appellant, for which the sale

deed dated 15-01-2016 was executed by him, the validity and

correctness of which is under challenge in the suit and is yet to be

considered and decided by the learned Civil Judge. The first suit was filed

by the respondent/ appellant for recovery of possession of the suit land.

MFA No. 1 of 2017 & MAF No. 1 of 2021                             Contd.../-
                                         [18]

While the first suit is pending, he did file the second suit for redemption of

mortgage. Both the suits are pending for trial before the learned Civil

Judge. The mandatory injunction as claimed by the respondent/ appellant

in the application, is similar to the first prayer made in the plaint. Without

the trial being conducted and the issues involved therein being decided

by the learned Civil Judge, the first prayer made in the plaint cannot be

granted with the result that a mandatory injunction cannot be granted at

all. In other words, this Court is of the view that the grant of such a

mandatory injunction is nowhere contemplated under the provisions of

Order 39 Rule 1 of CPC. The power of the Court for grant of mandatory

injunction is provided under the provisions of Section 39 of the Specific

Relief Act, 1963 subject to the consideration of the elements mentioned

therein but the same have not been invoked by the respondent/ appellant

while filing the application. However, the learned Civil Judge while

passing the impugned judgment and order, has ordered that the

respondent/ appellant be restored the possession of the suit premises as

it was on 05-07-2017 by evicting the appellants/ respondents therefrom

and that the appellants/ respondents be restrained from entering into the

suit premises till disposal of the suit, which appears to be incorrect and

hence, is not sustainable in law. In other words, the learned Civil Judge

has no power under Order 39 Rule 1 of CPC to grant such a mandatory

injunction, as prayed for in the application. On top of that, the learned

Civil Judge has committed an error for the reason that the mandatory

injunction granted by it would amount to granting the final relief as has

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[19]

been held by the Hon'ble Supreme Court in Union of India Vs. Modiluft

Ltd., (2003) 6 SCC 65 referred to hereinabove; UP Junior Doctor's

Action Committee Vs. Dr. B. Sheetal Nandwani, 1992 Supp (1) SCC

680; UP Vs. Ram Kushi Devi, (2005) 9 SCC 733 etc., as it is not known

as to when the trial would be completed by the learned Civil Judge. The

decisions relied upon by the counsel appearing for the respondent/

appellant will have no application, as the facts of that cases are not

identical to that of the present case. Moreover, this Court is not bound by

any decision rendered by any other High Court except its persuasive

value.

[11] On 08-04-2021, when the above appeals were being heard, it

was brought to my notice an order dated 18-03-2021 passed by this

Court in Cril. Revision petition No.5 of 2021 which appears to have been

filed by the respondent/ appellant questioning the conditional order date

05-03-2021 passed by the SDM, Imphal-West. By the said order dated

18-03-2021 of this Court, it has been directed that status quo as on that

date be maintained by the parties. But it is not clear as to whether the

status quo directed to be maintained by the parties is in relation to the

structure standing in the suit land, 75% of which is stated to have been

demolished in terms of the order dated 05-03-2021 of the SDM or in

relation to the possession of the suit land. If the status quo as directed by

this Court is confined to the demolition of the structure standing in the suit

land, it is all right and it may not give rise to any problem for the present.

However, it is open to the parties to approach this Court seeking a

MFA No. 1 of 2017 & MAF No. 1 of 2021 Contd.../-

[20]

clarification thereon so as to avoid any legal complication in the matter.

So far as the possession of the suit land is concerned, it may be noted

that OS No.47 of 2017 was instituted by the respondent/ appellant before

the learned Civil Judge which passed the judgment and order dated

05-08-2017 directing that the possession of the suit land be restored to

him and that the appellants /respondents be restrained from entering into

the suit land. The fact that the said suit was filed by the respondent/

appellant for the recovery of possession of the suit land, has shown prima

facie that he was not in possession of the suit land at the time when the

suit was filed by him. The said judgment and order dated 05-08-2017 of

the learned Civil Judge was stayed by this Court vide its order dated

16-08-2017 with the result that the appellants/ respondents would be

deemed to have been in possession of the suit land.

[12] In view of the above and for the reasons stated hereinabove,

the MAF No.1 of 2017 is allowed and consequently, the judgment and

order dated 05-08-2017 passed by the learned Civil Judge is quashed

and set aside with the following directions:

(a) The learned Civil Judge, Senior Division, Impha-West shall

proceed with the trial of the Original Suit No.47 of 2017 and

Original Suit No.40 of 2020, without any further delay, after the

receipt of the original records thereof from this Court and that

too, after proper notice being given to the parties and their

Advocates;

MFA No. 1 of 2017 & MAF No. 1 of 2021                              Contd.../-
                                         [21]

(b) The Registry of this Court is directed to return the original

records, pertaining to O.S No.47 of 2017 received vide office

note dated 06-09-2017 of the Registry, to the learned Civil

Judge, Senior Division, Imphal-West at the earliest possible;

(c) In view of this judgment and order allowing the MFA No.1 of

2017, the MAF No.1 of 2021 stands disposed of;

(d) It is open to the parties to move the learned Civil Judge, Senior

Division, Imphal-West for passing any appropriate interim

order/(s) including any order relating to the possession of the

suit land in accordance with law and if required, it can be done

so on the basis of the report of a local commission appointed

by the Civil Judge for the purpose.