Uttarakhand High Court
Unknown vs Sunil Bhagat. In The Suit In ... on 21 July, 2022
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
AO No.267 of 2022
Hon'ble Sharad Kumar Sharma, J.
Mr. Pulak Agarwal, Advocate for the
appellant.
The appellant before this Court is a defendant
in Civil Suit No.25 of 2021 Panchwati Kutir vs.
Sunil Bhagat. In the suit in question
plaintiff/respondent, herein had filed an application
under Order 39 Rule 1 & 2 of the C.P.C. being
Paper No.6C-1 praying for grant of a temporary
injunction, as against the act of raising alleged
unauthorized construction by the defendants over
the disputed property.
Since as per the plaint averments the property
was not identifiable and in order to facilitate the
Court to come to a rightful conclusion, about
considering the aspect of prima-facie case, while
deciding an application under Order 39 Rule 1 & 2
of the C.P.C. the learned trial court had invoked its
powers under Order 39 Rule 7 of the C.P.C. by
calling for a report of investigation by way of
conducting an inspection of the disputed property
and consequently a report was submitted being
paper number 47-Ga.
The same was opposed by the defendant by
filing an application Paper No.51-Ga submitting
thereof, that the said report may not be read in
evidence, in fact this expression given in para 7 of
the findings recorded by the Court, this Court is of
the view, that any report, which is submitted under
Section 39 Rule 7 of the C.P.C. is exclusively
confined for consumption for the purposes of
enabling the Court to decide the application under
Order 39 Rule 1 & 2 of C.P.C. It is not to be read
for the purposes of deciding the regular suit and that
is why the Legislature has rightfully use the word
"inspection" and inspection cannot be read as to be
synonymous to a "Commission" contemplated
under Order 22 Rule 9 of C.P.C.
Hence this report would be confined to be
read only for the purposes of deciding the
application under Order 39 Rule 1 & 2 of C.P.C.,
only based on the Commission's report the learned
trial court by an order of the like date i.e. dated
10.06.2022 had proceeded to grant an injunction by
way of direction of restraining, to raise the
construction over the disputed property lying in
village Dhalwala, Patti Dhamandsu, earlier Tehsil
Devprayag, present Tehsil Narendranagar, District
Tehri Garhwal, in relation to a land lying in Khasra
No.58/16 having an area of 280 feet and 194 feet in
width.
In fact the nature of injunction, which has
been granted by the court from restraining the
interference, encroachment or excavating the
property, it goes in consonance to the principles laid
down in para 10 of the judgment of Hon'ble Apex
Court as rendered in (2004) 8 Supreme Court
Cases 488 Maharwal Khewaji Trust (Regd.)
Faridkot vs. Baldev Dass. Para 10 of the said
judgment is extracted hereunder:-
"10. Be that as it may, Mr. Sachhar is right in
contending that unless and until a case of
irreparable loss or damage is made out by a
party to the suit, the court should not permit
the nature of the property being changed
which also includes alienation or transfer of
the property which may lead to loss or
damage being caused to the party who may
ultimately succeed and may further lead to
multiplicity of proceedings. In the instant
case no such case of irreparable loss is made
out except contending that the legal
proceedings are likely to take a long time,
therefore, the respondent should be permitted
to put the scheduled property to better use.
We do not think in the facts and
circumstances of this case, the lower
appellate court and the High Court were
justified in permitting the respondent to
change the nature of property by putting up
construction as also by permitting the
alienation of the property, whatever may be
the condition on which the same is done. In
the event of the appellant's claim being found
baseless ultimately, it is always open to the
respondent to claim damages or, in an
appropriate case, the court may itself award
damages for the loss suffered, if any, in this
regard. Since the facts of this case do not
make out any extraordinary ground for
permitting the respondent to put up
construction and alienate the same, we think
both the courts below, namely, the lower
appellate court and the High Court erred in
making the impugned orders. The said orders
are set aside and the order of the trial court is
restored".
In view of the matter the protection of the
disputed property during the pendency of the
principal lis inter-se between the parties is required
to be maintained till their regular rights are
respectively decided in the pending lis.
Hence while dismissing this Appeal From
Order, it would be with a slight clarification, that
the inspection report submitted, under Order 39
Rule 7 of the C.P.C i.e. Paper No.47 Ka, would be
exclusively confined to be read only for the
purposes of consideration of Order 39 Rule 1 & 2
of C.P.C, which has already been done by the
impugned order of 10.06.2022. It's finding will not
be borrowed for the purposes of deciding the
principal suit, which has to be decided
independently as per law.
Subject to the aforesaid exception and
looking to the nature of injunction, since it goes in
consonance to the spirit of the ratio laid down by
the Hon'ble Apex Court; as well as the provisions
of Order 39 Rule 1 & 2 of C.P.C. itself which
intends to preserve the property from being
damaged or alienated, the injunction granted by the
learned trial court, cannot be faulted of and that too
particularly in the light of the findings recorded in
para 8 & 12 of the impugned judgment.
Hence the Appeal From Order is dismissed
subject to the aforesaid exception, that the
inspection report of 49 Ka, its utility has been
exhausted as soon as Order 39 Rule 1 & 2 of
C.P.C. has been decided by the impugned order of
10.06.2022.
(Sharad Kumar Sharma, J.)
21.07.2022
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