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RAJU SAYAL ETC. versus SMT.JATINDER WALIA

High Court of Punjab and Haryana, Chandigarh

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Raju Sayal etc. v. Smt.Jatinder Walia - CR-6144-2004 [2006] RD-P&H 8302 (10 October 2006)

C.R.No.6144 of 2004 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Civil Revision No.6144 of 2004

Date of Decision: 15 - 9 - 2006

Raju Sayal etc. .......Petitioners

v.

Smt.Jatinder Walia ........Respondent

CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.V.K.Jain, Sr.Advocate with

Ms.Divya Sharma, Advocate

for the petitioners.

Mr.A.K.Chopra, Sr.Advocate with

Ms.Shaibya Sood, Advocate

for the respondent.

***

P.S.PATWALIA, J.

The present revision petition challenges orders dated 8.11.2004 passed by the learned Civil Judge (Jr.Division), Ambala Cantt. as also order dated 7.12.2004 passed by the learned Additional District Judge, Ambala deciding application filed under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. The learned trial Court dismissed the application and further directed the plaintiffs to put the defendant in possession of the house in question within one month from the date of order. In first appeal, the learned first Appellate Court found no illegality in the order passed by the learned trial Court and hence dismissed the appeal. Aggrieved the plaintiffs have filed the present revision petition.

The plaintiffs filed a suit for permanent injunction restraining the C.R.No.6144 of 2004 [2]

defendant, respondent in this revision petition, from interfering in their peaceful possession of the first floor of House No.6345, Punjabi Mohalla, Ambala Cantt.

The case set up was that father of the plaintiffs, Shri Rajinder Kumar Syal was owner of the said house. He had earlier been married to one Mrs.Joyace Ann Syal and the plaintiffs are the sons of Shri Rajinder Kumar Syal and Mrs.Joyace Ann Syal. During the life time of their father, one Mrs.Jatinder Walia, defendant in the suit, started having relations with him. The plaintiffs contended that their could not be any valid or legal relationship between their father and Mrs.Jatinder Walia as their mother the legally wedded wife was still alive and marriage between the two was never dissolved. The plaintiffs therefore contended that relations between the aforementioned were illegal and Mrs.Jatinder Walia has no concern of any kind with the property of Shri Rajinder Kumar Syal. The plaintiffs have been living in the house in dispute since their birth. By a registered will dated 15.2.1982 their father bequeathed his entire property to the plaintiffs which included the house in dispute. Shri Rajinder Kumar Syal died on 9.5.1999 and thereafter the plaintiffs are living in the property in dispute as its absolute owners. The defendant had nothing to do with the suit property and was a resident of Chandigarh and living there. About a month prior to the filing of the suit, the defendant started administering threats to the plaintiffs to dispossess them forcibly from the house in dispute. On 23.7.2004 she tried to enter the house forcibly.

Consequently a complaint was filed with the police against the defendant. It is in these circumstances that the plaintiffs filed the suit for permanent injunction restraining the defendant from interfering in their peaceful possession over the property. Along with the suit an application for temporary injunction was also filed.

The defendant contested the suit. It is her case that in fact the plaintiffs were residing in a separate house No.80 at Arya Nagar, Ambala Cantt.

along with their families since 1982 and not in the house in dispute. She stated C.R.No.6144 of 2004 [3]

that she had married Shri Rajinder Kumar Syal in July, 1979 and since then was living in the suit property along with her husband upto his death in May, 1999.

Even after his death, she continued to reside in the house along with her brother.

She further contended that in fact her husband was never married to Ms.Joyace Ann Martin. The plaintiffs were the illegitimate sons of her husband. Ms.Joyace Ann Martin used to work as a maid servant when she developed illicit relations with her husband. She further contended that no will was executed by her husband in favour of the plaintiffs. She further stated that she lived in the house in dispute upto July, 2004. Her house in Chandigarh which was on rent with tenants was vacated in May, 2004. It is after that date that she along with her daughter temporarily shifted to that house for better education of her daughter at Chandigarh. She stated that on 23.7.2004 she locked the house in Ambala and went to Chandigarh. It is thereafter that the plaintiffs illegally broke open the locks of the house and put their locks on the same. She reported the matter to the police but the local police in connivance with the plaintiffs did not take any action in the matter. She prayed for dismissal of the suit as also the application for interim injunction. It may be stated here that she had also filed an application under Order XXXIX Rule 4 of the Code of Civil Procedure for vacation of ex parte order of status quo and sought immediate restoration of the possession of the house in question.

The suit was filed on 26.7.2004. On 11.8.2004 status quo order was granted by the trial Court which was, however, vacated after hearing counsel for both the parties on 8.11.2004.

Before the trial Court to prima facie prove her possession, the defendant produced a list of documents showing her place of residence as the house in dispute and of the plaintiffs as House No.80, Arya Nagar, Ambala Cantt.

On the other hand the plaintiffs could just produce a cancelled passport besides a death certificate of Shri Rajinder Kumar Syal about whose place of residence there C.R.No.6144 of 2004 [4]

is no dispute. The trial Court noticed the documents produced by the parties as hereunder:-

"21. According to the plaintiffs, they have been living in the house in dispute since their birth, but they have just produced a cancelled Passport besides death certificate of Shri Rajinder Sayal about whose place of residence there is no dispute. On the other hand, the defendant has produced lot of documents showing her place of residence as 6345, Punjabi Mohalla and the plaintiffs' place of residence as 80, Arya Nagar. There is voter list, telphone bills, copy of bank account of Mamta Sayal, Victoria Sayal and Raju Sayal and a letter from Headmistress Kharga Nursery School. In all the documents, the plaintiffs have been shown as residents of 80, Arya Nagar.

22. The defendant has placed a bill of Mobile Phone from 06.04.2004 to 05.05.2004, statement of account in HDFC Bank from 01.10.2003 to 31.12.2003, copy of Ration Card, electricity bills upto April 2004, statement of Deanna Bank from 01.01.2000 to 19.08.2004, copy of Passport of Canara Bank, copy of Cash Memo issued to the defendant by Kapil Gas Service, premium receipt of life insurance, copy of National Insurance Co. Limited and I-Card and Driving Licence etc. In all these documents, the defendant has been shown to be the resident of 6345, Punjabi Mohalla. There is a Transfer Certificate of Sabina Sayal D/O Jatinder Sayal which was issued on 28.05.2004. This Certificate shows that Sabina Sayal studied in the School from 1990 to 2004." Relying on these documents it is concluded by the trial Court that there was over whelming evidence which left no doubt about the possession of the defendant over the house in dispute. In fact before the trial Court even counsel for the plaintiffs C.R.No.6144 of 2004 [5]

stated that the defendant had lived in the house till July, 2004. This is recorded in para 15 which is as hereunder:-

"15. The counsel for the plaintiffs argued that the defendant was concubine of Shri Rajinder Sayal and was living with him in house in question. She lived till July, 2004. He asserted that she was not the wife of Shri Rajinder Sayal, therefore, her position could not be more than that of a licensee. ...."

On the basis of the above, the trial Court has recorded a firm finding that the defendant was in possession of the house upto July, 2004 and she locked the house on 24.7.2006 and went to Chandigarh. It has also been found that in her absence the plaintiffs broke open the door and entered possession. Thereafter the plaintiffs moved an application before S.H.O.,Police Station Ambala Cantt. to the effect that the defendant was threatening them. They then filed the suit for protecting their possession. The trial Court has clearly recorded that they had broken open the lock and illegally occupied the same and then filed the suit on 26.7.2004. This finding is recorded as hereunder:-

"24. This authority is not applicable to the facts of the case because firstly the facts of the cited authority are absolutely different from the facts of the present case and secondly, the plaintiffs have themselves admitted the possession of the defendant till July 2004, after which, they stated that she vacated the house in question on her own accord.

The plaintiffs have not mentioned whether after vacating the house, she put her own lock or she surrendered the possession to the plaintiffs. The plea of the defendant is that she locked the house on 23.07.2004 and went to Chandigarh and in her absence, the plaintiffs broke open the door. The plea of the defendant finds support from the evidence on record. On 23.07.2004, the plaintiffs moved an application to the SHO, P.S. Ambala Cantt. To the effect that the C.R.No.6144 of 2004 [6]

defendant was threatening them. Had the defendant surrendered the possession to the plaintiffs, she would not have contested the suit and there would have been no occasion for the plaintiffs to move the application to the Police. In the application, they had mentioned themselves to be the residence of house in question. This clearly shows that they had broken open the door of the house in question and illegally occupied the same and filed the present suit on 26.07.2004 " (emphasis supplied)

It is on this conclusion that the application for interim injunction filed by the plaintiffs was declined. Since the defendant had been forcibly dispossessed, the plaintiffs were directed to put the defendant in possession of the house in question within one month from the date the trial Court passed the order. These findings of the trial Court have been affirmed by the lower Appellate Court. The lower Appellate Court also found that after 23.7.2004 the plaintiffs broke open the lock of the house in dispute, threw away the goods of the defendant and took forcibly possession of the same. It is therefore that the appeal was dismissed. The relevant observations of the lower Appellate Court are as hereunder:- ".......A perusal of the documents, produced by the defendant on the file of this, which have been referred to by the learned Counsel for the respondent/defendant, shows that defendant Jatinder Sayal along with her daughter Sabina Sayal had been residing on the first floor of the house in dispute. It appears that the respondent/defendant and her daughter along with some household goods had shifted to Chandigarh on 23.07.2004, after leaving remaining house-hold goods in the house in dispute and locking the same. The documents of the plaintiffs, which have been referred to by the learned counsel for the respondent/defendant, also show that the plaintiffs along with their families have been residing in House No.80, Arya Nagar, Ambala C.R.No.6144 of 2004 [7]

Cantt. It appears that after 23.07.2004, the appellants/plaintiffs have broken open the lock of the house in dispute and thereafter thrown- away the goods of the respondent/defendant, which were lying there and have taken the forcibly possession of the same. Even if, for the sake of argument, it was taken that the Will dated 15.02.1982 was executed by Rajinder Kumar Sayal (since deceased) and the plaintiffs had become owners of the house in dispute under the same, the appellants/plaintiffs were having no right to forcibly throw away the goods of the respondent/defendant, lying in the house in dispute, which was locked by the respondent/defendant. There was nothing on the file to show that the respondent/defendant had, at any point of time, surrendered the possession of the house in dispute to the appellants/plaintiffs. ....."

I have heard Mr.V.K.Jain, learned senior counsel appearing for the petitioners and Mr.A.K.Chopra, learned senior counsel appearing for the respondent.

Learned counsel for the petitioners, plaintiffs in the suit, has submitted that the Courts below have wrongly concluded that the plaintiffs were not in possession of the house. He submits that the findings recorded by the Courts on this issue are against record and deserve to be set aside. He further submits that in any case an interim mandatory injunction directing the plaintiffs to hand over the possession to the defendant could not have been issued by the trial Court. He submits that there is no counter claim filed by the defendant. No counter claim has been made even in the written statement or reply to the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure.

He submits that in the face of the registered will produced by the plaintiffs they are prima facie owners of the house. An owner of the house cannot be directed to be divested of his possession. Alternatively he submits that even if the will is to be C.R.No.6144 of 2004 [8]

ignored by natural succession, the plaintiffs would be co-owners of the house and even in that situation, the co-owners cannot be directed to give up their possession by way of an interim injunction. He relied upon a number of judgments in support of the aforementioned proposition. He has also submitted that there was no occasion in the facts and circumstances of the present case for issuance of a mandatory ad interim injunction as has been envisaged by the Hon'ble Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden and others, (1990)2 SCC 117; Metro Marins and another v. Bonus Watch Co. (P) Ltd. and others, (2004)7 SCC 478 and Shrikrishna and others v. Aniruddha Singh and others, (2005)12 SCC 389.

On the other hand, learned counsel for the respondent states that a firm finding of fact has been recorded that the plaintiffs forcibly broke open the lock of the house on 23.7.2004 and entered the same. Thereafter a totally false complaint was made to the police that the defendant was trying to dispossess them from the house. On 26.7.2004 itself they filed the present suit for protection of their possession and an order of status quo was secured on 11.8.2004. He submits that the plaintiffs have even tried to misuse both the official machinery as also the process of law. Under these circumstances a Court cannot sit powerless. He submits that this is the situation envisaged by the Hon'ble Supreme Court in Dorab Cawasji Warden's case (supra). He submits that the defendant has a strong case for trial and the balance of convenience was also in favour of the defendant and the grant of the mandatory injunction was necessary to restore and preserve the status quo of the last non contesting status which preceded the controversy until the final hearing of the suit.

After hearing learned counsel for the parties, I am of the opinion that the orders passed by the Courts below are perfectly justified in the facts and circumstances of this case and warrant no interference. So far as the argument of learned counsel for the petitioners that there is a will in their favour or that they are C.R.No.6144 of 2004 [9]

entitled to succeed being co-sharers, I am of the opinion that these are all matters which would be decided during the trial of the suit on the basis of the evidence to be led by the parties. Therefore I do not find any justification to refer to the various judgments cited regarding status of a registered will or rights of co-sharers.

In my opinion, the only point of contest between the parties at the interim stage is as to which of the party should have possession of the house till such time the matter is finally decided by the trial Court. The question therefore to be considered is as to whether in the facts and circumstances of this case, the trial Court could have ordered an interim mandatory injunction directing the plaintiffs to hand over possession to the defendant even after noticing that the plaintiffs had forcibly taken possession of the house on 23.7.2004. The power of the trial Court to grant such an injunction is not much in dispute. Such a power has been specifically recognized by the Hon'ble Supreme Court in Dorab Cawasji Warden's case (supra). However, it has at the same time been held that such a mandatory injunction can be granted in certain special circumstances. The relevant observations of the Hon'ble Supreme Court are as hereunder:- "10. The trial court gave an interim mandatory injunction directing respondent 4 not to continue in possession. There could be no doubt that the courts can grant such interlocutory mandatory injunction in certain special circumstances. It would be very useful to refer to some of the English cases which have given some guidelines in granting such injunctions.

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15. In one of the earliest cases in Rasul Karim v. Pirubhai Amirbhai, Beaman, J. was of the view that the courts in India have no power to issue a temporary injunction in a mandatory forum but Shah, J. who constituted a bench in that case did not agree with C.R.No.6144 of 2004 [10]

Beaman, J. in this view. However, in a later Division Bench judgment in Champsey Bhimji & Co. v. Jamna Flour Mills Co. Ltd.

two learned Judges of the Bombay High Court took a different view from Beaman, J. and this view is now the prevailing view in the Bombay High Court. In M.Kandaswami Chetty v. P. Subramania Chetty, a Division Bench of Madras High Court held that courts in India have the power by virtue of Order XXXIX Rule 2 of the Code of Civil Procedure to issue temporary injunctions in a mandatory form and differed from Beaman, J.'s view accepting the view in Champsey Bhimji & Co. v. Jamna Flour Mills Co. In Israil v.

Shamser Rahman, it was held that the High Court was competent to issue an interim injunction in a mandatory form. It was further held in this case that in granting an interim injunction what the court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the questions was such that it was proper that the injunction should be granted until the time for deciding them should arrive. It was further held that the court should consider as to where the balance of convenience lies and whether it is desirable that the status quo should be maintained. While accepting that it is not possible to say that in no circumstances will the courts in India have any jurisdiction to issue an ad interim injunction of a mandatory character, in Nandan Pictures Ltd. v. Art Pictures Ltd., a Division Bench was of the view that if the mandatory injunction is granted at all on an interlocutory application it is granted only to restore the 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.

16. The relief of interlocutory mandatory injunctions are thus C.R.No.6144 of 2004 [11]

granted generally to preserve or restore the status quo of the last non- contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, court shave evolved certain guidelines. Generally stated these guidelines are:-

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion." C.R.No.6144 of 2004 [12]

It is this view which was re-affirmed by the Hon'ble Supreme Court in Metro Marins's case (supra) and Shrikrishna's case (supra).

A reading of the aforesaid observations of the Hon'ble Supreme Court would show that for grant of such a mandatory interlocutory injunction there has to be in the facts and circumstances of the case certain special circumstances.

The injunction can be granted to preserve or restore the status quo of the last non contesting status which preceded the pending controversy. The judgment states that the plaintiff should have a strong case for trial and the balance of convenience should be in favour of the one seeking the relief. Still further the injunction can be granted when it is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

I am of the opinion that the present case falls within the class of cases where there can be said to be some special circumstance for the grant of a mandatory interlocutory injunction. In the present case, counsel for the plaintiffs in the course of arguments admitted that the defendant had been in possession up to July, 2004. The overwhelming documentary evidence on the record also suggested so. A firm finding has been recorded by both the Courts that on 23.7.2004 the defendant locked the house and went to Chandigarh for better education of her daughter. In her absence, the plaintiffs broke open the locks and the doors. They entered possession. To create evidence in their favour, they submitted an application to the police that the defendant was trying to dispossess them. The facts of this case show that what was stated in the application was apparently untrue. It is thereafter within the next few days that they filed the present suit and secured an ex parte injunction. On the face of these facts, I find that there are special circumstances justifying an order that the plaintiffs should be directed to hand back the possession to the defendant, a widow. I therefore find no error in the view taken by the trial Court as affirmed by the lower Appellate Court.

Faced with this, learned counsel for the petitioners then contended C.R.No.6144 of 2004 [13]

that the defendant was not entitled to injunction as she had not filed any counter claim. He further submitted that no counter claim had been made even in the written statement or in reply to the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure filed by the plaintiffs. As already stated hereinabove, the defendant had filed an application under Order XXXIX Rule 4 of the Code of Civil Procedure for vacation of ex parte order of status quo and therein had sought immediate restoration of possession of the house in question. In view of the facts of the case as already reproduced hereinabove and also the fact that the defendant had made a request for restoration of possession in the application filed for vacation of stay, I do not find any merit in this contention as well.

For the reasons aforementioned, the present revision petition is dismissed. Under these circumstances, there shall be no order as to costs.

( P.S.PATWALIA )

September 15, 2006. JUDGE

RC


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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