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SMT. SHASHI PRABHA SHUKLA versus STATE OF U.P. THRU' SECY. DEPTT. OF SECONDARY EDU. & ORS.

High Court of Judicature at Allahabad

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Smt. Shashi Prabha Shukla v. State Of U.P. Thru' Secy. Deptt. Of Secondary Edu. & Ors. - WRIT - A No. 2519 of 2002 [2005] RD-AH 5820 (16 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                           Reserved

First Appeal From Order No. 2519    of  2002

Ramesh Chandra Agarwal

Versus

Om Prakash Agarwal and others

Hon. R.P.Misra.J.

Hon.Sanjay Misra.J.

(Delivered by Sanjay Misra.J.)

Heard Sri Satish Chaturvedi , learned counsel appearing on behalf of the appellant and Sri K.K.Dubey, learned counsel appearing on behalf of respondents no.1,2, and 3.

The instant  first appeal from order has been filed against the order dated 7.11.2002 passed by Civil Judge (Senior Division) Jhansi in original Suit No.   158 of 2002. An application 6 Ga 2 for grant of temporary injunction had been filed by the plaintiff and an ex-parte injunction dated 21.5.2002 had been granted to him, a copy whereof has been filed alongwith affidavit supporting the stay application. While granting the ex-parte temporary injunction the trial court has recorded that by virtue of compromise, property in dispute was to go to the share of the plaintiff and therefore, the compromise decree in Suit No. 105 of 1992 between the parties is binding upon them  and the tenant (respondent no.7 Life Insurance Corporation Ltd) ought to either deposit the rent in the Court or  under section 30 (2) of the U.P.Act No. 13 of 1972. Consequently the trial court by its ex-parte injunction order restrained the respondents no. 1 to 6 from realizing the rent from Life Insurance Corporation.

Upon the notice to the defendants of the suit objections were filed and the trial court has rejected the application for temporary injunction by the impugned order.

Learned counsel for the appellant has submitted that the  main relief claimed in the present suit is  to the effect that it be declared that the decision of Panch dated 6.8.1991 be made a part of the judgment and decree dated 1.5.1993 passed in Original Suit No. 105  of 1992 and the ownership of the house No. 528/1 Civil Lines, Jhansi be declared in favour of the plaintiffs.  He has contended that unless title of the house in question is decided, neither the plaintiff nor the defendants are entitled to recover rent from the defendant no.7 Life Insurance Corporation . It is argued that the earlier suit was decided between the parties on the basis of a family settlement but inadvertently decision of Panch  dated 6.8.1991 could not be filed in the said suit  and therefore, the same could not be made  a part of the decree dated  1.5.1993. It is contended that in view of the said decision of Panch, the plaintiff appellant was clearly the owner of the house in dispute and therefore, prima facie case had been made out. It is stated that the respondent no.5 and 6 had filed a Suit No. 105 of 1992 against the appellant and the respondents No.1 to 4 for permanent injunction restraining them from alienating the property described in Schedule A and B of the plaint since it was unpartitioned   property of the undivided Hindu family. The defendants of the suit did not file any written statement. However, on the basis of a compromise application dated 27.1.1993, the suit was decreed on 1.5.1993. It is stated that the compromise  stipulated that the parties would be owners of the properties in accordance with the family settlement dated 1.2.1989 and decision of the Panch dated 30.3.1989 and 6.8.1991 . However, the decision of the Panch dated 6.8.1991 was not produced by the defendants wherein the property in dispute finds mention  at Item No. 7 of Schedule ''B'. Consequently the  balance of convenience lies  in favour of the plaintiff appellant and no irreparable loss could be said to have been caused to the defendants in case the  rent was deposited by the Life Insurance Corporation in the Court during the pendency of the present suit.

Learned counsel for the respondents has contended that the compromise which was entered into between the parties in the earlier suit being Suit No. 105 of 1992 was dated 27.1.1993 and the said suit was decided in terms thereof. It is contended that the compromise dated 27.1.1993 is  a part of the said decree. Consequently it is submitted that the parties would be bound by the aforesaid compromise decree passed in Suit no. 105 of 1992. Learned counsel for the respondents  submitted that the finding recorded by the trial court are to the effect that the house in dispute was purchased by the defendant No.1 and 2 and the house constructed thereon was made by the defendants. At the time of construction when the defendant was making huge investment no objection was raised by the plaintiffs and only after the said house built by the defendant started earning rental income that the plaintiff appellants have filed the present suit for deriving illegal benefit.

Learned counsel for the respondents has disputed  the contents of paragraph no. 4 of the compromise application dated 27.1.1993 which indicates that earlier family settlement dated 1.2.1989 which was reduced into writing on 30.3.1989  and the decision of the Panch dated  6.8.1991 are to be accepted by the parties. It is the respondents case that due to dispute between the parties no partition took place on 6.8.1991 although they had discussed the issues on that date. It is submitted that the compromise was based on the agreement arrived at on 30.3.1989 and there is no other decision dated 6.8.1991. In the said compromise there is no reference to the property in dispute. The building was got constructed by the defendants No. 1 & 2 and they have entered into a rent deed with the Life Insurance Corporation.   At the time when the said compromise application was filed in the earlier suit, the parties had agreed to the terms and conditions  as contained in the said compromise application whereupon the Court had passed the decree dated 1.5.1993. It is submitted that in view of the aforesaid compromise decree, the plaintiff appellant has not made out a prima facie case and the present suit itself has been filed after nine years  for obtaining undue advantage and for harassing the defendants. It is contended that by mutual consent and in the presence of the relatives oral partition had been effected  between the parties on 1.2.1989 which was subsequently reduced into writing  on  30.3.1989 and it was this  family partition dated 30.3.1989 which was produced before the trial court alongwith compromise application dated 27.1.1993 in Suit No. 105 of 1992. It is stated that in the plaint of the earlier suit only six properties were mentioned, however after the disposal of the suit one more property at item no. 7 in Schedule B of the plaint was illegally written by hand  in collusion with some staff of the judgeship.  It is therefore, contended that property which has been purchased by the defendants  was not subject matter  of the earlier suit nor of the compromise arrived therein and it was individual and self acquired property of the defendant respondent no.1 and 2. Learned counsel for the respondents submits that the defendant no.1 got the map sanctioned for construction of the house and receipts of Cement, Steel, Pipes etc. were produced by them. A  rent deed was executed by the respondent no.1 and 2 and the respondent no.7 on  8.7.1997. Consequently in view of the fact that the defendants are owners of the property and have constructed the house thereon and having entered into a rent agreement with respondent no. 7, it is amply proved that they are entitled to the rent there from.

While considering an application for grant of temporary injunction the court has normally see as to whether the plaintiff has a prima facie case, whether the balance of convenience is in favour of the plaintiff and whether the plaintiff would suffer irreparable injury if his prayer is disallowed.

In S.M. Dyechem Ltd. Vs. Cadbury (India) Ltd., AIR 2000 SC 2114 the Hon'ble Supreme Court considered the principle governing the grant of temporary injunction, observing that the three basic principle, i.e. prima fade case, balance of convenience and irreparable injury have to be considered in a proper perspective in the facts and circumstances of a particular case and in case the principle have not been properly applied, the appellate court can interfere in an interlocutory proceeding under O. 39 Rr. 1 and 2 of the Code.

           In Anand Prasad Agarwalla Vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367, the Hon'ble Court re-stated the principles for grant of temporary injunction, but observed that it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction. That was a case where the temporary injunction was refused to a person who was in possession of the land.

In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, the Hon'ble Supreme Court held as under: -

"We however, think it fit to note herein below certain specific considerations in the matter of grant of interlocutory injunction, the basic being non-expression of opinion as to the merits of the matter by the court, since the issue of grant of injunction usually is at the earliest possible stage so far as the time-frame is concerned. The other considerations which ought to weight with the court hearing the application or petition for the grant of injunctions are as below:

1. Extent of damages being an adequate remedy.

2. Protect the plaintiff's interest for violation of his rights though however having regard.

3. The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the other;

4. No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case the relief being kept flexible.

5. The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case.

6. Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant.

7. Whether the grant or refusal of injunction will adversely affect the interest of general public which can cannot be compensated otherwise."

In Hindustan Petroleum Corporation Ltd. Vs. Sri Sriman Narayan & Anr. AIR 2002 SC 2598, the Hon'ble Supreme Court explained the purpose of grant of temporary injunction, observing as under:

" It is elementary that grant of an interlocutory injunction during the pendency of the legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court normally applies the following tests:

1. Whether the plaintiffs has a prima facie case:

2. Whether the balance of convenience is in favour of the plaintiffs and

3. Whether the plaintiffs would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.

From the aforesaid  pleadings of the parties as also the submissions made on behalf of the learned counsels it is on the record  that an earlier suit no. 105 of 1992 ended in a compromise and was decreed on 1.5.1993 in terms of compromise. The compromise  between the parties was based upon a family partition  which was reduced into writing on 30.3.1989 and to such effect the compromise application dated 27.1.1993 was filed. In the compromise application (Filed as Annexure-1 to the affidavit)  it has been referred that a partition was affected between the parties on 1.2.1989 which was subsequently  reduced into writing on 30.3.1989.In paragraph 5 and 6 the terms of compromise and allotment of shares in the properties has been detailed . The property in dispute does not find place therein.  The  decision of the Panch dated 6.8.1991 according to the appellant was inadvertently not produced before the court in the earlier suit although a reference of such decision has been made in the compromise application. The trial court while considering  the pleas raised by the appellant  has prima facie found that the defendants  no.1 and 2 have  purchased the property in dispute  and constructed the building over the land. It also found that  the defendants have got the map sanctioned  and made constructions. Having recorded the said finding the trial court  has found that the plaintiff has failed to make out a prima facie case for direction to the Life Insurance Corporation  to deposit the rent in court.

It is admitted by the appellant in his pleading in the present suit as well as  in this appeal that the alleged  decision of the Punch dated 6.8.1991 was not made part of the decree in the earlier suit. The respondents have disputed the genuineness of the copy of the decision of the Punch dated 6.8.1991 filed by the plaintiff appellant. In fact they have denied its existence. At the stage of considering an  application for ad interim injunction  such a disputed fact cannot be decided in absence of evidence which is tobe led  by the parties during the proceeding of the suit.

It is settled law  that  while considering an application for grant of temporary injunction, three basic principles i.e. prima facie case, balance of convenience  and irreparable injury  have to be taken into consideration on the facts and the circumstances of the case. A mini trial would not be appropriate  tobe held at the stage of grant of temporary injunction.  The discretion  to be exercised by the court at this stage is to be  a non-expression of opinion as to the merit  of the matter, the extent of damages being adequate remedy and right and interest of the plaintiff. At the stage of consideration of an  application for  ad interim injunction, the right of the plaintiff and its alleged violation are both contested and remain uncertain till the evidence is led  in the trial. An ad interim injunction is granted to mitigate the risk of injustice which may be caused to the plaintiff during the period before such uncertainty can be resolved.  Need for such a protection to the plaintiff has to be weighted against the corresponding need of the defendants and the court has to determine where the balance of convenience lies.

In the present case the trial court  has refused  to grant temporary injunction on the facts as found on the record and to some extent  as admitted  by the plaintiff appellant himself. The decision  of the Punch  dated 6.8.1991 a copy whereof has been filed in the proceeding is itself stated to be  non-existent and not  genuine by the defendants. Whether the said decision was taken or the copy filed is genuine or not is a matter  to be adjudicated  by evidence to be  led by the parties during the trial. It is admitted that the alleged decision of the Panch is not a part  of the decree in the earlier suit. The  observations of the trial court that the property in dispute was purchased by defendant nos. 1 and 2 after partition dated 30.3.1989 and the constructions were made thereon by the defendants is a prima facie finding based on the  averments in the affidavits , documents filed  and the decree dated 1.5.1993 passed in the earlier suit. It has also been found by the trial court that  the defendant has entered into a rent agreement with the Life Insurance Corporation (respondent no.7) and the defendant is entitled to realize  the rent by virtue of such contract entered into between the defendant and Life Insurance Corporation. Prima facie the plaintiff has not been able to demonstrate his title or  as to whether  the said property was  purchased  prior to the family partition nor he has been able to satisfy the court  that he has invested any money  in the construction of the house. Admittedly he is not a party to the rent agreement.  In fact his case  in the present suit revolves  around the non-inclusion of the alleged  decision of the Panch dated 6.8.1991 in the decree of earlier suit. Such decision of the Punch is disputed by the  defendant who has also alleged that there has been some subsequent  manipulation in the plaint of earlier suit by adding  the disputed property as item no.7 in schedule of  the plaint.

On the facts as are before this court no error  can be found in the impugned order whereby  temporary injunction has been refused to the plaintiff appellant on the ground  that he has not been able to establish a prima facie case nor the  balance of convenience lies in his favour.  No irreparable loss or injury can be said to be caused to the plaintiff appellant if the rent of the building in question is realized by the defendant in as much as such a loss as alleged by the plaintiff is fully compensatible in terms of money,  it being rental amount which the defendant is receiving from the Life Insurance Corporation.

For the aforesaid reasons, the impugned order dated 7.11.2002 passed by Civil Judge( Senior Division) Jhansi in Suit No.158 of 2002 cannot be said to be  illegal or erroneous. This appeal has no force and is accordingly dismissed. No order is passed as to costs.

Dt.16.11.2005

Naim


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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