Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(HP) 712

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANDEEP SHARMA, J.
Shiv Ram and Another – Petitioners
Versus
Pola Ram – Respondent
CMPMO No. 345 of 2022
Decided On : 25-11-2022

Advocates:
Advocate Appeared:
For the Petitioner: J.L. Bhardwaj.
For the Respondent: O.C. Sharma.

Point of Law: Court must be satisfied that party praying for relief has a prima-facie case and balance of convenience is in its favour- Besides above, while granting injunction, if any, Court is also required to consider that whether refusal to grant injunction would cause irreparable loss to such a party, Apart from aforesaid well established parameters/ingredients, conduct of party seeking injunction is also of utmost importance.

Headnote:
Constitution of India,1950 - Article 227 – Civil Procedure Code,1908 – Section 151 - Order XXXIX - Rules 1 and 2 - Suit land - Partition - Possession - Plaintiff filed a suit for permanent prohibitory injunction (Annexure P-1) against defendants, claiming therein himself to be owner and co-sharer in possession in suit land, as per respective shares, as mentioned in enclosed copy of Jamabandi - In nutshell, plaintiff claimed that suit land measuring 33-08-00 Bigha bearing Khasra Nos. Kita 13 situate in Village Malkumajra, HB No. 184, Tehsil Baddi, District Solan, Himachal Pradesh, is jointly owned and possessed by the co-sharers. Plaintiff averred that till the time, suit land is partitioned by metes and bounds, defendant, who has started construction over specific portion of suit land is required to be restrained from doing so, till the time, suit property is partitioned by metes and bounds - Alongwith suit, plaintiff also filed an application under Order XXXIX rules 1 and 2 CPC, praying therein to restrain defendants from raising any construction over suit land during pendency of suit. (Para 22)
Finding of Court : Court while granting or refusing to grant injunction is expected to exercise sound judicial discretion to find amount of substantial mischief or injury which is likely to be caused to parties if injunction is refused and compare it with that which is likely to be caused to other side if the injunction is granted - If on weighing competing possibilities or probabilities of likelihood of injury and if court considers that pending suit, subject matter should be maintained in status quo, an injunction would be issued - Court has to exercise discretion in granting or refusing relief of ad interim injunction pending suit - Balance of convenience must be in favour of granting injunction - If on weighing competing possibilities or probabilities of likelihood of injury and if court considers that pending suit, subject matter should be maintained in status quo, an injunction would be issued - Court has to exercise discretion in granting or refusing relief of ad interim injunction pending suit - Consequently in view of detailed discussion made herein above and law taken into consideration, court finds no illegality in order passed by learned Additional District Judge, and same is upheld, as a result whereof.
Result : Petition dismissed.

JUDGMENT :

SANDEEP SHARMA, J.

1. Instant petition filed under Article 227 of the Constitution of India, lays challenge to order dated 25.4.2022 passed by learned Additional District Judge, Nalagarh in Civil Misc. Appeal No. 19-NL/14 of 2022, affirming order dated 7.4.2022 passed by learned Senior Civil Judge, Nalagarh, District Solan, Himachal Pradesh in Misc. Civil Application No. 186/6 of 21 in Civil Suit No. 235/1 of 21, whereby an application filed under Order XXXIX, rules 1 and 2 read with S.151 CPC, filed by the respondent/plaintiff (hereinafter, ‘plaintiff’) praying for injunction against the petitioners/defendants (hereinafter, ‘defendants’) came to be allowed.

2. Precisely, the facts of the case, as emerge from the record, are that the plaintiff filed a suit for permanent prohibitory injunction (Annexure P-1) against the defendants, claiming therein himself to be owner and co-sharer in possession in the suit land, as per respective shares, as mentioned in enclosed copy of Jamabandi. In nutshell, the plaintiff claimed that suit land measuring 33-08-00 Bigha bearing Khasra Nos. 207, 216, 217, 289, 303, 304, 319,320, 321, 324, 325, 402 and 403, Kita 13 situate in Village Malkumajra, HB No. 184, Tehsil Baddi, District Solan, Himachal Pradesh, (hereinafter ‘suit land’) is jointly owned and possessed by the co-sharers. Plaintiff averred that till the time, suit land is partitioned by metes and bounds, defendant, who has started construction over specific portion of suit land is required to be restrained from doing so, till the time, suit property is partitioned by metes and bounds. Alongwith suit, plaintiff also filed an application under Order XXXIX rules 1 and 2 CPC, praying therein to restrain the defendants from raising any construction over the suit land during the pendency of the suit.

3. Defendants contested the prayer in the application by filing reply to the application and written statement to the plaint, wherein they claimed that the parties to suit are eight brothers including them and they have joint land measuring 21-6 Bigha, inherited by them from their ancestors. Defendants claimed that the suit land in Malkumajra was given to all of them by one Smt. Paro (their maternal aunt) by executing a Will. It is further averred by the defendants that four brother including plaintiff settled at Village Thana and four brothers Shiv Ram (defendant), Dalip, Shri Hari Chand and Shri Sher Singh in Village Malkumajra. Defendants averred that they raised construction of houses over joint land in respective villages but no objection was ever raised by them at the time of raising construction by co-sharers and now when, defendants have started construction over Khasra No. 320, as old house has outlived its life, with mala-fide intention, present suit has been filed, on wrong facts, with a view to harass them. Defendants claimed that share of defendant No. 1 is to the extent of 2 Bigha in the suit land, whereas, he is proposing to raise construction over 5 Biswa of land, as such, he cannot be restrained from completing the construction, especially when all the co-sharers have raised construction over joint land. Defendants also denied that the proposed construction over Khasra No. 320 is detrimental to the rights of the co-sharers and shall cause irreparable loss to the plaintiff, whereas, no prejudice shall be caused to the plaintiff and other co-shares if he is permitted to complete the construction over small portion of suit land.

4. Learned trial Court, having taken note of aforesaid pleadings, allowed the application filed by the plaintiff and directed the parties to maintain status quo qua nature, possession and further construction over the suit property, till final disposal of the main suit.

5. Being aggrieved and dissatisfied with order passed by learned trial Court, defendants filed an appeal under Order 43 rule 1 CPC before learned Additional District Judge, Nalagarh, District Solan, Himachal Pradesh, praying therein to se