Back
2022 Supreme(HP) 876
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIRENDER SINGH, J.
Neelam Kumari – Petitioner
Versus
Catholic Diocese Society – Respondent
CMPMO No. 7 of 2020
Decided On : 25-11-2022
Advocate Appeared:
For the Petitioners: Sudhir Thakur, Karun Negi.
For the Respondent: Vipin Pandit.
The plaintiff must establish a case stronger than a prima facie case for the grant of interim mandatory injunction, and the relief is granted to prevent irreparable or serious injury which cannot be compensated in terms of money.
Headnote:
Mandatory Injunction - Property Dispute - Order 39 Rule 1 and 2 CPC - [Order 39 Rule 1 and 2 CPC] - The court discussed the application of Order 39 Rule 1 and 2 CPC in the context of a property dispute involving a mandatory injunction sought by the plaintiff. The court referred to the plaintiff's claim of undisputed title over the suit land and the defendant's denial of the same. The court highlighted the need for the plaintiff to establish a case stronger than a prima facie case and the necessity to prevent irreparable or serious injury which cannot be compensated in terms of money. The court also emphasized the equitable nature of the relief and the need to exercise sound judicial discretion in granting or refusing such injunctions. The court ultimately dismissed the petition and directed the trial court to decide another application for temporary injunction within the stipulated period.
Fact of the Case:
The plaintiff filed a suit for permanent prohibitory injunction and other reliefs against the defendant-society, claiming undisputed title over the suit land. The defendant contested the suit, alleging unclean hands and mis-joinder of necessary parties. The plaintiff also filed an application for interim mandatory injunction under Order 39 Rule 1 and 2 CPC, which was dismissed by the trial court and affirmed by the first appellate court.
Finding of the Court:
The court found that the plaintiff failed to establish a case stronger than a prima facie case for the grant of interim mandatory injunction. The court emphasized the need to prevent irreparable or serious injury which cannot be compensated in terms of money and the equitable nature of the relief. The court dismissed the petition and directed the trial court to decide another application for temporary injunction within the stipulated period.
Issues: The issues involved the plaintiff's claim of undisputed title over the suit land, the defendant's contestation of the suit, and the application for interim mandatory injunction under Order 39 Rule 1 and 2 CPC.
Ratio Decidendi: The court held that the plaintiff must establish a case stronger than a prima facie case for the grant of interim mandatory injunction. The court emphasized the need to prevent irreparable or serious injury which cannot be compensated in terms of money and the equitable nature of the relief.
Final Decision: The petition was dismissed, and the trial court was directed to decide another application for temporary injunction within the stipulated period.
JUDGMENT :
VIRENDER SINGH, J.
1. Petitioner, through her GPA Sh. Dinesh Negi, has filed the present petition under Article 227 of the Constitution of India, against the order passed by learned Additional District Judge-II, Solan in Civil Appeal No. 3 ADJ-II/14 of 2019, decided on 30.10.2019, whereby, learned Additional District Judge-II affirmed the order passed by learned Civil Judge, Court No. 1, Solan, in an application filed under Order 39 Rule 1 and 2 CPC.
2. For the sake of convenience, the parties to the present petition are referred in the same manner, in which, they have been referred by learned Civil Judge, Court No. 1, Solan (hereinafter referred to as “the trial Court”) as well as by learned Additional District Judge-II, Solan (hereinafter referred to as “the first appellate Court”).
3. The plaintiff has filed a suit for permanent prohibitory injunction against the defendant-society for restraining it from causing any interference in the property, comprised in Khata/Khatauni No. 58 min/143 min, Khasra No. 596, measuring 00-00-96 hectares alongwith one storeyed old house having plinth area 96 square meters, situated in Mohal Ber Khas, Hadbast No. 44, Tehsil and District Solan, H.P. (hereinafter referred to as “the suit property” and also for mandatory injunction and recovery of mesne profit @ 7500/- per month, w.e.f. 23.3.2018 upto 28.2.2019 and future mesne profit from 1.3.2019 till the locks of the same are unlocked.
4. The plaintiff has asserted her claim on the ground that she has purchased the suit property vide sale deed dated 23.3.2018 and as such, she has become the absolute owner of the suit land, as mutation, on the basis of sale deed, was also sanctioned on 26.4.2018. The defendant-society is stated to be running a school and it has purchased the land from the previous owner. It has got sanctioned a map and a path has been shown passing through the land of the defendant-society, comprised in Khasra Nos. 97, 108, 1075/81, 1076/81, which is shown to be in the ownership of the defendant-society.
5. The said path is also stated to be the only access for the plaintiff to approach the suit land. After purchasing the suit land, the plaintiff got demarcation of the land through revenue agency by associating the defendant society. However, in the said demarcation process, the authorized representatives of the defendant society had refused to make any statement, but later on, they had filed the objections, which were rejected, as such the said demarcation is stated to have attained finality.
6. To the utter surprise of the plaintiff, the defendant-society had, through its employees, put a lock over the suit land, for which it has no right to do so. The plaintiff was also prevented from entering the suit property.
7. On the basis of above facts, the plaintiff has sought the relief, as referred above.
8. Alongwith the suit, the plaintiff has filed an application under Order 39 Rule 1 and 2 CPC read with section 151 CPC for interim mandatory injunction, in which, a prayer has been made to direct the respondent-society to unlock the suit premises on the ground that her title over the suit land is undisputed.
9. It is the further case of the plaintiff that her title over the suit land has been well defined by the trial Court in Civil Suit No. 496/1/2004/03, decided on 25.5.2006, whereas the entries in favour of the defendant-society was held to be illegal.
10. When put to notice, the suit has been contested by the defendant by filing written statement, in which preliminary objections have been taken that the suit is not maintainable, as the plaintiff has approached the Court with unclean hands, as the decree passed in Civil Suit No. 496/1/2004/03 is stated to be the result of fraud. According to the defendant-society, the suit is bad for mis-joinder of necessary parties, as the legal heirs of one Gajjan Singh are necessary parties, which have not been impleaded in the present case.
11. The plaintiff is also stated to be out of poss
