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1995 Supreme(J&K) 140
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
R.C. Gandhi, J.
Jagdish Raj & Anr. - Appellant
Versus
Bachan Lal Kalgotra - Respondent
Civil Revision Petition No. 61/1994
Decided On : 16 November, 1995
Advocate For Appellant: H.L. Bhagotra
Advocate For Respondent: B.L. Kalgotra
A party cannot be permitted to take benefit of its own wrong by altering the position despite court orders.
Headnote:
PUBLIC LANE - OBSTRUCTION - INJUNCTION - [ORDER 39 RULES 1 AND 2 CPC, SECTION 151 CPC] - The court held that a party cannot be permitted to take benefit of its own wrong by altering the position despite court orders. The court has the power to restore the original position if a party has violated a court order. The court also held that a mandatory injunction can be granted in exceptional cases even if it results in granting substantial relief claimed in the suit.
Fact of the Case:
The respondent filed a suit alleging that the petitioners were encroaching upon a public lane by constructing a wall. The trial court passed a status quo order restraining the parties from changing the position on spot. The petitioners continued the construction in violation of the order. The respondent filed an application for demolition of the wall. The trial court dismissed the application on the ground that there was no evidence about the actual width of the lane. The respondent filed an appeal against the order.
Finding of the Court:
The court held that the petitioners had violated the court order by constructing the wall. The court also held that the trial court had failed to exercise its jurisdiction and had acted illegally and with material irregularity. The court upheld the order of the District Judge, Jammu, which had directed the petitioners to demolish the wall.
Issues: Whether a party can be permitted to take benefit of its own wrong by altering the position despite court orders.
Ratio Decidendi: The court held that a party cannot be permitted to take benefit of its own wrong by altering the position despite court orders. The court also held that the court has the power to restore the original position if a party has violated a court order. The court also held that a mandatory injunction can be granted in exceptional cases even if it results in granting substantial relief claimed in the suit.
Final Decision: The court upheld the order of the District Judge, Jammu, which had directed the petitioners to demolish the wall.
"That the wall of the defendants, which was Katcha one collapsed a few days back and the defendants 1 and 2 are trying to encroach upon the said public lane to the extent of about 2 to 3 feet. They had dug the foundation of the wall on the original place of the wall but today they have abandoned that foundation and are digging the foundation 2 to 3 feet towards the south by encroaching into the lane. If the defendants No. 1 and 2 succeed in doing so, it will be the encroachment on the public lane as well as it will narrow the only approach of the house of the plaintiff which shall considerably reduce the value of the house of the plaintiff."
3. To obstruct the design of the petitioners, the respondent instituted a suit on 12-3-1991 and the trial court directed the maintenance of status quo on spot. The status quo order of the trial court was served upon the petitioners by the process server, Amar Singh in presence of M/S Ajay Bharti and Chander Mohan, practicing Advocates. The petitioners having the knowledge of the restrained order continued the construction to defeat the administration of Justice in flagrant violation of the directions of the Court. On 15-3-1991, the respondent filed an application under order 39 Rule 2-A C.P.C. charging the petitioners for disobedience of the court order for not stopping the work on spot. The petitioners appealed against the order of status quo dated 12-3-1991, which appeal came to be decided on 23-4-1991 by observing as under: -
"The appeal is therefore, accepted and the order impugned is set aside without any order as to costs. The parties, however, cannot be allowed to change the position on spot by raising any construction or otherwise by taking advantage of this order till any appropriate order is passed by the Court below. Both the parties are therefore directed not to change the position on spot by raising any construction or otherwise till any appropriate order is passed by the court below for making some interim arrangement. The file of the Court below is sent back with the direction that the injunctional matter will be disposed of by the trial court expeditiously..."
4. It is apparent from the perusal of the appellate order that the restrained order passed on 12-3-1991 directing the parties not to change the position on spot by raising any construction or otherwise remained in operation, though the appeal was allowed.
5. It transpires that while the application under order 39 Rule 2-A CPC filed on 15-3-1991 was pending, the respondent presented another application purporting to be under order 39 Rule 1 and 2 CPC read with Section 151 CPC pleading therein that the petitioners have constructed the wall in flagrant disobedience of the status quo order dated 12-3-1991 and the original position on spot be restored and the demolition of the wall be also directed. The prayer of the respondent was rejected under order dated 30-11-1991 on the ground of lack of evidence about and actual width of lane on spot. However, the trial court has returned the finding in its order holding that;
"Under these circumstances this court cannot come to the positive conclusion as to whether what was the actual width of the lane what is now at this moment on spot and whether the defendants/non-applicants have enclosed any portion of the public lane or not.
In support of other application, the plaintiff applicant has produced affidavits of three persons and also examine
