Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
Sanjay Dhar, J.
Parshotam Singh Slathia – Petitioner
Versus
Harbans Chand Katoch - Respondent
CR No. 20/2023
Decided On : 25-04-2024
Injunction - Property Dispute - Order 39 Rule 1 (a) of CPC - Manohar Lal Chopra vs Rai Bahader Rao Raja Seth Hiralal, AIR 1962 SC 527 - Collison vs Warren, 1901 (1) Ch. 812 - [Order 39 Rule 1 (a) of CPC, Manohar Lal Chopra vs Rai Bahader Rao Raja Seth Hiralal, AIR 1962 SC 527, Collison vs Warren, 1901 (1) Ch. 812] - The court discussed the principles of granting injunction and the scope of Order 39 Rule 1 (a) of CPC. It emphasized that a civil court can grant an injunction in favor of either party even in circumstances not covered by the provisions of Order 39 Rule 1 and 2 of CPC. The court also highlighted that the relief sought by a defendant by way of an interim measure has to arise out of the relief sought in the action before the court, and it can only be granted in cases where the defendant's claim to relief arises out of the plaintiff's cause of action or is incidental to it.
Fact of the Case:
The petitioner filed a suit seeking possession of land and compensation for illegal occupation. The respondent claimed that the petitioner encroached upon his land and constructed a house and kitchen on a green strip. The respondent also sought the removal of a gate installed by the petitioner, blocking access to his land.
Finding of the Court:
The court found that the relief sought by the respondent for the removal of the gate was incidental to the petitioner's cause of action, allowing the trial court to entertain and adjudicate upon the application of the respondent. However, the court held that the trial court's order was not sustainable as it lacked a tentative opinion on the factual aspects and delegated the task of determining the position of the gate to the police, leading to confusion and complications.
Issues: The issues revolved around the ownership of the land, encroachment, and the installation of the gate, leading to a dispute between the petitioner and the respondent.
Ratio Decidendi: The court emphasized the principles of granting injunction and the scope of Order 39 Rule 1 (a) of CPC, highlighting that the relief sought by a defendant by way of an interim measure has to arise out of the relief sought in the action before the court.
Final Decision: The petition was allowed, and the impugned order was set aside, remanding the case to the trial court for a fresh hearing and a tentative opinion about the factual aspects.
JUDGMENT :
The petitioner has filed the instant revision against order dated 12.06.2023 passed by the Additional District Judge, Jammu(‘the trial Court’ for short) whereby in the application filed by the/defendant, a direction has been issued to the/plaintiff for removing the gate if the same has been installed in front of the plot of respondent/defendant. A further direction has been issued by the trial Court that in case the gate is not removed, the SHO Police Station, Pacca Danga, Jammu shall go on spot and assist the respondent/defendant in removing the said gate. 2 Heard and considered.
3. It appears that the petitioner/plaintiff has filed a suit against the respondent/defendant before the trial Court seeking possession/ mandatory injunction directing the respondent/defendant to handover the vacant possession of land measuring 3 marlas, 234 sq. feet falling under khasra No.95 min situated at Karan Nagar, Jammu. Compensation in the amount of Rs.3.00 lacs for illegal occupation of the aforesaid land has also been sought. The petitioner/plaintiff has further sought consequential relief of permanent injunction against the respondent/defendant restraining him from changing the nature of the suit land as also of the green strip towards the eastern side of the suit land.
4. Briefly stated, the case of the petitioner/plaintiff before the trial Court is that he has purchased the suit land vide a sale deed dated 28.05.1999, whereas, vide sale deed dated 03.04.1979, the respondent/defendant purchased 10 marlas of land adjacent to the suit land. It has been pleaded that an additional piece of land measuring 3 marlas, 189 sq. feet was purchased by the respondent/defendant vide sale deed dated 09.12.1998 towards the northern side of the plot of petitioner/plaintiff. Thus, according to the petitioner/plaintiff, the respondent/defendant owns land measuring 13 marlas and 189 sq. feet adjacent to the suit land owned by the petitioner/plaintiff. It has been further pleaded that the respondent/defendant dismantled the wall of his plot towards the plot of the petitioner/plaintiff and included the suit land belonging to the petitioner/plaintiff within his land, where-after, he filed a suit for permanent prohibitory injunction against the petitioner/plaintiff before the Court of learned Munsiff (Forest Magistrate), Jammu. It has been pleaded that, towards the eastern side of the suit land, there exists a green strip in the form of slope adjoining to the house of the respondent/defendant. It has been further submitted that the respondent/defendant is in the process of digging and removing soil from the slope which belongs to Hari Tara Chand Charitable Trust and this is going to cause extensive damage to the residential house of the petitioner/plaintiff as also the suit land. It has been submitted that the respondent/defendant has made several attempts to remove the slope and the green strip to encroach upon the said land.
5. The respondent/defendant in his written statement pleaded that he has not encroached upon any portion of the land belonging to the petitioner/plaintiff. According to the respondent/defendant, it is the petitioner/plaintiff, who has encroached upon 8 to 9 marlas of land. It has been pleaded that it is the petitioner/plaintiff who is trying to encroach upon the green strip in the form of slope towards the eastern side of the plot purchased by the respondent/defendant from one Vijay Kumar. According to the respondent/defendant, neither he, nor the petitioner/plaintiff has any right upon the green strip unless specifically permitted by Hari Tara Chand Charitable Trust. It has been further contended that the petitioner/plaintiff has constructed a house and he has also encroached upon the green strip by raising 20 feet high concrete retention wall.It has been contended that the petitioner/plaintiff has also constructed his kitchen on the said green strip.
6. During the pendency of the suit, an application came to be filed by the respon
The need for a prima facie case, balance of convenience, and irreparable loss for granting injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
The court emphasized the need to maintain equitable balance between the parties and found that the installation of railings by the defendants violated the previous court order, leading to interferenc....
The dissolution of previous rights after land acquisition and the plaintiff's failure to challenge the acquisition proceedings.
The main legal point established is the need to satisfy the court with reference to three cardinal principles for the grant of injunctive relief: prima facie case, balance of convenience, and irrepar....
Permanent injunction – A person cannot have benefit of protection order from Court when he has failed to prima facie establish his right to remain in possession of property.
The court upheld the trial court's decision to grant a mandatory injunction, emphasizing the necessity of a strong prima facie case and the balance of convenience favoring the applicant.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
