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1999 Supreme(P&H) 1198
PUNJAB & HARYANA HIGH COURT
Iqbal Singh, J.
Karnal Improvement Trust
Versus
Ishwar Chander
Civil Revision No. 5185 of 1998,
Decided On : OCTOBER 8, 1999
The power to exercise jurisdiction under Order 39, Rule 4 of the CPC should be used sparingly, and the lower appellate court should be slow in upsetting the findings of the trial court on an application under Order 39, Rules 1 and 2 of the CPC.
Headnote:
INJUNCTION - ORDER 39, RULE 4 OF THE CODE OF CIVIL PROCEDURE - MODIFICATION OF STATUS QUO ORDER - BOUNDARY WALL RECONSTRUCTION - MAINTAINABILITY - COURT'S DISCRETION - UNDUE HARDSHIP - IRREPARABLE LOSS - SUIT FOR PERMANENT INJUNCTION - SCOPE OF INTERIM RELIEF.
Fact of the Case:
Plaintiff filed a suit for permanent injunction to restrain the defendant from demolishing a portion of his property. During the pendency of the suit, the defendant demolished the boundary wall and a portion of the house. Plaintiff moved an application under Order 39, Rule 4 of the Code of Civil Procedure (CPC) seeking permission to reconstruct the boundary wall, alleging that the demolition had caused undue hardship and safety concerns for his family. The trial court dismissed the application, holding that it was not maintainable and that the plaintiff had encroached upon the defendant's land. The appellate court allowed the appeal and permitted the plaintiff to reconstruct the boundary wall.
Finding of the Court:
The High Court held that the appellate court erred in modifying the status quo order and permitting the plaintiff to reconstruct the boundary wall. The court found that the plaintiff's case did not fall within the category of rarest of rare cases where such an order could be granted. The court also held that the hardship faced by the plaintiff in the absence of the boundary wall did not justify granting such permission, as it touched upon the merits of the main relief sought in the suit. The court further held that the power to exercise jurisdiction under Order 39, Rule 4 of the CPC should be used sparingly and that the lower appellate court should be slow in upsetting the findings of the trial court on an application under Order 39, Rules 1 and 2 of the CPC.
Issues: 1. Whether an application under Order 39, Rule 4 of the CPC is maintainable for permission to reconstruct a boundary wall demolished by the defendant during the pendency of a suit for permanent injunction? 2. Whether the appellate court erred in modifying the status quo order and permitting the plaintiff to reconstruct the boundary wall? 3. Whether the plaintiff's case falls within the category of rarest of rare cases where such an order could be granted? 4. Whether the hardship faced by the plaintiff in the absence of the boundary wall justifies granting such permission?
Ratio Decidendi: 1. An application under Order 39, Rule 4 of the CPC is maintainable for permission to reconstruct a boundary wall demolished by the defendant during the pendency of a suit for permanent injunction, but the power to exercise jurisdiction under this provision should be used sparingly. 2. The appellate court erred in modifying the status quo order and permitting the plaintiff to reconstruct the boundary wall because the plaintiff's case did not fall within the category of rarest of rare cases where such an order could be granted and the hardship faced by the plaintiff in the absence of the boundary wall did not justify granting such permission. 3. The plaintiff's case did not fall within the category of rarest of rare cases where such an order could be granted because the hardship faced by the plaintiff in the absence of the boundary wall was not irreparable and did not touch upon the merits of the main relief sought in the suit. 4. The hardship faced by the plaintiff in the absence of the boundary wall did not justify granting such permission because it was not shown to the satisfaction of the court that any irreparable loss would be caused to the plaintiff in the absence of the boundary wall.
Final Decision: The High Court allowed the revision petition, set aside the order of the lower appellate court, and restored the order of the trial court dismissing the plaintiff's application under Order 39, Rule 4 of the CPC. The court also directed the trial court to dispose of the suit within six months.
Certainly. Based on the provided legal document, here are the key points:
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The application of Order 39, Rule 4 of the Civil Procedure Code (CPC) allows for modification or discharge of an injunction order, but such powers should be exercised sparingly and with caution (!) .
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The appellate court initially permitted the plaintiff to reconstruct the boundary wall, citing safety concerns and irreparable hardship, viewing the case as falling within the category of rarest of rare cases where such relief could be granted (!) .
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The trial court had dismissed the application under Order 39, Rule 4, concluding that the reconstruction would amount to granting the final relief and that the plaintiff lacked ownership or exclusive possession of the disputed property [23000307590002].
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The appellate court's decision to modify the status quo order was challenged, and it was found that the modification effectively granted the main relief sought in the suit, which was not appropriate at that stage without full evidence (!) (!) .
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The High Court, upon review, held that the appellate court erred in granting permission for reconstruction, as it amounted to decreeing the suit prematurely and without sufficient evidence, especially since the main issues regarding ownership and encroachment were yet to be conclusively determined (!) .
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The High Court emphasized that such interventions should be limited to exceptional cases where irreparable harm or safety concerns are clearly demonstrated and that the courts should be cautious in interfering with trial court findings (!) .
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The High Court set aside the appellate court's order, restored the trial court's decision dismissing the application, and directed the trial court to expedite the disposal of the main suit within six months, ensuring proper opportunity for both parties to present evidence (!) .
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Overall, the decision underscores the importance of balancing interim relief with the preservation of the substantive issues in dispute, advocating for restraint in modifying injunction orders unless justified by exceptional circumstances.
1. Plaintiff-respondent filed a suit for permanent injunction restraining the defendant-Improvement Trust, not to demolish the portion shown as E B C F in the site plan attached with the plaint. Along with the suit, he also filed two applications under Order 39, Rules 1 and 2 of the Code of Civil Procedure (for short "the Code") seeking interim injunctions. In one application, the plaintiff prayed for temporary injunction restraining the defendant not to demolish the portion shown as E B C F in the site plan during the pendency of the suit and in the another application, a prayer was made for granting ad interim injunction, restraining the defendant not to demolish the portion shown as EBCF in the site plan and further, not to take forcible and illegal possession of the same from him till the decision of the suit. The trial Court on a consideration of the matter, directed the parties to maintain status quo regarding the state of affairs existing at the spot. Defendant filed written statement controverting the averments made in the plaint. During the pendency of the suit, as per the allegations of the plaintiff, the defendant demolished the boundary wall and some portion of the house in dispute. The plaintiff, therefore, moved an application for amendment of the plaint for adding a relief of mandatory injunction for directing the defendant to restore the boundary wall and the house in the same condition as it was before, in its original condition. Amendment was allowed as prayed.
2. Meanwhile, the plaintiff also moved an application under Order 39, Rule 4 read with Sec. 151 of the Code with the allegations that the defendant had demolished the boundary wall and some portion of the house illegally and due to demolition of the boundary wall, the house had become unsafe as it is situated in such a locality where any crime of theft etc. could take place any time. It was also stated that the wife of the plaintiff is mental and a young daughter of twenty years was also residing with the plaintiff in the said house. Therefore, in order to provide safety to the house and the family, the order of status quo passed earlier may be modified and the plaintiff may be permitted, ad interim, to reconstruct the boundary walls of the house in question, in the interest of justice and equity. The application was resisted. It was stated that if the prayer made in the application was granted, it would amount to granting the final relief claimed in the suit, which cannot be done until the suit is decided on merits.
3. On a consideration of the matter, the trial Court came to the conclusion that application under Order 39, Rule 4 of the Code was not maintainable because under these provisions, no permission could be granted to reconstruct the boundary walls. The defendant demolished the boundary wall alleging it to be an encroachment on its land, which fact stood corroborated from the site plan, which was a part of the sale deed dated 15-7-1994 in respect of the property of the plaintiff. Trial Court also came to the conclusion that in the site plan as well as in the sale deed the portion was not shown to have been sold to the plaintiff and only a plot was shown to have been sold to him, which was lying adjacent to the property in dispute. As such the plaintiff was not the owner of the property in dispute. Trial Court further observed that construction raised by the plaintiff in the shape of boundary wall on the land of the defendant was certainly an encroachment and giving permission to the plaintiff to reconstruct the boundary wall would mean giving permission to him to encroach upon the land of the defendant. Thus finding no merit in the application, the same was dismissed by the trial Court by order dated 2-6-1998.
4. Aggrieved against the above order, plaintiff filed appeal. The appellate Court after hearing the counsel for the parties, observed that the application under Order 39, Rule 4 of the Code was maintainable. The appellate Court
