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2020 Supreme(P&H) 420
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Sudhir Mittal, J.
Rajender - Appellant
Versus
Lalit Kumar & Ors. - Respondents
CR No. 1932 of 2020
Decided On : 02-07-2020
Mr. Tanmoy Gupta, Advocate, for the Appellant.
Temporary injunction can be granted even if another equally efficacious remedy is available. Both permanent and mandatory injunctions can be sought in the same suit. A prima facie case must be established to grant temporary injunction.
Headnote:
In this case, the court referred to the following acts and sections: Order XXXIX Rules 1 & 2, Section 151 of the Code of Civil Procedure (CPC), Section 41(h) of the Specific Relief Act, 1963. The court discussed the applicability of Section 41(h) of the Act, which bars the grant of injunction if another equally efficacious remedy is available. The court clarified that this provision does not apply to temporary injunctions. The court also addressed the defendant's argument regarding the availability of both permanent and mandatory injunctions in the same suit, stating that it is permissible. The court relied on the evidence of fraud and the pending appeal against the partition order to establish a prima facie case in favor of the plaintiff.
Fact of the Case:
The plaintiff filed a suit for permanent and mandatory injunction claiming ancestral property. The defendant obtained possession through fraudulent means. The trial court dismissed the application for temporary injunction, but the appellate court allowed it. The defendant appealed against the appellate court's order.
Finding of the Court:
The appellate court found evidence of fraud and a prima facie case in favor of the plaintiff. It held that status quo should be maintained to prevent irreparable injury to the plaintiff. The argument regarding non-interference with the trial court's order was rejected. The court also addressed the defendant's arguments regarding the suit being barred and the availability of both permanent and mandatory injunctions in the same suit.
Ratio Decidendi: The court held that temporary injunction can be granted even if another equally efficacious remedy is available. It also clarified that both permanent and mandatory injunctions can be sought in the same suit. The court found that a prima facie case had been established in favor of the plaintiff, justifying the grant of temporary injunction.
Result: The revision petition was dismissed.
JUDGMENT
Sudhir Mittal, J. - The defendant is before this Court against order of the Appellate Court dated 01.06.2020 whereby the plaintiff's appeal against order dated 15.05.2020 passed on an application filed under Order XXXIX Rules 1 & 2 read with Section 151 of CPC has been allowed. The defendant has been injuncted partially as parties have been directed to maintain status quo regarding construction over the suit property till decision of the suit.
2. Plaintiff-respondent No.1 has filed a suit dated 03.05.2020 for permanent injunction and mandatory injunction on the plea that the suit land measuring 27K-01M situate in Village Daultabad, Sub-Tehsil Kadipur, District Gurugram is his ancestral property and that he along with his sisters and mother (proforma defendants) have been in cultivating possession thereof. Petitioner-defendant No.1 filed an application for partition before the revenue authorities in which dasti summons dated 02.07.2018 were got issued. The signatures of the plaintiff and pro forma defendants were forged and report of service was obtained in collusion with Rajbir, Namberdar of Village Daultabad. Consequently, they were proceeded against ex parte and the land was illegally partitioned vide order dated 18.06.2019 passed by the Assistant Collector 2 nd Grade, Kadipur. The plaintiff and proforma defendants acquired knowledge of this order in November, 2019 when the petitioner attempted to raise construction. Immediately, appeal dated 29.11.2019 was filed against the order dated 18.06.2019. In February, 2020, a police complaint as well as a petition under Section 156(3) Cr.P.C. were also filed. The petitioner-defendant No.1 stopped his activity for sometime but in May, 2020 he again attempted to raise construction leading to the filing of the suit. Along with this suit, an application under Order XXXIX Rules 1 & 2 read with Section 151 of CPC was also filed with a prayer for ad interim temporary injunction.
3. In the written statement of the petitioner-defendant No.1 it has been pleaded that the suit deserves dismissal on account of concealment of relevant facts such as possession being handed over on 06.07.2019 pursuant to warrants of possession having been issued. Maintainability of the suit has also been questioned in view of Section 41(h) of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act'). On merits, the allegations regarding forgery and of obtaining the service report in collusion with Rajbir, Namberdar of Village Daultabad have been denied. Further, it has been stated that after taking over of possession, the land in dispute has been enclosed with a boundary wall and two rooms have also been constructed.
4. Vide order dated 15.05.2020, the trial Court dismissed the application seeking temporary injunction on the ground that the plaintiff had failed to show his ownership of the property in dispute and that possession having been handed over to defendant No.1, no injunction could be granted.
5. The plaintiffs appeal has however succeeded. Vide order dated 01.06.2020, the Additional District Judge, Gurugram has found that Rapat Roznamcha dated 06.07.2019 regarding delivery of possession to defendant No.1 does not bear the signatures of the plaintiff nor does it indicate the person to whom notice was issued regarding possession proceedings through the Halqa Patwari. In view of this evidence as well as the fact that criminal complaint under Section 156(3) Cr.P.C. have been filed against defendant No.1 and others, it has been concluded that order of partition having been obtained by fraud, a prime facie case exists in favour of the plaintiff. Consequently, it has been held that status quo regarding construction be maintained by both sides as the balance of convenience has tilted in favour of the plaintiff and he would suffer irreparable injury if injunction is not granted. The argument regarding non-interference by the Appellate Court with the order of the trial Court has been rejected on
