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2020 Supreme(P&H) 434
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
SUDHIR MITTAL, J.
Rajender – Appellant
Versus
Lalit Kumar And Others – Respondents
CR No.1932 of 2020
Decided On : 02-07-2020
Advocate Appeared:
For the Appellant :Mr. Tanmoy Gupta, Advocate
The main legal point established in the judgment is the importance of establishing a prima facie case for granting temporary injunction and the relevance of balance of convenience and irreparable injury in such cases.
Headnote:
Injunction - Property Dispute - Specific Relief Act, 1963 - Section 41(h), Order XXXIX Rules 1 & 2 of CPC - [SUMMARY OF ACT SECTIONS: Section 41(h) of the Specific Relief Act, 1963, Order XXXIX Rules 1 & 2 of CPC] - The court discussed the application of Section 41(h) of the Specific Relief Act, 1963, and the rules under Order XXXIX of CPC in the context of granting temporary injunction. The court emphasized that Section 41(h) does not bar the grant of temporary injunction and rejected the argument that relief of permanent injunction and mandatory injunction cannot be claimed in the same suit. The court also highlighted the importance of establishing a prima facie case for granting temporary injunction and the relevance of balance of convenience and irreparable injury in such cases.
Fact of the Case:
The plaintiff filed a suit for permanent injunction and mandatory injunction claiming ancestral property. The defendant had obtained possession through an ex parte order of partition, leading to a dispute over construction on the property.
Finding of the Court:
The Appellate Court found that the order of partition and possession had been obtained fraudulently, establishing a prima facie case in favor of the plaintiff. The court held that maintaining status quo regarding construction was necessary to prevent irreparable injury to the plaintiff.
Issues: The issues included the validity of the order of partition, the applicability of Section 41(h) of the Specific Relief Act, and the availability of both permanent and mandatory injunction in the same suit.
Ratio Decidendi: The court emphasized the importance of establishing a prima facie case for granting temporary injunction and rejected the argument that relief of permanent injunction and mandatory injunction cannot be claimed in the same suit. The court also clarified that Section 41(h) does not bar the grant of temporary injunction.
Final Decision: The revision petition was dismissed, affirming the grant of temporary injunction to maintain status quo regarding construction on the disputed property.
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 proforma 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 2nd 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 plaintiff’s 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 the g
