Dharamraj alias Dharmu Yadav vs District Judge, Ambedkar Nagar & Ors.

Heard Sri M.E. Khan, learned counsel for the petitioner, Sri Ravindra Kumar Yadav, learned counsel for the opposite party No.3 and the learned Standing Counsel for the opposite party Nos. 1 and 2.

With the consent of the learned counsel for the parties, I proceed to decide the present writ petition finally at admission stage.

The brief facts of the case are that the petitioner had filed a suit for permanent injunction along with an application for temporary injunction. The application for temporary injunction was rejected by the Civil Judge (S.D.), Ambedkar Nagar. Feeling aggrieved, the petitioner preferred statutory appeal under Order 43, Rule 1 of the C.P.C., which too was dismissed by the District Judge, Ambedkar Nagar.

From the arguments advanced by the learned counsel for the parties, it borne out that the plaintiffpetitioner had filed a suit for permanent injunction with regard to his appurtenant land indicating therein that the disputed land is situated up to the distance about 89 ft. from his house. The suit was filed on 952007. After filing of the suit, it appears that the parties were called on at the police station, Hanswar on 1252007 and in the presence of the S.H.O. of police station, Hanswar a compromise was prepared and signed by the parties. It has been stated by the counsel for the plaintiffpetitioner that the compromise was executed forcibly under the influence of the police and the distance indicated in the Commissioner''s report is not correct. It is alleged that the Commissioner under the influence of the defendantrespondent had recorded incorrect distance from the house of the plaintiffpetitioner of the disputed site. The Civil Judge (S.D.), Ambedkar Nagar relying upon the compromise and Commissioner''s report had rejected the application for temporary injunction against which an appeal was preferred, which too was dismissed by the District Judge, Ambedkar Nagar directing the Civil Judge (S.D.), Ambedkar Nagar to proceed with the case. From the Naksha Najari prepared by the Commissioner, it appears that the land in dispute is situated adjacent to the plaintiffpetitioner''s house. With regard to the report of the Commissioner, the plaintiffpetitioner had filed an objection, which was entertained and the report was accepted subject to evidence. Accordingly, the suit is pending at the evidence stage.

Undisputedly, the land in dispute is situated adjacent to the plaintiffpetitioner''s house. Whether it belongs to the plaintiff or defendant is the subjectmatter of evidence, which can be ascertained only after the outcome of the trial. The Commissioner has shown the distance of the disputed site as 57 ft., which has been denied by the plaintiff. In any case, if the nature of the land is changed, it may cause irreparable loss and injury to the plaintiff. No much reliance can be placed on an unregistered agreement entered into between the parties before the police of the police station, Hanswar unless its validity is judged in accordance with law. In such circumstances, at least during the course of trial it was incumbent upon the learned trial court to direct the parties to maintain status quo and the nature of the land should not be changed.

While deciding the appeal, the learned District Judge, Ambedkar Nagar had also not applied his mind and mechanically affirmed the order passed by the Civil Judge (S.D), Ambedkar Nagar. The District Judge, Ambedkar Nagar should have taken note of the fact that the compromise was entered between the parties before the police of police station, Hanswar after filing, of the regular suit and it is unregistered one. Accordingly, it was incumbent upon the District Judge, Ambedkar Nagar to pass appropriate order securing the interest of the parties. What the learned District Judge, Ambedkar Nagar has done? He has mechanically reproduced the observation made by the learned Civil Judge (S.D.), Ambedkar Nagar in his judgment without perusing the record and appreciating the evidence at his level.

While exercising power under Order XLIII, Rule 1 of the C.P.C., it shall always incumbent upon the appellate court to peruse the record and secure the interest of the parties. The appellate court should have applied its own mind and from the evidence led by the parties it must find out as to whether a primafacie case is made out. Whether irreparable loss and injury may cause to the plaintiff in the absence of refusal of injunction. Whether balance of convenience lies in favour of the plaintiff. The District Judge, Ambedkar Nagar has not recorded a finding on these three points at his level, which were necessary with regard to adjudication of the present controversy. The District Judge, Ambedkar Nagar should have recorded finding with regard to the fact as to, primafacie, who is in possession of the constructed portion indicated in the Commissioner''s report. Thus, it appears that the learned District Judge, Ambedkar Nagar had failed to exercise the jurisdiction vested in him. He should have cautious while assessing the necessity for the grant or refusal of injunction.

In AIR 1962 SC 527; Manohar Lal Chopra v. Rai Bahadur Rao Seth .Hiralal, Hon''ble Supreme Court held that power to grant injunction not only flows from Order 39, Rule 1 and 2 of the Code of Civil Procedure but also under Section 151 of the Code of Civil Procedure.

In (1996) 5 SCC 714 : (1996 AIR SCW 3514) N.R. Dongre and others v. Whirlpool Corporation and another, Hon''ble Supreme Court ruled that relief of injunction should be based on equitable principle.

In (1999) 5 SCC 222 : (AIR 1999 SC 2171) Bina Murlidhar Hemdev and others v. Kanhaiyalal Lokram Hemdev and others, Hon''ble Supreme Court held that at the stage of injunction validity of a document cannot be adjudged.

In (2002) 3 SCC 65 : (AIR 2002 SC 575) Laxmikant V. Patel v. Chetanbhai Shah and another, Hon''ble Supreme Court had reiterated the long standing principle governing the condition for grant of temporary injunction and ruled that while considering a case for grant of temporary injunction, the Courts have to see three conditions i.e. primafacie case, balance of convenience and irreparable loss and injury.

In 2006 (24) LCD 137 : (2006 (6) ALJ (DOC) 374) Anupam Sahkari Avas Samiti Ltd. v. Additional District Judge, Court No.4, Lucknow and another while relying upon the judgment of Hon''ble Supreme Court this Court held that at the stage of temporary injunction, the Courts should not hold mini trial; rather to pass an order on equitable ground to meet out the ends of justice. For convenience, relevant portion from the judgment of Anupam Sahkari Avas Samiti Ltd. (supra), decided by me is reproduced as under:

"17. As held by Hon''ble Supreme Court in the case of Manohar Lal Chopra that injunction can be granted even if the circumstances do not fall within the Order 39 of the Code of Civil Procedure. The provision is not exhaustive. In the case of N.H. Dongre and others (1996 AIR SCW 3514) (supra) as held by Hon''ble Supreme Court the injunction is a relief of equity and is based on equitable principles. However, Hon''ble Supreme Court in the case of Anand Prasad Agarwalla (AIR 2001 SC 2367) (supra) held that no mini trial of the suit can be held at the stage of temporary injunction. The ratio of the Apex Court judgment is that no final finding on merit should be given at the stage of Order 39, Rules 1 and 2 of the Code of Civil Procedure and that can be done only after adducing of evidence by the parties. Relevant portion of Anand Prasad Agarwalla''s case is reproduced as under :

"4. The appellant Court felt that serious questions had been raised for consideration in the course of the suit and therefore there was a prima facie case for consideration. Particularly the sale certificate that had been issued indicated that the appellant had purchased the properties in the auction sale. A presumption arose in favour of that possession pursuant to the record of rights. On that basis the Division Bench held that the temporary injunction should be granted subject to certain conditions. Hence, these appeals. 6. It may not be appropriate for any Court to hold a minitrial at the stage of grant of temporary injunction. As noticed by the Division Bench that there are two documents which indicated that there was prima facie case to be investigated. Unless the sale certificate is setaside or declared to be a nullity, the same has legal validity and force. It cannot be said that no right could be derived from such certificate. Secondly, when the contesting respondents were in possession as evidenced by the record of rights, it cannot be said that such possession is by a trespasser. The claim of the contesting respondent in their own right. The decisions referred to by the learned counsel for the appellants are in the context of there being no dispute as to ownership of the land and the possession was admittedly with a stranger and hence temporary injunction is not permissible. Therefore, we are of the view that the Division Bench has very correctly appreciated the matter and come to the conclusion in favour of the respondents."

Aforesaid proposition of law has been reiterated by this Court in subsequent judgment delivered by me reported in 2006 (24) LCD 798 : (2006 (6) ALJ (DOC) 240) Cantonment Board, Lucknow and another v. District Judge (Incharge), Lucknow and others.

In the present case, learned District Judge, Ambedkar Nagar has mechanically affirmed the order passed by the learned Civil Judge (S.D.), Ambedkar Nagar and held that impugned order passed by the trial court does not call for any interference and failed to take notice that defendant had relied upon an unregistered agreement entered before the police of the police station, Hanswar on 1252007. The learned District Judge, Ambedkar Nagar has recorded a conclusive finding that the plaintiffpetitioner has got no concern with the hut (chappar) and hand pipe etc., existing at the disputed place. Such conclusive finding should not be recorded by the learned District. Judge, Ambedkar Nagar while deciding the appeal. Learned District Judge, Ambedkar Nagar opined that learned Civil Judge (S.D.), Ambedkar Nagar had passed the order dated 6102007 with healthy mind on the basis of evidence on record. I am afraid an order or judgment may be affirmed on the ground of purity or healthiness of mind. Once the plaintiff raised serious allegations against the Commissioner and his report has been accepted subject to evidence then it was not incumbent upon the appellate authority to record a conclusive finding on the basis of the report of the Commissioner.

Needless to say that while deciding the application for injunction or an appeal under Order 43, Rule 1 of the Code of Civil Procedure, the trial court or the appellate court should not pass any order or made any observation, which may effect the final outcome of the pending suit. This proposition of law has been settled by a catena of judgments and some of them have been referred to herein above.

The judgment and order passed by the learned District Judge, Ambedkar Nagar does not contain any reference of the various pronouncements of this Court or the Hon''ble Supreme Court. The learned District Judge, Ambedkar Nagar seems to possess poor legal acumency. He must improve himself and acquire knowledge of law.

It has been noticed that ordinarily the trial courts are reluctant to grant injunction even if primafacie case is made out. Such an attitude on the part of the judicial officers shall shake the people''s faith in the administration of justice and the people will chose alternative forum to ventilate their grievance. Whenever all the three conditions were satisfied (supra) or the facts and circumstances of a case require interference then the courts must grant temporary injunction on equitable ground. In the present case, involvement of police even after filing of the suits and compelling the parties to enter into an agreement is sufficient ground to pass appropriate order or grant temporary injunction to meet the ends of justice. Injunction should not have been refused by the court below when the facts brought to its notice that an unregistered compromise was written at the police station and the parties were directed to sign the same. At least, appellate court should have taken note of the fact but it appears that because of paucity of knowledge and being not acquainted with the various pronouncements of this Court and Hon''ble Supreme Court, the appellate court decided the appeal casually and failed to exercise jurisdiction vested in it.

Both sides claim that they are in possession of the land in question. Keeping in view the facts and circumstances of the case, it shall be appropriate that parties must maintain status quo during the pendency of the suit in question and they are restrained from changing the nature of the suit.

In view of above, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned orders dated 12122007 and 6102007, copies of which have been filed as Annexure Nos. 1 and 4 to the writ petition. The parties shall maintain status quo over the land in question and the nature of the land shall not be changed during the pendency of the suit. The trial court is directed to decide the suit on priority basis expeditiously and preferably within a period of four months from the date of receipt of a certified copy of this order.

Let a copy of the present judgment be sent by the Registrar of this Court to the concerned District Judge, Ambedkar Nagar forthwith.

The writ petition is allowed accordingly. No order as to costs.