Ekadashi Mondal vs Santosh Samanta And Others

One of the defendants in a suit for declaration of title and permanent injunction, in respect of an immovable property, has preferred the instant revisional application. In the said suit, at the instance of the plaintiffs/opposite party nos. 1 to 6, an order was passed on September 19, 2014 directing both the parties to maintain status quo in respect of nature, character and possession of the suit land, as mentioned in the ‘Ka’ schedule of the plaint and in the injunction petition. Subsequently, it was alleged by the defendants that the plaintiffs, in order to obstruct the ingress and egress of the defendants over the suit property to the defendants’ own residential property, raised construction, in particular, a cowshed. It was categorically alleged by the defendants that, previous to the finding of the suit, a similar attempt was made by the plaintiffs, upon which the defendants had to take out an application before the Magistrate under Section 144 of the Code of Criminal Procedure.

Initially, a favourable order was passed on such application. Subsequently, in violation of such order, the plaintiffs raised construction on the property-in-question. As a result, a report was sought by the Magistrate and such report was filed. It was evident from such report that such construction, as alleged, had indeed been raised by the plaintiffs. Consequently, the Magistrate had directed the plaintiffs to remove such construction and ultimately the construction was removed with police help, which was also evident from the report dated September 26, 2014 filed in the said proceeding.

In fact, these facts were disclosed by the defendants in their written statement and additional written statement, the latter being filed on April 21, 2015.

Ultimately, on being so advised, the defendants, including the petitioner, took out an application for temporary mandatory injunction directing the plaintiffs/opposite party nos. 1 to 6 to remove the said obstruction, which had been made by the opposite party nos. 1 to 6 in violation of the status quo order.

The trial court, vide order No. 27 dated December 7, 2015 directed removal of such obstruction. Being, thus, aggrieved, the opposite party nos. 1 to 6 preferred Miscellaneous Appeal No. 3 of 2016, which was allowed on April 30, 2016, thereby setting aside the order of mandatory injunction passed by the trial court. Being thus aggrieved, the present petitioner has challenged the order of the appellate court. Upon hearing both sides, a perusal of the impugned judgment and order of the appellate court clearly shows that the appellate Judge primarily proceeded on erroneous legal conception in allowing the miscellaneous appeal.

The first such misconception was that unless the defendants filed a regular counter-claim seeking the relief of mandatory injunction, they could not come up with an application of interlocutory nature seeking such relief. By now it is well settled that if a party is dispossessed unlawfully during pendency of the suit, in particular in violation of an injunction order, the court has ample power to direct restoration of possession by granting mandatory temporary injunction, if necessary. The second premise on which the appellate court allowed the miscellaneous appeal was, that apparently the orders of the Magistrate passed in the criminal proceeding, first under Section 144 of the Code of Criminal Procedure and then under Section 147 of the said Code, were erroneous.

In fact, the appellate court virtually went to the extent of sitting in judgment over the Magistrate’s order, which had already attained finality.

Moreover, the premise on which the appeal court held that the Magistrate’s order was erroneous, being that the Magistrate had proceeded without evidence, was itself erroneous and perverse. The materials produced before this Court, as well as the courts below make it amply clear that the Magistrate proceeded on solid evidence, including several reports filed by authorities.

The third ground of the appellate court for setting aside the mandatory injunction was that no mention of the relevant facts as to dispossession etc. was mentioned by the defendants in their pleadings. A perusal of the additional written statement itself is sufficient to indicate that these averments, which have been discussed above, were elaborately stated by the defendants in their pleadings. This apart, the appellate court overlooked the Commissioner’s report filed in the present suit, which also shows that the defendants, including the petitioner, have no alternative pathway than the pathway over which the petitioner claims the attachment.

Such an oversight tantamounted to perversity, entailing setting aside the judgement and order of the appellate court. The only cogent ground, which was given by the appellate court for allowing the appeal, was that the defendants were apparently nine months late in coming up with their mandatory injunction application. This Court decides to gloss over such aspect of the matter on certain scores. First, it appears that at least the present petitioner is a cultivator and all the defendants hail from rural areas, thereby automatically being entitled to attachment of a presumption of being “worldly unwise”.

Second, in view of the overbearing wrong done to the petitioner, as well the other defendants, a balance of convenience has to be held to be in favour of the petitioner for grant of mandatory injunction. Speaking of clean hands, the hands of the petitioner are fair compared to those of the defendants, at least as far as the instant dispute is concerned. As such, due to the overwhelming other factors, which weigh in the mind of the court in contrast with the single default of the petitioner in coming late with the application for mandatory injunction, the order of the appeal court ought to be set aside.

Accordingly, C. O. No. 2120 of 2016 is allowed on contest, thereby setting aside the judgment and order dated April 30, 2016 passed by the Additional District Judge, Fast Track Court — I, at Tamluk, District — Purba Medinipur in Miscellaneous Appeal No. 3 of 2016.

As a result, order No. 27 dated December 7, 2015 passed by the Civil Judge (Junior Division), Third Court at Tamluk, District- Purba Medinipur, in Title Suit No. 107 of 2014, directing the plaintiffs/opposite party nos. 1 to 6 to remove obstruction created by them in the “muddy baram pathway” situated in plot Nos. 199 and 184 in respect of ingress and egress of the defendants, is revived. There will, however, be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.