Ranjit Sarkar vs Ganesh Das

Heard Mr. S.P. Roy, the learned counsel for the appellant and Mr. J. Roy, the learned counsel for the respondent.

In this appeal under Order XLIII Rule1(r) of the CPC, order dated 06.09.2018 passed in Misc (J) Case No. 631/2018 arising out of T.S. No. 143/2015 pending in the court of learned Civil Judge No. 1, Kamrup (M), Guwahati is assailed. The present appellant as the plaintiff filed TS No. 143/2015 in the court of learned Civil Judge No. 1 Kamrup (M), Guwahati against the defendant/ respondent.

The present appellant as the plaintiff filed T.S. No. 143/2015 in the court of learned Civil Judge No. 1, Kamrup (M), Guwahati for specific performance of contract and permanent injunction against the respondent/defendant. It is the contention that the plaintiff/appellant entered into an agreement for sale dated 11.03.2015, whereby the defendant/respondent promised to sale 4 Lechas of land at a total consideration of Rs. 6,00,000/- (Rupees Six Lacs only) and out of that Rs. 2,00,001/- (Rupees Two Lacs and one rupee) was paid in advance to the defendant/respondent. Contiguously, to the said land measuring 4 Lechas, the wife of the plaintiff/appellant also entered into an agreement for purchase of land measuring 1 Katha 10 Lechas of land covered by K.P. Patta No. 40 Dag No. 567 of Village Garpandu Kumarpara, Guwahati from other Pattadars. The said agreement for sale was executed on 26.09.2014. Over the said plot of land residential house was constructed in the year 2018. On the other hand, after the execution of the agreement for sale dated 11.03.2015, the plaintiff/appellant requested the defendant/respondent to obtain the necessary sale permission, but till date the defendant/respondent had not taken any steps for obtaining the sale permission. On 23.04.2015, the plaintiff/appellant had visited the residence of the defendant/respondent and upon being requested to obtain the sale permission, the defendant/respondent informed that he would not execute the registered deed in the name of the plaintiff/appellant on the ground that the other purchaser was offering higher sale consideration.

The  defendant/respondent  entered  appearance  in  the  suit  and  filed  his  written statement along with the counter-claim. It is the defence of the defendant/respondent that the plaintiff/appellant is occupying railway land and as such the defendant/respondent filed application before the Deputy Commissioner for demarcating his land measuring 10 Lechas. The plaintiff/appellant has illegally encroached land measuring 6 Lechas out of the total 10 Lechas of the land of the defendant/respondent. Denying the execution of the agreement for sale out of his volition, it is pleaded that on 11.03.2015, the plaintiff/appellant forcibly took signatures on blank papers with an intent to purchase the remaining land measuring around 4 Lechas in favour of the plaintiff/appellant. A sum of Rs. 2,00,000/-(Rupees Two lacs) was also forcibly handed over to the defendant/respondent and on the very next date, he visited the house of the plaintiff/appellant for returning the said amount. Later on, the said agreement for sale dated 11.03.2015 was manufactured with the signatures on the blank papers which he took forcibly from the defendant/respondent. The defendant/respondent purchased 10 Lechas of land vide registered sale deed No. 5383/2012 with due requisite sale permission from the competent authority. He applied for mutation of his name in the month of May 2012 and the Lat Mandal went for spot verification of the land in January 2014 and the mutation could not be carried out as around 6 Lechas of land was encroached by the plaintiff/appellant. The defendant/respondent requested the plaintiff/appellant to vacate the encroached 6 Lechas of land, but the plaintiff/appellant delayed the matter with an intention to take over the remaining balance land measuring 4 Lechas and having failed to occupy the said 4 Lechas of land, he forcibly took the signatures on the blank papers. For the said reason, the defendant/respondent filed a counter-claim for eviction of the plaintiff respondent from the land measuring 6 Lechas and to recover khas possession of the said 10 Lechas of land and thereafter to demarcate the entire land. The defendant/respondent confined his prayer to that extent without seeking relief for the permanent injunction. The plaintiff/appellant on the other hand along with the suit filed an application under Order 39 Rule 1 and 2 of the CPC on the basis of which Misc (J) Case No. 141/2015 was registered and vide order dated 29.03.2016, the learned Court below was satisfied to pass an order directing both the parties in the suit to maintain status-quo over the suit land on 29.03.2016 till disposal of the main suit. The said order of status-quo is confined to 4 Lechas of land purportedly under the agreement for sale.

The defendant/respondent later on i.e. on 20.08.2018 also filed an application under Order 39 Rule 1 and 2 of the CPC for grant of temporary injunction covering the land measuring 6 Lechas which he sought for recovery of possession in the counter-claim. As per the statement made in the injunction petition the defendant/respondent alleged that the plaintiff/appellant was constructing pucca structure over the scheduled land in the counter-claim and trying to change the nature of the land in dispute. The plaintiff/appellant filed written statement against the injunction petition. In the objection, the plaintiff/appellant averred that on the western side of the land of the defendant, one Rabindra Dey constructed a three storied building and about 5 Lechas of land is under occupation of Rabindra Dey as per mutual understanding and 1 Lecha of land was acquired for construction of road and as such, no part of the said 6 Lechas of land is under possession of the plaintiff/appellant. It is also raised that the fact of possession and dispossession of the land are not mentioned in the injunction petition and as such the defendant/respondent is not entitled for the relief of temporary injunction.

The learned Court below vide its order dated 06.09.2018 in Misc(J) Case No. 631/2018 disposed of the said petition under Order 39 Rules 1 and 2 of the CPC filed by the defendant/respondent thereby directing the parties to maintain status-quo in respect of the 6 Lechas of land till disposal of the suit.

Being aggrieved the present appeal is filed challenging the said Order dated 06.09.2018.

It is submitted by Mr. Roy that the Court below failed to take note of the fact that the defendant/respondent failed to ask for the relief of the permanent injunction in the counter-claim. That being the position, the Court below ought not to have granted the order of status-quo inasmuch as, it is the cardinal principle that if the party had not sought for the relief of permanent injunction in the suit no order for temporary injunction can also be passed in favour of the said person. It is further submitted that though the defendant/respondent sought for the relief of recovery of khas possession of 6 Lechas of land, but the fact of dispossession of the defendant/respondent from the said 6 Lechas of land is not pleaded. In the said factual matrix the Court below was wrong in granting the order of status-quo.

Mr. J. Roy, the learned counsel for the respondent submits that the Court below has its discretion to pass an order under Order 39 Rule 1 and 2 of the CPC and even if the submission of Mr. Roy is taken into consideration regarding the non seeking of the relief of permanent injunction, the Court below has its jurisdiction to invoke the power under Section 151 of the CPC in order to do justice to the party. The Court below discussed all the three golden principles in a manner considering the pleadings of the parties to the suit and also the balance of convenience by holding that the petitioner had produced documents in support of his claim and title in respect of 10 Lechas of land upon which he claims that the plaintiff/appellant had encroached land measuring 6 Lechas though that can be decided in the Trial Court finally. The Court below also expressed its view by holding that the Court has to weigh the right of both the parties and make a sincere effort that no such order is passed which may cause loss or damage to any of the parties which is difficult to compensate at the later stage. Contending further that the plaintiff/appellant is well protected so far the 4 Lechas of land is concerned, on the other hand, it is the case of the defendant/respondent that 6 Lechas of land is encroached by the plaintiff/appellant and as construction work is being carried out over the alleged 1 Katha 10 Lechas of land standing in the name of his wife, the Court below considered it to be proper atleast to protect the nature of the land covering 6 Lechas of the land of the defendant/respondent.

The submission of the learned counsel's are considered.

A Court can grant the relief of temporary injunction in its discretion which must not be arbitrary, but on sound reasoning guided by judicial principles. The intent and purpose of granting temporary injunction in a proceeding is with the object of maintaining status-quo till the rights of the parties in the suit are determined. In other words, the Court has the power to grant temporary injunction to prevent for ends of justice being defeated. On perusal of the impugned order, it is found that the Court below considered that the Lat Mandal upon spot verification found that the part of the land measuring 6 Lechas out of 10 Lechas was illegally encroached by the plaintiff/appellant. On the other hand, the pleading of the plaintiff/appellant is also considered that he has been in possession of land measuring 1 Katha 10 Lechas by constructing his residential house and entered into an agreement for sale dated 26.09.2014 with the original land owner for purchasing the said land measuring 1 Katha 10 Lechas in the name of his wife. It is also considered that the plaintiff/appellant had also entered into an agreement for sale of land dated 11.03.2015 measuring 4 Lechas out of 10 Lechas. The plaintiff/appellant has carried out construction work in respect of the land purchased by his wife measuring 1 Katha 10 Lechas, but not upon 6 Lechas of land belonging to the defendant/respondent. On the other hand, the allegation of the defendant/respondent is also taken into consideration that the plaintiff/appellant had started construction by encroaching his 6 Lechas of land. The mutation of the name of the defendant/respondent also could not be completed owing to such encroachment.

The learned Court below also considered the sale deed dated 30.04.2012 by way of which the defendant/respondent purchased the land measuring 10 Lechas. It also considered the purchase of 1 Kathas 10 Lechas of land by sale deed 20.04.2018 in the name of the wife of the plaintiff/appellant. The allegation of the defendant/respondent that the plaintiff/appellant started construction over the 6 Lechas of land to carry out permanent structure was considered and finally the Court below held that if the petition is rejected and the construction is allowed to be done by the plaintiff/appellant in due course, it may change the nature of land which shall cause irreparable loss and injury to the defendant/respondent. The balance of convenience is also looked into by the Court below. Finally, considering that on earlier occasion the 4 Lechas of land was covered by an order of status-quo to be maintained by both the parties, the Court below passed the similar order in respect of 6 Lechas of land directing both the parties to maintain status-quo thereon.

Mr. S.P. Roy's contention that without the relief of permanent injunction no order of temporary injunction can be passed in my opinion is true but herein the present case it cannot be held that the impugned order is erroneous. If we consider the reliefs sought for by the counter claimant-respondent it cannot be held that in the guise of the impugned order in the interim, the final relief is granted. It is also the duty of the Court to preserve the suit property till the disposal of the suit for the benefit of the parties to the suit. So in order to assess the situation for granting an order in an application under Order 39 Rules 1 and 2 CPC the Court has to look and apply the principles of prima facie case, balance of convenience and irreparable loss. In the impugned order the Court below has discussed each of the principles and passed the order with sound reasoning which in my opinion requires no interference.

In a case similar to the one in hand, span of the order of the temporary injunction is up to the passing of the judgment after the trial as interlocutory order passed in a suit ends and merges with the final judgment. If no relief of permanent injunction is asked for and even then if an order of temporary injunction is passed under such circumstances, the same will lost its force simultaneously at the instant of passing the judgment after the trial. So in my opinion there is no specific bar in granting temporary injunction under Order 39 Rules 1 and 2 CPC at least till the disposal of the suit in order to maintain the status-quo of the suit property so that none of the parties to the suit are dumped with losses on the passing of the judgment.

It is further submitted by Mr. S.P. Roy that the Court below has applied its discretion keeping in view the factual matrix but it ought to have been reflected in the order inasmuch as the Court has undertaken its authority to pass an order in a counter-claim without the relief of the permanent injunction. I am not agreeable to the said submission as from the impugned order the discretion applied by the Court below is sound based on proper reasonings and the discretion in my opinion had rightly been applied by the Court below. Accordingly, I do not find any merit in this appeal and the same stands dismissed.