AI Structured Summary
Not yet generated for this judgment
Judgment
Ahsanuddin Amanullah, J.—Learned counsel for the Petitioners submits that in view of order dated 3.5.2011 an interlocutory application for substituting the heir of Petitioner No. 1 who died on 1.3.2011 being LA. No. 3510 of 2011 has already been filed.
Perused the said LA. the Respondent has no objection to the prayer made in the LA.
It appears that power on behalf of the proposed substituted Petitioner No. 1 is also enclosed with the said LA.
LA No. 3510 of 2011 stands allowed. Let the name of Petitioner No. 1 be deleted and substituted by his wife, as detailed in paragraph No. 2A of the LA.
Heard Mr. S.S. Dvivedi, learned Senior Counsel for the Petitioners and Mr. Md. Anis Akthar counsel for Respondent No. 3 and the State. It is pointed out that notices were issued and duly served on the remaining private Respondents, that is, Respondents No. 1, 2 and 4 to 7.
This writ petition has been filed against the order dated 6.11.2009 passed by the learned District Judge, Muzaffarpur in Misc. Appeal No. 4 of 2009 by which he has set aside the order dated 21.2.2009 passed by the learned Munsit, East Muzaffarpur in Title Suit No. 69 of 2008. By order dated 21.2.2009, originally the injunction was granted to the Plaintiffs who are the present Petitioners. Being aggrieved the private Respondents filed Misc. Appeal No. 4 of 2009 and after hearing the parties the learned District Judge, Muzaffarpur, set aside the order dated 21.2.2009 by his order dated 6.11.2009 which is under appeal in the present writ petition.
The brief facts of the case are noted herein below:-
The forefather of the writ Petitioners was the mortgagee under deed executed on 6.10.1950 by the ancestor of the private Respondents. As per the terms of the said deed the mortgage period was three years which was the time fixed for its redemption. The parties are hotly contesting the factum of injunction and return of money. The learned Munsif bypassing order dated 21.2.2009 in Title Suit No. 69 of 2008 had granted injunction in terms of which status quo had been ordered to be maintained with regard to the disputed property as well as house. The private Respondents who are defendants in the suit moved in Misc. Appeal No. 4 of 2009 before the learned District Judge, Muzaffarpur and he by order dated 6.11.2009 set aside the order dated 21.2.2009.
Learned counsel for the Petitioner has strenuously taken me to various documents narrating the evidences and also the facts.
After going through the impugned order and after hearing the counsel for the Respondents this Court finds that the original mortgage deed is the most relevant piece of document on which a Court especially a writ court can form an opinion as to prima facie case of the Plaintiff-Petitioners. Since the same was originally in kaithi, as per the directions of this Court, the registry has made available a translated English copy of the same which is on the record. From going through the said deed it is apparent that though the period of mortgage begin from 6.10.1950 and was for a period of three years during which it has to be redeemed, but there is a provision made in the recital itself which is quoted herein below:-
if for any reason, the principal loan amount is not repaid on the stipulated date, in such a circumstance, this mortgage bond shall remain in force as it is till repayment of the loan amount and there shall be no need to execute any new deed.
From reading the above provision it is clear that the author of the deed to the full knowledge of the beneficiary that is the mortgagee had put the said stipulation and thus in the opinion of this Court as per the will and mutual consent and agreement of the parties the said clause has been inserted which does not give the right to the mortgagee or his present heirs to enforce a right on the basis that as per the Limitation Act the right of redemption has extinguished. Learned counsel for the Petitioners has mainly taken two points in support of his case. He has firstly contended that the private Respondents have not filed any suit for redemption. Secondly, he contends that since the suit is for the entire land based on the mortgage deed itself, any order for injunction shall necessarily have to be passed with regard to the whole area. In support of his contention he has also drawn the attention of this Court to a judgment of the Hon''ble Supreme Court passed in the case of Maharawal Khewaji Trust v. Baldev reported in 2005 (1) BBCJ (SC) 123.
Coming to the merits of the case, this Court at this stage is neither required nor is willing to finally decide the issue which is left upon to be decided in any appropriate case on the appropriate time. Suffice it would be to state here that prima facie due to the reasons stated above, especially the provision itself made by the author of the deed, this Court is not satisfied that the Petitioners have a case for grant of injunction on the entire piece of land as detailed in the mortgage deed. Coming to the other two principles of grant of injunction that is balance-of convenience and irreparable loss, taking into consideration the fact that the Petitioners-Plaintiffs have themselves stated in the plaint at paragraph 10 that they are doing business of sport items in a room of the schedule-1 property and south of the said shop resided with his family and on the remaining constructed portion they allowed the mortgagor to live as their tenant. Later on in paragraph 12 of the plaint it is the further case of the Plaintiffs that the father of the Plaintiffs and defendants second party constructed a separate residential house near the schedule-1 property, which is not the subject matter of the suit property, and shifted their residence from schedule-1 property.
However, the Petitioners have somehow made out a case for grant of injunction but only with regard to one shop room in the suit property where they carry on business as they themselves have stated in the plaint that they are in possession of the same. As stated above it is his case that the private Respondents are in possession over the rest as tenants. Tenancy is alleged but no paper/ document with regard to tenancy or rent has been brought on record. So, at this stage prima facie case is not made out with regard to seeking injunction on the entire schedule-1 property.
As far as the judgment quoted by the learned Senior Counsel for the Petitioners, the case is not applicable to the facts of the present case for the reason inter alia that already some portion of the land have been sold out and also the Petitioners have been satisfied with the position and it is not their case that they are being evicted from one shop room of which they are in possession. Besides this, for grant of injunction there is no straightjacket law or rule. The basic principles of prima facie case, balance of convenience and irreparable loss is to be seen in the context of the facts of each case and then these have to be balanced vis-a-vis the rights of the parties to the litigation. In the present case the Plaintiffs-Petitioners right are already protected in the sense that doctrine of list pending is applicable to such proceedings.
In view of the discussions made above this Court is not inclined to interfere with the order under appeal passed by the learned District Judge, Muzaffarpur in Misc. Appeal No. 4 of 2009 but the same is modified to the extent that the Plaintiffs-Petitioners shall be protected and status quo shall be maintained with regard to the portion over which they admittedly as per their own saying have possession, that is, one shop room.
This writ petition is disposed off with the aforesaid modification and with a further direction to the learned trial Court to expedite the suit which shall be decided on merits without being influenced by any observation made in this order.