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Judgment
Abhilasha Kumari, J.—Rule. Mr. R.C. Kakkad, learned advocate, waives service of notice of Rule on behalf of respondents Nos. 1 and 2. Respondent No. 3 has been served but has not chosen to put in an appearance before the Court. Looking to the controversy involved in the petition which is mainly between the petitioner and respondents Nos. 1 and 2, it is not necessary to issue notice of Rule to the said respondent.
In view of the nature of the issue involved in the petition and with the consent of the learned counsel for the respective parties, the petition is being heard and finally decided.
This petition under Articles 226 and 227 of the Constitution of India has been preferred with a prayer to quash and set aside the impugned order dated 24.06.2013, passed by the learned Principal Senior Civil Judge, Jamnagar, below the application at Ex. 50, preferred by the petitioner for early hearing of the application at Ex. 5, for grant of an interim injunction.
The brief facts of the case, as relevant for the decision of the petition are that, the petitioner claims to be the owner and occupier of the land bearing Revenue Survey No. 249, admeasuring 2820 sq. meters, situated at Motikhavdi, Jamnagar, which he has inherited from his father, who, in turn, purchased the land under a document dated 25.03.1977. According to the petitioner, a specific recital is made in the said document taking note of a 9 meter road that runs adjacent to the purchased land, through which a right of way is conferred to the petitioner to access the said land. Since then land has been converted for non-agricultural purposes vide order dated 22.06.2000 and it is specifically noted that there is a right of access through the 9 meter road. It is the case of the petitioner that the original defendants (respondents Nos. 1 and 2 herein) are attempting to obstruct the 9 meter road by making a construction upon it.
4.1 The petitioner filed the suit, being Regular Civil Suit No. 69 of 2011, on 07.02.2011. The application at Ex. 5 for the grant of an interim injunction was filed by the petitioner on the same day, along with the suit. According to the petitioner, the Trial Court has not passed any order on the application at Ex. 5, in spite of the fact that the original defendants have filed several applications, some of which are rejected, with the sole purpose of delaying the hearing of the application at Ex. 5. Respondents Nos. 1 and 2 have filed an application at Ex. 49, for getting the Suit property measured by the District Inspector of Land Records (''DILR'' for short). The petitioner, therefore, filed an application at Ex. 50, with a prayer that his application at Ex. 5, for the grant of an interim junction, may be decided first. The said application of the petitioner has been rejected by the impugned order, giving rise to the filing of the present petition.
Mr. Dhaval D. Vyas, learned advocate for the petitioner, has taken this Court through a copy of the Rojkam of the Trial Court, annexed at Annexure-J to the petition. He has submitted that from 28.02.2011 onwards, the application at Ex. 5 has been listed for hearing on successive dates. Despite the fact that it has been listed for hearing on several dates, the Trial Court has not taken up it for hearing but has heard and decided the applications at Exs. 15, 24 and 22, filed by respondents Nos. 1 and 2, while keeping the petitioner''s application pending. That there are at least twenty one dates in the Rojkam, on which the application at Ex. 5 is shown as pending for hearing. Respondents Nos. 1 and 2 are filing application after application with a view to delaying the hearing of application at Ex. 5, which are being decided by the Trial Court. The petitioner is seriously prejudiced, as in the absence of a hearing of the application at Ex. 5, he is unable to access the land due to the obstruction put up by the respondents on the 9 meter road, which is the only way of access. That the conduct of respondents Nos. 1 and 2 ought to be taken note of, as they are deliberately filing successive applications with a view to prevent the hearing of the application at Ex. 5, which are being decided by the Trial Court. The learned advocate for the petitioner has placed reliance upon the judgment of the Supreme Court in the case of Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. reported in AIR 1995 SC 3105.
5.1 It is further submitted that the order of the Trial Court is an unreasoned one. No cogent reasons have been assigned for rejecting the application of the petitioner for the hearing of the application at Ex. 5.
On the other hand, Mr. R.C. Kakkad, learned advocate for respondents Nos. 1 and 2, has submitted that the Mamlatdar has observed in his order, that considering the record of the proceedings under the Mamlatdar Courts Act, the petitioner has no right of way and a ''conspiracy'' has been hatched by the petitioner.
6.1 It is further submitted on behalf of the respondents that respondents Nos. 1 and 2 have filed the application at Ex. 49 to get the land measured by the DILR, as it is necessary to measure the property of both the petitioner and the respondents, in order to bring out the factual position regarding the right of way. This aspect has weighed with the Trial Court while passing the impugned order, and it has rightly been held that the application for measurement of the land by the DILR ought to be heard before the application at Ex. 5. There is no legal infirmity in the order of the Trial Court, therefore, the petition be dismissed.
This Court has heard learned counsel for the respective parties and perused the averments made in the petition, contents of the order and other documents on record.
There is no dispute regarding the fact that the petitioner has instituted the suit on 07.02.2011. The application at Ex. 5, for the grant of an interim junction has also been filed on the same day, along with the suit. The copy of the Rojkam annexed at Annexure-J to the petition clearly shows that on at least twenty one dates, the application at Ex. 5 has been listed for hearing before the Trial Court. It is not disputed that the original defendants, respondents Nos. 1 and 2 herein, have filed an application at Ex. 15 under Order 7 Rule 11, that has been heard and rejected. Another application at Ex. 24, for impleadment of parties has also been heard and rejected. The third application filed by the said respondents at Ex. 22 has been heard by the Trial Court and ultimately rejected. It is after the hearing and decision of the above three applications, that the respondents have filed the application at Ex. 49, for measurement of the land by the DILR.
The petitioner has filed the application at Ex. 50 praying for the hearing of the application Ex. 5, for grant of an interim injunction, before hearing the application at Ex. 49 filed by respondents Nos. 1 and 2. It is this application that has been rejected by the Trial Court, by the impugned order.
A perusal of the impugned order makes it evident that apart from reproducing the submissions advanced on behalf of the parties, no reasons have been disclosed by the Trial Court for rejecting the petitioner''s application at Ex. 50, for the hearing of the application at Ex. 5. The Trial Court has only stated in the impugned order that in its view, it would be in the interest of justice to first hear and decide the application at Ex. 49, for measurement of the land by the DILR, instead of hearing and deciding the application at Ex. 5. How, and in what manner, the interest of justice would be advanced by not hearing the application for the grant of a temporary injunction and by first hearing the application for measurement of the land by the DILR, is not discernible from the impugned order. Though the Trial Court is not precluded from deciding any application preferred by the parties, normally, the Trial Court would decide the application for the grant of an interim injunction as early as possible, taking into consideration the complications that may arise, and consequences that may follow, if such an application is not decided.
In this regard, the principles of law enunciated by the Supreme Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. (Supra) may be taken into consideration, and are reproduced hereinbelow
We, however, think it fit to note hereinbelow certain specific considerations in the matter of grant of interlocutory injunction, the basic being non-expression of opinion as to the merits of the matter by the Court, since the issue of grant of injunction usually, is at the earliest possible stage so far as the time-frame is concerned. The other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below:-
(i) Extent of damages being an adequate remedy;
(ii) Protect the plaintiff''s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor;
(iii) The Court while dealing with the matter ought not to ignore the factum of strength of one party''s case being stronger than the others;
(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case - the relief being kept flexible;
(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties'' case;
(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;
(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.
(emphasis supplied)
The Supreme Court has observed in the above-quoted judgment that normally, the Court would consider the application for grant of an injunction at the earliest possible stage, so far as the time frame is concerned. It has further delineated certain other considerations that ought to weigh with the Trial Court for hearing the application for grant of an injunction though, at the same time, it has been observed that there are no fixed rules or notions and relief ought to be granted on the facts and in the circumstances of each case. One of the considerations that ought to weigh with the Trial Court is that if an application for grant of an injunction is not heard, the plaintiff may suffer irreparable loss. The balance of convenience and prima-facie case are also factors that ought to be considered at the early stage of the Suit. It may also transpire that the delay in hearing the application for the grant of an injunction may prejudice the plaintiff or render the suit almost infructuous.
The petitioner has pleaded that he has no access to his land, as an obstruction has been created by respondents Nos. 1 and 2 on the road. It is not for this Court to opine whether the petitioner has a prima-facie case, or not, as that is within the jurisdiction of the Trial Court. However, it does appear that the Trial Court is not exercising the jurisdiction vested in it, in the present case, for some reason or the other, in spite of the fact that the application for grant of an interim injunction has been enlisted before it on at least twenty one occasions. On the other hand, the Trial court has thought it fit to hear and decide three applications filed by respondents Nos. 1 and 2 and has expressed an opinion in the impugned order that the fourth application (Ex. 49) filed by the said respondents ought to be decided first, before hearing the application at Ex. 5.
After viewing the matter from all angles, this Court is unable to find even a single cogent reason in support of the conclusion arrived at by the Trial Court in the impugned order. Sufficient time has elapsed since the institution of the suit on 07.02.2011, and the filing of the application for the grant of an injunction on the same day. The petitioner has only made a prayer for the hearing of the said application. There does not appear to be any justifiable reason for not hearing the said application expeditiously.
In the view of this Court, the refusal of the Trial Court to hear the application for injunction cannot be accepted. The defendants would naturally try to delay the hearing and decision of the application at Ex. 5, but that does not mean that the Trial Court should ignore the factual and legal position and refuse to hear the application for the grant of an injunction that is pending ever since 07.02.2011. The impugned order of the Trial Court, apart from being unjustified, discloses a lack of reasoning and shows non-application of mind.
Insofar as the submission of the learned advocate for respondents Nos. 1 and 2 to the effect that the Mamlatdar, in proceedings under the Mamlatdar Courts Act, has opined that the petitioner has no right of way and a ''conspiracy'' is hatched by him are concerned, the observations are not binding either on the Trial Court, or this Court, especially, as the Suit before the Mamlatdar was disposed of without effective hearing.
A Civil Court has to arrive at a just and proper conclusion after considering all aspects of the matter. Taking into consideration the aspect that the application for the grant of an junction has been filed on 07.02.2011 and almost two years have elapsed since then, and in view of the aspect that the impugned order is an unreasoned one and discloses non-application of mind, the following order is passed:
The impugned order dated 24.06.2013 is quashed and set aside. The Trial Court is directed to hear and decide the application at Ex. 5, filed by the plaintiff, in accordance with law, after granting an opportunity of hearing to the parties and without being influenced by the factum of the filing of the present petition. The hearing and decision of the application at Ex. 5 shall be concluded within a period of three months from the date of the receipt of a copy of this order.
Needless to say, the respondents shall co-operate in the hearing and decision of the said application.
The petition is allowed, in the above terms. Rule is made absolute, accordingly.
Direct Service of this order is permitted.