IN THE HIGH COURT OF JUDICATURE AT BILASPUR: C.G. 31m .ggm w.P.No.9<aéi5; 0f2006 WRIT PETITION UNDER ARTICLE 227, OF CONSTITUTION OF INDIA Petitioner : Plaintiff Prashant Dave ,aged about 40 years, S/o Late Shri Durgashankar Dave, R/o Pandri, Behind Post Office Pandri, Raipur, Shop Sharda Chuak, In Front of Police Chauki, M.G.Road, Raipur(C.G.) Vs Respondent: Defendant Smt. Shakuntala Devi aged about 53 years, Wd/o Late Shri Rawal Dgg Nagrani R/o Panchsheel Nagar,(fnw «am Om V-rwm a; 3 MW» Raipur Tahs1l & District Ralpur (C G ) kn‘h CJ‘WK ” L B $ 2 HIGH COURT OF CHHATTISGARH BILASPUR Writ Petition No. 2689 0f2006 Pxashant Dave Vs. Smt. Shnkuntala Devi ORDER Post for 14. 12.2006 KL , Sdl— Sunii Kumar Sinha Judge HIGH COURI‘ OF CHI-IATTISGARH BIWUR Writ Petition No. 2689 of 2006 Plashant Dave Vs. Smt. Shalmntala Devi Appemance: Shri Ravish Chandra Agawal, Senior Advocate with Slm‘ ‘ Sanjay S. Agrawal, counsel fbr the peu‘u'onérlplaimiE Shri B.P. Shanna, counsel for the mspondent/dekndnnt ORDER (14.12.2006) SUML KUMAR J. (1) By way of this writ petit'on, med under Article 227 of Consu‘tuu‘on of India, the petitioner/plaintm‘ has challenged the legality, validity and pmpliétaly’of the Older dated 21.3.2006 (Annexure—P/9) passed by the District Judge, Raipur in Misc. Civil Appeal No. 1/2005, by which, the petitioner’s appeal, hled against the order dated 6.2.2006 (Armature-PIS) refusing tempormy ‘ injunction by the trial Court, has been dismissed. (2) The brief facts are that on 12.12006, the peu'tioner Eed a suit for permanent injunction restraining the respondent] defendant hm interfering with his possession of the disputed shop, claiming himself to be the tenant of the respondent. The plaint allegations are that this shop was taken on mnt by the predecessors of the plaintih since long back and presently the plaintid' is running a business in the said shop in the name and style of ‘Swad Sangam’. In the month of December, 2005, the plaintid‘was resuained by the defendant, especially one Shri Sunil Nagrani and Slui Kishore Nagmm', i'mm opening the said shop and he found that the sign boaxd of his shop was lemoved. The matter was reported to the Police on 20.12.2005. When no action was taken by the Police, the plaintid’ had to hie a proceeding u[s 145 of the Code of Criminal Procedure before the Sub-Divisional pa Magstratc and ultimately on this apphcauon, an oxdcr of status quo was gmnted m hm favour Latcr on, on 10 1 2006 the shutters of the shop was bmken by the da'endgnt and the defendant tried m take over the possession of the plaintiff, which gave rise to a cause of action to $e the instant suit for permanent r injunction. Alongmith thesaid civil suit, the plaintm also med an application for temporary injunction mstraim'ng the demdantr mm interfering with his possession during the pendency of the suit. The defendant med a reply to the afoxesaid application, imer- ah'a pleading that in fact, the plaintid‘was not in possession of the Kg suit premises on the date of institution of the suit and the defendant is holding the possession themof since long back. She pleaded that the suit premises was purchased by her on 26.7.2002 and on a lequest being made by her mm the plai'nh'n for vacating the premises, the plamhE ageed to 1t 1n the month of November, 2005 With a condition that he would be paid a sum of Rs.2,50,000[- on account of fumitme and nxtures of the said shop, then only he would hand over the posession of the said shop to the defendant. It is on this, the defendant paid Rs.2 50 000/ to the plaintiE in the month of November, 2005 and vacant possessmn of the shop was taken by her Therefore, her specidc pleading m regard to possession is that she 1s honing the possessmn of the said shop smce the month of November, 2005. (3) The nial Court, after hearing the parties, dismissed the application for grant of temporaly injunction on the ground that the plaintiff could not establish a pm mete case in his favom as he could not iile any document regarding his possession over the suit premises. The trial court also held that the other two questions like balance of wnvenience and irreparable injmy also do not fall in favour of the plaintih' and the plaintid‘ was not entitled to a temporary injunction. (4) In a Misc. Appeal tiled under Order 43 Rule 1(r) of the Code of Civil Procedure, the appellate Court also took the similar View ,and dismissed the appeal of the petitioner holding that the ‘petin'oner was not in possession of the disputed shop on the date of the institution of the suit, therefore, he was not cnh'tled to a temporary injunction and the order passed by the trial Court mfusing temporaly injqnction was just and pmper. It is against this order, the petitionar/ plaintia' has filed this pch'h'on.‘ (5) I have heard learned counsel for the parties at length and have also perused the lecmds of the writ petition. ; ‘51 (6) Shn‘ Ravish Agmwal, Sr. Advocate, appearing on behalf of the petitioner, argued that in View of the law laid down by the Apex Court in the matter of Dorab C Warden ~Vs- Coomi Sat-ab WWII. and others, (1990) 2 SOC 117, and in light of the $cts and circumstances prevailing in this case, an interlocutory mandatory injunction should be yanted in favour of the petitioner, It has been held by the Apex Comt in the said judgment that the relief of interlocutory mandatory injunch'ons are granted generally to preserve or restore the status-qua of the last non-contested status which preceded the pending controversy until the nnal hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken horn the complainant. But since the gaming of such an injunction to a party who mils or would tail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or ‘ alternatively not granting of it to a party Who succeeds or would succeed may equally cause great injustice or irreparable harm, \ courts have evolved certain guidelines. Generally stated these guidelines are: (i) The plaintih‘ has a strong case for trial. That is, it shall be of a higher standard than a p ' a facie case that is normally required for a prohibitmy injunction. (ii) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (iii) The balance of convenience is in favour of the one seeking such relief. l ' However, in pam 17 of the said judgment, the Apax Court mrther said that being essentially an equitable mlicf the grant or refusal of an interlocutory mandatoxy injuncn'on shall ultimotely rest in the sound judicial discmtion of the court to be exemised in the light of the facts and cimnmstances in each case. The Apex Court further said that though the above guidelines ate neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise ofa judicial discren'on. (7) Shri Agawal pointed out and it is also an admitted fact in this case that prior to the present civil suit, another civil suit for decimation and permanent injunction was nled by the defendant on 19.6.2003 praying that the plaintin‘ should be restrained hum making any construction in the rented premises. He submits that in the said civil suit the tenancy between the parties was admitted. However, the said suit was dismissed for non-prosecuu'on on 07.5.2005. His submission is that when tenancy was admitted in the year 2003, in absence of any evidence of termination of lease, it should be deemed to be the last non-contested status and that should be restored by granting temporary mandatory injunction to the plaintid'. He referred to section 1 1 1 of'l‘he Transfer of Property Act saying that there is no evidence of termination of lease between the parn‘es admitted to be existing at one point of time. He smngly emphasized that as per the provisions of sub-clause(e)(i) of the said section, there is no prima facie evidence to prove the determination of the lease by express or implied surrender, therefore, there was a stmng prima facie case in favour of the plaintih',which the Courts below have lost sight of. (8) On the other hand, Shri B.P.Sharma, learned counsel for the respondent submitted that such matters cannot be taken up for consider'ah'on under Arh'cle 227 of the Constitution of India. He relied on the decisions of the Apex Court rendered in the matter of Ouseph Mathai and others -V& M. Abdul Khadir, (2002) 1 SCC 319 and STATE h s Cal New new -vs~ N at Sandhu alias 3mm Guru mm others 2003 6 sec 641 and Suma Dev Rd -Vs- Ram Charmer Kai (2003] 6 sec 675. (9’ In Ouseph Mathai’s case (supra), the Apex Court held that Article 227 confers a right of superintendence over all courts and tibunals throughout the tern'tories in relation to which the High Court exercises the jun'sdich'on but no conesponding right is conferred upon a litigant to invoke the jurisdiction under the said arh'cle as a matter of right. In fact power under thie article casts a duty upon the High Court to keep the inferior courts and tn'bunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duh'es by such courts and tribunals in accmdance with law conferring powels within the ambit of the enactments creating such courts and tribunals. Only wmng decisions may not be a ground for the exercise of jurisdiction under this article unless the wrong is Iefemble to grave dereliction of duty and dagrant abuse of power by the subomdinate courts and nibunals resulting in grave injusn'ce to any party. (10) ln the matter of STATE through Spea'at Cell, New Delhi ~vs- Navjot Sandhu alias A)%han Gym (supra) it was again held by the Apex Court that Article 227 of the Constitution of India g'ves the High Court the power of superintendence over all courts and tribunals throughout the territories in Ielah'on to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits‘of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends ofjush‘ce. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionaly power. It is settled law that this power of judicial superintendence must be exercised sparingly and only to keep subordinate courts and tribunals Within the bounds of their authority and not to correct mere enors. Further, Where the statute bans the exemise of mvisional powers it would requile very exceptional cimumstances to waxrant interference under Article 227 since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jmisdiction under Article 227 could not be exercised in the “cloak of an appeal in disguise”. (11) In the other case i.e., Surya Dev Rai (Supra), the Apex Court again held that the power of High Court under Articles 226 85 227 of the Consh‘tution is always in addih'on to the revisional jurisdicn'on conferred on it. The curtailment of revisional jurisdich'on of the High Court under section 115 CPC by Amendment Act 46 of 1999 does not take away and could not have taken away the constitutional jurisdich'on of the High Court to issue a writ of certioran‘ to a civil court, nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whittled down. The power exists, untmmmeled by the amendment in Section 115 CFC, and is available to be exercised subject to rules of self-discipline and practice which are well settled. (12) There is no doubt in the mind of this court regarding nature of supervisory jurisdiction conferred under Arh'cle 227 and that iimitations on the rights of a party to get the wrong decision conected by exercising such jurisdiction. This Court has full jurisdich'on to correct a wrong if it is refeiable to grave deielictioii of duty and hagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to a party. However, in a matter like present one Where the revisional jurisdiction of the High Court is taken away by Amendment Act 46 of 1999, the power of superintendence is to be exercised subject to the rule of self-discipline and the practice. (13) The present is not a case in which the plaintih' has prayed for a temporary mandatory injunction in the trial Court. It is also not a case in which the plaintih‘ is saying that he was holding the possession of the suit premises as a tenant on the date of hling of t the suit and was dispossessed by tbs action of the defendant during the pendency of the suit and in the changed scenario, a temporary mandatory injunction has become necessary to meet the ends of justice. If we examine the plaint as well as the injunction application, it would appear that the plaintin’ claims to be in possession of the suit premises since long back and the cause of action amse when the dekndant tried to dispossess the plaintih' by various means and he is apprehending his dispossession. It is in this scenario, the courts below have passed the orders by holding that the plaintinwas not in possession of the suit premises on the date of institution of the suit; themfore, he was not entitled to a lelief of temporary injunction. It is, for the Iiist time, coming before the High Court that the High Court should exercise its superintending jurisdiction by passing an Older of temporary mandatmy injunction in the present facts and circumstances of this case. However, here also the plaintin‘ has not pleaded or even brought to the notice of the Court as to when he lost the possession or how he was dispossessed for clam‘iing an order of temporary mandatory injunction. The phrase used by the Apex Court in Dorab Cawasji Warden’s case (supra) like “last non- contested status" is always with reference to the status which immediately preceded the pending controversy and not beyond it. In the case on hand, Shri Agrawal canvasses, after referring to the ~ plaint of the earlier case, that admittedly the plaintin‘was tenant of the defendant in the year 2003 and if he has been evicted by force, his possesion should be restored on the said admission between the parties regarding ern'stence of tenancy in the year 2003 which continued later on. In the opinion of this Court, this cannot be held to be “last non contested status” as it was an old status and in fact, the plainn'h‘ could not point out as to when such status was lost and he was forcibly evicted by the defendant. Rather his case before the Courts below was that he was still continuing with the possession of the premises and his possession should be protected. The prayer regarding inte ‘ mandatoryinjunction without placing on record, the factum about last non-contested status between the parties pertaining to its date etc., cannot be held to be bona-ji'de and clean hand dealing by the plaintw'which is necessaly fdr grant of such a relief claimed for the &st u'me before the High Court. (14-) The trial Court as well as the &st appellate Conn has taken the View that the plaiuim' could not establish that he was holding the possession of the pmmises on the date of institution of the suit and the injunction application was dismissed. The appellate Court has also held that when an older of status quo was already gtanted in favour of the plaintih' prior to the institution of the suit by the Sub-Divisional Mag'strate, then, the said order itselfwas a su$cient weapon in the hands of the plaintih‘ to protect his possession and non-utilising that order and hling a suit for permanent injunction praying interim injunction thelein, is itself swcient to prima facie establish that,in fact, the plainn'hwas not in possession of the suit premises prior to the date of institution of the suit and he was not entitled to a relief of tempomry injunction. It is in this scenario, the plainttd’ is claiming a mandatory temporary injunction before this Comt, for the hlst time, without blinging on lecord the pleadings in Ielau'on to his dispossession with leference to the time and manner so as to apprise this Court about the necessity of passing such an order in his favour, which this Court can pass, on the principles laid down in Dorab Cawasji ‘ Warden’s case (supra) treating the present as an exceptional case. In the opinion of this Court, the trial Court as well as the hrst appellate Court has tightly rethsed the temporary injunction and this case does not fall in the category of exceph‘onal case so as to bring it Within the exceptions noticed in the judgment of Dora!) Cawasji Warden’s case (supra). (15) The matter does not call for inteiference by this Court under Article 227 of the Consn'tution of India. The petition has no merits. The same is dismissed. (15) L. Sdl— 3‘ Sunil Kumar Sinha ‘ Judge No costs.