^ A HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION C227) No. 6315 of 2008 PETITIONERS DEFENDANTS '•^ Shri Santosh Kumar & another. VERSUS RESPONDENTS : PushpaKumar & Others. PLAINTIFFS Post for pronouncement ofthe Judgment and Order on Sd/- Satish K. Agnihotri Judge r^~- '"• s%>, / .y g^.- '8. % f 1 ^ fflGH COURT QF CHHATTISGARH AT BILASPUR WRIT PETITION (227) No. 6315 of2008 PETITIONERS DEFENDANTS RESPONDENTS PLAINTIFFS : 1. Shri Santosh Kumar, aged 38 years, S/o Shri Banshidas Vaishnav. 2. Shri Laxini Kumar S/o Banshidas, Caste Vaishnav, aged 45 years. (Both R/o village Bipatpur, P.H. No. 24, Revenue Division & Sub - Tehsil Kunda, Tehsil Pandaria, Distt. Kabirdham (C.G.) VERSUS : 1. Pushpa Kumar S/o Banshi Das, aged 50 years. 2. Vishwaraj S/o Pushpa Kumar, aged 31 years. 3. Rajkeshar S/o Pushpa Kumar, aged 29 years. 4. Jageshwar S/o Pushpa Kumar, aged 27 years. (All R/o village Bipatpur, P.H. No. 24, Revenue Division & Sub Tehsil Kunda, Tehsil Pandaria, Distt. Kabirdham (C.G.) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA SB : Hon'ble Shri Satish K. Agnihotri, J. Present: Shri Sanjay S. Agrawal, Advocate with Shri Ainrito Das, Advocate for the petitioners. Shri Prafull Bharat, Advocate for the respondents. (Passed on ^^day of December, 2008) 1. Challenge, in this petition is to the order dated 06.11.2008 (Annexure P/l) passed in Misc. Civil Appeal No. 05/2008 by the District Judge, Kabirdham (Kawardha) whereby and whereunder the order dated 01.08.2008 (Annexure P/12) passed by the Civil Judge, Class II, Pandariya, in Civil Suit No. 04-A/2008, rejecting the application filed under Order 39 Rule 1 and 2 ofthe Code ofCivii Procedure, 1908, (for short 'the CPC') was set .fC"1 •^ ^ '?^, ^^-^-y ^^MS^' aside and the District Judge granted interim injunction in favour of the respondents/plaintiffs. 2. The brief facts, in nutshell^ as projected by the petitioners/defendants are that the respondents/plaintiffs filed a suit for permanent injunction alongwith an application under Order 39 Rule 1 and 2 ofthe CPC seeking temporary injunction against the petitioners/defendants from entering or interfering with the possession of the respondents/plaintiffs of the plaint schedule land. The Civil Judge, Class II, Pandariya, Kawardha, after having heard both the parties and considered all the facets^ by order dated 01.08.2008^ dismissed the application ofthe respondents/plaintiffs holding that the respondents/plaintiffs have failed to establish a prima facie case, balance of convenience and irreparable loss in their favour. The learned Civil Judge, afiter considering all the affidavits and documentary evidences, observed that the plaint schedule land is in joint possession ofthe plaintiffs and the defendants and without considering the case at length, it is difficult to determine the possession of each of the parties so as to grant interim injunction. Earlier, the petitioners/defendants have objected to the respondents/plaintiffs for mutation ofthe land in their possession. In vievv ofthat, it was held that it was not a case for interim injunction. 3. Being aggrieved, the respondents/plaintiffs filed an appeal before the Additional District Judge^ Kabirdham (Kawardha) being Miscellaneous Civil Appeal No. 05/2008. The learned Judge, considering all the aspects held that the respondents/plaintiffs have stated about the partition of the land and the respondents/plaintiffs have produced a document also in support of their statement. The petitioners/defendants have not produced any document in reubuttal ofthe statement and documents produced by the ril .^. ^r^:.-:- '^^,g respondents/plaintiffs. In that view ofthe matter, the respondents/plaintiffs have prima facie established their possession and as such, thc respondents/plaintiffs have proved that the balance of convenience is in their favour and they would suffer irreparable loss. Accordingly^ the order dated 01.08.2008 passed by the Civil Judge, Class II was set aside and the application under Order 39 Rule 1 and 2 filed by the respondents/plaintiffs was allowed by order dated 06.11.2008 (Annexure P/l). Thus^ this petition. 4. Shri Sanjay S. Agrawal, learned counsel appearing for the petitioners/ defendants submit that the order dated 01.08.2008 (Anriexure P/12) passed by the Civil Judge, Class II was just and proper as the main dispute between the parties was with regard to partition ofthe plaint schedule land. The respondents/plaintiffs have failed to establish prima facie case and balance ofconvenience and irreparable loss in their favour. The finding of the appellate court with regard to partition that partition had taken place is without a plea taken by the plaintiffs. On pemsal of the pleadings, it appears that the plaintiffs have not taken plea ofpartition. Panch Faisla has complefely been ignored. Thus, reversal ofthe fmdings ofthe trial court by the first appellate court is without any basis as the learned Judge has failed to consider Panch Faisla and the averments in the plaint. It is a Joint Hindu Family property and no injunction could be granted against the co- parsoners. 5. Per contra, Shri Prafull Bharat, learned counsel appearing for the respondents/plaintiffs would submit that the respondents/plaintiffs are holding the suit property as absolute owner and are in settled possession. The revenue records also indicate that the respondents/plaintiffs are the Bhumi Swami of the land in dispute and on the other hand, the ^ petitioners/defendants have failed to to rebut the same by filing any document, as held by learned District Judge. Learned counsel further submitted that for considering the application for grant of injunction, a prima facie case, balance of convenience and irreparable loss of seeker of the interim injunction may be considered. The interim injunction is even otherwise a discretionary jurisdiction ofthe court. 6. Having heard learned counsel for the parties, it appears that prima facie petitioners/respondents have failed to rebut the findings recorded by the trial court. The petitioners/defendants have made some statement without support ofany document. At this stage, it is not proper to go into the merits ofthecase as pleaded by learned counsel appearing for both the parties. 7. It is well night settled that the High Court whlle exercising its super^isory jurisdiction under Article 227 of the Constltution of India has limited jurisdiction that unless there is any grave miscarriage ofjustice or flagrant violation of law or the Court has mis-directed its order on law and fact, the High Court should restrain itself j&om interfering with such fmding made by the courts below. In Waryan Singh and another v. Amarnath and another, the Supreme Court held that the power of superintendence conferred by Article 227 of the Constitution of India be exercised most sparingly and only in appropriate cases in order to keep the subordinates Courts within the bounds of their authority and not for correcting mere errors. 8. In case of Sree Jain Swetambar Terapanthi vid (S) Phndan Singh and others , in para 12 has held as under: 1AIR1954SC215 2AIR1999SC2322 6C^~ f€^\ I ^fc 1 -^•' "It may be pointed out that it is one thing to conclude that the trial court has not recorded its prima facie satisfaction on merits but granted the temporary injunction and it is another thing to hold that trial Court has gone wrong in recording the prima facie satisfaction and setting aside that fmding on the basis ofthe material on record because it has not considered the relevant material or because it has erroneously reached the fmding or conclusion on the facts established. In the first situation, the appellate Court will be justified in upsetting the order under appeal even without going into the merits ofthe case but in the second eventuality^ it cannot set aside the impugned order without discussing the material on record and recording a contrary finding. The High Court proceeded to set aside the order ofthe trial Court on the first ground ignoring the aforementioned findings of the trial court^ the order under appeal is, therefore, unsustainable." 9. In Surya Dev Rai v. Ram Chander Rai & Others , the Supreme Court reiterated the legal position oflaw as settled earlier by the Supreme Court in catena of decisions that the High Court in supervisory jurisdiction would not convert itselfinto a court of appeal and indulge in the re-appreciation of evidence or evaluation of errors or correct errors in drawing inference or correct mere technical or formal errors. 10.In the niSiUer of Hindustan Petroleum Corpn. Ltd, v. Sriman Narayan and another , the Hon'ble Supreme Court observed as under: "7. It is elementary that grant of an interlocutory injunction during the pendency ofthe legal proceeding is a matter requiring the exercise of discretion of the court. While exercising the discretion the court normally applies the following tests: (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour ofthe plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed." ll.The ratio laid down in the matter of Hindustan Petroleum Corpn. Ltd (supra) was reiterated in the matter of Seema Arshad Zaheer and others v. Municipal Corpn. ofGreater Mumbai and others5 , and held as under: 'AK. 2003 SC 3044 4 (2002) 5 SCC 760 ^^^^^ ^r"?%, t®^'- ^^-^^. ^ "<<^?s\ K t ^, ""^'^ ^; v ^^.^^f '^<f3^s^'' "30. The discretion ofthe court is exercised to grant a temporary injunction only when the following requirements are made out by plaintiff: (i) existence of a prima facie case as pleaded, necessitatmg protection of the plaintiffs rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiffs rights 1s compared with or weighed against the need for protection of the defendant's right or likely inj6'ingement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiffs conduct is free from blame and he approaches the court with clean hands." 12.Having applied the ratio laid down by the Supreme Court in the aforementioned cases, it is well established that in case of grant of interim injunction, the respondents/plaintiffs have to prove a prima facie case, balance ofconvenience and irreparable loss in their favour. This Court, in exercise of its jurisdiction under Article 227 of the Constitution of India, should not interfere with any order, unless there is grave miscarriage of justice or flagrant violation oflaw or the court has mis-directed its order on law and fact. The facts of this case are all disputed. Thus, it is difficult to establish a prima facie case for either parties. IS.Having regard to the facts situation of the case the petition is allowed partly^ modifying the appellate order to the extent that the parties shall maintain status quo in respect ofall the facets ofthecasetill disposal ofthe suit before the court ofCivil Judge, Class II. No order asto costs. Sd/- Satish K. Agnihotri Judge Amit ' (2006) 5 SCC 282