IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. OSA No.3/2006 Reserved on:25.8.2009 Decided on:1.9. 2009 __________________________________________________ Anup Dutta. …Appellant. Versus Mohinder Singh alias Mohan Inder Singh and others. …Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Acting Chief Justice. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. G.C. Gupta, Sr. Advocate with Mr. Ashish Jamalta, Advocate for the appellant. For the Respondents: Mr. Neeraj Maniktala, Advocate for respondent No.1. Mr. Ravi P. Mehrotra, Mr. Rajnish Maniktala and Mr. Rajinder Ghoga, Advocates for respondents No.2 and 3. ___________________________________________________________ Per R.B. Misra, A.C.J. This Original Side Appeal has been directed against the order dated 13.12.2005 of the learned Single Judge in OMP No. 301 of 2005 in Civil Suit No. 38 of 2005, whereby he has dismissed the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure of the 1 Whether reporters of the local papers may be allowed to see the judgment? 2 appellant/plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake). Brief facts necessary for the adjudication of this Original Side Appeal are that the plaintiff has filed a suit for specific performance of agreement dated 3.7.2002 executed between respondent-defendant No. 1 and plaintiff in respect of the land as detailed in the plaint and also for declaration to the effect that document dated 24.7.2002 and 25.7.2002 be declared void and inoperative against the rights of the plaintiff and the sale deeds No. 1054 dated 19.9.2003, 1104 dated 3.10.2003 and 77 dated 17.1.2004 be declared illegal, void and inoperative against his rights. The respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) contested the suit by filing a written statements. The plaintiff had also filed application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The learned Single Judge passed the following ex parte order on 14.7.2005: “Notice returnable for 31st August, 2005. In the meanwhile, respondent-defendants shall maintain status quo in respect of the nature, ownership and possession of the suit property, subject matter of dispute. This shall be subject to the compliance of order 39 rule 3 of the Code of Civil Procedure. The plaintiff shall file an affidavit of compliance by 15th July, 2005.” The defendants filed replies to the application preferred by the plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The learned Single Judge dismissed the OMP No. 301/2005 and vacated order dated 14.7.2005 on 13.12.2005. The present appeal has been preferred against the order dated 13.12.2005. 3 Mr. G.C. Gupta, Senior Advocate has vehemently argued that the order passed by the learned Single Judge on 13.12.2005 is not sustainable. He then contended that the learned Single Judge has not taken into consideration the settled law for the grant of injunction while dismissing the application. He further contended that his client had made out a prima facie case qua possession. He lastly contended that the learned Single Judge has not taken into consideration the documents placed on record by the plaintiff in right perspective. Mr. Ravi P. Mehrotra. Advocate with Mr. Rajnish Maniktala and Mr. Neeraj Maniktala Advocates appearing on behalf of the defendants have supported the order dated 13.12.2005. We have heard the learned counsel for the parties and have gone through the records carefully. The agreement is dated 3.7.2002. According to the averments contained in the plaint the possession was handed over to the plaintiff on 3.7.2002 by the agent of defendant No.1. He has brought this fact to the notice of the Pradhan of Gram Panchayat, Gopalpur. It is further averred that he has sold the grass to few villagers on 7.7.2002. Defendant No.3 tried to take over the possession by plaughing the fields on 11.7.2002 by employing tractor. He thwarted the attempt of defendants to take possession of his land. The matter was also brought to the notice of the Station House Officer on 13.7.2002 and 5.1.2003. The defendants have contested this claim of the plaintiff. According to them, the plaintiff was never put in possession of the suit land. According to the plaintiff’s own version, he was put in possession of the suit land on 3.7.2002. The present suit has been filed in the year 2005. The plaintiff has not explained why he has waited for three long 4 years to assert his possession. Mr. G.C. Gupta, Senior Advocate has argued that the matter was brought to the notice of the Police and Pradhan of the Gram Panchayat, Gopalpur when the defendants tried to take possession forcibly of the suit land. He has also relied upon one affidavit signed by Sh. Mahinder Singh. The affidavit cannot be read in evidence. The plaintiff has not placed any tangible material on record to establish his possession except making averment that he has been making the complaints to the Police authorities as and when the defendants tried to take forcible possession of the suit land. He has remained silent for three long years. He has not even given the names of the persons to whom he sold the grass on 7.7.2002. He has not given even the details in what manner the possession was handed over to him pursuant to agreement dated 3.7.2002. It was necessary for him to assert his right qua his possession within reasonable period. The defendants have relied upon the documents issued in their favour by Tea Factories to the effect that defendant No.3 has been supplying Tea to them. They have also relied upon electricity bills, telephone bills and receipts regarding payments of such bills. These electricity and telephone connections exist in the name of defendant No.2 in village Gopalpur. The learned counsel appearing on behalf of the defendants had fairly agreed before the learned Single Judge that so far as the nature of the property was concerned his clients had no plans to change the nature of the same though they had been bringing out some improvements in the tea garden by replacing the old bushes with new plantation. The learned Single Judge has ordered that the nature of the suit property shall not be changed during the pendency of the suit on the basis of the statement of 5 the learned counsel for the defendants while dismissing the application on 13.12.2005. Mr. G. C. Gupta, Sr. Advocate has also argued that the transaction has taken place in violation of section 118 of the Himachal Pradesh Tenancy and Land Reforms Act. The plaintiff has challenged these proceedings by way of a separate writ petition. In view of the observations made hereinabove, it is evident that the plaintiff has failed to prima facie establish that he is in possession of the suit land. The findings recorded by the learned Single Judge are upheld. The burden was on the plaintiff to prove that there was a prima facie case and balance of convenience in his favour. He has also failed to prove other ingredients necessary for the grant of injunction. The grant of injunction is a discretionary relief. It is also sine qua non while granting discretionary relief of injunction that the suit property is preserved. In the present case, the learned counsel appearing on behalf of the defendants had given undertaking before the learned Single Judge not to change the nature of the land. In other words, the property has been preserved. Their Lordships of the Hon’ble Supreme Court in Dalpat Kumar and another versus Prahlad Singh and others, (1992) 1 SCC 719 have reiterated the principles governing the injunction. Their Lordships have held as under: “4. Order 39, Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such 6 other order for the purpose of staying and preventing ......... or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by S. 88(i)(c) of the Amending Act 104 of 1966 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under S. 151, C.P.C. to grant ad interim injunction against dispossession. Rule 1 primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court in exercise of the power of granting ad interim injunction is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/ defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established a trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it. 5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs 7 adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.” 8 In view of the observations made hereinabove and the definitive law laid down by their Lordships of the Hon’ble Supreme Court, as quoted hereinabove, there is no merit in the Original Side Appeal and the same is dismissed. However, before parting with the judgment, it is necessary to request the learned Single Judge to decide the civil suit bearing No.38/2005 expeditiously and as far as possible within a period of one year from today taking into consideration the delay occurred due to the pendency of this appeal for a period of more than three years. The interim order dated 23.3.2006 stand vacated. The defendants shall abide by the undertaking given by their learned counsel for preserving the nature of the property as recorded by the learned Single Judge in his order dated 13.12.2005. No costs. (R.B. Misra), Acting Chief Justice (Rajiv Sharma), Judge 1.9. 2009. *awasthi*