Civil Revision No.1122 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1122 of 2011(O&M) Date of Decision: February 22, 2011 Som Nath and others .....Petitioners v. Satbir Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Surinder Gandhi, Advocate for the petitioners. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.4688-CII of 2011 Application is allowed subject to all just objections. Civil Revision No.1122 of 2011 (O&M) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 28.8.2009, passed by learned Civil Judge, Junior Division, Bahadurgarh, and order dated 10.2.2010, passed by learned Additional District Judge, Jhajjar, vide which application filed by petitioners under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (hereinafter to be referred as the `Code') for grant of temporary injunction has been dismissed. I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned orders passed by learned Courts below. Facts relevant for the decision of present revision petition are that plaintiff no.1 vide sale deed No.3574 dated 30.10.2000 purchased land measuring 2 kanal being 40/133 share out of the total land measuring 6 kanal 13 marla comprised in Khasra No.813 situated on Jhajjar- Badli Road, Tehsil Bahadurgarh. Mutation No.5311 on the basis of the aforesaid sale- deed was also entered and sanctioned. As per case of respondent-plaintiff, Civil Revision No.1122 of 2011(O&M) -2- plaintiff nos.4 to 12 also purchased the land in the year 1959-60 when the same was under consolidation. Earlier the matter remained in litigation and the matter went upto Hon'ble Apex Court and as per order of Hon'ble Apex Court dated 1.4.2009, parties were directed to represent their case before the concerned Revenue authorities for partition on the basis of title. Litigation regarding partition is still pending before the Revenue Court. Defendant nos.1, 5 and 6 sold some land out of khasra No.813 vide sale deed Nos.9145 and 9146 dated 11.2.2009 in favour of defendant nos.3 and 4. Defendant nos.7 to 14 also sold some land out of khasra No.813 vide sale deed No.7879 dated 22.12.2008 in favour of defendant nos.15 and 16. Plaintiffs had challenged the said sale-deeds and the mutation entered on the basis of the said sale-deeds on the ground, inter alia, that the same is executed without any title. On these facts, an application under Order 39 Rules 1 and 2 read with Section 151 of the Code was also filed by petitioners-plaintiffs seeking injunction restraining respondents-defendants from interfering in their possession of the land in dispute. Law is sell settled that at this stage, the Court is to see prima facie case, balance of convenience and the fact as to whether an irreparable loss would be caused to the petitioners-plaintiffs, if ad interim injunction order is not granted to them. Learned trial Court dismissed the application for ad interim injunction filed by petitioners-plaintiffs by observing as under:- “21. After hearing the arguments of both the parties, I am of the considered opinion that the plaintiff has not approached the court with clean hands and he has suppressed the true and material facts from this Court. The plaintiff in para no.2 of the plaint has alleged that he has purchased the suit land measuring 2 kanals vide registered sale deed no.3574 dated 30.10.2000 and that mutation No.5311 has also been entered and sanctioned in his favour and that this land has been purchased by the plaintiffs as per the order of Collector, Jhajjar dated 4.10.2000. The plaintiff has concealed the fact that the mutation No.5311 has already been cancelled vide order dated 29.7.2002 passed by Collector, Jhajjar and an Civil Revision No.1122 of 2011(O&M) -3- endorsement regarding this fact has been made on mutation No.5311 which is placed on file by counsel for the defendants. The plaintiffs have further concealed the fact that the order on the basis of which this land was purchased was also set aside by the Collector, Jhajjar vide order dated 16.5.2001. The plaintiffs have further concealed the fact that the sale made in favour of the defendant Satbir Singh etc. has already been held to be valid by the court of competent jurisdiction and this judgment has become final between the parties. The plaintiffs have further twisted the true and material fact just to mislead this court and has not brought the entire picture before the court. In case law titled as Smt.Kasro @ Shanti vs. Gurdial Singh and others, 2002(2) Civil Court Cases 218 P&H, it has been held that the person who approaches to the court not with clean hand is not entitled to the discretionary relief of injunction. Reliance is placed on the aforesaid authorities. 22. Moreover, there is no prima facie case made out in favour of the present plaintiffs. The plaintiffs have failed to produce any Revenue Record regarding khasra No.813 wherein the possession of the present plaintiffs have been shown over the suit property. Whereas the defendants have placed on record the copy of jamabandi for the years 1988-89, 1993-94, 1998-99, 2003-04 and from all these Revenue Records, it is prima facie clear that this land is recorded under the ownership and possession of Yognath etc./defendants. The counsel for the plaintiffs have strongly relied upon the judgment and decree dated 9.12.2008 passed by the Court of Sh.Narender Pal, Civil Judge (Jr.Division), Bahadurgarh. In this concern it is argued by the counsel for the plaintiffs that in that suit the learned Civil Court has given finding that the present defendants Satbir Singh etc. are not in possession of the suit property bearing Khasra No.813 but I am not convinced with this arguments made by the counsel for the plaintiffs because the judgment and decree dated 9.12.2008 has not yet become final. The present defendants have filed Civil Revision No.1122 of 2011(O&M) -4- an appeal against the judgment and decree dated 9.5.2008 and in that appeal, the operation of the judgment and decree dated 9.12.2008 has been stayed by the court of Sh.V.P.Bishnoi, learned District Judge, Jhajjar, vide order dated 16.3.2009. The copy of this order is also placed on file. As such today the judgment and decree dated 9.12.2008 has no force and merely on the basis of this judgment, it cannot be held that the present plaintiffs are in possession of the suit property. Moreover, appeal is in continuation of the suit and a suit cannot be deemed to be finally decided unless and until the appeal is decided. 23. Moreover, in the present suit the plaintiffs have challenged the sale deeds dated 11.2.2009 and 22.12.2008 in favour of the defendants. At this stage, it cannot be presumed that these sale deeds and mutation on the basis of these sale deeds are illegal, null and void because this fact is to be decided only after taking evidence from both the parties at the time of final decision of present suit. The defendants cannot be restrained from interfering in the possession of the plaintiffs over the suit land as the plaintiffs have prima facie failed to show their ownership and possession over the suit property. As such, the plaintiffs are not going to suffer any loss or injury in case the relief of injunction is declined to them. There is no balance of convenience in favour of the plaintiffs.” Petitioners-plaintiffs filed appeal against the said order, which was also dismissed by learned first appellate Court by observing as under:- “9. So far as the present case is concerned, from the material on record, this court finds that there is no prima facie case and balance of convenience in favour of the appellants/plaintiffs and no irreparable loss is caused to the appellants/plaintiffs in not granting the relief of injunction to them as they failed to show their ownership and possession over the suit property. It is settled law that the applicant/plaintiff should come to the court with clean hand Civil Revision No.1122 of 2011(O&M) -5- and should not suppress the true and material facts from the court. In the case in hand, the appellants/plaintiffs stressed upon the mutation No.5311 entered in the record after execution of sale deed No.3574 dated 30.10.2000 but said mutation No.5311 has already been cancelled vide order dated 29.7.2002 passed by the Collector, Jhajjar. This fact has also been concealed by the appellants that order dated 16.5.2001 has also been set aside by the Collector, Jhajjar, and sale made in favour of Satbir Singh etc. has held to be valid. I have carefully scanned the case file as well as the various judgments pronounced by the Hon'ble Civil Courts as well as the Revenue Courts and I am fully agreed with the findings of the trial Court that appellants/plaintiffs have suppressed the material facts from the court and have not come before the court with clean hands. Moreover, no document has been produced by the appellants/plaintiffs so as to prove their ownership and possession over the disputed land, whereas from the entries recorded in jamabandies for the years 1988- 89, 1993-94, 1998-99 and 2003-04, respondents/defendants have proved their ownership and possession over the suit land. Moreover, appeal against the order dated 9.12.2008 passed by the then CJ (JD), Bahadurgarh is under challenge/ consideration and said order has not become final, on which the case of the appellants/plaintiffs rests upon and in the appeal, operation of the order dated 9.12.2008 has already been stayed. The questions regarding validity of sale deeds dated 11.2.2009 and 22.12.2008 as involved in the present case are to be determined/decided after appreciation of the oral as well as documentary evidence to be led on behalf of both the parties to the suit. But at this stage, the appellants plaintiffs have prima facie failed to show any irregularities or illegality in the impugned order dated 28.8.2009 passed by the learned trial Court. Moreover, grant of interim injunction is a discretionary and equitable relief and the discretion should be exercised judiciously. Before parting with this appeal, I need Civil Revision No.1122 of 2011(O&M) -6- to record the fact that the trial Court has rightly dismissed the injunction application vide order dated 28.8.2009 and the impugned order does not call for any interference. In the back drop of the above discussion, the present appeal is hereby dismissed with no order as to costs.” Law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. On the facts of the present case, prima facie, both the Courts have come to the conclusion that petitioners-plaintiffs have not come to the Court with clean hands. It has been pleaded that mutation No.5311 was entered and sanctioned in favour of petitioners-plaintiffs and however, the material fact has been suppressed that the said mutation has already been cancelled vide order dated 29.7.2002, passed by Collector, Jhajjar, and endorsement regarding this fact has been made on mutation No.5311, which was placed on record by defendants. Petitioners-plaintiffs also concealed the fact that order on the basis of which land was purchased was also set aside by the Collector, Jhajjar, vide order dated 16.5.2001. They have also concealed the fact that sale made in favour of defendants Satbir Singh etc. has already been held to be valid by the court of competent jurisdiction and the judgment has become final between the parties. Moreover, petitioners-plaintiffs have failed to prove regarding khasra No.813 showing their possession on the suit property, whereas, as per jamabandis for the years 1988-89, 1993-94, 1998-99 and 2003-04, prima facie possession of Yognath etc./defendants has been shown. It has been rightly observed by learned Courts below that judgment and decree dated 9.12.2008 in favour of the petitioners-plaintiffs has not yet become final as against the said judgment, appeal is pending and the appellate Court has stayed the operation of the said judgment and decree. In view of these facts, prima facie case is not made out in favour of the petitioners-plaintiffs. Balance of convenience also does not lie Civil Revision No.1122 of 2011(O&M) -7- in their favour and there will be no irreparable loss to them, if ad interim injunction order is not granted in their favour. Hence, it cannot be said that any illegality or material irregularity has been committed by learned Courts below in passing the impugned orders and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. The present revision petition is, hereby, dismissed being devoid of any merit. However, it is made clear that nothing observed herein shall be construed to have any bearing on the decision of this case on merit by learned trial Court. 22.2.2011 (Ram Chand Gupta) meenu Judge