1. Rule.
Mr.Premal S.Rachh, learned counsel, waives service of notice of Rule for the respondent. On the facts and in the circumstances of the case and with the consent of the learned counsel for the respective parties, the petition is being heard and finally decided today.
2. This petition has been filed under Article 227 of the Constitution of India, challenging the judgment and order dated 31-3-2009, rendered by the learned Principal District Judge, Jamnagar in Civil.Misc. Appeal No.64 of 2008.
3. Briefly stated, the facts of the case as emerging from a perusal of the material on record are that the petitioner, who is the original defendant in the suit, claims to be a tenant of the properties described as Schedule A and Schedule B to the plaint, in Ashok Sadan . According to the petitioner, the suit premises described in Schedule A are a Vakhar (structure made of tin sheet) and those described in Schedule B are a godown. The respondent herein(original plaintiff) filed Regular Civil Suit No.107 of 2008 against the petitioner inter alia for eviction from the suit premises, and recovery of mesne profits at the rate of Rs.5,500/- per month till possession of the suit premises is received and for permanent injunction, restraining the petitioner,his Attorneys, servants etc. from putting up any construction on the suit premises, as described in Schedule A and B to the plaint. Further, a direction to restore the suit premises to the original position was also prayed for. According to the respondent (plaintiff) the existing premises situated on the eastern side, described as Schedule A to the plaint were let out to Vinod Sanitary, a partnership Firm, at the rent of Rs.45/- per month and the petitioner is in arrears of rent, with effect from 1-1-1986. Other related prayers have been made in the plaint which may not be relevant for the purpose of the present petition. It is also the case of the respondent (plaintiff) that the petitioner has made an encroachment on the western portion and has constructed walls of a permanent nature upon the encroached portion,therefore, he is liable to be evicted under the provisions of Section 13(1)(b) of the Bombay Rent Act. With the Suit, the respondent filed an application at Exh.5, praying for grant of permanent injunction, restraining the defendant, his Attorneys, servants etc. from putting up any construction on the suit premises,more particularly the premises described in Schedule B in the western portion of the property, known as Dhalia . The Trial Court rejected the application at Exh.5 filed by the respondent, by judgment and order dated 14-5-2008. Being aggrieved thereby, the respondent filed an appeal before the District Court. After hearing the parties and taking into consideration the material on record, the lower Appellate Court has found that the petitioner had encroached upon a certain portion of the suit property described in Schedule B , during the pendency of the proceedings and partly allowed the appeal by directing that the petitioner should restore the status-quo ante, in the western portion of the property described in Schedule B , and remove any construction put up in this portion. The petitioner has also been restrained from entering or encroaching on the western portion. It is further directed by the lower Appellate Court that if the petitioner fails to obey the said order, the respondent is at liberty to execute the same. Being aggrieved by the judgment and order dated 31-3-2009 passed by the lower Appellate Court, the petitioner has approached this court by filing the present petition.
4. Mr.R.J.Oza,learned counsel for the petitioner has made the following submissions:
(a) The relief claimed by the respondent in the application at Exh.5 is the same as the relief claimed in the plaint i.e. for grant of permanent injunction. Relief of such a nature cannot be granted by the court, until and unless the suit is finally decided. The provisions of Section 37(2) of the Specific Relief Act,1963 make it clear that a perpetual injunction can only be granted by a decree made upon hearing, on the merits of the suit and such a relief can neither be prayed for, nor granted in an application at Exh.5, during the pendency of the Suit. Moreover, the provisions of Order 39 Rule 1 and 2 speak of grant of a temporary injunction and the nature of relief prayed for by the respondent in the application filed by him, is for a permanent injunction, which could not have been granted by the lower Appellate Court, before final adjudication of the suit.
(b) The Trial Court has rightly declined to grant relief as prayed for by the respondent and the application at Exh.5 filed by the respondent has rightly been rejected by the Trial Court,by applying settled principles of law. However, the lower Appellate Court has interfered with the order of the Trial Court to an extent which is not permissible in law, by passing the impugned order, which is not justified in the factual and legal background of the case.
(c) The lower Appellate Court could not have entertained the appeal filed by the respondent, as Order 43 Rule 1(r) permits filing of an appeal against an order made under Rule 1 and Rule 2 of Order 39, which provides for grant of a temporary injunction. When the relief prayed for by the respondent in the application was for a permanent injunction, the appeal against the order rejecting the application, could not have been entertained by the lower Appellate Court, and by entertaining the appeal, a grave error of jurisdiction has occasioned.
(d) The impugned judgment and order is not sustainable in law as the lower Appellate Court has virtually passed a decree against the petitioner, without adjudication of the suit on merits and without proper trial, which is impermissible in law. The nature of the relief granted in the impugned order is such that it amounts to grant of a permanent injunction. In addition to this, the respondent has been granted liberty to resort to execution proceedings if the petitioner fails to obey the order of the lower Appellate Court. Execution can be resorted to only if a decree is passed, and at this stage, when the lower Appellate Court was hearing an appeal from an order passed below an Exh.5 application, by granting the relief of execution, the lower Appellate Court has travelled far beyond the permissible scope of adjudication.
(e) It is a settled principle of law that the Appellate Court will not normally interfere with an order of the Trial Court except if it finds that the same is arbitrary, capricious or perverse and no interference is warranted if the lower Court has exercised discretion judiciously. In the present case,the order of the Trial Court is neither illegal nor perverse and, taking into consideration the settled principle of law as enunciated in Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel,(2006)8 SCC 726 and Seema Arshad Zaheer v. Municipal Corporation,(2006)5 SCC 282, the lower Appellate Court should not have interfered with the order of the Trial Court, which has been passed after scrutiny of the material on record.
(f) That the respondent cannot be granted the relief of injunction, under the provisions of Section 41(h) of the Specific Relief Act,1963, as he has an equally efficacious remedy of claiming compensation, therefore, the order of the lower Appellate Court granting an injunction in his favour is against the provisions of law.
On the strength of the above submissions, it is prayed by the learned counsel for the petitioner that the petition be allowed and the impugned order be quashed and set aside.
5. The petition has been opposed by Mr.Devang Nanavati,who is appearing with Mr.Premal S.Rachh, on behalf of the respondent. His submissions are as under:
(a) Although the relief of permanent injunction had been prayed in the application at Exh.5, the same was not granted by the Trial Court and the said application of the respondent was rejected. The Trial Court has not taken into consideration the material aspect that during the pendency of the proceedings, the petitioner has encroached upon a portion of the property described as Schedule B on the western side, and has constructed a brick-wall. Though this aspect was brought to the notice of the Trial Court, and there is also material on record which reveals this fact, no finding has been recorded by the Trial Court. The first Appellate Court has rightly taken into consideration this aspect and has found, after examining the evidence on record, that under the guise of repairing the dilapidated portion of the premises occupied by the petitioner, he has encroached upon a portion of the property in Schedule B on the western side, and has constructed brick walls during the pendency of the proceedings and this has led to the grant of a mandatory injunction against the petitioner,by passing the impugned order.
(b) That in fact, neither the Trial Court nor the Appellate Court have granted the relief as prayed for to the respondent therefore, it cannot be said that a permanent injunction has been granted in his favour. The lower Appellate Court has taken note of the events that have taken place during the pendency of the proceedings and there is material on record, including photographs of the old structure at mark 3/5, and those of the wall constructed during the pendency of the application, on the basis of which it has come to the conclusion that the petitioner has encroached upon a portion of the property described in Schedule B and made an extension by constructing brick walls. Insofar as this portion is concerned, the lower Appellate Court found that the balance of convenience is in favour of the respondent. By passing the impugned order, no illegality has been committed and the said order does not deserve to be interfered with.
(c) That the lower Appellate Court has not granted a perpetual injunction as contended, but has granted a mandatory injunction, after recording clear findings that the encroachment and construction on the western side has been made by the petitioner, during the pendency of the proceedings. By granting the said injunction, status-quo ante has been directed to be restored, by removing the walls on the portion encroached upon. While directing this action, the lower Appellate Court has adhered to and followed the settled principles of law, as laid down in Bhupatlal Govindji v. Bhanumati Dayalal, 1983 GLH 362, wherein this court has held that a mandatory injunction can be granted at the interim stage, for bringing into existence the status-quo ante, during the pendency of the litigation.
(d) The lower Appellate Court has correctly recorded findings of fact, on the basis of evidence on record, which has clearly been ignored by the Trial Court, and in granting the mandatory injunction, the said Court has not committed any error of law or jurisdiction.
(e) That the liberty given by the lower Appellate Court to the respondent, to execute the said order in case the petitioner fails to restore status-quo ante, cannot be taken to mean that the said court has passed a decree which can be executed. The language used may not be stretched out of context and it is the intention of the court that is to be seen, in the light of the reasons recorded in support of the order. A perusal of the impugned order will make it clear that the Court has directed the status-quo ante to be restored, meaning thereby, that the petitioner should remove the encroachment and the wall constructed by him during the pendency of the appeal. In case the court comes to the conclusion that this portion of the order requires to be clarified, it can always be done in the exercise of supervisory powers, as per principle of law laid down in Surya Dev Rai v. Ram Chander Rai, (2003)6 SCC 675.
(f) That the submission of the learned counsel for the petitioner that the lower Appellate Court has granted a perpetual injunction is not correct as the relief as prayed for by the respondent has not been granted. The said court has granted a mandatory injunction of the nature provided for in Section 39 of the Special Relief Act,1963 and has followed the principles of law enunciated in Bhupatlal Govindji v. Bhanumati Dayalal (Supra), wherein such an injunction was granted in order to restore status-quo ante, at the interim stage.
6. On the above grounds, it is submitted by the learned counsel for the respondent,that the petition be dismissed.
7. I have heard the learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.
8. The learned counsel for the petitioner has emphasised that as the relief prayed for in the application at Exh.5 filed by the respondent before the Trial Court is for grant of permanent injunction,the appeal filed by him against the order rejecting the application is not maintainable as the lower Appellate Court can entertain an appeal against an order under Order 39 Rule 1 and 2 for temporary injunction and not for permanent injunction. The submission of the learned counsel for the petitioner, though attractive at first blush, does not appear to be sustainable on the facts and in the circumstance of the present case. No doubt, the relief prayed for in the application at Exh.5 is for grant of permanent injunction, but it cannot be lost sight of that the Trial Court has not granted the said relief and has rejected the application. Moreover, the lower Appellate Court has also not granted the prayer made in the application at Exh.5. Just because the application contains a prayer of a particular nature will not debar the Appellate Court from hearing an appeal against its rejection. In other words, the jurisdiction of the lower Appellate Court will not be diminished by the nature of the prayer made in the application at Exh.5 in a case where it is competent to hear an appeal from an order passed by the Trail Court,as in the present case. Against the rejection of the said application, the respondent filed the appeal before the lower Appellate Court which is competent to hear the same. Had the application been allowed in terms of the prayers made therein, it may have been a different matter, and it would have been the petitioner who would have been aggrieved and approached the Appellate Court. This submission of the learned counsel for the petitioner is a hypothetical one and does not carry much weight in the factual matrix of the case, therefore, the same is not acceptable.
9. The learned counsel for the petitioner has contended that the respondent is debarred from praying for an injunction under Section 41(h) of the Specific Relief Act,1963 as he has an equally efficacious remedy for claiming compensation, which he has already prayed for in the suit and no injunction could have been granted in his favour. Insofar as this submission is concerned, it ought to be kept in mind that the impugned order has been passed in an appeal against the rejection of the application at Exh.5. The suit is yet to be adjudicated and the relief prayed for therein is yet to be considered by the Trial Court, therefore, this submission is not a convincing one.
10. Another submission has been advanced on behalf of the petitioner,to the effect that the lower Appellate Court has committed an error of law and jurisdiction by granting the relief of execution of the order passed by it, in favour of the respondent and in doing so, it has virtually passed a decree, without adjudicating the issues involved on merits and without necessary trial. In order to weigh the merits of this submission, it will be necessary to advert to the relevant facts. It has been held by the Trial Court that the petitioner is a tenant of the properties at Schedule A and B to the plaint. Insofar as the properties at Schedule A (godown) are concerned, which are on the eastern side, both the Courts below have found that the petitioner is a tenant of the said property. Insofar as the property at Schedule B is concerned, the lower Appellate Court has not recorded any definite finding but has stated, that as the word Rent is used in the telegram sent by the respondent-landlord to the petitioner in respect of this property, it cannot definitely be said that the property at Schedule B has not been let out to the petitioner, at all. Notwithstanding this aspect,the lower Appellate Court has recorded a clear finding of fact to the effect that the petitioner has encroached upon some portion of the property at Schedule B and has constructed walls on the encroached portion, during the pendency of the proceedings. It is for this reason that a mandatory injunction has been issued by the lower Appellate Court, and status-quo ante is directed to be restored. A careful perusal of the order of the Trial Court reveals that the aspect of encroachment has not been touched upon by that Court at all. The Trial Court appears to have overlooked this aspect totally. The finding regarding encroachment having been made on the western side and walls constructed by the petitioner on the encroached portion during the pendency of the proceedings, as recorded by the first Appellate Court, is based upon a detailed examination of the material on record and supported by cogent reasons. As such, the said findings cannot be disturbed by this court, at this stage. Having said so, it may be proper to clarify the order of the lower Appellate Court, insofar as the direction for execution is concerned,as the suit is pending adjudication.
11. In proceedings under Article 227 of the Constitution of India, this court would not like to go into the factual aspect such as the tenancy of the petitioner or details of which portion of the suit property has been rented out to him as that is the main bone of contention between the parties in the Suit. At this stage it would only be proper to consider the legality or otherwise, of the impugned order. From a perusal of the material on record and the contents of the impugned order it becomes evident that respondent-landlord was given a notice dated 29-9-2007 by the Jamnagar Municipal Corporation to carry out repairs on the property of which the petitioner is a tenant. It appears from the record that the petitioner started construction, purportedly to repair the portion occupied by him, as a tenant, without the consent of the respondent. The respondent sent a telegram to the petitioner, stating that the petitioner should desist from carrying out any construction of a permanent nature on the property, as he has made an encroachment thereupon,under the guise of repairs. On the basis of the material on record, it was found by the lower Appellate Court that the petitioner had encroached on a portion of the property of Schedule B and was constructing walls thereupon during the pendency of the proceedings before the courts below. On finding that the petitioner was taking advantage of the situation under the guise of repairs, and constructing walls on the encroached portion of the property at Schedule B ,the lower Appellate Court, relying upon a judgment of this court in Bhupatlal Govindji v. Bhanumati Dayalal (Supra), referred to above, passed an order of mandatory injunction directing the petitioner to restore status-quo ante in the following terms:
FINAL ORDER
1.The Appeal is partly allowed.
2.It is hereby ordered that the respondent do remove themselves from the western portion following eastern portion of 10' or 12' X 40 ' (of Schedule 'B property); and do remove any construction put in this western portion at his cost; and do refrain from entering or encroaching on this western portion.
3. The appellant may follow the order by execution if the defendant fails in this regard.
4.The Respondent shall bear his cost of Appeal and also pay that of the Appellant
12. The relevant extract of the above-mentioned judgment is reproduced below:
10.The legal view which I have confirmed above is a well-recognised one. The judgment that had appealed to the learned District Judge also was cited before me. It is the judgment of the Patna High Court in the case of Joynarain Sarogi v. Brojendra Nath Misra and Others, AIR 1951 Patna, page 546. In this judgment there is reference to two English judgments and also to three judgments of other High Courts. It is no doubt true that this is a case of granting a mandatory injunction at the interlocutory stage, but in my view, the principles would remain the same when we have to deal with final orders. The principles that stand good at the interim stage for bringing into existence the situation-ante can, and in my view must, be extended to the situation that has been changed during the pendency of the litigation. I would go a step forward and say that if some thing is good at the interim stage must be necessarily equally good at the final stage.
13. In the background of the above facts, it cannot be said that the lower Appellate Court has passed an order of injunction as prayed for in the application at Exh.5. The impugned order has clearly been passed in the light of events that have taken place during the pendency of the proceedings before the court below, as is clear from a reading of the operative part quoted herein-above. On the above facts and in the circumstances, this court does not find that the impugned order suffers from an error of law or jurisdiction. The said order has been passed after taking into consideration the material on record,and is supported by cogent reasons. The interference of this court is, therefore, not warranted.
14. For the reasons stated hereinabove, the petition is, dismissed. Rule is discharged. Interim relief stands vacated.
14.1 It is clarified that the direction of the lower Appellate Court contained in the impugned order, to the effect that the respondent may execute the said order,if petitioner fails to obey the same,will be read to mean that the respondent can resort to a remedy available to him in law.
The learned counsel for the petitioner has prayed that the ad interim relief, granted by the lower court, operating till today,be further continued by this Court. The record reveals that the petitioner had been granted protection by the lower Appellate Court,which has been continued during the pendency of the petition, from time to time. This court has not granted interim relief after hearing the parties in the petition. In the above circumstances, the prayer made by the learned counsel for the petitioner, is not accepted.
(Smt.Abhilasha Kumari,J) arg Top