1. The petitioner in this petition preferred under Article 227 of the Constitution of India challenges judgment and order dated 29th June 2010 passed by the learned Additional District Judge and Presiding Officer, 6th Fast Track Court, Rajkot in Civil Misc. Application No. 5 of 2010 whereby the Appellate Court confirmed the common order passed below Exhibit 5 and 13 by the learned 4th Additional Senior Civil Judge , Rajkot dated 18th December 2009 in Regular Civil Suit No. 261 of 2009 in the following factual background.
2. The petitioner is the original plaintiff and the respondent is the original defendant in Regular Civil Suit No. 261/09 which seeks reliefs of declaration and permanent injunction. It is the case of the petitioner plaintiff that he is doing the business of scrap and is in possession of the plot situated at Shiyaninagar Society since last more than 15 years and he has been put into the possession of this suit plot by the owner Santokben Popat and from there onwards he enjoys this possession uninterruptedly. The total suit land admeasures 257.92 Sq. yards. He has also constructed one room with veranda in the said plot. It is alleged that the respondent tried to forcefully dispossess him which necessitated filing of the suit. A police complaint filed by respondent has also been brought on the record to emphasise that the respondent had admitted the possession of the petitioner in respect of the suit plot. Reliance is placed on various judgments to emphasizes press the point that both the Courts ie trial court and the Appellate Court had committed serious error in granting injunction in favour of the present respondent, when there is no provision for granting injunction against the plaintiff in a suit preferred by the present petitioner. It is also the say of the petitioner that when in absence of counter claim, no mandatory order for restoration of possession can also be passed at the interlocuatary stage particularly when the petitioner is in the settled possession for the past 15 years, no interference could have been allowed. The following are the judgments produced to substantiate the averments made in the petition.
(1) M/s Hindustan Engineering and Construction Co. Ahmedabad Vs. Kalindi Coop. Housing Society Ltd. & Ors reported in 261 GLR 1992.
(2) Jivanbhai Jerambhai Patadia Vs. Bhavanje Vinasjee Thakkar reported in AIR 1995 Gujarat 92,
(3) Rukhiben w/o Amarsingh Chaturbhai Parmar Vs. Kiritkumar Kantilal Patel reported in 1997(3) GLR 2383.
2. The crux of these authorities is that under the guise of interim injunction the party cannot be dispossessed by adopting shorter unacceptable method. The ratio that culls out is that at an interim stage mandatory injunction could be granted only in exceptional cases covered by the exception in the case of Dorab Cawasji Warden Vs Coomi Sorab Warden and Ors reported in (1990) 2SCC117.
3. The respondent urged that the claim is made through the mother of the respondent who had expired on 15th June 1990 much before 15 years and the respondent inherited the property through her will. He has also produced the share certificate issued by the society in the name of Santokben and the electricity connection for which the intimation was sent to GEB. It is alleged that the petitioner is known for his activities of grabbing properties of others in connivance with the police force. Learned advocate also urged that when consecutively two courts have held against the present petitioner and virtually there is no documentary evidence to establish prima facie his legal possession, he cannot depend upon the panchnama to establish his possession following which judgment which is sought to be relied upon, the Court passed following order thus :
16. The relief of interlocutary mandatory injunctions are thus granted generally to preserve or restore the status quo of the last noncontested status which preceded the pending controversy until the final 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 from the party complaining. But since, the granting of such an injunction to a party who fai8ls or would fail 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..”
4. On having heard learned advocates for the parties and having considered the material on record it can be noted that the trial court dismissed the application for injunction preferred by the petitioner and allowed the application of respondent thereby directing the petitioner to hand over the possession of the suit property within 30 days from the date of the order. Two appeals had been filed before District Court against both the orders passed below Exh. 5 and Exh. 13 and these appeals being Misc. Civil Application No. 5/10 and 6/10 were dismissed on 29th June 2010 confirming the order of the trial court. Challenging the impugned order dated 29th June 2010, these petitions have been preferred.
5. As rightly submitted by learned advocate Mr. Vimal Patel appearing for the respondent that the petitioners preferred the application under Article 227 of the Constitution of India where the Court must be slow in exercising the supervisory jurisdiction and the orders impugned had not required invocation of supervisory jurisdiction. It would be worthwhile to refer to the decision of the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and Ors reported in (2003)6SCC 675.
Applying the ratio of this decision to the facts of the instant case it can be clearly seen from the record, that there is no error manifest and apparent on face of record, nor grave injustice or gross failure of justice has been occasioned nor is the judicial conscience of High Court dictates any imminent action for intervening. There is absolute no case made out by the petitioner to hold that there is jurisdictional error.
6. It is amply clear from the record that both the Courts have examined all the issues elaborately and after a detailed discussion on the basis of rival contentions raised by the parties, the trial court concluded the need for rejecting injunction application as also allowing the application for mandatory injunction by directing the restoration of possession and the Appellate Court confirmed such findings by well reasoned order. This Court is not to sit in appeal against such orders in absence of any jurisdictional error or any material indicating any miscarriage of justice.
7. The very basis of claiming the possession for past 15 years is completely falsified prima facie on the ground that the mother of the respondent passed away in the year 1990 and therefore 19 years prior to filing of the suit, she was no more.
Court Commissioner's report cannot be permitted to create the evidence. Moreover surprisingly the petitioner has also depended on the version of respondent given before the police in a complaint of trespass against petitioner. It was also questioned as to whether there was any semblance of documentary proof or any kind of agreement with the mother of the respondent which had put the petitioner into possession as averred and the same has been replied to in negation and in such event, the Courts below have rightly held that there is a complete absence of prima facie case of the petitioner. On the contrary, they are both of the opinion that mandatory injunction is required to be granted.
8. It needs to be noted that as apprehended by learned advocate for the petitioner this does not amount to decreeing the suit because the respondent has been directed not to make any alteration in the suit premise and he has also been further directed not to transfer the suit property in any mode or manner. When the Courts found glaring factual circumstances to direct the mandatory injunction, no interference will be necessary. This Court cannot be oblivous of the fact that prima facie the petitioner has failed to establish his legal possession. Injunction being the discretionary and equitable relief, whosoever attempts to overreach the process law by gaining unlawful possession qua the true owner must be denied the same. With an ill design to enjoy such property, being aware of the fact that civil litigation before the courts in its probabilities takes a very long time such attempt of illegal possession. In appropriate cases, on addressing such issues, description of grant of mandatory relief in favour of the true owner is exercised the same cannot be interfered with for there being hardly any question of miscarriage of justice in given set of facts and circumstances. On the contrary nongrant of such relief in appropriate case would cause travesty of justice.
8.1 This of course would not mean that the petitioner would be non suited by such orders as respondent has also been put to certain appropriate terms, pending the suit.
9. It would be appropriate while rejecting both the petitions to request the trial court to undertake the trial of the Civil Suit No. 261/09 expeditiously as possible keeping in view the nature of disputes. In the aforementioned premise these petitions are dismissed, with no order as to costs.
(Ms. Sonia Gokani,J.) mary//