Kishore
Kumar Khaitan & Anr Vs. Praveen Kumar Singh [2006] Insc 71 (13 February 2006)
S.B.
Sinha & P.K. Balasubramanyan
(ARISING
OUT OF S.L.P. (CIVIL) NO.11469 OF 2005) P.K. BALASUBRAMANYAN, J.
Leave
granted.
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The respondent
herein, hereinafter referred to as the plaintiff, filed a suit TS No.119 of
1998 before the Civil Judge, Junior Division, Howrah for a declaration of his
status as a tenant of the suit property and for a perpetual injunction
restraining the appellants herein, hereinafter referred to as the defendants,
the owners of the building, from interfering with the peaceful possession of
the plaintiff and for other incidental reliefs. Along with the suit, the
plaintiff moved an application under Order XXXIX Rules 1 and 2 of the Code of
Civil Procedure (hereinafter referred to as the 'Code'), for an interim
injunction pending the suit, restraining the defendants from interfering with
his possession of the plaint schedule property. When the application for
interim injunction was moved on 12.6.1998, the trial court found that there was
no urgency which justified the grant of an ad-interim ex parte order of
injunction and taking the view that the delay will not defeat justice, refused
to pass an ad-interim order of injunction and issued notice to the defendants
to show cause within 15 days of the receipt of the notice, as to why the
temporary injunction, as prayed for by the plaintiff, shall not be granted.
Feeling himself aggrieved by the non-grant of an ad interim ex parte
injunction, the plaintiff filed an appeal under Order 43 Rule 1 of The Code of
Civil Procedure before the District Court. The Additional District Judge on
19.6.1998, while entertaining the civil miscellaneous appeal admitted the same
and issued notice to the defendants fixing 4.9.1998 for their appearance. After
allowing an application for amendment of the application for injunction by way
of incorporating a schedule thereto, the Additional District Judge along with
the issuance of notice to the defendants to show cause why the prayer for
temporary injunction shall not be granted, stating that in the light of the
materials available it was just and proper to direct the parties to maintain
the status quo as on date and delay in the grant of an ad-interim order may
cause complications, passed an ex parte ad interim order directing both the
parties to maintain status quo as on that day till 17.7.1998. Thereafter
alleging that he was in possession on 19.6.1998 when the order to maintain
status quo was passed by the Additional District Judge and that he was
dispossessed on 20.6.1998 in violation of that order, the plaintiff filed an
application under Section 151 of the Code for an interim mandatory injunction
directing the defendants to put him in possession of the suit premises. The
District Court originally passed an order of interim mandatory injunction
directing the defendants to restore possession of the suit property to the
plaintiff. This was challenged by the defendants before the High Court in a
proceeding under Section 115 of the Code. The High Court set aside the order of
the trial court and remanded the application for interim mandatory injunction
for reconsideration by the District court.
Thereafter,
the District court reconsidered the application for interim mandatory
injunction and allowed the same by upholding the claim of the plaintiff that he
was dispossessed after the interim order of status quo was passed by that
Court. A challenge by the defendants to that order before the High Court under
Article 227 of the Constitution was rejected by the High Court. This appeal by
special leave is filed by the defendants challenging those orders.
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We may note two
incidental facts at this stage. The first is the filing of a suit TS No.153 of
1998 by the present defendants for a declaration that the document relied on as
a rent deed by the present plaintiff, be adjudged void and cancelled and for
consequential reliefs flowing from the grant of the main relief. The second is
that even though the petition for special leave to appeal against the order of
the High Court dated 25.11.2004 was filed in this Court on 31.3.2005, in
enforcement of the order of the District Court under challenge in this appeal,
possession was delivered over to the plaintiff on 8.4.2005 through the process
of court.
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It is the case
of the plaintiff that the suit property was leased to him by the first
defendant on 17.4.1998 and that the transaction was evidenced by writing in the
letter-head of Khaitan Paper Machine Limited owned by the first defendant.
According to the plaintiff, there was an earlier litigation between the first
defendant and one Shivanand Mishra, Shivanand Mishra claiming a tenancy over a
portion of the present suit premises and at the instance of the present
plaintiff, that suit was compromised, as part of the compromise a sum of Rs.2 lakhs
was paid to Shivanand Mishra and Shivanand Mishra gave up his claim of tenancy.
According
to the plaintiff, the said sum of Rs.2 lakhs which was paid to Shivanand Mishra
was advanced by him to the first defendant and it was in consideration of the
same and the help rendered by the plaintiff in the matter of settling the
dispute with Shivanand Mishra, that the first defendant agreed to handover
possession of the suit premises to the plaintiff immediately after recovering
possession from Shivanand Mishra and it was in furtherance of the promise that
the tenancy agreement was executed on 17.4.1998. Thus, the plaintiff claimed
that he had been put in possession of the suit property as a tenant. In
derogation of the tenancy thus created in his favour, the defendants were
attempting to dispossess the plaintiff forcibly and it was in that situation
that the plaintiff was filing the suit for a declaration of his tenancy rights
over the suit property and for a perpetual injunction restraining the
defendants from interfering with his possession as a tenant.
As
already noticed, though the plaintiff filed an application under Order XXXIX
Rules 1 and 2 of the Code for an interim injunction restraining the defendants
from interfering with his possession, the trial court did not pass an ad
interim order of injunction, but only issued notices to the defendants calling
upon them to show cause why the prayer for injunction shall not be granted. It
is against this refusal of ad interim injunction ex parte, that the plaintiff
filed the appeal before the District Court in which, on 19.6.1998, the
Additional District Judge passed an ad interim ex parte order directing both
the parties to maintain status quo.
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It is necessary
to notice at this stage that in an original suit of this nature, it was not
appropriate for the Additional District Judge to pass an order directing the
parties to maintain status quo, without indicating what the status quo was. If
he was satisfied that the appellant before him had made out a prima facie case
for an ad interim ex parte injunction and the balance of convenience justified
the grant of such an injunction, it was for him to have passed such an order of
injunction. But simply directing the parties to maintain status quo without
indicating what the status quo was, is not an order that should be passed at
the initial stage of a litigation, especially when one court had found no
reason to grant an ex parte order of injunction and the appellate court was
dealing with only the limited question whether an ad interim order of
injunction should or should not have been granted by the trial court, since the
appeal was only against the refusal of an ad interim ex parte order of
injunction and the main application for injunction pending suit, was still
pending before the trial court itself. Therefore, we are prima facie of the
view that the Additional District Judge ought not to have passed an equivocal
order like the one passed in the circumstances of the case. But of course, that
aspect has relevance only to the extent that before ordering an interim
mandatory injunction or refusing it, the court has first to consider whether
the plaintiff has proved that he was in possession on the date of suit and on
the date of the order and he had been dispossessed the next day.
Unless
a clear prima facie finding that the plaintiff was in possession on those dates
is entered, an order for interim mandatory injunction could not have been
passed and any such order passed would be one without jurisdiction.
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An interim
mandatory injunction is not a remedy that is easily granted. It is an order
that is passed only in circumstances which are clear and the prima facie
materials clearly justify a finding that the status quo has been altered by one
of the parties to the litigation and the interests of justice demanded that the
status quo ante be restored by way of an interim mandatory injunction. Keeping
this principle in mind, it is necessary to see whether in the case on hand, the
Additional District Judge was justified in passing the interim order of
injunction.
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Admittedly, the
defendants are the owners of the building. The plaintiff was setting up a case
that the plaint schedule part of the building had been granted to him on lease
on 17.4.1998 and that he had obtained possession thereof on the basis of such a
lease transaction. The lease, thus set up by the plaintiff has been denied by
the defendants who had pleaded that the plaintiff had been entrusted with some
renovation work for which he was being paid and the alleged document relied on
by him was a concocted one. The grant of mandatory injunction would necessarily
depend upon the plaintiff establishing before the court that on 19.6.98 when
the court directed the parties to maintain status quo, he was in possession as
a tenant of the plaint schedule property. The burden in that behalf is clearly
on the plaintiff, the claim he made, having been denied by the defendants.
Therefore,
the first question that the District Court had to consider pursuant to the
order of remand by the High Court was whether the plaintiff had prima facie
established that the building was let out to him as claimed.
The
building is seen to be of a substantial dimension , within the District of Howrah,
part of a city, commercially important. Prima facie it is difficult to imagine
that such a building or the second floor and part of the ground floor of a
building of this nature would have been let out in such an informal manner and
the transaction not being evidenced even by a rent deed executed by the lessor
and the lessee in terms of Section 107 of the Transfer of Property Act. What
the plaintiff has relied upon is seen to be a letter on the letter-head of Khaitan
Paper Machine Limited signed by the first defendant describing himself as
Managing Director and Partner of Khaintan Estates. Prima facie it is seen that
whereas the letter-head is that of Khaitan Paper Machine Limited, obviously a
limited company, the signature is that of the Managing Director and partner of Khaitan
Estates, an entity different from Khaitan Paper Machine Limited. It is
difficult to imagine that the letter-head of one company was used for dealing
with the properties of another entity which appears to be a partnership as per
the description contained in the letter. Secondly, the letter purports to be an
acknowledgement for having received a sum of Rs.2 lakhs as security from the
plaintiff and creating a tenancy in favour of the plaintiff, and inducting the
plaintiff into possession in respect of the entire second floor and shop rooms
in the ground floor as a tenant on a monthly rent of Rs.7,000/- and conferring
upon the plaintiff a right to do certain other acts in the premises.
It is
also stated that a stamped agreement would be created by the signatory as well
as his wife, in favour of the plaintiff. Prima facie, the document does not
satisfy the requirements of Section 107 of the Transfer of Property Act and
though it acknowledges receipt of a sum of Rs.2 lakhs, there is no stamp
affixed to indicate that it was intended to be a receipt for the said sum.
As
noticed, the rent stipulated is also Rs.7,000 per month. Suffice it to notice,
that the genuineness of this document which is seriously disputed by the
defendants, its admissibility in evidence and validity, have to be decided in
the suit. Therefore, one of the questions that has to be decided is whether
this letter is genuine and if it is genuine, whether it is capable of bringing
into existence a lease or accepted as evidencing a lease transaction between
the parties. Since this is the document on which the suit is based, the finding
on the genuineness and validity of this document and the alleged transaction
created by it will have a great bearing on the claim of possession by the
plaintiff. No doubt the signature of defendant No.1 found in the document is
admitted but with an explanation that it is a got up document. A suit has also
been filed by the defendants challenging it.
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At this stage it
is not necessary to go further into this aspect because what we are concerned
with is whether pursuant to the order of remand earlier made by the High Court
directing the District Court to take evidence and to decide the question
falling for decision, the District Court has considered the relevant aspects and
whether its order granting an interim mandatory order of injunction is capable
of being sustained or is free from jurisdictional error.
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While setting
aside the original order passed by the Additional District Judge, and remanding
the application for an interim mandatory injunction, the High Court
specifically pointed out that the essential condition for passing an interim
mandatory injunction was that the party claiming it must be shown to be in
possession on the date of the order directing the parties to maintain status
quo and it must be further to shown that he was dispossessed after such an
order was passed and that specific findings on both these aspects were
necessary to sustain an order. The court had found that such findings were
lacking and hence the Additional District Judge acted without jurisdiction in
passing the interim mandatory order of injunction. The order passed was set
aside and the application filed by the plaintiff was remanded. Certain
directions regarding production of documents and their receivability were also
issued. The District Court was directed to decide the claim of the plaintiff
afresh, in accordance with law and in the light of the directions issued in
that order.
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It is seen that
after the remand, the parties produced some evidence. The Additional District
Court set out the arguments on the side of both the parties. Then it referred
to certain decisions cited by the parties. It observed that there was at least
some prima facie foundation in the claim of the plaintiff that the tenancy
agreement was executed by defendant No.1 and whether it was concocted out of a
signed blank letter head and whether it had legal force could only be decided
in the suit. It did not discuss the oral evidence that was taken pursuant to
the order of remand and merely stated that it has perused the evidence. After
referring to some cash memos and money receipts produced by the plaintiff, it
held that they prima facie showed that the plaintiff was in possession. Then it
abruptly observed that at least prima facie it is proved that the plaintiff was
in possession of the suit property on 19.6.1998, the date of the passing of the
order of status quo. It stated that as such his possession must be restored and
it was a fit case where the court should invoke its inherent jurisdiction to
order restoration of possession.
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We must say that the approach of the
Additional District Judge and the manner in which he dealt with the question in
spite of the directions in the order of remand by the High Court leave a lot to
be desired. Instead of discussing the evidence properly to find whether the
plaintiff had prima facie proved his possession on 19.6.1998 as a tenant as
claimed by him and whether he had adduced any evidence to show prima facie that
he had been forcibly dispossessed on 20.6.1998, the day after the grant of ad
interim ex parte order to maintain status quo, the Additional District Judge
has passed the interim order of mandatory injunction. We are of the view that
there is no proper or adequate finding by the Additional District Judge either
of prima facie possession of the plaintiff on 19.6.1998 or of his forcible
dispossession on 20.6.1998, Apparently, not even a neighbour or occupant of any
part of the building was examined in support of the case of forcible
dispossession on the morning of 20.6.1998. In fact there does not appear to be
any such finding of dispossession in spite of the direction in that behalf in
the order of remand. Thus, we find that the order of interim mandatory
injunction, an extraordinary relief in itself, is not supported by the
necessary findings justifying its grant. We also find that the approach made by
the Additional District Judge is not the approach that is called for, in
entertaining a claim of this nature put forward by a plaintiff and hence the
order is also vitiated by an erroneous approach to the question falling for
decision.
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The High Court, we must say, has
also not properly exercised its jurisdiction under Article 227 of the
Constitution of India. In fact, it has failed to exercise its jurisdiction.
Though the High Court rightly noticed that the burden was on the plaintiff to
show that he was in possession on the date of the order directing the parties
to maintain status quo and that he was dispossessed in violation of the
subsisting interim order, it did not scrutinize the order to find out whether
the requisite findings had been entered by the Additional District Judge on
both those aspects. It did not even consider whether there was a clear finding
that the plaintiff was forcibly dispossessed on 20.6.1998 as alleged by him. It
did not also consider whether the finding on possession was rendered based on a
discussion of the available evidence and whether the directions in the order of
remand had been complied with.
In short,
in exercise of its jurisdiction under Article 227 of the Constitution of India,
it behoved the High Court to consider whether the order of interim mandatory
injunction was supported by the necessary findings. That is certainly a
question of jurisdiction, since the jurisdiction to pass an interim mandatory
order can only be based on such clear findings and the grant of an interim
order without such findings would be acting without jurisdiction.
We may
incidentally notice that there is no prima facie material to indicate that on
20.6.1998 the plaintiff was, in fact, dispossessed by the defendants.
We may
in this context notice that the plaintiff could not show that he had either
become a member of the tenants association of the building or had entered into
an arrangement with it for the consumption of electricity in terms of the
alleged rental arrangement. We have already noticed that none of the occupants
of the building was examined to prima facie show dispossession.
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The jurisdiction under Article 227
of the Constitution may be restrictive in the sense that it is to be invoked
only to correct errors of jurisdiction. But when a court asks itself a wrong
question or approaches the question in an improper manner, even if it comes to
a finding of fact, the said finding of fact cannot be said to be one rendered
with jurisdiction and it will still be amenable to correction at the hands of
the High Court under Article 227 of the Constitution. The failure to render the
necessary findings to support its order would also be a jurisdictional error
liable to correction.
Here
the jurisdiction to grant an interim mandatory injunction could be exercised on
entering a finding that on the day the order for maintaining the status quo was
passed, the plaintiff was in possession and a day after the interim order was
passed, he was in fact dispossessed. The interim direction to maintain status
quo was an ex parte order. From the order of the Additional District court it
is not possible to come to the conclusion that on a proper advertence to the
relevant materials, prima facie clear findings had been rendered by that court
on these aspects. The prima facie infirmities attached to the letter said to
create the tenancy cannot also be ignored, since that transaction is the foundation
of the plaintiff's claim of possession.
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Thus, prima facie, we find that the
tenancy claimed by the plaintiff remains to be proved in the suit. For the
present, we should say that prima facie, the plaintiff has not been able to
establish the foundation for the possession claimed by him. It is significant
to note that not even another tenant of the building among the various tenants
in the building, was examined to establish that the plaintiff while in
possession, had been dispossessed on 20.6.1998 as claimed by him. Any way, the
Additional District Judge has not referred to any such evidence except
referring to the affidavit of Shivanand Mishra, who even according to the
plaintiff was no more in occupation. Thus, the disturbance of the status quo by
the defendants has not been established. Thus, prima facie it is clear that the
plaintiff has not laid the foundation for the grant of an interim order of
mandatory injunction in his favour. The order so passed by the Additional
District Judge, and confirmed by the High Court, therefore, calls for
interference in this appeal.
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Before parting, it is necessary to
notice the argument that after the order of the High Court and after the filing
of this petition for special leave to appeal to this Court, the plaintiff was
put in possession pursuant to the order under challenge through the process of
court. Now that we have set aside the order of the High Court and that of the
Additional District court and rejected the prayer of the plaintiff for
mandatory injunction, the defendants would be entitled to re-delivery of
possession by way of restitution. The possession will be restored to them
through court. But considering the questions to be decided in the suit, we
direct the defendants, once they are put in possession of the premises in
restitution, not to create any third party interest in respect of the plaint
schedule building (being a part of the whole building) pending disposal of the
suit. Considering the nature of the suit and the question involved, we would request
the trial court, in which the suit has been filed, to try and dispose of the
suit expeditiously.
We
clarify that it would not be necessary to consider the interim application for
prohibitory injunction separately and the same would also be disposed of along
with the suit by the trial court. The suit will be disposed of after trial
untrammeled by any of the observations contained in these interim orders.
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The appeal is, thus allowed, the
orders of the High Court and that of the Additional District Court are set
aside with the directions as above and the trial court is requested to dispose
of the suit itself expeditiously and in accordance with law. The appellants
would be entitled to their costs throughout.
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