HONOURABLE Dr.
JUSTICE B.SIVA SANKARA RAO CIVIL REVISION PETITION No.76 of 2014 21-10-2014 Dasari Laxmi.Petitioner Bejjenki Sathi Reddy and another .
Respondents Counsel for the Petitioner : Sr.Rama Chander Rao Vemuganti Counsel for the Respondents: Sr.L.Prabhakar Reddy : : ?.
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(2006).SCC312AIR2006SC1474HONOURABLE Dr.
JUSTICE B.SIVA SANKARA RAO CIVIL REVISION PETITION No.76 of 2014
ORDER: This revision petition is sought to be filed under Article 227 of the Constitution of India by the Plaintiff/respondent questioning reversing order passed by the lower appellate Court dated 27.11.2013 in C.M.A.No.3 of 2013 setting aside temporary injunction granted in I.A.No.438 of 2011 in O.S.No.93 of 2011 (suit for bare injunction) dated 31.01.2013 on the file of Principal Junior Civil Judges Court, Siddipet in favour of the revision petitioner herein pending disposal of the suit in the application under Order XXXIX Rules 1 and 2 C.P.C.The plaint and petition schedule consists of lands Ac.1-03 1/3 guntas and Ac.1.00 (total Ac.2-03 1/3 guntas) in Sy.No.1942 of Kallakunta Colony, Prashanthnagar, Siddipet Mandal, Medak District.
2) It is important to mention the case of the plaintiff in the plaint running in hardly three pages that she is owner and possessor of the plaint schedule land by virtue of her purchase from Vanga Narayana Reddy viz., Ac.1-03 1/3 guntas vide registered sale deed No.334/94 and Ac.1-00 under registered sale deed No.3702/96 to say she got title with possession for the plaint schedule under the two sale deeds of 1994 and 1996 supra, from same vendor.
She further averred that she used to draw water from others bore well and by cultivating dry and wet crops, enjoying the same with possession.
Her further claim is that the defendants 1 and 2 of the suit no other than father and son are the neighbours and adjoining land owners and from the hike of land values they with some unsocial elements started trying to grab the plaintiffs land by disturbing and interrupting the plaintiffs agricultural operations and in that way in January, 2011 they entered into the suit land and caused interference with her agricultural work and she could protect her possession with the help of surrounding land holders and latter on 01.05.2011 when the plaintiff is cutting her paddy crop, the defendants with unsocial elements obstructed the plaintiff and threatened to dispossess and again on 10.05.2011 obstructed the plaintiff while she was ploughing the suit land and when she questioned, they left by threatening that they would come with larger force and dispossess and she approached orally Siddipet I Town P.S, since they stated it is a civil lis to seek injunction, she filed the suit being the owner with possession having prima facie case and balance of convenience and will be put to irreparable loss unless the relief granted from the cause of action supra of the Court having jurisdiction by notionally valued plaint relief for Rs.5,000/- in seeking decree and judgment in her favour against the defendants granting permanent injunction restraining the defendants and their men from interfering with the suit land and for costs and other reliefs.
3) Along with the plaint, she filed the temporary injunction application with her affidavit with self same averments of the plaint with no little improvement, the application seeking to grant exparte ad-interim injunction pending disposal of the suit in I.A.No.438 of 2011.
The suit and the temporary injunction were filed on 13.05.2011.
The enclosures with the plaint are C.C of the registered sale deed No.334/94, C.C of registered sale deed No.3702/96, C.C of the pahanis of the year 2006-07, 2008-09, 2009-10 and 2010-11 and valuation certificate.
4) The defendants as respondents to the injunction application filed counter dated 03.02.2012 and before that even they filed their written statement on 04.11.2011 and the counter averments are part of the written statement averments.
Thereby to avoid repetition it is apt to refer the sum and substance of the contest of the defendants in the suit as well as the application for temporary injunction with 20 documents enclosed viz., C.C of written statement, Judgment and decree in O.S.No.36 of 1996, C.C of written statement and decree in O.S.No.3 of 1981, zerox copy of 13(B) certificates dated 22.12.1993, attested copies of the pahanis of the years 1989-90, 1990-91, 1994-95, 2002-03, 2004-05 to 2010-11, C.C of Sethwar, copy of registered gift deed dated 29.10.2009, deposition of Vanga Narayana Reddy dated 22.01.2001 in O.S.No.36 of 1996 and mutation proceedings dated 28.01.2011.
Referring to the documents, it is the contest that the plaintiff has no ownership over the plaint schedule property of Ac.2-03 1/3 guntas in S.No.1942 with possession as claimed and her husband who is a well known litigant by name Dasari Kuntaiah is behind her in filing the false claim in the suit with no basis by suppression of facts and in approach with unclean hands that the alleged purchase and taking of possession under the sale deeds of 1994 and 1996 as claimed is false, taking advantage of wrong entries in revenue records plaintiffs husband by playing fraud obtained false documents and claiming right thereunder with intent to interfere to the possession of others land and he also filed suits supra to harass the adjoining land holders and the alleged source of irrigation and cultivation by the plaintiff is nothing but false and she cannot even identify alleged suit land on ground.
The plaintiff and her husband are no way concerned with suit schedule land for Ac.0-25 guntas in S.No.1942 and plaintiff suppressed the earlier litigation covered by O.S.No.3 of 1981 and 36 of 1996 and there is no prima facie case or balance of convenience in her favour muchless suffering of any irreparable injury and suit for bare injunction not maintainable and she is not entitled to the temporary injunction even under the guise of temporary injunction she and her husband want to grab the property by entering into possession and interfering with the defendants right and possession for the reasons: (1) S.No.1942 of Siddipet is with a total extent of Ac.13-30 guntas that originally belonged to Bojjanki Chandraiah 2/3 share holder and Vanga Narayana Reddy 1/3 share holder and coming to Vanga Narayana Reddys 1/3rd share, it has fallen in four places of suit land viz., (i) Ac.1-00 on northwest corner (which he sold to Dasari Veeraiah and while Dasari Veeraiah is in possession and enjoyment in the partition with his sons, it fell to the share of his eldest son D.Kistaiah and the said Kistaiah in turn sold to Dasari China Ramaiah and as per the understanding and from the allegations and the land mutation not changed from Vanga Narayana Reddys name, Vanga Narayana Reddy as pattadar executed registered sale deed to sons of Dasari Veeraiah for the same).(2) Ac.1-10 guntas at middle i.e., towards East of the suit land (which he sold in the year 1981 to plaintiffs husband Dasari Kuntaiah and the 1st defendants brother Bojjanki Linga Reddy).(3) Ac.0-35 guntas at west side of suit land (for which a consent decree from Vanga Narayana Reddy in O.S.No.3 of 1981 obtained).(4) Ac.1-19 guntas at southern side of suit land that was given by Vanga Narayana Reddy to the 1st defendant and brother of 1st defendant by name Linga Reddy under exchange for the land of them in S.No.1943.
5) It is accordingly the original owner Vanga Narayana Reddy who got 1/3rd share out of Ac.13-30 guntas in S.No.1942, to the extent of Ac.4-24 guntas in the 4 items supra, totally disposed of and left nothing in that survey No.1942 and as such, the present suit claim by plaintiff through Vanga Narayana Reddy for the suit land is nothing but a false claim with no land as referred supra and it is nothing but taking advantage of any revenue entries without mutation in the name of vendees or transferees from Vanga Narayana Reddy, the collusive sale deeds might have been obtained.
It is further contended that though the total extent of S.No.1942 on record mentions as Ac.13.30 guntas, the extent is in fact Ac.17.14 guntas as per some of the Pahanis and are Ac.16.30 guntas supra as per some of the pahanis to say the revenue pahanis are also not genuine in this regard.
It is further contended that the 1st defendant and his brother Linga Reddy partitioned their lands in which out of their total extent of Ac.9-06 guntas which is 2/3rd share of original person Bejjanki Chandraiah out of the total extent of Ac.13-30 guntas of S.No.1942, the 1st defendant got the half of Ac.9-06 guntas viz., 4-23 guntas and 1st defendants brother Linga Reddy got the remaining Ac.4-23 guntas of S.No.1942 apart from the 1st defendant and his brother got Ac.1-19 guntas in S.No.1942 from Vanga Narayana Reddy (with exchange of Ac.1-21 guntas in S.No.1943 of them vide un-registered document regularized by proceedings dated 22.12.1993 in 13(B) certificate file No.8707 and 8703 of 1993 in favour of the 1st defendant and his brother.
It is there from contended that the 1st defendant and his brother Linga Reddy sold each Ac.1-20 guntas of land each out of S.No.1942 to one B.malla Reddy (total Ac.3-00) and they also sold Ac.1-00 of land in this S.No.1942 to Dasari Kistaiah who is in possession of the same and among the lands of 1st defendant and his brother Linga Reddy 1st defendant also purchased Ac.1-15 guntas in S.No.1942 from B.Linga Reddy and Linga Reddy purchased Ac.1-00 from Dasari China Ramaiah (1st bit of Vanga Narayana Reddys share for which Vanga Narayana Reddy executed sale deed to Dasari Veeraiahs sons viz., China Ramaiah etc.,) out of his 1/3rd share described above as 4th bit out of the 4 bits of Vanga Narayana Reddy for his 1/3rd share in the total extent of Ac.13-30 guntas in S.No.1942 and as such the 1st defendant B.Sathi Reddy and his brother Linga Reddy are owning Ac.6-27 guntas (Ac.4.23 guntas in the partition, Ac.0-29 guntas in the exchange with Vanga Narayana Reddy and Ac.1-15 guntas on purchase from Linga Reddy) and Ac.6-34 guntas (of Linga Reddy viz., Ac.4-34 guntas in partition, Ac.30 guntas in exchange, Ac.1- 03 1/3 guntas purchased from Vanga Narayana Reddy covered by O.S.No.3 of 1981, Ac.1-00 purchased from Dasari China Ramaiah and Ac.0-18 guntas purchased from Dasari Kuntaiah (Plaintiffs husband).and out of their land supra, 1st defendant Sathi Reddy sold Ac.1-20 guntas equally by his brother Ligna Reddy sold Ac.1- 20 guntas to B.Malla Reddy and Ac.0-20 guntas each by the 1st defendant and his brother sold to Dasari Kistaiah as detailed supra.
6) It is therefrom contended by the defendants that they got Ac.4-27 guntas in S.No.1942 out of the total extent and out of the extent fallen to the share of 1st defendant and from the extents purchased from his brother Linga Reddy and Vanga Narayana Reddy as detailed supra after sale of Ac.2-00 to B.Malla Reddy and Dasari Kistaiah and it is out of the Ac.4-29 guntas of 1st defendant he executed registered gift deed No.2884/2009, dated 29.10.2009 in favour of the 2nd defendant who obtained pattadar passbook and revenue title deed for the same and the remaining Ac.0-27 guntas stands in the name of the 1st defendant and in the said Ac.4-27 guntas of the defendants detailed supra, they are having borewells and open wells and are cultivating.
It is therefrom contended that the plaintiff having no land in suit survey number cannot have any right by virtue of the alleged sale deeds 1994 and 1996 respectively as if purchased from Vanga Narayana Reddy when Vanga Narayana Reddy has no land to sell even by this and it is only the plaintiff and her husband at best as detailed supra got Ac.0-25 guntas in S.No.1942 with a boundary-Eastern to it the land belong to Bejjanki Linga Reddy- 1st defendants brother, West: Land of the defendants in S.No.1942 supra, North: Land of the defendants in S.No.1942 supra and South: Land of the defendants in S.No.1942 supra.
7) It is there from the contest of the defendants 1 and 2 is that the plaintiff and her husband in all got only Ac.0-25 guntas in S.No.1942 for which on three boundaries there is land of the defendants referred supra and on eastern side there is land of 1st defendants brother B.Linga Reddy and that plaintiff has no land muchless to claim any right over the suit land under the so called sale deeds of 1994 and 1996.
It is further averred in the written statement that, plaintiffs husband earlier filed O.S.No.36 of 1996 for specific performance and for permanent injunction in respect of Ac.1-00 of land in S.No.1942 against Vanga Narayana Reddy and 1st defendants brother B.Linga Reddy and latter he amended the plaint by converting into one of suit for possession and it is pending that suit having colluded with Vanga Narayana Reddy obtained the so called sale deed No.3702/96 in the name of plaintiff for no even any land to purchase and deliver possession to claim ownership and the suit was again converted as declaration of title by amending the plaintiff herein as 2nd plaintiff and the trial Court dismissed the suit O.S.No.36 of 1992.
Though the appeal was allowed, it is still pending in the second appellate stage before the High Court and even it was a suit for declaration and possession apart from second appeal pending against the 1st appellate Court judgment setting aside the trial Courts dismissal decree and judgment, there was no possession with plaintiff and her husband for the land covered by O.S.No.36 of 1996 and there is no even any E.P filed for recovery of possession pursuant to it and in the absence of even possession muchless title in dispute, the plaintiff has no locus standi even to claim that property in filing the suit and thereby it is a false litigation with baseless claim to harass and deserves dismissal with exemplary costs.
8) From the above, there is a lot of cloud cast on the title of the plaintiff over the plaint schedule property including on possession and it is also one of the questions to decide whether the suit for bare injunction maintainable or remedy is to seek for declaration being the efficacious relief to clear the cloud on title.
No doubt mere contention of the defendant is not suffice to non suit the plaintiff in a suit for bare injunction but for from material on record shows if not even from plaint averments, from ultimate analysis any cloud on title to non suit the claim for bare injunction vide Saraswathi V.
Dr.Jaganmohana Rao .
From this back ground, coming to the temporary injunction application of the plaintiff/petitioner that was allowed by the trial Court by order dated 31.01.2013 in I.A.No.438 of 2011, the order in substance reads from para 7 to 9 with reference to the rival contentions covering the facts supra that the plaintiff has no doubt to prove prima facie case, balance of convenience and irreparable loss to the grant of injunction and in this regard, she placed reliance upon Exs.A-1 to A-12 of which Ex.A-1 and A-2 are the two registered sale deeds of 1994 and 1996 and Exs.A-3 to A-5 are the pahanis of the year 2006-07, 2008-09 and 2009-10 showing out of the suit land in the name of husband of the plaintiff as pattadar for Ac.1-10 guntas and Ex.A- 6 copy of the judgment decreeing the suit in favour of the plaintiff and her husband for Ac.1-00 in S.No.1942 in A.S.No.28 of 2001 setting aside the dismissal judgment and decree in O.S.No.36 of 1996 to say plaintiff and her husband owners for the suit land and Ex.A-7 is the chief affidavit of B.Linga Reddy (brother of 1st defendant herein) in O.S.No.36 of 1996, Ex.A-8 is the appeal preferred before the Revenue Divisional Officer against B.Linga Reddy, the plaintiff and M.R.O, Siddipet with regard to the mutation his name in the pahanis by deleting the name of the Linga Reddy in respect of Ac.6-07 guntas in respect of S.No.1942, Ex.A-9 is the registered gift deed executed by father of the 1st defendant in favour of Bejjanki Padma, Ex.A-10 encumbrance certificate and Exs.A-11 and A-12 pahanis of the year 2012 showing plaintiff is the owner which goes to show there is a prima facie case in favour of the petitioner/plaintiff also balance of convenience.
The trial Court also observed in further to it that among Exs.B-1 to B-13 in support of the contentions of the defendants supra, Exs.B-1 and B-2 are the judgment and dismissal decree in O.S.No.36 of 1996 against Vanga Narayana Reddy and B.Linga Reddy of plaintiff of her husband herein for Ac.1-00 in S.No.1942 and Ex.B-3 is decree in O.S.No.3 of 1981 in favour of husband of plaintiff herein by name Kuntaiah and B.Linga Reddy against Vanga Narayana Reddy in respect of Ac.1-10 guntas and Ac.0-37 guntas of S.No.1942 and Ex.B-4 is the written statement of Vanga Narayana Reddy in O.S.No.3 of 1981 stating he sold Ac.0-37 guntas and Ac.1-10 guntas to Linga Reddy and Kuntaiah (husband of the plaintiff herein) in S.No.1942, Ex.B-5 written statement of Vanga Narayana Reddy and Linga Reddy in O.S.No.36 of 1996, Ex.B-6 deposition of Vanga Narayana Reddy in O.S.No.36 of 1996, Exs.B-7 to B-20 are the pahanis of the years 1990 to 2010, but for some years no pahanis in that duration in showing defendants herein are the pattadars for Ac.1-15 guntas, Ac.0-23 guntas and Ac.4-00 in S.No.1942 and plaintiffs husband Kuntaiah pattadar for Ac.1-10 guntas in S.No.1942, plaintiff pattadar for Ac.1-00 guntas in S.No.1942, Ex.B-1 is the sethwar for the S.No.1942 total extent of Ac.13-30 guntas including Ex.B-20 pahanis of 1990-91 for the total extent, Ex.B-22 plaint copy in O.S.No.36 of 1996 suit filed by plaintiff herein and her husband Kuntaiah for cancellation of sale deed dated 24.12.1982 against B.Linga Reddy in respect of Ac.2-07 guntas in S.No.1942 and Ex.B-23 written statement of Linga Reddy and Ex.B-24 and B-25 judgment and decree of O.S.No.36 of 1996, Ex.B-26 and B-27 judgment and decree in A.S.No.28 of 2001, Ex.B-28 order of Joint Collector in the review petition filed by Vanga Narayana Reddy against Linga Reddy against the 1st defendant herein Sathi Reddy for Ac.1-03 guntas land in S.No.1942 dismissing the revision and Ex.B-29 M.R.O, Siddipet by rectification of proceedings in the year 1992- 93 dismissing the petition filed by husband of the plaintiff herein and Ex.B-30 C.C of 13(B) certificate in favour of the 1st defendant.
The trial Court however referring to it stated as if all the Exs.B-1 to B-30 and in particular Exs.B-7 to B-16 also showing plaintiff is the owner of suit land which is not at all correct including for saying by trial Court erroneously as if plaintiff is owner and possessor of suit land there from.
It is impugning the said trial Courts injunction order when the defendants to the suit preferred C.M.A.No.3 of 2013.
The learned VI Additional District Judge, Siddipet allowed the C.M.A by order dated 27.11.2013.
9) The sum and substance of which read from paras 9 to 13 that when the defendants-appellants contend with reference to their documents that the plaintiffs Exs.A-1 and A-2 so called sale deeds of 1994 and 1996 are created with no title or right even to vendor to alienate there is a title dispute therefrom and even from the Ex.B-3 so called consent decree in O.S.No.3 of 1981, the suit land of O.S.No.3 of 1981 situate in two places for Ac.2-07 guntas viz., 1-10 guntas at one place and Ac.0-37 guntas in another place and as per the 1st defendant and his brother Linga Reddy, they partitioned.
However, the revenue authorities did not mutate the same as per which, Dasari Kuntaiah husband of the plaintiff obtained fresh sale deeds from Vanga Narayana Reddy in the name of his wife-the plaintiff, covered by Ex.A-1 document No.334/1994 and the said document not even executed by B.Linga Reddy is party to the suit and joint owner even as per the consent decree and in the absence of which there is substance to the title dispute.
Further for his saying purchased Ac.0-18 guntas share of Kuntaiah out of Ac.0-27 guntas by defence and cause regularized by R.O.R proceedings, the plaintiffs husband went unsuccessful in challenge before the Joint Collector and even so far as O.S.No.36 of 1996 dismissal decree claimed allowed in appeal i.e., subject matter of second appeal and there was observation even in the judgment by the Senior Civil Judge, Siddipet in the appeal suit which is at page 22 of the Ex.B-26 that it is just to knock away the extent of Ac.0-25 guntas in Ac.1-10 guntas in S.No.1942 plaintiff brought registered sale deed and the present suit filed pursuant to it in claiming over it and to deprive of the rights of the plaintiffs by approaching the Court with false plea and even in the suit Vanga Narayana Reddy deposed in his evidence which is also important regarding the sale transaction in favour of the suit 1st defendant B.Sathi Reddy and his brother Linga Reddy.
Even from his deposition of his execution of Ex.A-1 and A-2 sale deeds of 1994 and 1996 in favour of plaintiff, the plaintiff must show possession and title which are in dispute thereunder and in fact plaintiffs husband filed O.S.No.8 of 1981 against Vanga Narayana Reddy and the 1st defendants brother Bejjanki Linga Reddy was that he purchased Ac.1-00 of land under sale deed dated 08.06.1972 and his vendor not executing sale deed and interfering in his possession, for specific performance originally and the common written statement of Vanga Narayana Reddy and Linga Reddy contention was he did not sell the land and the suit claim a false one and it appears pending suit there was collusion between husband of the plaintiff herein and Vanga Narayana Reddy in executing 1996 sale deed Ex.A-2 and there was observation including in the appeal judgment A.S.No.28 of 2001, Ex.A-6 that Linga Reddy, 2nd defendant failed to establish the land fallen to his share in the partition or he purchased and thereby he is liable to be evicted and as such plaintiffs entitled to seek recovery of possession and when such is the case mere execution of sale deed does not confer right to possession in the absence of execution to say plaintiff not in possession to the relief of injunction and from the previous litigations and from the cloud on the title also apart from no possession, the plaintiffs claim for bare injunction not tenable, that to the second appeal is pending even the fiRs.appeal allowed in favour of the plaintiff and her husband and there is no even in execution and taking delivery of possession thereunder to the claim of possession for any extent of the suit land and the trial Court did not consider even exhibits filed by the defendants and there is serious dispute regarding entries in the revenue records also that does not serve any purpose to claim possession thereunder and therefrom the C.M.A is allowed setting aside the temporary injunction order.
10) It is now, in the revision filed under Article 227 of the Constitution of India in the C.R.No.76 of 2014, the appellate Court order is impugned by the plaintiff/revision petitioner with contentions in the grounds of appeal that when plaintiff/petitioner contending as owner and possessor of the suit land Ac.2-03 1/3 guntas in S.No.1942 (plaint schedule property) as purchased under the two sale deeds 334/94 and 3702/96 for Ac.1-03 1/3 guntas and Ac.1-00 respectively for consideration and vendor delivered possession and she is in possession since purchase by raising crops being the owner and claim the defendants being adjacent owners are trying to interfere and threatening to dispossess the trial Court when granted injunction appellate Court should not have set aside the same and when trial Court appreciated the documentary evidence, appellate Court went wrong in reversing the findings of the trial Court under the guise of reappreciation, even there is a prima facie case, balance of convenience in favour of the plaintiff who suffers irreparable injury without grant of injunction having right and possession over the plaint schedule and Exs.A-1 to A-12 filed by the plaintiff establishes the same in her favour and as held by the trial Court in granting temporary injunction Exs.B-7 to B-16 supports the said contention thereby sought for setting aside the lower appellate Courts decree and order in C.M.A.No.3 of 2013 dated 27.11.2013.
11) Whereas it is the contention of the respondents/defendants that the 1st appellate Court is right in allowing the C.M.A setting aside the temporary injunction order and there is a cloud on the title claimed by the plaintiff i.e., enquired and it requires localization of the suit property even by appointment of an Advocate-Commissioner for ascertaining the total extent of ascertaining the respective extents of Vanga Narayana Reddy and by finding out of the extents of Vanga Narayana Reddy, the respective alienations with reference to the respective documents of alienations to find out whether there is any property left with Vanga Narayana Reddy to alienate in the absence of which no one can convey a better title than what he has and when no title can be conveyed no right and title accrued under the two sale deeds muchless possession to claim the temporary injunction that too the basis of suit for bare injunction is title and possession is owner and not even on any possessory title and thereby sought for dismissal of the revision in saying the revision powers are very limited in for this Court while sitting in revision under Article 227 of the Constitution of India only to the extent of considering legality or correctness of the order as to relevant considerations not made or irrelevant considerations made and therefrom there is any sufferance of injustice otherwise this Court cannot sit in revision muchless to reappreciate independently the material on record but for to decide the correctness of the impugned order with reference to the limited spare.
12) Heard both sides at length.
Perused the material on record.
13) Now, the points arise for consideration are: (i) Whether the lower appellate Courts impugned order dated 27.11.2013 in C.M.A.No.3 of 2013 by setting aside the trial Courts order dated 31.01.2013 in I.A.No.438 of 2011 in the pending suit for bare injunction based on title and possession granting temporary injunction; is unsustainable and requires interference by this Court invoking Article 227 of the Constitution of India to set aside or otherwise and within its limited scope and if so with what observations?.
(ii) To what result?.
POINT No.(i) 14) As per Hallsburys Laws of England, an injunction is an order of the Court by writ or command or direction or sanction which is a judicial process whereby a party ordered to be refrained from doing (prohibitory to maintain existing status-quo) or to do a particular positive act (mandatory to restore status- quo ante).But for that, an injunction cannot be granted to establish a new case or a new state of thing other than to maintain status-quo existing or to restore a thing to status-quo ante.
As per H.C.Joycee- Injunction is an equitable relief to remedy by preventing wrongs and preserving rights; same also stated by Dr.Pomeroy by adding such relief to remedy is wholly preventive or prohibitory or even protective or its combination.
As per Storys equity Jurisprudence (S.1183) it is not a matter of ex-debito-justitiae but one which is purely within the sound discretion of the Court.
It cannot be demanded as of right- (Winfield on tort, 6th edition page-189).Discretion when applied to a Court of law, says Lord Mansfield means discretion guided by law and governed by Rule, it must not be arbitrary, vague and fanciful.
It will not be allowed against public convenience.
Thus, he who seeks said equity jurisdiction must be able to show that his own acts in the matter are fair and honest.
15) It is thereby important to note that granting or refusal of injunction is within the judicial discretion of the Court being an equitable remedy and to seek the relief, plaintiff must come to the Court with clean hands and there shall not be any little suppression of material facts vide decisions in Municipal Corporation of Delhi V.
C.L.Batra ; Mogalipuvvu Annapurnaiah V.
Malampati Narasimha Rao and Saraswathi (supra) is also important to note that the Court can recall its own order even if there are suppression of material facts and if said order is outcome of fraud in any manner or misrepresentation as per P.Satyanarayana V.
Land Reforms Tribunal and Govinda Ramanuja Das Goswami V.
Appala Vijiaramaraju .
16) The plaintiff who is a party to the earlier lis in O.S.No.36 of 1996 for part of the plaint schedule property herein of the suit went in dismissal which was originally filed by her husband for specific performance of contract for sale latter converted from the contest of defendants therein into one for possession and again for declaration and possession and even against the trial Courts dismissal decree and judgment appeal filed by the plaintiff herein and her husband as co-plaintiffs allowed, there was a direction for recovery of possession and admittedly possession not taken thereunder for part of the present plaint schedule and the matter is still subjudice from the second appeal admittedly pending, when such is the case it must be for plaintiff to plead how entitled to prohibitory injunction claiming as if in possession for that extent also.
These facts though material for the suit lis that are required to be mentioned in the plaint and injunction petition affidavit, plaintiff failed to mention for reasons better known; when she cannot even pretend lack of knowledge or out of ignorance that too well versed with Court litigation being party with her husband to that earlier round litigation still to reach finality.
Apart from it, so far as the factual matrix concerned, as discussed from the written statement of the defendants, it still requires localization of the total extent of the land in S.No.1942 and after fixation of boundaries and after ascertaining 1/3rd share of Vanga Narayana Reddy through whom the plaintiff claims the title under Ex.A-1 and A-2 sale deeds with reference to the subject matter of the lis in O.S.No.3 of 1981 and O.S.No.36 of 1996 and with reference to the alienations made by Vanga Narayana Reddy in the four bits detailed in the written statement of the defendants supra whereunder he could get towards 1/3rd share out of total extent and out of the exclusion of the lands alienated prior to the Ex.A-1 and A-2 sale deeds in favour of the plaintiff and her husband for whatever the plaintiff to claim if established for any extent in possession for alleged threatened interference to seek injunction.
Else for there is a cloud cast on the title, it goes to the very root of maintainability of suit for bare injunction.
In the factual matrix brought on record, leave about the plaintiff come with a positive claim and if able to show no cloud on title after causing the property identified by localization with reference to the Exs.A-1 and A-2 sale deeds; she may succeed to the suit for bare injunction provided established in possession.
As on date from the above, particularly for part of the present plaint schedule is covered by the earlier suit O.S.No.36 of 1996 claim for possession, not taken possession to claim as if in possession to seek injunction, besides the fact that even a true owner is not entitled to take forceable possession under guise of injunction or to protect it to seek injunction.
Thus, there is no prima facie case.
17) On what is a prima facie case that required to be established is though not the chance of ultimate success as held in Chand Sultana Alias Indra Bai V.
Khurshid Begum , since the rigour is watered down, however, it is not a mere bonafide contention and involvement of a triable issue, but something more than that; that too when the claim is for injunction based on title and possession; the Court has to incidentally go into the title to decide the existence or not of prima facie case as laid down in Saraswathi supra.
17(a) In Dalpat Kumar V.
Prahlad Kumar it was held that prima facie case cannot be confused with prima facie title to be established on evidence at trial as it is only the substantial question raised bonafide which needs investigation and decision on merits.
It is the probability of plaintiff obtaining relief on the material placed before the Court at that stage and for that every piece of evidence produced by either party has to be taken into consideration in deciding it and to justify by reasons issuance or refusal of injunction or otherwise for terms to impose.
17(b) Importantly in M.Gurudas V.
Rasaranjan it was held, while saying all the three conditions must be made out, at para Nos.9 and 10 observed on what is meant by prima facie case that it is a finding of fact of each case for that not only must arrive at a conclusion that a case for trial has been made out; but also that there is a serious question to be tried and the claim is not frivolous or vexatious.
17(c) It was further held referring to several earlier expressions of the Apex Court (in Colgate Palmolive India Limited V.
Hindustan Lever Limited ; S.M.Dyechem Limited V.
Cadbury India Limited , M/s.Transmission Corporation of A.P.Ltd V.
M/s.Lanco Kondapalli and mainly referring to the law in England prior to the decision of House of Lords in American Cynamid V.
EthiCo.Ltd that prospect of success was one of the important factORS.This consideration was prohibited by American Cynamid, but for in a most exceptional case and following it in S.M.Dyechem supra, it was held that comparative strength and weakness of parties may be a subject matter of consideration for purpose of grant of injunction in the trade mark case, that referred in Cadile Health Care Limited V.
Cadile Pharmaceuticals holding the contention must be bonafide and the question sought to be tried must be a serious question and not a mere triable issue and also the conduct of the party invoking jurisdiction of Court for injunction shall be shown free from blame since the relief is wholly equitable in nature and not at fault and not unfair and inequitable ultimately on facts, directed trial court for expeditious disposal of the suit.
17(d) It was held further in Gurdas supra in para No.10 that We are, however, not oblivious of the subsequent development of law both in England as well as in this jurisdiction.
The Chancery Division in Series 5 Software v.
Clarke [(1996) 1 All ER853 opined: ".In many cases before American Cyanamid the prospect of success was one of the important factors taken into account in assessing the balance of convenience.
The courts would be less willing to subject the plaintiff to the risk of irrecoverable loss which would befall him if an interlocutory injunction was refused in those cases where it thought he was likely to win at the trial than in those cases where it thought he was likely to lose.
The assessment of the prospects of success therefore was an important factor in deciding whether the court should exercise its discretion to grant interlocutory relief.
It is this consideration which American Cyanamid is said to have prohibited in all but the most exceptional case.
So it is necessary to consider with some care what was said in the House of Lords on this issue.".
In Colgate Palmolive (India) Ltd.v.Hindustan Lever LTD.[(1999) 7 SCC1, this Court observed that Laddie, J.
in Series 5 Software (supra) had been able to resolve the issue without any departure from the true perspective of the judgment in American Cyanamid.
In that case, however, this Court was considering a matter under Monopolies and Restrictive Trade Practices Act, 1969.
In S.M.Dyechem Ltd.v.Cadbury (India) LTD.[(2000) 5 SCC573, Jagannadha Rao, J.
in a case arising under Trade and Merchandise Marks Act, 1958 reiterated the same principle stating that even the comparative strength and weaknesses of the parties may be a subject matter of consideration for the purpose of grant of injunction in trade mark matters stating : ".21 Therefore, in trademark matteRs.it is now necessary to go into the question of ".comparable strength".
of the cases of either party, apart from balance of convenience.
Point 4 is decided accordingly.".
The said decisions were noticed yet again in a case involving infringement of trade mark in Cadila Health Care Ltd.v.Cadila Pharmaceuticals LTD.[(2001) 5 SCC73.".
While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused.
The contention of the plaintiffs must be bona fide.
The question sought to be tried must be a serious question and not only on a mere triable issue.
[See Dorab Cawasji Warden v.
Coomi Sorab Warden and Others , (1990) 2 SCC117 Dalpat Kumar and Another v.
Prahlad Singh and Others (1992) 1 SCC719 United Commercial Bank v.
Bank of India and Others (1981) 2 SCC766 Gujarat Bottling Co.LTD.and Others v.
Coca Cola Co.and Others (1995) 5 SCC545 Bina Murlidhar Hemdev and Others v.
Kanhaiyalal Lokram Hemdev and Others (1999) 5 SCC222and Transmission Corpn.
of A.P.Ltd (supra) 17(e) Thus, the law laid down in Gurudas supra which explained what was laid down supra of American Cynamaid earlier is a subsequent development of law both in England and India in this jurisdiction in Software v.
Clarke of Chancellory division on what is meant by prima facie case is not mere triable issue and bonafide contention; though not as per law prior to American Cynamaid of prospective success, but something above that bonafide contention or triable issue as the question sought to be tried must be a serious question and not mere a triable issue.
18) It is also important to note that the provisions of Chapters VII and VIII of the Specific Relief Act must bear in mind to the extent of relevancy even for grant of temporary injunctions.
In Cotton Corporation of India V.
U.I.Bank it was held that Sections 41 read with 36 to 39 of the Specific Relief Act also have to be taken into account when an interim injunction order is to be passed on application under Order XXXIX and Sections 151 and 94 C.P.C.19) The law is also further well settled in this regard from the expressions of the Apex Court in, Colgate Palmolive India Limited V.
Hindustan Lever Limited and Lanco Kondapalli (supra) that the interim direction for injunction depends upon the finding of a prima facie case which is the sine-qua-non and if the same is established, the Court shall also to consider the other relevant factors for the entitlement viz., balance of convenience and irreparable injury and the grant of the interlocutory order of injunction once if properly exercised by trial Court, the appellate Courts will usually not to interfere.
However, appellate Courts will substitute their discretion if they find the discretion exercised by the trial Court is in ignorance of the settled principles of law regulating to the grant or refusal of the interlocutory injunction from any arbitrary exercise of the trial Court in its finding.
See also para No.116 of the Apex Courts another expression in Ramdev Food Products PVT.Ltd.V.Arvindbhai Rambhai Patel .
20) The pre-requisites for grant of injunction from all the three requirements is the law of the land right from the Apex Courts expression in Hajrath Surath Sha Urdu Educational Society V.
Abdul Saheb .
In Dalpat Kumar supra it is observed that the phrases prima facie case, balance of convenience and irreparable injury are not rhetoric phrases for incantation, but words of width and elasticity to meet myriad situation presented by mens ingenuity in given facts and circumstances, but always is hedged with conscious exercise of judicial discretion to meet the ends of justice.
Dr.Chavla V.
Municipal Corporation of Delhi , Morgan Stanley Mutual Fund V.
Karthik Das Public Issues , Gujarath Bottling Company V.
Cocola Co.Ltd are the other expressions in the area which speak that, even all the three conditions satisfied, the Court may in an appropriate case refuse injunction in exercise of the judicial discretion see also A.Venkanna V.
R.Venkatrao .
20(a) The balance of convenience whether lies or not to decide, the Court must weigh the case of the parties from the factual matrix, the pros and cons as to the scale in whose favour tilts while weighing as to the inconvenience is more if injunction not granted than other suffer if granted to say refusal of injunction would involve greater injustice than grant of it as held in Morgan Stanley and Gujarat Bottling Co.supra.
It was held in Nawab Mir Barkat Alikhan V.
Nawab Zulfiquar Jah Bahadur in this regard that the Court to decide balance of convenience whether lies in favour of petitioner, must weigh to balance the mischief by not granting injunction whether be greater than that arising on the granting of injunction.
20(b) So far as irreparable injury concerned, whether the refusal would result any damage to a persons right or reputation or property need not always be capable of not of measurements in terms of money to compensate as held in Dalpat Kumar and Gujarat Bottling Co.LTD.supra.
Thus, irreparable injury does not mean there must be no physical possibility of repairing the injury but the injury must be a material one that cannot be compensated by damages.
21) Needless to say, the Court while granting injunction in its judicial discretion after all the three ingredients held satisfied, shall obtain security from the person obtained injunction as contemplated by Order XXXIX C.P.C needless to say the earlier A.P.amendment by insertion of Rules 3-A & B even ceased its force after the C.P.C Central Amendments, particularly when the same as a rule is incorporated in Order XXXIX Rule 2 Sub Rule (2) with effect from 01.07.2002; as also held by the Apex Court in Balco Employees Union Regd.V.Union of India case that Court must obtain security while granting injunction.
22) It is needful to say the compliance of order XXXIX Rule 3 (when granted exparte ad-interim injunction for temporary direction pending notice to respondents and for further hearing).is mandatory and non-compliance shall lead to vacate the interim exparte injunction vide Nikesh V.
Malathi Bai .
23) In Gujarat Bottling Co.Ltd supra, it is further observed that, the Court in exercise of the judicial discretion of the equitable relief for injunction to grant or not, must look into the conduct of the parties as to the person who approached the Court in seeking the relief has come to Court with clean hands or not, and any unfair or inequitable dealings by the party disentitles to the equitable relief even all the conditions are satisfied.
24) This Court in Saraswathi supra way back held that even the Court holds that the temporary injunction relief pending suit cannot be granted within the discretion, it can impose terms on the party in possession to deposit income from the property to the credit of the suit till disposal of the suit or the like and the terms may be modified or varied from time to time and the Court also can appoint a receiver or Commissioner in a temporary injunction application pending suit, for taking possession of the property and management pending suit by restraining both the parties from interference with possession as a custodia legis to entrust the property to the party ultimately succeeded.
25) This Court way back held in Dulichand V.
Khaja Mohammad Ibrahim Khazi that the imposing of terms from non-entitlement to the injunction within the judicial discretion may include restraining both parties from entering the suit land or doing any particular act for maintaining and protecting the subject matter of the lis pending suit.
26) In fact in Halsburys Laws of England, 2nd edition, Volume 18 para No.49 and Volume 21, Para 775 it was stated that it is within the powers of the Court of equity for sole purpose of effective justice between the parties while granting or refusing injunction to impose terms on the parties.
Courts will take care that the order is so framed that neither party will be deprived of the benefit he is entitled to, if in the event it turns out that party in whose favour, it was made is the wrong, for the purpose it will be necessary to impose terms if required on the party as a condition in granting or refusing injunction.
27) From the above, the trial Court as can be seen from the material supra, did not advert to any of these aspects with reference to the facts in granting injunction that was rightly reversed by fiRs.appellate Court though not in specific required terMs.However, that itself is not a ground for this Court within its limited sphere of interference under Article 227 of the Constitution of India 28) Scope of Article 227 of Constitution of India: It is important to refer the settled expression of the Apex Court in Suryadev Rai V.
Ramachander Rai in this regard.
It was a case arisen out of suit for permanent injunction based on title and possession claim over the agricultural land, where ad-interim injunction granted and ultimately it was not made absolute by vacating injunction that was upheld by the appellate Court therefrom the plaintiff/appellant moved the High Court under Article 227 of the Constitution of India and the High Court summarily dismissed the civil miscellaneous petition No.20038 of 2002 on its maintainability as appellant is seeking relief against private respondents by referring to Saran V.
Civil Judge against which the matter came before the Apex Court.
28(a) It was held that earlier the remedy of final civil revision under Section 115 C.P.C could have been availed but is not available because of the amendment to Section 115 C.P.C by amended Act 46 of 1999 with effect from 01.07.2002 and it was the question then raised before the Apex Court in this regard as to jurisdiction of the High Court to entertain petitions seeking writ of certiorari in such matters either under Article 226 or invoking power of superintendence under Article 227 of the Constitution of India where there is gross failure of justice to the aggrieved deprived of remedy.
28(b) It was after elaborate discussion of the legal provisions with reference to the propositions at para 38 of the judgment, the Honourable Apex Court laid down by summing up its conclusions that: (1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory ordeRs.passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No.46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction â“ by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction.
When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning.
Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion.
Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings.
The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions.
While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof.
In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.
28(c) From the above expression more particularly from the reading of the conclusion at para 38, (4) to (9) it is indicating that mere error in exercise of jurisdiction by the lower appellate Court is not sufficient to interfere in the absence of showing of failure of justice resulted therefrom; without which the jurisdiction under Article 227 to invoke is out of availability.
No doubt some of the observations of the expression in Suryadev Rai are still pending by reference to the larger bench before the Honourable Apex Court.
28(d) It is also relevant to mention in this context the Five Judge Bench expression of the Apex Court in Sayyed Yakub V.
K.S.Radha Krishnan wherein it was observed that for correcting errors of jurisdiction committed by Courts and Tribunals in exercise of jurisdiction to issue writ of certiorari as a supervisory one, the Court is not entitled to act as Court of appeal.
A finding of fact arrived at by the inferior Court or Tribunal is binding.
An error of law apparent on the face of the record could however be corrected but not an error of fact.
A writ could also be issued if it is shown that in recording a finding of fact that admissible and material evidence has not been admitted, or inadmissible evidence affecting the impugned finding has been admitted.
However, a finding of fact could not be challenged on the ground that relevant and material evidence was insufficient to sustain such finding.
28(e) It is also important to note in this context a two Judge bench expression of the Apex Court in the recent past in Shalini Shyam Shetti V.
Rajendra Shankar Patil (civil appeal No.5896 of 2010, dated 23.07.2010) particularly at para No.32 it was held that, no writ can be moved under Article 227 of the Constitution of India nor can a writ be issued thereunder.
Only a petition should be filed which cannot be called a writ petition.
This is clearly the constitutional position and no rule of any High Court can amend or alter this clear constitutional scheme.
The High Courts power of superintendence under Article 227 of the Constitution of India has its origin as early as in Indian Courts Act, 1861 and the concept of superintendence has been borrowed from English Law and was there not only in the Kings Bench in England but also in Presidency Towns of Calcutta, Bombay and Madras under the regulating Act, 1793 and latter under Section 15 of the Indian Courts Act, 1861, the Government of India Act, 1915 covered by Section 107 and the same was continued with salient changes in Section 224 of the Government of India Act, 1935.
28(f) This historical perspective has been elaborately traced by a Division Bench of the Calcutta High Court in Jahnavi Prasad Benerji V.
Basudev Ram that was followed by the Allahabad High Court in Sukh Deo Bai Swar V.
Brij Bhushan Mishra and the history of Article 227 of the Constitution of India has also been traced by the Apex Court in the Constitutional Bench expression in Vadian Singh V.
Amarnath and latter by another Constitutional Bench expression in Nagendranath Bora V.
Commissioner of Hills Division and latter by another Constitutional Bench expression in State of Gujarat V.
Vakhath Singhji that the power under Article 227 of the Constitution of India cannot be fettered by State Legislature but this supervisory jurisdiction is meant to keep subordinate Courts and Tribunals within the limits of their authority and to ensure that they obey the law and following the same in Mani Narayan Daruwala V.
Phiroz N.B it was held that under supervisory jurisdiction of the High Court as per Article 227 of the Constitution of India, the High Court can set aside or reveRs.the finding of an inferior Court or Tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which has come to and except to this limited extent the High Court has no jurisdiction to interfere with the finding of fact.
28(g) The Apex Court in its latter expression in Lakshmi Kanth R.B V.
Pratap Singh M.P.at paragraph No.9 reminded the High Courts that, under Article 227 of the Constitution of India, High Courts cannot assume unlimited prerogative to correct all species of hardship or wrong decision; its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principle of law and justice and in Suryadev Rai supra it was held referring to Article 227 that writ of certiorari is maintainable against the order of a civil subordinate to the High Court and correctness of the ratio doubted in Radheysham V.
Chabinath and reference to a larger bench pending in this regard.
But in so far as the formulation of the principles on the scope of interference by the High Court under Article 227 is concerned, there is no divergence of views.
28(h) Thus, Article 226 and 227 of the Constitution of India stands on substantially different footing and after the Constitution every High Court has been conferred with the power to issue writs under Article 226 by original proceeding whereas jurisdiction under Article 227 on the other hand is not original nor its appellate but only of superintendence both administrative and judicial vide State of U.P V.
Dr.Vijayanand Maharaj and Hari Vishnu Kamath V.
Ahmad Ishaque at para 20.
It is also observed that jurisdiction under Article 226 normally is exercised where a party is affected (for vindication of fundamental or other statutory rights).but power under Article 227 of the Constitution of India can be exercised by the High Court, to remedy as a custodian of Justice (for vindication of its position as the highest judicial authority in the State).Thus, the High Courts in entertaining a petition under Article 227 of the Constitution of India which is not a writ petition, cannot on the drop of hat, in exercise of its power of superintendence, interfere with the orders of the Tribunals or Courts nor exercise the power as a Court of appeal and where there is an alternative statutory mode or redressal has been provided, that would also operate as a restraint and the exercise of this power is guided by the Constitutional Bench expression in Wairian Singh (supra) that has been repeatedly followed by subsequent Constitutional Bench expressions and other expressions that it can interfere in order only to keep the Courts subordinate to it or Tribunals, within the bounds of their authority.
Thus, said exercise of jurisdiction under Article 227 is by interference where there has been a patent perversity in the orders of the subordinate Court or Tribunal and where there has been a gross and manifest failure of justice or the basic principles of natural justice has been flouted.
Otherwise, the High Court cannot interfere to correct some errors of law or fact or just because another view than the one taken is a possible and thus, it has to be sparingly exercised.
Needless to say as held by another Constitutional Bench in L.Chandra Kumar V.
Union of India , this power of superintendence cannot be curtailed by any statute and even approachment by a constitutional amendment is doubtful.
29) Thus, Section 115 C.P.C amendment by 1999 amended Act does not and cannot cut down the ambit of the High Courts power under Article 227 of the Constitution of India and at the same time, by the amendment, it is not even expand the Courts jurisdiction of superintendence.
It has to be exercised on equitable principle and only in appropriate cases to ensure that the real justice does not come to a halt and this reserve and exceptional power of judicial intervention should be directed in the larger public interest and subject to high degree of judicial discipline as above pointed.
30) The Apex Court held in Govt.
of NCT of Delhi V.
Raj Kumar that the High Court in the writ petition when granted interim protection order, though the same was on facts found improper held due to afflux of time since said interim protection order granted of 2 yeaRs.proper couRs.would be to operate the said order till disposal by directing expeditious disposal of the matter within three months.
31) In M.Gurudas supra and Kishore Kumar Khaitan V.
Praveen Kumar Singh it was held that Court can while passing order give directions with reference to facts and circumstances and directed expeditious disposal of the lis before trial Court.
32) This Court thus could not venture to interfere with the impugned order of the lower appellate Court, but for giving the following directions viz., there is an exparte injunction in favour of the plaintiff at the time of filing of the suit obtained that continued by making it absolute and even after the lower appellate Courts reversal order setting aside the injunction order by filing the petition under Article 227 of the Constitution of India before this Court there is suspension of the order of the learned I Additional District Judge in C.M.A.No.3 of 2013.
Accordingly point No.1 is answered.
POINT No.(2) 33) Accordingly and in the result, the revision is disposed of with no costs and with the following observations: As the suit O.S.No.93 of 2011, pending for more than three years for trial and thereby keeping these facts in view and without prejudice to the rights of the parties, if at all to invoke for appointment of a receiver or Commissioner to protect the subject matter of the lis if need be pending trial to consider on own merits as part of the conditions the trial Court can impose by virtue of the lower appellate Courts order setting aside the interim order granted by the trial Court and the terms that to be imposed are not final but for change from time to time for imposing any terms or conditions including by taking property if necessary as a cusdia legis and entrust to a Commissioner or Receiver if not to plaintiffs or the defendants being entrusted as party Receiver to deposit the income therefrom or the receiver to manage.
Thus, besides need to pass such orders supra or not to consider, not at cost of postponing trial, but while proceeding with the trial Court shall make every endeavour to dispose of the suit atleast within three months from the date of receipt of order by giving priority in disposal and by conducting day to day trial as contemplated by Order XVII C.P.C.This direction is to subserve the ends of justice and in consonance with the expression of this Court in Saraswathi supra besides earlier expression of Nawab Mir Barkat Alikhan supra and also other expressions including of the Apex Court subsequently and the quote from Halsburys laws of England referred supra thereto in this regard.
There shall be no order as to costs.
34) The miscellaneous petitions, pending if any, shall stand closed.
_________________________ Dr.B.SIVA SANKARA RAO, J Date:21-10-2014