Pratap Singh Vs. Tara Singh and anr. - Court Judgment

D.K. Jain, J.

(1) This revision petition under Section 115 of the Code of Civil Procedure (for short the Code) is directed against the two orders both dated 26 April, 1991 of Shri S.N. Dhingra, Addl. District Judge, Delhi dismissing the application of the petitioner (Defendant No. 1) under Section 151 of the Code and allowing the appeal of respondent No. 1 (plaintiff) against the order of the trial Court whereby the application of the said respondent under Order 39 Rules 1 & 2 of the Code was dismissed.

(2) Since I have heard the parties at length, I propose to dispose of the petition finally at the show cause stage.

(3) On the basis of a deed of dissolution dated 20 June 1988, admittedly signed by the plaintiff and defendant No. 1, claiming that it had been implemented in part, in that the building bearing No. C-72, Mayapuri Industrial Area, Phase Ii, New Delhi had been divided into two portions by construction of a puce wall in the hall, the western portion going to the plaintiff and in his possession and eastern portion going to the share of defendant No. 1 and with him; the telephone shifted from his western portion to defendant No. 1's eastern portion but the remaining part regarding shifting of electric connections from eastern portion to western portion having not been implemented due to resistance by defendant No. 1, the plaintiff filed a suit for mandatory injunction with a direction to defendant No. 2 (DESU) to shift the electric meter board along with meters to his side and for permanent injunction against defendant No. 1 restraining him from obstructing the said shifting. An application under Order 39 Rules 1 & 2 was also filed for restoration of electricity to the portion of the plaintiff through the old meters.

(4) Defendant No. 1 admitted the construction of wall in the hall, shifting of the telephone but denied that it was under the terms of the alleged deed of dissolution, validity and legality whereof was challenged by him and counter claim for declaration to that effect has also been made by him. The suit as also the application under Order 39 Rules 1 & 2 of the Code have been resisted by him.

(5) On the application for interim relief, after hearing the parties, the trial Court declined to grant the interim relief sought for with a direction to the parties to maintain status quo. On plaintiff's appeal, the order of the trial Court has been set aside and the interim relief granted with a direction to defendant No. 2 (DESU) to shift the meter and the electric connection as per rules and defendant No. 1 has been directed not to create any hindrance in shifting of the meter and the power connection.

(6) In this revision petition the above said order of the Id. appellate Court has been challenged. On 10 May 1991, an Interim order was made to the effect that there shall be no shifting of the existing meter but a status quo, in the sense that both parties shall continue to get electric supply from the same meter as it was before the premises were partitioned and there shall be no obstruction from the side of the petitioner in that respect. This direction was further subject to the effect that in case there is disconnection under orders of the Desu, then unless Desu agrees to restore conneciton, the parties shall not take any steps to have any wiring etc. at the spot or have electric connection in any other manner till Desu restores the connection. It was a workable arrangement but it appears that the plaintiff was averse to it. 686

(7) I have beard learned Counsel for the parties. It has been urged on behalf of the petitioner that both the orders of the first appellate Court referred to in para 1 above, suffer from material irregularity and illegality in that : (i) the appeal of the plaintiff without enclosing a certified copy of the impugned order was incompetent and (ii) by allowing the appeal of the plaintiff and by issuing direction to Desu, the appellate Court has virtually decreed the suit without trial and has in fact granted the relief to the plaintiff which was not even prayed for in his interim application.

(8) I have perused the record and considered the matter. It appears, as found by the learned trial Court, that the validity and legality of the dissolution deed on the basis whereof the relief in the suit and the interim application is claimed by the plaintiff is itself under challenge, raising an issue between the parties requiring trial. The alleged dissolution deed and the circumstances of construction of a puce wall in the hall, shifting of telephone by way of implementation, duly countered and explained in the written statement do not, in my view, establish a prima facie case for issuance of an interim injunction, much less mandatory in nature, as granted by the learned appellate Court. The learned appellate Court has taken the aforesaid circumstances as done by way of implementation of the terms of the impugned dissolution deed, which are seriously disputed by defendant No. 1 and Explanationn offered by him in his written statement. A finding on them one way or the other could be possible only after trial. As such the relief granted by the Id. Appellate Court is not available to the plaintiff at this stage.

(9) No doubt there is no absolute bar in law In the matter of grant of mandatory injunction on interlocutory application and the Court has the power to grant it but as held in United States of America v. Master Builders, 1991(1) Delhi Law 206, such an injunction is granted in very rare and exceptional cases and in the ends of justice. In my view, the present is not a case of that type and the learned appellate Courts reliance on the said pronouncement is not well based. The facts of the case are clearly distinguishable. In that case there was a good prima facie case and indeed the requirement, in the ends of Justice, to issue mandatory injunction at an interlocutory stage and the balance of convenience was also found to exist in favor of the party seeking It requiring the issuance of the order to avoid miscarriage of justice, I am not convinced that such compelling circumstances exist in the present case.

(10) It is obvious that the trial may take some time and it is quite possible that ultimately the defendant is not able to establish his case in resistance to the suit and in the process the plaintiff would suffer. However, the defense put forward, strikes at the very basis of plaintiff's claim, raises a triable issue and cannot be overlooked at this stage.

(11) For the aforesaid reasons the order of the learned appellate Court, allowing plaintiff's appeal, cannot be sustained. In view of this finding it is not necessary to dilate on the question of non-maintainability of the appeal by the plaintiff for want of certified copy of the trial Court's order.

(12) In the result, this petition is allowed. The order of the learned appellate Court Is set aside and that of the trial Court, dismissing plaintiff's interim application, is restored with no order as to costs.

(13) I am confident that the learned trial Court would see its way through to expedite the trial.