Stephen Toppo Vs Gopal Prasad Sharma

In WP227/208/2025, the petitioners have challenged the order dated 01.02.2025, whereby the appeal preferred by the plaintiff/respondent under Order 43 Rule 1 of the CPC was partly allowed and a direction was issued to demolish the wall which obstructs the path.

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In WP227/491/2025, petitioners have challenged the legality, validity and propriety of order dated 09-05-2025 passed by learned trial court who is all set to execute the order dated 01-02-2025 passed by learned appellate court Jashpur wherein defendant's 12 feet boundary wall has been directed to be demolished despite knowing the fact that the order dated 01-02-2025 passed by the learned appellate Court Jashpur has been stayed vide order dated 05-03-2025 passed by Hon'ble this Court in WP(22) 208/2025 filed by petitioners assailing the order passed by appellate court Jashpur.

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The facts of the present case are as under:-

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A. The plaintiff/respondent filed Civil Suit No. 3A/2023 before the learned Ist Civil Judge Class-I, Jashpurnagar claiming easement right of way and permanent injunction, inter alia, on the ground that the land bearing Survey No. 222/1 admeasuring 0.3400 hectare owned by the petitioner/defendant was being used for the weekly market by villagers for the last 60 to 70 years. It is also pleaded that there was a path leading to the house and shop of the plaintiff, which has been restrained by the petitioners by raising a wall.

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B. An application under Order 39, Rules 1 and 2 of the CPC was also moved, which was rejected by the learned Trial Court, and the appeal was also dismissed. The petitioner challenged both orders in WPC No. 163 of 2023, which was disposed of vide order dated 02.08.2023, wherein liberty was granted to the petitioner to move a fresh application under Order 39 Rules 1 and 2 of the CPC along with the relevant documents before the learned trial Court. A direction was issued to the concerned Court to decide the same, and till then, the parties were directed to maintain the status quo.

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C. The respondent/plaintiff moved a repeat application for the grant of a temporary injunction along with a report dated 03.03.2023 prepared by the Revenue Officer.

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D. In the year 2018–19, the defendant completed the construction of a house on his land under the Pradhan Mantri Awas Yojana. He also raised a boundary wall.

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E. The respondent/plaintiff moved an application before the Tahsildar to stay the ongoing construction. The concerned Tahsildar called for an inquiry report from the subordinate revenue officers. According to the report, there was a right-of-way over the suit property. The report states that initially, the defendant was using the land for agricultural purposes, but when he stopped cultivation, it was being used as a weekly market by the villagers. The concerned Tahsildar passed a stay order in favour of the respondent/plaintiff.

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F. The plaintiff purchased his land in 2010. The respondent/plaintiff raised the construction of a house and approach road to his house and shop through the

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land of the petitioners. The learned Trial Court, after considering the pleadings and documents filed by the petitioner, rejected the application for temporary injunction vide Order dated 09.10.2023.

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G. The respondent preferred an appeal under Order 43 Rule 1 of the CPC, which was contested by the defendants. The appellate court vide Order dated 01.02.2025 held that the respondent/plaintiff had no other alternative path to approach his dwelling house and shop, and thus, set aside the order passed by the trial Court and further directed the demolition of the 12-feet high wall which obstructs the right of way of the plaintiff.

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H. The petitioner/defendant initially filed Miscellaneous Appeal No. 43 of 2025 against the said order, which was withdrawn on 03.03.2025 with the liberty to prefer a writ petition under Article 227 of the Constitution of India. Thereafter, the present petition (WP227 No.208 of 2025) was filed on 04.03.2025, and Mr. Anurag Singh, Advocate, appeared for the respondent/plaintiff on the date of hearing, i.e. 05.03.2025.

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I. After hearing the parties, purely as an interim measure, the effect and operation of the order dated 01.02.2025 passed by the learned District Judge was stayed till the next date of hearing.

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J. The State Counsel was directed to submit a report from the concerned Tahsildar with regard to the availability of the alternative way in favour of the respondent/plaintiff.

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K. On 18.03.2025, the interim order granted on 05.03.2025 was not extended.

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L. The trial Court proceeded with the matter, which is

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evident from the order sheet dated 09.05.2025; thereafter, the subsequent petition has been filed bearing WP227/491/2025 against the said order.

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M. Pursuant to the order dated 05.03.2025, the report dated 11.03.2025 was submitted by the Tahsildar Manora, Tehsil and District Jashpurnagar on 18.03.2025.

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N. The report shows that the respondent has constructed a dwelling house and a hardware shop on the land bearing Survey No. 223/1 admeasuring 0.020 hectare, situated at Village Ghagra, Tehsil Manora, District Jashpurnagar.

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O. The concerned Tahsildar, in his report, has stated that there is no alternative way available to the respondent/plaintiff to approach his house and shop. A map has been prepared by the concerned Patwari, which is part of the report.

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Mr. Jaiprakash Shukla, learned counsel appearing for the petitioner/defendant, argued that in the report of the Tahsildar, the adjoining government land bearing Survey No. 270 has not been shown. He alleged that the revenue authorities were under the great influence of the respondent/plaintiff.

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He further submitted that though a notice was issued by the Tahsildar to the petitioners for their presence at the time of the enquiry, the officer who conducted the enquiry and submitted the report was different. He also submitted that the petitioners are the owners of the suit property and, after obtaining due permission from the concerned Gram Panchayat, started the construction of a house. He contended that a right of way over another land is an easement, which arises

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either by the grant, prescription, or necessity. The respondent/plaintiff failed to show enjoyment of the right without interruption for a period of 20 years or more. He further stated that earlier, the petitioner’s land was used for a weekly market, and vendors were paying rent to him. He submitted that an application was moved for a fair inquiry regarding the genuineness of the report of the Tehsildar dated 11.03.2025 and for extension of the interim order. He contended that as the petitioner is the owner of the property and the construction has already been completed, the balance of convenience and irreparable injury are in his favour. Therefore, the learned appellate Court committed an apparent error in allowing the appeal of the respondent/plaintiff.

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He stated that the learned appellate Court exceeded its jurisdiction by granting the mandatory injunction at the interlocutory stage, thereby granting the final relief prematurely. He argued that at the interlocutory stage, the Court ought to have restored the status quo rather than establishing a new set of circumstances different from those existing on the date of the institution of the suit. He relied on the judgments of the Hon'ble Supreme Court rendered in the matters of Samir Narain Bhojwani v. Aurora Properties and Investments (2018) 17 SCC 203, Dorab Cawasji Warden v. Coomi Sorab Warden (1990) 2 SCC 117, and Indiabulls Asset Reconstruction Company Ltd. v. Ram Kishore Arora (2023 SCC OnLine SC 612) , wherein the

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Hon’ble Supreme Court has held that for entertaining the interlocutory applications, the following factors must be satisfied:-

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i. satisfaction of the Court about the existence of a prima facie case;

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ii. Balance of convenience and likelihood of the irreparable injury;

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iii. The Court needs to weigh the risk of injustice, if ultimately the decision of the main matter runs counter to the course being adopted at the time of granting or refusing the interim relief.

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He submits that the learned trial Court committed an error of law while proceeding with the matter, while the interim order granted by this court was in favour of the petitioner.

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On the other hand, Mr. Anurag Singh, the learned counsel for the respondent, would oppose the submissions. He would submit that the respondent is the owner of Survey No. 223/1 admeasuring 0.020 hectares, situated at Village Ghagra, Tehsil Manora, where he has constructed a shop and a house. He stated that the open land in front of the respondent's house and shop, bearing Survey No. 222/1, admeasuring 0.3400 hectare, was being used for a weekly market for the last 50–60 years. He contended that the petitioner/defendant, while raising the construction on the said land, blocked the path which was being used by the respondent/plaintiff to access his land. He argued that the respondent/plaintiff filed a complaint before the Tahsildar when the petitioner started raising the construction. The Tahsildar granted a stay order against the petitioner. He stated that the

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trial Court rejected the plaintiff’s application for a temporary injunction, which was allowed in the appeal. The appellate Court restored the previous position, noting that there was no alternative route for the plaintiff. He contended that the petitioner constructed a 12-foot high wall during the pendency of the litigation, obstructing access; therefore, the appellate Court directed its demolition. He would further submit that if the suit is ultimately dismissed, the respondent has been directed to bear the cost of reconstruction. He further contended that the balance of convenience and irreparable injury lies in favour of the plaintiff as he has no other access to his property. He stated that the subsequent petition WP227/491/2025 is misconceived as the interim relief granted on 05.03.2025 was not extended on 18.03.2025, and the trial Court rightly proceeded with the matter.

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I have heard counsel for the parties and perused the documents.

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In the matter of Samir Narain Bhojwani (supra) , the Hon’ble

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Supreme Court held as under:-

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“24. That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This Court in Dorab Cawasji Warden Versus Coomi Sorab Warden

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and Others,2 has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paragraphs 16 & 17, after analysing the legal precedents on the point as noticed in paragraphs 11-15, the Court went on to observe as follows:

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“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

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(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

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(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

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(3) The balance of convenience is in favour of the one seeking such relief.

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Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” (emphasis supplied)

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The Supreme Court has held that the final relief cannot be granted at

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an interlocutory stage; the relief cannot be moulded to such an extent. Interim relief can only be granted to restore the status quo and not to establish a new state of affairs different from that which existed at the time the suit was instituted. It is further held that a mandatory injunction is generally granted to restore the status quo during the pendency. The Supreme Court evolved guidelines, according to which, if the plaintiff has a strong case for trial, then such a case may justify an interim injunction; that the injury or serious injury must not be compensable in monetary terms; and that the balance of convenience must lie in favour of the party seeking such relief. It is also held that interlocutory injunctions are to be granted with caution.

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In the matter of Dorab Cawasji Warden (supra) , the Supreme Court,

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while dealing with the issue of when a Court can grant a mandatory injunction, held in paragraphs 11, 12, 15 and 16 thus:-

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“ 11. In Shepherd Homes Ltd. v. Sandham, [1970] 3 All ER 402, Megarry J. observed:

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"(iii) On motion, as contrasted with the trial, the court was far more reluctant to grant a mandatory injunction; in a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this was a higher standard than was required for a prohibitory injunction.

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“12. In Evans Marshall & Co. Ltd. v. Bertola SA, [1973] 1 All ER 992 the Court of Appeal held that:

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"Although the failure of a plaintiff to show that he had a reasonable prospect of obtaining a permanent injunction at the trial was a factor which would normally weigh heavily against the grant of an interlocutory injunction, it was not a factor which, as a matter of law, precluded its grant;

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15. In one of the earliest cases in Rasul Karim & Anr. v. Pirubhai Amirbhai, ILR 1914 38 Bom. 381, Beaman, J. was of the view that the court's in India have no power to issue a temporary injunc- tion in a mandatory form but Shah, J. who constituted a Bench in that case did not agree with Beaman, J. in this view. However, in a later Division Bench judgment in Champ- sey Bhimji & Co. v. The Jamna Flour Mills Co. Ltd., ILR 191416 Bom. 566, two learned Judges of the Bombay High Court took a different view from Beaman, J. and this view is now the prevailing view in the Bombay High Court. In M. Kandas- wami Chetty V.P. Subramania Chetty, ILR 191841 Mad. 208, a Division Bench of the Madras High Court held that court's in India have the power by virtue of Order 39 Rule 2 of the Code of Civil Procedure to issue temporary injunction in a mandatory form and differed from Beaman's view accepting the view in Champsey Bhimji & Co. v. Jamna Flour Mills Co. (supra). In Israil v. Shamser Rahman, ILR 191441 Cal. 436, it was held that the High Court was competent to issue an interim injunction in a mandatory form. It was further held in this case that in granting an interim injunction what the Court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the questions was such that it was proper that the injunction should be granted until the time for deciding them should arrive. It was further held that the Court should consider as to where the balance of convenience lie and whether it is desirable that the status quo should be maintained. While accepting that it is not possible to say that in no circumstances will the Courts in India have any jurisdiction to issue an ad interim injunction of a mandatory character, in Nandan Pictures Ltd. v. Art Pictures Ltd. & Ors., AIR 1956 Cal. 428 a Division Bench was of the view that if the mandatory injunction is granted at all on an interlocutory application it is granted only to restore the status quo and not granted to establish a new state of things differing from the state which existed at the date when the suit was instituted.

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16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that

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which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidlines. Generally stated these guidelines are:

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(1) The plaintiff has a strong case for trail. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

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(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

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(3) The balance of convenience is in favour of the one seeking such relief. “

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The Hon’ble Supreme Court has held that the Court may grant such an injunction in special circumstances. It is held that Courts in India have the power under Order 39, Rules 1 and 2 of CPC to issue temporary and mandatory injunctions. The Court must consider whether there is a fair and substantial question to be decided, whether the rights are clearly established and whether the urgency and necessity of the situation justify such a remedy.

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In the matter of Indiabulls Asset Reconstruction Company Ltd. v. Ram Kishore Arora, 2023 SCC OnLine SC 612 , the Hon’ble Supreme Court reiterated that while allowing or rejecting an application for temporary injunction, the reasons must be such that they cannot be easily overturned. Further, guidelines as already discussed were again affirmed. Paragraph 20 of the said judgment is reproduced herein

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below:-

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“20. As noticed, the present appeals (Civil Appeal No. 5941 of 2022 and Civil Appeal No. 1925 of 2023) are directed against an interim order of the Appellate Tribunal. However, the said interim order, prima facie, gives rise to several questions worth consideration, including the fundamental one as to the tenability of the proposition of “project-wise resolution” as adopted by the Appellate Tribunal. The question, at present, is as to what should be the interim relief/interim arrangement until disposal of these appeals. In regard to this question, we may take note of the relevant principles in relation to the matter concerning grant of interim relief which have been reemphasized by this Court in the case of Union of India and Ors. v. M/s Raj Grow Impex LLP and Ors.: 2021 SCC OnLine SC 429 as follows:-

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“194. In addition to the general principles for exercise of discretion, as discussed hereinbefore, a few features specific to the matters of interim relief need special mention. It is rather elementary that in the matters of grant of interim relief, satisfaction of the Court only about existence of prima facie case in favour of the suitor is not enough. The other elements i.e., balance of convenience and likelihood of irreparable injury, are not of empty formality and carry their own relevance; and while exercising its discretion in the matter of interim relief and adopting a particular course, the Court needs to weigh the risk of injustice, if ultimately the decision of main matter runs counter to the course being adopted at the time of granting or refusing the interim relief. We may usefully refer to the relevant principle stated in the decision of Chancery Division in Films Rover International Ltd. v. Cannon Film Sales Ltd. : (1986) 3 All ER 772 as under:— “….The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the “wrong” decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have

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been “wrong” in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.” (emphasis in bold supplied)

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195 . While referring to various expositions in the said decision, this Court, in the case of Dorab Cawasji Warden v. Coomi Sorab Warden : (1990) 2 SCC 117 observed as under:— “16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

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(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

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(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

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(3) The balance of convenience is in favour of the one seeking such relief.

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Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions

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would be a sound exercise of a judicial discretion.” (emphasis in bold supplied)

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196. In keeping with the principles aforesaid, one of the simple questions to be adverted to at the threshold stage in the present cases was, as to whether the importers (writ petitioners) were likely to suffer irreparable injury in case the interim relief was denied and they were to ultimately succeed in the writ petitions. A direct answer to this question would have made it clear that their injury, if at all, would have been of some amount of loss of profit, which could always be measured in monetary terms and, usually, cannot be regarded as an irreparable one. Another simple but pertinent question would have been concerning the element of balance of convenience; and a simple answer to the same would have further shown that the inconvenience which the importers were going to suffer because of the notifications in question was far lesser than the inconvenience which the appellants were going to suffer (with ultimate impact on national interest) in case operation of the notifications was stayed and thereby, the markets of India were allowed to be flooded with excessive quantity of the said imported peas/pulses. ”

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In the present case, admittedly, the petitioner is the owner of Survey No. 222/1, and the respondent/plaintiff is the owner of Survey No. 223/1. The construction of the dwelling house and shop has been made over the land, while Survey No. 222/1 was open land. The land of the petitioners was being used for the weekly market, and this fact has not been disputed by the petitioners.

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Access to the house and shop of the respondent was through the land of the petitioner/defendant. The petitioner started raising the construction in the year 2018–19, as pleaded in the present petition. A Panchnama was prepared on 07.11.2021. The respondent moved an

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application for a stay of the ongoing construction before the Tehsildar. The Tehsildar called for a report, which was submitted on 11.09.2021, and a stay order was passed.

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17.The suit was filed by the respondent in 2023, claiming an easement right-of-way. An application under Order 39, Rules 1 and 2 of CPC was moved, which was rejected by the learned trial Court and affirmed by the appellate Court. Both orders were challenged in WP227 No. 163 of 2023, and were disposed of vide Order dated 02.08.2023 granting the liberty to the respondent to move a fresh application under Order 39, Rules 1 and 2 CPC. The second application was rejected by the trial Court on 09.10.2023. The appeal preferred by the respondent/plaintiff was allowed by the appellate Court on 01.02.2025. The appellate Court placed reliance on the report submitted by the Revenue Inspector dated 03.03.2023 and held that the plaintiff was using some part of Survey No. 222/1 as the right of way to access his land and shop for the last many years.

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It was also held by the Court below that there is no alternative path available to the plaintiff/respondent. The Court found the three ingredients of temporary injunction in favour of the respondent and allowed the application for temporary injunction.

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A specific direction has been issued by the appellate Court that if the plaintiff ultimately fails in the civil suit, he shall bear the expenses of the reconstruction of the wall.

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As there was a dispute regarding the easement right of way, a report was called by this Court from the concerned Tahsildar vide order dated 05.03.2025.

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The learned Advocate appearing for the State submitted the report on 18.03.2025. A perusal of the report shows that the respondent/plaintiff has no alternative access to his shop and house. Therefore, the interim order was not extended on 18.03.2025, when the matter was taken up for hearing of WP227 No. 208/2025. As the interim order was not extended, the trial Court proceeded with the matter and thereafter passed the order dated 09.05.2025.

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While granting the interim injunction, the Court has to determine whether there is a fair and substantial question to be decided regarding the rights of the parties, and whether it is proper to grant the injunction until the decision of the suit. The Court must further consider the balance of convenience, and whether preserving the status quo would serve the ends of justice.

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23.It is a well-settled principle of law that an interlocutory injunction is generally granted to preserve or restore the last undisputed status quo; the relief cannot be moulded to create a new situation. However, at the same time, the Court must consider the nature of the relief sought by the plaintiff, whether it is prima facie justified, whether the opposite party can be compensated in money, and the overall balance of convenience.

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In the present case, as evident from the Revenue Inspector’s report, relied upon by the appellate Court and the report submitted by the Tahsildar, it is apparent that the respondent has no alternative access to the property.

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This Court need not go into the merits of the case, but it appears that the plaintiff has a strong prima facie case for trial. The plaintiff has no alternative access to his property. Therefore, the plaintiff has a prima facie case in his favour.

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The appellate Court passed the order to demolish a part of the wall and further directed that if the plaintiff ultimately fails, he shall bear the cost of reconstruction of the wall, meaning thereby the petitioner can be compensated in terms of money.

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With regard to the balance of convenience, since there is no alternative access to the shop and house of the plaintiff, this factor is also in favour of the plaintiff/respondent.

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The petitioner/defendant has assailed the validity of the report submitted by the Tahsildar before this Court. The suit is still pending before the trial Court, and the petitioner will have sufficient opportunity to prove his case by leading evidence, and the validity of the report can be examined by the learned Trial Court. Therefore, the application is misconceived and is hereby rejected.

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As both the petitions are finally being disposed of, there is no need to entertain such an application. Accordingly, the application is also

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rejected .

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Taking into consideration the above discussed facts and the law laid down by the Hon’ble Supreme Court, both petitions are hereby

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dismissed .

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Considering the nature of the dispute involved in the present case, the trial Court is directed to make every endeavour to conclude the proceedings of the pending civil suit, preferably within a period of six months.

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Interim relief, if any, granted earlier, is hereby vacated .

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Sd/-

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Rakesh Mohan Pandey

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JUDGE

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Nadim

Stephen Toppo v. Gopal Prasad Sharma

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Stephen Toppo v. Gopal Prasad Sharma

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