The Gauhati HC dismissed a petition under Order 39 CPC for a temporary injunction. The court held the incumbent cannot grant injunction when the opposite party is in lawful possession via loan or sale agreement and balance of convenience favors them.
Petition for temporary injunction under CPC Order 39 Rules 1 and 2 is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010246152018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil) 3876/2018
1:NONI GOPAL DAS AND 6 ORS S/O- LT. CHANDI RAM DAS
2: SRI JUGENDRA NATH DAS S/O- LT. CHANDI RAM DAS
3: SRI NRIPEN CH. DAS S/O- LT. CHANDI RAM DAS ALL ARE RESIDENTS OF VILL.- NIZ BORIGOG MOUZA- PUB-BORIGOG P.S.- RANGIA P.O.- KOHARA DIST.- KAMRUP (R) ASSAM
4: SMTI. DEPIKA DAS W/O- LT. TARUN DAS
5: SRI MANAS DAS S/O- LT. TARUN DAS SL. NO. 4 AND 5 ARE RESIDENT OF M.G. ROAD GUWAHATI-1 DIST.- KAMRUP (M)
6: SRI MINTU DAS S/O- LT. PRABHAT CH. DAS R/O- VILL.- NIZ BORIGOG MOUZA- PUB-BORIGOG P.S. RANGIA P.O.- KOHARA
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DIST.- KAMRUP (R) ASSAM
7: SRI JITEN DAS S/O- LT. PRABHAT CH. DAS R/O- VILL.- NIZ BORIGOG MOUZA- PUB-BORIGOG P.S. RANGIA P.O.- KOHARA DIST.- KAMRUP (R) ASSA
VERSUS
1:SRI JOGEN CH. DEKA S/O- LT. THANU RAM DEKA R/O- VILL.- NIZ BARIGOG, MOUZA- PUB- BARIGOG, P.O.- KONIHA, DIST.KAMRUP (R), ASSAM
Advocate for the Petitioner : MR. SHEELADITYA
Advocate for the Respondent : MR. B HUSSAIN
Linked Case : RSA 218/2014
1:JOGEN CH. DEKA S/O LATE THANU RAM DEKA R/O VILL. NIZ BORIGOG MOUZA-PUB-BORIGOG P.O. KONIHA DIST. KAMRUP RURAL ASSAM.
VERSUS
S/O LATE CHANDI RAM DAS
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3:NRIPEN CH. DAS S/O LT. CHANDI RAM DAS ALL ARE R/O VILL. NIZ BORIGOG MOUZA- PUB BORIGOG PS. RANGIA PO. KONIHA DIST. KAMRUP R ASSAM.
4:DIPIKA DAS W/O LT. TARUN DAS
5:MANAS DAS S/O LT. TARUN DAS NO. 4 and 5 ARE R/O M.C.ROAD GUWAHATI-1 DIST. KAMRUP M
6:NAME STRIKED OUT AS PER HON'BLE COURT'S ORDER DTD. 1.4.2016
7:MINTU DAS S/O LT. PRABIN CH. DAS
8:JITEN DAS S/O LT. PRABIN CH. DAS ALL ARE R/O VILL. NIZ BORIGOG PO. KONIHA MOUZA- PUB BORIGOG DIST. KAMRUP R ASSAM
Advocate for the Petitioner : MR.B HUSSAIN Advocate for the Respondent :
BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI
ORDER
Date : 02-09-2019
Heard Mr. Sheeladitya, learned counsel for the petitioner and Mr. B. Hussain, learned counsel for the respondent.
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The petitioner, by filing this instant application under Order 39 Rule 1 & 2 of the CPC prays for granting temporary injunction restraining the opposite party/appellant from making any construction over the suit land or changing the nature of the land
The facts leading to the present petition may be stated thus.
The petitioner, as plaintiff filed a suit being Title Suit No. 269/2010 against the respondents seeking for declaration of right, title, interest and recovery of possession and other consequential reliefs.
The case of the plaintiffs in the suit was that the plaintiffs were the owner of the land measuring 7 bigha 3 katha covered by Dag No. 998/1490/808/702 of KP Patta No. 30, which has been described in Schedule-A of the plaint. The Plaintiff No. 2 borrowed Rs. 20,000/- from the defendants (opposite parties herein) and upon taking such loan, the suit land described in Schedule-B of the plaint measuring 3 bigha, 2 katha 4 lessa covered by Dag No. 998/1490 of KP No. 80 was handed over to the opposite parties and it was agreed by and between the parties that the opposite party shall cultivate the land and enjoy the product as interest of the loan advanced to the plaintiff (petitioner herein). Later on, the petitioner when asked the opposite parties to hand over the possession of the land, the opposite parties refused. There were also some criminal cases and village mel, but the opposite parties refused to deliver possession of the land and therefore the suit was filed for declaration of title and recovery of possession and other consequential reliefs. The suit was decreed ex-parte. Aggrieved the defendants (opposite parties herein) filed an appeal and the appeal was dismissed.
Aggrieved by the judgment of the appellate court, the defendant (opposite party herein) preferred the second appeal. During the pendency of the second appeal, this injunction petition has been filed by the respondent (plaintiff in the original suit) praying for injunction stating that the defendant/opposite party has filled up a portion of the land and also making preparation for construction.
In the written objection, the opposite parties denied the allegation made in the petition and also stated that the petitioner has suppressed the material facts. It is also stated that the opposite party filed a suit for specific performance of contract, wherein also the present petitioner filed an application for temporary injunction in respect of the same property, which was refused by the learned trial court.
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In reply to the written objection, the petitioner stated that the suit filed by the defendant/opposite party was no longer in existence as the plaint was return by the learned trial court.
Learned counsel for the petitioner submits that unless temporary injunction as sought for is granted, the nature of the suit land will be changed and the petitioner shall suffer irreparable loss and injury. Learned counsel for the respondent has taken a preliminary objection stating that the injunction petition filed by the present petitioner before the Munsiff for the same land having been rejected, this present petition is not maintainable, inasmuch as, he could have filed an appeal.
What transpires from the submission of the learned counsel for both the sides is that during pendency of the appeal, the defendant in the original suit has filed a suit for specific performance of contract in respect of the suit land involved in the present second appeal. Admittedly, the suit land is in possession of the opposite parties since 2008, when the possession of the land was handed over to the opposite parties as a security of the loan obtained by the plaintiff No. 2 and the opposite parties were allowed to occupy and enjoy product of the land as interest of the loan. Therefore, admittedly, the opposite party has been in possession of the suit land since 2008 by cultivating the same. According to the defendants/opposite parties the possession of the suit land was handed over to the defendants/opposite parties by virtue of an agreement for sale of the suit land for consideration of Rs. 82,000/-.
Having considered the nature of controversy, it appears that there is a prima facie case. However, for granting an injunction, prima facie case, though, a sine-quanon, in addition to prima facie case, the petitioner is also required to prove the existence of the other two basic ingredients, i.e. balance of convenience and irreparable loss. Admittedly, the defendants have been in possession of the suit land for long time and the entry of the defendants/opposite parties to the suit land was also not by illegal means, inasmuch as, admittedly the plaintiff/petitioner themselves handed over possession of the suit land to the opposite party by taking a loan and allowed the opposite party to cultivate and enjoy the crops as interest. However, the case of the opposite party is that he entered into the possession of the suit land by virtue of an agreement for sale and consideration was also paid to the tune of Rs. 82,000/-.
Be that as it may, admitted position is that the opposite parties came into the
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possession of the suit land in a legal manner, therefore, unless he is evicted by due process of law, the possession of the defendants/opposite parties over the suit land and enjoyment thereof cannot be disturbed. As the suit itself has been filed for recovery of possession, even if some construction, as alleged by the petitioner is made, there will be no difficulty in recovery of the suit land, if the decree is passed in their favour. This apart, if some transaction towards alienation of the land takes place, though, there is no materials to substantiate such apprehension, such transaction shall also be subjected to law of lispendence and shall be bound by the decree. Therefore, in the event of the suit being decreed, the petitioner shall be able to recover possession of the property. On the other hand, if the opposite party is restrained from using the suit property, which he has been possessing as a security of the loan and for interest thereon, according to the plaintiff, and ultimately the suit of the plaintiff fails, the defendants/opposite parties obviously shall suffer irreparable loss and more inconvenience will be caused to him than the inconvenience that might be caused to the petitioner in the event of refusal of injunction. Therefore, the balance of convenience and irreparable loss does not appear to be tilted towards the plaintiff so as to entitle him to a temporary injunction in the facts and circumstances of the case. It is settled position that in order to granting of injunction, all the three ingredients i.e. prima facie case, balance of convenience and irreparable loss must co-exist in a chain and absence of any of the ingredients would disentitle the plaintiff from temporary injunction.
In view of the above, I am of the considered opinion that this is not a fit case for granting temporary injunction as sought for. Accordingly, the petition stands dismissed.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether a temporary injunction restraining construction on suit land in aid of a pending title suit can be granted when the defendant is in lawful possession arising from a loan agreement, sale agreem
Whether the balance of convenience and irreparable loss requirements for granting a temporary injunction are satisfied when the defendant has been in possession for a long time through legal means.
2 provisions across 1 enactments
Noni Gopal Das and 6 Ors
Jogen Ch. Deka
Mir Alfaz Ali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
