Dismissed

Surender Kumar Alias Sylindri Baba v. State of Hp

Himachal Pradesh HC16 Oct 2017CMPMO/455/2017

Case brief

AI extract

What is this about?

Petitioner sought writ jurisdiction under Article 227 for interim injunction regarding temple management dispute where lower courts declined relief. Court elaborated scope of Article 227 and equitable injunction principles. Petitioner failed to prove lawful appointment as Pujari. Petition dismissed in limine.

What did the court decide?

Petition for interim injunction under Article 227 of the Constitution of India is dismissed in limine.

Surender Kumar Alias Sylindri Baba Vs State of Hp — Property and Title | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 455 of 2017

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Date of decision: 16.10.2017

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Surender Kumar alias Sylindri Baba …Petitioner Versus State of H.P. and others. …Respondents

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?¹ No For the Petitioner: Mr. G. R. Palsra, Advocate.

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For the Respondents : Nemo.

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Tarlok Singh Chauhan J. (Oral).

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The petitioner being aggrieved by the orders passed by the learned Courts below declining to grant interim injunction in his favour has filed the instant petition by invoking Article 227 of the Constitution of India. 2. The petitioner/plaintiff has filed a suit for declaration and injunction against the respondents/defendants and alongwith the suit an application under Order 39 Rules 1 & 2 CPC was filed for grant of interim injunction restraining the respondents/defendants from causing interference in the so called legal vested right of the plaintiff, who claims himself to be ‘ Pujari’ of ‘ Baba Mahamrityunjaya’ temple situated on the land as detailed in paras 1 and 2 of the plaint. The land is alleged to be in joint ownership of respondent No.4 alongwith other co-sharers. It is claimed that one hut (Kutiya) had been constructed by the predecessor-in-interest of the petitioner and is now being used by him as a ‘Pujari’. The respondents through revenue agency got the suit land inspected and in the report so submitted it was admitted that the petitioner is a ‘Pujari’ of the temple. On 14.4.2016 the respondents started causing interference over the suit land on the plea that the temple had been taken over by the Government, but even then the petitioner being in settled

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Whether thereportersof thelocal papers may beallowedtoseetheJudgment? Yes.

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possession could not have been dispossessed save and except in accordance with law.

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The respondents contested the suit as also the application wherein it was averred that the petitioner had encroached upon the land comprised in Khasra No. 217/1. It was further averred that the petitioner had no right, title or interest over the said temple. The other respondents also denied the petitioner’s claim and averred that he was the stranger who had snatched the keys of the temple from one Dharam Pal. The fact that there being a hut over the suit land etc. was denied.

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As observed earlier, the learned trial Court dismissed the application filed by the petitioner for interim injunction and the appeal filed against the said order was also dismissed by the learned first appellate Court. It is against both these orders that the instant petition has been filed by the petitioner on various grounds as taken in the memo of the petition.

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I have heard Mr. G.R. Palsra, Advocate, learned counsel for the petitioner and have gone through the material placed on record.

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The first and foremost question that arises for consideration is as to what is precisely the scope of judicial intervention in such like matters. It is well settled that the High Court can exercise jurisdiction under Article 227 when the orders passed by the learned Court below is vitiated by an error, which is manifest and apparent on the face of the proceedings, i.e. when it is based on clear ignorance or utter disregard of the proposition of law and a grave injustice or gross failure of justice has occasioned thereby. The supervisory jurisdiction is wide and used to improve the ends of justice. The power must however be exercised sparingly only to keep the subordinate courts and tribunals within the bounds of their authority. Power is neither available to be exercised to correct mere errors (whether on the facts or laws), nor is it a cloak of an appeal in disguise. The supervisory powers of revision

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under Article 227 cast an obligation on the High Court to keep the inferior courts and tribunals within their bounds and erroneous decision may not be accorded for exercise of jurisdiction under Article 227 of the Constitution of India, unless the error is referable to the Court or there is dereliction of duty or flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party, therefore, the scope of interference in proceedings under Article 227 of the Constitution is limited and the power conferred thereunder has to be exercised within certain parameters.

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In Waryam Singh and another vs. Amarnath and another, AIR

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1954 SC 45, the Hon’ble Supreme Court observed:

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“This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in “Dalmia Jain Airways Ltd. vs. Sukumar Mukherjee”, AIR 1951 CAL 193 (SB) 1 (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.”

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In Bathutmal Raichand Oswal vs. Laxmibai R. Tarta, AIR 1975

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SC 1297, the Hon’ble Supreme Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. The Hon’ble Supreme Court speaking through Bhagwati J. as his Lordship then was observed thus:

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“If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or tribunal final on facts”.

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The Hon’ble Supreme Court in the case of Bathutmal (supra) approved the dictum of Morris L. J. in Res v. Northumberland Compensation Appellate Tribunal, 1952 All England Reports 122.

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In Laxmikant Revchand Bhojwani and another vs. Pratapsing Mohansing Pardeshi Deceased through his heirs and legal representatives, JT 1995 (7) SCC 400, the Hon’ble Supreme Court

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observed:

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“The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.”

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9. In State of Maharashtra vs . Milind & Others, 2001 (1) SCC 4,

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the Hon’ble Supreme Court observed:

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“The power of the High Court under Article 227 of the Constitution of India, while exercising the power of judicial review against an order of inferior tribunal being supervisory and not appellate, the High Court would be justified in interfering with the conclusion of the tribunal, only when it records a finding that the inferior tribunal’s conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record.”

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10. Again in State vs . Navjot Sandhu (2003) 6 SCC 641, the

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Hon’ble Supreme Court observed as under:

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“Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not

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meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise.”

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11. In Mohammed Yusuf vs. Faij Mohammad and others, 2009 (1)

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Scale 71, the Hon’ble Supreme Court held as under:

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“The jurisdiction of the High Court under Article 226 & 227 of the Constitution is limited. It could have set aside the orders passed by the learned trial Court and revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety”.

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12. In State of West Bengal and others vs. Samar Kumar Sarkar,

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JT 2009 (11) SC 258 , the Hon’ble Supreme Court held as under:

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“10. Under Article 227, the High Court has been given power of superintendence both in judicial as well as administrative matters over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. It is in order to indicate the plentitude of the power conferred upon the High Court with respect to Courts and the Tribunals of every kind that the Constitution conferred the power of superintendence on the High Court. The power of superintendence conferred upon the High Court is not as extensive as the power conferred upon it by Article 226 of the Constitution. Thus, ordinarily it will be open to the High Court, in exercise of the power of superintendence only to consider whether there is error of jurisdiction in the decision of the Court or the Tribunal subject to its superintendence.”

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13. In Jai Singh and others vs. Municipal Corporation of Delhi

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and others (2010) 9 SCC 385 , the Hon’ble Supreme Court in paras 15, 16 and 42 of the judgment held as under:

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“15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise

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thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a `bull in a china shop', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

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16. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.

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42. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in the case of The Estralla Rubber Vs. Dass Estate (P) Ltd., [(2001) 8 SCC 97] wherein it was observed as follows:

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"The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

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The factors required to be borne in mind while granting or refusing injunction have been lucidly considered by a Hon’ble Division Bench of this Court in LPA No. 4002 of 2013 titled Sarvjeet Singh (deceased) through LRs Simranjeet Singh and others vs . Punjab and Sind Bank, decided on 13.5.2014 and the relevant observations reads thus:

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“17. Before we deal with the merits of the case, it is profitable to discuss that while making an order under Order 39 Rules 1 & 2 of the CPC, Court has to keep in mind three principles, as under:

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(i) Prima-facie case;

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(ii) balance of convenience; and

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(ii) irreparable loss and injury.

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All the three principles, which are required for making an order in terms of Order 39 Rules 1 & 2 of the CPC, are in favour of the plaintiff-respondent. The question is, whether it is the same property, description of which has been given in OMP No. 360/2003, or somewhat different property.

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Applicant has to carve out that he/she has a prima-facie case, balance of convenience lies in his/her favour and in case restraint order is not made, he/she will suffer irreparable loss and injury. It is necessary to give details of the law laid down by the Apex Court and the Hon’ble High Courts and Privy Council while discussing the mandate of Order 39 Rules 1 & 2 of the CPC. The Hon’ble Supreme Court in cases titled as Manohar Lal Chopra versus Rai Bahadur Rao Raja Seth Hiralal , reported in AIR 1962 SC, 527, Hari Shankar and others versus Satya Prakash and another, reported in AIR 1982 Rajasthan 183, M. Gurudas & others versus Rasaranjan & others, reported in 2006 AIR SCW 4773, Skyline Education Institute (Pvt.) Ltd. versus S.L. Vaswani & another, reported in 2010 AIR SCW 628, Kashi Nath Samsthan and another versus Shrimad Sudhindra Thirtha Swamy and another, reported in (2010) 1 SCC 689, Super Cassettes Industries Ltd. versus Music Broadcast Pvt. Ltd., reported in 2012 AIR SCW 2915, Jehal Tanti & others versus Nageshwar Singh (D) thr. LRs, reported in 2013 AIR SCW 2854 and Mohd. Mehtab Khan and others versus Khushnuma Ibrahim Khan and others, reported in (2013) 9 SCC 221, has discussed all the three principles.

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It is apt to reproduce paras 19 & 22 of M. Gurudas’ judgment, supra, herein:

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“19. While considering an application for injunction, it is wellsettled, the courts would pass an order thereupon having regard to:

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(i) Prima facie

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(ii) Balance of convenience

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(iii) Irreparable injury.

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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 SCC 117, Dalpat Kumar and Another v. Prahlad Singh and Others (1992) 1 SCC 719, United Commercial Bank v. Bank of India and Others (1981) 2 SCC 766, Gujarat Bottling Co. Ltd. and Others v. Coca Cola Co. and Others (1995) 5 SCC 545, Bina Murlidhar Hemdev and Others v. Kanhaiyalal Lokram Hemdev and Others (1999) 5 SCC 222 and Transmission Corpn. of A.P. Ltd (supra)]”

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27.The Hon’ble apex Court in Super Cassettes Industries’ case, supra, in paras 50 & 51 held as under:

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“50. Therefore, the jurisdiction and authority of only the Tribunals, but also the Courts are structured by the statutory grants and limitations.

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However, both the grant as well as the limitations could be either express or implied from the scheme of a particular enactment. The considerations relevant for ascertaining whether there is an implied grant of such powers, as can be culled out from the various judgments relied upon by the learned counsel appearing in these matters, which have been taken not of by my learned brother Justice Kabir, appear to be; (1) need to preserve status quo with respect to the subject matter of the dispute in order to enable the party, which eventually succeeds in the litigation, to enjoy the fruits of the success; and (2) need to preserve the parties themselves a consideration, which weighed heavily with this Court in implying such powers in favour of the

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Magistrates while exercising the jurisdiction under Section 125 of the Code of Criminal Procedure.”

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The Apex Court in another case titled Best Sellers Retail (India) Private Ltd. versus Aditya Birla Nuvo Ltd. and others, reported in (2012) 6 SCC 792, also held that the plaintiff has not only to show prima facie case, but also has to carve out a case for grant of relief by disclosing and indicating that all the said three principles not only exist but co-exist. It is apt to reproduce para 29 of the judgment, supra, herein:-

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“29. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable.”

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Recently, the apex Court has developed another principle and has held that while granting or :refusing interim relief, during the pendency of the suit, in terms of provisions of Order 39 Rules 1 & 2 of the CPC, the conduct of the parties is also of vital importance. The Apex Court in Dalpat Kumar and another versus Prahlad Singh and others, reported in AIR 1993 SC 276,M/s Gujrat Bottling Co. Ltd. & others versus Coca Cola Company and others, reported in AIR 1995 SC 2372, Mandali Ranganna & others etc. versus T. Ramachandra & others, reported in 2008 AIR SCW 3817 and Makers Development Services Private Ltd. versus M. Visvesvaraya Industrial Research and Development Centre, reported in (2012) 1 SCC 735 has held that in addition to three principles, the Court has also to take into consideration the conduct of the parties.

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It is profitable to reproduce para 18 of Mandali’s judgment, supra, herein:

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“18. While considering an application for grant of injunction, the Court will not only take into consideration the basic elements in relation threreto viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The Court will not interfere only because the property is a very valuable one. We are not however, oblivious of the fact that grant or refusal of injunction

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has serious consequence depending upon the nature thereof. The Courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the Courts is imperative. Contentions raised by the parties must be determined objectively.”

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The apex Court in Makers Development’s’ case, supra, in para 11 held, as under:

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“11 .It is settled law that while passing an interim order of injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, the Court is required to consider three basic principles, namely, a) prima facie case, b) balance of convenience and inconvenience and c) irreparable loss and injury. In addition to the above mentioned three basic principles, a court, while granting injunction must also take into consideration the conduct of the parties.”

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From the aforesaid exposition of law, it can be taken to be well settled that while considering an application for grant of injunction, the Court will not only take into consideration the existence of a primafacie case, balance of convenience, irreparable loss and or injury, but would also take into consideration the conduct of the parties. After all, grant of injunction is an equitable relief. It is also to be judged that grant or refusal of injunction has serious consequences depending upon the nature of the case. The existence of a primafacie case is not to be confused with primafacie title, which can only be ascertained on the basis of the evidence at the time of trial. Satisfaction that there is a primafacie case by itself cannot be the only sole ground to grant injunction. A duty is cast on the Court to satisfy itself as to whether on account of non-interference by the Court at that stage would result in irreparable injury to the parties seeking the relief and it must be established that there is no other remedy available to that party except one relating to grant of injunction. The injury complained of should not be confused with possibility of physical injury but the injury must be with material one which cannot be adequately compensated by way of damages. That apart,

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the Court is to weigh the balance of convenience and inconvenience. Therefore, the Court while granting or refusing injunction, must exercise judicial discretion to find out the substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with the likelihood of injury to the other side if the injunction is granted. It is only thereafter that the Court will then either grant injunction or refuse the same.

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Bearing in mind the aforesaid principles, it would be noticed that the specific case of the petitioner is that he is a ‘Pujari’ of the temple. However, surprising he has not produced any record or material by which it can be primafacie established that as to how the petitioner came to be appointed as Pujari and who appointed him as such. Normally, a Pujari is appointed on hereditary basis or by way of an order passed by the competent person/authority. In this case, both of these conditions are lacking and, therefore, in absence of the either, the learned Courts below have committed no error as it seems that the petitioner is only a self styled Pujari of the said temple.

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In view of the aforesaid discussion, there is no merit in this petition and the same is dismissed in limine.

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(Tarlok Singh Chauhan), Judge

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16^th October, 2017. (GR)

Surender Kumar Alias Sylindri Baba v. State of Hp

Case brief

What is this about?

What did the court decide?

Surender Kumar Alias Sylindri Baba v. State of Hp

Case brief

What is this about?

What did the court decide?

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