Allowed

M/s. Rockwood (India) Ltd. v. Mrs. Farida Begum

Telangana HC5 Jul 2011CRP/963/2011

Case brief

AI extract

What is this about?

Criminal Revision Petition allowed setting aside the Appellate Court's order granting temporary injunction. The High Court held that the appellate court misapplied law by evaluating balance of convenience when the plaintiff failed to establish a prima facie case regarding the identity and location of the suit property.

What did the court decide?

Civil Revision allowed; Judgment of Senior Civil Judge in C.M.A. No.2 of 2010 set aside; inquest amount credited to suit.

M/s. Rockwood (India) Ltd. Vs Mrs. Farida Begum — Property and Title | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE SANJAY KUMAR

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CIVIL REVISION PETITION NO.963 OF 2011

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DATED JULY, 2011

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BETWEEN

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M/s.Rockwool (India) Limited and another.

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…Petitioner And Mrs.Farida Begum and another. …Respondents

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THE HON’BLE SRI JUSTICE SANJAY KUMAR

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CIVIL REVISION PETITION NO.963 OF 2011

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O R D E R

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Refusal of temporary injunction pending the suit by the learned Junior Civil Judge, Zaheerabad, in I.A.No.70 of 2009 in O.S.No.23 of 2009 drove the unsuccessful plaintiffs to file an appeal in C.M.A.No.2 of 2010 on the file of the learned Senior Civil Judge, Zaheerabad. By Judgment and Decree dated 10.03.2011, the appellate Court allowed the CMA and granted the temporary injunction. Aggrieved thereby, the defendants in the suit, the respondents in C.M.A.No.2 of 2010, are before this Court by way of the present Civil Revision Petition filed under Article 227 of the Constitution.

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Exercise of discretion by the Court in granting an interlocutory injunction pending the disposal of the suit is tempered by three tests – 1) whether the plaintiff has a prima facie case; 2) whether the balance of convenience is in favour of the plaintiff; and 3) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed [HINDUSTAN PETROLEUM CORPN. LTD. V/s. SRIMAN NAYARAN^[1] ] .

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The order dated 07.06.2010 passed by the trial Court refusing temporary injunction reflects that the said Court found that the plaintiffs failed to produce prima facie evidence for establishing their possession, if not title, over the suit property as on the date of the suit. Having held so, the trial Court would have been justified in refusing the temporary injunction without further ado. However, the order reflects that the trial

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Court went on to examine the case of the defendants in the suit and rendered a finding that they had established their prima facie right over the suit land. This exercise was unnecessary once the trial Court found against the plaintiffs on the preliminary issue of establishing a prima facie case. The appellate Court unfortunately followed suit by entering into a comparison to ascertain as to which side had a better prima facie case. Needless to state, this ought not to have been the approach of the courts below, given the three established tests for deciding whether the plaintiffs were entitled to interim protection by way of an injunction.

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On facts, the trial Court found that the description of the suit schedule property did not tally with its description in the documents produced by the plaintiffs. The trial Court therefore entertained a doubt as to the very identify of the property and its location. In appeal, the appellate Court found that the documentary evidence adduced by the plaintiffs was sufficient to infer that plaintiff No.1 had title over the suit schedule property and that the possession thereof was with the plaintiffs. However, perusal of the appellate Court’s judgment demonstrates that the Court went beyond the pleadings, and on the basis of surmises and conjecture came to unsupported conclusions whereby it held that the three elements for granting the relief of temporary injunction in favour of the plaintiffs were made out.

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Pertinent to note, the temporary injunction petition filed by the plaintiffs was in respect of the entire suit schedule property, an extent of Ac.0.19 guntas in Survey No.53/A and an extent of Ac.4.20 guntas in Survey No.53/A4 of Kothur Village, Kohir Mandal, Medak District. However, the plaintiffs failed to produce the title deed in respect of the land in Survey No.53/A4 and only the title document in respect of the extent in Survey No.53/A was placed before the Court. The description of the property in the sale deed reflects that it was shown to be situated in Survey No.53/A5. There was no explanation from the plaintiffs as to why the petition and the suit schedules described the property as situated in Survey No.53/A and not Survey No.53/A5. There is no indication that

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there was any change of sub-division in the survey numbers warranting the modification in the suit proceedings. The title deeds (Exs.P1 and P2) issued under the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for brevity, ‘the Act of 1971’) produced by the plaintiffs also referred to the extent of Ac.0.19 guntas as being situated in Survey No.53/A5 and not Survey No.53/A.

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Further, in the absence of the other title document pertaining to the extent of Ac.4.20 guntas in Survey No.53/A4 it was difficult for the Courts below to tally the suit schedule property with the property which was the subject matter of these documents, in the context of their boundaries. However, in the light of the encumbrance certificate, Ex.P.10, the trial Court did undertake this exercise and found that the boundaries as evidenced by Ex.P.10 did not tally with the boundaries of the petition schedule property, that is, the boundaries of the lands in Survey Nos.53/A and 53/A4 clubbed together.

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There was also a discrepancy with regard to the extent of Ac.4.20 guntas situated in Survey No.53/A4. The title deeds (Exs.P.1 and P.2) issued under the Act of 1971 reflected that this extent was situated in Survey Nos.53/A1 to 53/A5 whereas the petition schedule showed this land in Survey No.53/A4 alone.

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Faced with this contradictory evidence, the appellate Court surprisingly embarked upon an enquiry as to which side had a better prima facie case. It is only in the context of deciding where the balance of convenience lies that the Court would normally weigh the rival claims of the parties. Such comparison would not arise in ascertaining whether the plaintiff has a prima facie case. The plaintiff must necessarily prove so on the merits of his own case and not by pointing out the weaknesses in the case of the defendant. Further, the approach adopted by the appellate Court is not in keeping with the settled norms applicable to a case of this nature. While dealing with the evidence as to the identity and location of the suit property, the appellate Court concluded that there is not much confusion even in the boundaries as appearing in the schedules of the

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pleadings. This finding is opposed to the evidence on record which clearly demonstrated that the boundaries of the petition schedule property did not tally with any of the boundaries described in the documents relied upon by the plaintiffs. The appellate Court proceeded on the presumption that once the plaintiff No.1 had land in Survey No.53, the sub-division numbers were of no consequence. This was clearly a wrong approach as the documents relied upon by the plaintiffs themselves showed different sub-divisions of the survey number and therefore, there was no clarity for the court to come to any particular finding. Exs.P.4 and P.5 being the pahanies of the years 2007-08 and 2008-09 were issued by the Village Revenue Officer and were inadmissible as he was not competent to issue the same. However, the appellate Court placed reliance on them. Further, the appellate Court, having referred to the fact that the plaintiffs were seeking a temporary injunction for the entire petition schedule property, contradicted itself by stating thereafter that the land admeasuring Ac.4.20 guntas in Survey No.53/A4 was not in issue as there was no specific interference by the defendant company. No material was placed on record to show that the plaintiffs had restricted their prayer to only the land admeasuring Ac.0.19 guntas in Survey No.53/A and had given up their claim for a temporary injunction in respect of the other extent of land.

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For the reasons stated above, this Court finds that the plaintiffs failed to cross the first hurdle of establishing their prima facie case as they were not in a position to show the exact identity and location of their land and prove their possession over the same. The question of looking into the balance of convenience and irreparable injustice therefore did not arise. The trial Court, to the extent that it found so, was correct though it ought not to have gone into an examination of the rival claim of the defendant company. The appellate Court misapplied itself on facts and in law and granted the temporary injunction reversing the order of the trial Court.

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The Civil Revision Petition is accordingly allowed setting aside

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the Judgment and Decree dated 10.03.2011 passed by the learned Senior Civil Judge, Zaheerabad, in C.M.A.No.2 of 2010. The amount of Rs.10,000/- credited to the suit pursuant to the order dated 18.03.2011 passed by this Court in the present Civil Revision Petition shall remain in deposit and shall abide by the result of the suit. In the circumstances, there shall be no order as to costs.

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SANJAY KUMAR, J.

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_______ JULY, 2011. PGS

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[1] (2002) 5 SCC 760

M/s. Rockwood (India) Ltd. v. Mrs. Farida Begum

Case brief

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M/s. Rockwood (India) Ltd. v. Mrs. Farida Begum

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