Karnataka High Court

Smt. T.K. Gowramma W/O. T. Krishna ... vs Sri. C.K. Raviprasanna

S/O. Late ... on 21 February, 2007
Equivalent citations: ILR 2007 KAR 1214
Author: H N Das
Bench: H N Das

ORDER H.N. Nagamohan Das, J.

1. In this writ petition the petitioner has prayed for a writ in the nature of
certiorari to quash the order dated 06.10.2005 on I.A. No. II in O.S. No.
91/2005 pasted by the Civil Judge (Junior Division) and JMFC at Suliya
and the order dated 16.11.2006 in M.A. No. 34/2005 passed by the Civil
Judge (Senior Division), Puttur.

2. The respondent filed O.S. No. 91/2005 against the petitioner for grant of
decree of permanent injunction restraining the petitioner from interfering
with the respondent's possession and enjoyment of schedule property. In
O.S. No. 91/2005, the respondent filed I.A. No. II under Order 39 Rule 1
and 2 CPC for grant of temporary injunction. The trial Court after hearing
both the parties granted an order of temporary injunction and the same
reads as under:

I. The plaintiff shall not make any alteration to the existing building or
construct any permanent structures or damage the building or waste,
damage or alienate the plaint schedule property.

II. The plaintiff shall maintain the accounts regarding the expenditure and
income from the plaint schedule property from this day and submit the
accounts to the Court once in every three months.

III. The income from the plaint schedule property after deducting the
expenditure shall be deposited in the Court.

IV. The defendant hag a right to submit his objections if any to the accounts
furnished by the plaintiff and the same shall be decided in accordance with
law.

V. The order regarding the repayment of the amount to deposited shall be

made in the final judgment.

VI. The parties shall cooperate in the disposal of this suit so that the suit
can be disposed of at least within six months from this day.

3. Aggrieved by this order of temporary injunction granted by the trial Court,

the petitioner filed an appeal in M.A. No. 34/2005 on the file of Lower
Appellate Court. The Lower Appellate Court, after hearing both the parties,
dismissed the appeal filed by the petitioner and confirmed the order of trial
Court Hence, this petition.

4. Sri. K.M. Nataraj, learned Counsel for petitioner contends, that the suit is
based on an unregistered agreement of sale. The handwriting expert has
given an opinion that the signature found on the agreement of sale is not
that of the petitioner. The respondent without seeking specific performance
of agreement of sale is not entitled to file a suit for bare injunction. The
documentary evidence on record establishes that the respondent is not in
possession and enjoyment of the schedule property. Both the Courts below
committed an error in not properly appreciating the pleadings and
documentary evidence on record. Reliance is placed on the following
decisions.

1. Hindustan Petroleum Corporation Limited v. Sriman Narayan, and Anr.

2. Mirza Mohammed Yousuf Baig v. Deccan Enterprises, Bangalore and

Ors. 1996 AIHC 3132

3. D.T.T.D.C. v. D.R. Mehara and Sons AIR 1996 Delhi 351

4. State of Karnataka v. State of A.P. and Ors.

5. M. Gurudas and Ors. v. Rasaranjan and Ors.

6. Kishore Kumar Khaitan and Anr. v. Praveen Kumar Singh

7. Ram Chandra Singh v. Savitri Devi and Ors.

4. Per contra, Sri. Ashok Haranahalli, learned Counsel for respondent

justifies the impugned orders. He contends, that both the Courts below
concurrently held that the respondent has made out a prima facie case.
The scope of interference with the concurrent findings by this Court
under Article 226 of the Constitution is very limited. Reliance is placed on
the following decision.

1. Basavaraj Shivaramagouda Patil v. Mahesh

5. Heard arguments on both the side and perused the entire writ papers.

6. The Supreme Court in Kishore Kumar Khaitan v. Praveen Kumar

Singh held, the jurisdiction under Article 227 of the Constitution may be
restrictive in the sense that it is to be invoked only to correct errors of
jurisdiction. But when a Court asks itself a wrong question or approaches
the question in an improper manner, even if it conies to a finding of fact, the
said finding of fact cannot be said to be one rendered with jurisdiction and it
will still be amenable to correction at the hands of the High Court
under Article 227 of the Constitution. The failure to render the necessary
findings to support its order would also be a jurisdictional error liable to
correction.

7. Keeping in mind the principles of law as laid down by the Supreme Court
in Kishore Kumar Khaitan's case it is necessary to examine the fact
situation in the present case. It is not in dispute that petitioner is the owner
of plaint schedule property. The respondent claims that he is in possession
of the schedule property. The parties produced certain documents in
support of their respective contentions. Both the Courts below concurrently
held, that the respondent has made out prima facie case. The findings of
both the Courts below is supported by pleadings and documentary
evidence on record. Though a different view is possible, the same cannot
be a ground to interfere with the discretionary orders passed by the Courts
below. Under Article 227 of the Constitution this Court cannot substitute its
own discretion in place of the judicial discretion of both the Courts below
particularly in the absence of error of jurisdiction.

8. Let me examine the principles for grant of temporary injunction. The

Supreme Court inHindustan Petroleum Corporation Limited v. Sriman
Narayan and Anr. held:

Grant of an interlocutory injunction during the pendency of the legal

proceeding is a matter requiring the exercise of discretion of the Court.
While exercising the discretion the Court normally applies the following
tests:

(i) Whether the plaintiff has a prima facie case;

(ii) Whether the balance of convenience is in favour of the plaintiff; and

(iii) Whether the plaintiff would suffer an irreparable injury if his prayer for
interlocutory injunction is disallowed.

The decision whether or not to grant an interlocutory injunction has to be

taken out at a time when the exercise of the legal right asserted by the
plaintiff and its alleged violation are both contested and remain uncertain till
they are established on evidence at the trial. The relief by way of
interlocutory injunction is granted to mitigate the risk of injustice to the
plaintiff during the period before which that uncertainty could be resolved.
The object of interlocutory injunction is to protect the plaintiff against injury
by violation of his right for which he could not be adequately compensated
in damages recoverable in the action if the uncertainty were resolved in his
favour at the trial. The need for such protection has, however, to be
weighed against the corresponding need of the defendant to be protected
against injury resulting from his having been prevented from exercising his
own legal right for which he could not be adequately compensated. The
Court must weigh one need against another and determine where the
"balance of convenience" lies.

In State of Karnataka v. State of Andhra Pradesh , the State of Andhra

Pradesh filed suit under Article 131 of Constitution for mandatory injunction
to restrain State of Karnataka from constructing a dam at Almatti to a height
of 524.256 meters on the ground of infringement of its legal rights flowing
from the decision of Krishna Water Disputes Tribunal. The Supreme Court
held, that the issue of grant of injunction is to be looked at from the point of
view as to whether on refusal of the injunction, the plaintiff would suffer
irreparable loss or injury keeping in view the strength of the parties' case.
Balance of convenience or inconvenience is also another requirement' but
no fixed rules or notions ought to be had in the matter of grant of injunction
and the relief being always flexible depending upon the facts and
circumstances of each case. The justice of the situation ought to be the
guiding factor.

The Supreme Court in Gujarat Bottling Co. Ltd. v. Cocacola Co. held, that
the relief of temporary injunction is wholly equitable in nature, the party
invoking the jurisdiction of the Court hat to show mat he himself was not at
fault and mat he himself was not responsible for bringing about the state of
things complained of and that he was not unfair or inequitable in his
dealings with the party against whom he was seeking relief. His conduct
should be fair and honest. These considerations will arise not only in
respect of the person who seeks an order of injunction under Order 39 Rub
1 and 2 CPC, but also in respect of the party approaching the Court for the
ad-interim or temporary injunction order already granted in the pending suit
or proceedings.

9. Bearing in mind these principles it is required to examine whether the

temporary injunction order granted by the Courts below is in accordance
with law. Respondent admits mat petitioner is the owner of the schedule
property. The agreement of sale produced by the respondent is disputed by
the petitioner. There is no dispute mat there is a residential house in the
schedule property. Both the Courts below concurrently held, that
respondent has made out a prima facie case on the basis of documents
like the custody of tax paid receipts, telephone bills, certificate issued by
the Secretary of Village Panchayat, Voters' list, driving license, postal
letters etc. Whether the agreement of sale is genuine or not and the
respondent is in unlawful possession are all matters required to be
determined at the trial.

10. The petitioner's address in the cause title to the plaint is shown as
Thota House, Aivathoklu village which is away from the schedule property
and the same is not disputed. It is not the case of petitioner that the
respondent is only in occupation of house in the schedule property and not
the land. The Courts below by considering the pleadings and the
documents have rightly concluded mat the balance of convenience is in
favour of respondent and if an order of temporary injunction is not granted
he will be put to irreparable loss and injury. This reasoning of both the
Courts below is in accordance with the facts and law in the case.

11. The contention of the petitioner that respondent concocted the

agreement of sale and played fraud are all matters to be decided in full
pledged trial. At this stage while deciding the question of prima facie case
for grant of temporary injunction it is not desirable to record a finding on
merits. The contention of the learned Counsel for petitioner mat the
suit for bare injunction without seeking the relief of specific
performance is unacceptable to me. As per the terms of agreement of
gate it in dispute the registered sale deed is to be executed on or
before 27.11.2006. The suit for bare injunction is filed on 03.09.2005.
As on the date of filing of the suit the relief of specific performance is
not riped. Therefore I decline to accept the contention of learned
Counsel for petitioner.

12. The impugned orders passed by the Courts below are in accordance
with law. I find no justifiable grounds to interfere with the impugned order.
For the reasons stated above, the writ petition is rejected with no order as
to costs.