KALUBHAI NANKABHAI PATGIR Vs. MANAGER AFCONC INFRASTRUCTURE LTD

JUDGEMENT

(1.) THIS petition, invoking the provisions of Articles 226 and 227 of the Constitution of India, has been filed, challenging judgment and order dated 11.01.2010, rendered by the learned Principal District Judge, Amreli, in Civil Misc. Appeal No. 42/2009, whereby the order dated 14.10.2009, passed by the learned Principal Senior Civil Judge, Amreli, below applications at Exh.5 (filed by the respondent No. 1/original plaintiff) and Exh.36 (filed by the petitioner/original defendant No. 2), in Regular Civil Suit No. 83/2009, has been confirmed.

(2.) THE relevant facts, sufficient for the decision of the petition, are that the petitioner (defendant No. 2 in the above mentioned suit), entered into a Lease Agreement with the respondent No. 8, Cross Link Infrastructure Limited (original defendant No. 8), in respect of agricultural lands owned by him, bearing Survey No. 194/P admeasuring 2 -Acre and 0 -Guntha, and land comprised in Survey No. 196/P admeasuring 1 -Acre and 29 -Gunthas, situated at Village Aadsang, Taluka Savarkundla, District Amreli. The Lease Agreement between the petitioner and respondent No. 8, was entered into on 06.08.2008, and by way of the said agreement, the petitioner had agreed to lease the said land for a period of one year, for a lease amount of Rs. 1,95,563/ -. By way of the above agreement, the petitioner agreed to permit respondent No. 8, to use the said land by installing certain machinery, for the purpose of crushing stone and for storage of stone. It was also agreed that the petitioner would not cause any obstruction to the agents and contractors of respondent No. 8, for carrying out their work, on the said land, as per the agreement. The parties agreed that in case the work of respondent No. 8 would not get completed within a period of one year, the petitioner was free to raise the rental amount, and conversely, if respondent No. 8 uses the said land for a period of less than one year, the petitioner would refund the excess amount to it. Accordingly, respondent No. 8 installed a stone -crusher on the agricultural land of the petitioner. As per the Lease Agreement, the petitioner has taken an amount of Rs. 1,95,563/ - in advance from respondent No. 8 (which is disputed by the petitioner). The respondent No. 1, Afcons Infrastructure Limited, is the original plaintiff. The machinery belonging to respondent No. 1 has been installed by respondent No. 8 on the land of the petitioner, for carrying out the work of stone -crushing. The case of respondent No. 1 in the suit is that, the machinery belonging to it is worth Rs. 4,70,00,000/ -, and as the said machinery is not suitable for the work undertaken, permission to remove the said machinery may be granted. A declaration is sought to the effect that respondent No. 1 is the independent owner of the said machinery. A permanent injunction, restraining defendants Nos. 1 to 7, including the petitioner (defendant No. 2), from obstructing respondent No. 1, in the removal of the machinery, has also been prayed for. The petitioner filed a counter -claim in the suit, wherein he has prayed that as respondent No. 8 has caused damage to his land due to which the petitioner has suffered losses of Rs. 4,00,000/ - per agricultural season, the said amount may be directed to be paid to him, with interest at the rate of 18% per annum. The petitioner has also prayed that the land of the petitioner be restored to the condition in which it was, on the date of the agreement, that is on 06.08.2008, so as to enable him to take agricultural produce there from, and, further, respondent No. 8 may be directed to bear the expenses. The respondent No. 1 (original plaintiff) moved an application at Exh.5 in the suit, with a prayer for police protection at its cost, and for directions that when its machinery is being removed from the land in question, by its authorized representatives, the petitioner or its agents or servants may be restrained from causing any obstruction. The petitioner also filed an application at Exh.36, with a prayer to the effect that respondent No. 8 may be directed to remove the concrete from the land of the petitioner, and while lifting the machinery, respondent No. 8 may be directed to restore the said land, to its original condition. The second prayer made in the said application is that respondent No. 8 may be directed to deposit an amount of Rs. 20,00,000/ - in the Trial Court, before machinery is lifted. Both the applications at Exh.5 and Exh.36, have been decided by a common order dated 14.10.2009, by the Trial Court, whereby Exh.5 of respondent No. 1 has been allowed, and Exh.36 filed by the petitioner, has been dismissed. Aggrieved thereby, the petitioner approached the District Court by filing the above -mentioned appeal, which has been dismissed by passing the impugned order, giving rise to the filing of the petition.

(3.) MR . S.P. Majmudar, learned Counsel for the petitioner has submitted that the impugned orders passed by the Courts below, are erroneous, inasmuch as mandatory relief has been granted to respondent No. 1, which almost amounts to granting the main prayer in the plaint, and the suit stands partially decreed, without evidence being led. It is submitted that the Courts below could not have granted interim relief which is in the nature of final relief, and as the impugned orders of the Trial Court as well as that of the lower Appellate Court have been passed, without considering the factors of prima -facie case, balance of convenience or irreparable loss, that would occur to the petitioner, which is necessary for the grant of mandatory relief, the said orders are unmaintainable in law, and deserve to be quashed and set aside. The learned Counsel for the petitioner has further urged that permitting respondent No. 1 to take away the machinery from the land of petitioner, without assessing the damage, will adversely affect the counter -claim filed by the petitioner, who will be unable to establish the extent of the damage to his agricultural land. Referring to the impugned order of the lower Appellate Court, where it is observed that the petitioner is wrongfully restraining respondent No. 1 from removing its machinery, though there is no privity of contract between the petitioner and respondent No. 1, therefore, the petitioner cannot seek equity when he himself has not done equity; the learned Counsel for the petitioner has contended that this observation equally applies to respondent No. 1, who has installed the machinery on the land of the petitioner, by committing breach of the relevant provisions of law. It is urged by the learned Counsel for the petitioner that the findings of the Courts below that there is no privity of contract between the petitioner and respondent No. 1, strengthen the case of the petitioner that respondent No. 1 should not be permitted to remove its machinery from the land, as the matter of contractual obligation is required to be proved by evidence, during trial. It is further contended on behalf of the petitioner that the Panchanama of the land shows that extensive damage has occurred to the agricultural land of the petitioner, and respondent No. 8 is liable to compensate the petitioner, as per the prayer made in the counter -claim. The learned Counsel for the petitioner has further urged that there is no legal or justifiable reason in the impugned orders for rejection of the application at Exh.36, and in that sense, the impugned orders are unreasoned ones, therefore, this Court may grant interim relief in the form of an order of status -quo. In support of his submissions regarding grant of mandatory injunction, the learned Counsel for the petitioner has placed reliance upon the following judgments: