BADRILAL Vs. RADHEYSHYAM

JUDGEMENT

(1.) APPLICANT /defendant No. 1 has filed this civil revision under section 115 of the Code of Civil Procedure (for short 'the Code') against the order dated 2.3.2001 passed by Additional District Judge, Khachrod, District Ujjain in Miscellaneous Civil Appeal No. 11-A/2000, whereby it rejected the appeal filed by applicant/defendant No. 1 against the grant of temporary injunction in the form of mandatory injunction by the Civil Judge, Class-II, Khachrod, on 23.11.2000 in Civil Suit No. 26-A/2000.

(2.) ADMITTED facts of the case are that at village Aakya Jagir, Gram Panchayat granted a Patta in favour of applicant/defendant No. 1 for Survey No. 403 and applicant Badrilal constructed a house on this survey and it is also not in dispute that there is a long and previous enmity between respondent No.1/plaintiff Radheshyam and respondent No. 2 Sarpanch, Gram Panchayat, Aakya Jagir. The case of the plaintiff in the suit was that he purchased one land and started construction of house. Applicant/defendant No. 1 Badrilal and Sarpanch of Gram Panchayat, Aakya Jagir, both were trying to demolish the house constructed by the plaintiff and police was also helping the defendants. Plaintiff filed the suit for permanent injunction on 23.5.2000 along with an application for temporary injunction. Court directed to issue show-cause notice on the same day. Ramchandra, Ex-Sarpanch, who is uncle of applicant/defendant No. 1, was present in the Court and he was aware of the fact that respondent No. 1/plaintiff Radheshyam has filed a suit against his nephew Badrilal on 23.5.2000 alongwith an application for temporary injunction and Court has directed to issue show-cause notice on the said application and listed the case for hearing on 5.6.2000. In the meantime on 25.5.2000 in the night applicant/defendant No. 1 Badrilal constructed a wall towards the Southern side of the house of the plaintiff and obstructed the plaintiff from using the said way. It has also come on record that the uncle Ramchandra, who was also Sarpanch, illegally granted Patta to his nephew Badrilal of this land on which he constructed the wall in the night. Thereafter on 21.8.2000 plaintiff filed another application under Order XXXIX Rule 1 & 2 read with Section 151 of the Code, which was marked as LA. No. 3 and submitted all the facts before the trial Court that after filing of the suit, applicant/defendant No. 1 Badrilal has raised the aforesaid illegal construction and the same be directed to be removed. Finally after hearing the parties and after taking the replies of the parties and also after considering the report of Tehsildar on record, the trial Court came to the conclusion that applicant/defendant No. 1 Badrilal had obtained Patta of the said land illegally from his uncle Ramchandra who is also Sarpanch and has raised illegal construction after filing of the suit and after issuing show-cause notice and after hearing the parties the trial Court allowed the application, granted injunction in favour of respondent No. 1/plaintiff Radheshyam and also directed that whatsoever construction has been raised by defendant No. 1 Badrilal be removed, against which the applicant/defendant No. 1 filed an appeal. The appellate (Court has also dismissed the same, against which the applicant has filed -this revision.

(3.) THE sole submission of Shri L.R. Bhatnagar, learned counsel for applicant/defendant No. 1 Badrilal was that both the Courts have wrongly granted temporary injunction in the form of mandatory injunction in favour of respondent No. 1/plaintiff Radheshyam without following the principles of law and without considering the reliefs sought in the plaint. His further submission was that the plaintiff has not claimed any mandatory relief in the suit. He placed reliance on a Division Bench decision of Delhi High Court in the case of Bharat Petroleum Corporation Ltd. v. Hari Chand Sachdeva and others, reported in AIR 2001 Delhi 307, in which the Division Bench has held that "While Courts' power to grant temporary mandatory injunction on interlocutory application cannot be disputed, but such temporary mandatory injunctions have to be issued only in rare cases where there are compelling circumstances and where the injury complained of is immediate and pressing and is likely to cause extreme hardship. If a mandatory injunction has to be granted at all on interlocutory application, it is granted only to restore status quo and not to establish a new state of things."