Bombay High CourtGram Panchayat, Through Secretary, ... vs Steel Merchants Association, Through ... on 16 July, 2015Author:A. S. ChandurkarBench:A. S. Chandurkar1
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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH 




                                                                                           
                               NAGPUR.




                                                                   
                        WRIT   PETITION   NO.  2255     OF     2014




                                                                  
    Gram Panchayat Kapsi Khurd,
    a body constituted under theBombay Village Panchayat Act1959, having its office at Kapsi
    Khurd Bhandara Road, Tah. & 




                                                  
    Distt. Nagpur, through Sudhakar
    Chandrabhan Chopde, Secretary
                              
    aged 48 yrs. Occu. Service, 
    R/o Dighori Road, Narsala,
    Nagpur.                                                                     PETITIONER.
                             
                                                  VERSUS
      


    Steel Merchants Association,
    registered under theSocieties
   



    Registration Act1860, and the
    Bombay Public Trust Act, 1980,
    having its office at c/o D. N.Yadav
    Dharampeth, Tanga Stand, Nagpur





    through President Ramsambhar
    Suryabhushan Tripati                                                        RESPONDENT.



                                                   *************





    Shri U. P. Dable, Counsel for the petitioner.
    Shri P. A. Abhyankar, Counsel for respondent.
                                                  *************


                               CORAM:   A. S. CHANDURKAR  J.
                               
                                      Dated    :   JULY  16, 2015.




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    ORAL JUDGMENT:Rule.     Heard   finally   with   consent   of   learned   counsel   for   the 

    parties.2]             The   petitioner-original   defendant   is   aggrieved   by   the   order 




                                                               
    passed by the appellate Court partly allowing the Misc. Civil Appeal filed by 

    the respondent and directing parties to maintain status quo till the suit is 




                                                
    decided.3]
                              
                   It is the case of the respondent in the suit filed by it that Survey 

    No. 69/1,  69/2   and  69/3  are  owned   by it.    It is further   the   case  that in 
                             
    revenue   proceedings   the   records   were   sought   to   be   corrected   and   in   that 

    process the total area of aforesaid lands came to be reduced.  It is the further 
      


    case   that   proceedings   before   the   revenue   authorities   were   being   duly 
   



    prosecuted   but  the  present  petitioner   started   encroaching   upon  portion  of 

    said property by digging pits.  Hence, for declaring that the action on the part 





    of the defendant of encroachment on the northern portion of the property 

    was   illegal,   aforesaid   suit   came   to   be   filed.     An   application   for   interim 

    injunction seeking to restrain the petitioner from encroaching said portion 





    was also filed.   The  petitioner  opposed  aforesaid  application  and  the  trial 

    Court by its order dated 31.01.2014 rejected the application for temporary 

    injunction .  On an appeal filed by the respondent, the appellate Court partly 

    allowed   the   same   and   directed   the   parties   to   maintain   status   quo   during 

    pendency of the suit.4]             Shri U. P. Dable, learned counsel for the petitioner submitted that::: Uploaded on - 31/07/2015                               ::: Downloaded on - 10/09/2015 19:51:21 :::3wp2255.14

    in absence of any prima facie finding being recorded as regards title or that 




                                                                                         
    the plaintiff   was in possession of the suit property, the order of status quo 




                                                                 
    could not have been passed.   According to him, the appellate Court on the 

    contrary found that the question of title was itself in dispute and that at said 




                                                                
    stage no finding could be recorded as to ownership.  Despite recording these 

    findings the appellate Court directed the parties to maintain status quo order 

    which   in   effect   amounted   to   restraining   the   petitioner   from   using   the 




                                                 
    property .  He further submitted that the necessary ingredients in respect of 
                              
    balance of convenience and irreparable loss were also not found.  He placed 
                             
    reliance on the judgment of the Supreme Court inWander Ltd.   Vs.   Antox  

    India (P) Ltd.1990 Supp Supreme Court Cases 727.4]             Shri   P.   A.   Abhyankar,   learned   counsel   appearing   for   the 
      


    respondent supported the impugned order and pointed out that the appellate 
   



    Court   on finding that the title to the property was in dispute directed the 

    parties to maintain status quo.   He submitted that this order did not cause 





    any   prejudice   to   the   petitioner.     He   further   submitted   that   though 

    proceedings before the revenue authorities were in relation to correction of 

    the   revenue   records,   the   title   of   the   respondent   was   not   in   dispute.     He, 





    therefore,   submitted   that   the   order   of   status   quo   did   not   deserve   to   be 

    disturbed.5]             I   have   heard   respective   counsel   and   I   have   perused   the 

    documents   on   record.     The   trial   Court   while   rejecting   the   application   for 

    temporary injunction held that the present respondent no.1 failed to make::: Uploaded on - 31/07/2015                                ::: Downloaded on - 10/09/2015 19:51:21 :::4wp2255.14

    out a prima facie case and that there was no material to come to any prima 




                                                                                           
    facie   conclusion   recording   the   exact   place   where   excavation   work   at   the 




                                                                  
    instance of the defendant was alleged to be going on.  It also found that there 

    was no material prima facie to show any threat or injury to the plaintiff's 




                                                                 
    property.The appellate Court after reconsidering the same material  found 

    that there was no document on record to indicate that the land in question 




                                                  
    belonged   either   to   the   plaintiff   or   to   the   defendant.     In   para   22   it   was 
                              
    observed  that  the  prima facie  case  itself  was in  dispute  and  therefore  the 
                             
    detailed enquiry was necessary.  It has  further observed that the question of 

    title   was   in   dispute   and   therefore   there   was   a   prima   facie   case   to   direct 

    parties to maintain status quo.   In para 36 it has further observed that there 
      


    was no sufficient evidence produced on record by the plaintiff to establish his 
   



    case and unless the identity of the suit property was decided no party could 

    claim title to the disputed property.  On that basis order of status quo came to 





    be passed.6]             An   order of status quo in a suit for declaration and permanent 

    injunction has the effect of directing parties to maintain a particular position 





    during pendency of the proceedings.  In fact such order is in the nature of an 

    interim   direction by virtue of which both parties are directed to maintain 

    such   position   as  was   existing   at   a   particular   point   of   time.     Even   for   the 

    purposes of passing an interim order directing the parties to maintain status 

    quo, some prima facie finding in favour of the plaintiff was required to be::: Uploaded on - 31/07/2015                                 ::: Downloaded on - 10/09/2015 19:51:21 :::5wp2255.14

    recorded.  While the trial Court held against the plaintiff, the appellate Court 




                                                                                           
    despite recording a finding that the prima facie case was in dispute directed 




                                                                  
    the parties to maintain status quo.   In absence of any prima facie case and 

    especially after recording a  prima facie finding that the title and possession 




                                                                 
    was   itself   in   dispute,   there   was   no   legal   justification   on   the   part   of   the 

    appellate Court to direct the parties to maintain status quo.

    7]             There is one more aspect to the matter.  The appellate Court has 




                                                  
    directed the parties to maintain status quo without actually indicating what 
                              
    the   status   quo   was.     The   Supreme   Court   inKishore   Kumar   Khaitan   Vs.  
                             
    Praveen Kumar Singh(2006) 3 Supreme Court Cases 312, while considering a 

    somewhat similar situation observed in paragraph 5 as under:"It is necessary to notice at this stage that in an 
      


                     original   suit   of   this   nature,   it   was   not 
                     appropriate for the Additional District Judge to 
   



                     pass an order directing the parties to maintain 
                     status quo.  Without indicating what the status 
                     quo was.  If he was satisfied that the appellant 
                     before him had made out a prima facie case for 





                     an   ad   interim   ex   parte   injunction   and   the 
                     balance   of   convenience   justified   the   grant   of 
                     such   an   injunction,   it   was   for   him   to   have 
                     passed such an order of injunction.  But simply 
                     directing   the   parties   to   maintain   status   quo 
                     without indicating what the status quo was, is 





                     not an order that should be passed at the initial 
                     stage of a litigation especially when one court 
                     had found no reason to grant an ex parte order 
                     of   injunction   and   the   appellate   court   was 
                     dealing with only the limited question whether 
                     an   ad   interim   order   of   injunction   should   or 
                     should not have been granted by the trial court, 
                     since the appeal was only against the refusal of 
                     an ad interim ex parte order of injunction and 
                     the   main   application   for   injunction   pending 
                     suit,   was   still   pending   before   the   trial   court::: Uploaded on - 31/07/2015                                 ::: Downloaded on - 10/09/2015 19:51:21 :::6wp2255.14

                    itself.  Therefore, we are prima facie of the view 




                                                                                       
                    that the Additional District Judge ought not to 
                    have     passed   an   equivocal   order   like   the   one 




                                                               
                    passed in the circumstances of the case.  But of 
                    course,   that   aspect   has   relevance   only   to   the 
                    extent   that   before   ordering   an   interim 
                    mandatory   injunction  or   refusing   it,  the  court 
                    has  first   to   consider   whether   the   plaintiff   has 




                                                              
                    proved that he was in possession on the date of 
                    suit and on the date of the order and he had 
                    been dispossessed the next day.  Unless a clear 
                    prima   facie   finding   that   the   plaintiff   was   in 
                    possession on those dates is entered, an order 




                                                
                    for   interim   mandatory   injunction   could   not 
                    have   been   passed   and   any   such   order   passed 
                             
                    would be one without jurisdiction."In the present case also, there is no indication as to the nature of status quo 
                            
    that was required to be maintained.8]            The principles for grant of interim injunction are well settled and 
      


    reference in that regard can be made to the decision of the Supreme Court inWander   Ltd.(supra).     The   appellate   Court   therefore   merely   on 

    reconsideration   of   the   matter   was   not   entitled   to   take   a   different   view 





    especially when it also found absence of a prima facie case in favour of the 

    respondent.     In   fact   there   was   no   reason   whatsoever   on   the   part   of   the 

    appellate Court to have set aside the order passed by the trial Court.  





    9]            In view of aforesaid the following order is passed:1] The order dated 31.01.2014 passed in Misc. Civil Appeal No. 9 

    of 2014 is set aside.2]   The   proceedings   in   Regular   Civil   Suit   No.   36   of   2014   are 

    expedited and the trial Court shall decide the suit by the end of December 

    2015.  It is clarified that any observations made in this order are only for the::: Uploaded on - 31/07/2015                               ::: Downloaded on - 10/09/2015 19:51:21 :::7wp2255.14

    purposes of deciding the interlocutory proceedings and the trial Court shall 




                                                                           
    not be influenced by any observations made in this order.  The suit shall be 




                                                   
    decided in accordance with law.   Rule is made absolute in aforesaid terms.No costs.JUDGE

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