ORDER 43 RULE 1(r) – Appellate Court: Interference with orders of trial Court: where material & findings arrived at contrary to pleadings or misdirection or non-consideration thereof & where orders arbitrary, perverse or capricious.
No doubt Appellate Court can interfere with the orders of the
trial Court provided it is shown that the material made available
by either of the parties to the proceedings and the findings
arrived at are contrary to the pleadings of the parties or their
complete misdirection or non-considering any of the material. But
at the same time a restraint has been put on the Appellate Courts
to interfere in the discretionary order passed by the trial Court
saying that it is quite unjust, unsafe and improper on the part of
the Appellate Court to interfere in the orders passed by the trial
Courts unless it is shown orders passed by the trial Court are in
any way arbitrary, perverse or capricious, still the Appellate Court
shall put brake in exercise of its power of holding that merely
because it is possible for the Appellate Court, on the material
made available to form an opinion over the one formed by the
trial Court, is not sufficient.
(B) KARNATAKA MINOR MINERAL CONCESSION RULES, 1969 – No provision authorising lessee to sub-lease – Possession of sub-lessee not lawful.
1. The factors which determine granting of temporary injunction are as follows:-
1. Prima facie lawful possession;
2. Balance of convenience;
3. Arguable case;
4. Hardship and injury;
5. Conduct of the parties.
Keeping these principles in mind, now this Court has to see whether trial Court was justified in granting injunction in favour of the plaintiff or Appellate Court was justified in reversing the same. Secondly this Court has to see whether Appellate Court can interfere in a discretionary order passed by the trial Court merely because on the material made available, Appellate Court can take a view other than the one taken by the trial Court.
2. To decide the above questions, it is relevant to extract hereunder a few facts which gave rise to two different orders to be passed by trial Court and Appellate Court.
3. There is a quarry deposit in Survey No. 58 of Dinnehosahalli (Bande) Village of Kolar Taluk. Plaintiff herein was earlier a Lessee in respect of the said quarry which was granted to her by the Director of Mines & Geology since the said quarry is governed under the provisions of Karnataka Minor Mineral Concession Rules 1969. It is the practice of the Department to renew the same by every five years. For more than a decade, plaintiff was a Lessee satisfying her compliance with the conditions imposed to earlier lease. Department renewed her lease for a further period of 5 years by an order dated 14-9-1987 with effect from 13-9-1986. A fresh Lease Deed also came to be executed.
4. Nowhere in the provisions of the Act or KMMCR of 1969 it is stated that when once lease is created in favour of a person, he or she can sub-lease the same without the consent or approval of the concerned Department. It is not in dispute that on 13-2-1989 the plaintiff was a Lessee, executed a Special Power of Attorney in favour of defendant to carry on the work relating to quarrying and execution of the work. On 12-2-1990 the said Power of Attorney was revoked which is not disputed by the defendant. After revocation, plaintiff being afraid of defendant’s forceful interference in her possession and enjoyment of the quarry even though he had no right or interest, she filed a suit for permanent injunction, to prevent immediate threat under Order 39, Rules 1 & 2 C.P.C. She also filed an application seeking temporary injunction against the defendant. The said application was numbered as I.A.I. As soon as notice was served, defendant put appearance, filed his written statement contending that:-
1. At no time plaintiff was in possession and enjoyment of the quarry in question.
2. According to him throughout it was he who was in possession and enjoyment of the said quarry. He executed the work, removed the deposit, attended to all her works at the Government level. The so-called revocation of Power of Attorney on 12-2-1990 is an unilateral one. Even otherwise, he is entitled to continue in possession and enjoyment of the said quarry. On 15-3-1989 a lease came to be executed in his favour. The same has been attested by plaintiffs daughter.
According to the defendant, he has been paying whatever amount liable to be paid to the Government in the form of royalty or tax etc. which the Lessee is liable to pay to the Government. Since he has been put in possession of the property as a sub-lessee and earlier as a Power of Attorney Holder by the plaintiff, now it is not open for the plaintiff to contend that she is in possession and thus she is entitled to continue in its possession. In view of Lease Deed dated 15-3-1989, he is entitled to continue in possession of the area in question. Thus contending his alleged right to continue in possession without any interference or interruption by the plaintiff, he too filed an application under Order 39, Rules 1 and 2 C.P.C. for an injunction against the plaintiff. The interim relief which he claimed contending that his claim arises out of plaintiff’s can be if action or the same is incidental to the main relief claimed by the plaintiff. The said application came to be numbered as IA. No. V. In support of his case, defendant also produced two affidavits of a scribe and another attestor to the Lease Deed dated 15-3-1989.
5. The trial Court clubbed both the applications. After hearing both sides and after taking into consideration material made available including some of the documents like Lease Deed, Renewal Order dated 13-9-1986, Power of Attorney dated 13-2-1989, revocation dated 12-2-1990 and lease deed dated 15-3-1989, in view of the averments made in the pleadings by both the parties in support of their cases including the effect of provisions of KMMCR of 1969 to lease and sub lease, trial Court came to the following conclusions:-
1. Plaintiff proved prima facie possession in respect of quarry in question and not the defendant.
2. Balance of convenience lies in favour of plaintiff in granting injunction in her favour.
3. Held hardship and injury is going to be caused to the plaintiff if injunction is not granted.
As far as defendant concerned, all these points were held against him. Of course the trial Court did not deal either about arguable case or about conduct of the parties. But the same left to be inferred on the pleadings and the material made available. Thus injunction was granted in favour of the plaintiff by allowing I.A. No. 1 and rejecting I.A. No. V.
6. Aggrieved by these two orders, defendant preferred appeals before the Additional Civil Judge, Kolar in Miscellaneous Appeal No. 13 and M.A. No. 20 of 1990 respectively. Appellate Court once again examined all the documents, stand taken by both the parties as pleaded, averments made in the affidavits including affidavits filed by scribe and attestor to Lease Deed dated 15-3-1989, came to a conclusion that the defendant has made out a prima facie case of possession. Balance of convenience lies in his favour and if injunction is not granted in his favour, great hardship and injury would be caused to him. These points were held against the plaintiff. The reasons which weighed in the mind of the Appellate Court to give findings in favour of the defendant are at paras 13 to 20:-
“Para 13:- The defendant in support of his claim that the plaintiff executed the agreement dated 15-3-1989 was filed the affidavits of the scribe and one of the attestor to the agreement. The scribe and the attestor have fully supported the case of the defendant. At this stage it may also be pointed out that the trial Court has not even made a mention to these affidavits while considering whether the agreement relied upon by the defendant is probable or not. The defendant has contended that the other attestor to the agreement was said to be the daughter of the plaintiff. The plaintiff has not specifically denied this fact, nor has filed any affidavit of the other attestor to indicate that she had never executed any agreement in favour of the plaintiff. Thus, the affidavit of the scribe and the attestor fully support the claim of the defendant regarding execution of the agreement dated 13-2-1989 by the plaintiff.
Para 14:- Coupled with the above fact, it is necessary to have a look at the stand taken by the plaintiff in this suit with relation to agreement relied upon by the defendant. It is seen that at para-8 of the plaint the plaintiff has specifically stated that the defendant tried to misutilise the powers transferred to him under the power of attorney and the defendant also stole some signed blank papers of the plaintiff. This averment in the plaint appears to have been made obviously having in mind the fact that defendant was likely to put forth his claim under the agreement dated 13-2-1989, as otherwise there was no need for the plaintiff to make this averment in the plaint. It is further seen that the plaintiff while giving particulars called for by the defendant has stated as under:-
“The particulars in respect of allegations that defendant has stolen blank papers is not happily worded. The plaintiff submits she meant to state that the defendant has taken signature to the blank papers from the plaintiff and she suspects that the defendant might have misused them, further the plaintiff has not purchased any stamp paper, as the plaintiff remembers some time back some where about 11 years back while the plaintiff was hospitalised at a nursing home at Krishnarajapura, the defendant brought some stamp papers i.e., blank stamp papers, the number of which she cannot remember and got her signatures.”
It is thus seen that the plaintiff is not totally denying the execution of the agreement dated 15-3-1989, and on the other hand, wants to indicate that agreement might have been concocted on a paper on which her signatures had been obtained. The agreement is dated 15-3-1989 and is written on a stamp paper, which appears to have been purchased on 10-3-1989. The medical certificate produced by the plaintiff discloses that she had taken treatment at Krishnarajapuram Hospital during the period from 3-5-1986 to 14-6-1986, looking to the fact that the agreement is dated 15-3-1989, and is written on a stamp paper which appears to have been purchased on 10-3-1989. It is obvious that the agreement is not the one to which the plaintiff’s signature has been taken when she was in the hospital. The plaintiff claims that she was in the hospital about 1 1/2 years ago. This claim is made on 13-3-1990. The medical certificate however shows that the plaintiff was in the hospital during May and June 1986. Thus the plaintiffs claim that defendant might have concocted the agreement on a blank paper to which her signature was obtained, do not appear to be well founded at this stage. However, the stand taken by the plaintiff with the affidavit of the scribe and the attestor as well as the fact that even prior to 13-2-1989 the defendant was managing the affairs of the quarry on behalf of the plaintiff, seem to probabalise defendants claim that plaintiff did execute the agreement dated 15-3-1989 in his favour. The agreement empowers the defendant to fully enjoy the suit property. The defendant’s claim regarding the plaintiff having executed the agreement dated 15-3-1989 in his favour cannot hence be brushed aside as improbable. If once the execution of the agreement is held to be probable, then the terms of the agreement show that defendant had been put in possession of the suit property. When such is the case, plaintiff’s claim of being in possession of the suit property as on the date of the suit appears to be doubtful, on the other hand, the defendant’s claim of being in possession of the suit property from 13-2-1989 onwards appears more probable and acceptable at this stage.
Para 15:- The learned Munsiff have come the conclusion that under the present circumstances it is difficult to hold that the plaintiff executed the agreement dated 15-3-1989 in favour of the defendant. The reasonings given by the learned Munsiff to come to this conclusion are absured and perverse. The learned Munsiff has observed that in case the plaintiff delivered possession of the suit property on 13-12-1989 there was no occasion for the plaintiff to execute the power of attorney. As already pointed out even on the plaintiffs own showing the terms of the power of attorney do not fully reflect what transpired between the parties. Hence, solely because the plaintiff has executed the power of attorney dated 13-2-1989, which do not indicate the defendant having been put in possession of the property, it is not possible to hold that defendant’s claim of possession is improbable, more so, when the circumstances of the case support his claim. The learned Munsiff has also observed that prior to sanction of Government had not been obtained before creating sublease in favour of the plaintiff, and the agreement dated 15-3-1989 has not been registered. These factors are totally alien to the question on hand. At this stage we are not sitting in Judgment over the legality of the sub lease made in favour of the defendant, Looking to the terms of the agreement it cannot be said that the document was required to be compulsorily registered. It is thus seen that the learned Munsiff has not properly considered the relevant aspects of the case while deciding as to who was in possession of the property.
Para 16: In the case of Venkatareddy v. Budan @ Didda Budan 1971(1) Mysore Law Journal 317 it is held that an appellate Court will be justified in interfering with an order of temporary injunction passed by the trial Court in cases where the trial Court has ignored relevant facts which were important and the same materially affected the decision of the trial Court. The same principle of law is indicated in the case of Rangamma v. Krishnappa – 1968(1) – Mysore Law Journal – 552, and Uttar Pradesh Co-operative Federation Ltd., v. Sunder Brothers .
Para 17:- In the case on hand the trial Court while accepting the plaintiffs claim of possession over the suit property as on the date of the suit, has totally ignored that defendant’s claim regarding execution of agreement dated 15-3-1989 by the plaintiff was supported by the scribe as well as attestor to the document. The plaintiff on the other hand had not placed any material to improbabilise her having executed the agreement. The trial Court has not considered the different stands taken by the plaintiff in her plaint, and the particulars given by her defendant. Non-consideration of these facts by the trial Court has in my opinion materially affected its decision in the case. I am hence of the opinion that the conclusions arrived at by the trial Court regarding plaintiff’s possession of the suit property is absured and unreasonable. There are justifying circumstances to interfere with the discretion exercised by the trial Court, as the trial Court has not considered some of the material points, and this has affected its decision.
Para 18:- In view of the foregoing I am inclined to hold that the plaintiff has not prima facie shown her lawful possession over the suit property as on the date of the suit. On the other hand, the claim of the defendant that he was in possession of the suit property as on the date of the suit appears to be probable and acceptable. The defendant cannot be taken as a trespasser, since his claim of possession is supported by agreement dated 15-3-1989. Under these circumstances, the question of granting injunction to protect the plaintiff’s possession do not at all arise.
Para 19:- The defendant is seeking for an order of injunction against the plaintiff. It is now settled that a defendant can in an appropriate case claim interim injunction against the plaintiff in the same suit provided the defendants claim to relief of injunction arise out of plaintiff’s cause of action or is incidental to it (See MM Employees Association v. Indian Institute of Management (ILR 1990 Karnataka 3148). The defendant in his affidavit filed in support of the application seeking for injunction has stated that the plaintiff and her supporters tried to interfere with his possession of the suit property on 28-2-1990. The plaintiff in para-11 of the plaintiff has stated that the cause of action for this suit arose on 28-2-1990 when the defendant tried to interfere with her possession and enjoyment of the suit property. It is thus seen that defendant’s claim to relief of injunction arise out of plaintiff’s cause-of action or at any rate it is incidental to the same. Under these circumstances, the defendant can maintain his prayer for injunction against the plaintiff.
20. During the discussion made above, I have held that defendant has shown his possession over the suit property. The main object of granting injunction is to maintain existing status quo. It is precisely for this purpose that an injunction is required to be granted in favour of the defendant. Looking to the fact that the defendant is in possession of the property, it is obvious that the balance of convenience lies in his favour, and it is he who will be put to irreparable loss and injury if injunction is not granted, as otherwise, the plaintiff may illegally interfere with his possession and cause damage. I hence hold that defendant has made out a case for grant of injunction against the plaintiff.”
For the reasons given therein, the appellate Court reversed the order of the trial Court. Thus granted injunction in favour of the defendant. Aggrieved by the said Judgment and order, plaintiff has preferred this revision petition.
7. Attack of the petitioner to the order of the Appellate Court is on similar grounds as put forth before the trial Court, as averred in support of her affidavit filed in support of her application for injunction in addition to some other contentions namely:-
1. Appellate Court did not take into consideration its scope to interfere in the discretionary order passed by trial Court.
2. Not considered whether it is safe to rely upon a document whose genuineness is disputed.
3. Not taken into consideration the fact whether there can be an injunction against an agent of a true owner?
4. Mere sublease creates a lawful possession to urge for injunction.
The reading of the Judgment and order passed by the Appellate Court makes it clear that none of the principles explained above were dealt by the Appellate Court as applied and made out by the party in support of his case. For the same, Sri R.N. Murthy, learned Counsel for the petitioner submits that C.R.P. be allowed.
8. Whereas Sri D.L.N. Rao, learned Counsel for the defendants submits that material made available by the defendant namely lease deed dated 15-3-1989, affidavits including conduct of the plaintiff in not complying at any time from 15-3-1989 to date of filing of the suit that defendant is attempting to dispossess her, coupled with recitals in the lease deed dated 15-3-1989 sufficient to show that defendant was lawfully inducted as a lessee on the disputed quarry. Thus entitled for injunction which was incorrectly refused by the trial Court and rightly granted by the Appellate Court. According to him, a reading of the lease deed itself makes it clear that defendant was put in possession of the said quarry. According to him, whatever amount that is payable to the Government being paid by him as undertaken in the lease deed is itself a price to determine the lease as a valid one. He submits as the trial Court has not appreciated the material made available properly and reasoning of the trial Court was quite arbitrary, perverse and capricious, Appellate Court was justified in interfering with such an order. Thus he submits that order passed by the Appellate Court as a valid one and plaintiff-petitioner has not shown any infirmity in the said order. For these reasons, he submits that C.R.Ps. be dismissed.
9. After hearing both sides and on perusing Judgment and order of the trial Court and Appellate Court and other records and cautious of the principles and the points to be taken into consideration including the effect of provisions of Karnataka Minor Mineral Concession Rules of 1969, I am of the view that the order passed by the trial Court a just one and the order passed by the Appellate Court a in incorrect one for the following reasons:-
(1) The first principle which deserves to be considered is in matter relating to granting of injunction, one has to prove prima facie lawful possession and not a litigious possession.
Here it is not in dispute the original lessee is the plaintiff. Regarding right to quarry, paramount right vests with the State. There is no provision in KMMCR, 1969 authorising the lessee to sublease it to a third person. On the other hand, conditions at the time of lease will be that in case of violation of any one of the conditions of the lease such a lease deserves to be determined. Both Rules and the conditions imposed to the lease are silent about the said lease. Hence, any emphasis by the defendant on his so called lease deed dated 15-3-1989 cannot be considered as a valid one. If that is so, it cannot be said that he derived any right or interest over the quarry in question.
10. Apart from this, even to construe the intention between the plaintiff and the defendant was to treat the agreement dated 15-3-1989 as one of lease deed cannot be accepted in view of absence of one of the important ingredients, namely non-fixation of price – rent. Added to this, the very genuineness of the document dated 15-3-1989 has been disputed by the plaintiff by giving an explanation in her own way. Whether it is correct or otherwise has to be decided only when regular evidence is led in. For the present, it is sufficient say that no importance can be attached to say that the defendant became a lessee pursuant to document dated 15-3-1989. Further non-denial of signature to the document dated 15-3-1989 by daughter of the plaintiff or filing affidavit by scribe or attestor to document dated 15-3-1989 supporting the case of the defendant, in the eye of law, will not improve the position of the defendant. It is also to be seen that it is not as if the defendant a stranger to the plaintiff or to the work she had entrusted. She being a lady had entrusted the work of quarrying and attending to other work at Governmental level to the defendant by executing Special Power of Attorney dated 13-2-1989 as she was dissatisfied by the way in which defendant attended to her desire or directions, she cancelled the same on 12-2-1990. In between, it is not in dispute, he was attending the work as said earlier. Thus he had gained the confidence of plaintiff. As such he was in possession of the quarrying area for and on behalf of the plaintiff.
11. For the reasons given above, it has to be said as, on the date of filing of the suit, the defendant was not prima facie in lawful possession of the area in question. Further possession, if any of the defendant was not lawful. On the other hand, it was the plaintiff who was in prima facie possession and her possession was a lawful one because she was a Lessee pursuant to order dated 13-9-1986.
12. The second point to be considered now is balance of convenience. Here it has to be taken into consideration the nature of lease and duration. As per the lease created by the Government, it was for a period of 5 years with effect from 13-9-1986. If the plaintiff is restrained in not quarrying the granite, great hardship will be caused. On the other hand, there will not be any hardship to the defendant because neither he is a lessee directly in touch with the State nor there is any thing to show that he invested any sums to quarry the granite. Thus balance of convenience is also in favour of the plaintiff,
13. Regarding hardship and injury since it is said balance of convenience is in favour of the plaintiff, it can be conveniently said in view of the peculiar circumstances of the case that if injunction is not granted in favour of the plaintiff, she would be put to great hardship and injury. Tomorrow there may be even threat of either determining her lease or renewing it.
14. Regarding the contention that who has made out an arguable case, in view of the circumstances explained above and the law laid down, it has to be held that it is the plaintiff who has made out an arguable case. Both Karnataka Minor Mineral Concession Rules, 1969, law on the points while granting injunction and the scope of Appellate Courts including the conduct of the defendant’s earlier acting as Power of Attorney and subsequently coming with a plea of lease are in favour of the plaintiff and not in favour of the defendant.
15. Now it has to be seen whether Appellate Court was justified in interfering with the order passed by the trial Court. No doubt Appellate Court can interfere in the orders of the trial Court provided it is shown that the material made available by either of the parties to the proceedings and the findings arrived at are contrary to the pleadings of the parties or their complete misdirection or non-considering any of the material. But at the same time a restraint has been put on the Appellate Courts to interfere in the discretionary order passed by the trial Court saying that it is quite unjust, unsafe and improper on the part of the Appellate Court to interfere in the orders passed by the trial Court unless it is shown orders passed by the trial Court are in any way arbitrary, perverse or capricious. Even when it is shown to a little extent orders passed by the trial Court are arbitrary, perverse or capricious, still the Appellate Court shall put brake in exercise of its power by holding that merely because it is possible for the Appellate Court, on the material made available to form an opinion over the one formed by the trial Court, is not sufficient. If the Judgment and order passed by the Appellate Court as compared to the principles laid down by this Court and also the Supreme Court in number of Decisions, it has to be held that first Appellate Court attempted to decide the appeals thinking as if for the first time it is deciding the applications, ignoring the principles laid down. Hence, it has to be said that approach of the first Appellate Court in reversing the order passed by the trial Court which rightly did after exercising its discretionary power and arrived at a correct and just conclusion, as incorrect and deserves to be set aside. While parting with the case, it has to be said that how ignorance and innocence of these poor and illiterate lessees will be exploited by the rich contractors who are well versed in these quarry works, thus frustrating the very object for which State created and granted leases to these poor persons.
16. For the reasons stated above, common Judgment and order passed by the Appellate Court in M.A. Nos. 13 and 20 of 1990 are set aside. C.R.Ps. are allowed. Order passed by the trial Court on I.A.I made absolute. Trial Court is directed to dispose of the suit within six months from this date. It is also made clear trial Court shall decide the suit on merits uninfluenced by the observations either in this order or in the orders of Appellate Court while disposing of Appeal Nos. 13 and 20 of 1990.
17. C.R.Ps. are allowed imposing costs of Rs. 500/- in each petition, payable to the petitioner.