Shaikh Ali Hossain and Ors. v. Sh. Showkat Ali and Anr.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 18th May, 2005 passed by a learned Judge of the High Court at Calcutta in C.O. No.3868 of 2004. By the impugned order, the learned Judge, in the exercise of his supervisory power under Article 227 of the Constitution, had set aside the concurrent orders of the courts below which had rejected the application for injunction filed by the plaintiffs-respondents and directed the parties to maintain status quo with regard to the suit properties which have been fully described in Schedules ‘A’ and ‘B’ to the plaint as follows: Schedule A “All that piece and parcel of land measuring 6.[5] decimal together with structures standing thereon in Dag No.129 Khatian No.943, R.S. Plot No.233 being the portion of premises No.108A, Dr. Girindra Sekhar Basu Road, Calcutta-700 039, Police Station Kasba, District South 24- Parganas..... Schedule B All that the premises No.108, Dr. Girindra Sekhar Basu Road, Calcutta-700 039 Police Station Kasba, being land with structure lying and situate at the South Western side under Dag No.129, Khatian No.943, Mouza Kasba, District South 24-Parganas.....”

3. The respondents as plaintiffs instituted the suit in the First Court of the Civil Judge, Junior Division, Alipore, South 24 Parganas, West Bengal against the appellants, inter alia, praying for a decree for declaration that the appellants had no right, title and interest in the suit properties and for permanent injunction. In the aforesaid suit, the respondents filed an application for injunction restraining the defendants/appellants from disturbing, alienating, dealing, encroaching and/or interfering with the possession of the respondents in respect of the suit properties (in short “the application for injunction”) in which it was, inter alia, alleged that in view of an earlier order of this Court in SLP [C] No.4263-65 of 1992, the respondents were entitled to an order of injunction as prayed for. Both the courts below on the interpretation of the order of this court rejected the application for injunction of the respondents. Feeling aggrieved, the respondents moved an application before the High Court under Article 227 of the Constitution which was allowed by the impugned order. By the impugned order, the High Court had set aside the concurrent orders of the courts below rejecting the application for injunction and directed the parties to maintain status quo in respect of the suit properties till the disposal of the suit. Aggrieved by this order, the instant special leave petition has been filed in respect of which leave has already been granted.

4. Having heard the learned counsel appearing for the parties and after examining the entire materials on record, including the order passed by the High Court, the courts below as well as the order passed by this court in SLP [C] No.4263-65 of 1992, we find that the High Court as well as the courts below disposed of the application for injunction primarily on the interpretation given to the aforesaid order of this court in SLP [C] No.4263-65 of 1992. As the only question involved in this appeal is whether the High Court was justified in setting aside the concurrent orders of the courts below rejecting the application for injunction under Article 227 of the Constitution on a different interpretation given to the order of this court in SLP [C] No.4263-65 of 1992, we propose to narrate the admitted facts in respect of which no dispute has been raised by the learned counsel for the parties and which would be required to decide the abovementioned question posed before us.

5. The predecessor-in-interest of the respondents namely Ujir Ali Mistry and Bahar Ali Mistry were originally the owners of Dag No.129 under Khatian No.943 of Mouza Kasba being holding No.108, Dr. Girindra Sekhar Basu Road, Calcutta comprising 37 decimals of land. The predecessor-in-interest of the respondents sold 33 decimals of land out of 37 decimals to Late Shaikh Anwar Hossain (“S.A. Hossain” for short), the predecessor-in-interest of the appellants 1 to 7, by a registered deed of sale dated 27th February, 1948. The 33 decimals, as aforesaid, was identified as holding No.108A, Dr. Girindra Sekhar Basu Road, Calcutta 700

039. Subsequently, disputes and differences cropped up between the predecessor-in-interest of the parties with respect to the validity of the sale deed and title and possession of the respective parties in connection with the premises No.108A, Dr. Girindra Sekhar Basu Road, Calcutta. Three suits were filed by the predecessor-ininterest of the parties against each other concerning the aforesaid 33 decimals of land. However, the dispute that had arisen in respect of the aforesaid 33 decimals was resolved by this court by an order passed in SLP [C] No.4263-65 of 1992 [Satkari Bibi @ Mata Bibi and Ors. Vs. Sk. Anwar Hossain and Ors.] in the following manner: “Substitution allowed. Leave granted. We are happy to note that the parties have adopted a very fair stand in this Court. Admittedly the first respondent had purchased 33 decimals of land from their uncles Ujir Ali Mistri and Bahar Ali Mistri. It is also not in dispute that the appellants are in possession of 6.[5] decimals of land. The respondents have fairly agreed that the appellants will be owners and to remain in possession and enjoyment in perpetuity of 6.[5] decimals of land. The respondent shall not interfere with the aforesaid land. Equally the appellant shall not interfere with the possession and enjoyment of rest of the land. This decision is in modification of the decree of the Trial Court in Suit No.67/71, Title Suit No.189/71 and 421/71. The decree of the Trial Court is accordingly modified. Both the parties are directed not to interfere with the possession and enjoyment of respective lands. The appeals are disposed of accordingly. No costs.”

6. The High Court as well as the courts below considered the aforesaid order of this court and interpreted the same in the manner indicated in their respective orders and the courts below, in so doing, rejected the application for injunction whereas the High Court directed for maintenance of status quo in respect of the suit properties till the disposal of the suit.

7. While rejecting the application for injunction on the interpretation of the order of this Court in SLP [C] No.4263-65 of 1992, the trial court recorded the following prima facie findings: “……..The plaintiff’s main contention in this suit is that the 6.[5] decimal land remains in both A and B Schedule property as there is no demarcation by mets and bounds. I have gone through the solemn order of the Hon’ble Supreme Court, India in SLP 4263- 65/92 wherefrom I find that the appellants are in possession of 6.[5] decimal land and the respondents are in possession of 33 decimal land. The respondent shall not interfere in the appellants land and the appellants shall not interfere in the respondents land. Therefore, from the aforesaid judgment it is crystal clear that the plaintiffs and the defendants portions have been settled in perpetuity by order of the Hon’ble Court. The possession of the respective parties have been settled by their own conduct in compromise. Therefore, I think that the plaintiffs cannot say that their land measuring 6.[5] decimal remains in both A and B Schedule land.”

8. It may also be noted that the trial court, while rejecting the application for injunction, also came to a conclusion that the respondents should file a suit for partition as they had made out a case to the effect that they had interest in both the schedule properties.

9. In appeal, the Appellate Court, while affirming the order of the trial court, made the following findings: “Having considered the submissions made by the learned counsel on both sides and also after perusal of the order passed by the learned Trial Judge in this regard, we come to find that admittedly, the plaintiffs are in possession of 6.[5] decimals of land and in view of the order of the Hon’ble Supreme Court the parties are also injuncted from interfering with each other’s possession in their respective lands. Under such circumstances, the balance of convenience and inconveniences does not favour the plaintiffs in any manner whatsoever. Admittedly, they own 6.[5] decimals of land and there is no material to show that the defendants have threatened to invade their right or possession in respect of the said 6.[5] decimals of land. There is no prima facie material to support the allegation of the plaintiffs that they would suffer irreparable loss and injury if no order of injunction was passed. Even if the plaintiffs are assumed to have triable issues to go to trial, then also it is not established from the materials produced that the plaintiffs, were entitled to get an order of injunction as prayed for, and therefore, I fail to agree with the submission made by the learned advocate appearing for the plaintiffs/appellants, that there has been an error by the learned trial judge in refusing the prayer for temporary injunction.”

10. As noted hereinabove, by the impugned order, the High Court, by taking into consideration the order of this court passed in SLP [C] No.4263-65 of 1992 and thereafter interpreting the said order in the manner it had done, directed the parties to maintain status quo after setting aside the orders of the courts below.

11. It is true that the High Court, while exercising its supervisory power under Article 227 of the Constitution will not interfere or set aside the orders of the courts below on a question of fact or law until and unless it appears to it that such decisions of the courts below were, on the face of it, perverse and made on erroneous assumptions of law or that they were wrong which was apparent on the face of record. In Mohd. Shafi Vs. Addl. D & Sessions Judge [AIR 1977 SC 836], this court, however, pointed out as to when would the High Court be entitled to interfere even with the concurrent findings of fact or law. It was held that when interpretation of a provision of an act is involved, which is admittedly a question of law, it would be open to the High Court to interpret the said provision of the act and come to a different conclusion than the one arrived at by the courts below, if it finds that the orders of the courts below were apparently erroneous and de hors the legal position and accordingly, interference with the concurrent orders of the courts below was held to be proper and justified. Therefore, it is equally well settled that the High Court may interfere with the concurrent orders of the courts below if it finds that in reaching their conclusion, the courts below had proceeded on a wrong interpretation of the provisions of a particular act or statute. In this connection, we may readily rely on the observations of this Court in the case of Mohd. Shafi [supra], which are as follows: “The High Court seemed to take the view that the finding of the Prescribed Authority that Explanation

(iv) was applicable in the present case was a finding of fact and since this finding of fact was affirmed by the District Court in appeal, it was not competent to the High Court to interfere with it in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution and that was presumably the reason why the High Court accepted the hypothesis that the case was covered by Explanation (iv). But this view of the High Court is plainly erroneous because the question whether Explanation (iv) is attracted in the present case would depend on the applicability to the facts of the correct interpretation of the Explanation and it would, therefore, clearly be a mixed question of law and fact, and if the High Court found that in reaching its conclusion on this question the District Court proceeded on a wrong interpretation of the Explanation, the High Court could certainly correct the error and set aside the conclusion reached by the District Court. We must, therefore, first consider what is the proper construction of the language employed in Explanation (iv).”

12. Keeping the aforesaid principles laid down in the abovementioned decision of this court in mind, which of course was based on the interpretation of a provision of an act, we hold that the High Court would, similarly, be entitled to interfere with the concurrent orders of the courts below on the interpretation of a judicial order, either of the High Court or of this court. It is also, now, an established position in law that if the High Court finds that the interpretation of an order of this court given by the courts below was either wrong on the face of record or even when two interpretations were possible and the interpretation given by the High Court was more plausible in nature, this court in the exercise of its discretionary power under Article 136 of the Constitution may not be inclined to interfere with the order of the High Court, even if the High Court, by its order, had set aside the concurrent orders of the courts below. The learned counsel appearing on behalf of the appellants vehemently argued before us that even if two possible interpretations of the order of this court were available, this court would be entitled to interfere with the order of the High Court on the footing that the High Court had gone wrong by interfering with the concurrent orders of the courts below. We are unable to accept this contention of the learned counsel for the appellants. As observed earlier, this court in the case of Mohd. Shafi [supra], has held that the High Court would be entitled to interfere with the concurrent orders of the courts below if it finds that the interpretation given to a provision of an act or statute by the courts below was wrong and the view taken by the High Court was more plausible than the views expressed by the courts below. This court, while considering the scope of interference under Article 227 of the Constitution has also held that when the orders of the courts below are patently erroneous and de hors the factual and legal position on record, the High Court is entitled to interfere with such an order in the exercise of its supervisory power under Article 227 of the Constitution. (See Savita Chemicals (P) Ltd. Vs. Dyes & Chemical Worker’s Union and another [(1999) 2 SCC 143]. In Union of India & ors. Vs. Gangadhar Narsingdas Aggarwal and another [(1997) 10 SCC 305], this court has reiterated the principle that even if two views are possible, the view taken by the High Court being a plausible one, it would not call for intervention by this court under Article 136 of the Constitution. Therefore, it cannot be said that the High Court, under Article 226 or 227 of the Constitution, would not at all be entitled to interfere with the concurrent orders of the courts below, more so when the High Court finds that the courts below had proceeded on a wrong interpretation or that the orders of the courts below were incorrect on the face of record and accordingly, if the High Court replaces its own view on the basis of its interpretation of the order of this court, this court would not interfere with the order of the High Court, if the view taken by the High Court is a plausible one, in the exercise of discretionary power under Article 136 of the Constitution. It is also well settled that if the order of the High Court rendered substantial justice to the parties or did not prejudice either of the parties, such order need not be interfered with under Article 136 of the Constitution. In Yallawwa Vs. Shantavva [1997 (11) SCC 159], this court refused to interfere with the order of the High Court when it was found that substantial justice was done to the parties by the same. There is another aspect of this matter. If this court, while exercising its power under Article 136 of the Constitution, finds that there is nothing illegal in the reasoning of the order of the High Court and the conclusions arrived at by it appear to be well merited and quite in accordance with the rule of interpretation, there is no reason to set aside the said order of the High Court, even though, by the said order, the High Court had set aside the concurrent orders of the courts below in the exercise of its supervisory power under Article 227 of the Constitution. In Jai Mangal Oraon Vs. Mira Nayak (Smt) and others [(2000) 5 SCC 141], this court reiterated the same principle, as noted hereinabove, and laid down that when there was nothing illegal and wrong in the reasoning and conclusions arrived at by the High Court and the same appeared to be well merited and in accordance with the interpretation of statutory provisions, this court would not interfere with the order of the High Court under Article 136 of the Constitution. It is equally well settled that if this court is of the view that the law declared by the High Court was wrong, even then, in the exercise of its power under Article 136 of the Constitution, this court, in its discretion, may refrain from interfering with the order of the High Court if special circumstances are not shown to exist and the justice of the case on facts does not require interference. In Taherakhatoon (D) By Lrs. Vs. Salambin Mohammad [(1992) 2 SCC 635], this court at paragraph 20 has observed as follows: “In view of the above decisions, even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error-still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion......”

13. From the aforesaid discussion and applying the principles deduced from the decisions referred to hereinabove, we, therefore, come to the conclusion that this court would not interfere with the order of the High Court under Article 136 of the Constitution if the following conditions exist: a. Where two views are possible and the view taken by the High Court is a plausible one; b. Where the order of the High Court rendered substantial justice to the parties or did not prejudice either of the parties; c. Where there is nothing illegal in the reasoning of the order of the High Court and the conclusions arrived at by it appear to be well merited and quite in accordance with the rule of interpretation; d. Where the order of the High Court is based on the ground that the concurrent orders of the courts below were wrong or incorrect on the face of record. e. Where no special circumstance is shown to exist and the justice of the case on facts does not require interference.