IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
S.A. No. 238 of 2000
Decided On: 14.09.2017
Shantabai and Ors.
Hon’ble Judges/Coram:A.S. Chandurkar
A.S. Chandurkar, J.
1. This appeal filed under section 100 of the Civil Procedure Code, 1908 is by the original defendant No. 1 who is aggrieved by the decree passed by the first Appellate Court decreeing the suit filed by the respondent No. 1 herein. The respondent No. 1 is the original plaintiff. It is her case that she is the owner of the Plot No. 05/33 situated at Gondia. This plot was purchased by her along with her son on 4-8-1983. Towards the western side of that plot, the house of defendant No. 1 on plot No. 05/18 was situated. There was a service-lane between both the houses admeasuring about 348 feet. According to the plaintiff, this service lane was in existence since long. The defendant No. 1 had constructed a wall at the entrance of the service-lane without obtaining any permission of the Municipal Council, hence the Municipal Council removed the said wall. The defendant No. 1 reconstructed the said wall after obtaining the permission in a illegal manner. The plaintiff therefore filed a suit for mandatory injunction that the defendant be directed to remove the said wall and keep the service-lane open as an approach way.
2. The defendant No. 1 filed his written statement at Exh. 43. It was pleaded that the defendant No. 1 had purchased a property on 4-8-1983 from the said vendor as that of the plaintiff. It was then pleaded that on account of directions issued by the defendant No. 2, the wall had been earlier removed. The same was again raised on the basis of fresh sanction granted by the defendant No. 2 on 4-9-1989.
Defendant No. 2 filed its written statement at Exh. 46. It was stated initially that the permission was granted on 23-3-1986 for constructing the wall. As the permission thereafter was revoked, the said wall was removed. Subsequently, permission was again granted on 4-9-1989 and on that basis, the wall was reconstructed.
3. The parties led evidence before the trial Court. It was held that the plaintiff had failed to prove the existence of the service-lane since 1944. It was further held that it was not proved that this wall had been illegally constructed. The suit was therefore dismissed. The Appellate Court held that though it was the case of defendant No. 1 that permission had been granted for constructing the wall, said order was not produced. An adverse inference was therefore drawn against the defendant No. 1. On that basis, the Appellate Court allowed the appeal and decreed the suit. Being aggrieved, this appeal has been filed.
4. Following substantial questions of law were framed while admitting the appeal.
“i) Whether non-production of a sanction order which according to defendant No. 1 was granted by defendant No. 2 can be used as a circumstance to draw adverse inference against the defendant No. 1?
ii) Whether the suit as framed and filed by the Respondent No. 1 for mandatory injunction is maintainable especially when there is no challenge to the permission granted by the Municipal Council to the Appellant for construction of the wall?
iii) Whether in absence of any proof any finding of fact can be recorded? If no, whether the Lower Appellate Court was justified in holding the existence of a service lane since 1944, when no evidence either oral or documentary has been adduced by the Respondent No. 1 on record to prove the said fact?
iv) Whether a fact requiring documentary proof can be said to have been legally proved, when only oral evidence is adduced? If no, whether the Lower Appellate Court has erred in relying upon the hearsay testimony of the plaintiff and that of PW 2 to hold the existence of service lane?”
5. Shri J.T. Gilda, learned counsel for the appellant submitted that the Appellate Court committed an error of drawing an adverse inference against the defendant No. 1 for not producing the order of sanction granting permission to construct the wall dated 4-9-1989. It was submitted that in the plaint it had been pleaded in paragraphs 4 and 5 that such permission was granted to the defendant No. 1 but the same was illegal. According to him when it was the case of the plaintiff herself that such permission was granted, there was no question of drawing any adverse inference against the defendant No. 1 for non-production of said sanction order. In fact, admission of existence of such order itself was sufficient. He submitted that despite the fact that the plaintiff was aware about the existence of such order, no challenge was raised to the same. The only relief sought was the relief mandatory injunction calling upon the defendant No. 1 to remove the said wall. This relief was sought without any legal basis and in view of provisions of section 34 of Special Relief Act, 1963, it was not permissible to seek such relief without challenging the order dated 4-9-1989. It was necessary for the plaintiff to have challenged the order of sanction as it was the stand of both the defendants that the wall in question was erected on the basis of said order of sanction. It was then submitted that the plaint map was not duly proved as required by section 83 of the Evidence Act. Without this map being duly proved, no finding could have been recorded that such lane was in existence since 1944. He therefore submitted that the trial Court rightly dismissed the suit but this judgment was reversed by the Appellate Court without considering the aforesaid aspects.
In support of his submissions, the learned counsel relying on the following decisions:-
a) Mahant Purshottam Dass and others v. Har Narain and another, Indian Law Reports (1978) I Delhi, 458, b) D. Ramanath Gupta by his Power of Attorney Holder G.R. Krishna Murthy v. S. Razaack, Bangalore-I, Indian Law Reports (Karnataka) Series XXXII 579, c) Justiniano Antao and others v. Bernadette B. Pereira, reported in MANU/SC/0995/2004 : (2005) 1 SCC 471, d) State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) and others, reported in MANU/SC/0240/1996 : (1996) 1 SCC 435, e) Union of India v. Ibrahim Uddin and another, reported in MANU/SC/0561/2012 : (2012) 8 SCC 148, f) Damodaran v. K. Plantations Co. Ltd., MANU/KE/0121/1959 : AIR 1959 Kerala 358.
6. There is no appearance on behalf of respondent No. 1 despite due service of notice. The appeal was heard on 11-9-2017 and 12-9-2017. There was no appearance on behalf of respondent No. 1 on the said dates. Today also, there is no appearance on behalf of respondent No. 1. With the assistance of the learned counsel for the appellant, I have perused the records. I have given due consideration to his submissions.
7. As to substantial question of law No. (i) :- Perusal of the plaint indicates that according to plaintiff, the service lane as indicated in the plaint map was in existence since 1944. A wall was constructed in the year 1986 but this was removed on 3-9-1989 due to the order passed by defendant No. 2. It is then pleaded that defendant No. 1 again managed to get permission for erecting the wall. This permission was obtained in an illegal manner. On the basis of said order, the wall was again constructed. In the plaint, relief of mandatory injunction against the defendants has been sought for removing the said wall and keeping the service-lane open. The defendant No. 1 specifically pleaded that the wall was constructed on the basis of permission granted by defendant No. 2 on 4-9-1989. The defendant No. 2 did not dispute this fact and pleaded in para No. 5 that such permission was in fact granted.
8. As can be seen from the pleadings, the plaintiff in the plaint had referred to the sanction dated 4-9-1989. This order of sanction was admitted by both the defendants and was set up as a justification for erection of the wall. Once it was an admitted position on record that there existed an order of sanction dated 4-9-1989, there was no question of drawing any adverse inference against the defendant No. 1 for not producing this order. Failure to produce a document, existence of which is not in dispute can hardly be a matter for drawing adverse inference. In the matter of drawing of adverse inference, the Hon’ble Supreme Court in case of Ibrahim Uddin and another (supra), has held that the aspect of drawing an adverse inference is required to be decided by the Court after considering the pleadings of the parties and the evidence on record. It is to be considered as to whether the other side could have sought for production of such document. Presumption as to adverse inference is permissible if the other evidence is shown to the contrary. In the present case, the existence of the sanction order dated 4-9-1989 is not in dispute. The plaintiff did not give any notice to the defendants to produce this order of sanction under provisions of Order XI of the Code. The defendant No. 1 was never called upon to produce this document so as to draw adverse inference against him for its non-production. It being an admitted position on record that such sanction had been granted, the Appellate Court erred in drawing adverse inference against the defendant No. 1 for its non-production. The substantial question of law No. (i) stands answered accordingly.
9. As to substantial question of law No. (ii) :- Once it is found that the order granting sanction to erect the wall on 4-9-1989 could not be excluded from consideration by drawing adverse inference, said order would have to be given its full legal effect. According to the defendants, the wall in question was erected on the basis of this sanction order. There is admittedly no challenge to this order. The relief sought is a decree for mandatory injunction for removing the said wall. The order dated 4-9-1989 thus is an obstacle in the way of the plaintiff in claiming mandatory injunction for its removal in as much as unless the said order is set aside, no decree of mandatory injunction could be passed.
In Harchand Singh Gujjar Singh v. Dalip Singh Pritam Singh, MANU/PH/0066/1965 : AIR 1965 Punjab 468 while considering whether there is a legal necessity for the plaintiff to get a declaration of his right before he can get an injunction, it was held that when there is some legal obstacle which has to be first removed before such relief can be granted, a prayer for a declaration that has the effect of removing that obstacle is necessary. This decision has been approved by the Full Bench of the Delhi High Court in Mahant Purshottam Dass and others (supra) relied upon by the learned counsel for the appellant. Similarly, in D. Ramanath Gupta (supra), it was held that in a suit for injunction based on a prescriptive easementary right, the plaintiff should seek a declaration from the Court that he has so acquired the prescriptive right of easement.
It is thus clear that it was incumbent for the plaintiff to have sought a declaration that the order of sanction dated 4-9-1989 was illegal and thus he was entitled for a mandatory injunction after setting aside the same. In absence of such declaration being sought, the suit for mandatory injunction simpliciter could not have been decreed without setting aside the order of sanction dated 4-9-1989. The trial Court rightly considered this aspect of the matter but the Appellate Court committed an error in holding otherwise. Substantial question of law No. (ii) is answered accordingly.
10. In view of the answer given to substantial question of law No. (ii), it is not necessary to answer the other substantial questions of law in as much as the suit for mandatory injunction simpliciter has been found to be not maintainable in the form in which it was filed. The answer to substantial questions of law Nos. (iii) and (iv) is rendered academic. As a result of aforesaid discussion, I find that the judgment of the Appellate Court cannot be sustained. Hence, the following order is passed :-
1) The judgment dated 2-9-2000 in R.C.A. No. 90/1994 is quashed and set aside. The judgment of trial Court in R.C.S. No. 337/1989 dated 21-10-1994 stands restored.
2) The second appeal is allowed in the aforesaid terms with no order as to cost.