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1979 DIGILAW 164 (ALL)

Bharat Bhushan Jain v. B. M. Shah

1979-02-12

H.N.SETH, N.N.MITHAL

body1979
JUDGMENT : H.N. Seth, J. This first appeal from order by Defendants is directed against the order dated 21-9-1978 passed by Civil Judge, Jhansi in suit No. 39 of 1978 staying till further orders, further proceedings pending before the Prescribed Authority in case No. 86 of 1978 Bharat Bhushan v. B.M. Shah. 2. Necessary facts which are relevant for deciding the controversy raised in the present appeal briefly stated are that Sri B.M. Shah is a partner in the firm M/s. B.M. Shah. He filed suit No. 39 of 1978 in the court of Civil Judge, Jhansi claiming specific performance of an agreement dated 9-7-1973, according to which the Defendants had Undertaken to lease out the building mentioned in the agreement to M/s. B.M. Shah the Plaintiff. According to the Plaintiff, originally Sri Manno Lal Jain and Smt. Moonga Devi the predecessors-in-interest and the Defendants were the landlords of the building known as Minerva Cinema building which they had let out to one K.M. Modi, some time before the year 1952. Subsequently, there was some litigation between the parties in which a compromise was arrived at, as a result of which the Plaintiff became the tenant of the building under a lease deed which was due to expire on 31-7-1973. Before expiry of the lease, the parties entered into a fresh agreement on 1-7-1973, according to which the Defendants were to execute a fresh lease in favour of the Plaintiff for a period of 20 years on terms and conditions mentioned therein. As, however, at that time an embargo had been placed on registration of lease deeds, both the parties undertook to execute the lease deed and to get it registered within three months of the reopening of registration or obtaining permission from the District Magistrate, Jhansi. Accordingly, the Plaintiff, as agreed between the parties, continued to run his cinema business in the building even after 31-7-1973 even though no fresh lease deed as contemplated by the agreement dated 9-7-1973 had been executed. After ban on registration of lease deeds was lifted by the State Government, the Plaintiff gave a notice to the Defendants, on 4-6-1977 requiring them to take necessary steps to execute and to get the lease deed registered as was stipulated in the agreement dated 9-7-1973. After ban on registration of lease deeds was lifted by the State Government, the Plaintiff gave a notice to the Defendants, on 4-6-1977 requiring them to take necessary steps to execute and to get the lease deed registered as was stipulated in the agreement dated 9-7-1973. He also forwarded a draft of the lease deed which he wanted to be executed by the Defendants vide his letter dated 20-6-1977. However, on the same day, i.e. 20-6-77 one Sri R.K. Srivastava, Advocate, acting on behalf of the Defendants gave a notice to the Plaintiff stating that the Defendants were not prepared to let out the building to the Plaintiff and, that the Plaintiff should vacate the premises failing which legal proceedings for his ejectment would be taken. The Defendants followed up the aforesaid notice by filing an application u/s 21 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 before the Prescribed Authority on 4-11-1977 in which they prayed that the premises in question be released inasmuch as they bonafide needed it for running the cinema business themselves. Plaintiff then filed suit No. 39 of 1978 on 20-7-1978 for a decree for specific performance of the agreement dated 9-7-1973. On 20-7-1978 he also moved an application purporting to be one under Order 39 Rules 1 and 2 and Section 151 of the CPC and prayed that the Defendants be restrained from prosecuting the proceedings in case No. 86 of 1977 pending before the Prescribed Authority Jhansi during the pendency of the suit in the civil court. 3. The trial court vide its order dated 25-9-1978 repelled the objections raised by the Defendants and directed that the proceedings in case No. 86 of 1977 Bharat Bhushcm Jain v. B.M. Shah-pending before the Prescribed Authority, Jhansi should remain stayed until further orders. 4. Being aggrieved, the Defendants have come up in appeal before us. Learned Counsel appearing for them submitted that the order under appeal is vitiated and deserves to be set aside on following grounds: 1. In view of the provisions contained in Section 41(b) of the Specific Relief Act, 1973, no injunction result of which is to restrain the Defendants from prosecuting proceedings in the court” of the Prescribed Authority, which is not a court subordinate to the court of the Civil Judge can be granted. 2. In view of the provisions contained in Section 41(b) of the Specific Relief Act, 1973, no injunction result of which is to restrain the Defendants from prosecuting proceedings in the court” of the Prescribed Authority, which is not a court subordinate to the court of the Civil Judge can be granted. 2. The civil court has no jurisdiction to grant an injunction restraining a statutory authority from performing its function and 3. As in the instant case the Plaintiff sought specific performance of an agreement which on the face of it contravened the provisions of Section 11 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and was void. In the circumstances the Plaintiff has no prima facie case and the court below erred in making the impugned order. 5. In so far as the first submission made by the learned Counsel for the Appellants is concerned the case of the Respondents is that the Prescribed Authority appointed under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is not a court within the meaning of Section 41(b) of the Specific Relief Act and at any rate the provisions contained in section of the Act have no relevance to an application like the one made by the Respondents for the grant of temporary injunction. 6. Part III of the Specific Relief Act which consists of Chapters VII (36 and 37) and VIII (38 to 44) deals with preventive relief. Section 36 lays down that preventive relief is granted at the discretion of the court by injunction temporary or parpetual. Section 37 of the Act then defines temporary and perpetual injunction thus: 1. Temporary injunctions are such as are to continue until a specified time or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908). 2. A perpetual injunction can only be granted by the decree made at the bearing and upon the merits of the suit the Defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which be contrary to the rights of the Plaintiff. 7. 2. A perpetual injunction can only be granted by the decree made at the bearing and upon the merits of the suit the Defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which be contrary to the rights of the Plaintiff. 7. It is not disputed that the application filed by the Respondents by which the order under appeal had been made was one for the grant of temporary injunction as contemplated by Section 37(1) of the Specific Relief Act, and that it was not an application for the grant of perpetual injunction as defined in (2) of Section 37. 8. After laying down in (1) of Section 37 that the prayer for temporary injunction is regulated by Code of Civil Procedure, the Specific Relief Act, in Chapter VIII which consists of Section 38 to 44, made provisions regulating the grant of perpetual injunctions and in that connection Section 41(b) made the following provisions: Injunction when refused.-An injunction cannot be granted: (a) .... (b) .... to restrain any person from instituting or prosecuting any proceedings in a court not subordinate to that from which the injunction is sought: (c) .... (j) .... 9. It is evident that Section 41(b) of Specific Relief Act has nothing to do with the grant of temporary injunction as defined in Section 37(1) of the Act which is regulated by the provisions contained in the Code of Civil Procedure. In this view of the matter it is not necessary for us to go into the controversy as to whether or not the Prescribed Authority appointed under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is, or is not, a court as contemplated in Section 41(b) of the Specific Relief Act, Suffice it to say that the validity of the impugned order is to be judged not on the touch-stone of the provisions contained in Clause (b) of Section 41 of the Specific Relief Act but it has to be tested in the light of the provisions contained in the Code of Civil Procedure. In this view of the matter, the first submission made by the learned Counsel for the Appellants cannot be countenanced. 10. In this view of the matter, the first submission made by the learned Counsel for the Appellants cannot be countenanced. 10. Learned Counsel for the Appellants then contended that even if the grant of temporary injunction is to be covered by the provisions contained in CPC the provisions regulating such injunction are to be found in Rules 1 and 2 of Order 39 of the Code in the conditions for the grant of temporary injunction as laid down in these two Rules did not exist in the present case, the grant of order under appeal cannot be sustained. 11. It is true that Rules 1 and 2 of Order 39 of the CPC contain the provisions relating to the grant of temporary injunctions. But there is also Section 151 of the Code which lays down that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse for the process of the court. In the case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 it has been held that the civil court has inherent power u/s 151 CPC to issue interim injunctions even in cases which are not mentioned in Rules 1 and 2 of Order 39 if the court considers it necessary to do so for securing the ends of justice or to prevent the abuse of the process of the court. 12. Learned Counsel for the Appellants then urged that in Manohar Lal's case (supra) the Supreme Court after holding that it was open to a civil court to issue an injunction u/s 151 of the Code of Civil Procedure, went on to making the following observations appearing in paragraph 38 of the judgment as reported: It is admitted that the Indore Court could not have issued an injunction or direction on the Asansol court, not to proceed with the suit. The effect of issuing an injunction to the Plaintiff of the suit at Asansol, indirectly achieves the object which an injunction to the court would have done. A court ought not to achieve indirectly what it cannot do directly.... The effect of issuing an injunction to the Plaintiff of the suit at Asansol, indirectly achieves the object which an injunction to the court would have done. A court ought not to achieve indirectly what it cannot do directly.... According to him, these observations indicate that in a case where the proceedings are pending before the duly constituted authority, the civil court cannot, and it should not in exercise of its power u/s 151 CPC injunct either the authority or the party from carrying on or prosecuting the proceedings pending before the authority. In the instant case, the proceedings in case No. 86 of 1977 are pending before the Prescribed Authority which while dealing with an application u/s 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 functions as court. In the circumstances it was not open to the civil court to issue an injunction to that authority restraining it from exercising the jurisdiction conferred upon it by law. Further as observed by the Supreme Court, the Appellant could not be injuncted from prosecuting those proceedings inasmuch as the effect of granting such an injunction order would be to achieve indirectly what the court could not do directly. A careful perusal of the Supreme Court's decision in Manohar Lal's case shows that it made observations relied upon by the Appellants in connection with the special facts and circumstances of the case before it. In that case two suits had been filed for the alleged breach of contract. Whereas the first suit was filed at Asansol the second suit was filed at Indore. Both the courts at Asansol and Indore were courts of plenary and coordinate jurisdiction fully entitled to entertain the suits and then to decide about their own respective jurisdiction and to deal with the same in an appropriate manner. An application was moved in the subsequently instituted suit at Indore containing a prayer that the Plaintiff of the suit which had been instituted earlier may be restrained from prosecuting his suit. It was in this context that the Supreme Court made various observations holding that in the circumstances of that case an order preventing the party from prosecuting its suit at Asansol could not be for securing the ends of justice. 13. It was in this context that the Supreme Court made various observations holding that in the circumstances of that case an order preventing the party from prosecuting its suit at Asansol could not be for securing the ends of justice. 13. However, while making aforementioned observations the court in no uncertain words recognized the position that in a suitable case it would be open to a civil court even to issue an injunction directing a party not to prosecute a case pending in a court of co-ordinate jurisdiction, as would be evident from the following observations made by it as they appear in paragraphs 27 and 28 of the judgment in Manohar Lal's case as reported: The inherent power which ought to be exercised by court in very exceptional circumstances for which the code lays down no procedure. The question of issuing an order to a party restraining of proceedings deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice. While making the aforesaid observations, the learned Judges quoted with approval the following observations made by Scrutton, L.J. in the case of Cohen v. Rothfield 1919 K.B. 410 : While there is jurisdiction to restrain a Defendant from suing abroad, it is a jurisdiction very rarely exercised and to be resorted to with great care and on ample evidence produced by the applicant that the action abroad is really vexatious and useless. 14. We find that while deciding the case before them the learned Judges took the aforementioned observations made by Scrutton, L.J. as also some other factors into consideration for recording a finding that in the circumstances of the case before them, it could be said that an order restraining a party from prosecuting a case before a court of co-ordinate jurisdiction would be for the ends of justice. They did not exhaustively laid down the principle for determining as to when an order from a court of plenary jurisdiction restraining a person from prosecuting his case before a court or authority of limited jurisdiction as distinguished from a court of co-ordinate jurisdiction, can or cannot be said to be for the ends of justice, 15, Generally speaking, court or authority of a limited jurisdiction are such courts or authority which acquire jurisdiction to deal with a particular controversy if certain conditions pre-exist. Even if for the sake of argument it be accepted that the Prescribed Authority under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, while dealing with an application u/s 21 of the Act, is a court (the question on which we refrain from expressing any opinion) it certainly would not either be a court of plenary jurisdiction or a court with co-ordinate jurisdiction with that of the civil court. 16. Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 while giving jurisdiction to the Prescribed Authority to make an order directing eviction of a tenant from the building in the circumstances mentioned therein, it by Sub-section 4 lays down that an order for eviction under Sub-section (1), Sub-section (1-A) or Sub-section (2) of Section 21 shall not be made in the case of tenancy created for a fixed term by a registered lease deed, before the expiry of such term, we find that in the instant case Plaintiff has filed a suit claiming specific performance of the agreement dated 9-7-1973 and if that suit is decreed it can have the effect of creating a tenancy in his favour for a fixed term under a registered lease deed and the application u/s 21 of the Act filed by the Appellant before the Prescribed Authority would not be maintainable. The question whether the Plaintiff is at present entitled to be considered to be a tenant for fixed term as contemplated by Sub-section (4) of Section 21 of the U.P. Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 can be decided only by the civil court in the suit for specific performance filed by the Plaintiff. The Prescribed Authority has no jurisdiction to adjudicate upon the said controversy. We, accordingly, find that the jurisdiction of the Prescribed Authority to make an order u/s 21 of the Act is intimately connected with the decision which might be arrived at by the civil court. Whereas if the suit is decreed, (he Prescribed Authority will have no jurisdiction to make an order u/s 21, it will have ample jurisdiction to deal with the matter and to make an order under that section in case the suit filed by the Plaintiff is ultimately dismissed. Whereas if the suit is decreed, (he Prescribed Authority will have no jurisdiction to make an order u/s 21, it will have ample jurisdiction to deal with the matter and to make an order under that section in case the suit filed by the Plaintiff is ultimately dismissed. Further, the Prescribed Authority has no jurisdiction to deal with the question as to whether or not the Plaintiff is entitled to claim-specific performance of the agreement dated 9-7-1973. The question as to whether the Prescribed Authority has in this case jurisdiction to deal with the application u/s 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction Act, 1972 can be resolved only after obtaining the verdict of the civil court. In such circumstances, if the other conditions on which injunction orders are generally issued, namely, that the Plaintiff should have a prima facie case, the balance of convenience lies in his favour and that unless an injunction order is issued he would suffer an irreparable injury which cannot be compensated, are fulfilled, it would certainly tend to secure the ends of justice by restraining the other side from prosecuting its case u/s 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 17. This brings us to the last argument raised by the learned Counsel for the Appellants, namely, that inasmuch as the agreement sought to be specifically enforced the Plaintiff on the face of it contravenes Section 11 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and is completely void. In the circumstances, it cannot be said that the Plaintiff has a prima facie case, which be there before any injunction can be granted in his favour. According to him, Section 11 of the Act specifically prohibits the landlord from letting out any premises to which the Act applies except in pursuance of an allotment order issued u/s 16 of the Act. Admittedly, no allotment order u/s 16, requiring the landlords to let out the accommodation in question to the Plaintiff has been made. In case the court directs specific performance of the agreement it will amount to directing the landlord to let out the premises to the Plaintiff without an allotment order issued u/s 16 of the Act, which cannot be done. 18. In case the court directs specific performance of the agreement it will amount to directing the landlord to let out the premises to the Plaintiff without an allotment order issued u/s 16 of the Act, which cannot be done. 18. The case of the Respondents on the other hand is that as immediately before commencement of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 the Respondent was in the occupation of the building with the consent of the landlord and no suit or proceeding for his ejectment was pending before a court or authority on the date of such commencement, his possession had been regularized and he is deemed to be a tenant of the accommodation in question. If during the subsistence of his lease the Plaintiff entered into an agreement with him to execute a registered document and to convert his lease into one for fixed term no question of contravening Section 11 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 arose and the agreement set up by them was neither void nor unenforceable. The arguments advanced by the Plaintiff is not devoid of plausibility and merits serious consideration. In the circumstances it cannot be said that the Plaintiff has no prima facie case which requires consideration by the trial court. We are accordingly, of opinion that Plaintiff's prayer for injunction did not deserve to be rejected on this account. 19. Learned Counsel for the Appellants did not advance any argument to show that even if the Plaintiff had a prima facie case, the balance of convenience did not in the circumstances of the case, lie in issuing temporary injunction. It is evident that the balance of convenience lies in not disturbing the running business of the Plaintiff till such time as his claim for specific performance of the agreement has not been disposed off by the civil court. Learned Counsel for the Appellants merely contended that even if the Plaintiff is dispossessed from the cinema business in pursuance of proceedings u/s 21 it would be able to resume its business in case it succeeds in the unit and if necessary it can also obtain compensation for the loss suffered by it. In the circumstances, no question of granting interim injunction arises in this case. In the circumstances, no question of granting interim injunction arises in this case. We are unable to accept this submission inasmuch as once the Plaintiff is forced to close down its running business, it is bound to suffer a loss, precise extent of which, in the circumstances of the case, it may not be possible to assess. 20. In the circumstances, it cannot be said that the discretion exercised by the trial court in issuing the injunction was improper. 21. In the end the learned Counsel for the Appellants urged that the Prescribed Authority not being a party to the proceedings, the trial court had no jurisdiction to issue an injunction, and to stay further proceedings before it. Learned Counsel appearing for the Respondents, however, urged that in this case he had actually prayed for an injunction against the Appellants. When the court made an order staying further proceedings before the Prescribed Authority, it in substance prevented the Appellants from prosecuting those proceedings. It may be that there is some defect in the way the injunction order is worded, but then if substantially the order achieves what the court was competent to do it may not be interfered with. Learned Counsel for the Plaintiff, however, requested us that we should, in the exercise of our appellate jurisdiction, remove the defect pointed out by the Appellant and modify the impugned order and restrain the Appellants from prosecuting their application u/s 21 which is pending before the Prescribed Authority. We would have accepted this request if, there had been some thing on the record to show that the Prescribed Authority, was on its own not inclined to implement the stay order passed by the civil court. Since there does not appear to be any such thing and as the impugned order substantially prevents the Appellants from prosecuting their case before the Prescribed Authority, it does not in our opinion, call for any modification. 22. In the result, the appeal fails and is dismissed with costs.