Gurbachan Singh v. 2nd Additional District Judge, Bulandshahr
1979-08-02
S.D.AGARWALA
body1979
DigiLaw.ai
ORDER S. D. Agarwala, J. - This is a petition under Article 226 of the Constitution directed against an order dated 29th May 1979 passed by the 2nd Additional District Judge, Bulandshahr. 2. The facts which have given rise to -the present petition are as follows. The .petitioner let out three shops along with ,an open sahan with a right to use the roof as mentioned in the lease deed dated 8th June 1970 to respondent No. 2, Sardar Sewa Singh, for the purpose of carrying on the business of dry-cleaning. Initially there was no construction on the first floor. Respondent No. 2 alleged that there was an oral agreement by virtue of which he agreed that the petitioner may 'construct the first floor and that respondent No. 2 will have a right to use the roof of the first floor for the purposes of his dry-cleaning business. After the construction of the first floor when respondent No. 2 wanted to use the roof of the first floor disputes arose between the parties and then respondent No. 2 filed suit No. 37 of 1979, Sewa Singh v. Gur Bachan Singh, for a relief that the petitioner be injected temporarily not to obstruct in the user of the roof gallery and staircase by respondent No. 2, Sewa Singh and his servants or any other person on his behalf. 3. In the above suit an application was made for issue of a temporary injunction. The trial court issued a temporary injunction to the effect that the petitioner was restrained from interfering with the right of respondent No. 2 from using the roof. The petitioner went up in appeal. During the pendency of the appeal before the injunction matter could be finally decided the parties agreed on 3rd April 1979 that respondent No. 2 can use the roof of the first floor by means of approaching through a wooden staircase. In fact it was agreed upon by the petitioner that he will have no objection in case the roof is used through the wooden staircase as that would not affect his privacy. This arrangement continued during the pendency of the appeal. The appeal was, however, finally allowed by the 2nd Additional District Judge, Bulandshahr on 25th April 1979 and the order of temporary injunction issued by the trial court was set aside and the injunction application was dismissed. 4.
This arrangement continued during the pendency of the appeal. The appeal was, however, finally allowed by the 2nd Additional District Judge, Bulandshahr on 25th April 1979 and the order of temporary injunction issued by the trial court was set aside and the injunction application was dismissed. 4. Respondent No. 2 thereafter filed a writ petition in this Court. This petition came up for orders before A. N. Verma, J. On 17th May 1979 A. N. Verma, J. rejected the petition on the ground that since both the courts below have found that the privacy of the family members of the petitioner would be affected it was not a fit case for interference under Art. 226 of the Constitution. A. N. Verma, J. however further observed in the said judgment dated 17th May 1979 as follows; "Mr. S. C. Khare learned counsel for the petitioner has urged that during the pendency of the injunction application in the trial court as well as in appeal, the defendant respondent had offered to make an alternative arrangement to enable the petitioner and his employees to go up to the roof of the first floor by constructing a wooden staircase and that in the interest of justice it is necessary that the said arrangement should continue during the pendency of the suit. In my view, the appropriate court where such request should be made are the courts below. The petitioner may, therefore, approach the courts below for suitable direction in regard to the temporary arrangement mentioned above in terms of the offer made by the respondent, if the courts below consider it necessary for the ends of justice." 5. After the passing of this order by this Court on 17th May 1979 respondent No. 2 moved an application under O. 47, R. 1 read with Section 151, C.P.C. for review of the judgment dated 25th April 1979 in view of the observations made by this Court in the judgment dated 17th May 1979. The application mentioned above was allowed on 29th May 1979 by the 2nd Additional District Judge, Bulandshahr and he directed that the temporary arrangement of the wooden staircase as agreed in the statement of the learned counsel for the parties on paper No. 13/ A2 dated 3rd April 1979 will continue till the decision of original suit No. 37 of 1979. 6.
6. The petitioner has filed the present petition challenging the jurisdiction of the Additional District Judge in giving the above direction. 7. I have heard Sri S. P. Gupta for the petitioner and Sri S. C. Khare on behalf of respondent No. 2. Sri S. P. Gupta has made three submissions. His first submission is that the petition is not cognizable by a single Judge of this Court, only a Division Bench has jurisdiction to hear and decide the petition. In support of this submission learned counsel has placed reliance on Section 5 of the U. P. High Court (Abolition of Letters Patent Appeals) Amendment Act, 1975, U. P. Act No. 31 of 1975 which runs as follows: "5. Abolition of appeals from the judgment or order of one Judge of the High Court made in the exercise of writ jurisdiction in certain other cases: (1) No appeal, arising from an application or proceeding instituted or commenced, whether prior or subsequent to the commencement of this section, shall lie to the High Court from a judgment or order of one Judge of the High Court, made in the exercise of jurisdiction conferred by Art. 226 or Art. 227 of the Constitution, in respect of a judgment or order made or purported to be made in the exercise or purported exercise of appellate or revisionary jurisdiction by a District Judge, Additional District Judge, Civil Judge or Additional Civil Judge under any Uttar Pradesh Act (including any Central Act as amended by an Uttar Pradesh Act), anything to the contrary contained in Cl. 10 of the Letters Patent of Her Majesty, dated March 17, 1886, read with Cls. 7 and 17 of the U. P. High Courts (Amalgamation) Order, 1948, or in any other law notwithstanding. (2) Notwithstanding anything contained in sub-sec. (1), all appeals pending before the High Court on the date immediately preceding the date of commencement of this section shall be heard and disposed of as if this section had not been enacted." 8. In the instant case it is not disputed that the appellate power has been exercised under a Central Act. viz. Code of Civil Procedure, as amended by U. P. Act but what Mr. Gupta has urged is that the expression "Central Act as amended by U. P. Act" should mean that the section conferring appellate power should have been. amended by the U. P. Act.
viz. Code of Civil Procedure, as amended by U. P. Act but what Mr. Gupta has urged is that the expression "Central Act as amended by U. P. Act" should mean that the section conferring appellate power should have been. amended by the U. P. Act. 9. In British India General Insurance Co. Ltd. v. Captain Itbar Singh ( AIR 1959 SC 1331 ) the Supreme Court has laid down that words cannot be added to a section unless the section as it stands is meaningless or of doubtful meaning. It is further settled law that it is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. 10. The expression "Central Act as amended by U. P. Act" is clear and unambiguous and is comprehensible without any doubts. That the interpretation; suggested by Sri S. P. Gupta could not have been the intention of the legislature is amply supported by the fact that no special appeal lies against a judgment passed by a single Judge in exercise of power under Sections 96, 100 and 115 C.P.C. otherwise it would imply that if a person files an appeal or a revision in the High Court against any appellate order then no special appeal would lie while if he files a writ petition a special appeal would lie. 11. In view of the above I do not agree with the submission made by Sri S. P. Gupta. The petition is cognizable by a single Judge of this Court. 12. The second submission of the learned counsel for the petitioner is that the impugned order dated 29th May 1979 is a nullity as the Additional District Judge had no power to review his earlier order under Section 151 of the Code of Civil Procedure. In support of this submission reliance has been placed by the learned counsel on Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar ( AIR 1965 SC 1457 ), Harbhajan Singh v. Karam Singh ( AIR 1966 SC 641 ), Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji ( AIR 1970 SC 1273 ) and Arjun Singh v. Mohindra Kumar ( AIR 1964 SC 993 ). 13.
13. Sri S. C. Khare, learned counsel for the respondent, has urged in opposition that under O. 47 R. 1 C. P. C. the court had the power to review the order and as such the order is supportable under that provision. He has urged that the court had the power to review the order under the expression 'for any other sufficient reason used in O. 47 R. 1 C. P. C. The submission made by Sri S. C. Khare is, in my opinion, well founded and as such it is not necessary for me to consider as to whether the Additional District Judge had the power to review under Section 151 C. P. C. or not. 14. In Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius ( AIR 1954 SC 526 ) the Supreme Court had occasion to consider the scope of the expression 'for any other sufficient reason. The Supreme Court laid down as follows : - "It has been held by the Judicial Committee that the words 'any other sufficient reason must mean a reason sufficient on grounds at least analogous to those specified in the rule. See Chhajju Ram v. Neki, AlR 1922 PC 112. This conclusion was reiterated by the Judicial Committee in Bisheshwar Pratap Sahi v. Parath Nath, AIR 1934 PC 213 and was adopted by our Federal Court in Han Shankar v. Anath Nath, AIR 1949 FC 106 at pp. 110, 111. Learned counsel appearing in support of this appeal recognises the aforesaid limitatons and submits that his case comes within the ground of 'mistake or error apparent on the face of the record or some ground analogous thereto." 15. The Supreme Court after discussing the various aspects of the case came to the conclusion that omission to decide an important issue in a case was certainly an error apparent on the face of the record. 16. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal ( AIR 1962 SC 527 ) the Supreme Court held that courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of O. 39 Rr. 1 and 2 if the court is of opinion that the interests of justice require the issue of such an interim injunction.
1 and 2 if the court is of opinion that the interests of justice require the issue of such an interim injunction. The Additional District Judge, therefore while deciding the appeal on 25th April 1979 rejecting the injunction application on the ground that the plaintiff respondent could not get an injunction under O. 39, R. 1 should have also further considered as to whether an injunction should have [been granted under its inherent power as it had recorded a finding that balance of convenience was in favour of tenant and irreparable injury would be caused to him if injunction is refused. This was an essential matter which should have been considered by the Additional District Judge. It was not considered and as such the High Court was compelled to observe the same in its order dated 17th May 1979. Since there was an omission to decide an important matter in the appeal the principle laid down in Moran Mar Bassalios Catholicos case (supra) would fully apply and the court had the power to review under the expression 'for any other sufficient reason. In view of the above the order of the Additional District Judge is not a nullity and the order has been passed within jurisdiction. 17. Thirdly, it was contended by the learned counsel for the petitioner that after the High Court passed the order on 17th May 1979 respondent No. 2 should have made an application before the trial court and not before the appellate court. This contention is also without substance. The order of the trial court had merged' into the order of the appellate court and, therefore, respondent No. 2 rightly moved the application for review before the appellate court. The application was clearly not maintainable before the trial court. 18. I am further of the opinion that, this is not a fit case for interference under Art. 226 of the Constitution of India. In the appellate order dated 25th. Apr. 1979 the appellate court had found that the balance of convenience was in favour of respondent No. 2. It was further found that respondent No. 2 would suffer irreparable loss as his business requires spreading and drying of clothes in the open light and air.
In the appellate order dated 25th. Apr. 1979 the appellate court had found that the balance of convenience was in favour of respondent No. 2. It was further found that respondent No. 2 would suffer irreparable loss as his business requires spreading and drying of clothes in the open light and air. During the-pendency of the appeal before the Additional District Judge the petitioner gave a statement that he will have no objection in case the roof is used through the wooden staircase as that would not affect his privacy. This arrangement did continue during the pendency of the appeal. In the impugned order the Court has found as a fact that the wooden staircase is in existence and that it does not violate the privacy rights of the petitioner in regard to the user of the kitchen and Pooja Ghar built in the first floor of the disputed building. In view of this agreement the Additional District Judge passed an inherently just, order in order to safeguard the irreparable injury which was being caused to respondent No. 2 in carrying on his business. The direction issued by the Additional District Judge does not in any manner affect the petitioners user of his-residential portion neither does it affect, its privacy. The order is purely interlocutory order effective only during the pendency of the suit. In my opinion the impugned order serves the ends of justice and has not resulted in any substantial failure of justice. 19. On this question Sri S. P. Gupta cited Deokinandan Prashar v. Agra District Co-operative Bank ( AIR 1972 SC 2497 ). The ratio of the case of the Supreme Court would not apply in this case as I have held that the Additional District Judge had jurisdiction to pass the impugned order. 20. In the result the petition fails and is accordingly dismissed with costs.