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1985 DIGILAW 480 (MP)

Mahavir Prasad v. Jagannath

1985-12-05

RAMPAL SINGH

body1985
ORDER Rampal Singh, J.- 1. This unfortunate civil revision is pending, for its fate to be decided after 10 years. 2. The applicants have preferred this civil revision under section 115 of the Code Civil Procedure against an order of the Additional District Judge, Bhind, in Civil Miscellaneous Appeal No. 37 of 1973 dated 17-12-1974. Non-applicant-plaintiff Nos. 1 to 5 were granted a Patta on 20-4-1947 by Jagirdar with regard to the suit lands, and this very Jagirdar granted another Patta to the applicant/defendants on 20-6-1947 with regard to the suit land. The non-applicant/plaintiffs, thus, were issued the Patta prior to that of the defendant/applicants. The non-applicant-plaintiffs filed an application before the Tahsil Court for getting possession of the suit land, as they were illegally dispossessed by the other Party. Under section 328 of the Kanoon Mal, Gwalior, an interim order was passed, whereby non-applicants plaintiff were put in possession of the suit land. Later on, the application pending in the Tahsil Court was dismissed and the interim possession so given was ordered to be restored to the applicants-defendants. The case in the revenue Courts went up in upper hierarchy, but the fate was the same. When the applicants-defendants filed the execution for restoration of possession of the suit land in (he Tahsil Court, the non-applicant plaintiffs filed a suit for declaration of their rights on the suit property and also prayed for a decree of perpetual injunction against the applicant-defendants, in the Court of Civil Judge Class II, Bhind. The suit land consists of survey numbers 15, 399, 418, 422, 403,446 and 448, total area being 15 bigha and 3 biswa, situate in village Seorpura, Tahsil and district Bhind The non-applicant plaintiffs also filed an application under Order 39, Rr.1 and 2, CPC praying for the issuance of temporary injunction restraining the defendant/applicants from taking forcible possession or interfering with their possession of the suit land till the final decision of the suit. Thus, he prayed for maintaining the status quo on the date of the filing of the suit. An ex parte temporary injunction was granted by the trial Court, but it was subsequently vacated on the ground that the execution of the decree of the revenue Court cannot be restrained. Thus, he prayed for maintaining the status quo on the date of the filing of the suit. An ex parte temporary injunction was granted by the trial Court, but it was subsequently vacated on the ground that the execution of the decree of the revenue Court cannot be restrained. Against this order, the non-applicant plaintiffs filed an appeal in the Court of the additional District Judge, Bhind, who by the impugned judgment granted the temporary injunction in favour of the plaintiffs. Aggrieved by that order, the applicant defendants have invoked the revisional jurisdiction of this Court. 3. It becomes pertinent at this stage to examine whether the order passed under section 326 or section 328 of the Kanoon Mal. Gwalior, is a decree or not. Decree is defined in section 2 (2) of the CPC as given below: "2. In this act unless there is anything repugnant in the subject or context. (1) xx xx xx (2) 'Decree' means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. xxx xxx xxx xxx" (Emphasis supplied by me) According to this definition only that judgment shall be called a 'decree' which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. In the light of this definition, I shall presently examine whether an order passed under section 326 or see ion 328 of the Kanoon Mal, Gwalior, is a 'decree' or not. Chapter 19 of the Kanoon Mal, Gwalior, is headlined as a Chapter dealing with restoration of possession in case d an illegal dispossession. Section 326 Kanoon Mal, Gwalior, provides for the restoration of possession, and the procedure to be adopted therefore is described as "BASIJE SARSART ADALA MAL", Similarly the provisions of section 328 Kanoon Mal, Gwalior, provides for security and personal bond to be taken with regard to the result of that litigation. Section 326 Kanoon Mal, Gwalior, provides for the restoration of possession, and the procedure to be adopted therefore is described as "BASIJE SARSART ADALA MAL", Similarly the provisions of section 328 Kanoon Mal, Gwalior, provides for security and personal bond to be taken with regard to the result of that litigation. It is clear that these proceedings under section 326 Kancon Mal, Gwalior, do not contemplate conclusively determining the rights of the parties with regard to the matter in controversy and, hence any order passed by the revenue Court in a summary proceeding cannot be said to be a 'decree' as defined in section 2 (2) of the CPC 4. Shri R.K. Dixit, learned counsel appearing on behalf of the applicants, bas strenuously contended that the order passed by the revenue Court is in the nature of a decree and the revenue proceedings initiated for restitution of possession cannot be restrained by a temporary injunction. Shri H.D. Gupta, learned counsel appearing on behalf of the non• applicant plaintiffs, has repelled the submissions of Shri Dixit and contended that the present suit has been filed for declaration of title and that the non-applicant plaintiffs are in possession of the suit land on the date of the suit; hence, in the impugned judgment the appellate Court has correctly granted the temporary injunction in favour of the plaintiffs according to law. 5. The learned appellate Court bas discussed two decisions of this Court (i) Zalam Singh [1966 JLJ-SN 104] and (ii) Ramsingh Lilabia [1967 MPLJ-SN 111]. Both these judgments are Single Bench judgments of this Court. In the case of Zamal Singh (supra) this Court held that where a person is bound by an earlier decree or order, no injunction should be granted as long as that decree or order is not duly set aside. It proceeds further that if a person is a party to some previous litigation, may be even of a summary nature, and if he is bound by the earlier decree or order, he should not be granted an injunction restraining the other party from executing it merely because the earlier order may be a summary order which may be rendered in fructuous by the decision of the title suit. In the case of Ram Singh (supra) this Court held that a distinction should be made between a decree of a regular civil Court which on the face of it is final and conclusive and one which is subject to a decision in a regular suit. Where a person has obtained a decree in a regular suit, there would be no justification for granting an interim injunction merely because it is challenged in a separate suit on the ground of fraud or otherwise. It proceeds further that where the decree is that of a revenue Court of a civil Court in proceedings of a summary nature which is subject to the decision of a Civil Court in a regular suit, an interim injunction may by granted if other conditions justifying the grant of an injunction are fulfilled. Unfortunately, both these cases are in the form of Short Notes. and the full facts are not available for my benefit. Shri Dixit has drawn my attention to the case of Prabhakar Kulkarni [ 1979 JLJ 679 ]. This is also a Single judgment of this Court and supports the case of Zalam Singh (supra), and also lays down that a temporary injunction cannot be granted either under the inherent powers or under Order 39 R. 1 CPC, if there exists an order of eviction against the plaintiff in favour of the defendant by revenue tribunals. These conflicting judgments of this Court are clearly distinguishable on the facts of the present case. In the case of Surendra Singh v. Sheorj Bhahadur Singh [ 1975 JLJ 140 ], a Division Bench judgment of this Court it was held that Court is competent to grant an injunction in exercise of its inherent powers independent of Rr.1 and 2 of Order 39 CPC and, therefore, it can grant an injuction even in a case which does not fall strictly within the purview of the aforesaid Rules. A caution has been issued that it must, however, be borne in mind that the inherent powers are to be exercised by the Court in exceptional circumstances. In Sundra Singh's case (supra) the Division Bench further interpreted the word -'injury' occurring in Order 39, R. 2 CPC. A caution has been issued that it must, however, be borne in mind that the inherent powers are to be exercised by the Court in exceptional circumstances. In Sundra Singh's case (supra) the Division Bench further interpreted the word -'injury' occurring in Order 39, R. 2 CPC. It would be pertinent to reproduce herein below the relevant observations of this judgment: "The object of granting a temporary or interlocutory injunction is to per-serve status quo while rights are being litigated, and the onus is on the plaintiff to show his need for the injunction. This does not mean that he has to prove his case before he can claim interlocutory relief. He has only to make out a substantial case to be considered which may very well succeed when it comes to be heard. The principles which govern the grant of a temporary injunction may be summarised as below: (i) Whether the applicant has a prima facie case in his favour. (ii) Whether an irreparable injury wil1 be caused to the applicant if the injunction is not granted during the pendency of the legal proceedings. (iii) Whether the balance of convenience is in favour of the applicant. Decree-holder should ordinarily not be restrained from enjoying the fruits of the decree obtained by him after a successful litigation. Merely because a party chooses to file a suit challenging the decree or order on certain grounds, would not suffice to destroy the presumption in his favour and a very heavy burden would lie on the applicant to produce strong and cogent prima facie evidence to satisfy the Court that grounds on which the decree or order is challenged. are fairly strong and that there is a reasonable possibility of the success of such suit. 6. In view of the observations made by the Division Bench in Surendra Singh's case (supra), I am constrained to examine minutely the reasons given by the appellate Court for granting the temporary injunction. In the impugned judgment, the appellate Court has minutely examined the position of law and has relied upon the case of Zalam Singh (supra). But, on facts, it has concluded that the patta in respect of the suit land was granted in favour of the non-applicants/plaintiffs two months earlier than the one which was granted to the applicant defendants. In the impugned judgment, the appellate Court has minutely examined the position of law and has relied upon the case of Zalam Singh (supra). But, on facts, it has concluded that the patta in respect of the suit land was granted in favour of the non-applicants/plaintiffs two months earlier than the one which was granted to the applicant defendants. Another aspect considered by the appellate Court was that the entries in the relevant revenue papers show that the non-applicants- plaintiffs were in actual physical possession of the suit land. According to the impugned judgment, the subsequent patta granted in favour of the applicants/defendants with regard to the suit land seems to be spurious and illegal. According to the impugned judgment, on the date of institution of the suit the non-applicants/plaintiffs were found to be in possession. Considering all these facts, the appellate Court has come to the conclusion that maintenance of the status quo was in the interest of justice and it should be maintained. The applicant• defendants were, by the impugned order, restrained from taking possession of the suit land till the decision of the suit. 7. It is clear from para 8 of the impugned judgment that it is the defendants who were restrained from taking possession of the suit lard till the decision of the suit. By the impugned judgment, execution of a decree or order of the revenue Courts was not restrained and, hence, it would be an exercise in futility to dwell any more upon the subject. The impugned judgment is based on sound principles of law, and the appellate Court has considered all the material before passing the impugned judgment, as laid down in Sundra Singh (supra). It, therefore, deserves to be maintained. Another reason for passing the impugned judgment in favour of the plaintiffs is that the non-applicants-plaintiffs are found to be in possession since long and the litigations have been pending in different Courts for a long time. It would also be not just and proper to permit the applicant-defendants to dispossess the plaintiffs from the suit land at a time when the civil Court is seized of the matter and is about to determine the title or right of the parties with regard to the suit property. It would also be not just and proper to permit the applicant-defendants to dispossess the plaintiffs from the suit land at a time when the civil Court is seized of the matter and is about to determine the title or right of the parties with regard to the suit property. Assuming that the order passed under section 328 of the Kanoon Mal, Gwalior is a decree or an order it is not the execution of the decree or an order which is restrained by the impugned judgment. It is the applicant-defendants who are restrained and not the execution of the decree. Assuming further, that the impugned order cannot be passed under Order 39, Rr. 1 and 2 CPC, in my view, it can still be passed in the interest of justice for maintaining the status quo on the date of tile suit, under the provisions of section 151 of the Code of Civil Procedure. 8. Therefore this revision petition deserves to be dismissed and is, accordingly, dismissed. However, it is a sad tale that this civil revision bas been pending in this Court for the last 10 years. Due to this pendency, there was no progress in the suit itself as the record of the case was languishing in the archives of the High Court. It would, therefore, be just and proper to direct the trial Court to proceed immediately with the trial of this case and conclude it within a period of four months from the date of receipt to this order. 9. There is another serious question to be considered. Shri Dixit, learned counsel for the applicants, has submitted that the non-applicants/plaintiffs are enjoying the usufruct of the suit land for the last several years, and assuming that the applicant defendants succeed then they cannot file a suit for mesne profits due to the hurdles created by the Limitation Act. Hence, the learned counsel submits, the non-applicants/plaintiffs be ordered to deposit some amount of mesne profits in the trial Court. Shri H.D. Gupta, learned counsel for the plaintiffs-non-applicants, agreed, though reluctantly, to this submission. Hence, the learned counsel submits, the non-applicants/plaintiffs be ordered to deposit some amount of mesne profits in the trial Court. Shri H.D. Gupta, learned counsel for the plaintiffs-non-applicants, agreed, though reluctantly, to this submission. Therefore, mesne profits are being quantified at Rs.2,500/- per year, and the non applicants plaintiffs shall deposit the amount at this rate for the years 1984 85 and 1985-86 in four equal installments before the trial Court, and the trial Court shall get the total amount deposited for five years in a nationalised bank, so that there may not be a loss of interest to the successful party. The non-applicants plaintiffs shall also remain depositing this amount annually till the final adjudication in the matter, and the total amount so deposited along with interest shall be disbursed or taken back, as the case may be, by the successful party, as directed by the Court. However, there shall be no order as to costs.