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1990 DIGILAW 418 (MP)

Ramcharan Mansha v. Badri Prasad Kushwaha

1990-10-31

R.C.LAHOTI

body1990
ORDER R.C. Lahoti, J. 1. The plaintiff/appellants are aggrieved by the order of the trial Court rejecting their prayer for the grant of an ad interim injunction. 2. The facts in so far as relevant for the disposal of this appeal may briefly be stated. There is a registered deed of sale dated 22-12-1973 in respect of the suit land, executed in favour of defendant No. 1. The plaintiffs claim that the sale-deed was a nominal one and a prohibited transaction of loan within the meaning of Section 2(f) of Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi-Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (hereinafter referred to as the "ACT"). Relying on the deed of sale, the defendant No. 1 filed a suit for permanent preventive injunction seeking to protect his possession over the land which was registered as C.O.S. No. 301-A/83 in the Court of Vth Civil Judge Class I. Gwalior, wherein a prayer for grant of an ad interim injunction was refused and so the defendant No. 1 got his suit dismissed in default of appearance on 19-4-1989. The plaintiff/appellants have initiated proceedings under the Act before the Sub-Divisional Officer for setting aside the sale. During the pendency of those proceedings they also filed the Civil Suit seeking a declaration that the deed of sale was in reality a transaction of loan which did not have the effect of vesting any title in the defendant No. 1 and a permanent preventive injunction restraining the defendant from interfering with the possession of the plaintiff/appellants. 3. The plaintiff/appellants have averred that in spite of the impugned sale-deed having been executed in the year 1973, they have always continued to remain in possession of the land in suit. They prayed for the grant of an ad interim injunction also so as to protect their possession during the pendency of the suit. This prayer was seriously contested by the defendant/respondent. The trial Court passed an ex parte order on 30-1-1990 protecting the possession of the plaintiff/appellants. They prayed for the grant of an ad interim injunction also so as to protect their possession during the pendency of the suit. This prayer was seriously contested by the defendant/respondent. The trial Court passed an ex parte order on 30-1-1990 protecting the possession of the plaintiff/appellants. On noticing the defendant/respondents and after hearing them, vide the impugned order, the trial Court formed an opinion that inasmuch as the S.D.O. was seized of the proceedings under the Act, who was empowered to set aside the sale and consequently restore the possession of the land to the holder of the land, the plaintiff/appellants were free to approach the S.D.O. for the desired relief. On this short reasoning, the trial Court held that it was not necessary to hear on merits the application Under Order 39. Rules 1/2. Civil Proceudre Code. It directed the ex parte injunction dated 30-1-1990 to be vacated. 4. The learned counsel for the plaintiff/appellants has submitted that the trial Court has erred in vacating the injunction without considering the merits of the prayer inasmuch as the suit was maintainable before the trial Court and hence the trial Court was competent to grant an ad interim relief desired by the plaintiff/appellants. The learned counsel for the respondent has on the other hand submitted that the S.D.O. would be competent to grant an interim relief in the proceedings pending before it and hence the Civil Court cannot and should not exercise that jurisdiction. It is further submitted that because the Civil Court cannot grant a permanent injunction in view of the jurisdiction having been vested with the S.D.O. it could not also have granted an interim injunction. 3. Having heard the learned counsel for the parties, this Court is of the opinion that the appeal deserves to be allowed and the contention advanced by the learned counsel for the plaintiff/appellants deserves to be accepted. 6. Examining in juxtaposition the jurisdiction of the Civil Court vis-a-vis the jurisdiction of the S.D.O. it has been held by this Court in Hiralal v. Hatesingh, 1984 MPLJ 32 = 1984 JLJ 296 . 6. Examining in juxtaposition the jurisdiction of the Civil Court vis-a-vis the jurisdiction of the S.D.O. it has been held by this Court in Hiralal v. Hatesingh, 1984 MPLJ 32 = 1984 JLJ 296 . that the Act does not bar the filing of suit before a Civil Court which may involve a prohibited transaction of loan; what is excluded from the jurisdiction of the Civil Court is only the settling, deciding or dealing with any question which is required to be settled, decided or dealt with by S.D.O. or the Collector under the Act. The Court should in such a case entertain the suit, but still stay further proceedings and direct the party so raising the questions to obtain a decision thereon from the S.D.O. in terms of Sections 6 and 7 of the Act; on receipt of decision whereof, the Civil Court shall proceed to decide the suit in accordance with such decision. This decision has been followed in Sardar Ariunsingh v. Gangaram. 1982 MPWN 462 7. The question that arises is that having entertained the suit does the Civil Court lose jurisdiction to pass interlocutory orders during the period for which it is required to await the decision of the S.D.O. or the Collector. In the opinion of this Court, the Civil.Court during the period of pendency of the suit before it, is not relegated and pushed down to the status of a mere spectator. The very fact that the Civil Court has been statutorily obliged by the Act to decide proceedings pending before it in accordance with the provisions of this Act. i.e. by awaiting the decision of S.D.O. Collector and acting in accordance therewith, empowers the Civil Court to pass all the interlocutory orders so that the ultimate decree to be passed by it may not be rendered ineffective. Under Section 7 of the Act. the S.D.O. has been empowered to declare the transaction to be void, to set aside the transfer of land and consequently to restore possession of the land or to settle the equities in lieu of restoration of possession. Consequential orders may be passed, but phrase "consequential orders" has to be read in the light of , preceding provision of Section 7 of the Act. Consequential orders may be passed, but phrase "consequential orders" has to be read in the light of , preceding provision of Section 7 of the Act. The power to grant permanent preventive injunction has not been specifically given to the S. D. O. Would that mean that the intention of the Legislature would have been to deprive the holder of the land from its possession during the pendency of the proceedings before the S. D. O. and then to direct restoration of possession with the final order'? Certainly not. The S. D. O. seized of the proceedings Under Section 7 of the Act. may have jurisdiction to pass interlocutory orders, as has been pointed out by the learned counsel for the respondents placing reliance on Smt. Savilri v. Govindsingh Rcnvat. AIR 1986 SC 984 . wherein the following passage is pertinent : - "Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim "ubi aligquid conceditur, coticeditur ed id sine quo res ipsa esse non potest (where anything is conceded, there is conceded, also anything without which the thing itself cannot exist." but that would not mean that the power of the Civil Court to make interlocutory orders in a suit pending before it is taken away either expressly or by implication. 8. The legal position as explained in Hiralal v. Hatesingh. 1984 MPLJ 32 = 1984 JLJ 296 . makes the position of a Civil Suit instituted before the Civil Court but awaiting the decision of S.D.O./Collector because of the suit involving a prohibited transaction of loan, akin to a suit trial whereof has been stayed Under Section 10. Civil Procedure Code it is well settled by a number of decisions that during the period of stay the power of the Civil Court to entertain and decide interlocutory applications and pass such orders as do not determine the rights or liabilities of the parties to the suit is not taken away. (See Sujunmal v. Premchand. C.R. No. ,470\1968 (J) decided on 11-8-1968: Smt. Kulsumum Nisan v. Mohammad Farooq and Ors.. AIR 1969 All. 470: Bahurao v. Kadarappa Prasappa Dabbannavar, AIR 1974 Mysore 63. and Senaji Kapurchand and Ors. v. Pannaji Devicliand. AIR 1922 Bom. 276.) 9. (See Sujunmal v. Premchand. C.R. No. ,470\1968 (J) decided on 11-8-1968: Smt. Kulsumum Nisan v. Mohammad Farooq and Ors.. AIR 1969 All. 470: Bahurao v. Kadarappa Prasappa Dabbannavar, AIR 1974 Mysore 63. and Senaji Kapurchand and Ors. v. Pannaji Devicliand. AIR 1922 Bom. 276.) 9. There is no substance in the contention of the learned counsel for the respondents that the trial Court was debarred from granting temporary injunction because of the proviso appended to sub-rule (2) of Rule 2 of Order 39 of Civil Procedure Code by M. P. Amendment Act, 1984. clause (a) whereof provides that no interim injunction shall be granted where no perpetual injunction could be granted in view of the provisions of Sections 38 and 41 of the Specific Relief Act. 1%3. As it has already been held that the suit as framed was entertainable before the Civil Court and having decided the issues before it consistently with the decision of the S.D.O., the Civil Court would be competent to grant a decree of permanent preventive injunction, the abovesaid proviso would not debar the Civil Court from granting an ad interim injunction. 10. For the foregoing reasons the appeal is allowed. The impugned order of the trial Court, in so far as it vacates the ex parte injunction dated 30-1-1990 and dispenses with the necessity of disposing of the application for ad interim injunction on merits, is set aside. The trial Court is directed to hear and dispose of the application for grant of ad interim injunction on its merits. 11. Parties through their respective counsel are directed to appear before the trial Court on 12-11-1990 before which date the Registry shall see that the records reach back along with a copy of this order. In the circumstances of the case, the parties are left to bear their own costs as incurred before this Court.