Martin D. Silva v. Hakim Martin D. Silva — 1991 DIGILAW 615 (RAJ)

Honble D.L. MEHTA, J.—This Misc. Civil Appeal is directed against the order dated 1.09.1989, passed by the learned Additional District Judge, No. 6 Jaipur City, Jaipur, in Civil Misc. Application No. 90/1989. 2. Brief facts of the case are that the plaintiff and his brothers are having the chequered history of litigation and various cases are pending in the courts. Plaintiff filed a suit for partition against his brothers and is pending in the trial court. He has filed this suit and prayed that the property marked as MNSPOVW in the map and plain may be declared as a joint property and permanent injunction may be issued restraining the defendant to alienate the property. A further prayer had also been made that the injunction may be issued restraining the defendant to raise construction on any part of the property which is in dispute. 3. A third suit has also been filed and which is pending about a piece of land on which a cinema house has been constructed. One of the questions in dispute is whether the disputed property is personal property or the ancestral property. Learned District Judge rejected the application on the ground that the defendant is having huge property and if the plaintiff succeeds and defendant looses the case, the defendant may be asked to hand-over the other property and the share out of the remaining property. I will not like to entering to the controversy about the facts of the case. 4. Section 94 of the CPC deals with the supplemental proceedings like the proceedings provided under Sec. 39 and 0.40 of the CPC. Under S. 94 of the CPC a duty has been cast on the court that in order to prevent the ends of justice from being defeated the court may, make such other interlocutory orders, as may appear to the court to be just and convenient. In clause (8) of S. 94 of the CPC the words other interlocutory orders are very important and in fact, these words govern the orders unders which the interlocutory orders are passed. Under 0.39 temporary injunctions are issued or refused by the court and this is the interlocutory order. In clause (8) of S. 94 of the CPC the words other interlocutory orders are very important and in fact, these words govern the orders unders which the interlocutory orders are passed. Under 0.39 temporary injunctions are issued or refused by the court and this is the interlocutory order. It is necessary for the welfare of the society and also for the ends of justice that while passing the order under 0.39 or any other order, the court should take note of the provisions ofS.94(E)in particular and should pass such order which may be just and proper and may compensate the party against whom the interlocutory order is passed if he ultimately succeeds in the suit. 5. This court, in various cases, have discussed that there should be a safeguard in favour of the person against whom the temporary injunction is issued. This court has also held that while issuing a temporary injunction, the court should exercise the power under clause (E) of S. 94 and should pass the order that in case the person against whom the temporary injunction is issued and granted, succeeds, he should be compensated for the loss suffered by him on account of temporary injunction issued against him. This court is of the view, that the quantum of compensation should be fixed at the time of granting an injunction that the parties against whom the temporary injunction is granted, if ultimately wins may not have to go to the court again and he may recover the compensation or damages as a decree, such order will be executable just like a decree and the undertaking should be taken from the party in whose favour the injunction is issued. 6. In the instant case, the position is reverse here. The plaintiff has come with a case that he is the co-owner or co-sharer of the specified property and the property is being alienated or is likely to be alienated by the defendant. It will not be out of place here to mention that the disputed property was acquired by the erstwhile state of the Jaipur, however, after prolong litigation the propetty was released and the main contestant was the defendant. The plaintiff is one of the brother and he claims right in the property on the ground that this is an ancestral property. 7. The plaintiff is one of the brother and he claims right in the property on the ground that this is an ancestral property. 7. In this suit, the plaintiff has also come with a case that he has a right in the property and the property cannot be alienated. He has also filed a suit for partition. In such circumstances, it is also necessary to safe-guard the interest of the party whose application for the grant of temporary injunction has been rejected. There may be a contingency that the defendant may alienate the property and in that case, the plaintiff may not be able to execute the decree easily for one reason or the other and there may be number of difficulties in the matter of execution of decree even if it is executable. The other contingency which may arise is about the construction on the. property. In fact, in this suit the plaintiff has said that it is a common property owned by all of them and the defendant has no right or interest in his individual capacity and he cannot be allowed to raise construction. Plaintiff wants the partition of the property. The application for grant of temporary injunction has been rejected by the trial court on one of the ground that the defendant is having huge immovable property and even if the plaintiff succeeds he can get his share out of the property and there will be no difficulty in getting the share. 8. It will not be out of place here to mentioned that due weightage will have to be given while applying the provisions of 0.39 or 40 of the CPC and also other provisions relating to the interlocutory orders. S. 94 of the CPC deals with the supplementing proceedings. It will not be out of place here to mention that under S. 39, there is no specific provision by which the defendant can get an injunction against the plaintiff. However, under Sec. 94 clause (b), there is a specific provision that the court may issue any order against the defendant or the plaintiff which may be just and proper in the facts and circumstances of the case. I will have to take into consideration the words other Interlocutory orders as used in clause (e) of S.94 of the CPC. However, under Sec. 94 clause (b), there is a specific provision that the court may issue any order against the defendant or the plaintiff which may be just and proper in the facts and circumstances of the case. I will have to take into consideration the words other Interlocutory orders as used in clause (e) of S.94 of the CPC. The words other denotes that it is supplementary in nature and it is in addition to the interlocutory order which can be passed under 0.39 or under 0.40 of the CPC. The legislature in its wisdom has used the word others specifically in clause (e) of S. 94 of the CPC to clarify the position that the orders which are necessary and which are just and proper can be passed though not provided under 0.39 or 0.40 of the C.P.C. The order can be dealtwith as interlocutory orders. 9. The application for grant of temporary injunction or rejecting the application for grant of temporary injunction is interlocutory order which is generally passed under O. 39 of the CPC. However, sometimes, it is passed also under exercise of the powers given under S. 151 CPC though very sparingly. S. 94 of the CPC directs the court to safeguard the interest of both the parties. S. 94 of the CPC directs the court to safeguard the interest of both the parties. Suppose, the plaintiff fails ultimately and the property is alienated before the decree is passed by the court in favour of the plaintiff there will be a further litigation and the decree may or may not be executable on number of grounds. In the same way, in a suit for partition if the plaintiff succeeds and his application for grant of temporary injunction is rejected then he is deprived of his right of use and occupation and he will be looser even after succeeding in the case because of the deprivation of the right of use and occupation of the property for decades. Thus, it is necessary for the court to exercise the powers of clause (E) of Sec. 94 of the CPC to safeguard the interest of the plaintiff also where the application of grant of temporary injunction is being rejected. Thus, it is necessary for the court to exercise the powers of clause (E) of Sec. 94 of the CPC to safeguard the interest of the plaintiff also where the application of grant of temporary injunction is being rejected. Thus, S.94 of the CPC enlarge the scope of order 39 and it creates the duty of the Court in favour of the plaintiff for passing such orders which may be just and proper and the plaintiff may suffer on account of refusal of the application for grant of temporary injunction. Thus, the benefits which is extended now generally, in the case of grant of temporary injunction, can also be extended in cases of refusal of application for grant of temporary injunction. 10. One must understand that the law is for the society and it has to be applied for the benefit of the society with a view to curtail the litigation as far as practicable and to safeguard the interest of the litigants. I will like to observe that there are cases, in which respondents have already celebrated the golden jubilee and are approaching towards the celebration of Diamond Jubilee. 11. One must understand the justice is the sovereign function of the State and the Courts are accountable to the society. The delay defeats the justice and the pendency of the cases for more than hall century in the courts are also causing great concern to the society. Discussions and the debates are going on but one thing is there that the society does not retain the limb for a long which is not useful for the society and it is in the interest of the society that the remedial steps should be taken so the people may have faith in the judiciary which existed earlier. The courts should be innovative and should apply the law in every by which the parties can get relief at the earliest. 12. As a Judge, I feel that the courts are neither for the Judges nor for the Members of the Bar but are meant for the society, for the consumer litigants. System based for the benefit of the society and the consumer litigants is the real system and we cannot extend the judicial large to a class of persons. 12. As a Judge, I feel that the courts are neither for the Judges nor for the Members of the Bar but are meant for the society, for the consumer litigants. System based for the benefit of the society and the consumer litigants is the real system and we cannot extend the judicial large to a class of persons. With this background 1 am of the view that while rejecting the application for grant of temporary injunction under 0.39 of the CPC some conditions can be imposed under clause (E) of S. 94 of the CPC. 13. In the instant case, the petitioner prays that the plaintiffs are not alienating the property and the application for grant of temporary injunction had been rejected. 1 will not like to disturb the orders of the courts below but I will like to add one condition that the defendants will have a right to alienate the property according to law. However, they will specify in the sale-deed or transfer-deed or also in the alienation-deed that the property in dispute and the cases are pending in relation to the properties. This will avoid the future litigation as the parties who are purchasing the property will have the knowledge of the litigation and he will purchase the property and he will be the transferee of the property subject to the decision of this Court. So by imposition of this condition that the defendants if they so choose to alienate the property will mention a note in the transfer deed and this will solve the problem of both the parties. The defendants will loose nothing because they claim that they have a right of alienation. The plaintiffs will also not loose because he would be transferees will know about the dispute or get the transfer in their names with a rider that the transfer of the property will be subject to the decisions of the cases pending in the Courts. I, therefore, direct that this condition should be imposed that in case of alienation of the property reference will be given about the pending litigation and every transfer will be subject to the decision of the cases pending between the parties in the Court. I, therefore, direct that this condition should be imposed that in case of alienation of the property reference will be given about the pending litigation and every transfer will be subject to the decision of the cases pending between the parties in the Court. The multiplicity of litigation should be avoided as far as practicable and generally, the relief prayed in this suit can also be prayed in a suit for partition in a case of partition or in a case of possession or partition. 14. If the courts cannot give relief for the long time then naturally the parties succeeding and particularly, the plaintiff, if he succeeds will be the looser and he will not be able to use and occupy the properties. If the plaintiff succeeds and if it is held that he is having a specific share in the properties naturally, he will be the looser and the gainer will be the defendant. The plaintiff remains out of possession of his share and the fruits are enjoyed by the defendant. Naturally, the position will be that the defendant will be the gainer. To safe guard the interest of plaintiff and to avoid the multiplicity of litigation and for the betterment of its judicial process and equitable justice I think that the value of the property should be assessed as it exists today. I, therefore, direct the learned Judge, of the trial court to appoint the approved valuer for the assess-ment of the value of the property and the valuer shall be paid by the plaintiff who has come in appeal. 15. In case, the plaintiff succeeds ultimately in the litigation then naturally, he shall be entitled to get the benefits of his share which may be decreed in his favour if he succeeds. Generally, his rental value is considered as 10% of the share. Naturally, if the plaintiff succeeds, he will be entitled for 10% of the value of his share as compensation per year which may be found ultimately if he succeeds. This amount may be treated as amount of compensation which should be paid to the plaintiff if he succeeds under clause (E) of S.94 of the CPC to meet the ends of justice and to avoid the litigation. The rental value shall be 1120 of the assessed value of the property. This amount may be treated as amount of compensation which should be paid to the plaintiff if he succeeds under clause (E) of S.94 of the CPC to meet the ends of justice and to avoid the litigation. The rental value shall be 1120 of the assessed value of the property. With this direction the order of the trial Court is modified and the appeal is disposed of accordingly. 16. Costs is made easy.