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1993 DIGILAW 143 (HP)

DALIP SINGH v. GEETA RAM

1993-09-17

KAMLESH SHARMA

body1993
JUDGMENT Kamlesh Sharma, J—The petitioners are defendants in Civil Suit No. 204-A/l of 1992 presently pending in the Court of Sub-Judge 1st Class, Arki camp at Nalagarh, filed by the respondents-plaintiffs. Respondent-defendant, State of Himachal Pradesh, is also a party defendant No 5 in the suit. The suit of the respondents-plaintiffs is for permanent prohibitory injunction restraining the petitioners-defendants from causing any obstruction/blockade, and changing the nature of the suit property, as detailed in the Jamabandis for the year 1985-86 placed on record as Annexures-A and B and also for mandatory injunction to remove such obstruction, if caused, during the pendency of the suit. 2. Alongwith the plaint, an application under Order XXXIX, Rules 1 and 2, C. P. C. was also filed by the respondents-plaintiffs on which the following ad interim order was passed on 24th April, 1992 : "Accordingly, I hereby restrain the respondents Nos. 1 to 4 from causing obstruction/blockade and further from changing the nature of the suit property measuring 10 Biswas bearing Khasra No. 393/2/1 (0-3b) and 393/2/2 (0-7b), out of land measuring 65 bighas 5 biswas bearing Khasra No. 393/2/min, as comprising/in Khewat/Khatauni No. 297/320 min. pertaining to and situated in the area of village Dhang Upperli, H B. No. 89, Pargana Plassi, Tehsil Nalagarh, District Solan, as detailed in Jamabandi for the year 1985-86 till further order. The respondents can show cause against that order on or before 27-6-1992. The applicants are also directed to comply with the provisions of Order XXXIX, Rule 3, C. P. C. However, notice be issued against the respondent No. 5-StateofH. P. for the date fixed." 3. It seems, the petitioners-defendants came to know of the ad interim order 24th April, 1992 and they rushed to file reply to the application under Order XXXIX, Rules 1 and 2, C. P. C praying for vacation of the ex-parte order and an application for the appointment of a Local Commissioner to visit the spot to ascertain whether there exists any common path and what is the nature, user and character of a part of the suit land measuring 10 Biswas, comprised in Khasra No. 393/2/1 and 393/2/2. 4. The Sub-Judge 1st Class, Nalagarh, took cognizance of the application for appointment of a Local Commr. 4. The Sub-Judge 1st Class, Nalagarh, took cognizance of the application for appointment of a Local Commr. on 28th April, 1992 and appoint ed one Sh B. S Thakur, Advocate, as the Local Commissioner to visit the spot on 1st May, 1992 after giving notice to the parties or their Counsel and submit his report on or before 27th June, 1992 on which date the suit as well as the application under Order XXXIX, Rules I and 2, C. P. C. were listed for hearing. The Local Commissioner was directed to ascertain, "...the existence or otherwise of alleged common path, rivulet (Nallah), present nature, user and character of the suit land measuring 10 Biswas bearing tatima Khasra Nos. 393/2/1 (Ob-3b) and 393/2/2 (Ob-7b\ as shown in Annexure A, out of the land measuring 65 Bighas 5 Biswas bearing Khasra No. 393/2 min, situated in Village Dhang Upperli Pargana Plassi Tehsil Nalagarh, District Solan, HP after due notice to the parties on their Counsel on 1st May, 1992 and submit his report on 27-6-1992 .." Notice of this application was given to the respondents-plaintiffs for 27th June, 1992. The report of the Local Commissioner dated 30th October, 1992 is on the record. 5. It seems no proceedings were held en 27th June, 1992 because in the meantime the suit stood transferred to Sub-Judge 1st Class Arki camp at Nalagarh. After transfer, the parties could be served for 26th December, 1992 when the case was adjourned to 27th April, 1993. But after two days, on 28th December, 1992, an application was moved on behalf of the respondents-plaintiffs praying for issuance of necessary orders for removal of blockade from point A to A-l and B to B-l and fencing thereon to open the space for ingress and egress and also for taking their cattle and agricultural implements, that is, Rehra, truck etc. with the assistance of police. When this application was placed before the Sub-Judge, Arki camp at Nalagarh, on 29th December, 1992, notice to Sh. Kashmiri Lal, learned Counsel appearing for the petitioners-defendants was issued for the very next day, that is, 30th December, 1992. There is nothing on the record to show that, in fact, this notice was served upon Sh. Kashmiri Lal, learned Counsel, or upon any of the petitioners-defendants. Kashmiri Lal, learned Counsel appearing for the petitioners-defendants was issued for the very next day, that is, 30th December, 1992. There is nothing on the record to show that, in fact, this notice was served upon Sh. Kashmiri Lal, learned Counsel, or upon any of the petitioners-defendants. On 30th December, 1992, Sub-Judge, Arki camp at Nalagarh, ex parte accepted the application and proceeded to issue the following directions : "I feel that to meet the ends of justice the order is required to be implemented by the Court that for only police can be directed to do so. Thus, as per the provisions of section 151, C. P. C. as well as section 94, C. P. C, I feel that the Court can direct the enforcement of the order passed to be complied with by the parties Thus, direction be issued to the SHO to get the order dated 24th October, 1992 implemented on the spot and to remove the blockade if any raised by the respondents The compliance report be submitted to the Court on 20-1-1993." 6. Now, the petitioners-defendants have challenged the order dated 30th December, 1992 alleging that such an order cannot be passed ex parte for enforcement of ad interim order against which cause was shown by the petitioners-defendants by filing reply to the application under Order XXXIX, Rules 1 and 2, C. P. C. Had the respondents-plaintiffs any grievance against the enforcement of the ad interim order dated 24th April, 1992, they could point out on 26th December, 1992 when the case was adjourned to 27th April, 1993 for the service of proforma-respondent defendant No. 5. Moreover, besides the reply to the application under Order XXXIX, Rules 1 and 2, C. P. C the report dated 30th October, 1992 of the Local Commissioner appointed by the trial Court vide order dated 28th April, 1992 was on record wherein it was observed that" .....there is no path on the spot which the plaintiffs are claiming The Nallah is existing between the houses of plaintiffs and defendants which is situated in Khasra No, 393..." 7. Sh. Kashmiri Lal, learned Counsel appearing for the petitioners- defendants, has relied upon Kachupennu Ambujakshi and others v. Veluthankunju Vasu Chunnar and others, 1993 Civil CC 313 (Ker) and Sri-la-Sri Sivasubramanyananda Swami v. Sri la-Sri Arunachalasamy Chidambram and another, 1993 (1) SJ (Banking) 356. Sh. Kashmiri Lal, learned Counsel appearing for the petitioners- defendants, has relied upon Kachupennu Ambujakshi and others v. Veluthankunju Vasu Chunnar and others, 1993 Civil CC 313 (Ker) and Sri-la-Sri Sivasubramanyananda Swami v. Sri la-Sri Arunachalasamy Chidambram and another, 1993 (1) SJ (Banking) 356. in support of his submission that police assistance could not be ordered for the enforcement of the ad interim order which was duly objected to, inter alia, on the ground that it was obtained by mis-stating the facts, more so, without hearing the opposite party. Sh. Bhupender Gupta, learned Counsel appearing for the respondents-plaintiffs, has tried to support the impugned order and has relied upon Jaishi Ram and others v. Salig Ram, 1981 Sim LC 156 and A G, Gopal and others v. K. R, Lillybai, 1991 Civil CC 591 (Mad). 8. The ratio of the judgments cited by the learned Counsel for the parties is that on violation of a stay order, the Court can invoke its inherent powers under section 151, C. P. C. for providing police aid for the enforcement of its order of temporary injunction, when it is brought to its notice that the enforcement of the said order is sought to be prevented or obstructed. Such a direction for providing police help to the party who has obtained the order of temporary injunction is nothing but follow- up action to implement its earlier order of injunction if the Court finds that the party who bad secured the order of injunction from it is not in a position to have its full benefit owing to either obstruction or non co operation of the other side. By now, it has been held by a number of High Courts that in the absence of any specific provision in the Code of Civil Procedure for enforcement of the interim injunction granted by the Court, the Court can invoke its inherent powers under section 151, C.P.C. and enforce the said order. (Please see Rayapati Audemma v. PothineniNara- simham, AIR 1971 AP 53, Subol Chandra Dutta and others v. Chimai Charan Nandy and others, AIR 1980 Cal 126 ; Jaishi Ram and others v. Salig Ram, 1981 Sim LC 156 ; Sujit Pal v. Prabir Kumar Sun and others, AIR 1986 Cal 220 and Subal Kumar Dey v. Puma Chandra Giri and others, AIR 1989 Orissa 214. The Allahabad and Karnataka High Courts have taken a contrary view of which the learned Judges of the Madras High Court have taken note in Para 14 of their judgment in Sri-la-Sri Sivasubramanyananda Swami (supra) but did not agree to it. This Court also, with respect, does not subscribe to the view of the Allahabad High Court and the Karnataka High Court. 9. The scope of exercise of inherent powers under section 151, C PC, has been laid down by the Supreme Court in Padam Sen and another v. The State of Uttar Pradesh, AIR 1961 SC 218; Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 and M/s. Jaipur Mineral Development Syndicate, Jaipur v. The Commr. Of I. T., New Delhi, AIR 1977 SC 1348. The inherent powers of the Court are inherent in it by virtue of its duty to do justice between the parties before it. These are in addition to the powers specifically conferred on the Court by the Code and are not in conflict thereof and are necessary to pass an order for the ends of justice or to prevent the abuse of the process of the Court. 10. In the present case, this Court is confronted with somewhat different situation, whether the trial Court has committed material irregularity in the exercise of its inherent powers in providing police help to enforce an ad interim injunction order against which cause was shown by the opposite party, without considering the material on record and without hearing the opposite party. The answer is in the affirmative. Besides other infirmities, the impugned order is violative of the principles of natural justice as it has been passed without giving an opportunity to the petitioners-defendants to show cause against th6 allegations made in the application that they had, " created blockade by putting Bund and fencing the same . by which the ingress and egress of the plaintiff for the link road has been blocked " though notice of the application was given to Sh. Kashmiri Lal, learned Counsel appearing for the petitioners-defendants, yet, it was not verified before proceeding ex parte whether it was, in fact, served or not The facts and circumstances on record did not justify exparte order of providing police assistance for enforcement of the ad interim order. 11. Kashmiri Lal, learned Counsel appearing for the petitioners-defendants, yet, it was not verified before proceeding ex parte whether it was, in fact, served or not The facts and circumstances on record did not justify exparte order of providing police assistance for enforcement of the ad interim order. 11. It is not in dispute that the petitioners-defendants had already put in appearance before the Sub-Judge, Arki camp at Nalagarh, on 26th December, 1992 when the case was adjourned for 27th April, 1993 and their reply to the application under Order XXXIX, Rules 1 and 2, C.P.C. as well as the report of the Local Commissioner dated 30th October, 1992 were on record In their reply, the petitioners-defendants had denied the allegations made in the application and specifically alleged that the property in dispute was never used by the respondents-plaintiffs or any other person as a passage, for grazing the cattle or for discharging the rainy water of the village as alleged by them. The proper course for Sub-Judge, Arki camp at Nalagarh, was to hear the parties on the application under Order XXXIX, Rules 1 and 2, C. P. C. and pass final order thereon and thereafter he could provide police assistance to the party in whose favour the order was issued finding that the opposite party is creating obstruction and not co-operating in the implementation of the said order. 12. The result of the above discussion is that there is merit in this revision petition which is accepted and the order dated 30th December, 1992 of Sub-Judge 1st Class, Arki camp at Nalagarh, is set aside. He is directed to proceed with the matter in accordance with law after hearing the parties who are directed to be present before him on 20th October-, 1993. 13. The records be sent back so as to be available to the Sub-Judge, Arki camp at Nalagarh, well before the date fixed. Costs of this petition on parties. Revision petition allowed.