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2003 DIGILAW 785 (PNJ)

Dashmesh Bhatta Company v. Vajinder Singh

2003-05-22

M.M.KUMAR

body2003
Judgment 1. This is defendants petition filed under Sec. 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenging an order dated 12-5-2003 passed by the Additional District Judge, Karnal whereby the order of status quo issued by the Civil Judge in favour of the defendant-appellant has been set aside. 2. Brief facts as prima facie reflected in the orders of both the Courts below as well as in the grounds of this revision petition are that the plaintiff-respondents filed a suit for declaration with consequential relief of mandatory and permanent injunction to the effect that the registered lease deed dated 5-12-1997 and the agreement of lease dated 20-1-1999 are illegal, null and void. It was further claimed that the aforementioned documents have been prepared by way of fraud played by the defendant-petitioner upon the plaintiff-respondents. The relief of mandatory injunction has also been sought by the plaintiff-respondents seeking direction to the defendant-petitioner to level the land as per terms and conditions of the agreement of lease and make the land fit for cultivation. It is appropriate to notice that the lease deed dated 5-12-1997 was executed and was to run for a period of 21/2 years which permitted the defendant-petitioner to lift earth from the leased land as required for running of brick kiln. Accordingly, the lease was to terminate on 15-6-2001. There was an undertaking in the lease deed that the defendant-petitioner after the expiry of the lease, would get the land levelled and surrender its possession to the plaintiff-respondents. The lease money is specified and was to be paid according to the terms stipulated in the lease deed. Accordingly, the plaintiff-respondent filed a suit seeking a decree of mandatory injunction directing the defendant-petitioner to get the land levelled as per terms and conditions of the lease deed and make it fit for cultivation. Further damages have also been claimed for the period during which the plaintiff-respondent could not use the land because it was not got levelled as per terms and conditions. A further declaration was sought that the agreements dated 20-1-1999 and 5-12-1997 registered by the Sub-Registrar, Karnal were the result of fraud because the plaintiff-respondents were illiterate persons. 3. The defendant-petitioner in its written statement claimed that the period of lease was from 15-6-1997 to 14-6-2001. A further declaration was sought that the agreements dated 20-1-1999 and 5-12-1997 registered by the Sub-Registrar, Karnal were the result of fraud because the plaintiff-respondents were illiterate persons. 3. The defendant-petitioner in its written statement claimed that the period of lease was from 15-6-1997 to 14-6-2001. It has further been claimed that according to the terms of lease deed dated 5-12-1997, out of total land possession of 22 kanals 9 marlas was to be delivered to the defendant-petitioner on 5-12-1997 and the same was to remain with the defendant-petitioner upto 15-6-2000. It has further been pleaded by the defendant-petitioner that possession of rest of the land measuring 16 kanals was to be delivered to it on 1-10-1998 and the possession was to remain with it upto 15-6-2001. The defendant-petitioner has also pleaded that the lease deed was got registered at the office of Sub-Registrar, Karnal. Another agreement dated 20-1-1999 has also been set up by the defendant-petitioner, according to which the possession of 16 kanals of land was to be delivered on 1-10-1999 instead of 1-10-1998 and the defendant-petitioner was to remain in possession of the land upto 14-6-2001. The defendant-petitioner has also claimed that it is not liable to level the land because the plaintiff-respondent did not allow the defendant-petitioner to dig the earth in accordance with the terms of lease deed. The earth was yet to be lifted by the defendant-petitioner from 11/2 acres of the area and, therefore, the plaintiff-respondents were not entitled to the relief claimed. As a counter-claim the defendant-petitioner sought a decree of mandatory injunction seeking direction to the plaintiff-respondents that they should not dig and lift the earth from the land measuring 38 kanals 9 marlas. The defendant-petitioner before filing the counter-claim or the written statement filed an application under Sec. 151 read with Order XXVI, Rule 10 of the Code on 31-10-2002. 4. The learned trial Court entertained the application and without issuing any notice to the plaintiff-respondents allowed the application and appointed a local Commissioner for visiting the spot who was to submit his report on the question as to whether the plaintiff-respondents were digging any earth from the land in dispute. The local Commissioner inspected the spot and submitted his report on 7-11-2002, the first date fixed by the trial Court for serving of notice upon the defendant-petitioner after presentation of the suit on 12-10-2002. The local Commissioner inspected the spot and submitted his report on 7-11-2002, the first date fixed by the trial Court for serving of notice upon the defendant-petitioner after presentation of the suit on 12-10-2002. The defendant-petitioner filed its counter-claim and the written statement on 11-11-2002. The Civil Judge vide his order dated 2-12-2002 and placing reliance on Order XXXIX, Rule 1(a) of the Code allowed the application of the defendant-petitioner directing the parties to maintain status quo regarding the suit land till final disposal of the suit. 5. An appeal was filed by the plaintiff-respondents against the order dated 2-12-2002 of status quo passed by the learned Civil Judge. Learned Additional District Judge came to the conclusion that by no stretch of imagination, the lease period was beyond 15-6-2001 as pleaded and conceded by the defendant-petitioner. The learned Additional District Judge also concluded that the application under Sec. 151 of the Code was conceded to be in fact an application under Order XXXIX, Rules 1 and 2 of the Code and no application under Sec. 151 of the Code was maintainable. The view of the learned Additional District Judge reversing the order of status quo passed by the Civil Judge reads as under :- "Adverting to this second relief the law is very clear. Our own Hon ble High Court in the authority reported as Harbhajan Singh V/s. Kartar Singh, 1998 (2) Civil Court Cas 30, held that there is no provision to entertain an application filed by the defendant under Order 39, Rules 1 and 2 read with Sec. 151 of Code of Civil Procedure. This application shown to have been filed under Sec. 151 of Code of Civil Procedure was virtually filed under Order 39, Rules 1 and 2 read with Sec. 151 of the Code of Civil Procedure. Learned counsel for the defendant/respondent also conceded during the course of arguments that this application be deemed to have been filed under Order 39, Rules 1 and 2 read with Sec. 151 of Code of Civil Procedure. That being so this application was not maintainable. Learned counsel for the defendant/respondent also conceded during the course of arguments that this application be deemed to have been filed under Order 39, Rules 1 and 2 read with Sec. 151 of Code of Civil Procedure. That being so this application was not maintainable. No doubt the defendant had filed counter-claim along with the written statement but the moment this application was filed before learned lower Court there was no such counter-claim projected before lower Court and that being so learned lower Court committed an error while entertaining this application moved by the defendant for granting ad interim injunction in the shape of status quo as desired by the defendant. This is nothing but misuse of process of law. Even if for the sake of arguments the above application is taken to have been filed under Sec. 151 of the Code of Civil Procedure, the same was not maintainable at all. There is specific provision under Order 39, Rules 1 and 2 of Code of Civil Procedure under which the party can seek the relief of ad interim injunction as sought by the defendant in this suit. Thus the application filed under Sec. 151 of the Code of Civil Procedure on the face of it was not maintainable......" 6. Holding that the case of the defendant-petitioner itself is that the lease deed was upto 15-6-2001 and, therefore, no stay in its favour could be granted, the learned Additional District Judge has observed as under :- "The sum and substance of the pleadings of the parties in this case is that the agricultural land measuring 38 kanals 9 marlas was leased out by the plaintiffs to the defendant. As per the plaintiffs the term of the lease expired on 15-6-2000. According to the defendant the term was to expire on 15-6-2001. According to the defendant this term was extended upto the above date by way of another agreement executed between the parties on 1-10-1999. Regarding this agreement the plaintiffs pleaded their ignorance. They filed an affidavit that this agreement was a result of fraud having been played upon them and they never entered into any such agreement. They further contended that on the alleged date the stamp paper is not shown to have been purchased by either of them. Regarding this agreement the plaintiffs pleaded their ignorance. They filed an affidavit that this agreement was a result of fraud having been played upon them and they never entered into any such agreement. They further contended that on the alleged date the stamp paper is not shown to have been purchased by either of them. A counter-affidavit is filed by the defendant contending therein that the plaintiffs had brought this stamp paper and it had no knowledge as to where from they had brought the same. Which of the above two claims is correct is yet to be established after evidence is led by both the parties but the fact remains that after 15-6-2001, even as per the claim of the defendants, it had no authority to remain on land and use it. It was least concerned with its use by the plaintiffs. In case it had suffered loss on account of non-delivery of possession by the plaintiffs it was at liberty to seek damage, therefore and sue the plaintiffs. When no suit was filed by the defendant in this regard rather it put up its appearance only after plaintiffs sought the relief of mandatory injunction and damages as unfolded hereinabove while sketching out the facts, it does not behave the defendant to seek the ad interim injunction as prayed for. Granting of status quo by the lower Court tantamounts to causing exceptional hardship to the plaintiffs who are owners in possession of this land and the defendant has got no concern whatsoever with this land after 15-6-2000 (as per the case of the plaintiffs) and after 15-6-2001 (as per case of the defendant). This suit was filed by the plaintiff on 12-10-2002. Therefore, on that day the defendant had no locus standi to seek the relief like status quo as granted by learned lower Court. The impugned order, therefore, cannot be sustained in the eye of law." 7. Mr. Ashish Aggarwal, learned Counsel for the defendant-petitioner has argued that under Order XXXIX, Rule 1(a) of the Code, the expression any party has been used in contrast to the expression defendant or plaintiff used in clauses (b) and (c) of Rule 1. According to the learned counsel, an application, therefore, filed by the defendant-petitioner for grant of ad interim injunction even in a suit filed by the plaintiff-respondents would be maintainable. According to the learned counsel, an application, therefore, filed by the defendant-petitioner for grant of ad interim injunction even in a suit filed by the plaintiff-respondents would be maintainable. The learned Counsel has placed reliance on a judgment of the Supreme Court in the case of Manohar Lal Chopra V/s. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 and argued that the provisions made in the Code cannot control the inherent powers of the civil Courts under Sec. 151 of the Code by limiting it or otherwise affecting it. The inherent power has not been conferred which is implicit in the civil Court by virtue of its duty to do justice between the parties before it. Therefore, according to the learned counsel, it could not be concluded by the learned Additional District Judge that application under Sec. 151 of the Code was not maintainable and it was deemed to be an application only under Order XXXIX, Rules 1 and 2 of the Code. The learned Counsel has further contended that if the application of the defendant-petitioner is deemed to be an application under Sec. 151 of the Code alone, then even the appeal was not competent before the learned Additional District Judge. He has also relied upon the judgments of various High Courts that in the absence of any specific provision under Order XXXIX, Rules 1 and 2 of the Code, the application of the defendant-petitioner under Sec. 151 of the Code is competent. Those judgments are Rattu V/s. Mala, AIR 1968 Rajasthan 212; Dr. Ashish Ranjan Das V/s. Rajendra Nath Mullick, AIR 1982 Calcutta 529; Ram Chander V/s. Harbhajan Singh, 1986 Pun LJ 286; Harbhajan Singh V/s. Kartar Singh, 1998 (2) Civ Court Cas 30 (PandH); Ramaiah V/s. Godappa, 1989 CCC 290 (Karnataka); and Hamsa V/s. George, 1996 (1) Civ Court Cas 294 ; (1995 AIHC 6153) (Kerala). 8. Learned counsel has further argued that the application in any case was maintainable if the provisions of sub-rule (a) of Rule 1 of Order XXXIX of the Code are kept in view. He has also pointed out that once the defendant-petitioner has set up a counter-claim, its position would be that of a plaintiff and it would be covered by the provisions of Order XXXIX, Rules 1 and 2 of the Code. 9. He has also pointed out that once the defendant-petitioner has set up a counter-claim, its position would be that of a plaintiff and it would be covered by the provisions of Order XXXIX, Rules 1 and 2 of the Code. 9. I have thoughtfully considered the submissions made by the learned counsel and am of the view that the order passed by the learned Additional District Judge deserves to be upheld. It has not been disputed before me that the lease period under the agreement even according to the defendant-petitioner has come to an end on 15-6-2001. No claim for digging and lifting of earth from the land in dispute could be made after the expiry of the lease period. The learned Additional District Judge has rightly observed that any loss suffered by the defendant-petitioner on account of non-delivery of possession by the plaintiff-respondents would sound in an action for damages by suing them. However, the defendant-petitioner put in appearance only after the plaintiff-respondents put in appearance only after the plaintiff-respondents filed the instant suit seeking mandatory injunction and damages. It has also not been disputed that the plaintiff-respondents are owners in possession of the suit land and after 15-6-2001, the defendant-petitioner has got no concern with the same. The suit was filed on 12-10-2002 and on that day, the defendant-petitioner had no locus standi to seek the relief of status quo. 10. The argument of the learned Counsel that the application filed by the defendant-petitioner under Sec. 151 of the Code was competent, would not require any detailed consideration in view of the fact that on merits, the view taken by the learned Additional District Judge has been approved hereinabove because the period of lease even according to the version of the defendant-petitioner has expired. Moreover, counsel for the defendant-petitioner had conceded before the learned Additional District Judge that the application be deemed to have been filed under Order XXXIX, Rules 1 and 2 read with Sec. 151 of the Code. 11. The question whether the order of the Civil Judge is deemed to be an order passed under Order XXXIX, Rule 1(a) of the Code or under Sec. 151 of the Code and its effect on the maintainability of the appeal would not call for any decision in this case for another reason. 11. The question whether the order of the Civil Judge is deemed to be an order passed under Order XXXIX, Rule 1(a) of the Code or under Sec. 151 of the Code and its effect on the maintainability of the appeal would not call for any decision in this case for another reason. The basic object of the jurisdiction under Order XXXIX, Rules 1 and 2 as well as under Sec. 151 of the Code is to clothe the civil Court with the power to perform its duty to do justice between the parties before it. That object to my mind has been achieved by the order passed by the learned Additional District Judge. In any case, I would have exercised my revisional power under Sec. 115 of the Code by taking the view adopted by the learned Additional District Judge, even if the application of the defendant-petitioner is to be treated to have been filed under Sec. 151 of the Code alone. The Constitution Bench of the Supreme Court in Manohar Lals case (supra) has laid down that the inherent powers are to be used sparingly. If the order passed by the Civil Judge is an order under Sec. 151 of the Code, then the observations made by Constitution Bench of the Supreme Court in Manohar Lals case (supra) would furnish the guidance. The Constitution Bench relied upon the observations made in Maqbul Ahmad V/s. Onkar Pratap Narain Singh, AIR 1935 PC 85, holding that nothing in the Court shall be deemed to limit the inherent powers of the civil Court to make such an order which is necessary for the ends of justice. The observations of the Privy Council in Maqbul Ahmads case (supra) read as under :- "It is enough to say that there is no authority to support the proposition contended for. In their Lordships opinion it is impossible to hold that, in a matter which is governed by Act, an Act which in some limited respects gives the Court a statutory discretion, there can be implied in the Court outside the limits of the Act, a general discretion to dispense with its provisions. In their Lordships opinion it is impossible to hold that, in a matter which is governed by Act, an Act which in some limited respects gives the Court a statutory discretion, there can be implied in the Court outside the limits of the Act, a general discretion to dispense with its provisions. It is to be noted that this view is supported by the fact that S. 3 of the Act is peremptory and that the duty of the Court is to notice the Act and give effect to it, even though it is not referred to in the pleadings." 12. On the basis of aforementioned paragraph, their Lordships of the Supreme Court in Manohar Lals case (supra) has observed as follows : "These observations have no bearing on the question of the Courts exercising its inherent powers under Sec. 151 of the Code. The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the facts of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code. We, therefore, repel the first contention raised for the appellant. On the second question we are of the opinion that in view of the facts of the case, the Courts below are in error in issuing a temporary injunction to the appellant restraining him from proceeding with the suit in the Asansol Court. The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure. The question of issuing an order to a party restraining him from proceeding with any other suit in a regularly constituted Court of law deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice." 13. The question of issuing an order to a party restraining him from proceeding with any other suit in a regularly constituted Court of law deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice." 13. Looking from any angle, the view of the learned Additional District Judge accords with the ends of justice. The order dated 12-5-2003 passed by him is just and fair and does not call for any interference in my revisional jurisdiction under Sec. 115 of the Code. Accordingly, the revision petition is devoid of merit and thus, liable to be dismissed. 14. For the reasons recorded above, this petition fails and the same is dismissed.Petition dismissed.