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2005 DIGILAW 238 (JHR)

ISHWAR LAL PATEL v. DHRUB NATH SINGH

2005-03-23

M.Y.EQBAL

body2005
Judgment : M. Y. EQBAL, J. ( 1 ) HEARD Mr. R. S. Mazumdar, learned Counsel appearing for the petitioner. ( 2 ) IN the instant application filed under section 227 of the Constitution of India, the petitioner has prayed for quashing the order dated 7-2-2005 passed by the District Judge, dhanbad in Misc. Appeal No. 93 of 2004 whereby he has dismissed the appeal at the admission stage on the ground that appeal was not maintainable against the order passed under Section 151 of the Code of Civil procedure. ( 3 ) SINCE the impugned order was passed by the District Judge before admitting the appeal, i do not think it necessary to hear the respondent for deciding the question of law as to whether the District Judge was correct in law in dismissing the appeal as not maintainable. ( 4 ) THE plaintiff-respondent filed Title Suit no. 87 of 2004 praying, inter alia for a decree declaring the suit land as a road in the use of the plaintiff and the performa defendants and also for perpetual injunction restraining the defendant No. 1, his main agnate, to construct or execute any work over the said road. The defendant-petitioner filed written statement denying and disputing the averments made in the plaint. The plaintiff-respondent also filed a petition under Order XXXIX, Rules 1 and 2 read with Section 151, CPC praying, inter alia, for a temporary injunction restraining the defendant-petitioner from raising any construction over the said land. The petitioner filed show cause to the aforesaid petition opposing the said prayer on various grounds. The munsif, Dhanbad after hearing the parties, disposed of the application on 13/10/2004 by directing both the parties to maintain status quo with regard to the said land. Aggrieved by the said order, the defendant-petitioner filed appeal before the District Judge, Dhanbad being M. A. No. 93 of 2004. The District Judge dismissed the appeal holding that the appeal is not maintainable. The impugned order dated 7/2/2005 passed by the District Judge, in Misc. Appeal No. 93 of 2004 is quoted herein below:"learned lawyer for the appellant has been heard on the point of maintainability of this appeal. The District Judge dismissed the appeal holding that the appeal is not maintainable. The impugned order dated 7/2/2005 passed by the District Judge, in Misc. Appeal No. 93 of 2004 is quoted herein below:"learned lawyer for the appellant has been heard on the point of maintainability of this appeal. The appellant has filed the instant appeal on being aggrieved by and dissatisfied with the order dated 13/10/2004 passed by Munsif 1st, Dhanbad in T. S. No. 87/2004 by which the learned munsif 1st directed both the parties to maintain status quo. Defendant is the appellant. The plaintiff of the suit filed a petition before the Court below under Order xxxix, Rules 1 and 2 under Section 151 of the CPC for restraining the defendant no. 1 in making construction on the disputed road. The Court below after hearing both the parties directed the parties to maintain status quo. The aforesaid order appears to have been passed by the Court below exercise its jurisdiction under Section 151 of the CPC. The order passed under section 151 of the CPC is not appealable order. The same can be challenged in the exercise of the Revisional jurisdiction of the Honble High Court. The appeal is against the order of the Munsif 1st passed under Section 151 of the cpc which is not maintainable before this Court. Hence, there is no merit in this appeal. The appeal is, accordingly dismissed. " ( 5 ) FROM bare perusal of the aforesaid order, it is manifest that the District Judge presumed that the order of status quo was passed by the Munsif under Section 151, CPC and therefore, the appeal is not maintainable. It is, therefore, necessary to look into the order passed by the Munsif while disposing of the application under Order XXXIX, Rules 1 and 2 read with Section 151 of the CPC. A copy of the order dated 13-10-2004 passed by the munsif is annexed as Annexure-3 to the writ petition. From reading of the order, it reveals that the Munsif passed very elaborate and rea-soned order after considering the pleadings and the injunction application and the rejoinder filed by the parties. After considering all the facts and the documents brought before him, he recorded a prima facie finding that since 1983 the plaintiff has been using the land as road. From reading of the order, it reveals that the Munsif passed very elaborate and rea-soned order after considering the pleadings and the injunction application and the rejoinder filed by the parties. After considering all the facts and the documents brought before him, he recorded a prima facie finding that since 1983 the plaintiff has been using the land as road. The Munsif also came to a finding that balance of convenience lies in favour of the plaintiff and if the defendant is not stopped from making any construction on the road, then the plaintiff will suffer and irreparable injury. The learned Munsif, therefore, held that it is fit and proper for the parties to maintain status quo during the pendency of the suit. Accordingly, the parties were directed to maintain status quo. The concluding portion of the order as under: In the aforesaid circumstances, 1 fail to understand as to how the learned District Judge held that the order of status quo was passed under Section 151 and therefore, appeal is not maintainable. ( 6 ) THE law relating to the issue of injunction in civil suits is governed by the Specific relief Act and the Code of Civil Procedure. The grant of perpetual injunction is regulated by the Specific Relief Act while grant of temporary or interlocutory injunctions, which are simply intended to preserve the status quo pending the decision, are regulated by the Code of Civil Procedure. Besides that the Court has also inherent power to issue a temporary injunction under Section 151 of the Code when the case does not fall within the terms of Order XXXIX, rules 1 and 2 CPC. It is well settled that the Court mark in the case of an injunction under Order XXXIX of the Code grant it upon sue terms as to the duration of the injunction as it thinks fit. A temporary injunction merely provisional in its nature and do not conclude a right, its effect and object is merely to preserve the property in dispute in status quo, until the hearing or further order or to prevent future injury leaving matter as far as possible in status quo until the suit can be heard and determined. A temporary injunction merely provisional in its nature and do not conclude a right, its effect and object is merely to preserve the property in dispute in status quo, until the hearing or further order or to prevent future injury leaving matter as far as possible in status quo until the suit can be heard and determined. ( 7 ) THE author, Sir John G. Woodroffe, in his book law Relating to Injunctions described the meaning of temporary injunction in the following words :"the sole object of an interlocutory injunction is to preserve the subject in controversy in its then condition, and without determining any question of right merely to prevent the further perpetration of wrong, or the doing of any act whereby the right in controversy may be materially injured or endangered. Only such restraint will, therefore, be interposed as may suffice to stop the mischief complained of and preserve matters in status quo. In granting such injunctions the Courts in no manner anticipate the ultimate determination of the questions of right involved. They merely recognise that a sufficient case has been made out to warrant the preservation of the property or rights in issue in status quo until a hearing upon the merits, without expressing and indeed without having the means of forming a final option as to such rights. The Court upon an application for a temporary injunction will deal with the application upon the evidence before it and will confine itself strictly to the object sought and as far as possible abstain from prejudging the question in the case. " ( 8 ) SUCH a similar question arose in this case of Firm Ishar Das Devichand and another v. R. B. Prakash Chand and another. In that case also, an application under Order xxxix, Rules 1 and 2 and Section 151 of the cpc was filed for the grant of temporary in-junction but the same was dismissed by the subordinate Judge, Amritsar. On appeal, the district Judge,. Amritsar held that since the impugned order was passed under Section 151 cpc, no appeal lay against that order. The high Court also dismissed the revision filed by the appellant. In appeal by Special Leave, the supreme Court observed that:"6. It is common ground that the appellants filed an application under Order xxxix, Rules 1 and 2 and Section 151, cpc. The high Court also dismissed the revision filed by the appellant. In appeal by Special Leave, the supreme Court observed that:"6. It is common ground that the appellants filed an application under Order xxxix, Rules 1 and 2 and Section 151, cpc. The learned Sub-Judge had to consider whether this application was competent or not competent under Rule 2 of Order XXXIX. In deciding that no such application lay under Order XXXIX, rule 2 on the ground that what the appellants were complaining of was not an injury within Order XXXIX, Rule 2, he was passing an Order under Order xxxix, Rule 2 itself. In appeal the appellants could contend that the learned Sub-Judge had misconstrued order XXXIX, Rule 2, including the word "injury". 7. The preliminary objection of the respondent before the learned District judge that the order, dated July 20, 1967 of the Sub-Judge was passed under section 151, CPC, and not under order XXXIX, Rules 1 and 2, CPC is not sound because in holding that Order xxxix, Rule 2 did not apply the learned Sub-Judge was not exercising his inherent powers. What the learned district Judge seems to have done is to hold that the application for temporary injunction did not fall within Order xxxix, Rule 2 and, therefore, no appeal lay. This reasoning is really on the merits of the case and not relevant to the preliminary objection raised by the respondent. 8. We must, therefore, hold that the District judge and the High Court erred in holding that no appeal lay against the order of the Trial Court, dated July 20, 1967. " ( 9 ) IN the case of Durga Jha v. Dhuma mahto alias Shuma Teli a Bench of this court held that even before granting a relief of status quo, the Court is required to record a finding with regard to prima facie case, balance of convenience and irreparable injury and for the reasons that the relief by way of status quo is as good as injunction. It was observed that : "from perusal of the observations made by the Appellate Court it appears that it granted relief of status quo till the final disposal of the suit. It was observed that : "from perusal of the observations made by the Appellate Court it appears that it granted relief of status quo till the final disposal of the suit. It appears that the learned Appellate Court is not fully conversant with the law because it is settled law that even for grant of status quo the Court has to record a finding, recording prima facie case, balance of convenience and irreparable injury caused to the party seeking injunction. The relief of status quo is as good an injunction. Therefore, while dismissing of the appeal there was no question of grant of status quo and directing the plaintiff to physically verify the suit land. Such direction is absolutely unknown to law. It was expected that the 8th Additional district Judge, Dhanbad before passing the impugned order should have gone through at least the settled principles of law in the matter of grant of injunction. ( 10 ) AS noticed above, the Munsif, after considering the entire facts of the case, recorded finding on the three ingredients, namely prima facie case balance of convenience and irreparable injury, and then directed the parties to maintain status quo. In other words, by granting status quo, the defendant was stopped from making any construction on the land for which application for temporary injunction was filed under Order XXXIX, Rules 1 and 2 read with Section 151, CPC. The learned District Judge on wrong assumption treated that order passed under Section 151 and consequently, gravely erred in holding that the appeal is not maintainable. The impugned order, therefore, suffers from serious irregularity and the learned District judge failed to exercise jurisdiction vested in it by law. ( 11 ) FOR the aforesaid reasons, this writ application is allowed and the impugned order passed by the District Judge is set aside. The matter is remitted back to the District Judge to entertain, the appeal and dispose of the same on merit after giving opportunity of hearing to both the parties. Petition allowed. --- *** --- .