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2009 DIGILAW 129 (JK)

Amarjeet Singh (Dr. ) v. Gh. Nabi Khan

2009-03-20

MOHAMMAD YAQOOB MIR

body2009
1. Building including land situated at Amira Kadal Chowk opposite 1st bridge at Had Singh High Street Srinagar belonged to one Harbans Singh. The building comprising of three floors and one shop, excluding shop three floors are claimed to be under tenancy of the petitioners from early eighties. With the advent of turmoil which erupted in early nineties the petitioner closed the Clinic, as he was running in the said building but continued to pay the rent to the Landlord. In the year 2004 dispossession was threatened by Iqbal Singh son and Dapinder Kour d/o Harbans Singh and one Mohammad Amin Latoo. 2. Petitioners filed suit for declaration and permanent prohibitory injunction before court of 2nd Additional Munsiff, Srinagar. Alongside suit application was also filed for grant of ad interim relief, same was granted vide order dated 20.11.2004 to the effect that the non applicants therein shall not cause interference with the tenancy of the applicants (Petitioners) over the suit property. Disobedience of the said direction by the non-applicants therein prompted the petitioners to file application for implementation of the order through police. Disturbance with possession constrained petitioners to file an application for restoration of Status quo ante, before the court of Sub Judge (CJM) Srinagar, as the case was transferred from the court of Ilnd Additional Munsiff to the court of Sub Judge (CJM) under the orders of the Learned Principal District Judge Srinagar. Learned Sub Judge vide his detailed order dated 19.6.2006 passed the following direction: "a. that the tenanted premises as described in para 4 of the plaint , except the room on first floor of the building on road side as is stated to be in possession of defendant No. 3 Mohammad Amin Latoo, shall remain under lock and key of the plaintiff No.l. The lock shall be put in presence of the NAZIR of this court on the suit property after removing the present lock which may be put to use by the plaintiff No. 1 for the purpose it has been leased out; b. that the defendant No. 3 Mohammad Amin Latoo shall remain in possession of the room on first floor as described in the Advocate, commissioner report as a care taker of the defendant No. 1. c. that the position as mentioned in para `a and `b above of the tenanted premises shall remain in existence till further orders from this court." 3. Dis-satisfied with the order the non applicants namely Iqbal Singh filed the appeal, which came to be disposed of vide order dated 8.11.2006 by the court of 1st Additional District Judge Srinagar. It was brought to the notice of the learned court that the appeal filed by Iqbal Singh is in-competent. Suit property has been sold through Sale deed executed on 8.5.2006 and registered on 31.5.2006. Learned appellate court noticing the position of Sale deed having been executed on 8.5.2006 and the order impugned having been passed on 19.6.2006 has opined that the appellant Iqbal Singh has no interest left in the suit property, so has no locus standi or Cause of action in the appeal or in the suit, therefore, appeal being not maintainable, dismissed it in limini. 4. On appearance before the trial court on 14.11.2006, application for withdrawal of the suit was allowed on the same date and suit was dismissed as withdrawn with liberty to file fresh one in case need arises. 5. Petitioners claim that the present respondents purchasers of the property being Landlords were requested to receive the rent, which they refused instead started interference, which prompted the petitioners to file a fresh suit against the present respondents, same came to be filed on 5.9.2006. Learned Sub Judge (CJM) Srinagar to whom suit was assigned while considering the application for ad interim relief noticing the urgency dispensed the prior notice and granted interim direction to the following effect: "In the meantime, subject to the filing of objections and consideration of the same, the non applicants/defendants are hereby temporarily restrained from causing any interference with the plaintiffs possession and enjoyment of suit premises as described hereinabove as tenants. The plaintiffs/applicants are directed to make compliance of the requirement of proviso-3 of Order 39 CPC." 6. Subsequent to the passing of the said order on the application for police protection, Learned Sub Judge vide order dated 16.9.2006 asked the police SHO P/S Shaheed Gunj to make known action, which has been taken upon application by the applicant with the Police Station. Instead of filing objections non-applicants opted to file appeal, same stand disposed of by the court of Learned 3rd Additional District-Judge vide his detailed Judgment dated 21.12.2006. Instead of filing objections non-applicants opted to file appeal, same stand disposed of by the court of Learned 3rd Additional District-Judge vide his detailed Judgment dated 21.12.2006. It is this Judgment which is impugned. 7. Learned 3rd Additional District Judge while setting aside order dated 5.9.2006 as well as order dated 16.9.2006 has observed that Learned trial court has relied upon the order dated 19.6.2006 passed in the earlier suit, when said order with the withdrawal of the suit ceased to be in operation, as with the withdrawal of the suit said direction would stand automatically withdrawn, said position has been over looked by the trial court. Further more while accepting the appeal has remanded back the case to the trial court for fresh adjudication and has also observed that two legal aspects are required to be addressed by the trial court. The said two legal aspects are : 1. Whether mere filing of an application seeking withdrawal of suit will amount to withdrawal of the suit without recording a formal order by the court to that effect and whether afresh suit can be instituted on the assumption that the earlier suit stands withdrawn. 2. Whether a fresh exparte injunction in the subsequent suit could be passed on the strength of an interim arrangement ordered in the earlier suit without taking into consideration the consequences thereof." 8. Appearing counsel for the petitioners would contend that Learned appellate court, firstly should not have entertained the appeal, as the order was subject to objections of the otherside. Trial court should have been permitted to decide the application after consideration of objections of the otherside. Further contended that a subsequent suit was based on a different cause of action, so withdrawal of the earlier suit has got no bearing on the subsequent suit. In support of this contention relied on the Judgment Captioned Valabai Dass v. Dr. Madan Lal AIR 1970 SC 987. 9. Learned counsel appearing for the respondents contends that in the suit petitioners (plaintiffs) had specifically pleaded that the earlier suit was withdrawn, when in fact suit was pending. Furthermore learned trial court should not have passed the order of interim injunction without hearing the respondents. 10. Considered. This case has its own chequered history. Object of the legal proceedings is to ensure that justice prevails. Furthermore learned trial court should not have passed the order of interim injunction without hearing the respondents. 10. Considered. This case has its own chequered history. Object of the legal proceedings is to ensure that justice prevails. Justice according to law cannot be permitted to be thwarted at the behest of the tricksters. For grant or refusal of equitable relief either party should be free from blame. The positive case of the petitioners is that they continued to be in possession of the building including the shop as tenants. The ex-landlords Iqbal Singh and others while failing in design to take over the possession adopted a short cut route to get rid of litigation and also to get rid of petitioners (tenants) during the pendency of the suit has sold the building alongwith land to the present respondents, pursuant to a Sale deed purported to have been executed by Iqbal Singh, Amrik Kour daughter and Kanwal Jeet Kour d/o Harbans Singh, same has been executed on 8.5.2006 and registered on 31.5.2006. Earlier suit captioned Dr. Amarjeet Singh and another v. Iqbal Singh and others was instituted on 20.11.2004. Application for ad interim injunction has been decided on 19.6.2006 and appeal has been preferred on 21.7.2006. The ex-landlord party in the earlier suit had concealed the fact of the execution of the Sale deed before the trial court and being conscious of execution of the Sale deed and registration thereof has consciously with a mischievous design filed the appeal against the trial court order dated 19.6.2006 on 21.7.2006 and the Learned 1st Additional District Judge (appellate court) took serious note of the development has entertained the application for taking cognizance of fraud and forgery committed in the Judicial proceedings and further more has rightly opined that the appellant Iqbal Singh has no locus standi or cause of action in the appeal or in the suit. 11. It is during the pendency of that appeal on noticing the development about the execution of the Sale deed, application for withdrawal of the suit has been filed by the petitioners before the trial court on 5.9.2006, which remained to be disposed of due to the pendency of the appeal, finally has been disposed of vide order dated 14.11.2006, but however, subsequent suit titled Dr. Amarjeet Singh and another v. Ghulam Nabi Khan and another has been instituted on 5.9.2006, i.e. before the withdrawal of the earlier instituted suit captioned Dr. Amarjeet Singh and another v. Iqbal Singh and others, it is in this backdrop Learned court of 3rd Additional District Judge while hearing the appeal against the order of ad interim injunction dated 5.9.2006 passed in the subsequent instituted suit has observed, as to whether mere filing of application seeking withdrawal would amount to withdrawal and then whether fresh suit can be instituted on the assumption that the earlier suit stands withdrawn and secondly whether fresh exparte injunction in the subsequent suit can be passed on the strength of an interim arrangement ordered in the earlier suit. 12. Learned counsel appearing for the petitioners contended that the word `subject matter as occur in the order 23 Rule 1 CPC, means that when the Cause of action and the relief claimed in the 2nd suit are same, then second suit can be considered to have been brought in respect of the same subject matter. In the earlier suit dispossession was threatened by the non-applicants therein namely Iqbal Singh, Dapinder Kour and Mohammad Amin Latoo. Thereafter on the execution of the Sale deed the said persons lost interest and lost the locus standi and their interference stopped, so suit became infructuous. Whereas, subsequent to the execution of the Sale deed the vendees- present respondents being landlords refused to receive rent and started interference, so a new and different cause of action accrued, based on which subsequent suit was filed. Therefore, earlier withdrawn suit and the subsequently filed suit are based on different cause of action and against different parties. This aspect of the matter has been ignored by the Learned appellate court and instead of addressing this position has remanded the case back to the trial court. 13. In the Judgment captioned Vila Bhai Dass v. Madan Lal reported in AIR 1970 SC Page 987. The expression subject matter has been dealt with and it has been held: "The expression "Subject matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. The expression subject matter has been dealt with and it has been held: "The expression "Subject matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject- matter of the second suit is the same as that in the previous suit." 14. The projected aspect of the matter, as to whether cause of action and the relief claimed in the 2nd suit is same, as in the first suit, is better left to be decided by the Learned trial court, so that either party may not lose chance of remedial measures, because it shall not be proper to decide such triable issue while considering the validity of an order of injuction, which is still subject to objections. 15. Coming back to first contention of the Learned counsel, that the Learned appellate court (3rd Additional District Judge) should not have entertained the appeal against the ad interim injunction which was subject to objections, carries weight, so prevails. 16. It is trite that order of injunction whether ex parte or final or subject to objections, passed under Order 39 CPC is appealable as covered under Order 43 Rule 1 of CPC but this court in the Judgment captioned Astral Traders v. Mohammad Shaban Dar, reported in 1982 KLJ page 325 has laid down that as a matter of practice appeals against the interim injunction orders passed subject to objections shall not be entertained, so as to enable the trial court to consider the rival contentions and material placed on record in support thereof. Again this court in the Judgment captioned K.K. Puri and others v. A.K. Puri SLJ 1994 190 while entertaining the appeal against the order of injunction subject to objections has held that it shall not constitute precedent for any other case. Again this court in the Judgment captioned K.K. Puri and others v. A.K. Puri SLJ 1994 190 while entertaining the appeal against the order of injunction subject to objections has held that it shall not constitute precedent for any other case. It has been further held that practice of not entertaining appeal against order of injunction, subject to objections has hardened into a rule, only in rare cases departure is made, i.e. when order appears manifestly perverse or suffers from lack of jurisdiction or bias of the trial court, is apparent on the face of the record. 17. Learned appellate court has entertained the appeal inconsistent with the policy adopted, perhaps on the question of institution of subsequent suit before withdrawal of the earlier suit and the pendency of the application for withdrawal thereof, but finally has again left same question open for determination to the trial court, when it is so Learned appellate court should not have entertained the appeal. Therefore, order passed by the appellate court under challenge is not sustainable, as such is set aside. Trial court orders dated 5.9.2006 and 16.9.2006 restored with the direction that application for injunction as pending shall be finally disposed of within one month positively. 18. Appearance of the parties before the trial court is fixed on 4th of April 2009. Copy of the order alongwith appellate court record and copy alongwith trial court record be send back to the concerned forthwith.