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2009 DIGILAW 2846 (ALL)

Ram Naresh v. State of U. P.

2009-08-13

ANIL KUMAR, RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma and Anil Kumar, JJ.—We have heard Sri I. P. Singh, learned counsel for the petitioner, learned standing Counsel appearing on behalf of opposite parties No. 1 to 4 and Sri R. N. Gupta, learned counsel appearing on behalf of opposite party No. 5. 2. By means of the present writ petition, the petitioners have prayed for the following reliefs : “(i) Issue a writ order or direction in the nature of mandamus commanding the opposite parties No. 2 to 5 that they ensure the peaceful possession of the petitioner at Plot No. 541 (Old No. 327) situated at village Ahirauli, Saloni, Pargana-Pashchim Rath, Tehsil Milkipur, district Faizabad. (ii) Issue a writ order of direction in the nature of mandamus commanding the opposite parties No. 2 to 5 that they restrain to the opposite party Nos. 6 to 22 that they not disturbed in the peaceful possession of the petitioner and not cut the trees, which are aged about 20-80 years old situated at Plot No. 541 (Old No. 327) situated at village Ahirauli, Saloni, Pargana Pashchim Rat, Tehsil Milkipur, district. Faizabad. (iii) Issue a writ order or direction which this Hon'ble Court may deem, fit and proper under the circumstances of the case. (iv) Allow the writ petition with cost in favour of the petitioner.” 3. In nutshell, the case of the petitioner is that the dispute relates to Gata No. 541 (Old No. 327) situate in Village Ahirauli Saloni, Pargana Paschim Rath, Tehsil Milkipur, district Faizabad. On the said plot, old trees aged about 20-80 years and oldest bushes are situated. On 20.10.2007, the opposite party No. 5 informed the petitioner that some persons of the village is going to allot the patta upon Gata No. 541 and as such, petitioner filed a suit, which was numbered as Civil Suit No. 700 of 2007 before the Civil Judge (Junior Division), Sadar, Faizabad for permanent injunction along with an application for temporary injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure and the trial court, after considering the application and objection, rejected the petitioners application for temporary injunction by the order dated 16.4.2008 inter alia on the grounds that the petitioner has no prima facie case and no balance of convenience is in his favour and no irreparable loss is going to cause to the petitioner. Feeling aggrieved, the petitioner-preferred an appeal before the District Judge, Faizabad and the District Judge, Faizabad, vide order dated 4.10.2008, while allowing the appeal partly, set aside the order dated 16.4.2008 and further directed the trial court to dispose of the original case by 31.10.2008 and also directed the parties to maintain status quo with regards to the trees standing on land No. 327. 4. Counsel for the petitioner submits that after passing the order dated 4.10.2008, the opposite parties were not disturbing the peaceful possession of the petitioner but all of a sudden under the political pressure of District Co-ordinator of B.S.P., the opposite party Nos. 2 to 5 trying to give the possession to the opposite parties No. 2 to 22 with the intention to cut the trees and grab the land. Thereafter, the petitioner moved an application before the opposite party No. 2 on 3.8.2009 but of no avail and as such, he preferred an application under Section 151 of C.P.C. before learned Small Causes Court, Faizabad that the said patta holders are trying to cut the trees and constructing new construction, on which, the trial court has fixed the date for disposal of the application for 22.8.2009. 5. So far as the violation of the injunction order passed in Regular Suit No. 700 of 2007 is concerned, it is not disputed that the petitioner has also moved an application under Section 151, C.P.C. and the same is pending disposal. 6. Section 151, C.P.C. provides as under : “151. Saving of inherent powers of the Court.—Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 7. The power of Section 151, C.P.C. to pass order of injunction in the form of restoration of possession of the Code is not res integra now. 8. The inherent powers of the Court under Section 151, C.P.C. are wide and are not subject to any limitations. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of thew wrong dong. 9. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of thew wrong dong. 9. The inherent power will not only be available in such a case, but it is bound to be exercised in that manner in the interests of justice. 10. Even apart from Section 151, C.P.C., we observe that as a matter of judicial policy, the Court should guard against itself being stultified in circumstances like this by holding that it is not powerless to undo a wrong done in disobedience of the Court’s order. But in this case it is not necessary to go to that extent as we hold that the power is available under Section 151, C.P.C. 11. In the case of Meera Chauhan v. Harsh Bishnoi and another, JT 2007 (1) SC 458 : 2007 (1) AWC 469 (SC), the Hon’ble Apex Court has held as under : "15. On a bare perusal of Section 151 of the Code of Civil Procedure, it cannot be said to be in dispute that Section 151 confers wide powers on the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 17. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, while dealing with the power of the Court to pass orders for the ends of justice or to prevent the abuse of the process of the Court, the Hon’ble Supreme Court held that the Courts have inherent jurisdiction to issue temporary order of injunction in the circumstances which are not covered under the provisions of Order XXXIX of the Code of Civil Procedure. 18. At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the Court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order. 19. 19. It is also well-settled that when in the event of utter violation of the injunction order, the party forcibly dispossesses the other, the Court can order restoration of possession to the party wronged.” 12. Further in the case of Manohar v. Hira Lal, AIR 1962 SC 527 , the Hon’ble Supreme Court has held : “While dealing with the power of the Court to pass orders in the ends of justice or to prevent the abuse of process of the Court, the Court has got inherent powers to pass an order under Section 151, C.P.C. which confers wide power on the Court to make such orders as they may be necessary for the ends of justice, or prevent the abuse of the process of the Court." 13. Further in the case of Ram Chand and Sons Sugar Mills (P.) Ltd. v. Kanhayalal Bhargava, (2004) 11 SCC 177 the Hon’ble Supreme Court has held : ‘‘The inherent power of a Court is in addition to and complementary to the power expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by constructions on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court.” 14. As discussed above, the Court has inherent power under Section 151, C.P.C. to prevent the abuse of process of the Court by any of the parties. In these circumstances, once the petitioner had already filed an application under Section 151, C.P.C. and the same is still pending and the matter is sub-judice, therefore, we are not inclined to interfere in the matter. 15. In view of what has been discussed above, the writ petition lacks merits and is liable to be dismissed. The writ petition is accordingly dismissed.