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Madhya Pradesh High Court · body

2009 DIGILAW 386 (MP)

SURENDRA RATHORE v. VISHWANATH BHASIN

2009-03-25

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2009
Judgment ( 1. ) SIGNIFICANT question which arises in the writ petition is whether an application under section 94 of Code of Civil procedure, 1908 is maintainable for the purpose of grant of injunction without institution of the suit, there being no legal impediment in institution thereof. ( 2. ) PETITIONER Surendra Rathore without filing suit has filed an application before the Court of Second Additional District judge under section 94 (c) and 94 (e) read with section 151 of CPC and prayed for grant of temporary injunction against the respondents, restraining them from selling or alienating agricultural land comprised in survey No. 67/1 area 0. 344 hectare, survey No. 68/1 area 1. 011 hectare, total area 1. 355 hectare. ( 3. ) THE petitioner averred in the application that Vishwanath bhasin and Pramod Bhasin had agreed to sell the aforesaid agricultural land for a consideration of Rs. 10,25,000/- per acre. Pursuant to the agreement, the petitioner had paid a sum of Rs. 3 Lakhs by cheque no. 10585 and Rs. 1 Lakh by cheque No. 10587 of Bank of maharashtra, Jabalpur to Vishwanath Bhasin and further paid Rs. 3 Lakhs by cheque No. 10584 and Rs. 1 Lakh by cheque No. 10586 of the same Bank to Pramod Bhasin. Thus total advance of Rs. 8 Lakhs was paid as part payment of price on 7. 4. 2007. In acknowledge of oral agreement, petitioner and respondent executed the agreement on 7. 4. 2007. The petitioner approached the respondents several times but they did not execute the sale deed within the agreed time of three months. The petitioner came to know that respondents were trying to sell the property to someone else, thereafter the petitioner published a notice in Dainik Bhaskar newspaper on 15. 7. 2007 not to purchase the property from the respondents as he was holding the agreement to purchase the property. Time was not the essence of the contract. The act of unilateral cancellation of agreement and forfeiture of advance was illegal and not tenable in law. The petitioner was preparing to file suit for specific performance of the agreement but as a last resort he approached the persons through whom the bargain was settled to persuade the respondents to execute the sale deed. In the meanwhile the aforesaid part of the land was acquired by the Jabalpur Development Authority (for short jda) for its scheme No. 41. In the meanwhile the aforesaid part of the land was acquired by the Jabalpur Development Authority (for short jda) for its scheme No. 41. The petitioner required the said mediators to find out as to how much land out of the said Khasra numbers was acquired by JDA. He also made it clear that if any small portion taken by the JDA, he was willing to pay for the whole. Matter is pending with the mediators they are persuading the petitioner not to file the suit for specific performance and wait for settlement until the last date of limitation. As if the suit for specific performance is filed, it is likely to take long time for ultimate outcome with the result that petitioner will have nothing in hand except endless litigation, therefore, the petitioner has prayed that respondents be restrained from selling or otherwise alienating the property to someone else during the period right of the petitioner to file suit for specific performance subsists. ( 4. ) THE Trial Court vide order dated 31. 1. 2009 passed in MJC no. 4/2009 has rejected the application on the ground that application is not maintainable. It would not be appropriate to grant injunction without filing of the suit. Such a case cannot be registered as per rule 372 of M. P. Civil Court Rules framed by the High Court of Madhya pradesh. Dissatisfied with the aforesaid order of the Trial court, instant writ petition has been preferred by the petitioner. ( 5. ) SHRI Ravi Ranjan, learned counsel appearing for the petitioner has submitted that it was incumbent upon the trial Court to have registered the case as MJC to entertain it on merits. He has further submitted that without filing of the suit, an application can be filed under section 94 of cpc for grant of injunction. Even if the matter is not covered under Order 39 Rule 1 and 2 CPC, injunction can be granted under section 94 of CPC. The mediator was desisting the petitioner from filing of the suit, limitation remains for filing of the suit, in the circumstances the trial Court ought to have granted the injunction prayed for by the petitioner as he has paid a sum of Rs. 8 Lakhs to the respondents, which is a valuable amount. Thus the order passed by the Trial Court be set aside. ( 6. 8 Lakhs to the respondents, which is a valuable amount. Thus the order passed by the Trial Court be set aside. ( 6. ) IN order to appreciate submission, it is necessary to consider Section 94 of CPC. Section 94 of the CPC reads thus :- 94. Supplemental proceedings.- In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,- (a) issue a warrant to arrest the defendant and bring him before the court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison; (b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property; (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; (d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property; (e) make such other interlocutory orders as may appear to the Court to be just and convenient. It is apparent from the provision of Section 94 of CPC that to prevent the ends of justice from being defeated, it is open under section 94 (c) to grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold. Section 94 (e) empowers the Court to make such other interlocutory orders as may appear to the Court to be just and convenient. Section 94 is a leading provision with respect to power of the court to grant injunctions. The power under section 94 is not in derogation to the other provision it is supplemental. Inherent powers can be exercised to grant relief in case the case does not fall under any of the rules prescribed. ( 7. ) THE meaning of the words if it is so prescribed in section 94 has been considered by the Apex Court in Manoharlal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal - AIR 1962 SC 527 . Inherent powers can be exercised to grant relief in case the case does not fall under any of the rules prescribed. ( 7. ) THE meaning of the words if it is so prescribed in section 94 has been considered by the Apex Court in Manoharlal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal - AIR 1962 SC 527 . The majority view of the Apex Court is that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of expression if it is so prescribed in Section 94 is only this that when the rules in Order 39 CPC prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power. 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. Thus, there being no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code, the Courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order 39, CPC. No doubt about it that Court has the power to grant injunction in the circumstances which are not covered under Order 39 or rules made thereunder. No doubt about it that Court has the power to grant injunction in the circumstances which are not covered under Order 39 or rules made thereunder. In the exceptional circumstances using the inherent power under section 151, the order of injunction can be granted. ( 8. ) THE Apex Court has considered the question of grant of interim relief under section 94 in Vareed Jacob vs. Sosamma Geevarghese and others 2004 AIR SCW 4269, in which the majority of the Apex Court has laid down that source of power of the Court to grant interim relief is under Section 94. However, exercise of that power can only be done if the circumstances of the case fall under the rules. Therefore, when a matter comes before the Court, the Court has to examine the facts of each case and ascertain whether the ingredients of section 94 read with the rules in an Order are satisfied and accordingly grant an appropriate relief. It is only in cases where circumstances do not fall under any of the rules prescribed that the Court can invoke its inherent power under section 151, CPC. Accordingly, the Courts have to grant relief of attachment before judgment. The courts will grant temporary injunction if the case satisfied order 39. So depending on the circumstances falling in the prescribed rules, the power of the Court to grant specified reliefs would vary. Therefore, each set of rules prescribed are distinct and different from the other and therefore, one cannot equate rules of temporary injunction with rules of attachment before judgment although all are broadly termed as interlocutory orders. The Apex Court in vareed Jacob (supra) has laid down thus 9. In the case of M/s Ram Chand and Sons Sugar Mills Pvt. Ltd. v. Kanhayalal Bhargava reported in AIR 1966 SC 1899 , it has been held by this court that the inherent power of the court under Section 151, C. P. C. is in addition to and complimentary to the powers expressly conferred under c. P. C. , but that power will not be exercised in conflict with any of the powers expressly or by implication conferred by other provisions of C. P. C. If there is express provision covering a particular topic, then Section 151, c. P. C. cannot be applied. Therefore, section 151, C. P. C. recognizes inherent power of the Court by virtue of its duty to do justice and which inherent power is in addition to and complementary to powers conferred under C. P. C. expressly or by implication. 11. The above discussion shows that the source of power of the Court to grant interim relief is under Section 94. However, exercise of that power can only be done if the circumstances of the case fall under the rules. Therefore, when a matter comes before the Court, the Court has to examine the facts of each case and ascertain whether the ingredients of Section 94 read with the rules in an Order are satisfied and accordingly grant an appropriate relief. It is only in cases where circumstances do not fall under any of the rules prescribed that the court can invoke its inherent power under section 151, CPC. Accordingly, the Courts have to grant relief of attachment before judgment. The courts will grant temporary injunction if the case satisfied Order 39. So depending on the circumstances falling in the prescribed rules, the power of the Court to grant specified reliefs would vary. Therefore, each set of rules prescribed are distinct and different from the other and therefore, one cannot equate rules of temporary injunction with rules of attachment before judgment although all are broadly termed as interlocutory orders. The Apex Court has laid down that the inherent power is in addition to and complimentary to the powers expressly or by implication conferred under C. P. C. , but that power will not be exercised in conflict with any of the powers conferred expressly or by implication. Order 39 Rule 1 provides the expression "wherein any suit it is proved by affidavit or otherwise". By using the expression "wherein any suit" Order 39 Rule 1 contemplates for filing of the suit and grant of injunction. Order 39 Rule 2 CPC also uses expression "in any suit". Thus the power to grant injunction conferred under Order 39 Rule 1 and 2 is in a suit. Section 94 uses the expression "if it is so prescribed" which has been considered by the Apex Court in manoharlal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal and Vareed Jacob vs. Sosamma Geevarghese and others (supra ). ( 9. Thus the power to grant injunction conferred under Order 39 Rule 1 and 2 is in a suit. Section 94 uses the expression "if it is so prescribed" which has been considered by the Apex Court in manoharlal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal and Vareed Jacob vs. Sosamma Geevarghese and others (supra ). ( 9. ) THERE may be cases where plaint is presented before the court but notice period has not expired, such suits are used to be registered as MJC earlier before amendment of section 80 CPC, if the period for notice has not expired. After amendment of Section 80, it is for the Court to grant permission to institute the suit as per sub-section (2) of section 80. Nonetheless, earlier the plaint used to be filed along with the applications. Even under Municipal corporation Act if period of notice has not expired, the method is adopted of filing of the plaint along with the application for injunction which is registered as MJC but nonetheless plaint is presented, it is registered later on after expiry of period of notice. In such a case in exceptional circumstances Court used to grant injunction under inherent power. In our opinion, for grant of injunction under section 94 read with inherent power it is necessary to seek main relief by filing the plaint. It is a different matter whether Court has not allowed to register it due to some legal impediments in case it exists, then the inherent power can be exercised by the Court for grant of injunction as the case is not covered under Order 39 Rule 1 and 2. When the case is squarely covered under Order 39 Rule 1 and 2, inherent power cannot be exercised for grant of such an injunction. Inherent power is exercised to grant injunction which are not covered under Order 39 rule 1 and 2 but this power is supplemental not to violate the provisions. ( 10. ) IN Anilkumar Komalchand v. Kashinath Balkrishna Patel and others 1982 MPLJ 460 this Court has laid down that the power to issue temporary injunction is conferred on the Courts by Section 94 read with Order 39, rules 1 and 2, CPC. The Courts have also inherent power to issue temporary injunction on an appropriate case being made out. ) IN Anilkumar Komalchand v. Kashinath Balkrishna Patel and others 1982 MPLJ 460 this Court has laid down that the power to issue temporary injunction is conferred on the Courts by Section 94 read with Order 39, rules 1 and 2, CPC. The Courts have also inherent power to issue temporary injunction on an appropriate case being made out. Accordingly, the impugned order cannot be regarded to have been passed under section 80 (2) CPC but has to be regarded to be one passed under Order 39, Rules 1 and 2, CPC. The submission raised that the order of injunction was passed under section 80 (2) CPC, was rejected. ( 11. ) WE have to distinguish between the cases where main relief is claimed by filing the application in a case where plaint has not been presented at all and person is waiting for amicable settlement out of Court and seeks grant of injunction till limitation expires for filing of the suit from a case where there is legal impediment to register a case but plaint is filed before the Court. In the instant case ultimately a suit may itself be not presented, in case mediation succeeds. In our opinion, in such circumstances there is no power under CPC, even inherent power cannot be exercised by the Court to grant injunction particularly in view of the fact that there is no legal impediment in filing of the suit. Merely on the ground that some talks are going on between the parties, would not clothe the applicant with right to invoke section 94 read with Section 151 of CPC to claim interim injunction, which he can seek in properly instituted suit under Order 39 Rule 1 and 2. As suit has not been filed, which could have filed, recourse of filing of the application by indirect method to seek injunction, cannot be permitted to be resorted to. Such an application cannot be said to be maintainable. Main relief itself has not been asked in plaint by filing it. The grant of temporary injunction is supplemental to main relief, cannot be the main relief. The expression "if it is so prescribed" in Section 94 has been considered in Dinkar tippanna Mirajkar vs. Bank of India, Jaisingpur 2002 (3) Mhlj 791 , the Court has held that Section 94 reveals the limitation of exercise of power by the Court. The grant of temporary injunction is supplemental to main relief, cannot be the main relief. The expression "if it is so prescribed" in Section 94 has been considered in Dinkar tippanna Mirajkar vs. Bank of India, Jaisingpur 2002 (3) Mhlj 791 , the Court has held that Section 94 reveals the limitation of exercise of power by the Court. The execution of power under section 94 has necessarily to be in relation to the subject matter of dispute or the property relating to the dispute in the matter. Certainly, such power cannot be resorted to in relation to the property totally foreign to the dispute and unconnected with the claim of the parties to the suit. In the instant case there is no foundation of filing of suit is available. ( 12. ) IN the absence of main relief which is sought in a plaint, interim relief or temporary injunction cannot be sought, has been laid down by the Madras High Court in Kazimar periya Pallivasal and others Vs. K. A. S. Arumugam and others AIR 1976 MADRAS 45. It has been observed that if any person seeks relief under section 94 and inter alia asked for appointment of receiver, the condition precedent for making such a request is the existence of a main action which was already initiated by the person seeking the interlocutory relief. It would be improper in view of provisions of Section 94 and Order 40 rule 1 to invoke the inherent jurisdiction of the Code under Section 151 to entertain a bare suit for the appointment of a receiver and hold that such interlocutory orders can be made in the absence of a request for any other main relief. In ILR 1988 KR. 2378 the High Court of Karnataka has laid down that temporary injunction under section 94 cannot be granted without their being a in Jhatalomal Vs. Bhagwan directly instituted suit. Prasad Tiwari 1955 MBLJ 1117 this Court has opined that to file a suit only for the appointment of a receiver appears to be very queer on the fact of it. The proceedings for the appointment of a receiver are termed supplemental proceedings in CPC Supplemental proceedings cannot be harnessed to ensure a continuance of partnership through the agency of a receiver. It is always open to a party to arbitration proceedings to move the court for the appointment of a receiver. The proceedings for the appointment of a receiver are termed supplemental proceedings in CPC Supplemental proceedings cannot be harnessed to ensure a continuance of partnership through the agency of a receiver. It is always open to a party to arbitration proceedings to move the court for the appointment of a receiver. Such an application for a receiver must follow arbitration proceedings and not precede it. In the instant case there is no plaint presented to the Court. Main relief itself has not been sought as such recourse of the supplemental proceedings of grant of interim/temporary injunction cannot be resorted to. ( 13. ) IN Dhian Singh Sobha Singh vs. Secretary of State through Deputy Commissioner, Nimar and another AIR (32) 1945 Nagpur 97, it has been laid down that section 94 and Order 39 CPC are not alternative sources thus :-The jurisdiction of the Court to attach property before judgment is indicated by the words if so prescribed in S. 94, and that condition is satisfied when rules are made to order attachment of any property of the defendant. The meaning of the expression if so prescribed would be clear when they are compared with the words subject to such conditions and limitations as may be prescribed occurring in S. 107, Civil P. C. prescribed means prescribed by rules (see S. 2 (16), Civil P. C.)In the latter case if the rules prescribe any conditions or limitations as affecting the jurisdiction of the Court, the jurisdiction cannot arise unless the conditions or limitations are satisfied. Section 94 merely says "so prescribed" and does not like S. 107 say "subject to conditions and limitations as may be prescribed. " Rules 5 and 6 of o. 38 bring into effect the jurisdiction that is conferred by S. 94 in so far as they make it clear that the Court has power to order attachment before judgment. In the absence of words such as those used in S. 107 (1) Civil P. C. the other provisions made in Rr. 5 and 6 of O. 38 must be interpreted as laying down the manner in which the Courts jurisdiction is to be exercised, and accordingly regarded as dealing with matters of procedure regulating the mode of exercise of a jurisdiction that exists. 5 and 6 of O. 38 must be interpreted as laying down the manner in which the Courts jurisdiction is to be exercised, and accordingly regarded as dealing with matters of procedure regulating the mode of exercise of a jurisdiction that exists. On this view any error in the manner of the exercise of the jurisdiction conferred by s. 94 would not affect the validity of the courts act if the Courts jurisdiction is derived from a source independent of the provisions which merely prescribe the manner of its exercise. Order 39 CPC deals with the temporary injunction and exercise of power under section 94 (c) CPC, thus it is clear that section 94 (c) and order 39 are not the two alternative sources of power. ( 14. ) SHRI Ravi Ranjan, learned counsel appearing for the petitioner has relied upon the decision of this Court in state of M. P. vs. Caltex (India) Ltd. and two others 1969 JLJ (SN) 101 in which the Single Bench of this court has laid down in the backdrop of the fact that notice under section 80 was served upon the Collector. The applicant has filed the suit with the requisite court fees coupled with the request that it should not be registered as notice period has not expired. The Court registered it as MJC. The order of injunction was sought, it was granted. The State opposed grant of injunction on the ground that suit could not be filed before expiry of two months from the date of service of notice, the Court was not competent to grant injunction. In the backdrop of the fact that suit itself was filed along with the application for injunction, it was registered as MJC, the Single Bench of this Court has laid down that it is open to the Court to grant injunction in view of the contemplated suit to maintain status quo. Section 94 of the code of Civil procedure empowers the Court to grant a temporary injunction in order to prevent the ends of justice from being defeated, if it is so prescribed. Order 39 Rules 1 and 2, which deal with the grant of injunction, however, provide for grant of injunction during the pendency of the suit. Section 94 of the code of Civil procedure empowers the Court to grant a temporary injunction in order to prevent the ends of justice from being defeated, if it is so prescribed. Order 39 Rules 1 and 2, which deal with the grant of injunction, however, provide for grant of injunction during the pendency of the suit. There is no provision in the CPC providing that an injunction can be granted if no suit is pending, however, relying upon the Apex Court decision in Manoharlal vs. Seth Hiralal (supra) it has been laid down that if interest of justice so requires, Court may exercise inherent power. The view has been expressed that the object of granting temporary injunction is to ensure maintenance of status-quo until the final adjudication of the rights of the plaintiff. Where a party wants to institute a suit and is unable to do so on account of some "legal impediment", the Court may in a suitable case grant an injunction to maintain status quo until he is able to institute the suit. The decision of this Court cannot be so widely construed, it only means that the Court has power to grant an injunction before the registration of the plaint which has been presented in case of legal impediment in registering it but it must only be exercised in rare and exceptional cases where the party concerned has no other suitable remedy to prevent mischief. In the aforesaid case State of m. P. vs. Caltex (supra) the plaint itself was presented with the requisite court fees but it was not registered as regular suit. Application for grant of injunction was also filed. The case was registered as MJC as such the Single bench has observed that inherent power can be exercised, in the said case there was legal impediment in the registration of suit. The facts are not similar in the instant case. Here there is no such legal impediment. ( 15. ) CONSEQUENTLY, the application which has been filed could not be said to be maintainable. Apart from that Rule 372 of M. P. Civil Court Rules framed by the High Court provides that which cases can be registered as MJC. There is no such enabling provision under the aforesaid rules for registration of application simplicitor. ( 15. ) CONSEQUENTLY, the application which has been filed could not be said to be maintainable. Apart from that Rule 372 of M. P. Civil Court Rules framed by the High Court provides that which cases can be registered as MJC. There is no such enabling provision under the aforesaid rules for registration of application simplicitor. On the strength of decision of this Court in State of M. P. vs. Caltex (India)Ltd. and two others (supra), such application can be filed and registered only in case there is any legal impediment in registration of the suit but nonetheless it has been filed with requisite steps. There being no legal impediment in the instant case, the application being untenable has been rightly rejected by the Trial Court. ( 16. ) RESULTANTLY, we find no merit in the writ petition, same deserves dismissal, is hereby dismissed.