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2012 DIGILAW 938 (CAL)

Aseban Bibi v. Safiuddin Sk.

2012-10-10

SANJIB BANERJEE

body2012
Judgment The fundamental question which has arisen in this matter appears to have been lost on both the trial court and the lower appellate court. The legal issue that arises is the circumstances in which a substantive interlocutory application for interim relief may be carried and sustained by the defendants in a suit who have not lodged any counterclaim. 2. In the suit relating to an immovable property over which the plaintiffs claim ownership and in respect whereof the plaintiffs seek a permanent injunction against the defendants, the defendants applied alleging that the plaintiffs were threatening or attempting to dispossess the defendants from the property in question. The trial court was swayed by the allegations made by the defendants and allowed the application by ordering as follows: “The plaintiffs are hereby directed to restrain the defendants from disposing the suit property till the disposal of the suit.” 3. Apart from the fact that the utter non-application of mind of the judicial officer manning the trial court is evident from the operative part of the order, it does not appear from the 4 or 5 pages of the hand-written order of the trial court that it crossed the mind of the trial judge that it was the defendants’ application that the trial court had entertained and it was the defendants’ application on which an order was being passed. The lower appellate court, remarkably, did not interfere with the order passed by the trial court and referred to two judgments, including one which has been cited by the defendants/opposite parties herein in course of the present proceedings, relating to the futility and impermissibility of undefined orders of status quo being passed by any court. 4. The primary ground urged by the petitioners here is that the defendants, who had not lodged a counterclaim nor had filed any court fees thereon, could not have obtained a positive order of such nature in the defendants’ favour. 5. The defendants first refer to Order XXXIX Rule 1(a) of the Code that, inter alia, provides that the court may issue a temporary injunction when any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit. 5. The defendants first refer to Order XXXIX Rule 1(a) of the Code that, inter alia, provides that the court may issue a temporary injunction when any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit. The opposite parties contend that since Order XXXIX Rule 1(a) of the Code recognizes the right of any party to a suit to obtain an order thereunder, there was no impediment to the defendants in the suit applying for and obtaining the order that has been granted by the trial court and affirmed by the lower appellate court. The argument is completely fallacious and is repelled without any second consideration. Order XXXIX Rule 1(a) of the Code does not apply to the facts of this case. The defendants clearly averred in the application before the trial court that the plaintiffs threatened or intended to remove the defendants from the suit property or dispossess the defendants therefrom. Such a situation is covered by Order XXXIX Rule 1(c) of the Code. The court is empowered to pass an order under Order XXXIX Rule 1(c) of the Code only against a defendant to a suit. However, such an order may be passed in favour of a defendant where the defendant files a counterclaim incorporating a relief in aid whereof a temporary injunction under Order XXXIX Rule 1(c) may be sought. 6. There is good reason for the distinction between Order XXXIX Rule 1(a) and Order XXXIX Rule 1(c) of the Code. A party to a suit may be in enjoyment of a property in dispute in the suit and another party to the suit, even out of sheer cussedness, may seek to damage the property. In such a case, it would be open to any party to the proceedings to obtain an order, not really for the benefit of the party applying therefor, but actually for the benefit of the property which is the subject matter of the suit and to ensure the preservation of the property in its original state during the pendency of the suit. The considerations are otherwise under Order XXXIX Rule 1(c) of the Code. 7. When a specific provision empowers a class of persons to apply thereunder or obtain the benefit recognised therein, it is impermissible for another provision to be invoked for such purpose. The considerations are otherwise under Order XXXIX Rule 1(c) of the Code. 7. When a specific provision empowers a class of persons to apply thereunder or obtain the benefit recognised therein, it is impermissible for another provision to be invoked for such purpose. If the allegations levelled by the defendants in the application before the trial court attracted Order XXXIX Rule 1(c) of the Code as they clearly did it was not open to the defendants to claim under Order XXXIX Rule 1(a) thereof. In any event, it does not appear either from the order of the trial court or from that of the lower appellate court that in either case the court was aware that it was the defendants’ application on which such order was being passed or confirmed. 8. It is generally the rule that unless a counterclaim is filed by a defendant, a substantive order by way of interlocutory application cannot be obtained by the defendant. There are certain exceptions to the general rule, as in a suit for eviction or in a suit relating to an immovable property; but it is not really the exception since the authority to pass an order at the behest of any party for such purpose is, in any event, recognised under Order XXXIX Rule 1(a) of the Code. The other exceptions to the general rule are not relevant for the present purpose but some of the exceptions have been recognised, inter alia, in a judgment reported at AIR 1957 Trav Co. 286. 9. The opposite parties say that notwithstanding the hullabaloo made by the petitioners herein about the defendants having applied and obtained a substantial interim relief without having lodged a counterclaim, such ground was not canvassed in the memorandum of appeal before the lower appellate court. The argument to such effect put forth by the opposite parties has to be stated to be rejected. The matter pertains to the jurisdiction of the court to pass an order. When jurisdiction is improperly exercised, an objection to such illegal or irregular exercise of jurisdiction may be taken without any specific pleading in support thereof. As is evident from the order of the trial court, the court was unmindful of the bounds of its authority to grant a substantive order in favour of the defendants who had not lodged a counterclaim. As is evident from the order of the trial court, the court was unmindful of the bounds of its authority to grant a substantive order in favour of the defendants who had not lodged a counterclaim. Since the challenge canvassed by the petitioners herein goes to the root of the authority of the court to pass the order, that such matter was not specifically referred to in the memorandum of appeal filed before the lower appellate court is of no relevance. 10. The defendants have referred to a judgment reported at AIR 1968 Raj 212 . The only relevant passage is at paragraph 7 of the report where two previous judgments reported AIR 1939 Mad 495 and AIR 1957 Trav Co. 286 have been referred to. Though the Rajasthan judgment made a blanket observation that any application by any defendant under Order XXXIX of the Code was maintainable, such reasoning does not appeal. In any event, the application in that case was made under Order XXXIX Rule 2(3) of the Code prior to the 1976 amendment and, as such, is otherwise distinguishable on such aspect. 11. CO No. 3553 of 2012 is allowed by setting aside the lower appellate court order of August 16, 2012 passed in Misc. Appeal No. 12 of 2012 and by setting aside the trial court order dated March16, 2012 passed in favour of the defendants in Title Suit No. 92 of 2010 and dismissing the defendants’ application. 12. There will be no order as to costs. Urgent certified photocopies of this order, if applied for, will be made available to the parties subject to compliance with all requisite formalities.