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2016 DIGILAW 479 (GAU)

Kamalini Kalita v. Kaushalya Priya Das

2016-05-27

N.CHAUDHURY

body2016
JUDGMENT : This application under Section 115 read with Section 151 of the Code of Civil Procedure has been preferred challenging the concurrent findings of the learned courts below arising out of an application filed under Order XXXIX Rule 2 A of the CPC. The origin of these series of litigation dates back to 17.8.2007 when at the time of proceeding of the plaint and the injunction petition, learned Civil Judge Senior Division No.3, Kamrup passed the order in Misc. (J) Case No. 103 of 2007 directing the parties to maintain status quo ante. This order was passed while issuing the notice to the opposite parties of the case on application filed under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure. While passing the order directing the parties to maintain status quo ante, the learned trial court did not feel it necessary to specify a date as on which date the order would refer. 2. Subsequently the same plaintiff filed an application under Order XXXIX Rule 2A read with Section 151 CPC alleging that the aforesaid order dated 17.8.2007 has been violated by the opposite as hooligans and anti-national accompanied by the opposite parties No. 1 to 5 had criminally trespassed into the suit land and occupied the Ek chali house. The opposite party on being summoned appeared and not only denied the allegation leveled but also claimed to have been in possession of the suit land much before the injunction order was passed. Both the sides led evidence to prove their respective cases and the learned trial court thereafter by passing the order dated 5.5.2010 in the Misc. case 119 of 2007 registered under Order XXXIX Rule 2A of the CPC held that no case of willful disobedience of the order of injunction could be made out by the petitioner. In the result Misc. case was dismissed on contest. In so doing the learned trial court observed that the order passed is not specific in what respect direction to maintain status quo was given. 3. This order dated 5.5.2010 came under challenge before the learned Additional District Judge at the instance of the petitioner in Misc. Appeal No.10 of 2010. In the result Misc. case was dismissed on contest. In so doing the learned trial court observed that the order passed is not specific in what respect direction to maintain status quo was given. 3. This order dated 5.5.2010 came under challenge before the learned Additional District Judge at the instance of the petitioner in Misc. Appeal No.10 of 2010. The learned first appellate duly considered the law holding the field and referred to the judgment of the Hon’ble Supreme Court in the case of Food Corporation of India -vs- Sukh Deo Prasad reported in (2009) 5 SCC 665 . The learned first appellate court on perusal of the aforesaid judgment found that the following ingredients are to be satisfied for securing punishment under Order XXXIX Rule 2A of the Code: (i) that there was an injunction order. (ii) that by the order direction was given to the person against whom the application is made, to do or desist from doing some specific thing or act, and (iii) that there was disobedience or breach of that order. 4. The learned first appellate court was also of the view that Order XXXIX Rule 2A of the CPC is panel is nature and so it has to be considered in a strict manner. The order dated 17.8.2007 passed by the learned trial court asking the parties to maintain status quo ante was not specific at all. It did not make any mention on which date the order should be referred to and as to what should be the nature of the possession. Having considered the evidence recorded by the parties on record, the learned first appellate court by his judgment and order dated 24.8.2011 dismissed the appeal holding that no case for proceedings under Order XXXIX Rule 2 A has been made out. These two orders have been called in question in the present revision petition. 5. I have heard Mr. D Nandi, learned counsel for the petitioner and Ms. M.D. Chouhdury, learned counsel for the opposite party. I have perused the records of the Misc. (J) Case as well the Misc. Appeal to understand the respective parties. 6. Mr. These two orders have been called in question in the present revision petition. 5. I have heard Mr. D Nandi, learned counsel for the petitioner and Ms. M.D. Chouhdury, learned counsel for the opposite party. I have perused the records of the Misc. (J) Case as well the Misc. Appeal to understand the respective parties. 6. Mr. D. Nandi, learned counsel for the petitioner would vehemently argue that as on the date of passing of the order of injunction dated 17.8.2007, the petitioners were very much in possession of the suit land but they were subsequently dispossessed there from on 19.8.2007 and 24.8.2007 and so they violated the order of injunction holding the field. When it was brought to the notice of Mr. Nandi as to whether the order was of mandatory injunction, he could not give any convincing reply. According to Mr. Nandi, there is an injunction on the land and the defendant subsequent to service of notice of injunction order violated the same and trespassed therein to make construction. This amounted to violation within the meaning of Order XXXIX Rule 2A of the CPC. 7. Per contra, Ms. M.D. Choudhury, learned counsel for the opposite party would strenuously argue that injunction order is vague, incomplete. It does not show as to the status of which date should be maintained by the parties. It does not give any guidelines as to what status should be maintained by the parties and so parties are not aware about the nature of the order or injunction passed. This being the position, there cannot be any violation of the same. She further argues that the revision petition is not maintainable under Section 115 of the CPC in view of the law laid down by the Hon’ble Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai, reported in (2003) 6 SCC 675 . 8. Having heard the learned counsel for the parties, it is clear that the initial order of injunction was passed under Order XXXIX Rule 1 and 2 of the CPC. On the day of issuance of notice to the opposite party, the learned trial court passed the order directing the parties to maintain status quo ante. In so doing it was not clarified as to which date should be considered for maintaining status quo. On the day of issuance of notice to the opposite party, the learned trial court passed the order directing the parties to maintain status quo ante. In so doing it was not clarified as to which date should be considered for maintaining status quo. Besides, order of status quo ante pre supposes that status quo as on the date of the order was not directed to be maintained by the parties. In that event, the trial court would have ordered the parties to maintain status quo as on the date of passing the order. The word ‘status quo ante’ has been defined in Black’s Law Dictionary as “The situation that existed before something else (being discussed) occurred”:. If it was the case of the petitioners that they were in possession of the suit land as on the date of presentation of the plaint, it ought to have been pleaded by them that unless an order is passed pending issuance of notice to the other side, it would frustrate the very purpose of filing injunction petition. This is what is contemplated under the provision of Order XXXIX Rule 3 of the CPC. In the order dated 17.8.2007, the learned court was of the view that there shall be delay in filing objection and so it was necessary to pass exparte injunction order under the provision of Rule (3) of Order XXXIX CPC. Order XXXIX Rule (3) CPC is quoted below in entirety: “3. In the order dated 17.8.2007, the learned court was of the view that there shall be delay in filing objection and so it was necessary to pass exparte injunction order under the provision of Rule (3) of Order XXXIX CPC. Order XXXIX Rule (3) CPC is quoted below in entirety: “3. Before granting injunction, Court to direct notice to opposite party— The Court shall in all case, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party: [5] [Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant— (a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with— (i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the applicant relies, and (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.” 9. A perusal of the aforesaid rule does not show that possibility as to delay in filing the reply was the purpose for vesting the power with the court to grant exparte interim injunction. The provision has been made to vest power on the court to grant such order only where the very purpose of filing injunction petition would be frustrated by delay. Even such exparte injunction has also some conditions subsequent. These conditions are to be mentioned in an order. Both the conditions subsequent even for passing exparte injunction under the provision of Rule (3) of Order XXXIX of CPC are required to be satisfied in a given case and the same has not been done in the present case. If the learned court made mention of status quo ante, it was necessary to mention status quo ante as to which date it should refer. If the learned court made mention of status quo ante, it was necessary to mention status quo ante as to which date it should refer. Besides, such an order has an element of mandatory injunction embedded in it. If there is any element of mandatory injunction, in that event if for an ad interim order of injunction, the aggrieved parties shall be at liberty to take the recourse of provision of Order XXI Rule 32 of the Code of Civil Procedure. Moreover, an appellate order passed under this Rule is not appealable under any of the provision of the Code of Civil Procedure. When Code has not laid down provision for preferring appeal, there is no question of preferring appeal or revision. In the case of Surya Dev Rai v. Ram Chander Rai, (supra), the Hon’ble Supreme Court has held that under such circumstances, a revision shall not lie. The present revision, therefore is not maintainable and the same is liable to be dismissed. 10. Besides, even if the concurrent findings of the learned courts below are considered, this court does not feel that learned courts below have committed any jurisdictional error under Order XXXIX Rule 1 and 2 of the CPC in the present case. Order XXXIX Rule 2A is the penal provision and so it cannot not be rightly construed. If a revision does not lie from an order under this provision, no revision can be entertained and accordingly this revision petition stands dismissed. No order as to cost. 11. Before parting, it is made clear that any observation made in this order or any of the order passed by the learned courts below shall have no influence on the learned trial court while deciding the merit of main title suit. All these observations does not have any causal connection whatsoever with the point of determination in the main title suit. Learned trial court shall decide the title suit on the basis of the evidence led by the parties and not on the basis of any observation made herein. 12. No order as to cost. Send down the records.