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Himachal Pradesh High Court · body

2019 DIGILAW 2036 (HP)

Kirna Devi v. Fateh Singh

2019-12-30

AJAY MOHAN GOEL

body2019
JUDGMENT Ajay Mohan Goel, J. - By way of this petition filed under Article 227 of the Constitution of India, petitioner has assailed order dated 18.09.2019, passed by the Court of learned Civil Judge, Court No. 2, Una, District Una, H.P. in an application filed Under Section 94 read with Section 151 of the Code of Civil Procedure by the present petitioner before the said Court, vide which, a direction was sought by the present petitioner against respondent No. 1 herein to restore electricity supply of the room, subject matter of the Civil Suit which has been filed by respondent Fateh Singh against the present petitioner as well as Desh Raj. 2. The case of the petitioner is that she had filed an application under Sections 22 and 23 of the Protection of Women from Domestic Violence Act, 2005, for grant of interim relief as well as for mental stress caused to her on account of disconnection of electricity supply to her room by Shri Fateh Singh (father-in-law of the present petitioner). This application was dismissed by the Court of learned Judicial Magistrate 1st Class, Court No. 2, Una, H.P. on 04.12.2018. Feeling aggrieved, she filed CMPNO. No. 14 of 2019, titled as Kirna vs. Fateh Singh and another. This petition was disposed of by this Court in the following terms:- "The learned counsel for the petitioner, seeks permission, of this Court, to withdraw the instant petition. Permission granted. Accordingly, the instant petition, is, dismissed as withdrawn. However, liberty reserved to the petitioner, to approach the learned Civil Court concerned, where, a, suit for specific performance, and, for possession is pending, for, asking relief compatible, vis-a-vis, the relief, espoused in the instant petition, and, upon the afore motion being made, before the learned Court concerned, the latter shall, in accordance with law, mete a decision thereon, hence, within one week thereafter. All pending application, if any, also stand disposed of." 3. Thereafter, an application was filed by the petitioner in Civil Suit filed against her by Shri Fateh Singh (respondent No. 1 herein) under Section 94 read with Section 151 of the Code of Civil Procedure for issuance of a direction to the plaintiff/respondent No. 1 herein, to restore electricity supply of the disputed room. Thereafter, an application was filed by the petitioner in Civil Suit filed against her by Shri Fateh Singh (respondent No. 1 herein) under Section 94 read with Section 151 of the Code of Civil Procedure for issuance of a direction to the plaintiff/respondent No. 1 herein, to restore electricity supply of the disputed room. It was mentioned in the said application that non-applicant Fateh Singh had filed a suit against her and electricity supply of the disputed room, which was in her possession, has been forcibly disconnected by the non-applicant/plaintiff on 25.02.2016, with an ulterior motive just to harass and humiliate her. It was further mentioned in the application that she had filed a complaint under the Protection of Women from Domestic Violence Act, which was dismissed by the Court and which order was assailed by her before this Court. It was further mentioned in the application that CMPMO filed by her in this Court was disposed of on 04.09.2019, with a direction to her to approach the Court concerned for relief and rendering of decision within a week. It was further mentioned in the application that on account of disconnection of the electricity supply, the applicant was residing in a miserable condition since 25.02.2016 and the act of the non-applicant amounted to infringing the fundamental rights of the applicant as also her children. 4. The application was resisted by the non-applicant inter alia on the ground that he had not disconnected the electricity supply of the room in issue, as, in fact, there was no electricity connection in the demised premises. In was further mentioned in the reply that applicant and her husband had taken the possession of the demised premises in an illegal manner and possession of the applicant and her husband upon the same was that of trespassers. 5. This application stands dismissed by the learned Trial Court vide order dated 18.09.2019. While passing the said order, learned Trial Court has inter alia held that whereas it was alleged in the application that electricity connection to the room of the applicant stood disconnected since 25.02.2016, however, there was no mention of this fact in the written statement which was so filed by the said applicant in the civil suit on 09.06.2016, i.e. four months after the alleged disconnection of the electricity supply. Learned Court also held that there was nothing produced on record by the applicant to substantiate her contention. Learned Court held that Section 94 of the Code of Civil Procedure was a supplemental provision and it presupposed the existence of a main or principle relief for which a supplemental relief can be granted. Learned Court also held that in the case concerned, there was no interim relief which stood granted to the applicant, and in fact, the applicant was defending the claim/suit filed by the non-applicant therein, who had filed the main suit for the vacant possession of the land. On these grounds, learned Trial Court had dismissed the application. 6. Learned Counsel for the petitioner has argued that while passing said order, learned Trial Court has erred in not appreciating the spirit of the order which was passed by this Court while disposing of CMPMO. He has further argued that adverse conclusion which has been drawn by the learned Trial Court with regard to non-disclosure of the fact of disconnection of electricity supply in the written statement is also not sustainable in law as the petitioner was not supposed to disclose this fact in the written statement in view of complaint filed by her under the Protection of Women from Domestic Violence Act. No other point was urged. 7. I have heard learned Counsel for the petitioner and gone through the impugned order as also the documents appended with the petition. 8. In my considered view, there is no infirmity in the order which has been passed by learned Trial Court dated 18.09.2019, vide which, it has dismissed the application filed by the present petitioner under Section 94 read with Section 151 of the Code of Civil Procedure. It is not in dispute that the petitioner herein is a defendant in the civil suit. In other words, there is a suit which has been filed against her and the plaintiff in the said suit is respondent No. 1 herein, against whom, she was seeking relief by way of application filed under Section 94 read with Section 151 of the Code of Civil Procedure. 9. In other words, there is a suit which has been filed against her and the plaintiff in the said suit is respondent No. 1 herein, against whom, she was seeking relief by way of application filed under Section 94 read with Section 151 of the Code of Civil Procedure. 9. Section 94 of the Code of Civil Procedure provides that 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; and (e) make such other interlocutory orders, as may appear to the Court, to be just and convenient. 10. The heading of Section 94 of the Code of Civil Procedure is self explanatory that this provision of law deals with supplemental proceedings, which but obvious, are to be supplemental to the main suit, which is pending before the Court concerned. Now, in the present case, the lis, which is pending adjudication before the learned Trial Court, is a suit filed by the plaintiff seeking vacant possession suit property, which as per the plaintiff is allegedly under the illegal possession of the defendants therein, which includes the present petitioner. 11. Order 39, Rules 1 and 2 of the Code of Civil Procedure deals with temporary injunctions and interlocutory orders that can be passed by a Court. 11. Order 39, Rules 1 and 2 of the Code of Civil Procedure deals with temporary injunctions and interlocutory orders that can be passed by a Court. Order 39, Rule 1 inter alia provides that where in any suit, it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, or that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging alienation, sale removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit. as the Court thinks fit, until the disposal of the suit or until further orders. Rule 2 of Order 39 of the Code of Civil Procedure further provides for injunction to restrain repetition or continuance of breach. 12. Statutory provisions of Order 39, Rules 1 and 2 of the Code of Civil Procedure are expressly clear that a defendant has no right to seek any temporary injunction or interlocutory order, save and except, in a position which is envisaged under Order 39, Rule 1(a), i.e. where property in dispute is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree. 13. The provisions of Section 94 of the Civil Procedure Code have to be read harmoniously with the provisions of Order 39, Rules 1 and 2 of the same as well as the law laid down by Hon''ble Supreme Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, (1962) AIR SC 527 (V 49 C 80) (four judges Bench), which reads as under:- "There is no such expression in S. 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order XXXIX or by any rules made under the Code. It is well-settled 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 the expression ''if it is so prescribed'' is only this that when the rules 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 S. 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. No party has a right to insist on the Court''s exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. it is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of S. 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent powers." 14. In this background, the liberty which was sought by the petitioner while withdrawing CMPMO No. 14 of 2019 from this Court, also does not comes to the assistance of the petitioner because on account of the liberty so gained from this Court, the petitioner in her capacity as defendant could not have had called upon the learned Trial Court to grant relief which otherwise is not permissible under the provisions of the Code of Civil Procedure , as the same could not be claimed to be a relief which was being sought in supplemental proceedings as is the spirit of Section 94 of the Code of Civil Procedure. 15. Therefore, as this Court concurs with the findings returned by the learned Trial court that the application, which stood filed under Section 94 read with Section 151 of the Code of Civil Procedure, was not maintainable, this petition being devoid of merit, is dismissed in limine. Pending miscellaneous application(s), if any, also stand dismissed.