Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 222 (ORI)

Brajabandhu Parida v. Rakhal Chandra Beuria

2019-03-18

BISWAJIT MOHANTY

body2019
JUDGMENT : Biswajit Mohanty, J. 1. This application has been filed by the petitioner with a prayer to set aside the order dated 24.12.2018 passed by the learned 1st Additional Senior Civil Judge, Bhubaneswar under Annexure-6 rejecting the prayers of the petitioner under Annexure-4 for directing the opposite parties to unlock the shop room or in the alternative to break open the said shop room through process of law. 2. During course of hearing Mr. A.P. Bose, learned counsel appearing for opposite party Nos. 1 & 2 and Mr. Sudheer Kumar Sahoo, learned counsel appearing for opposite party No. 3 raised a preliminary objection that the present petition is not maintainable as it challenges an order passed in a petition (Annexure-4) filed by the petitioner under Order 39 Rules 1 & 2 of the Code of Civil Procedure, for short, "the Code". According to both of them, against the impugned order, appeal lies before the learned District. Judge under Order 43 Rule 1(r) of "the Code". Therefore, they submitted that the present petition should be dismissed. 3. Mr. Suvashish Pattanaik, learned counsel for the petitioner submitted that though the petitioner has filed the application at Annexure-4 under Order 39 Rules 1 & 2 read with Section 151 of "the Code", however, considering the prayer made, it should be treated as a petition only under Section 151 of "the Code". Since an order passed in such a petition is not appealable, the present petition is maintainable. In the alternative, he submitted that there is no scope for grant of mandatory injunction/interim mandatory injunction under Order 39 Rules 1 & 2 of "the Code". According to him, the provisions of Order 39 Rules 1 & 2 of "the Code" deal only with grant of prohibitory injunction because as per the language used, in the said Rules, the court can only pass restrain orders vis-a-vis likelihood of commission of certain injurious acts in future. Further referring to the prayer made under Annexure-4, he emphasised that no prayer was made by the petitioner to restrain anybody from carrying out any threat. Rather the prayer was for a direction to the opposite parties for unlocking the shop room or in the alternative to break open the said shop room through process of law. Further referring to the prayer made under Annexure-4, he emphasised that no prayer was made by the petitioner to restrain anybody from carrying out any threat. Rather the prayer was for a direction to the opposite parties for unlocking the shop room or in the alternative to break open the said shop room through process of law. Therefore, even otherwise the impugned order cannot be treated to be an order passed under Order 39, Rules 1 & 2 of "the Code" and has to be construed as an order under Section 151 of "the Code" and since such an order is not appealable, the present petition is clearly maintainable. In this context, he relied upon two decisions of the Supreme Court in the cases of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 and Tanusree Basu & Others v. Ishani Prasad Basu & Others reported in AIR 2008 SC 1909 . 4. In reply, Mr. Bose and Mr. Sahoo submitted that the records as available would clearly show that the petitioner applied under Order. 39 Rules 1 & 2 of "the Code" and now he cannot turn around and say that it was not an application under Order 39 Rules 1 & 2 of "the Code" but it was simply an application under Section 151 of "the Code". In this context, both drew the attention of this Court to various averments made in Annexure-4. They particularly drew the attention of this Court to the averments made in Paragraphs 11, 12, 13, 14 & 15 wherefrom it is clear that the petitioner was asking for grant of interim mandatory injunction/mandatory injunction on the ground that he has a very good prima facie case with balance of convenience leaning in his favour and if the shop room is not opened he will suffer irreparable loss and serious prejudice. Further they submitted that the prayer made in the Interlocutory Application under Annexure-4 cannot be read in isolation and it has to be read in the background of the averments made in Paragraphs 11 to 15 of the Interlocutory Application and a holistic reading of Annexure-4 would make it clear that the petitioner was seeking an interim mandatory injunction. Having failed in such endeavour vide Annexure-6, the petitioner should file an appeal instead of approaching this Court by way of filing the present-petition. Having failed in such endeavour vide Annexure-6, the petitioner should file an appeal instead of approaching this Court by way of filing the present-petition. They further pointed out that under the G.R.C.O. (Civil) the petitions under Order 39 Rules 1 & 2 of "the Code" are registered as I.As. and had it been a simple petition under Section 151 of "the Code", the same would not have been registered as an Interlocutory Application. This again clearly shows that what the petitioner had filed under Annexure-4 was an injunction petition under Order 39 Rules 1 & 2 of "the Code". With regard to the second submission that no interim mandatory injunction can be granted under Order 39 Rules 1 & 2 of "the Code", they submitted that the same can be clearly granted under Order 39 Rules 1 & 2 of "the Code". According to them the said provisions deal with both mandatory injunction as well as prohibitory injunction. In this context, they put special emphasis on Clause (a) of Rule 1 of Order 39 of "the Code" and the power of the Court as indicated therein to make such other orders for the purpose of saving the property from being wasted or damaged or to save the plaintiff from any injury in relation to any property. In such background, they submitted that since the matter is clearly covered by Order 39 Rule 1 of "the Code", law is well settled that the petitioner cannot invoke under Section 151 of "the Code" for such purpose. In this context, they relied upon a decision of the Supreme Court in the case of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, reported in, AIR 2005 SC 242 . 5. Heard learned counsel for the parties. 6. Before entering into different contentions raised by the learned counsel for the parties, let us examine the documents enclosed to the present petition, more particularly, Annexure-4. The same would clearly show that the petitioner filed a petition under Order 39 Rules 1 & 2 read with Section.151 of "the Code" and in the said petition he has made the following averments in Paragraphs 11 to 15 which are quoted hereunder: "XXX XXX XXX 11. That, it is humbly submitted that the present opposite parties have engaged goons to harass the present petitioner. That, it is humbly submitted that the present opposite parties have engaged goons to harass the present petitioner. The petitioner has kept the ATM Card, bank documents, cash of more than Rs. 1,00,000/-. Apart from that the petitioner has kept stock of garments worth Rs. 15,00,000/- inside the suit shop room which is now forcibly under the lock and key of the of the present opp. parties. 12. That, unless this Hon'ble court interferes and pass appropriate order for breaking open the lock of the shop room which as been put by the opp. parties, by way of interim mandatory injunction, the petitioner will be seriously prejudiced. 13. That, under the rule of law, no person is empowered to take law in to his own hand, hence for the interest of justice the opp. parties be directed to unlock the suit shop premises, thereby enabling the petitioner for running his business. 14. That, the petitioner has a very good prima facie case which reveals from the documents and averments of the plaint and the balance of inconvenience leans in favour of the present plaintiff petitioner. 15. That, the petitioner will suffer irreparable loss, if appropriate order is passed by way of mandatory injunction to the opp. parties for unlocking the suit shop room inasmuch as multiple suits are pending before this Hon'ble court for adjudication. xxx xxx xxx" 7. A perusal of the averments made by the petitioner in the above quoted Paragraphs makes it clear that the petition under Annexure-4 was filed clearly with an intention to get an interim mandatory injunction and the petitioner tried his best to satisfy the court below about the strength of his case by making required averments relating to he having a very good prima facie case, he having balance of convenience in his favour and that unless interim mandatory injunction is issued for breaking open the lock, the petitioner will be seriously prejudiced and will suffer irreparable loss. Thus, every averment has been made by the petitioner to get an order of interim mandatory injunction. A conjoint reading of Paragraphs 11 to 15 as quoted above would also clearly reflect the endeavour of the petitioner to satisfy the court below that unless the shop room is opened by way of interim mandatory injunction, the petitioner is going to suffer irreparable loss/damage. A conjoint reading of Paragraphs 11 to 15 as quoted above would also clearly reflect the endeavour of the petitioner to satisfy the court below that unless the shop room is opened by way of interim mandatory injunction, the petitioner is going to suffer irreparable loss/damage. It is well settled that the concept of damage includes the concept of loss. In fact Wharton's Law Lexicon (Fourteenth Edition) defines damage as any loss. Since here the petitioner has pleaded that unless the shop room is opened, he will suffer irreparable loss, it clearly indicates that he has given an indication that he is going to suffer irreparable damage unless the shop room, which has got a number of valuables inside it, is opened. Therefore, a holistic reading of the petition filed by the petitioner under Annexure-4 praying for breaking open of lock makes it clear that what in reality he prayed for issuance of an interim mandatory injunction. Therefore, this Court is not inclined to accept the first contention of Mr. Pattanaik that Annexure-4 should be treated as a petition under Section 151 of "the Code" only. With regard to the second contention of Mr. Pattanaik that since under Order 39 Rules 1 & 2 of "the Code" there is no scope for granting of interim mandatory injunction, therefore, even if the petitioner has invoked the above noted provisions in Annexure-4, the same would not be of much consequence. It is needless to say that such a contention cannot be accepted as it runs contrary to basic meaning of the word "injunction". As per Webster's Encyclopaedic Unabridged Dictionary (1994), "Injunction" is a judicial process or order requiring the person or persons to whom it is directed to do a particular act or to refrain from doing a particular act. (emphasis supplied). In Halsbury's 'Law of England (Fourth Edition) it is stated that an injunction is a judicial remedy by which a person is ordered to refrain from doing or to do a particular actor thing. In the former case it is called a restrictive injunction and in the latter a mandatory injunction. (emphasis supplied) Thus the very word "injunction" has both prohibitory implication and mandatory implication and appropriate injunctions can be issued depending upon the facts and circumstances of the case. In the former case it is called a restrictive injunction and in the latter a mandatory injunction. (emphasis supplied) Thus the very word "injunction" has both prohibitory implication and mandatory implication and appropriate injunctions can be issued depending upon the facts and circumstances of the case. Therefore, to say that under Order 39 Rule 1 of "the Code" interim mandatory injunction cannot be issued is to ignore the obvious. Further the language of Order 39 Rule 1 of "the Code" authorises a court to pass appropriate orders to save a property from being wasted/damaged besides authorising the court to pass restrain orders. Thus, a court is clearly empowered to issue temporary mandatory injunction for saving a property from being wasted or damaged. Therefore, the contention of Mr. Pattanaik on this score also fails. 8. Now coming to the two decisions of the Supreme Court cited by Mr. Pattanaik, it can be said that the facts in both the cases are distinguishable and those cases do not deal with an issue like the present case. In those two cases admittedly the applications were filed only under Section 151 of "the Code" and not under Order 39 Rules 1 & 2 read with Section 151 of "the Code" as has been done by the petitioner in the present case under Annexure-4. Further both the above noted decisions make it clear that the court can exercise the power under Section 151 of "the Code" to grant injunction only when the circumstances are not covered by Order 39 Rules 1 & 2 of "the Code". Here a perusal of the petition under Annexure-4 itself as indicated earlier makes it clear that the case that the petitioner tried to build was clearly to save the property from being damaged. He has clearly averred that unless the shop room is opened he would suffer irreparable loss which obviously means he would suffer irreparable damage. Under Order 39 Rule 1 of "the Code" the court has the power to pass such orders so as to prevent damage to the property. This obviously includes the power to order removal of the lock for preventing the damage. He has clearly indicated at Paragraph-12 of Annexure-4 that unless the lock of the shop room is opened by way of interim mandatory injunction, he should be seriously prejudiced. This obviously includes the power to order removal of the lock for preventing the damage. He has clearly indicated at Paragraph-12 of Annexure-4 that unless the lock of the shop room is opened by way of interim mandatory injunction, he should be seriously prejudiced. Since the court has power to issue such other order for the purpose of saving the property from damage, it clearly means that the court has the power to issue orders in the nature of interim mandatory injunction for removing the lock. The case that the petitioner has made out under Annexure-4 clearly comes under Order 39 Rule 1 of "the Code" under which the court has power to issue both interim mandatory injunction for saving the property from being damaged and interim prohibitory injunction under Clauses. (b). & (c) of Rule 1 of Order 39 of "the Code" vis-a-vis injurious acts which are likely to occur in future. Since the case is clearly covered by Order 39 Rule 1 of "the Code", the plea of the petitioner for treating his application under. Annexure-4 to be one under Section 151 of "the Code" cannot be accepted. The judgment cited by Mr. Bose in National. Institute of Mental Health & Neuro Sciences's case (supra) makes it clear that the jurisdiction of Section 151 of "the Code" cannot be exercised so as to nullify the other provisions of "the Code" which expressly deals with a particular matter. Here as discussed since the provisions of Order 39 Rule 1 of "the Code" are clearly attracted to the facts of the present case, the impugned order cannot be treated to be an order passed under Section 151 of "the Code". It has to be treated as an order under Order 39 Rules 1 & 2 of "the Code". In such background this Court has no hesitation in coming to a conclusion that the present petition is not maintainable and if so advised the petitioner can prefer an appeal against the impugned order in accordance with law. The CMP is accordingly disposed of.