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2024 DIGILAW 685 (MP)

M. P. Krishi Upaj Mandi Samiti v. Prakash Nagpal

2024-10-25

G.S.AHLUWALIA

body2024
ORDER 1. This petition under Article 227 of Constitution of India has been filed seeking the following reliefs: (i) Issue a Writ of Certiorari and set aside impugned order dated 26.7.2024 passed in MCA No.133/24 by 20th Additional District Judge, Jabalpur, annexure-P/7, in entirety in the interest of justice. (ii) Consider grant of any other relief which this Court may deem proper and appropriate under the fact and circumstances of the case. 2. It is submitted by counsel for petitioners that respondent No.1 filed an application under section 94 of CPC for grant of temporary injunction. Said application was dismissed by Seventh Civil Judge, Junior Division, Jabalpur by order dated 11.7.2024 passed in MJC No.430/2024. Being aggrieved by said order, respondent No.1 preferred an appeal, which was registered as MCA No.133/2024 and by impugned order dated 26.7.2024, 20th District Judge, Jabalpur has allowed the appeal and has issued a temporary injunction order against the petitioners, which has been made applicable till final disposal of suit. 3. It is submitted by counsel for petitioners that as per section 67 of Krishi Upaj Mandi Adhiniyam, 1972 (in short “Adhiniyam, 1972”), no suit against Krishi Upaj Mandi would lie unless and until a notice of 60 days is given. It is submitted that the application under section 94 of CPC was filed without issuing any notice under section 67 of Adhiniyam, 1972 and accordingly, the application under section 94 of CPC was not maintainable. The trial Court did not commit any mistake by rejecting the application, however, the Appellate Court committed material illegality by reversing the said order and without adjudicating upon the maintainability of the application filed under section 94 of CPC, has granted temporary injunction with a note that it shall remain in force till the final conclusion of the suit. 4. Per contra, petition is vehemently opposed by counsel for respondent no.1. It is submitted that power under section 94 of CPC is supplementary in nature and the same can be invoked when no other remedy is available to the aggrieved person and, therefore, the application under section 94 of CPC is maintainable. 5. Accordingly, this case was heard on the question “as to whether the application under section 94 of CPC was maintainable or not”. 6. Heard learned counsel for the parties for the said limited purpose. 7. Section 67 of Adhiniyam, 1972 reads as under:- 67. 5. Accordingly, this case was heard on the question “as to whether the application under section 94 of CPC was maintainable or not”. 6. Heard learned counsel for the parties for the said limited purpose. 7. Section 67 of Adhiniyam, 1972 reads as under:- 67. Bar of suit in absence of notice.- No suit shall be instituted against the Board or any market committee, until the expiration of two months next after notice in writing stating the cause of action, name and place of abode of the intending plaintiff, and the relief which he claims has been delivered or left at its office, Every such suit shall be dismissed unless it is instituted within six months from the date of the accrual of the alleged cause of action. 8. Thus, it is clear that no suit shall be instituted against the Board or any market committee, until the expiration of two months next after notice in writing stating the cause of action, name and place of abode of the intending plaintiff, and the relief which he claims has been delivered or left at its office. 9. The next question for consideration is “as to whether application under section 94 of CPC was filed before expiry of two months? notice or not?” 10. It is fairly conceded by Shri Amit Sahni that the application under section 94 of CPC was filed prior to expiry of 60 days as required under section 67 of Adhiniyam, 1972. 11. Therefore, now the only question for consideration is that “as to whether the application filed under section 94 of CPC was maintainable or not?” 12. It is fairly conceded by Shri Amit Sahni that the application under section 94 of CPC was filed prior to expiry of 60 days as required under section 67 of Adhiniyam, 1972. 11. Therefore, now the only question for consideration is that “as to whether the application filed under section 94 of CPC was maintainable or not?” 12. Counsel for respondent no.1 has relied upon the judgment passed by the Supreme Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal reported in AIR 1962 SC 527 , Vareed Jacob v. Sosamma Geevarghese and others reported in (2004) 6 SCC 378 and also relied upon the judgment dated 5.7.2022 passed by the coordinate Bench of this Court in the case of Krishi Upaj Mandi Samiti, Damoh v. Rajesh Vyas (Civil Revision No.300/2019), judgment dated 24.10.2002 passed in the case of Municipal Corporation Ratlam v. Dilip Singh (Civil Revision No.338/1999), judgment dated 28.4.1973 passed by Division Bench of this Court in the case of Ram Krishna Parashar v. Chironji Lal Vaishya and others (Civil Revision No.196/1972) as well as judgment passed by Calcutta High Court in the case of Jagjit Singh Khanna v. Dr. Rakhal Das Mullick and another reported in AIR 1988 Cal 95 and judgment dated 7.10.2022 passed by the High Court of Jammu & Kashmir and Ladakh At Srinagar in the case of Bashir Ahmad Khan and others v. Union Territory of Jammu and Kashmir and others 13. The Supreme Court in the case of Vareed Jacob (supra) has held as under:- “6. The Civil Procedure Code, 1908 applies to all proceedings in courts of civil jurisdiction, subject to any special or local law or any special jurisdiction under any other law for the time being in force. The main feature of the Code is its division into two parts. The main body of the Code consists of sections which create jurisdiction while the rules indicate the manner in which the jurisdiction has to be exercised. 7. Section 9 states that the courts shall have the jurisdiction to try all suits of civil nature except suits which are expressly or impliedly barred. Section 9 falls in Part I CPC which deals with suits in general. Part II deals with execution. Part II CPC covers sections 51 to 64. 7. Section 9 states that the courts shall have the jurisdiction to try all suits of civil nature except suits which are expressly or impliedly barred. Section 9 falls in Part I CPC which deals with suits in general. Part II deals with execution. Part II CPC covers sections 51 to 64. Under section 51 CPC, subject to limitations and conditions as may be prescribed, the court may order execution of the decree by delivery of any property specifically decreed; by attachment and sale; by arrest and detention; by appointment of receiver or in such a manner as the nature of the relief granted may require. Therefore, attachment is a part of execution process (see Mahadeo Dubey v. Bhola Nath Dichit [ILR (1883) 5 All 86 : (1882) 2 AWN 186] ). Part III CPC deals with incidental proceedings like power of the Court to issue commission, letter of request, etc. Part VI CPC deals with supplemental proceedings which cover section 94 which inter alia empowers the Court to pass interim orders depending upon the circumstances prescribed by the rules. 8. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal [ AIR 1962 SC 527 : 1963 All LJ 169] it has been held that the effect of the expression “if so prescribed” in section 94 CPC is to prescribe the circumstances in which courts can exercise or grant a particular relief and ordinarily the Court is not to use its inherent powers to make the necessary orders in the interest of justice, but to see whether the circumstances of the case come within the prescribed rule. Therefore, in a case where the plaintiff seeks temporary injunction Courts have to ascertain whether the facts of the case fall under Order 39. That it is in the incidence of exercise of power of the Court to issue temporary injunction that section 94 has a role to play and that section 94, however, does not take away the right of the Court to exercise its inherent power. In the same judgment, section 151 CPC is also analysed. The apex Court in the same judgment has held that inherent power has not been conferred upon the Court by section 151 CPC. It is a power inherent in the Court by virtue of its duty to do justice between the parties before it. In the same judgment, section 151 CPC is also analysed. The apex Court in the same judgment has held that inherent power has not been conferred upon the Court by section 151 CPC. It is a power inherent in the Court by virtue of its duty to do justice between the parties before it. That section 151 merely recognises the existence of the inherent power of the court, therefore, even if in a given case circumstances do not fall within Order 39 CPC, the courts have inherent jurisdiction to issue temporary injunction if the court is of the opinion that interest of justice requires issue of such interim injunction. 9. In the case of Ram Chand & Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava [ AIR 1966 SC 1899 ] it has been held by this Court that the inherent power of the court under Section 151 CPC is in addition to and complementary to the powers expressly conferred under CPC, but that power will not be exercised in conflict with any of the powers expressly or by implication conferred by other provisions of CPC. If there is express provision covering a particular topic, then section 151 CPC cannot be applied. Therefore, section 151 CPC recognises 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 CPC, expressly or by implication. 10. In the case of Jagjit Singh Khanna v. Dr. Rakhal Das Mullick [ AIR 1988 Cal 95 : (1988) 92 CWN 190] it has been held that a temporary injunction may be granted under section 94(c) only if a case satisfies Order 39 rule 1 and Rule 2. It is not correct to say that the Court has two powers, one to grant temporary injunction under section 94(c) and the other under Order 39 rules 1 and 2. That section 94(c) CPC shows that the Court may grant a temporary injunction thereunder, only if it is so prescribed by rule 1 and rule 2 of Order 39. The Court can also grant temporary injunction in exercise of its inherent powers under section 151, but in that case, it does not grant temporary injunction under any of the powers conferred by CPC, but under powers inherent in the constitution of the Court, which is saved by section 151 CPC. 11. The Court can also grant temporary injunction in exercise of its inherent powers under section 151, but in that case, it does not grant temporary injunction under any of the powers conferred by CPC, but under powers inherent in the constitution of the Court, which is saved by section 151 CPC. 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, if the circumstances fall under Order 38 CPC. Similarly, Courts will grant temporary injunction if the case satisfies 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 is 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.” 14. Thus, it is clear that the provision under section 94 of CPC can be exercised only if a case satisfies provisions of Order 39 rule 1 and 2 CPC. It is also not correct to say that the Court has two powers, one to grant temporary injunction under section 94 of CPC and the other under Order 39 rule 1 and 2 CPC. 15. So far as application under Order 39 rule 1 and 2 CPC is concerned, the same could not have been filed unless and until the suit is filed and in view of section 67 of Adhiniyam, 1972 the suit itself was barred prior to two months? notice. What cannot be done directly can also not be done indirectly. The Supreme Court in the case of Babulal Badriprasad Varma v. Surat Municipal Corporation and Others reported in (2008) 12 SCC 401 has held as under:- “49. notice. What cannot be done directly can also not be done indirectly. The Supreme Court in the case of Babulal Badriprasad Varma v. Surat Municipal Corporation and Others reported in (2008) 12 SCC 401 has held as under:- “49. In Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel [ (2006) 8 SCC 726 : (2006) 8 Scale 631 ] this Court observed : (SCC pp. 761-62, paras 73-74) “73. The matter may be considered from another angle. If the first respondent has expressly waived his right on the trade mark registered in the name of the appellant Company, could he claim the said right indirectly? The answer to the said question must be rendered in the negative. It is well settled that what cannot be done directly cannot be done indirectly. 74. The term „waiver? has been described in the following words: ''1471. Waiver.—Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. … A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted on it is sufficient consideration. … It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration.? (See Halsbury's Laws of England, 4th Edn., Para 1471.)” In this view of the matter, it may safely be stated that the appellant, through his conduct, has waived his right to an equitable remedy in the instant case. Such conduct precludes and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellant's inaction.” 16. The Supreme Court in the case of Shiv Kumar Sharma v. Santosh Kumari reported in (2007) 8 SCC 600 has held as under:- “22. Law in this behalf is absolutely clear. What cannot be done directly cannot be done indirectly.” 17. Once the suit was barred, then the provision of Special Act, i.e. Adhiniyam, 1972, cannot be bypassed by resorting to provisions of section 94 of CPC. 18. Under these circumstances, this Court is of the considered opinion that the application filed under section 94 of CPC was not maintainable. As a result, the impugned order dated 26.7.2024 passed by 20th District Judge, Jabalpur in MCA No.133/2024 is hereby set aside. 19. It is submitted by counsel for parties that the suit has now been registered as a Regular Civil Suit. Accordingly, with liberty to respondent No.1 to file an application under Order 39 rule 1 and 2 CPC, the petition is allowed. 20. It is made clear that in case if an application under Order 39 rule 1 and 2 CPC is filed, then the same shall be decided strictly in accordance with law without getting influenced or prejudiced by any of the observations made by the Appellate Court in its order dated 26.7.2024.