Patna High Court
Smt. Indrawati Devi vs Bulu Ghosh And Ors. on 4 February, 1988
Equivalent citations: AIR1990PAT1, AIR 1990 PATNA 1
Author: B.P. Singh
Bench: B.P. Singh
JUDGMENT B.P. Singh, J.
1. These two civil revision applications have been taken up to-gether. The parties in both the civil revision applications are the same and the factual background is also common. Civil Revision 376/87 (R) is against an order dated 6-11-87 passed in Misc. Case No. 22/87 granting a mandatory injunction in favour of opposite parties Nos. 1 to 4 and against the petitioner directing the petitioner to vacate the premises in question and put the opposite parties 1 to 4 in possession thereof. Civil Revision No. 377/87(R) is against an order of the same date in Title Suit No. 133/80 whereby the Court refused to grant permission to the petitioner to withdraw the suit. It may be stated that Misc. Case No. 22/87 also arises in Title Suit No. 133/80.
2. The facts which are not in dispute are . that opposite party No. 5, Shankar Lal Bageria filed a suit in the year 1980 for the eviction of opposite parties Nos. 1 to 4 under. the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1977. During.the pendency of the aforesaid suit, the petitioner herein Smt. Indrawati Debi purchased the suit property by a registered deed of sale from opposite party No. 5 Shankar Lal Bageria. The registered sale deed is dated 10th Oct. 1983. In view of the purchase of the suit properly by the petitioner she was added as plaintiff No. 2 in the suit by order dated 14-8-1984, It is of some significance that evidence in the suit had concluded and 30th Oct. 1987 was the date fixed for arguments in the suit. The Court was closed for Puja Vacation for some time and it was to reopen on the 30th Oct., 1987.
3. Certain developments took place during the period when the civil courts were closed for Puja Vacation and reference may now be made to those facts. According to the petitioner there was a settlement with opposite parties Nos. 1 and 3 in regard to , handing over possession of the suit property to the petitioner with effect from 26th of Sept. 1987. The said settlement is said to have been recorded on stamp paper but so far that document has not seen the light of the day. : According to the petitioner, in accordance with the settlement reached, they took possession of the suit property. Since the matter was settled amicably between the parties when the court reopened on the 30th of Oct. 1987. She filed an application for withdrawal of the suit. The permission to withdraw the suit was refused by the trial court and hence Civil Revision No. 377/87 has been preferred by the petitioner.
4. On the other hand according to the opposite parties Nos. 1 to 4 in the early hours of 27th Sept. 1987 the husband of the peti- : tioner along with his son and son-in-law and other musclemen came to the house in : question and started throwing away belongings of the opposite parties Nos. 1 to 4. They misbehaved with the ladies in the house and forcibly took possession of the house except one room. It is not in dispute that the husband of the petitioner is a retired Deputy Superintendent of Police. The allegation of the opposite parties Nos. 1 to 4 is that he used his influence to perpetrate such atrocities on opposite parties Nos. 1 to 4. Immediately a report was made to the police and a case was registered under Sections 147, 448, 323 and 380 IPC. The case is said to be still pending. According to the aforesaid opposite parties, the petitioner and her husband and others took advantage of the situation and finding the court to be closed they forcibly dispossessed them from a major part of the house leaving them confined to just one room. It was under those circumstances that when the court reopened on 30th of Oct. 1987, an application was filed on their behalf under Section 151 of the Code of Civil Procedure for issuing a mandatory injunction directing the petitioner to restore possession of that portion of the house from which they had been forcibly dispossessed during the pendency of the suit.
5. Both the applications were filed before the Court when it reopened after Puja vacations and the matters were placed before the Court. On the 2nd of Nov., 1987 when the application of opposite parties under Sec. 151, Cr.P.C. was taken up for hearing, the Court directed the petitioner to file her rejoinder by the 3rd of Nov., 1987. On the 3rd of Nov., 1987, the petitioner again asked for time and she was granted time till 6-11-87 to file her reply failing which the Court observed that the application may be disposed of finally. On the 6th of Nov., 1987, the petitioner again asked for time to file her reply. The Court refused to grant further time in view of the urgency of the matter and proceeded to dispose of the application. The learned Addl. Munsif, Giridih, passed two separate orders on 6-11-87. By its order passed on the application preferred by opposite parties Nos. 1 and 3, it issued a mandatory injunction directing the petitioner, her husband and agents to restore the entire premises to defendants 1 and 2 within 48 hours, that is, by the evening of 6-11-87. It was further ordered that if petitioner No. 2, her husband and agents, failed to comply with the order of the Court, possession will be restored through the process of the Court. By its second order, the Court refused to grant permission to the petitioner/plaintiff No. 2 to withdraw the suit holding that the application was mala fide and granting of such an application without compliance with the mandatory injunction was not in the interest of justice. It therefore refused to grant permission to the petitioner to withdraw the suit.
6. Mr. Debi Prasad, learned counsel appearing on behalf of the petitioner, submitted that opposite parties were dispossessed from the premises in question by the husband of the petitioner without the aid of the Court. In such a situation, the Court had no jurisdiction whatsoever to issue a mandatory injunction directing the petitioner to restore possession to the opposite parties. According to him, no interlocutory mandatory injunction can be passed at the instance of the defendants even if there was a forcible dispossession of the defendants during the pendency of the suit for their eviction. According to him, the defendants could not have asked for any relief in the suit and their only remedy was by way of filing a suit under Section 6 of the Specific Relief Act. In such a case, no question of interest of justice arose and the Court could not do anything in the matter.
7. On the other hand it has been contended on behalf of the opposite parties Nos. 1 to 4 that in such a suit the Court is not rendered helpless since it has jurisdiction in exercise of its inherent powers to pass an appropriate order in the interest of justice and such an order could even be in the form of an interlocutory mandatory injunction against the plaintiff in the suit.
8. So far as granting of injunction is concerned, it is now well settled that under Order 39, Rules 1 and 2 of the Code of Civil Procedure, a mandatory injunction can also be granted in the same manner in which a prohibitory injunction can be granted. If authorities are necessary for the said proposition, one may usefully refer to the cases reported in AIR 1966 Pat 263 and AIR 1978 Goa 46. It is not necessary to multiply authorities since this proposition was not seriously disputed before me. What was urged before me on behalf of the petitioner was that a mandatory injunction could be granted only under Order 39 Rules 1 and 2 of the Code of Civil Procedure and the court could not issue such an injunction in exercise of its inherent powers. No court has inherent power to grant injunction and an injunction can be granted only in the situations conceived by Order 39 Rules 1 and 2 C.P.C. Therefore, it was submitted that the order passed by the learned Addl. Munsif granting a mandatory injunction in favour of the opposite parties and against the petitioner was without jurisdiction since it was not an order passed under Order 39 Rules I and 2 of the Code of Civil Procedure but was an order which could only be relatable to the exercise of its inherent powers.
9. The question as to whether the Court has any inherent power to issue an injunction is not res integra. The question has been authoritatively decided by the Supreme Court of India, in the case reported in AIR 1962 SC 527. In that case, the Supreme Court noticed the difference of opinion between the High Court on this point. The view consistently followed by the Madras High Court was that the Court could not issue an order of temporary injunction unless the circumstances fell within the provisions of Order 39 of the Code of Civil Procedure. The opposite view was taken by the Allahabad and the Calcutta High Courts to the effect that a Court can issue an interim injunction under situations which are not covered by Order 39 of the Code if the Court was of opinion that the interest of justice requires issue of such interim injunction. The Supreme Court while agreeing with the latter view observed as follows (at p. 532 of AIR):-, "We are of opinion that the latter view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX C.P.C. There is no such expression in Section 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 interest of justice but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 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 Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power."
10. The Supreme Court noticed that there was nothing in Order XXXIX, Rules 1 and 2 which provide specifically that a temporary injunction was not to be issued in cases which are not mentioned in those rules. The rules only provide that in circumstances mentioned in them, the Court may grant a temporary injunction. Further the provisions of Section 151 of the Code made it quite clear that inherent powers are not controlled by the provisions of the Code. In its judgment the Court also referred to its earlier judgment reported in AIR 1961 SC 218 where the Court had observed as follows (at p. 219 of AIR):--
"The inherent powers of the Court are in addition to the powers specifically conferred on the Court' by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature."
Their Lordships concluded that Section 151 of the Code of Civil Procedure itself clarifies that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent powers by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Thus when the Code itself recognises the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Court. Of course, the inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure.
11. In view of the decision of the Supreme Court, it cannot be disputed as a proposition of law that in exceptional circumstances, the inherent powers of the Court can extend to issuing an order of interim injunction. But it was contended on behalf of the petitioner that no mandatory injunction can be granted at the instance of a defendant in the suit. This precise questions came up for decision before the High Court of Travancore Cochin and the decision rendered is reported in AIR 1957 Trav Co 286. The learned Judge agreed with the reasoning that if inherent powers, of the Court can be exercised in exceptional circumstances on behalf of the plaintiff, there was no reason not to extend the same jurisdiction in similar circumstances on behalf of the defendant. I am also in respectful agreement with the opinion of the learned Judge.
12. I have, therefore, come to the conclusion that in the exercise of its inherent powers, the Court can in exceptional circumstances not covered by the situations envisaged under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure grant temporary injunction, which includes not only a prohibitory but also a mandatory injunction. I have also come to the conclusion on that in the exercise of its inherent powers, no distinction can be drawn on the ground that such an order is passed at the instance of the plaintiff or the defendant since the justification for the exercise of such power is the existence of exceptional circumstances and in the interest of justice. Consequently the inherent power of the Court can be exercised in favour of either of the parties. Needless to say that the exercise of inherent powers must be in exceptional circumstances and not contrary to any provisions of law.
13. The only question that remains for consideration is as to whether the circumstances that existed in the instant case were of such an exceptional nature that the Court found itself compelled to pass an order of mandatory injunction. It is not contended on behalf of the petitioner that in the circumstances it was open to the concerned opposite parties to make an application for grant of temporary injunction under Order 39 of the Code of Civil Procedure. Indeed it was argued on behalf of the petitioner that the only relief that they could seek in such a situation was by filing a suit under Section 6 of the Specific Relief Act. It was urged that the trial Court in the circumstances of the case could grant no relief whatsoever to the concerned opposite parties. It is, therefore, not disputed before me that the situation which arose in the instant case was not one which was covered by the situations envisaged in Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure. The Court was faced with a peculiar situation where taking advantage of the Courts remaining closed during Puja Vacation, the petitioner through her husband, a retired D.S.P. and other relatives and musclemen forcibly evicted the concerned opposite parties who were tenants in the suit premises, even while the suit was pending before a Court of competent jurisdiction. The game was to create a situation in which the tenants were faced with fait accompli. This was sought to be achieved by complete disregard of all non-legal or moral. Having achieved the objective, the petitioner wanted the Court to grant her permission to withdraw the suit. By making such an application and asking for the Court's permission the petitioner was doing nothing short of scorning at the legal procedures and informing the Court how helpless it was when it dealt with shrewd and cunning litigants who wielded considerable influence and muscle power. In such a situation, was the Court expected to remain a mere idle spectator even when it found that a party to the suit had acted in a grossly illegal and highhanded manner in relation to the subject-matter of the suit pending before it? The answer must be in a firm negative. If the dignity and prestige of the Court and the majesty of the rule of law is to be upheld, the Court must stretch its long arms to deal with any litigant who attempts to play with the procedures of the Court and shows scant regard for the rule of law. The inherent powers of the Court are meant to be exercised in such situations because nothing is more demoralising to a law abiding citizen than to be told by the Court that it is helpless in the matter of affording him any protection even when his adversary has acted with impugnity contrary to all known legal procedures and that too after submitting to the Court's jurisdiction. To tolerate such an injustice would itself amount to perpetrating injustice in its most blantant form. I am therefore of the considered view that the Add). Munsif did what he ought to have done in the circumstance of the case, and no litigant who has no regard for the dignity of the Court and the majesty of law can claim the protection of the same Court and the same legal procedure for which he has no regard. I, therefore, find no illegality in the exercise of jurisdiction by the trial Court. The trial Court exercised its inherent powers in a situation which justified the exercise of such power. The trial Court was also right in insisting that before the petitioner could be permitted to withdraw his suit, he must first comply with the mandatory injunction issued against him and not take advantage of his own illegal acts. It was therefore justified in refusing permission to the petitioner to withdraw the suit and compel him to comply with the order of mandatory injunction.
14. In this view of the matter, I find no merit in these two civil revision applications. They are both dismissed with costs which is quantified at Rs. 2000/- (two thousand) to be paid by the petitioner to opposite party Nos. I to 4 within three weeks from the date of this order.