Rajasthan High Court - Jaipur
Saraswati Devi (Smt.) vs Maharao Brajraj Singh And Anr. on 31 January, 2007
Equivalent citations: RLW2007(3)RAJ2676
Author: R.S. Chauhan
Bench: R.S. Chauhan
JUDGMENT R.S. Chauhan, J.
1. The appellant-a poor widow-is pitted against the former Maharaja of Kota the respondent before this Court. She seeks the refuge of this Court in order to protect her alleged property from the Maharaja's muscle men. She is challenging the Order dated 28.1.06, passed by the Additional District Judge, No. 1, Kota whereby the learned Judge has dismissed the appellant's second temporary injunction application under Order 39, Rules 1 and 2 of the Civil Procedure Code (henceforth to be referred to as 'the Code', for short).
2. The factual matrix of the case is rather chequered. According to the appellant, her late husband used to be a "Poddar" of the Late Maharao Bhim Singhji of Kota, (henceforth to be referred to as 'the Late Maharao', for short), the father of the Respondent No. 1. The post of "Poddar" used to be an office of status and confidence in the State times. It seems in 1980, agricultural land belonging to the Late Maharao, situated in Khasra No. 433, 434, 436 to 487, 491, 498/684 and 546/691, all measuring about 80 bighas, situated in Village Rampura, Tehsil Ladpura, District Kota was given to the appellant's husband for cultivation. With the end of the princely state, this land belonging to late Maharao Bhim Singh Ji came under Urban Land Ceiling Act as adopted by the Rajasthan State. The Late Maharao approached the State Government to grant exemption of this land under Section 20(1) of the Urban Land Ceiling Act. Consequently, the State Government exempted the said land in favour of the Khatedar vide its order dated 24.2.1990, but imposed a condition that the Khatedar would get a housing scheme approved by the Urban Improvement Trust, Kota (henceforth to be referred to as 'the U.I.T.', for short) and sell/allot plots to persons of weaker section of the society. Thereafter, the Late Maharao entered into an oral contract on 26.2.1990 with the appellant and agreed to sell the entire land, mentioned above, to her for a total consideration of Rs. 12 lacs. However, it was agreed that the responsibility of getting the scheme approved by the U.I.T., Kota would be taken up by the Late Maharao himself. According to the appellant, the said amount of Rs. 12 lacs was paid by her to the Late Maharao. Therefore, she had performed her part of the contract. However, prior to getting the approval of the scheme from the U.I.T., the Late Maharao expired. In his place, the respondent No. 1, Maharao Brajraj Singh took over as the next "ruler" of Kota. Although the respondent No. 1 kept on assuring the appellant that the he will obtain the approval of the scheme from the U.I.T., but he failed to do so. In 1990, the Government of Rajasthan repealed the Urban Land Ceiling Act. The appellant approached the respondent No. 1 for getting a sale deed executed, but he failed to do so. According to the appellant, she has been in the cultivatory possession of the said land since 1980 and she has been cultivating the land on "Munafa."
3. With escalation of prices of land in Kota, the respondent No. 1 decided to oust the appellant from the big chunk of land. According to the appellant, on 20.1.2000 certain anti-social elements entered her land and tried to throw her out of the land. She filed a report with the police, which was registered as FIR No. 37/2000 for offense under Section 447 of Indian Penal Code (henceforth to be referred to as 'the I.P.C., for short). Although, subsequently the police filed a negative Final Report, but in the negative F.R., it clearly mentioned that "the complainant (the appellant before this Court) is in possession of the disputed land, but the legal owners of the land are the opposite parties, who have a right to enter on the land and look after the same as a natural consequence of ownership, as such there is a dispute with regard to ownership, which does not fall within the mischief of the Penal Law and as such FR is being submitted for non-occurrence and the matter being a civil nature."
4. Since the respondent No. 1 was unwilling to enter into a sale deed with regard to the land in dispute, the appellant filed a civil suit for specific performance along with an application for temporary injunction. In order to substantiate her case, the appellant filed, receipts for the money, which was paid by her by way of "Munafa" to Thakur Prithvi Singh, who was the representative of Late Maharao for a period from 1981 to 1983. She also filed receipts issued by the Irrigation Department regarding bills of irrigation from 1991 to 2000. She further filed receipts for "Lagan" (land revenue) under the signature of the Patwari to prove the fact that she is in cultivatory possession of the disputed land. Since she had made out a prima facie case in her favor, vide order dated 2.2.2000, the learned trial Court granted an injunction in her favor and prevented the respondents No. 1 and 2 from interfering in her peaceful cultivatory possession of the disputed land.
5. Since the respondent No. 1 was aggrieved by the said order, he filed a Civil Misc. Appeal, which was registered as C.M.A. No. 100/2000 before this Court, Vide judgment dated 5.7.2002, this Court accepted the appeal and quashed and set aside, the interim injunction order dated 2.2.2000. Though this Court had deeply entering into the merits of the case, it had made it amply clear that its observations would not influence the decision of the learned trial court. However, as the appellant was aggrieved by the judgment dated 5.7.2002, she filed an S.L.P. before the Hon'ble Supreme Court. Vide order dated 10.3.2003, without entering into the merits of the case, the Hon'ble Supreme Court recorded the order as under:
Heard.
We do not find any merit in the S.L.P. It is accordingly dismissed.
6. Thus, the Hon'ble Supreme Court did not dismiss the SLP on merits, but dismissed it in limine.
7. Even during the pendency of the civil suit for specific performance, both the parties have engaged each other in revenue cases pending before the Assistant Collector, Kota. The revenue cases have climbed up to the Board of Revenue and come back down to the Court of Sub-Divisional Officer. During the pendency of these revenue cases, a large number of FIRs have also been filed by both the parties against each other and by third party against the parties before this Court. Therefore, the disputed land has become a bone of contention between the parties before this Court and between other persons as well.
8. According to the appellant, on 3.1.2006, her daughter, Sandhya Sharma, lodged a report at Police Station Nayapura, Kota, which was accorded as a "Nakal Rapat" No. 211/2006 in the daily "rojnamcha" at 7.20 P.M. In the report, she claimed that while she was returning back from the disputed land in the evening. Mr. Manvendra Singh and others stopped her. When she inquired about their misbehavior, they told her that the land belongs to the respondent No. 1. In case she and her mother (the appellant before this Court) do not vacate the land, then forcible possession shall be taken of the land. In order to save his skin, on 9.1.2006, Mr. Manvendra Singh also lodged a report at Police Station Nayapura, Kota wherein he claimed that he was in the service of Late Maharao and was looking after his movable and immovable properties. He further alleged that a false case has been lodged against him and his people by Sandhya Sharma and her brother. Dinesh Sharma. After investigating both the reports, the Police filed"a criminal complaint under Section 107 read with Section 116(3) Cr.P.C. before the Additional District Magistrate, Kota on 13.1.2006. In this complaint, while Mr. Manvendra Singh and some of his associates have been named as party No. 1, Sandhya Sharma, her brother, Dinesh Sharma and the present appellant have been made party No. 2. After investigating the reports, the police discovered that the appellant is in possession of the disputed land and there is every likelihood of breach of public peace because of the disputes that are pending between the party No. 1 and party No. 2.
9. On 13.1.2006, the appellant also filed a report at Police Station Nayapura, which was registered as FIR No. 39/2006 for offenses under Sections 143,323, 447 and 504 IPC. IN the said report, the appellant stated that respondent No. 1 along with Mr. Ijraj Singh and other anti-social elements came armed to the disputed land and tried to dispossesses her from the said land. She further claimed that a large crowd armed with deadly weapons such as "gandasas", "deshi kattas" and sticks tried to enter the disputed land and assaulted her daughter. They also abused her with regard to her caste. Only police interference saved their lives. Since both these incidents have occurred after the decision of the SLP on 10.3.2003, since her life and her property were both endangered, she filed a second application for temporary injunction before the trial Court. However, vide order dated 28.1.2006, the learned trial Court dismissed her application. Hence, this appeal before this Court.
10. Mrs. Sonia Shandaliya, the learned Counsel for the appellant, has taken this Court through the factual matrix narrated above and has argued that the learned Judge was more influenced by the order passed by this Court dated 5.7.2002 and by the fact that the Apex Court had dismissed the SLP filed by the appellant, then by the subsequent events, which have occurred. She also argued that there are large numbers of documents, which clearly prove the fact that the appellant is in possession of the disputed land. Thus, she has a strong prima facie cases in her favor. Moreover, the balance of convenience is also on her side, as her life and property desperately need to be protected. Further, in case the respondents are not prevented from ousting her from the disputed land, the very subject matter of the civil suit would disappear. Therefore, an irreparable loss would be caused to her.
11. On the other hand, Mr. S.S. Rathore, the learned Counsel for the respondents, has argued that although the first temporary injunction application was allowed by the learned trial Court vide order dated 2.2.2000, the same was quashed and set aside by this Court vide its judgment dated 5.7.2002. Subsequently, the judgment dated 5.7.2002 was upheld by the Apex Court, vide its judgment dated 10.3.2003, when it dismissed the SLP filed by the appellant. Secondly, once the first application of temporary injunction stood rejected, the second application is not maintainable. In fact, it is hit by res judicata. Therefore, the learned Judge had validly rejected the second application. Thirdly, since the case has traveled all the way up to the Apex Court, the subsequent development of events would not entitle the appellant for a temporary injunction in her favor. Lastly, once a temporary injunction application has been dismissed, a second temporary injunction application under Order 39 Rules 1 and 2 of the Code is not maintainable. At best the application has been moved under Section 151 of the Code. But a miscellaneous appeal is not maintainable from an order passed under Section 151 of the Code.
12. We have heard the learned counsels and have perused the impugned order.
13. The fundamental function of the courts of law is not only to resolve a dispute, but also to maintain peace and harmony in the society during the pendency of the dispute. Therefore, once it was brought to the notice of the learned trial Court that the disputed land is the bone of contention between the parties since the year 2000, that a large number of criminal and revenue cases have been filed during the last six years, that repeatedly attempts have been made to oust the appellant from the disputed land, that her life, limb and property are in danger, that the widow is fighting against a. powerful person like the "Maharaja" of Kota, who seems to be using his money and muscle power to deprive her of the land in dispute, it was incumbent on the learned trial Court to protect the interest of the appellant. No man, including the former ruler of Princely States, can be permitted to take the law into his own hands. The Rule of Law is to be respected by one and all. Thus, the respondent No. 1 cannot be permitted to attempt to oust the appellant from the land in dispute by use of muscle power and anti-social elements and in utter violation of the law.
14. The learned trial Court seems to be influenced by the fact that the SLP was dismissed by the Hon'ble Supreme Court. However, in the case of Narcotics Control Bureau v. Dilip Pralhad Namade , the Hon'ble Supreme Court has clearly held that, "Furthermore, disposal of SLP against a judgment of the High Court does not mean that the said judgment is affirmed by such dismissal. The order passed in any SLP at threshold without detailed reasons does not constitute any declaration of law or constitute a binding precedent. This Court cannot and does not reverse or modify the decree or order appealed against while deciding the petition for special leave to appeal and that too when the SLP was being dismissed. What is impugned before this Court can be reversed or modified only after granting leave and then assuming appellate jurisdiction over it. If the order impugned before this Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage." The same view was reiterated in the case of Batiarani Gramiya Bank v. Pallab Kumar and Ors. , when the Apex Court held that "This Court in catena of decisions has held that the dismissal of special leave petition by a non-speaking order which does not contain the reasons for dismissal does not amount to acceptance of the correctness of the decision sought to be appealed against." Thus, it is, indeed, a settled principle of law that in case an SLP is dismissed in limine, it does not necessarily mean or imply that the judgment passed by the High Court is upheld. Furthermore, a bare perusal of the Order dated 10.3.2003 clearly reveals that the Hon'ble Supreme Court had not gone into the merits of the case, but had dismissed the SLP in limine. Order dated 10.3.2003 is, in fact, a non-speaking order. Hence, the learned trial court fell into an error when it formed an impression that the dismissal of the appellant's SLP by the Apex Court meant that the judgment passed by this Court was necessarily confirmed.
15. A bare perusal of Order 39, Rules 1 and 2 clearly reveals that there is no statutory bar against the filing of a second temporary injunction application, provided new facts have emerged, which would warrant the issuance of the temporary injunction in favour of the plaintiff. Thus, the plaintiff is free to file a second application for temporary injunction provided new facts or events make out a case in his favour. Hence, the contention of the learned Counsel for the respondent No. 1 that a second application for temporary injunction is non-maintainable is unsustainable.
16. In order to appreciate the second application for temporary injunction in proper perspective, it is imperative that the court should examine the subsequent events in proper perspective. The Court cannot close its eyes ostensibly on the ground that the previous application for temporary injunction was dismissed by it or by a superior court. The only condition which should be satisfied is that subsequent events must warrant the issuance of a temporary injunction in favour of the plaintiff. Thus, the subsequent events-the alleged threat on 3.1.2006 given by Mr. Manvendra Singh, an the employee of respondent No. 1, to Sandhya Sharma, the appellant's daughter, the lodging of a criminal complaint by the police under Section 107 read with Section 116(3) of Cr.P.C., the attack by a large crowd armed with deadly weapons on 31.1.2006-should have alerted the learned trial Court about the threat held out by the respondents to the appellant. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal , the Hon'ble Supreme Court has clearly held that while granting a temporary injunction, the courts are not cribbed, cabined and confined by the scope and ambit of Order 39 Rules 1 and 2 of the Code. In fact, the subordinate courts have inherent powers to issue temporary injunctions in the interest of justice in the circumstances, which are not covered by Order 39 of the Code. Thus, the paramount consideration is the interest of justice, the present case is certainly a case where in the interest of justice the learned trial court should have traveled beyond Order 39, Rules 1 and 2 of the Code.
17. Moreover, in a catena of cases the Hon'ble Supreme Court has held that where the dispute is with regard to an immovable property, then the property needs to be preserved and ordinarily, a status-quo should be maintained between the parties. Ref. to Maharwal Khewaji Trust Regd. Faridkot v. Baddev Dass . This principle has also been echoed by this Court in the case of Smt. Rama Devi and Ors. v. The Sanganer Cooperative Housing Society Ltd. 1986 RLR 1018. Therefore, this Court is of the opinion that status-quo should be maintained till the decision of the civil suit by the trial Court.
18. Vide order dated 11.7.2006, this Court had directed the parties to maintain status-quo as on July 11, 2006. It had further directed the trial Court to decide the civil suit within a period of six months. However, on 9.11.2006 and 22.11.2006 this Court was informed that a number of applications have been filed by the parties before the learned trial Court, which have yet to be decided. Therefore, it is not possible for the learned trial Court to implement the directions issued on 11.7.2006 to decide the case within six months. Considering the pendency of the applications, in the interest of justice, this Court is inclined to continue the order dated 11.7.2006 with regard to the maintenance of the status-quo and to further grant a period of six months to the learned trial Court to decide the case. Since periodically a volatile situation seems to erupt, the learned trial Court must endeavor to finally decide the case as soon as possible and certainly within a period of six months as extended by this Court. Meanwhile, both the parties are directed to maintain peace and tranquillity over the disputed property. And the D.I.G., Kota is directed to ensure that no law and order problem arises between the parties over the disputed land.
19. With these observations, this appeal is allowed. There shall be no order as to costs.