Calcutta High Court (Appellete Side)
Abdul Mujid Mondal & Ors vs Piar Md. Gayen & Ors on 10 March, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
C.O. 3975 of 2016
Abdul Mujid Mondal & Ors.
Vs.
Piar Md. Gayen & Ors.
For the petitioners : Mr. Kaushik Dey
For the opposite parties : Mr. Hiranmoy Bhattacharya
Judgement on : 10.03.2017
Ashis Kumar Chakraborty, J.
This revisional application is directed against the order dated September 28, 2016 passed by the learned Civil Judge (Junior Division), Additional Court at Bankura in Misc. Case No. 4 of 2016, arising out of Title Suit No. 19 of 2013. By the impugned order, the learned Court below rejected the application filed by the revisional petitioners under Section 94(c) read with Section 151 of the Code of Civil Procedure (in short "the Code") praying for, an order of injunction restraining the opposite parties from interfering with their possession and user of the suit property, a tank.
The petitioners claiming to be in possession of the tank namely, Tamlibandh (hereinafter referred to as "the suit property") filed the suit against the opposite parties, before the learned Court below claiming, inter alia, a decree for permanent injunction restraining the opposite parties from interfering with their possession in respect of the suit property. In the suit the petitioners also filed an application under Order XXXIX Rules (1) and (2) of the Code praying for, an interim order of injunction against the opposite parties which was rejected by the learned trial Judge. The petitioners carried the said order passed by the learned trial Judge in appeal, being Misc. Appeal No. 35 of 2009 before the learned Civil Judge (Junior Division), Additional Court at Bankura. By order dated February 25, 2011 the learned Additional District Judge held that the petitioners herein, the appellants are in possession of the suit property set aside the impugned order passed by the learned trial Judge and passed an order of status quo regarding the possession of the suit property till the disposal of the suit. The said order dated February 25, 2011 was challenged by the opposite parties before this Court in a revisional application, C.O. 826 of 2011. By order dated February 25, 2011 a learned Single Judge of this Court upheld the decision of the learned Additional District Judge dated February 25, 2011 and rejected the revisional application. It is the case of the petitioner that during the pendency of the suit before the learned Court below, the defendant no. 12 died, but since they did not get proper information they could not take appropriate steps for bringing the heirs and legal representatives of the defendant no. 12 on record of the suit and by order dated April 22. 2016 the learned Court below recorded that the entire suit stood abated. The petitioners claimed that the delay in filing the application for bringing the heirs and legal representatives of the deceased defendant no. 12 was for reasons beyond their control and in any event there is no question of the entire suit being abated. They have filed an application before the learned Court below for review of the said order dated April 22, 2016. In the said review application the petitioners filed an application under Section 94(c) read with Section 151 of the Code praying for, an order for protection of their possession in respect of the suit property. By the order dated September 28, 2016 the learned Court below rejected the said application. The learned Court below held that in the present case when the abatement of the suit has not yet been set aside, there is no scope to pass an order of injunction under Section 94(c) of the Code. The learned Court below further held that once the suit has been recorded to have been abated, the Court in exercise of the inherent power cannot override, the rights accrued to the defendants by operation of law. The learned Court below was also of the view that prayer for injunction in the present case before setting aside abatement of the suit is not maintainable. It is the said order dated September 28, 2016 which is the subject matter of challenge in this revisional application.
Assailing the impugned order Mr. Kausik De, learned advocate appearing for the petitioner contended that the learned Court below committed an error of law in rejecting the injunction application filed by the petitioners. According to him, Section 94 of the Code squarely applies in a supplemental proceeding. He urged that in view of the provisions contained in Section 141 of the Code, during the pendency of the application for review of the said order dated April 22, 2016 passed by the learned Court below, the provisions contained in Section 94(c) as well as Section 151 of the Code are applicable. In this regard, he relied on the decision of the Supreme Court in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal reported in AIR 1962 SC 527 where it was held that the Court has inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX of the Code and there is no expression in Section 94 of the Code which expressly prohibits the issuance of an order of temporary injunction in circumstances not covered by Order XXXIX or by any rules made under the Code. Mr. Dey also relied on the decision of the Supreme Court in the case of Vareed Jacob vs. Sosamma Geevarghese & Ors. reported in (2004) 6 SCC 378.
On the contrary, Mr. Hironmoy Bhattacharya, learned advocate opposing the revisional application on behalf of the opposite parties contended that the impugned order passed by the learned Court below suffers from no infirmity calling for any interference by this Court. He submitted that Section 94 (c) of the Code confers the power on the Court to pass an order of injunction, but such power can be exercised if the circumstances fall under Order XXXIX of the Code. According to him, in the present case when the suit has been recorded to have been abated the circumstances under Order XXXIX do not arise and, therefore, the learned court below was correct to hold that in the present case the petitioners' application for injunction under Section 94(c) of the Code was not maintainable. In this regard, he relied on paragraph 11 of the decision of the Supreme Court in the case of Vareed Jacob (supra) cited by the petitioner. It was further contended on behalf of the petitioner that so long as the order recording the abatement of the suit is not recalled and the heirs of the deceased defendant no. 12 are brought on record there is no scope for the learned Court below to exercise its inherent power under Section 151 of the Code to an order of injunction as prayed for by the petitioners.
I have carefully considered the materials on record and the arguments advanced by the learned counsel appearing on behalf of the respective parties. Undisputedly, the finding of the learned Additional District Judge in Misc. Appeal No. 35 of 2009 that the petitioners are in possession of the suit property, as well as the order directing the parties to maintain status quo with regard to the suit property were affirmed by this Court in the revisional application, C.O. 826 of 2011. During the pendency of the suit before the learned Court below the defendant no. 12 died and his heirs were not brought on record of the suit within the prescribed period of limitation. Considering the relief claimed by the petitioner in the suit I find that prima facie there is strong force in the contention raised on behalf of the petitioners that there was no scope for the learned Court below to record abatement of the entire suit. Be that as it may, the petitioners have already filed an application before the learned Court below for review of the said order recording abatement of the suit as a whole. In the case of Jagjit Singh vs. Rakhal Das reported in AIR 1988 Cal 95, the Division Bench of this Court held that from a bare perusal of the provisions of Section 94(c ) of the Code shows that a Court may grant a temporary injunction only "if it is so prescribed"
and the expression "prescribed" would obviously mean, as defined in Section 2(16) of the Code", "prescribed by Rules", which are Rule (1) and Rule (2) of Order XXXIX and, therefore, a temporary injunction may be granted under Section 94(c ) of the Code only if a case satisfying the requirement of Rules (1) and (2) of Order XXXIX of the Code is made out. The Division Bench further held that the Court does not have two sources of power, one under Section 94(c) of the Code and another under Order XXXIX of the Code and under the Code, the Court grants temporary injunction only under one set of provisions, namely, Section 94(c ), read with Order XXXIX Rules 1 and 2 of the Code. The said decision of the Division Bench of this Court was applied by the Supreme Court in the case of Vareed Jacob (supra) cited by the petitioner. In paragraph 11 of the said decision, the Supreme court held that the source of power of the Court to grant an interim relief is under Section 94 of the Code, which can be exercised only if the circumstances of the case fall under Order XXXIX of the Code. Therefore, I find that the learned advocate appearing for the opposite parties was correct in his contention that Section 94(c ) of the Code is the source of the power of the Court to pass an order of injunction which can be exercised only the circumstances of the case fall under Rules (1) and (2) of Order XXXIX of the Code. Accordingly, the decision of the learned Court below in the impugned order to hold that in the present case after recording of the abatement of the suit the petitioners' application for injunction under Section 94(c) was not maintainable cannot be faulted. In the case of Vareed Jacob (supra) the Supreme Court, however, held that the Court can also grant temporary injunction in exercise of its inherent powers under Section 151 of the Code, but in that case, it does not grant temporary injunction under any of the powers conferred by the Code, but under powers inherent in the constitution of the Court which is saved by Section 151 of the Code.
With regard to the inherent power of the Court to pass an order of injunction under Section 151 of the Code, in the case of Manohar Lal Chopra (supra) the Supreme Court held that the Courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order XXXIX of the Code and there is no such expression in Section 94 of the Code which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order XXXIX or by any Rules made under the Code. The Supreme Court further held that Section 151 of the Code itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the case of K.K. Valu Samy vs. N. Palani Samy reported in (2011) 11 SCC 275 the Supreme Court held that Section 151 of the Code is not a substantive provision which creates or confers any power or jurisdiction of Courts, it merely recognises the discretionary power inherent in every Court as a necessary corollary for rendering justice in accordance with law, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process. The Supreme Court reiterated that as the provisions of the Court are not exhaustive, Section 151 recognises and confirms that if a case does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it and the breadth of such power is co-extensive with the need of exercise of such power on the facts and circumstances.
In view of the above principle of law laid down by the Supreme Court it is clear that in a case, where the provisions of Section 94(c ), read with order XXXIX read with Rules (1) and (2) of the Code cannot be made applicable, still in a fit case, where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bonafides of the applicant cannot be doubted Court can pass an order of injunction under Section 151 of the Code. Now the question arises, whether in the present case when the order recording abatement of suit is yet to be recalled whether, the learned Court below still pass an order injunction to protect the petitioners' right and possession in respect of the suit property.
Section 141 of the Code provides that the procedure provided in the Code in regard to the suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. The explanation to the said Section states that the expression "proceedings", includes proceedings under Order IX of the Code, but does not include any proceeding under Article 226 of the Constitution. The question that falls for consideration is whether the pendency of the application for review of the order dated April 22, 2016 passed by the learned Court below recording abatement of the suit can be termed as a proceeding in any Court of a civil jurisdiction under Section 141 of the Code. It is noteworthy that the explanation to Section 141 of the Code itself provides that expression "proceedings" includes proceedings under Order IX of the Code. The said explanation was inserted by Act No. 104 of 1976 which came into force with effect from February 01, 1977. In this connection, reference may be made to the relevant portion of the objects and reasons for the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976) which is extracted below:
"Clause 50- The applicability of Section 141 to various types of proceedings has been the subject of controversy, particularly whether the section applies where an application to set aside or orders of dismissal for default are themselves dismissed for default or decided ex parte. The High Court of Bombay held that in such cases Section 141 applies. The Supreme Court, however, came to a contrary conclusion. In the circumstances, Section 141 is being amended to clarify that the section applies to proceedings under Order IX.
The question whether an application under Article 226 of the Constitution is a "proceeding in any Court of Civil Jurisdiction" within the meaning of Section 141 has been the subject matter of a controversy. While the Andhra Pradesh High Court holds that Section 141 applies to such proceedings, the Allahabad, Calcutta, Madras and Punjab High Courts have held that Section 141 does not apply to such proceedings. In the circumstances, it is being clarified that Section 141 does not apply to proceedings under Article 226 of the Constitution "S.O.R. (Act 104 of 1976)."
Although, there was conflicting decisions of different High Courts as to whether the provisions of Section 141 of the Code only applies to an original proceeding or not but in the case of Ram Chandra Aggarwal and Anr. vs. The State of Uttar Pradesh and Anr. reported in AIR 1966 SC 1889 (para-6), the Supreme Court held the expression "civil proceedings" in Section 141 of the Code is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian etc. but it applies also to a proceeding which is not an original proceeding. Therefore, I find force in the contention raised on behalf of the petitioners that the pending application for review of the order dated April 22, 2016 is a civil proceeding within the meaning of Section 141 of the Code where the learned Court below could exercise power under Section 151 of the Code and I accept such contention. There is no doubt that the power under Section 151 of the Code shall have to be used with circumspection and care, where it is absolutely necessary. As discussed above, in this case the possession of the petitioners in respect of the suit property was upheld upto this Court in the revisional application C.O. 826 of 2011. There is strong force in the submission made on behalf of the petitioners that in any event, the entire suit would not stand abated only on the ground of not bringing the heirs and legal representatives of the deceased defendant no. 12 on record of the suit, within the prescribed period of limitation. In these facts, I find the present case was a fit case where the learned Court below ought to exercised power under Section 151 of the Code and passed an order injunction protecting the rights of the petitioners in respect of the suit property and the learned Court below fell into an error of law in passing the impugned order.
For all the foregoing reasons, the revisional application succeeds. The impugned order dated September 28, 2016 passed by the learned Civil Judge (Junior Division), Additional Court at Bankura in Misc. Case No. 4 of 2016, arising out of Title Suit No. 19 of 2016, arising out of Title Suit No. 19 of 2013 is set aside.
There shall an order of injunction restraining the respondents and each of them from interfering with the possession and enjoyment of the petitioners in respect of the suit tank, namely Tamly Bandh, situated at Mouza Jaba-Balarampur, Khatian No. 410, Plot No. 449/351, having an area of 4 acres 3 sataks under P.S. of Onda, District- Bankura, in any manner whatsoever, till the disposal of the Misc. Case No. 4 of 2016, arising out of Title Suit No. 19 of 2013, pending before the Civil Judge (Junior Division), Additional Court at Bankura.
There shall, however, no order as to costs.
Let urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)