Gujarat High Court
Bhagwanji Vishavji Thakkar vs Pravinchandra Jivanbhai Patadia And ... on 24 March, 1995
Equivalent citations: (1995)2GLR1438, 1995 A I H C 5967, (1995) 2 GUJ LR 1438 (1995) 2 GUJ LH 726, (1995) 2 GUJ LH 726
JUDGMENT S.D. Shah, J.
1. By this Civil Revision Application, the petitioner-tenant, who has in his favour a temporary mandatory order directing Jivanlal Jerambhai Patadia - second respondent (landlord) to restore possession of the suit premises to the present petitioner, has made grievance that by dubious and diabolical design, the respondent Nos. 1 and 2 (son and father) have not only rendered order of the High Court of Gujarat in favour of the present petitioner meaningless but has obtained prohibitory injunction so as to keep petitioner out of the suit premises. It is such order of injunction granted by two Courts below, which is under challenge in this Civil Revision Application.
2. In order to properly appreciate the grievance of the petitioner-tenant and the circumstances under which the respondents son and father have overreached and rendered nugatory the success of the petitioner-tenant in obtaining mandatory direction for restoration of possession of suit premises from three Courts including this High Court by getting subsequent suit instituted at the instance of his son, it is necessary to set out relevant facts giving rise to the present proceeding hereunder:
(i) The present petitioner-Bhagwanji Vishavji Thakkar claims to be the tenant of suit premises comprising of shop stituated in "Matru Chhaya" building in Chunarawad Street No. 4 at Rajkot. The respondent No. 2 - Jivanlal Jerambhai Patadia is admittedly the landlord of the suit premises. Respondent No. 1 Pravinchandra Jivanbhai Patadia is the son of the landlord.
(ii) Respondent No. 2 - Jivanlal Jerambhai Patadia (landlord) instituted a Regular Civil Suit No. 177 of 1991 on 9-9-1991 against one Ashwinkumar Balvantrai Tanna inter alia alleging that said Ashwinkumar Tanna was the tenant of the shop in question and that he was liable to be evicted for non-payment of rent and for non-user of the suit premises. On 15-6-1992 such suit for possession was decreed in favour of Jivanlal Jerambhai Patadia. He thereupon filed Regular,Civil Darkhast No. 22 of 1992 and the Executing Court issued possession warrant under Order 21 Rule 35 of the C.P. Code on 23rd July, 1992. Possession of the suit shop was taken over by Jivanlal Jerambhai Patadia through Court by breaking open lock of the suit shop. The present petitioner (tenant) was not party in this proceeding.
(iii) It will not be out of place to mention that such decree was obtained by Jivanlal Jerambhai Patadia by perpetrating fraud with the trial Court and perhaps collusively. The regular address of said tenant Ashwinkumar Balvantrai Tanna is shown in the plaint of that suit at village Bedla and summons of the suit was allegedly served on said Ashwinkumar Tanna at village Bedla. The usual address of the suit shop, namely, at "Matru Chhaya" building in Chunarawad Street No. 4 at Rajkot was not given nor is summons of the suit served on said Ashwinkumar Tanna at the address of the shop. From the record of the proceedings of Regular Civil Suit No. 177 of 1991 it becomes clear that said Ashwinkumar Balvantrai Tanna never appeared in the suit and the suit was ordered to be heard as ex parte. It is also pertinent to note that in the Small Causes Court at Rajkot, ordinarily, rent possession suits are finally heard and decided approximately between 5 to 6 years. The trial Court never cared to know as to why the summons of the suit was sought to be served at village Bedla while the said tenant was carrying on business at "Matru Chhaya" building at Rajkot. Within a short span of six months, the trial Court proceeded to record evidence of Jivanlal Jerambhai Patadia, the landlord, and on the basis of such ex parte evidence, proceeded to pass the ex parte decree of possession against said tenant Ashwinkumar Tanna. From the documentary evidence in the nature of Municipal Bill, Electricity Bill, etc. there was nothing on record before the trial Court to reach a finding that said Ashwinkumar Tanna was ever the tenant of the suit shop. In fact, according to the present petitioner, Bhagwanji Vishavji Thakkar, he is tenant of the suit shop since last 18 years at a monthly rent of Rs. 75/- and he has never ceased to be the tenant of the suit shop.
(iv) The present petitioner, who is claiming to be the tenant of the suit shop and who was out of Rajkot at Talod as wife of his brother was seriously ill, came to know that possession of the suit shop was taken over by the landlord by breaking open the lock on or about 23rd of July, 1992 and he also took possession of all the goods of the present petitioner, which were lying in the suit shop. On coming to know about this fact, he rushed to Rajkot and on 24th July, 1992, filed a Criminal complaint being Criminal Case No. 415 of 1992 in the Court of J.M.F.C. Rajkot. He also filed an application in the Executing Court to return to him the goods of his ownership of which possession was taken during executing of decree by the landlord. Such application was filed with a view to proving that on the date on which ex parte decree was executed and possession was illegally and collusively taken by the landlord, actually the present petitioner-tenant was in possesion of the suit premises and the goods of his ownership were lying in the suit shop. Such application was filed in the Executing Court which was said to be pending and it is clearly stated in such application that all goods attached and recovered from the suit shop were of the ownership of present petitioner-tenant.
(v) The present petitioner also instituted Regular Civil Suit No. 150 of 1992 in the Court of Small Causes at Rajkot on 7th August, 1992 against landlord Jivanbhai Jerambhai Patadia for declaration and permanent injunction declaring that the judgment and decree obtained by landlord in Regular Civil Suit No. 177 of 1991 was fraudulent and collusive and was null and void and he also prayed to hand over the goods of his ownership attached and recovered from the suit shop by the landlord and he also applied for temporary mandatory injunction directing the landlord to hand over the possession of the suit shop to him. In such suit, he obviously impleaded Jivanbhai Jerambhai Patadia (landlord) as party defendant because the said landlord has fraudulently and collusively obtained a decree of possession against him and has by executing such decree illegally and unauthorisedly obtained possession of the suit shop.
(vi) Such application at Exhibit-5 filed by the present petitioner-tenant for mandatory direction or restoration of possession of suit shop was heard by the Court of Small Causes at Rajkot and by judgment and order dated 25th May, 1993, the Court granted mandatory direction to the landlord Jivanlal Jerambhai Patadia to restore possession of the suit shop to the present petitioner.
(vii) It is pertinent to note that the order below Exhibit-5 for mandatory direction for restoration of possession of the suit shop was granted by Small Causes Court at Rajkot in favour of the present petitioner-tenant on 25th May, 1993. It is equally important to note that the landlord Jivanlal Jerambhai Patadia thereupon filed Misc. Civil Appeal No. 40 of 1993 in the District Court at Rajkot which came to be dismissed on 12th of August, 1993 whereby the District Court confirmed the findings reached by the trial Court that possession of the suit shop was fraudulently and collusively taken by the landlord by collusively filing the suit and by impleading one Ashwinkumar Balvantrai Tanna as party defendant though he was never the tenant of the suit shop.
(viii) It is still more interesting to note that after such appeal preferred by the landlord (father) came to be dismissed by the District Court at Rajkot on 12th August, 1993, the son, namely, Pravinchandra Jivanbhai Patadia, for the first time came forward and instituted Regular Civil Suit No. 143 of 1993 on 18th August, 1993. There is no manner of doubt in the mind of this Court that his son Pravinchandra Jivanbhai Patadia was acting as a stooge at the instance of his father and having come to know that mandatory direction was issued by two competent Courts to restore possession to the original tenant, the son instituted the present suit being Regular Civil Suit No. 143 of 1993 on 18th August, 1993. This was nothing but a dubious and diabolical device adopted by the father Jivanlal Jerambhai Patadia in collusion with his son, of course, under legal advice with a view to defeating the temporary mandatory injunction granted by two Courts below and with a view to rendering nugatory and ineffective the orders of the competent Civil Courts. This exercise undertaken by the son Pravinchandra Jivanbhai Patadia after the judgment and order passed by the District Court in Misc. Civil Appeal No. 40 of 1993 speaks volume about the intention of the original landlord and his son. In the opinion of this Court, the process of the Civil Court was blatantly misused and abused solely with a view to rendering meaningless the order of temporary mandatory injunction granted by two Courts concurrently directing the landlord to restore possession of the suit shop to the tenant.
(ix) To add to this glaring, eye-opening and collusive facts, this Court is surprised to note one another important fact. The father Jivanlal Jerambhai Patadia, being aggrieved by the judgment and order passed in Misc. Civil Appeal by the District Court of Rajkot, preferred Civil Revision Application No. 1251 of 1993 which came to be finally decided by K.R. Vyas, J. on 1st of October, 1993. In such Judgment, Justice K.R. Vyas, in the very first paragraph very pertinently observed as under:
In rarest of rare cases the Court passes the order restoring the possession to the tenant at the interlocutory stage. This is one of such cases where the Courts below have done so, and in my view rightly so.
(x) After making the aforesaid observations, the learned single Judge proceeded to consider the contentions of the Advocate of landlord (father) that by granting interim relief of restoration of possession to the tenant, the Courts below have fraudulently granted decree in favour of the tenant at the interim stage. The learned Advocate relied upon the following observation of the Apex Court in the case of Dorab Cawasji Warden v. Coomi Sorab Warden, reported in AIR 1990 SC 867.
The reliefs of interlocutory mandatory injunction are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, Courts have evolved certain guidelines. Generally stated these guidelines are:
(1)The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2)It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3)The balance of convenience is in favour of the one seeking such relief.
(xi) Having so noted the observations of the Supreme Court, the learned single Judge answered the submission by holding that the submission of the learned Advocate for the landlord was misconceived. It is not permissible for the Court to pick up a word from the judgment and ignore the remaining part of the judgment. The learned single Judge thereafter made following pertinent observations which are required to be quoted extensively as the learned single Judge has for cogent and convincing reasons confirmed all the findings of the two Courts below in favour of the tenant. The said observations are as under:
7. True, when there is contest or controversy between the parties about the status, the Court normally refrains from granting the final relief at an interlocutory stage, but Court is certainly entitled to scan the so-called defence about the denial of status of tenancy raised by the other side, otherwise Court would be encouraging the dishonest defence and allowing the party to live at the mercy of the opponent till his rights are finalised at the end of the trial and thereafter, in appeal and what not? It is very easy for the opponent in any case to deny the status of one party who goes to Court after doing illegal acts and then to contend that no final relief be granted at an interlocutory stage. The Court in such situation cannot sit and watch the proceedings as a silent spectator and showing the helplessness. The Court in this situation can certainly take recourse to the guidlines narrated by the Supreme Court in the Dorab's case (supra), namely, that the plaintiff has a strong case for trial which shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction; that it is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money; that the balance of convenience is in favour of the one seeking such relief.
8. Bearing the aforesaid principle in mind, let us look into the present case. There is sufficient evidence on record which would go to show that the respondent was in possession of the suit premises immediately preceding the filing of the suit. The Courts below have relied upon Marks 4/5 and 4/6 which are the electric bills for consumption of electricity during the month of July-August, 1991 which suggest that the respondent was in possession of the suit shop as both the bills are in the name of the respondent. There are receipts Marks 4/8 and 4/9 produced by the respondent issued by the Municipal Corporation dated 28-5-1992. There are other bills also - Marks 4/10 and 4/11. After considering the same, the Courts have observed that these bills which the respondent was possessing were for the months of March, April, May & June, 1991. Over and above the document Mark 4/12, is the complaint produced by the respondent showing that the rented shop was in possession of the respondent on 25-1-1984. There is treatment report dated 11 -5-1992 produced at Mark 4/13 in respect of the treatment given to the sister-in-law of the respondent. This evidence prima facie is sufficient for believing the case of the respondent that he was in possession of the suit premises when he was illegally evicted. The fact that the petitioner in collusion with one Ashwinkumar filed a suit and obtained ex parte decree without even joining the respondent also supports the version of the respondent that he is illegally deprived of the possession of the suit shop. The fact that the petitioner has inducted his own son who is doing the business in the name of "Ashok Mandap Service" in the suit shop as a tenant from 1-8-1992 will clearly go to show that the petitioner has done all acts illegally and in a high-handed manner by obtaining an ex parte decree of eviction in collusion with the so-called Ashokumar without even joining the respondent in the said proceedings when documents on record clearly prove the possession of the respondent in the suit premises prior to the institution of the suit by the petitioner and executing the decree by breaking open the lock of the suit premises in absence of the respondent and finally nailing the conffin by inducting his own son as a tenant in the suit premises and then to contend in a suit of the respondent that status of the respodent is in dispute and therefore, no relief at the interlocutory stage be granted. In my view no Court would permit the fraud committed to it and there cannot be a better case than the present one where the relief prayed can be refused. Thus, considering the totality of the evidence, in my view, no illegality has been committed by the Courts below in granting Exh. 5 restoring the possession of the suit premises to the respondent and no case has been made out for my interference in this Civil Revision Application. Hence, I reject this Civil Revision Application.
(xii) The aforesaid decision was rendered by the learned single Judge on 1st October, 1993. The said judgment of the High Court or at least the fact that High Court has dismissed the Civil Revision Application of the landlord (father) on 1st October, 1993 by a well reasoned judgment was known to the trial Court in the subsequent suit filed by the son of the landlord, namely, Pravinchandra Jivanbhai Patadia, being Regular Civil Suit No. 143 of 1993 when it granted interim injunction in favour of the son restraining the present petitioner-tenant from in any way interfering with the possession of the suit shop which was allegedly given to the son by the father as his tenant. It may be incidentally mentioned that the Small Cause Court Judge, R.J. Sakiwala, who passed such order and granted Exhibit-5 application on 15th October, 1993 is now placed under suspension pending departmental enquiry into serious charges of corruption. The charge-sheet dated 6th December, 1994 is already served on him, wherein also identical cases of decreeing the suit of the landlord against tenants within very short period without verifying proper service on the tenant and executing decree by breaking open the lock within short period thereafter are levelled against him. The learned Small Cause Court Judge did refer to the fact that decree obtained by the father Jivanlal Jerambhai Patadia against Ashwinkumar Tanna was ex parte decree and he also noticed the fact that present petitioner (original tenant) has already immediately applied to the Court for handing over to him the possession of the goods attached by the landlord from his shop and that he has also filed the present civil suit wherein on Exhibit-5 mandatory injunction is granted against the landlord in favour of the tenant. He also noticed that such interim mandatory direction is confirmed by the superior Court, namely, District Court, Rajkot, in Miscallenous Civil Appeal. However, he did not mention the fact in his judgment that such judgment passed on Exhibit-5 in favour of the tenant (present petitioner) was confirmed not only by two Courts below but also by the learned single Judge of the High Court of Gujarat. It is clearly stated in the memo of Civil Revision Application that this fact was specifically brought to the notice of R.J. Sakiwala, learned Small Cause Court Judge before he delivered judgment on 15th October, 1993. But, this Court would not attach much importance to this fact as it is possible that he might have heard Exhibit-5 Application earlier thereto.
(xiii) However, when present petitioner preferred Civil Misc. Appeal No. 177 of 1993 in the Court of Assistant Judge at Rajkot against the judgment and order of R.J. Sakiwala, whereby he has granted injunction in favour of the son of the landlord so as to render meaningless and otiose the mandatory direction granted in his favour by three Courts concurrently including the Gujarat High Court, the learned Assistant Judge V.C. Mandalia, Rajkot, while dismissing the appeal on 15th January, 1994, did not even mention the fact that the learned single Judge of the High Court of Gujarat has confirmed the mandatory direction granted against Jivanlal Jerambhai Patadia, requiring him to hand over possession of the suit shop to the tenant Bhagwanji Vishavji Thakkar. This fact was definitely brought to the notice of the learned Assistant Judge and Mr. Y.S. Lakhani, learned Counsel for the petitioner has submitted before the Court that the learned Assistant Judge knew about the judgment of the learned single Judge of the High Court. He, however, did not think it fit to refer to the binding and weighty precedent of the learned single Judge of this Court in this very case and this Court fails to understand such a serious and glaring omission on the part of the Assistant Judge. He also noticed in the impugned judgment that in the suit filed by the present tenant Bhagwanji Vishavji Thakkar, the learned Small Cause Court Judge, Rajkot, has granted application at Exhibit-5 and has directed the landlord to hand over the possession of the suit shop to the present petitioner - Bhagwanji Vishavji Thakkar. He also noticed the fact that against such order, the landlord had preferred Civil Misc. Appeal No. 110 of 1993 before the District Court at Rajkot which also came to be dismissed on 12th of August, 1993. Having so noticed the fact of two concurrent judgments he immediately switched over to the fact that during the pendency of such proceeding possession of the suit shop was handed over by the father (landlord) to his son as tenant and that the son was in possession of the suit shop when the suit was filed by the present petitioner and, therefore, he thought it fit to confirm the judgment and order of injunction granted by the trial Court. It is unfortunate that Assistant Judge, Rajkot acted in such blatant disregard of the binding judgment and order of the learned single Judge of this Court that he did not deal with and did not assign any reason as to why he was granting contrary injunction to the mandatory direction issued in the earlier suit in favour of the tenant by the trial Court as well as by the District Court at Rajkot. The conduct of the learned Assistant Judge, Rajkot, to say the least, deserves denounciation and is required to be strongly deprecated as he has not only smartly overreached the three concurrent judgments of the Courts including that of the learned single Judge of the High Court but has proceeded to confirm the judgment and order of R.J. Sakiwala, which was in every respect contrary to the judgment and order of the learned single Judge of this Court. The judgment and order of R.J. Sakiwala was nothing but an outrageous attempt to brazen facedly overreach the order of the learned single Judge of this Court. I for myself fail to understand as to how and for what justifiable reason even the Assistant Judge, Rajkot fell in the same trap and confirmed the order of injunction which rendered nugatory the success of the original tenant Bhagwanji Vishavji Thakkar in getting an order of mandatory injunction of restoration of possession of the suit shop in his favour.
3. Aforesaid orders of injunction granted by two Courts below against the petitioner-tenant are under challenge before this Court.
4. Mr. Y.S. Lakhani, learned Counsel appearing for the petitioner original tenant has very seriously contended before this Court that though two Courts have concurrently granted injunction in favour of the son of the landlord, the Courts have acted in the exercise of its jurisdiction illegally or with material irregularity inasmuch as both the Courts have omitted to notice that there was in existence mandatory interim direction in favour of the present petitioner-tenant against the landlord requiring him to restore possession of the suit shop to the tenant and that the subsequent suit was filed by the son immediately within six days after the District Court, Rajkot, confirmed the mandatory injunction in favour of the present petitioner-tenant. The Assistant Judge, Rajkot, also perhaps deliberately omitted to mention the fact that mandatory interim injunction requiring the landlord to restore possession to the present petitioner-tenant was confirmed by the learned single Judge of the High Court in Civil Revision Application preferred by the landlord as back as 1st of October, 1993 and he did not even show the courtesy of referring to such binding judgment of the High Court in the very case between the same parties. Lastly, he submitted that the plaintiff Pravinchandra Jivanbhai Patadia (son of the landlord) and his father not only acted in collusion but have abused the process of the Court to render infructuous and meaningless the mandatory injunction granted in favour of the tenant by the three Courts concurrently and for such abuse of the process of the Court not only revisional powers must be exercised but even action for contempt of Court should be taken both against the landlord and his son.
On the other hand Mr. Sanjay Doshi, learned Counsel appearing for the landlord (father) having obtained sufficient accommodation from Justice B.C. Patel on the ground that the second respondent was in detention beginning from 13th of July, 1994, did not make any oral submission except stating that all throughout the second respondent-landlord was under preventive detention as "property grabber" and that mandatory order of injunction requiring him to restore possession of the suit shop is passed by three Courts concurrently including High Court. From the cause title of Civil Revision Application, it becomes clear that father and son both are residing at Chunarawad, Rajkot. He, therefore, could not make any effective submission in support of the orders of injunction granted by two Courts in favour of the son, Pravinchandra Jivanbhai Patadia. However, he submitted before the Court that when two Courts have concurrently granted injunction in favour of the son (present plaintiff) and against the original tenant, whatever may be the effect of such injunction, even if it be the effect of defeating the mandatory order of the learned single Judge of the High Court of Gujarat, this Court in its revisional jurisdiction under Section 115 should not interfere and should dismiss the Civil Revision Application. In fact, except remaining present on one occasion, before this Court on 7th September, 1994, he has even not cared to remain present before the Court at all during subsequent hearing and Mr. Y.S. Soni, learned Counsel, who appears for respondent No. 1 son has at number of times sought adjournment on the ground that he has to obtain instructions from the father, who was undergoing preventive detention. The collusion not only between father and son but amongst the Advocates was so writ large during the entire course of proceeding before me that I cannot resist observing that only father was playing the key role and son was the mere stooge or instrument or puppet, dancing at the tune of the father. The Advocates appearing before the Court miserably fumbled in putting forth the case of the respective clients as it was fully known to them that everything was done at the instance of the father and he was the key person acting behind the curtain not only to thwart the consecutive success of the original tenant in obtaining mandatory direction of restoration of possession of suit shop by obtaining collusive decree of possession against a person who was not the tenant of the premises and by immediately executing it and getting the possession of the shop along with all articles and goods of the ownership of the tenant by breaking open the lock, but he was the master mind working behind the subsequent litigation collusively engineered by him. The mandatory directions of the three Courts including the High Court requiring the landlord Jivanlal Jerambhai Patadia to restore possession of the suit shop to the present tenant Bhagwanji Vishavji Thakkar were not only rendered nugatory, meaningless and ineffective but that even emboldened the Advocate Mr. Y.S. Soni, appearing before the Court to submit that in the present case no interference of this Court was called for under Section 115 of the C.P. Code as two Courts had concurrently granted injunction in favour of the son and against the original tenant. For this purpose, Mr. Y.S. Soni has invited attention of this Court to the decision of the Apex Court in the case of The Managing Director (MIG) Hindustan Aeronautics Limited v. Ajit Prasad Tarway reported in AIR 1973 SC 76 and more particularly he has placed emphasis on the following observation made by the Apex Court:
In our opinion, the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appeallate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong, may be in accordance with law or may not be in accordance with law, but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code.
5. From the aforesaid observations, he submitted before this Court that once an order of temporary injunction is granted by Small Causes Court, Rajkot, it is no concern of this Court to see as to whether such decision is right or wrong or in accordance with law or not. He submitted that in the present case, two Courts have granted injunction in favour of the son, in the subsequently instituted suit by the son, it pales into insignificance that in the earlier suit instituted by the original tenant, the mandatory directions are issued against original landlord - father for restoration of possession of the suit shop. In his submission, even order of the High Court does not deserve compliance if in the subsequent suit instituted by the son, the Court has granted quite inconsistent and contradictory injunction restraining the tenant from recovering possession of the suit shop.
6. In the opinion of this Court, the aforesaid observations of the Supreme Court in the case of Hindustan Aeronautics v. Ajit Prasad (supra) are required to be closely read and required to be read in the context in which they are made. Firstly, the observations are confined only to Clause (c) of Section 115 of the C.P. Code. Secondly, in the case before the Supreme Court, Andhra Pradesh High Court interfered in the revision preferred at the instance of the plaintiff while it rejected the revision preferred by the defendant. The plaintiff was serving in the defendant company and was placed under suspension pending enquiry of the charges. He rushed to the trial Court and applied for temporary injunction both against the order of suspension as well as the proceedings of the enquiry ordered against him. The trial Court initially granted the ex parte order but latter vacated the order. The plaintiff went in appeal. The appellate Court modified the order and directed the defendant to refrain from proceeding further with the enquiry. But it sustained the order of suspension. Aggrieved by this order, both the parties went up in revision to the High Court. The High Court stayed the operation of the suspension order as well as the proceedings of the enquiry. It is against such order that the defendant company went to the Supreme Court. It was in this context that the Supreme Court observed that the first appellate Court did have jurisdiction to partially modify the order passed by the trial Court and it cannot be said that it acted illegally or with material irregularity in the exercise of its jurisdiction.
7. The prime questions that arise for consideration in cases like these are - Whether one Civil Court of coordinate jurisdiction has power, authority or jurisdiction to issue totally inconsistent or contradictory injunction to the one which is already granted in favour of the opposite party by equally competent Court of coordinate jurisdiction? Does such a Court lack jurisdiction or power to render meaningless or ineffective the earlier order of injunction granted by coordinate Court in favour of opposite party? Would exercise of such power by trial Court and that too by Court of coordinate jurisdiction not lead to inconsistent and contradictory orders in favour of either parties and would this not further lead to chaos in administration of justice? Would this not amount to abusing the process of the Court by the party who knowingly institutes second suit and obtains ex parte injunction so as to frustrate the effect of earlier injunction granted by Court of coordinate jurisdiction? Would the object of preserving status quo of the property underlying Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 be achieved or frustrated by such exercise? Would it not inculcate indiscipline and impropriety amongst lower judiciary so much so that a Judge of Small Cause Court would go to the extent of flouting the mandatory directions issued in the same proceeding with respect to the same property by the learned single Judge of the High Court?
These are few of the most pertinent questions which would arise in this Civil Revision Application and which are required to be answered.
8. Section 115 of the Civil Procedure Code is a wholesome provision introduced in the Code with a view to enabling the High Court to exercise its jurisdiction in which it appears to the High Court that the subordinate Court:
(a) has exercised a jurisdiction not vested in it by law, OR
(b) has failed to exercise a jurisdiction so vested, OR
(c) has acted in the exercise of jurisdiction illegally or with material irregularity.
Despite hue and cry raised by litigants and lawyers about necessity of retaining Section 115 of the C.P. Code in view of Article 227 of the Constitution of India and despite opinion expressed by Law Commission against need to retain Section 115 of the C.P. Code, the Parliament felt that remedy provided by Section 115 is cheap and easy and does not involve delay. If properly restricted in its scope and application in interlocutory order and having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-Seventh Reports, the Parliamentary Committee recommended that Section 115 of the C.P. Code should be retained subject to certain modification and one of such modifications suggested is that no revision application shall be entertained against an interlocutory order unless and if the interlocutory order if allowed to stand, is likely to occasion failure of justice or cause irreparable injury to the party against whom it is made.
9. In the aforesaid context the meaning of the word "Jurisdiction" as contradistinguished from meaning of the word as understood in the Administrative Law, this Court shall have to see as to whether in subsequently instituted suit by the son at the instance of the father being Regular Civil Suit No. 143 of 1993 in the Small Cause Court, Rajkot, when R.J. Sakiwala, learned Small Cause Judge passed temporary order of injunction in favour of the son (allegaing to be subsequent tenant) and against the original tenant in whose favour stood three concurrent orders of mandatory directions requiring the landlord to restore peaceful and vacant possession of the suit shop to the tenant, has any jurisdiction whatsoever to pass an order of injunction. The Apex Court in the case of M.L. Shethi v. R.P. Kapur reported in AIR 1972 SC 2379 observed as under:
The world "jurisdiction" is a verbal cast of many colours. Jurisdiction originally seems to have had the meaning which Lord Reid ascribed to it in Anisminde Ltd. v. Foreign Compensation Commission (1969) 2 AC 147, namely, the entitlement "to enter upon the enquiry in question". If there was an entitlement to enter upon an inquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Denman in R.v. Bolton (1841) 1 QB 66. He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. In Anisminde Ltd., (1969) 2 AC 147 Lord Reid said:
But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive.
In the same case Lord Pearce said:
Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make and order that it has no jurisdiction to make. Or in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice, or it may ask itself the wrong questions, which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct. Any of these things would cause its purported decision to be a nullity.
10. When one Civil Court grants an order of injunction in favour of a party and against opposite party, is it open to another Civil Court of coordinate jurisdiction to pass a totally inconsistent and contradictory order of injunction in favour of a third party and against the party which has obtained earlier order of injunction? The practice of instituting a series of suits in various Courts against the same defendant and obtaining injunction after injunction despite vacation of order of injunction by some of the Civil Courts or even by High Courts was very seriously deprecated by the Apex Court in the case of Bloom Decor v. Subhash Himatlal Desai reported in 1994 (6) SCC 322.
11. In the case of All India State Bank Officers Federation v. Union of India reported in 1990 (2) JT 243, it was noticed by the Supreme Court that the petitioner Federation had resorted to tactics which can be described as "abuse of process of the Court". It filed number of writ petitions in various High Courts on the same issue on behalf of different associations of officers of the same bank. The Apex Court noted its disapproval of such a practice of filing number of proceedings in different Courts for the same relief and it noted that such a practice has to be discouraged. The Court also noticed that where there is no diversity but only a commonness of interest, there is no need of filing separate petition.
12. In similar situation having failed upto the Supreme Court in obtaining injunction against enforcement of Bank Guarantee, a plaintiff filed another suit on the same cause of action in the trial Court solely with a view to getting temporary injunction. This Court had an opportunity of dealing with the practice of filing successive suits solely with a view to obtaining temporary injunction. In the case of Hindustan Zinc Limited v. Vijaysinh and Company reported in 1994 (1) GLR 161, while dealing with an Appeal From Order arising against Order of temporary injunction granted by the trial Court, in a subsequently instituted suit, in disregard of order of the trial Court, High Court and Supreme Court in earlier suit between the same parties against the plaintiff refusing injunction, this Court made following observations:
The action of bringing the second suit for same relief without impleading the most vitally interested party was designed to circumvent, defeat or nullify the effect of the orders of the trial Court, single Judge of the High Court as well as the Supreme Court. The institution of the second suit and filing an application for temporary injunction and deliberately omitting to implead Hindustan Zinc Limited as party was nothing but daring "raid" on the Court and each act was an abuse of the process of the Court, calculated to obstruct the due course of judicial proceeding and the administration of justice. The law should not be seen to sit by simply, while those who defy it go free, and those who seek its protection lose hope.
13. It would not be out of place to make reference to yet another decision of the Supreme Court in the case of T. Arvindanan v. T.V. Satyapal reported in 1978 (1) RCJ 33 where Justice V.R. Krishna Iyer described this practice of successive litigation as "horrendous enterprise". In the case before the Supreme Court, the petitioner whose father contested an eviction proceeding, lost it, appealed against it, lost again, moved a revision, which too was rejected, but the tenant was successful in getting time of six months to vacate the premises. After availing of this indulgence, the petitioner and his father instituted a suit for a declaration that the order of eviction, which was confirmed upto the High Court and resisted by the father of the petitioner throughout, was one obtained by "fraud and collusion". An injunction was also sought. When this fact was brought to the notice of the High Court, during the hearing of the prayer for further time to vacate instead of frowning upon the fraudulent stroke, the learned Judge took pity upon the tenant and persuaded the landlord to give more time for vacating the premises on the basis that the suit newly and sinistrally instituted would be withdrawn. However, hope of the landlord and the learned Judge was belied and the extension of time by five months for vacating the premises was proved to be a ploy. The subsequent developments are described by Justice Krishna Iyer in the following words:
The next chapter in litigative acrobatics of the petitioner and father soon followed since they were determined to dupe and defy the process of the Court to cling on to the shop. The trick they adopted was to institute another suit before another Munsif making a carbon copy as it were of the old plaint andplaying upon the likely gullibility of the new Munsif to grant an ex parte injunction. The first respondent entered appearance and exposed the hoax played upon the Court by the petitioner and the second respondent. Thereupon the Munsif vacated the order of injunction he had already granted. An appeal without success. Undaunted by all these defeats the petitioner came to the High Court in revision and managed to get an injunction over again. The second respondent promptly applied for vacating the temporary injunction and when the petition came up for hearing before Mr. Justice Venkataramayya, Counsel for the petitioner submitted that he should not hear the case, the pretext put forward being that the petitioner had cutely mentioned the name of the Judge in the affidavit while describing the prior proceedings. The unhappy Judge, who had done all he could to help the tenant by persuading the landlord found himself badly betrayed. He adjourned the case to the next day. The torment he underwent is obvious from his own order where he stated: "I spent a sleepless night yesterday.
Luckily he established himself the next day and heard arguments without yielding to bullying tactics of the petitioner and impropriety of his Advocate. Of course, these fruitless proceedings in the High Court did not deter the petitioner from daring to move this Court for Special Leave to Appeal. The subsequent observations of the Supreme Court are still more relevant and are reproduced in extenso:
We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the Court by repeatedly and unrepentently resorted to. From the statements of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the first Munsif s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing clear right to sue, he should exercise his power under Order VII. Rule-11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And if clear (sic. clever) drafting has created the illusion of cause of action, nip it in the bud at the first hearing by examining the party searching under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Ch. XI) and must be triggered against them.
14. In the aforesaid context, Justice Krishna Iyer also adversely commented upon the conduct of the Advocates in instituting successive suits on the same cause of action in different Courts with a view to anyhow getting order of temporary injunction. The observations of Justice Krishna Iyer in this behalf are worth noting. His Lordship observed as under:
We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstances that the party concerned had been able to prevail upon one lawyer or the other to present to the Court a case which was disingenous or worse. It may be a valuable contribution to the cause of justice if Counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an Advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope, will activate this obligation. We are constrained to make these observations and hope that the co-operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain of litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy Courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process.
15. In Civil Suit No. 1 of 1994 while deciding Exhibit-5 application for injunction on 22nd April, 1994 under the order of the Supreme Court, I have elaborately dealt with and deprecated the practice of same or another party bringing successive suits solely with a view to rendering meaningless or ineffective the success of the other party upto the High Court or even upto the Supreme Court.
16. From the aforesaid observations of the Supreme Court as well as by this Court, it becomes clear that when one Civil Court of competent jurisdiction has granted ex parte or temporary injunction with respect to the same property, another Court of co-ordinate jurisdiction ordinarily should not issue totally inconsistent or contradictory injunction to the one which is already granted in favour of the opposite party; exercise of such power by a Court of co-ordinate jurisdiction would lead to passing of inconsistent or contradictory orders in favour of different parties and would create chaos of administration in justice. In fact, practice of bringing successive suits by the same plaintiff so as to defeat the success of the defendant or by different plaintiffs against the same defendants so as to tire him out or harass him by resorting to successive litigations is regarded by the Apex Court as well as by this Court as nothing but an abuse of the process of the Court. When a party knowingly institutes the second suit solely with a view to defeat the success of the defendant in ealrier proceedings and that too in collusion with or at the instance of unsuccessful party in the earlier proceeding it is misusing the process of the Court and is ultimately frustrating the object underlying in Order 39 Rules 1 & 2 of the C.P. Code. The position becomes still worse when the orders of the higher Courts or superior Courts are also rendered meaningless by the trial Court by granting injunction or interim relief which is quite contrary to or inconsistent with ealier relief granted by the Court of co-ordiante jurisdiction and confirmed by the superior Courts or the High Courts. Such practice is required to be condemned and deprecated. In fact, when the second suit is instituted, the trial Court as Court of co-ordinate jurisdiction lacks the jurisdiction to grant inconsistent or contradictory injunction, which would defeat the ends of justice and which would render meaningless the earlier orders granted by the superior Courts. All the questions which this Court articulated in Para 7 hereinabove, thus stand squarely answered by the aforesaid weighty observations of the Apex Court and of this Court. It is in this sense that I am of the opinion that the trial Court while granting contradictory or inconsistent injunction has exercised the jurisdiction, which is not vested in it by law. The order of the trial Court as confirmed by the Assistant Judge, if allowed to stand, is likely to occasion failure of justice or cause irreparable injury to the party against whom it is made and, therefore, interference of this Court in its revisional jurisdiction becomes necessary and a desideratum.
17. Keeping in mind the aforesaid position of law and the weighty observations of the Apex Court and applying the said observations to the facts situation prevailing in this case, it appears that the learned Small Cause Court Judge R.J. Sakiwala (now under suspension) and V.C. Mandalia, Asstt. Judge, Rajkot, totally overlooked and not only like gullible Court always ready to grant ex parte injunction granted the injunction knowingly and deliberately encouraged the son to bring another collusive suit with respect to same property and by granting and continuing injunction in favour of the son, rendered meaningless the interim mandatory directions to hand over vacant and peaceful possession of the suit shop to the tenant passed by three Courts successively, namely, Court of Small Cause at Rajkot below Exhibit-5 in Regular Civil Suit No. 143 of 1993, District Court of District Judge, Rajkot in Civil Misc. Appeal No. 110 of 1993 and lastly the very cogent and convincing judgment and direction issued by K.R. Vyas, J. in C.R.A. No. 1251 of 1993 dated 1st of October, 1993.
18. Before this Court proceeds to discuss the glaring facts which both the Courts have overlooked in this case, it would be necessary to refer to the power of the lower appellate Court which decides Appeal From Order under Order 43 Rule 1 of the C.P. Code.
19. Keeping in mind the fetters on the powers of the High Court in its revisional jurisdiction and also clearly stating that the High Court should be loath or very slow and cautious to entertain and allow a revision application against concurrent findings of two Courts under Section 115 of the C.P. Code, it shall have to be stated that if the case squarely falls within any of the three aforequoted clauses of Section 115 of C.P. Code, the High Court has jurisdiction to interfere with such order. Firstly it shall have to be kept in mind that the proceeding before the lower appellate Court was an "Appeal From Order" preferred under Order 43 Rule 1 of C.P. Code. It was not a regular First Appeal against a decree under Section 96 of C.P. Code. It was an appeal against an order and not against a decree. The power which the first appellate Court exercises and the approach of the first appellate Court to deal with a decree is clearly stated by the Supreme Court in the case of Radha Prasad v. Gajadhar Singh reported in AIR 1960 SC 115 as under:
The position of law, in our opinion, is that when an appeal lies on facts, it is the right and the duty of the appeal Court to consider what its decision on the question of facts should be, but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witness and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But, this does not mean that merely because an appeal Court has-not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified.
20. However, the approach of High Court while dealing with exercise of appellate power by its subordinate Court more particularly when the judicial discretion is exercised, is said to be different. In an Appeal From Order, ordinarily, it is the interlocutory order of the trial Court which is in appeal before the lower appellate Court. The order of the trial Court is a discretionary order. In exercise of such appellate power, which cannot be said to be co-extensive with the power of an appellate Court under Section 96 of the C.P. Code, the approach of the Court should be one which is stated by the Apex Court in the case of The Printers (Mysore) Pvt. Ltd. v. Pothan Joseph reported in AIR 1960 SC 1156. Dealing with the power to grant stay under Section 34 of the Arbitration Act, the Apex Court found that it is discretionary. The discretion to be exercised by the Court is judicial discretion. Ordinarily, in Appeal From Order, the appellate Court will not interfere. However, under what circumstances exercise of discretionary power would be interfered with in an Appeal From Order is clearly stated by the Supreme Court in the following terms:
It is ordinarily not open to the appellate Court to substitute its own exercise of discretion for that of the trial Judge; but if it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts and had adopted an unjudicial approach then it would certainly be open to the appellate Court - and in many cases it may be its duty to interfere with the trial Court's exercise of discretion. In cases falling under this class the exercise of discretion by the trial Court is in law wrongful and improper and that would certainly justify and call for interference from the appellate Court.
21. In the case of Uttar Pradesh Co-operative Federation Ltd. v. Sunder Bothers reported in AIR 1967 SC 249, once again the Apex Court was dealing with stay of the suit under Section 34 of the Arbitration Act. An appeal against order passsed under Section 34 was preferred and the question arose as to whether exercise of discretion by the trial Court would be interfered with in an Appeal From Order and if yes under what circumstances. It was in this context that the Supreme Court made following pertinent observations:
Where the discretion vested in the Court under Section 34 has been exercised by the lower Court, the appellate Court would be slow to interfere with the exercise of their discretion. In dealing with the matter raised before it at the appellate stage, the appellate Court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that it had considered the matter at the trial stage, it may have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify such interference with the trial Court's exercise of discretion. If it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts, then it would be open to the appellate Court to interfere with the trial Court's exercise of discretion.
22. From the decisions of the Apex Court, a clear distinction appears in the approach of first appellate Court dealing with an appeal against a decree under Section 96 of the C.P. Code and an appellate Court dealing with an appeal against an order under Order 43 of C.P. Code. The provision of Order 43 Rule 2 which provides that the provisions relating to first appeal shall apply to Appeal From Orders also shall have to be understood in the sense of following provisions relating to procedure. It is true that the Court exercising power of appeal against interlocutory order is exercising such power against the exercise of discretion by the trial Court. Normally, therefore, such appellate Court deciding Appeal From Order would not be justified in interfering with the exercise of the discretion under Appeal solely on the ground that if it had considered the material at the trial stage it may have come to a contrary conclusion. However, it would not be tantamount to saying that once that order of trial Court is discretionary order, the appellate Court would in no case interfere. The Supreme Court has very clearly pointed out that even in the exercise of discretion by the trial Court if it is found that the Court has acted unreasonably or capriciously or has ignored relevant facts or has adopted an unjudicial approach then it would certainly be open to the appellate Court - and in many cases it may be its duty - to interfere with the exercise of discretion by the trial Court. It is also to be kept in mind that ordinarily the discretion which is exercised by the trial Court at the stage of interlocutory order is based on appreciation of documentary evidence (which is neither proved nor admitted in evidence) and on affidavit evidence (which is not subjected to the test of cross-examination) there is no regular evidence before the trial Court at this stage and based on the pleadings as well as the documentary evidence of the aforesaid nature that the trial Court exercises its discretion. The approach of the appellate Court dealing with such Appeal From Order, therefore, shall have to be more cautious. It cannot simply by stating that the order of the trial Court being discretionary order, confirm the order and dismiss the appeal. This type of conformist approach may lead to speedy disposal of miscellaneous appeals but in the ultimate analysis at times may result into encouragement of wrongful exercise of discretionary power. The appellate Court exercising power of appeal against an order shall have to apply its mind more cautiously and shall have to find out as to whether the discretion exercised by the trial Court is judicious, is based on relevant facts and circumstances or whether the trial Court has acted unreasonably or capriciously or has adopted an unjudicial approach. When with respect to very suit property, three Courts including the High Court of Gujarat has at interlocutory stage, issued mandatory directions to the original landlord to restore possession of the suit shop to the original tenant, in a subsequently instituted suit by the son of the landlord, claiming to be the tenant of his father, grant of temporary injunction by the trial Court is not only unreasonable or injudicious exercise of discretion, but, in my opinion it is nothing, but an attempt to encourage the abuse of the process of the Court by undermining the supermacy of the District Court and the High Court over the trial Court and thereby the trial Court has thrown overboard canons of judicial propriety expected from the subordinate Court. The trial Court under no circumstances would have issued inconsistent injunction so as to render meaningless the interlocutory mandatory directions of restoration of possession of the suit shop issued by three Courts. The exercise of discretion by the trial Court was, therefore, in every respect injudicious, wrongful and to say the least, it was a daring raid by a subordinate Court to overreach the binding decisions of the superior Courts with oblique motive. Unfortunately, the learned Assistant Judge who exercised the appellate power merely adopted conformist approach and did not realise that how brazen facedly and abashedly the judicial discretion was misused by the trial Court while granting injunction in favour of the son in the subsequently instituted suit.
23. Having clearly earmarked the jurisdiction of the lower appellate Court while deciding Appeal From Order, it would be appropriate for this Court at this stage to notice that glaring and eloquent facts which are unfortunately missed by the trial Court as well as the lower appellate Court which, if taken into consideration appropriately would justify ultimately the rejection of the application of injunction granted to the son and restoration of the order passed by the High Court for handing over peaceful and vacant possession of the suit shop to the original tenant.
24. The glaring and eloquent facts are as under:
(a) The earlier suit filed by father Jivanlal Jerambhai Patadia, being Regular Civil Suit No. 177 of 1991 was against one Ashwinkumar Balvantrai Tanna, who has never appeared before the Court and the trial Court without noticing the obvious inconsistency in the address of the defedant-tenant given in the cause title and without verifying as to why totally different address of the tenant at altogether a different village was given while the suit shop was situated in Rajkot, proceeded to pass ex parte decree on 15-10-1992, i.e., within six to eight months. Generally, in this town, the suits of evictions against the tenants are not heard for seven to eight years and/or are not even ripe for hearing so soon. The unholy haste shown by the trial Court in passing an ex parte decree and in not verifying the obvious inconsistency in the address of the defendant-tenant speaks volume about reckless disregard of the provisions of procedural law shown by the trial Court.
(b) The prresent tenant Bhagwanji V. Thakkar claims to be the tenant of the suit shop since last 15 to 18 years and was carrying on business in the name and style of Jai Jalaram Sweet Mart and who was admittedly not impleaded as party in the above referred suit filed by the landlord and the ex parte decree of eviction was obtained against a non-existent tenant when genuine tenant was out of town to look after the ailing wife of his brother. The landlord - father without any loss of time, applied for execution of decree by instituting the Regular Darkhast No. 22 of 1992 and obtained possession of the suit shop. At the time of recovering possession of the suit shop, he has got number of goods lying in the shop attached and has recovered the same and the orginal tenant has on coming to know that possession of the shop was illegally recovered, he not only filed a criminal complaint but also applied to the Executing Court for restoration of the said goods. The Executing Court (the very trial Court) has not found time to decide such application. However, the fact that the goods belonging to the present tenant were attached and recovered from the suit shop is not disputed before me and neither the father nor the son through their Advocates have submitted anything about ownership of such goods and as to how such goods consistent with the business of the real tenant were recovered from the suit shop if the present tenant was not in possession of the shop.
(c) The son Pravinchandra Jivanbhai Patadia for the first time came in the picture when he instituted Regular Civil Suit No. 143 of 1993 on 19th August 1993. Prior to that date, the original tenant - Bhagwanji Vishavji Thakkar had already instituted his suit being Regular Civil Suit No. 150 of 1992 in the Court of Small Causes at Rajkot and his application for permanent injunction as well as mandatory direction for restoration of possession of the suit shop was already granted by speaking order by the trial Court on 25-5-1993. Even appeal being Misc. Civil Appeal preferred by the landlord (father) in the District Court, Rajkot also failed on 12th August, 1993 and mandatory directions issued against the landlord (father) by the trial Court were confirmed in favour of the tenant.
(d) Both these judgments were available and were within the knowledge of the trial Court, namely, R.J. Sakiwala, who confirmed on 15-10-1993 the order on Exhibit-5 application in the suit filed by the son. In his entire judgment and order, he did not assign any reason as to why he was ignoring the mandatory directions issued against the father-landlord by two Courts for handing over peaceful and vacant possession of the suit shop. Even prior to the date on which he rendered the judgment, even the judgment of the High Court was also rendered in Civil Revision Application and yet in total disregard of the concurrent mandatory directions issued by three Courts including senior Court like District Judge, Rajkot and the High Court of Gujarat, R.J. Sakiwala, most brazen facedly by total abuse of the process of the Court, proceeded to grant prohibitory injunction in favour of the son of the landlord so as to render meaningless and nugatory the success of the tenant in obtaining mandatory direction for restoration of possession of the suit shop.
(e) The judment of the Asstt. Judge, Rajkot, in Civil Misc. Appeal No. 177 of 1993 rendered as back as 15th of January, 1994, approximately three months after the judgment and order of K.R. Vyas, J. omits to refer to the previous litigation between the landlord and the tenant which has uptill High Court culminated in favour of the tenant requiring the landlord by mandatory direction to restore possession of the suit shop to the tenant. To say the least, the entire judgment of the learned Asstt. Judge, Rajkot in Civil Misc. Appeal shows total disregard toward the binding judgment and order of District Judge, Rajkot and of the learned single Judge of the High Court. In fact, the learned Asstt. Judge, Rajkot in his judgment and order under challenge has stated that Civil Revision Application was pending in the High Court. Mr. Y.S. Lakhani, in his oral submission before this Court submitted that this was an incorrect statement of fact and in fact uncertified copy of the judgment and order of K.R. Vyas, J. was produced before the learned Asstt. Judge, Rajkot. It was in this fact situation that the matter was ordered to be re-notified for further hearing and clarification in the month of March, 1995. On 20th March, 1995, the Advocate Hareshbhai Dave, who appeared for original tenant Bhagwanji V. Thakkar before the Assistant Judge, Rajkot, while submitting the affidavit before this Court stating therein clearly that not only the fact of CRA No. 1251 of 1993 filed by the landlord (father) having been dismissed by the learned single Judge of this Court was brought to the notice of the Court, but an uncertified copy of the order passed in CRA No. 1251 of 1993 dated 1st of October, 1993 was brought to the notice of the learned Assistant Judge, Rajkot, who decided the Civil Misc. Appeal No. 177 of 1993 on 15th January 1994. Opportunity was given to respondent Nos. 1 and 2 also file any counter affidavit or to controvert the statement contained in the affidavit filed by the Advocate. Despite, such opprotunity, no affidavit of any of the two respondents is filed nor is any affidavit is filed by the Advocate, who represented them before the Court of Asstt. Judge at Rajkot, stating that the aforesaid fact was not brought to the notice of the Assistant Judge, Rajkot. A period of more than three and half months has been left between the date of the judgment of the learned single Judge of the High Court and the judgment rendered by the learned Asstt. Judge in Civil Misc. Appeal in the month of January 15, 1994. Even certified copy of the judgment and order of the High Court was ready prior to January 1994 and, therefore, I would not see any reason to disbelieve the affidavit filed by the Advocate, who appeared for original tenant before the Assistant Judge. In that view of the matter, it shall have to be observed that the learned Asstt. Judge, Rajkot rather acted casually and knowingly or unknowingly totally disregarded the binging judgment and order of the learned single Judge of this Court.
25. This Court will be failing in its duty if it does not refer to one additional submission made by Mr. Y.S. Soni, learned Advocate appearing for respondent No. 1, the son of the landlord. He submitted before this Court that in the suit filed by the son for injunction against his father as well as against the present petitioner, at the most the relief for injunction can be refused, but this Court cannot pass any order of mandatory nature, requiring respondent No. 1 to hand over possession of the suit shop to the present petitioner. Strictly legally, the trial Court as well as the Court of Assistant Judge, Rajkot could have only rejected the application at Exh. 5 for prohibitory injunction because the effect of such order was to pass totally inconsistent injunction with respect to the same property by overlooking the fact that mandatory order of injunction requiring landlord to restore possession of the suit shop was confirmed in the suit instituted by original tenant. However, from the aforesaid discussion and more particularly, weighty observation made by V.R. Krishna Iyer, J. in the case of T. Arvindanan v. T.V. Satyapal (supra) and subsequent decision of the Supreme Court, whereby the Court has taken the view that by instituting subsequent suit, if the process of the Court is abused so as to nullify the earlier favourable order in favour of the opposite parties, the Court always has jurisdiction to restore possession to the opposite parties or to call upon the person in possession to comply with the order of restoration of possession passed by three Courts concurrently, this Court is duty bound to see that lawful order of restoration of possession in favour of tenant is not rendered meaningless. In fact, the respondent No. 1 cannot be said to be a person lawfully in possession of the suit shop as he was merely a stooge dancing at the tune of his father and he has occupied the suit shop despite the interim mandatory judgment and order of the trial Court against the father requiring him to hand over possession to the original tenant. I, therefore, do not find any substance in this submission because, in my opinion, it is one of those cases, where by collusive litigations in a subsequently instituted suit by the son at the instance of the father, the mandatory interim direction issued by three Courts concurrently including High Court to restore possession to the tenant are rendered meaningless, ineffective and otiose and unfortunately the two Courts below have committed daring raid on the administration of justice by abusing the process of the Court. I, therefore, reject the aforesaid submission of Mr. Soni. It also fails to notice the dubious and diabolical device collusively adopted by the father and the son to make ineffective the mandatory direction issued in favour of the tenant. The number of facts and circumstances referred to by K.R. Vyas, J. in his judgment and order dated 1 st October, 1993, establish beyond doubt that Bhagwanji V. Thakkar was the original tenant in possession of the suit shop and that the landlord Jivanlal Jerambhai Patadia (who was detained as "property grabber") has by adopting dubious device of instituting a suit against totally non-existent party so brazen facedly misused the process of the Court that it may even amount to contempt of Court. In my opinion, the learned Counsel appearing for the son and the father should better take a bit of advice from what is stated by the Apex Court in the context of the duty of the legal practitioners in para 14 hereinabove.
26. The bills of consumption of electricity of the year 1991 when present tenant Bhagwanji Vishavji Thakkar occupied the shop are also taken into consideration by all the three Courts while granting mandatory injunction. Similarly, the bills for payment of property tax and the receipt issued by Rajkot Municipal Corporation prior to 1991 in favour of the present tenant Bhagwanji V. Thakkar also go to show that on the date on which earlier suits was instituted by Jivanlal Jerambhai Patadia in the year 1991 against Ashwinkumar Tanna, in fact, present petitioner Bhagwanji V. Thakkar was the tenant in occupation of the suit shop and said Ashwinkumar Tanna was neither the tenant nor in occupation of the suit shop and that was the reason why landlord (father) described residence of the tenant at village Bedla and pretended to serve summons on the suit on him. In fact, the service of the summons is undoubtedly fraudulent and in fact person of such a name has never carried on any business at any point time in the suit shop. The entire fraud committed by father Jivanlal Jerambhai Patadia in obtaining the ex parte decree against altogether nonexistent person and then executing the same and recovering possession of the suit shop while regular tenant was away to attend to ailing wife of his brother speaks volume about the dubious device adopted by the landlord and that was noticed concurrently by three Courts and yet R. J, Sakiwala, the learned Small Cause Court Judge, gathered courage and emboldened himself to issue totally inconsistent and contradictory injunction nullifying and stultifying the effect of the mandatory order of injunction requiring the landlord to restore possession to the regular tenant.
27. It is, however, required to be mentioned that at no stage said Ashwinkumar Tanna has come forward stating that he was tenant of the suit shop and that suit for possession was filed against him and that possession was lawfully obtained from him. Even at a time when decree was executed by breaking open the lock of the suit shop, goods of ownership of Bhagwanji Vishavji Thakkar were found from the shop which were attached and which goods are consistent with or relevant to the business of preparing and selling sweets.
28. Above eloquent facts are totally omitted to be noticed both by R.J. Sakiwala, Small Cause Court Judge, Rajkot as well as by V.C. Mandalia, Assistant Judge, Rajkot. The story put forward by the son of the landlord that he was inducted as a tenant by his father immediately on 1st of August, 1992 after possession was recovered in execution proceedings, sounds absolutely absurd, hollow and unacceptable. According to him, he was carrying on business of running 'Ashok Mandap Service' in the suit shop while in fact it is found that business of Ashok Mandap Service is being carried on by the son of the landlord at another place in the city of Rajkot which is situated just near his residential premises. The story of father letting out his own shop to his son is prima facie not acceptable as from the record it appears that the father and the son were and are residing together and the address shown in the cause title of the suit also supports the fact that father and son were and are residing together. Even before this Court when the son was asked to appear personally by this Court (S.D. Shah, J.) through his Advocate Y. Section Soni, he has stated that the son was looking after the family when the father was undergoing the detenion as "property grabber". On this count, namely, to seek legal instruction from the father, a number of adjournments were sought by the learned Advocate now appearing for the son. There appears to be no reason for the father to let out the suit shop to his son and that too to carry on the same business of Ashok Mandap Service which he was already carrying on at another shop at Rajkot itself. Despite these telling facts and circumstances, the trial Court not only entertained second suit at the instance of the son but granted inconsistent and contradictory injunction so as to render meaningless and otiose the mandatory direction issued by the High Court requiring the landlord to restore possession to the regular tenant. In fact, the trial Court lacked the jurisdiction to entertain such a suit and to pass such an order when it was appraised of the facts that in the earlier proceeding, mandatory directions were already issued by the trial Court and confirmed by the District Court, Rajkot for handing over possession of the suit shop to the regular tenant by landlord. This is a case where the trial Court having known the true facts of earlier proceedings and orders passed therein totally lacked the jurisdiction and, therefore, in my opinion, this Court has full jurisdiction to interfere with the orders passed by two Courts below.
29. In the case of Firm Ganpat Ram Rajkumar v. Kalu Ram reported in AIR 1989 SC 2285 an order of eviction was passed against the tenant and the tenant obtained time from the Court by filing undertaking to hand over possession of the permises. However, subsequently, to defeat the order of the Supreme Court, the sons and grandsons of the partners of the firm filed suit and obtained permanent injunction against landlords. Though sons and grandsons were not party to the undertaking, the Supreme Court held that the order of the Court requiring restoration of possession was required to be complied with. The Supreme Court also noticed that the second suit was nothing but an abuse of the process of the Court. Failure to give possession to the landlord amounted to contempt of Court.
30. In the case of Jahurul Islam v. Abdul Kalam reported in AIR 1994 SC 1403, the Supreme Court once again took the view that failure to hand over possession pursuant to eviction decree and institution of another suit with a view to retain possession amounted to abuse of the process of the Court and that in such cases with a view to seeing that orders of the Courts are complied with in true spirit, even possession should be ordered to be restored to the authority, if necessary by assistance of police.
31. At this stage, Mr. Sanjay Doshi, learned Counsel appearing for the father has advanced one another new argument, which never advanced before me at any stage earlier and it is to the effect that when he handed over possession of the suit shop as tenant to his son, there was no mandatory order of restoration of possession nor was any suit instituted. In my opinion, this fact should not assume any importance because the judgment and the ex parte decree obtained in earlier suit by impleading a person who has not so far claimed to be a tenant and by serving summons of the suit over him at altogether a different place than the place at which he was allegedly carrying on business stare glaringly in the eyes of the Court. The concerned Judge R.J. Sakiwala (now under suspension) is charged with a serious misconduct of very nature at Rajkot itself by passing judgment and ex parte decree against a person by serving summons on altogether different person and in ordering execution of such decree within a short period of one to two months. Since the enquiry is pending on the administrative side of this Court, it will not be open for this Court to make any observation on the conduct of the learned trial Judge, but it shall have to be stated that since the very decree of eviction was collusive and against a non-existent person, it cannot be said that the landlord has lawfully obtained possession of the suit premises and he cannot pass over possession of the suit premises to his son as a tenant. It is required to be noted that despite this factual position, in the suit instituted by real tenant three Courts have concurrently ordered landlord to restore possession. In such proceeding landlord has not claimed that he has created new tenancy in favour of his son. I, therefore, do not see any substance in this submission of Mr. Sanjay Doshi.
32. At this stage, a very ingenuous request is made to this Court by Mr. Y.S. Soni, learned Counsel appearing for the respondent No. 1 that he may be permitted to withdraw the application for injunction filed by him in the trial Court and that orders passed by lower Courts in favour of the respondent No. 1 would, therefore, automatically become infructuous. Once such request is accepted and there is no order of injunction against the original tenant and in favour of present respondent No. 1, it is the duty of this Court as observed by the Supreme Court in two judgments referred to hereinabove as well as by V.R. Krishna Iyer, J. in the case of T, Arvindanan v. T.V. Satyapal (supra) this Court would be failing in its duty of doing justice and of enforcing mandatory interim direction of restoration of possession to the original tenant. In fact the two earlier decisions of the Supreme Court referred to hereinabove, the Supreme Court has stated that such a conduct on the part of a person not complying with the order of the Court by diabolical device, would amount to contempt of Court. This may be so. I am in fact not inclined to initiate any proceeding for contempt of Court but since the inclination is shown by respondent No. 1 even to withdraw the application for temporary injunction, it must be stated that the original orders passed in the suit of the original tenant concurrently by three Courts shall have to be enforced and this Court will be failing in its duty if it does not restore the majesty of justice by passing appropriate order.
33. From the aforesaid discussion, it becomes clear that the judgment and order passed by the Assistant Judge, Rajkot on 15th January, 1994 confirming the judgment and order of R.J. Sakiwala (under suspension) Small Cause Court Judge, Rajkot, are required to be interfered with and this Civil Revision Application is required to be allowed. The aforesaid two judgments are set aside and the directions issued by the learned single Judge K.R. Vyas, J. of this Court on 1st of October, 1993 in Civil Revision Application No. 1251 of 1993, thereby confirming the interim mandatory directions issued by the Small Cause Court Judge in Civil Suit No. 150 of 1992 are required to be restored and are hereby restored and respondent Nos. 1 and 2 are directed to hand over possession of the suit shop to the present petitioner Bhagwanji Vishavji Thakkar within three months and the learned Assistant Judge, Rajkot is directed to see that such possession is restored to the tenant, if need be with the assistance of Police. Compliance of the judgment is directed to be reported to S.D. Shah, J. by 30th June, 1995.
34. The Registrar of this Court is directed to send down a copy of this judgment to Assistant Judge V.C. Mandalia, with direction to him to remain more careful in future while deciding Misc. Civil Appeal and to scan the evidence on record carefully and seejo it that orders of superior Courts are not deliberately ignored.
Rule made absolute. There shall be no order as to costs.