Rajasthan High Court - Jaipur
Madan Lal Khuteta vs Badri Narayan on 28 April, 1987
Equivalent citations: AIR1988RAJ61, 1987(2)WLN525
ORDER Inder Sen Israni, J.
1. This revision petition has been filed against the order dated 23-3-1987 passed by the learned Additional District Judge No. 1, Jaipur City, Jaipur in Misc. Petition No. 54/87 confirming the order dated 17-3-87 passed by the Additional Munsiff and Judicial Magistrate No. 4, Jaipur City, by which the application of the petitioner under Order 39 Rules 1 and 2, CPC was dismissed.
2. The shop in dispute was mortgaged with the non-petitioners Nos. 6 and 7 for a sum of Rs. 6500/- for a period of 10 years by a registered mortgage deed dated 11-1-1968 and vacant possession of the same was handed over to the mortgagees. The mortgagees by virtue of powers vested in them according to the mortgage deed, gave the shop in dispute on rent to the present petitioner at the rate of Rs. 80/- p.m. The mortgagor filed a suit for redemption on 22-5-75 and a preliminary decree in his favour was passed on 11-7-79. On appeal, this preliminary decree was modified vide order dated 15-9-81 and final decree holding that the mortgagor was entitled to take actual possession of the shop in suit, was passed on 29-6-82. On 3-8-82 a suit for permanent injunction was filed by the present petitioner-tenant praying that he should not be dispossessed in this decree, which is passed in favour of the mortgagor. The trial Court allowed the application of the petitioner and issued a temporary injunction on 11-8-82 restraining the non-petitioners from dispossessing the petitioner. In appeal by the mortgagor the temporary injunction issued by the trial Court was vacated on 18-11-1982. The tenant petitioner came in revision before this Court and keeping in view the importance of the question of law involved in the petition, the learned single Judge referred the matter to the Full Bench of this Court. The Full Bench after hearing both the parties on 28-8-84 held that the rights of the petitioner as tenant ended with the rights of the mortgagees who inducted him as tenant in the disputed shop. Thereafter, the Full Bench sent the revision petition back to the learned single Judge for disposal in accordance with law. The petitioner filed a special leave petition in this Court against the opinion of the Full Bench, which was rejected by this Court with the remarks that the Full Bench of this Court has only delivered an opinion on the question of law. Learned single Judge vide its order dated 15-10-1984 dismissed the revision petition and refused to issue the temporary injunction in favour of the petitioner.
The petitioner approached the Supreme Court against the said order of dismissing the revision petition and the Apex Court decided the same vide its order dated 17-2-87. The petitioner again filed an application under Order 39, Rules 1 and 2, CPC in the trial Court praying that since the Apex Court vide its order dated 17-2-87 has directed that the trial Court will frame the necessary issues on the question whether the alleged lease was an act of prudent management within the purview of Section 76(a) of the Transfer of Property Act, there being a stipulation in the mortgage deed to permit the mortgagee in possession to lease out the mortgage property. It was further directed that the trial Court shall afford the parties an opportunity of adducing their evidence on the questions. It was, therefore, urged by the petitioner in the trial Court that in view of the above order of the Apex Court, a temporary injunction should be issued in favour of the petitioner restraining the non-petitioners from dispossessing him during the pendency of the suit. The trial Court dismissed the application on the ground that the non-petitioners Nos. 1/1 to 1/7 have not been joined as party after the death of non-petitioner No. 1, therefore, no temporary injunction can be issued against them. It also remarked that the matter is res judicata as the first similar application filed by the petitioner has been rejected and also the fact that this application for issue of temporary injunction has been filed on the same facts, on which the earlier application was filed and rejected. Thus there were no grounds which may change any circumstances to call for issue of any fresh temporary injunction in favour of the petitioner. The petitioner against this order went in appeal and the learned Additional District Judge also dismissed the appeal of the petitioner holding that the first application of the petitioner for issue of temporary injunction was also dismissed and he finds that it will not be proper to issue temporary injunction in favour of the petitioner now and that the Apex Court had directed that the parties should be permitted to produce evidence whether the giving out of the property on lease was an act of prudent management as per the provisions of Section 76(a) of the Transfer of Property Act and the Apex Court also did not accept the prayer of the petitioner for issue of temporary injunction in his favour restraining the non-petitioners not to dispossess him during the pendency of the proceedings in the trial Court.
3. The contention of the learned counsel Shri AK Bhandari appearing for the petitioner is that the circumstances have changed after the passing of the order dated 17-2-87 by the Supreme Court. It is pointed out that the principles of res judicata have been wrongly applied to this matter by the learned trial Court in view of the case of Arjun Singh v. Mahendra Kumar, AIR 1964 SC 993. In this case while considering the application under Order 9, Rules 7 and 13, CPC, it was observed by their Lordships as under : --
"Interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They did not in that sense, decide in any manner the merits of the controversy to issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications' were made for relief on the same basis after the same has once been disposed of, the court would be justified in rejecting the same as an abuse of the process of court."
Same was the view taken by the Apex Court in the case of Satya Dhyan v. Smt. Daorajan Devi, AIR 1960 SC 941. It is therefore, contended by the learned counsel that the trial Court was in error to have rejected the application of the petitioner on the basis of application of principle of res judicata
4. It is further contended that in view of the order of the Apex Court dated 17-2-19.87, by which the trial Court was directed to frame necessary issues and decide whether the act of mortgages in leasing out the mortgaged property was an act of prudent management within the purview of Section 76(a) of the Transfer of Property Act, the whole situation has changed and the trial Court should have issued temporary injunction in favour of the petitioner in view of the changed circumstances. It is pointed out that on the death of defendant after the passing of decree, the order can be executed against his legal representatives even though they may not be party to the suit and in certain circumstances, injunction against 3rd party can also be issued In this connection, reliance has been placed on Nasir Ahmed v. Lutf Ahmed, AIR 1949 Pat 496 Sakarlal Jaswantrai v. Bai Parvatibai (1901) ILR 26 Bom 283 on this analogy, it is contended that even if the non-petitioners Nos. 1/1 to 1/7 are legal representatives of deceased Badri Narain mortgagor have not yet been served, still temporary injunction can be issued against them.
5. Shri S. M. Mehta, learned counsel for the non-petitioners on the other hand contends that no change has come in the situation and no new circumstances have been created on account of the order of the Apex Court dated 17-2-87. It is pointed out that the temporary injunction granted by the trial court was vacated by the first appellate court and the revision petition filed against the same was also dismissed by this court vide its order dated 15-10-1984. The petitioner went to the Supreme Court against this decision to obtain temporary injunction in his favour, but the appeal filed by him was dismissed and the stay order granted by the Apex Court earlier was also vacated. It is further submitted that what the trial court really means is that since no new circumstances have been shown to come in existence, therefore, the second application filed by the petitioner for issue of temporary injunction was dismissed. Perhaps the trial Court has not used the proper phraseology by referring to the principles of res judicata. It is also pointed out that the impugned order passed by the learned first appellate court does not refer to the principles of res judicata and the appeal of the petitioner has been disposed of on merits by considering various aspects of the matter and the first appellate court came to the conclusion that there was no change in the circumstances and therefore, it will not be proper to issue any temporary injunction in favour of the petitioner.
6. I have considered the rival contentions of learned counsel for both the parties and have gone through the authorities cited at the bar.
7. It is correct that the interlocutory orders like temporary injunctions are meant only to preserve the status quo during the pendency of the proceedings and do not decide the controversy in issue on merits. Such orders are therefore, as laid down by the Apex Court, capable of being altered or varied, but only on proof of new facts or new situation, which may have emerged subsequently. In this case also since the second application for issue of temporary injunction under Order 39, Rules 1 and 2, C.P.C. has been filed, there is no bar under the principles of res judicata for its consideration, but the same can be considered only when the petitioner shows that such consideration is necessary in view of new facts and new situation and circumstances that have taken place subsequently. The only ground on which issue of temporary injunction is sought is in reference to the order dated 17-2-1987 passed by the Apex Court. In this order, their Lordships of the Supreme Court have only given a direction to the trial Court to frame necessary issues to consider whether the alleged lease was an act of prudent management within the purview of Section 76(a) of the Transfer of Property Act, there being a stipulation in the mortgage deed permitting the mortgage in possession to let out the property. After giving this direction, the Apex Court vacated its own stay order granted earlier and dismissed the appeal of the petitioner. Evidently, the petitioner had approached the Apex Court to get the temporary injunction issued in his favour, which was refused by this Court as well as the first appellate Court. Evidently, their Lordships of the Supreme Court did not deem it proper to issue any injunction order in favour of the petitioner as prayed by him. I therefore, do not find any change in the circumstances nor any new situation has emerged from this order dated 17-2-1987. The petitioner has not brought any new facts to the notice of the courts below and after considering the whole matter both the courts have exercised their discretion by refusing to issue temporary injunction in favour of the petitioner.
8. In the case of Managing Director, Hindustan Aeronotics Ltd. v. Ajit Prasad, AIR 1973 SC 76 it was observed by their Lordships of the Supreme Court that the High Court should not interfere even if the order of the first appellate court is right or wrong or in accordance with law or not unless it has exercised its jurisdiction illegally or with material irregularity. In this case also, I do not find that the first appellate court has committed any jurisdictional illegality or material irregularity by passing the impugned order.
9. In the result, this revision petition has no force and is dismissed with costs.