Orissa High Court
Subal Kumar Dey vs Purna Chandra Giri And Ors. on 31 January, 1989
Equivalent citations: AIR1989ORI214, AIR 1989 ORISSA 214, (1989) 1 ORISSA LR 398
ORDER S.C. Mohapatra, J.
1. These two Civil Revisions filed by defendant 1 arise out of a common order in a suit. Accordingly, they are heard together and are disposed of by this common order.
2. Suit is for partition in which plaintiffs prayed for repurchasing the land purchased by defendant 1. In the suit, plaintiffs filed an application for temporary injunction against defendant 1. Ex parte ad-interim order of injunction was made by the trial court. Defendant 1 appeared and filed written statement disputing the claims of the plaintiffs. Objection to the application for temporary injunction was also raised by him. He filed an application for appointing a person to inspect the disputed land. During continuance of the order of injunction, plaintiffs filed an application for punishing defendant No. 1 for violating the order of injunction which is pending consideration. Plaintiffs filed an application for a direction of the trial court to the police to implement the order of injunction. Trial court rejected the application of defendant 1 and allowed the application of the plaintiffs in the impugned order. Hence these two Civil Revisions have been filed by defendant 1.
3. When these revisions came up for admission, I disposed of them directing the trial court to appoint a person for inspection of the disputed land. I also set aside the order of the trial court directing the officer-in-charge, Baliapal P.S. to render assistance to the plaintiffs for implementation of the order of injunction. Since I disposed of both the revisions without hearing the opposite parties, I gave liberty to the opposite parties to move this Court for recalling the order passed by me in case they are prejudiced. Accordingly, application has been filed by the opposite parties for recalling the order. While considering the question of recalling the order, both the parties agree that the two Civil Revisions can be heard finally on merits.
4. An order in favour of a party is not to be set aside without giving him an opportunity of hearing. Such order violates the principle of natural justice. That is also the reason why I gave liberty to the opposite parties to move this Court to recall the order in case prejudice is caused to them. This procedure was adopted by me to avoid delay in disposal since I would have stayed operation of the order and would have given notice to the opposite parties which would not have been in any manner beneficial to either party. In any case, the order passed by me in disposing of the two revisions being in violation of principle of natural justice is recalled.
5. Order 39, Rule 3, C.P.C. puts a restraint on a Court to grant injunction before issue of notice. However, exception has been provided with the specific condition that the Court granting injunction before notice must record the reason therefor. Whether order is ex parte before notice or the same is after hearing parties, three conditions are to be satisfied for restraining a person in exercise of power under Section 39. Rule 1, C.P.C. They are : (i) prima facie case., (ii) balance of convenience and (iii) irreparable injury. All the three requirements are to be satisfied. While recording reason for these three conditions, Court is also to record the reason for passing the order before notice. In other words, the order must disclose the harm that would be caused if no order is passed before notice. Unless this is meticulously followed, legislative intention in prohibiting an order being passed without notice would be frustrated. In the present case, correctness of the order is not required to be examined since there is no effective challenge to the same by preferring an appeal. This is, however, a circumstance to be kept in mind in this case while considering the application of defendant 1 against whom the order of restraint continues.
6. There is no dispute that a proceeding is now pending against defendant 1 for having violated order of ex parte injunction. There can be no doubt that as order of restraint passed by a Court must be respected till the order continued to have force until the same is vacated.
7. In the aforesaid background, the question relating to inspection of disputed land as provided under Order 39, Rule 7, C.P.C. is to be considered. Trial court is not correct in stating that acceptance of prayer of defendant No. 1 would amount to rendering him assistance to collect evidence. Report of a Commissioner appointed under Order 26, Rule 9, C.P.C. shall be evidence as provided under Order 26, Rule 10, C.P.C. Report of inspection shall not be evidence unless otherwise proved.Power under Order 39, Rule 7, C.P.C. is not frequently used. This is a power to be exercised by the Court when occasion demands and when inspection is necessary for proper appreciation and adjudication of the matter. The dispute in the present case relates to the situation of the disputed land, the nature of construction made and the effect of such construction on the house of the plaintiffs. While plaintiffs claim the disputed land to be a part of their dwelling house, defendant 1 claims that he has purchased vacant land adjacent to the dwelling house of the plaintiffs. Allegation is relating to construction of house by defendant 1 which plaintiffs intend to arrest during pendency of the suit. Defendant I in the written statement has stated that he has already constructed the house. A local inspection of the disputed land and its adjoining areas would give a clear picture to the Court for considering the question of temporary injunction which is pending before it. The same does not amount to collection of evidence in the case.
8. Mr. Pal, learned counsel for the plaintiffs submitted that if at all a survey knowing Commissioner ought to be deputed. I express no opinion at this stage. Trial court would appoint a person to have a local inspection and consider the question on its own merits. I, however, make it clear that this appointment would not be one under Order 26, Rule 9, C.P.C.
9. Next question of consideration relates to the validity of direction of the trial court to the officer-in-charge. Baliapal P.S. to render assistance for implementation of the order of injunction. As has been held in the decisions reported in AIR 1971 Andh Pra 33 (Rayapati Audemma v. Pothineni Narasimham) and AIR 1983 Cal 266 (Sunil Kumar Halder v. Nishikanta Bhandari), direction to the police for implementation of order of temporary injunction is given by a Court in exercise of the inherent powers under Section 151, C.P.C. Inherent power is wide in its nature to protect the interest of the parties in a given case. It is not a power to be exercised for implementation of an order of the Court. Where violation of the order would be so prejudicial to a party that remedies or penalty for violation of the order available under the statute would not be sufficient, inherent power may be exercised. Therefore, a Court is to be careful before taking external help of police for implementation of the order. The present case is not such. At least there is no finding why such drastic power to take external help is being taken when proceeding for violation of order of injunction is pending. For this purpose also local inspection as envisaged under Order 39, Rule 7, C.P.C may be material. Whether direction to the police would be given, would depend upon the facts and circumstances of the case and in the present case, I am satisfied that the trial court has been hasty in granting prayer of the plaintiffs to give direction to the police without further materials in its possession. Since this order is not res judicata, the Court on further materials being furnished can give cogent reasons despite my setting aside the order in this civil revision to that effect.
10. Mr. Pal, lastly submitted that these two revisions ought not to be entertained since plaintiff 6 has not been made a party since effect of the order would amount to conflicting orders. Technically Mr. Pal may be correct. Normally petitioner would have been called upon to add plaintiff 6 as a party in these revisions. However, in these revisions I am satisfied that interest of plaintiff No. 6 is sufficiently represented by plaintiffs 1 to 5 and no useful purpose would be served by delaying the proceeding only to obviate technical objection of Mr. Pal.
11. In the result, both the Civil Revisions are allowed to the extent indicated in this order. Trial court shall expedite the matter of finalising the proceeding for temporary injunction. There shall be no order as to costs.