Madhya Pradesh High Court
Alok Sinha vs Smt. Anita Bhatnagar on 9 September, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2024:MPHC-GWL:18673
1 MP-3853-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 9 th OF SEPTEMBER, 2024
MISC. PETITION No. 3853 of 2024
ALOK SINHA AND OTHERS
Versus
SMT. ANITA BHATNAGAR AND OTHERS
Appearance:
Shri V.K Bhardwaj - Senior Advocate with Shri Anand Raghuvanshi -
Advocate for the petitioner.
Shri Siddarth Shrivastava, learned counsel for the respondent.
ORDER
1. The present petition under Article 227 of the Constitution of India is directed against the order dated 13.7.2024 passed by the Sixteenth Civil Judge to the Court of First Civil Judge, Junior Division, Gwalior in Civil Suit No.RSA 68/2024, whereby learned Trial Court while allowing an application under section 151 of CPC preferred by present respondent no.1- plaintiff has directed the petitioner-defendant not to alienate the suit property.
2. The said order has been assailed on the ground that at an earlier point of time the same dispute arose between the parties and the competent court had refused to grant temporary injunction under Order 39 Rule 1 and 2 of CPC and subsequently another application under Order 39 Rule 1 and 2 of CPC was filed and when pressed by the present-respondent no.1- Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 2 MP-3853-2024 plaintiff the learned Trial Court though passed an order directing to serve respondent no.2, but even after directions of learned Trial Court the respondent no.1 did not made any efforts to serve the respondent no.2 and by way of another application prayed for deleting his name from the array of defendant no.2 which was dismissed and after another application seeking interim injunction was filed which was also dismissed. But even then without considering the legal and factual aspect of the case the impugned order has been passed.
3. Short facts of the case are that on earlier occasion the petitioner had filed a defamation case against the respondent no.1 which is pending before 17th Civil Judge, Junior Division Gwalior in which the present respondent no.1 is duly served and written statement is also filed. Thereafter in the said matter evidence commenced and two witnesses of the plaintiff therein were examined and during the pendency of the case an application was moved by the present respondent no.1, wherein prayer was made not to alienate the property in question.
4. After hearing the parties the learned Trial Court refused to grant any injunction to the present respondent no.1 and vide order dated 9.5.2024 the application was rejected.
5. During pendency of the said matter, a suit for declaration and injunction was filed by the respondent no.1/plaintiff with a relief that plaintiff may be declared daughter of Late J.S. Sinha as adopted daughter and also be declared that she is share holder in the share of Late Smt. Pushpa Sinha. Along with the plaint an application under Order 39 Rule 1 Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 3 MP-3853-2024 and 2 read with section 151 of CPC was also filed to which a reply was submitted on behalf of the petitioner-defendant.
6. While hearing the said application learned Trial Court on 20.5.2024 observed that the proforma respondent/defendant no.2 since not served, therefore, first he may be served and thereafter case was fixed for 28.5.2024, but later-on was adjourned for 3.7.2024 for service of present respondent no.2. On 3.7.2024 the petitioner filed an application under Order 6 Rule 17 of CPC and respondent no.1 filed an application for deleting the name of defendant no.2 and also preferred an application under section 151 of CPC. Vide order dated 8.7.2024 learned Trial Court allowed the application under Order 6 Rule 17 of CPC preferred by the present petitioner, but dismissed the application for deleting the name of the proforma respondent no.2 and also dismissed the application under section 151 of CPC by which interim injunction was prayed and the matter was fixed for the presence of respondent no.2.
7. On 10.7.2024 three interim applications were filed on behalf of respondent no.1-plaintiff in which one of the application was under section 151 of CPC in which it was prayed that since present respondent no.2 is a proforma party in the suit, therefore, the application under section 94 read with Order 39 Rule 3 read with section 151 of CPC can be heard. Another application was under section 94 read with section 39 Rule 3 read with section 151 of CPC wherein again injunction was sought for not alienating the house in question by way of sale or agreement, thus, prayed for maintaining the status quo. The learned Trial Court vide impugned order Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 4 MP-3853-2024 dated 13.7.2024 allowed the application under section 94 read with Order 39 Rule 3 read with section 151 of CPC and directed the present petitioner not to alienate the suit property either by themselves or by some other person till the application under Order 39 Rule 1 and 2 CPC is decided and thereafter list the matter on 26.7.2024 for hearing on application under Order 39 Rule 1 and 2.
8. This Court vide order dated 24.7.2024 had stayed the proceedings of the suit and respondent no.1 was directed to be served through counsel appearing before the Trial Court. Since the respondents are served the matter is taken up which is finally heard at motion stage with the consent of the parties.
9. Learned counsel for the petitioner while referring the decisions in the matter of Rugnath Vs. Jagannath, 1981 MPWN 192, Chandrakanta and another Vs. Ashok Kumar and others, 2002 (3) M.P.L.J. 576 and K.K. Velusamy Vs. N. Palanisamy, (2011) 11 SCC 275, had contended that the provisions of section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is right and undo what is wrong that is to do all things necessary to secure the ends of justice and prevent abuse of its process.
10. It was argued that as the provisions of Code are not exhaustive. Section 151 recognizes and confirms that if CPC does not expressly or impliedly cover any particular procedural aspect, the inherent power can be Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 5 MP-3853-2024 used to deal with such situation or aspect, if the ends of justice warrant it.
11. lt was further argued that the court has no power to do that which is prohibited by law or CPC by purported exercise of its inherent powers. If CPC contained provisions dealing with a particular topic or aspect and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by CPC or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of section 151, where the remedy or procedure is provided in CPC.
14. It was also argued that any injunction if granted results annuling or modifying previous injunction order granted in earlier suit. Such injunctions cannot be granted and Coordinate Bench of this Court while analyizing the aforesaid aspect has laid down the said analogy and if a temporary injunction is granted it would obviously have an effect on the aforesaid earlier order. Further reliance is placed in the matter of Gopalnarain Vs. State of M.P., 1979 JLJ 662 in the matter of Irfan Ali Vs. the Municipal Corporation Gwalior and another, M.P. No.3270 of 2023 decided on 23.6.2023 and in the matter of Ashok Sinha and another Vs. Atul Sinha and others, 2006 (I) MPJR SN16 and it was argued that the inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 6 MP-3853-2024 provision in the Code and the power under section 151 of CPC is to be exercised with circumspection and care and only when it is absolutely necessary, when there is no provision in the Code governing the matter, when the bonafides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of the Court and as of now no such situation arises in the present case, therefore, allowing the application without considering that in the previous suit between the same parties injunction has been refused to the present respondent no.1- plaintiff which thus act as rejudicata, therefore, passing such an order is perse illegal and is required to be set aside.
15. On the other hand learned counsel for the respondent no.1 while supporting the impugned order contended that to prevent the abuse of process of law the learned Trial Court has directed to maintain status quo with regard to property in question till disposal of the application for temporary injunction. Since the petitioner-defendant was using the procedure of law to create latches in the process and in the given case respondent no.2 Anoop Sinha, brother of the petitioner who was party to the notice send to the respondents is avoiding service of summons and the petitioners despite the fact that their residential addresses are similar, are not acknowledging the summons.
16. It was further argued that so far as the rejection of the application under Order 39 Rule 1 and 2 in the earlier suit is concerned, there the issue is with regard to defamation and is not relating to adoption. Thus, since the cause of action of both the suits are altogether different though parties are Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 7 MP-3853-2024 same, therefore, the rejection of the earlier application is of no consequence and would not act as resjudicata of the present suit.
17. To bolster his submissions reliance has been placed in the matter o f Irfan Ali Vs. Municipal Corporation and another, (M.A.No.3270 of 2023 dated 23.6.2023)and K.K. Velusamy Vs. N. Palanismay, Gopalnarain Vs. State of M.P. etc.
18. Heard the counsel for the parties and perused the record.
19. Two issues are before this Court, first whether during pendency of an application under Order 39 Rule 1 and 2 CPC, any order of temporary injunction can be passed under an application under section 94 read with Order 39 Rule 3 read with section 151 of CPC for temporary injunction till the decision in the application under Order 39 Rule 1 and 2 and if yes under what circumstances and secondly whether the earlier order dated 9.5.2024 passed in Civil Suit No.1122/2023, whereby an application under Order 39 Rule 1 and 2 preferred by the present respondent no.1/plaintiff was rejected would act as res judicata to the present application.
20. So far as maintainability of an application under section 151 of CPC (in the present matter an application under section 94 read with Order 39 Rule 3 read with section 151 of CPC) is concerned the Hon'ble Apex Court in the matter of K.K. Velusamy Vs. N. Palanisamy, (2011) 11 SCC 275 in para 10 has summarized the scope of section 151 of CPC which is quoted as below:
"(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 8 MP-3853-2024 is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of Court.
21. From the above enunciation it could safely be gathered that Section Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 9 MP-3853-2024 151 of the CPC recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation and the scope of such power co- exists with the need to exercise such power in the facts and circumstances of the case.
22 . From the scope of Section 151 of CPC, as summarized by the Apex Court, it is also very much clear that the inherent powers of the Court being complementary to the powers specifically conferred, a Court is free to exercise them for the purposes mentioned in Section 151 of the Code, when the matter is not covered by any specific provision in the Code. The power under Section 151 CPC is to be exercised with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the situation, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of the Court. If the facts of the present case are put to test on the above principles it would be gathered that the suit has been filed for declaring the respondent no.1-plaintiff to be adopted daughter of Late J.S. Sinha and had sought for the declaration that she may be declared as share holder in the share of Late Smt. Pushpa Sinha and along with the said declaration, as injunction was also sought with regard to non-alienation of the house in question. Since the present respondent no.2 could not be served the learned Trial Court on two occasions had adjourned the matter, but instead of getting the respondent no.2 served the present respondent no.1-plaintiff has preferred an application for deletion of the name of Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 10 MP-3853-2024 respondent no.2 which was rejected by the learned Trial Court vide order dated 8.7.2022 and it was only thereafter that the present application was filed and vide the said application prayer was made that till disposal of the application under Order 39 Rule 1 and 2 CPC temporary injunction be granted restraining the present petitioner-defendant to not to alienate the house in question and status-quo be maintained.
23. Since the application under Order 39 Rule 1 and 2 CPC is already pending at this stage it cannot be said that thee is no remedy available to the petitioner under the Code. Learned Trial Court only on the basis that in the document submitted by the respondent no.1/plaintiff name of Jagdish Sharan Lal Sinha is appearing as her father, therefore, prima facie it appears that she has some rights in the disputed house and if injunction is not granted then she may suffer irreparable loss and would also lead to multiplicity of the suit, had allowed the application.
24. This Court finds that merely on the ground that name of the owner of the house is mentioned as father of the plaintiff would not confer that she was daughter of said person when the very suit preferred by her was with regard to declaring her to be adopted daughter of said person i.e. Jagdish Sharan Lal Sinha. Thus, the urgency which has been shown by the respondent no.1-plaintiff is not reflected from the very contents of the application except for the fact that the petitioner-defendant wants to alienate the said property. Thus, the order of allowing an application prima facie does not appears to be sustainable.
25. The second issue as to whether the earlier order passed in a suit Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 11 MP-3853-2024 pending between the same parties, whereby the application under Order 39 Rule 1 and 2 read with section 151 of CPC preferred by the respondent no.1/plaintiff had been rejected would act as resjudicata to the present applicant is concerned this Court is required to analize the provisions of section 11 of CPC which deals with resjudicata. Section 11 of CPC enunciates the rules of resjudicata, wherein it is provided that a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decide in a former suit. Therefore, for the purpose of adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. The Apex Court in the case of V. Rajeshwari Vs. T.C. Saravanabava, (2004) 1 SCC 551, had discussed the plea of res judicata and the principles that would be required to prove the plea. The Court held that it is necessary to refer to the copies of the pleadings, issues and the judgment of the former suit while adjudicating on the plea of res judicata. Para 11 and 13 are relevant which reads as under:
11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.
13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. May be in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof.
But as pointed out in Syed Mohd. Salie Labbai (Dead) By Lrs. & Ors. Vs. Mohd. Hanifa (Dead) by Lrs. & Ors. (1976) 4 SCC 780, the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 12 MP-3853-2024 judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh Vs. Bhooralal (1964) 7 SCR 831, placing on a par the plea of res judicata and the plea of estoppel under Order II Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore Vs. Secretary of State For India in Council & Anr. (1887-88) 15 IA 186 : ILR 16 Cal 173), pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issues in the previous suit and what was heard and decided. Needless to say these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.
26. The Apex Court in the case of V. Rajeshwari (supra) had observed that the rule of res judicata does not strike at the root of the jurisdiction of the Court trying the subsequent suit. It is a rule of estoppal based on the public policy of achieving finality to litigation. The plea of res judicata is founded on proof of certain facts and then applying the law to the facts so found. It is, therefore, necessary that the foundation for the belief must be laid in the pleadings and then the issue must be framed and tried.
27. Thus, from bare perusal of the provisions of section 11 it would be evident that even an issue which has been directly and substantially been decided in a former suit between the same parties would act as a res judicata. Though the earlier suit was with regard to defamation preferred by the present petitioner against the respondent no.1-plaintiff but in the said suit the respondent no.1-plaintiff had preferred an application under Order Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 13 MP-3853-2024 39 Rule 1 and 2 read with section 151 of CPC for injuncting the present petitioner, who were defendants therein also from alienating the property in question in the present suit which was rejected holding that the present respondent no.1-plaintiff could not prove prima facie case in her favour. Thus, when similar issue has already been decided by competent Court in another suit pending before the parties then prima facie there was no occasion for the learned Trial Court to have granted injunction till the decision of the application under Order 39 Rule and 2 of CPC. Accordingly, the impugned orders suffers from perversity and illegality, therefore, the same is liable to be set aside.
28. So far as the judgment cited by the learned counsel for the petitioner are concerned this Court is inconformity with the preposition that the application under section 151 of CPC (in the present case application under section 94 read with section 39 Rule and 1 and 2 of CPC) was very well maintainable from the law which has been summarized therein that the inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code when the bonafides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of Court, but since none of the situation are presently available to the present respondent no.1/plaintiff the said case laws have no application with the present case.
29. Accordingly, the petition is hereby allowed and the order dated Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:18673 14 MP-3853-2024 13.7.2024 passed by the learned Trial Court is hereby set aside.
(MILIND RAMESH PHADKE) JUDGE (aspr) Signature Not Verified Signed by: ASHISH PAWAR Signing time: 11-11-2024 03:55:21 PM