Allahabad High Court
Shiv Ram Singh vs Smt. Mangara And Ors. on 6 July, 1988
Equivalent citations: AIR1989ALL164, AIR 1989 ALLAHABAD 164, 1988 ALL. L. J. 1516 (1988) ALLCRIC 297, (1988) ALLCRIC 297
JUDGMENT N.N. Mithal, J.
1. In this appeal the plaintiff appellant has challenged correctness of the order of injunction issued by the Court below : --
2. The dispute relates to a title to the disputed property claimed by the plaintiff and respondent both. According to the appellant he was in possession of the entire property while defendant asserts her own possession.
3. The plaintiff in his suit prayed for injunction against respondent No. 1 praying that his possession may not be disturbed. However, the application remained pending for long time but no effort was made by the plaintiff to have it decided. In the Court below the appellant urged that the aforesaid application should be decided only after the evidence of parties had been recorded. Noticing that the application had been pending for a long time the court took the view that perhaps the plaintiff does not wish to press the application and accordingly rejected the same. Since no appeal against this order has been filed the order has become final.
4. On the other hand the defendant had also moved an application to restrain the plaintiff from interfering in her carrying out repairs to the property in dispute. Since there was some dispute as to the specific portion in possession of the plaintiff and the defendant the Court rejected the application with an observation that as and when a proper application is moved, specifying the portion in respect of which injunction is sought, the same will be considered on merits. Accordingly the defendant moved the application 70-C which has now been disposed of by the impugned order. The plaintiff feeling aggrieved by that order has filed this appeal.
5. Sri S.N. Singh, learned counsel for the appellant has mainly urged two points. According to him the Court is not empowered to issue any injunction under Section 151 in favour of the defendant and the proper course for the defendant was to file separate suit in respect of the relief sought by her. It is also urged that the order of the Court below does not specify and exceptional circumstance in view of which the grant of injunction was considered necessary. He placed reliance on a single Judge decision in Kirat Singh v. Madho Singh, 1979 All WC 296 in that case a suit for cancellation of gift deed was sought on the ground of fraud and during its pendency the defendant applied for an injunction to restrain the plaintiff from interfering in defendant's possession. The trial Court granted injunction but the lower appellate Court reversed the same. In the revision filed against that order the Addl. District Judge took the view that no appeal lay against the order as the order of injunction was passed under Section 151 of the Code. The revision was consequently allowed. This order was challenged before the High Court while disposing of the revision the learned Judge observed :
"In other words the Court has no jurisdiction to restrain the plaintiff at the instance of the defendant. In such a situation a temporary injunction can be issued only against the defendant. There is no finding that the property in dispute was in danger of being wasted, damaged or alienated by any party to the suit. Section 151 of the Code of Civil Procedure does not confer any additional jurisdiction on the Courts",
6. It appears that the attention of the learned single Judge was not drawn towards a Supreme Court decision in Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 where the Supreme Court, after reviewing the case law on the point had this to say :
"It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression 'if it is so prescribed' in Section 94 is only this that when the rules in Order 39, Civil P.C. prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. It is in the incident of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.
Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting. The inherent power has not been conferred upon the Court it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any power outside the limits of the Code.
Thus, there being no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code, the Courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order 39, C.P.C. if the Court is of opinion that the interests of justice require the issue of such interim injunction".
7. The same view was expressed by Patna High Court in Bhagelu Mian v. Mahboob Chik, AIR 1978 Pat 318 in which learned single Judge relied upon the above Supreme Court's decision. The Supreme Court's view has also been followed by Lucknow Bench of this Court in Dileep Kumar v. Ram Saran, 1972 All LJ 379.
8. From the above it is now well established that the inherent powers of the Court are wide enough to include the power to grant temporary injunction even in those cases where requirements of the rules framed under Order 39 are not wholly complied with. A Division Bench of this Court has also taken a contrary view in Bharat Bhusan v. B. M. Shah, 1979 All LJ 492 where also it was held that the Court has the jurisdiction to grant interim injunction under its inherent power.
In view of the above position of law I have no hesitation in holding that the trial court was right in granting injunction even if the matter was not strictly covered under Order 39, Rules 1 & 2 of the Code and it could do so in exercise of j its inherent power if the facts of the case so required.
9. This, however, leads us to another question. The submission of the appellant was that on the wording of Order 39, Rules 1 & 2 an injunction can only be granted in favour of the plaintiff and not to the defendant. For this again the learned counsel referred to Kirat Singh's case (1979 All WC 2%) (supra). In Sivakami Achi v. Narayana Chettiar, AIR 1939 Mad 495 the court held that the words by any party used in Order 39, Rule 1 includes both the plaintiff and defendant and in appropriate cases an interim injunction can also be granted by the Court on being moved at the instance of the defendant. Same view was expressed in Dr. Ashish Ranjan Das v. Rajendra Nath Mullick, AIR 1982 Cal 529.
10. Apart from above when injunction is granted under the inherent power of the Court it is not subscribed by the limitation prescribed in Rules 1 & 2 of Order 39. The very fact that the Court deems its proper to invoke its inherent jurisdiction in granting injunction means that the case is not fully covered by what is provided under Rules 1 and 2 of Order 39. It is only a matter of caution that the Court must do so in very rare cases where court is of the view that without grant of injunction either the property in suit will be altered or damaged or when there are other compelling circumstances which necessitate the grant of injunction, the court can grant ad interim injunction even in favour of the defendant.
11. Appellant's next submission was that the defendant cannot take advantage of obtaining the relief of temporary injunction even without paying any court-fee. According to him in a case like this the only way to obtain temporary injunction against the plaintiff was for the defendant herself to file a suit against the plaintiff and to obtain the relief in that proceeding. This argument can only have a very limited merit for to accept it would be to militate against the well established principle that the court must avoid the multiplicity of proceedings. Exercise of judicial discretion, therefore, requires that this must be avoided and if it was possible to grant any relief to the defendant the same should be done in this very suit. The appellant's submission, therefore, has no merit and is rejected.
12. It was next urged that there were no exceptional circumstances in the present case which might have persuaded the court to invoke its inherent jurisdiction for granting the injunction. It is true that if injunction is to be granted under the inherent power of the court some exceptional circumstances justifying the same must be present. The appellant's submission was that the court has not referred to any exceptional circumstance in its order. However, from the record it is obvious that there is hot contest going on between the parties for a long time and the building in dispute is a very old one which is in a tattered condition now-a-days, the defendant seeks permission to repair the same to make it habitable without making any alteration or addition therein. This is very simple prayer to which the plaintiff should not have taken any exception. The plaintiff is not likely to suffer at all, for, if the repairs are carried out and the building is put in order, the plaintiff will reap the benefit in case of his ultimate success without paying anything for the expenses incurred on these repairs. It would also ensure that the building remains intact and would be available to the plaintiff in the event his suit succeeds. The order of the court below, therefore, was eminently equitable and just to which no objection could have been legitimately taken. The court below has taken care to put certain restrictions on the right of the defendant and she has been permitted only to carry out repairs with no right to make new construction or to demolish any construction of the existing building. Repairing work also is restricted to the portion in her occupation. It is also made clear that the defendant shall carry out repair work only after obtaining requisite permission from the concerned authorities.
13. The matter can be looked into from another point of view also. The order of the court below purports to have been passed in exercise of inherent power under Section 151 and not under Order 39, Rule 1 of the C.P.C. In view of this an appeal to this Court shall not lie against that order which is only revisable. Properly speaking, only a revision should have been filed by the plaintiff. However, even if this appeal from order is treated to be a revision find no mirit in it. The order being just and equitable it will not be proper for the court to interfere with it besides the order is not illegal nor there is any jurisdictional error in exercise of its power by the court below.
14. In the light of the observations made above, the appeal is dismissed. However, there will be no order as to costs.