Gauhati High Court
Nemi Chand Gangwal vs Suresh Kumar Jain (Bakliwal) on 12 September, 2014
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: CRP 288 of 2014
Sri Nemi Chand Gangwal,
S/o Late Maha Chand Gangwal,
Residence of Maligaon, Gate No. 1,
Guwahati-11,
District- Kamrup,
Assam.
...... Petitioner
-Versus-
Sri Suresh Kumar Jain (Bakliwal),
S/o Late Misrilal Bakliwal,
C/o Suresh Kumar Jain & Company,
T.R. Phooken Road, Fancy Bazar,
Guwahati-01,
District- Kamrup,
Assam.
...... Respondent
-BEFORE-
HON'BLE MR. JUSTICE N. CHAUDHURY
For the Petitioner : Mr. OP Bhati
Mr. TC Das
Mr. S Khan
Mr. D Mondal
Mr. S Nath
Advocates
For the Respondent :
Date of Hearing : 12.09.2014
Date of delivery of
Judgment and Order : 12.09.2014
Page 1 of 10
CRP 288 of 2014
JUDGMENT AND ORDER (ORAL)
Whether an order passed under Order XXXIX Rule 1 and 2 by appellate court sitting on appeal against final decree of a suit is appealable under Section 104 read with Order XLIII Rule 1(r) of the Code of Civil Procedure, is the question to be answered in revision petition?
2. Petitioner Nemi Chand Gangwal, as plaintiff, instituted Title Suit No. 243/2010 in the Court of learned Munsiff No. 1, Kamrup at Guwahati which was subsequently transferred to the Court of learned Munsiff No. 2. By this suit, plaintiff prayed for a decree for declaration along with permanent injunction for restraining the defendants and their employees, agents etc. from demolishing the latrine and well of the plaintiff and from locking their passage for access to latrine and well. The defendants contested the suit by filing written statement and otherwise. After conclusion of trial, the learned Munsiff by his judgment and decree dated 21.03.2014 dismissed the suit with cost. Aggrieved, plaintiff preferred Title Appeal No. 36/2014 in the Court of learned Civil Judge No. 2, Kamrup at Guwahati. Appeal has been admitted and records have been called for.
3. In this appeal plaintiff filed an application under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure praying for mandatory injunction directing the opposite party therein to provide access to the latrine and bath rooms by unlocking the lock put on the gate without further delay. Misc. (J) Case No. 259/2014 was registered by the appellate Court on such application. Opposite party No. 1 submitted written objection in this miscellaneous case contesting the prayer for mandatory injunction. Thereafter, the learned court passed impugned order on 12.08.2014 after hearing both sides and thereby rejected the prayer for injunction. The learned court held that the petitioner does not have prima facie case for getting injunction and on that finding the prayer for injunction was turned down. This order dated 12.08.2014 has been called in question in this Page 2 of 10 CRP 288 of 2014 revision petition. On 10.09.2014 when this petition came for motion hearing, this court expressed doubt about maintainability of the revision petition on the ground that impugned orders having been passed under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, an appeal would lie against the impugned order and consequently revision petition by invoking constitutional remedy under Article 227 of the Constitution of India would not be maintainable. The learned counsel for the petitioner took time for specifying this Court and this is how the matter has been placed again before this Court.
4. I have heard Mr. OP Bhati, learned counsel for the petitioner who submits that order passed by the appellate Court under Order XXXIX Rule 1 and 2 being appellate in nature, no further appeal shall lie there-against under Order XLIII Rule 1 read with Section 104 of the Code of Civil Procedure. Referring to sub-Section 2 of Section 104, Mr. Bhati submits that no appeal shall lie from any order passed in appeal under this Section and so, on the basis of the expressed bar under Section 104(2) of the Code of Civil Procedure, no appeal under Order XLIII Rule 1 would be maintainable. Mr. Bhati has placed reliance on the following judgments:-
(1) New Kenilworth Hotel (P) Ltd.
Vs. Orissa State Finance Corporation & Ors: (1 997) 3 SCC 462
(2) Shah Babulal Khimji vs. Jayaben D. Kania : (1 981 ) 4 SCC 8
(3) Madhusudan Begetable Products Co. Ltd.
Vs. Rupa Chemicals : AIR 1 986 Guj 1 56
(4) Firm Chhunilal Laxman Prasad vs.
Agarwal and Co. : AIR 1 987 MP 1 72
(5) C. Kalahasti vs. P.C. Munuswami Chetti : AIR 1 975 MAD 3
5. In case of New Kenilworth Hotel (P) Ltd. (supra), as against an interlocutory order passed by the learned trial court, an appeal was Page 3 of 10 CRP 288 of 2014 preferred before the Single bench of the High Court of Orissa under Section 104 (1) read with Order XLIII Rule 1 of the Code of Civil Procedure. The Single bench vacated the interlocutory order of injunction by order dated 18.05.1995. Feeling aggrieved, a Letters Patent appeal was preferred before the Division Bench of the same high court which held that no letter patent appeal is maintainable against appellate judgment passed by Single Bench. The Hon'ble Supreme Court relied on the case of Shah Babulal Khimji v. Jayaben D. Kania (supra) and held that as against an order passed by the Single Bench under Order XXXIX Rule 1 and 2 while sitting in original side, is appealable before the Division Bench under the provision of the letters patent. It was held that Single Bench having exercised original jurisdiction an appeal would lie to the Division Bench under Order XLIII Rule 1 and any order passed by the Single Bench would be a judgment within the meaning of Section 2(9) of the Code of Civil Procedure and so it would be appealable. Since in the case in hand i.e. in the case of New Kenilworth Hotel (P) Ltd. (supra) order passed by the Single Bench was not in original jurisdiction as in the case of Shah Babulal Khimji v. Jayaben D. Kania as referred to above, the Supreme Court found that entertaining an appeal against the order of Single Bench would be barred under sub-section 2 of the Section 104 of the Code of Civil Procedure and accordingly the judgment of the Division Bench of the Orissa High Court holding the appeal not maintainable was upheld by the Supreme Court. Relying on the judgment of New Kenilworth Hotel (P) Ltd. (supra), Mr. Bhati would argue that even in the present case, order has been passed by first appellate court under Order XXXIX Rule 1 and 2 so bar of Section 104 (2) of the Code of Civil Procedure would be applicable as in New Kenilworth Hotel (P) Ltd. But in the case of New Kenilworth Hotel (supra), appeal before the Single Bench of the High Court was filed under Order XLIII Rule 1(r) of the Code of Civil Procedure so that appeal was under Section 104 of the Code. That being position, the main appeal itself being a one under Order XLIII Rule 1(r) read with Section 104 of the Code of Civil Procedure, bar of Section 104 (2) of the Code of Civil Procedure was applicable. In the case in hand, the main appeal i.e. T.A. No. 36/2014 is not against an interlocutory order and so it was not an appeal under Section 104(1) read with Order XLIII Rule Page 4 of 10 CRP 288 of 2014 1(r) of the Code of Civil Procedure. It was an appeal under Section 96 of the Code of Civil Procedure challenging the final judgment and decree passed in the suit whereby the main suit of the plaintiff was dismissed. The facts of New Kenilworth Hotel (P) Ltd., therefore, are fundamentally different from the facts in the present case. The appeal herein not being an appeal under Section 104 (1) of the Code of Civil Procedure, bar of Section 104(2) of the Code of Civil Procedure, therefore, cannot arise.
6. In the case of Resham Singh Pyara Singh (supra), a suit was filed in the City Civil Court at Bombay for injunction. Initially interim injunction was granted by the learned trial court and as against that order an appeal under Section 104 (2) read with Order XLIII Rule 1 (r) was preferred before the Single Bench of the Bombay High Court. Here also the Single Bench passed an order directing Commissioner to demarcate the land in question and such this order amounted to granting temporary mandatory injunction to break the compound stall and remove the article etc. An appeal was brought against this order of the Single Bench to Division Bench under Letters Patent appeal and Division Bench rejected the same on the ground that Letters Patent would not lie in this case. An SLP was filed before the Supreme Court leading to decision (supra) wherein the Supreme Court held that when an appeal was filed against the order of City Civil Court to Single Bench under Order XLIII Rule 1(r) of the Code of Civil Procedure, an LP Appeal filed there-against would be hit by Section 104(2) of the Code of Civil Procedure. The Hon'ble Supreme Court held that the case of Shah Babulal Khimji v. Jayaben D. Kania (supra) would not be applicable because in that case application under Order XXXIX Rule 1 and 2 was filed in the original suit of the Bombay High Court. This judgment of the Hon'ble Supreme Court, therefore, is also same as that of New Kenilworth Hotel (P) Ltd. where main appeal was directed against interlocutory order and thus it was itself an appeal under Order XLIII Rule 1(r) read with Section 104(1) of the Code of Civil Procedure and so naturally bar under Section 104(2) was available to this case as well. In the present case, the appeal being under Section 96 and not under Section 104(1) of the Code of Civil Procedure, question of applying bar under Section 104 (2) did not arise. Page 5 of 10 CRP 288 of 2014
7. The other three cases, Firm Chhunilal Laxman Prasad (supra) of Madhya Pradesh High Court, Madhusudan Vegetable Products Co. Ltd. (supra) and C. Kalahasti (supra) were all based on similar facts that is interlocutory orders were passed in appeal filed under Section 104 (1) read with Order XLIII Rule 1(r) of the Code of Civil Procedure. These three judgments, therefore, also have distinctively separate factual background than the one in hand.
8. The judgment relied on by Mr. OP Bhati, therefore, do not have identical factual matrix as in the present case and so they are of little assistance to adjudicate the question of maintainability in the present case. Keeping in mind the Principle of Judicial Precedents and the law of ratio decidendi, the aforesaid decisions would not guide the course of the present proceeding. Here in this case, a declaratory suit has been dismissed by the trial court on merit. The plaintiff has preferred a Title Appeal under Section 96 of the Code of Civil Procedure and appellate court is in seisin with the question as to whether plaintiff is entitled to a decree of declaration as prayed for. Pending decision of this appeal, an application has been filed therein by the appellant under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. The Misc. (J) Case was registered under provision of Order XXXIX Rule 1 and 2 and this application has been rejected by the order under challenged. Order XXXIX Rule 1 empowers Court to grant temporary injunction 'in any suit'. So this provision was made for passing order of temporary injunction in a pending suit. In the present case, application under Order XXXIX Rule 1 and 2 has been filed in an appeal and not in a suit. Powers of appellate court are prescribed under Section 107 of the Code of Civil Procedure and the same is quoted below:-
"107. Powers of Appellate Court.- (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial; Page 6 of 10 CRP 288 of 2014
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein."
Section 107(2) makes it clear that appellate court shall have the same powers and shall perform, as nearly as possible, the same duties as are conferred and imposed by the Code on courts of original jurisdiction. This means that appellate court also has all the powers which are available to a trial court. It is for this reason a power to grant temporary injunction under the provision of Order XXXIX Rule 1 can also be exercised by appellate court. An order passed under Order XXXIX Rule 1 and 2 is appealable under Section 104 (1)(i) of the Code of Civil Procedure because it is so prescribed under Order XLIII Rule 1(r) of the Code. Order XLIII Rule 1(r) of the Code of Civil Procedure is quoted below:-
"1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely :-
***** *****
(r) an order under rule 1, rule 2 [rule 2A], rule 4 or rule 10 of Order XXXIX;
*****"
9. A perusal of Order XLIII Rule 1(r) shows that any order passed in exercise of power under Order XXXIX Rule 1 and 2 shall be appealable. The provision does not say as to whether such exercise made by trial court alone is appealable or not. No bar has been imposed by the legislature to the effect that when such power is exercised by a court while exercising power under Section 96 of the Code of Civil Procedure, the same would not be appealable under Order XLIII Rule 1(r) of the Code of Civil Procedure. Page 7 of 10 CRP 288 of 2014 Section 96 also does not have any expressed bar to that effect. Now, reverting to Section 104 of the Code of Civil Procedure it would appear that when an appeal lies, inter alia, under provision of sub-section 1(i) of the Code i.e. from any order made under Rules from which an appeal is expressly allowed by Rules, there is a sub-clause (2) which provides that no further appeal shall lie from such order. The provision of Section 104 is quoted below:-
"104. Orders from which appeal lies.- (1) An appeal shall lied from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders :-
[***] [(ff) an order under section 35A;] [(ffa) and order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules:
Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this section."
Bar under Section 104 (2) has been imposed on an appellate order passed in appeal 'under this section'. The concluding part of Section 104(2) is specific. It does not say that no appeal shall lie from any order passed in appeal under any other section. So in an appeal filed under Section 96 of the Code of Civil Procedure, bar under Section 104(2) would definitely not apply. If bar under clause (2) of Section 104 is extended to a regular first Page 8 of 10 CRP 288 of 2014 appeal preferred under Section 96 of the Code, in that event the concluding three words in Section 104(2), namely, 'under this section' would become redundant. The established principle of interpretation is that court cannot render any part of the statute infructuous or otiose. Moreover, this would also amount to adding words to the statute. Legislature in its wisdom has restricted the bar of Section 104 (2) to the appeals preferred under Section 104 (1) only and so court cannot apply this bar to appeal filed under Section 96 of the Code or under any other provision as the same would amount to legislation by court which is contrary to the doctrine of causus omisus. All the aforesaid judgments relied on by the learned counsel for the petitioner are appeals preferred under Section 104 (1) Code and none of them arose from an appeal under Section 96.
10. As has been pointed out above, Order XLIII Rule 1 speaks of order passed under various provisions of that Rule without making mention as to whether such orders would be appealable if they are passed in exercise of appellate or original jurisdiction. Section 104(2) imposes bar for appeal under Order XLIII Rule 1(r). If such an order is passed by an appellate court apart from the bar under Section 104 (2), there is no other prohibition or limitation against appealability of an order passed under provisions of Order XLIII Rule 1(r) of the Code. The sum total of this discussion is that insofar as an order of injunction under Order XLIII Rule 1(r) is concerned, there shall be only one appeal which means appellate power exercised under Order XLIII Rule 1(r) is provided for one occasion only. But this is not the case in regard to appeal filed under Section 96 of the Code of Civil Procedure. While a first appeal lies under Section 96, a second appeal is also maintainable against appellate decree under Section 100 of the Code provided substantial question of law exists. Merely because appellate power has been exercised once would not itself be a bar for preferring second appeal against a first appellate judgment and decree.
11. In the case in hand, first appellate court while exercising power under Section 96 of the Code of Civil Procedure exercised the power under the provision of Order XXXIX Rule 1 of the Code. Since appellate court has all the powers of the trial court as enshrined under Section 107 (2) of the Page 9 of 10 CRP 288 of 2014 Code, the words 'wherein a suit' would be read as 'wherein an appeal' when provision of Order XXXIX Rule 1 is exercised by an appellate court sitting in an appeal under Section 96 of the Code. After all an order passed by the appellate court refusing or granting injunction is an order passed in exercise of power under Order XXXIX Rule 1 of the Code and since power imposed under Section 104(2) is not applicable for the reasons aforementioned, the impugned order in the present case is clearly appealable under Order XLIII Rule 1(r) of the Code of Civil Procedure. The civil revision, therefore, invoking constitutional remedy under Article 227 of the Constitution of India is not the proper remedy.
12. The revision petition is closed as not maintainable. However, closure of this revision petition would not disentitle the petitioner to prefer an appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure. The learned counsel for the petitioner shall be at liberty to withdraw the certified copy of the impugned judgment and order from the Registry of this Court for the purpose of preferring such an appeal, if so advised.
13. Civil revision petition is, accordingly, closed.
14. No order as to cost.
JUDGE BiswaS Page 10 of 10 CRP 288 of 2014