Punjab-Haryana High Court
Gurdarshan Singh Brar vs M/S Aerizzona Through Surinder Singh ... on 7 October, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CR No.1820 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.1820 of 2013
Date of Decision:07.10.2013.
Gurdarshan Singh Brar
...Petitioner
Versus
M/s Aerizzona through Surinder Singh Prop.
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether reporters of the local papers may be
allowed to see the judgment? Yes
2) To be referred to the Reporters or not? Yes
3) Whether the judgment should be reported
in the Digest? Yes
Present: Mr. R.B.S.Chahal, Advocate, GPA,
for the petitioner.
Mr. Kanwaljit Singh, Sr. Advocate,
with Mr. Ajaivir Singh, Advocate,
for the respondent.
****
PARAMJEET SINGH, J.
Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 27.02.2013 (Annexure P-9) passed by learned Additional District Judge, Chandigarh.
Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 2
Shorn of unnecessary details, the facts relevant for disposal of the instant petition are to the effect that the petitioner-plaintiff filed Civil Suit No.300 of 2002 for permanent injunction restraining the respondent-defendant from using the disputed premises for the purpose of discotheque. Along with the suit, an application for ad interim injunction was also filed. Vide order dated 03.08.2005, learned trial Court allowed the said application. The order dated 03.08.2005 attained finality upto this Court with the dismissal of CR No.5946/2005 vide order dated 24.07.2006 whereby this Court upheld the order dated 03.08.2005 and observed as under:
"....... Learned lower Appellate Court came to the positive finding that the discotheque was not running with the consent of the plaintiff from the date of inception of tenancy. It was noticed that the date on which the discotheque club started running was not disclosed in the written statement, the contention of the learned counsel for the petitioner tenant that the plaintiff himself was not doing the needful for obtaining sanction to use the basement of the building for habitable purpose was not accepted by taking note of the fact that the U.T. Administration has not granted permission for running of discotheque club from the suit property. Accordingly, it was held that the defendant-petitioner could not claim any legal or vested right to continue running of the discothèque club.
x x x x x x x "In the present case, the respondent had prima facie case as his right to hold the property is threatened."
Despite the injunction, the respondent continued to run the Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 3 discothèque and the petitioner-owner was forced to seek police help for enforcement of the court order. The trial Court granted police help and that order was upheld by this Court in CR No.4674 of 2006. The Special Leave Petition preferred by the respondent against the order of this Court passed in CR No.4674 of 2006 has also been dismissed. On the stoppage of misuse the site/building was restored to the petitioner- owners by the Chief Administrator, Chandigarh vide his order dated 22.07.2009 (Annexure P-1). Soon after the passing of order (Annexure P-1), the respondent again started misusing the basement by re-starting the discothèque because the suit filed by the petitioner in which the interim injunction has been granted, was dismissed in default and it took inordinate long time to be restored. The Estate Officer, Chandigarh again issued notice under Rules 10 & 14 of Chandigarh Estate Rules, 2007 to the petitioner requiring him to stop the misuse or face penalty of resumption. Upon receipt of the notice, the petitioner filed application dated 12.10.2010 under Section 151 for enforcing the ad interim injunction as affirmed by this Court vide order dated 24.07.2006 in CR No.5946/2005. The trial Court dismissed the application vide order dated 04.02.2011. Thereafter, the petitioner preferred an appeal against the order which was also dismissed vide order dated 09.01.2012. The petitioner preferred CR No.880/2012 before this Court which was allowed on 06.08.2012 and the case was remanded to the Appellate Court with a direction to decide the appeal on merits in accordance with law. Thereafter, learned lower Appellate Court, vide impugned order dated 27.02.2013 has dismissed the appeal, as not maintainable. Hence, Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 4 this revision petition.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner has vehemently contended that earlier, the lower Appellate Court had dismissed the appeal preferred by the petitioner challenging the order dated 04.02.2011 passed by the trial Court and thereafter Civil Revision No.880/2012 preferred by the petitioner was disposed of by this Court vide order dated 06.08.2012 with a direction to the lower Appellate Court to decide the appeal in accordance with law. Now, the appeal from which this revision arises, has been dismissed by the lower Appellate Court vide order dated 27.02.2013 on the issue of maintainability. The learned counsel has further contended that the trial Court has refused to enforce the injunction order dated 03.08.2005 despite the fact that it was affirmed by this Court in Civil Revision and a direction was issued by this Court to enforce the order with the help of police vide order reported as M/s Aerizzona v. Gurdarshan Singh Brar 2006(4) RCR (Civil) 71. The trial Court has dismissed the application by recording a specific finding which reads as under:
"So, in view of the facts and circumstances explained above and in view of the order dated 22.05.2009 passed by the Estate Officer, U.T.Chandigarh and order dated 22.7.2009 passed by the Chief Administrator, U.T.Chandigarh, at this stage, without the evidence of both the parties, no such order of enforcement of the ad interim order dated 3.8.2005 can be passed. Accordingly, the instant application is hereby Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 5 dismissed."
The learned counsel has contended that this order of the trial Court amounts to variation under Order XXXIX Rule 4 CPC and the appeal is maintainable. The learned counsel has also raised an alternate argument that if the order dated 04.02.2011 passed by the trial Court is only to be treated under Section 151 of CPC, then the appeal does not lie. The contention of learned counsel is that since the lower Appellate Court has treated the order dated 04.02.2011 under Section 151 CPC and recorded a finding that appeal is not maintainable, therefore, this revision should be decided on merits considering the order dated 04.02.2011 passed by the trial Court on application of the petitioner under Section 151 CPC for enforcement of ad interim injunction order dated 03.08.2005 which was affirmed by this Court in M/s Aerizzona v. Gurdarshan Singh Brar 2006(4) RCR (Civil) 71. In such circumstances, the Court is required to enforce the order of ad interim injunction with the help of police in view of its earlier order which was affirmed upto the Hon'ble Supreme Court wherein direction was issued to the respondent not to run the discotheque in the premises in question. In the aforesaid background, the learned counsel has contended that in case this Court comes to the conclusion that the appeal was not maintainable before the lower Appellate Court, then this Court should decide the matter with regard to legality of order dated 04.02.2011.
Per contra, learned senior counsel while opposing the contentions raised by learned counsel for the petitioner has vehemently contended that the order dated 04.02.2011 has been passed on Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 6 application under Section 151 CPC, therefore, the appeal was not maintainable before the lower Appellate Court. In view of Order XLIII CPC, no appeal lies against such order, however, if the order dated 04.02.2011 is to be treated under Order XXXIX Rule 4 CPC, only then appeal is maintainable under Order XLIII CPC. As per Section 104 read with Order XLIII CPC, no appeal lies against the order passed on application under Section 151 CPC. The learned senior counsel has further contended that actually the order dated 04.02.2011 has been passed under Order XXXIX Rule 4 CPC which certainly amounts to variation in the initial order of ad interim injunction. The learned senior counsel has specifically referred to para no.9 of the order dated 04.02.2011 which reads as under:
"Further there is another order dated 22.5.2009 passed by the Assistant Estate Officer, exercising the power of Estate Officer, U.T.Chandigarh and in para 2nd of page 3 of the said order, it has been mentioned that there is an application dated 26.2.2009 submitted along with bankers cheque no.204807 dated 24.2.2009 for Rs.50,000/- for allowing the basement for habitable use/discotheque/restaurant in the said SCO No.40-41, Sector 9-D Chandigarh. The applicant/plaintiff has not denied this fact at this stage. Further, at this stage, the learned counsel for the respondent/defendant has submitted that the applicant/plaintiff had applied for the revised plans reflecting therein that the basement shall be used for the purpose of discotheque, which site plans were dealt with and the same were approved but could not be released due to the death of the co-owner. Thereafter, only because the basement became usable Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 7 for habitable purpose, therefore, the respondent/defendant started using the same for running Disco. It is also contended by the learned counsel for the respondent/defendant in view of the facts explained above, the rent of the tenanted premises was enhanced to Rs.40,000/- from Rs.23,000/- and that was done after the passing of the order dated 3.8.2005 by the Court of Sh. R.K.Sharma, the then Civil Judge (Junior Division), Chandigarh and in that regard, the learned counsel for the respondent/defendant has also relied upon a receipt of rent issued by Sh. Rajbirinder Singh Chahal as General Power of Attorney and owner of SCO No.40- 41, Sector 9-D,Chandigarh."
The learned senior counsel has further contended that in view of change of circumstances and permissibility of running discotheque in the basement, the petitioner is not entitled to any police help for enforcement of the order of ad interim injunction. The petitioner is at fault in not complying with the requirements of Estate Office to convert the demised premises for running into a discotheque or for a purpose which the respondent has a right to enforce it. The petitioner in any circumstance wants the vacation of the demised premises by whatever means. The learned senior counsel has further contended that if the petitioner fails to comply with the terms, then the respondent-tenant has a right to comply with the said term and in support of his contention made reference to Ram Murti vs. Chandigarh Administration 2002 (1) R.C.R (Rent) 606. I have considered the rival contentions of learned counsel for Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 8 the parties.
This is fourth round of litigation before this Court and second round of litigation for enforcement of injunction order dated 03.08.2005 with the help of the police. Earlier, the matter had gone up to the Hon'ble Supreme Court wherein the order of rendering police help was upheld.
From the arguments raised by learned counsel for the parties, in my opinion, following questions arise for determination:
1. Whether the order dated 04.02.2011 passed by the trial Court is under Order XXXIX Rule 4 CPC or under Section 151 CPC?
2. Whether the trial Court can direct enforcement of the injunction order dated 03.08.2005 with the help of police?
3. Relief?
Re: Question No.1.
Admittedly, application was filed by the petitioner-plaintiff for enforcement of order dated 03.08.2005 which attained finality upto this Court and positive finding was recorded that discotheque was not running with the consent of the plaintiff from the date of inception of the tenancy which is against the rules, as a result of which the misuser was stopped and the building was restored to the plaintiff by the Estate Office. Thereafter, the respondent again started running discotheque because of which show cause notice was issued to the plaintiff-owners for resumption of the building. Thereafter, the petitioner filed application under Section 151 CPC for enforcing the ad interim injunction dated 03.08.2005 as affirmed by this Court vide order dated Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 9 24.07.2006 in CR No.5046/2005. The subsequent application under Section 151 CPC for enforcement of order with police help has been dismissed by the trial Court vide order dated 04.02.2011.
Now the question arises whether the order dated 04.02.2011 has been passed under Order XXXIX Rule 4 or under Section 151 CPC. It would be appropriate to reproduce Order XXXIX Rule 4 CPC and Section 151 CPC which read as under:
"Order XXXIV CPC: Temporary Injunctions and Interlocutory Orders Rules 1 to 3 xxxxx Rule 4. Order for injunction may be discharged, varied or set aside. - Any order for an injunction may be discharged, or varied or set aside by the Court, on application made thereto by any party dissatisfied with such order:
Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:
Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 10 on the application of the party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party."
Section 151 CPC- "Saving of inherent powers of Courts. - Nothing is this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
A perusal of Order XXXIX Rule 4 CPC makes it clear that the Court has power to vary the injunction order on an application filed by either of the parties. An order for injunction can be discharged, or varied, or set aside under Order XXXIX CPC on an application made thereto by any party dissatisfied with such order. In the light of the abovesaid provisions, certainly the application moved by the petitioner- plaintiff was not for variation of the order dated 03.08.2005 passed on application under Order XXXIX Rules 1 and 2 CPC. The application moved by the petitioner was under Section 151 CPC for enforcement of order dated 03.08.2005 which was upheld upto this Court, with the help of police. As such, in any circumstances, the order dated 04.02.2011 passed by the trial Court cannot be said to be passed under Order XXXIX Rule 4 CPC as none of the parties moved application for discharge or vary or set aside the order of ad interim injunction dated 03.08.2005. The order dated 04.02.2011 was certainly an order passed Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 11 under Section 151 CPC. As such, no appeal was maintainable against it. So far as the order of the Appellate Court holding the appeal to be non- maintainable is concerned, the same is upheld, as no appeal is maintainable against the order passed under Section 151 CPC.
In the light of the alternate argument raised by learned counsel for the petitioner and the peculiar facts and circumstances of the case, I will consider the order dated 04.02.2011 passed by the trial Court hereinafter and go into merits of the same to do justice to the parties and save them from another round of litigation.
Re: Question No.2:
Now the question arises whether under Section 151 CPC, direction can be issued for enforcement of order passed under Order XXXIX Rules 1 and 2 read with Section 151 CPC. In the instant case, order of ad interim injunction dated 03.08.2005 passed in favour of the petitioner-plaintiff in the suit has been affirmed upto this Court. This Court is not required to go into the validity or correctness of the ad interim injunction order passed by the trial Court which has been ultimately upheld upto this Court.
In the present petition, this court will look into the fact whether the respondent-defendant is not complying with the order of ad interim injunction and is still running the discotheque in the property of the petitioner in spite of specific directions not to run the same. The crucial question which arises for determination is whether the assistance of police can be granted to enforce the order of ad interim injunction, specifically when direction to enforce the order of ad interim injunction Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 12 with the help of police i.e. not to run the discotheque in the demised premises has already been issued. This Court in Civil Revision No.4674 of 2006 upheld the direction of the trial Court granting police help to enforce the order of ad interim injunction and the said order was also upheld by the Hon'ble Supreme Court. Now vide order dated 04.02.2011 passed by the trial Court, the order of providing police help which was upheld by the Hon'ble Supreme Court has virtually been nullified in spite of the fact that there is no application under Order XXXIX Rule 4 CPC for variation, discharge or setting aside of the earlier order.
Before proceeding with the discussion on the issue, it would be appropriate to consider other provisions with regard to the enforcement of ad interim injunction. The provisions of Order XXXIX Rule 2-A CPC are applicable whereby a person for disobedience of the order can be sent to imprisonment or his property can be attached or both. This is applicable when the order is violated. Here the question is with regard to enforcement of the order. There is no specific provision for enforcement of the order. In such circumstances, Section 151 CPC is relevant when there is no other express provision in the Code for enforcement of the order. It is not only proper but also necessary that the Court should render all aid to the aggrieved party to derive full benefits of the interim orders granted in its favour. Though an order of injunction under Order XXXIX CPC is only interim in nature, still the person who obtains the order has certain rights and he is entitled to enforce the aforesaid rights against the party which is bound by the order. No doubt, in such a case, the aggrieved party itself could approach the police Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 13 authority to prevent obstruction to the enforcement of the order or to the exercise of right which he gets under the order of the Court. But, I do not see any reason why the Court should not pass appropriate order and take notice of the things, once the same is brought to its notice. Enforcement of an order of Court is necessity and the Court must exercise its inherent power under Section 151 CPC and direct the police authorities to render all aid to the aggrieved party in the implementation of the order of the Court.
In my opinion, the exercise of such power is necessary for the ends of justice or to prevent abuse of the process of law and the civil court has ample jurisdiction to pass such order under Section 151 CPC. It would be appropriate to bear in mind that when the order of temporary injunction under Order XXXIX Rule 1 of CPC is passed by the Civil Court, it involves following three stages:
The first stage is the issue of an order of temporary injunction, may be ex parte. When along with the suit, an application under Order XXXIX Rule 1 CPC is filed by the party, the Court being satisfied that the conditions prescribed under Order XXXIX Rule 1 of CPC are satisfied, may issue an order of temporary injunction in favour of the party, who has applied for the same.
The second stage is the implementation of the order of temporary injunction. There is no specific provision under the CPC dealing with the implementation of the order of temporary injunction.
The third stage is the punishment for disobedience of order of the injunction. Order XXXIX Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 14 Rule 2-A CPC deals with the consequences of disobedience or breach of injunction or other orders made under Order XXXIX Rule 1 CPC.
Thus, the CPC contains certain specific provisions with regard to the grant of an order of temporary injunction and for punishing the person who disobeys the order of temporary injunction. However, there is no specific provision in the CPC providing for enforcement of the order of temporary injunction granted by the Court. When there is no specific provision of law which is sufficient to enforce the order of temporary or permanent injunction granted by the Court, then as I have already discussed, Section 151 of the CPC can be invoked for the purpose to render justice or to redress the wrong, because the Court not only has the power to pass an order, but also has the power to enforce that order.
Now coming to merits of the present case, it would be appropriate that in the present case, the direction for enforcement of order dated 03.08.2005 with the help of police has already been issued which has been upheld upto the Hon'ble Supreme Court. In the present case, since there was no application for variation specifically at the instance of the respondent, it was incumbent upon the trial Court to pass the direction to enforce the order with the aid of the police on an application under Section 151 CPC. I am not required to again appreciate the entire controversy and reasons recorded for providing police help, as the matter has already been considered by this Court and upheld by the Hon'ble Supreme Court in Special Leave Petition and Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1820 of 2013 15 direction to provide police help to enforce the order given by the trial Court has been affirmed.
The contentions of learned counsel for the respondent that there are change of circumstances as well as subsequent rules provide for use of demised premises for discotheque etc. and reliance in regard on Ram Murti (supra), are not at all relevant in the present case, as neither there is any prayer on the part of the respondent, nor the respondent approached the trial Court for this purpose. It was for the respondent to approach the trial Court for appropriate relief in accordance with law as may be permissible. It is settled law that this Court cannot direct the petitioner-plaintiff to perform a particular type of act when the respondent has not moved the Court for the same. Re: Question No.3:
In view of above discussion, the present revision is allowed. The order dated 04.02.2011 passed by the trial Court is set aside, as it suffers from error of law. The petitioner will be at liberty to approach concerned police authorities for police help or he may move the trial Court upon which trial Court will issue necessary direction for police help to enforce order dated 03.08.2005 which has been upheld upto this Court.
(Paramjeet Singh) Judge October 07, 2013 parveen kumar Kumar Parveen 2013.10.23 18:04 I attest to the accuracy and integrity of this document High Court, Chandigarh