Madhya Pradesh High Court
Ravishankar And Anr. vs Viith Additional District Judge And ... on 31 January, 1994
Equivalent citations: 1994(0)MPLJ783
Author: R.C. Lahoti
Bench: R.C. Lahoti
ORDER
1. On the question of scope, applicability and ambit of Order 39, Rule 4, Civil Procedure Code, two learned Judges of this Court (B. C. Varma, J. and K. M. Agarwal, J.) having differed in their opinions, the matter has been placed before me for resolving the difference.
2. The plaintiff-petitioners have filed the present suit before the Court of Civil Judge Class I, Bhopal based on their title and seeking permanent injunction against the defendant-respondents Nos. 3 and 4 for protecting their possession over the property and restraining the defendant-respondents from raising any construction thereon. According to the plaintiffs, the suit property was purchased by them under registered deed of sale dated 12-11-1948 from one Sikandar Mohammad Khan. Sikandar Mohammad Khan had acquired title under an Inayatnama (gift deed) dated 17-3-1947 executed by late Nawab Hanidullah Khan, the then ruler of Bhopal State.
3. The plaintiffs had also sought for an ad interim injunction protecting their possession over the suit land and restraining the defendant-respondents from raising any construction thereon.
4. The suit and the application under Order 39, Rules 1 and 2, Civil Procedure Code filed by the plaintiffs were contested by the defendant-respondents submitting that the suit land formed part of survey No. 90/1 area 1.40 acres of Dharampuri village which was given to the Capital Project Authority by the State Government and the defendants were constructing VI.P. guest house thereon.
5. The trial Court by its order dated 5-7-1989 rejected the application for grant of ad interim injunction as it was convinced that the plaintiffs had no prima facie case, the balance of convenience did not lie in their favour and they were the defendants and not the plaintiffs who would suffer irreparable injury by the interlocutory relief if allowed to the plaintiffs. The plaintiffs preferred an appeal to the District Court which was registered as Misc. Civil Appeal No. 54/89 and decided by the order dated 24-7-1989 (Annexure P/2). The appeal was allowed, followed by an order of remand. Vide para 13 of its order, the learned District Judge expressed an opinion that the matter in controversy could not have been satisfactorily decided unless and until there was a demarcation conducted and demarcation report brought on record so as to fix the identity of the suit land by reference to the survey number. The Court observed :
"It was, therefore, necessary to get it demarcated in the presence of the appellants according to Section 129 of the M.P.L.R. Code. How, without demarcation, one can confirmly say that the respondent No. 2 was placed in the possession of land bearing Khasra No. 90/1 area 1.48 acre only and not on the appellants plots which are parts of Khasra No. 21/3 ? How, without demarcation, one can say that the suit land is the one allotted to the respondent No. 2 ?"
How the appeal was disposed of, it would be useful to reproduce and read from the operative part of the order :
"Accordingly, the appeal preferred by the appellants is allowed. The impugned order dated 5-7-1989 is set aside. The respondents are directed to maintain status quo in respect of all the work in progress at the site towards construction of State Guest House and to apply for demarcation of land before the authority competent to do so. On receipt of the demarcation report, the lower Court may be approached by the parties for appropriate order in that light."
By way of abundant caution, it may be stated here itself that the appellate Court has not recorded any finding of its own touching the merits of the case as might thereafter have bound the trial Court.
6. On the matter being set at large before the trial Court, two important events happened which may now be noticed as they form the core of controversy arising for decision in this petition. On 29-8-1989, the defendants moved an application (Annexure R/10) under Order 26, Rule 9, Civil Procedure Code inviting attention of the trial Court to the observations made by the District Court and seeking demarcation of the suit land so as to determine whether it constituted part of survey No. 90/1 or of 21/3. The trial Court directed the commission to be issued. On 6-9-1989, the defendants moved yet another application (Annexure P/3) styled as one under Order 39, Rule 4, Civil Procedure Code. It was stated in the application that the plaintiffs had based their case on the Inayatnama (gift deed) dated 17-3-1947 following by deed of sale dated 12-11-1948 vesting title in them, but on a search and inspection made of the records of the Registrar of Deeds, Bhopal, it was found that the Inayatnama and the sale-deed were both fabricated documents as they were never executed and registered in the manner alleged in the plaint. Inasmuch as these facts were not in the knowledge of the defendants when the order of injunction was passed earlier, they prayed that the Court be pleased to take into consideration these facts supported by the documents which they were now placing on record and set aside the interim order maintaining status quo passed by the appellate Court as it was causing serious and irreparable every day prejudice to the defendants. This application remained pending for consideration and in between the Commissioner appointed by the Court executed the commission and submitted its report dated 1-11-1989 (Annexure R/12), the conclusions of which report were against the plaintiffs and supported the defendants' plea that the land on which the defendants were raising construction had belonged to the State Government handed over to the defendants for the project.
7. After hearing the parties afresh, on 4-1-1990, the trial Court disposed of the matter as to the grant of ad interim injunction by passing an order afresh (Annexure P/5). The opening sentence of the order states the application under Order 39, Rule 4, Civil Procedure Code being disposed of by that order. The closing part speaks the interim order, directing status quo to be maintained, being vacated by that order in view of the subsequent changed circumstances. I may hasten to observe that it is the phraseology used by the trial Court which has really given rise to this serious controversy with which this Court is now seized. One need remind oneself of the well settled position of law that what has to be determined is the real jurisdiction exercised by the Court without regard to the label affixed.
8. The plaintiffs preferred an appeal to the District Court against the order of the trial Court dated 4-1-1990. Vide order dated 24-1-1990 (Annexure P/6), the appeal filed by the plaintiffs has been dismissed. On 29-1-1990, the plaintiffs have preferred this petition under Article 227 of the Constitution of India. Their grievances are mainly two : Firstly that on the facts stated in the application dated 6-9-1989 (Annexure P/3), the trial Court could not have exercised jurisdiction under Order 39, Rule 4, Civil Procedure Code, and secondly, that the order to maintain status quo having been passed by the appellate Court, it was the appellate Court alone and not the trial Court which was competent to entertain the application under Order 39, Rule 4, Civil Procedure Code.
9. Earlier, when the matter was heard by the Division Bench, B. C. Varma, J. was of the opinion that the order of the appellate Court direeting status quo to be maintained was certainly an order granting temporary injunction and when the application under Order 39, Rule 4, Civil Procedure Code was moved, an application for issuance of commission was not even made that is why it would be deemed that the trial Court had varied the order of the appellate Court in exercise of power conferred by Order 39, Rule 4, Civil Procedure Code. The documents relied on by the plaintiffs which were subsequently alleged by the defendants as forged and fabricated were considered by the Court while passing the earlier order and hence the prayer made by the defendants was incapable of being entertained under Order 39, Rule 4, Civil Procedure Code. According to him, the petition deserved to be allowed quashing the orders of the trial Court and appellate Court (Annexures P/5 and P/6) and rejecting the application under Order 39, Rule 4, Civil Procedure Code filed by the defendants. K. M. Agrawal, J. was of the opinion that the injunction passed by the appellate Court was passed for the suit and not for any appeal and hence the trial Court was not powerless to entertain the application under Order 39, Rule 4, Civil Procedure Code. He also held that discovery of such facts, as of which the defendants were not aware earlier, provided a ground for exercise of jurisdiction under Order 39, Rule 4, Civil Procedure Code. In addition, there was the report of the Commissioner. On such material available, the trial Court was competent to exercise jurisdiction under Order 39, Rule 4, Civil Procedure Code and hence its order dismissing the plaintiffs' application under Order 39, Rules 1 and 2, Civil Procedure Code and discharging the ad interim injunction maintaining status quo could not be found fault with.
10. Order 39, Rule 4, Civil Procedure Code provides as under :
"ORDER XXXIX - TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS.
...... ...... ......
R. 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 an 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 on the application of that 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."
The opening part of Rule 4 uses the terms - "discharged, varied or set aside" which cover all possible eventualities in which an order of injunction originally issued may be tampered with. What is enacted by Second Proviso is nothing but a reflection of the principles of res judicata/constructive res judicata and issue estoppel. In the leading case of Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, their Lordships of the Supreme Court have said :
"Though Section 11 of the Civil Procedure Code clearly contemplates the existence of two suits and the findings in the first being res judicata in the later suit, it is well established that the principle underlying it is equally applicable to the case of decisions rendered at successive stages of the same suit or proceeding."
xxxxxx xxxxxx xxxxxx "Interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court."
xxxx xxxx xxxx "But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages so as to preclude its being reconsidered. Even if the rule of res judicata does not apply, it would not follow that on every subsequent day on which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the Court does not however necessarily rest on the principle of res judicata."
Second Proviso to Rule 4 of Order 39, Civil Procedure Code appears to have been enacted by way of abundant caution. Even if this provision would not have been there, the Court would not have been justified in tampering with or taking up for reconsideration the orders of injunction passed once after affording opportunity of hearing to both the parties merely because another application was filed unless and until there were new facts or new situations emerging subsequently. For all practical purposes, there is no difference between the phraseology used by their Lordships in Arjun Singh's case (supra) - "on proof of new facts or new situations- which subsequently emerged" and the phraseology used in second Proviso to Rule 4 - "necessitated by a change in the circumstances or on satisfaction that the order was causing undue hardship to a party."
11. Whenever a prayer is made under Order 39, Rule 4, Civil Procedure Code, the Court has to pose itself with a question - whether there is a, change in the circumstances or whether the order of the Court is causing undue hardship to a party ? The later part of the question, needless to say, would involve consideration of only such factors causing undue hardship as have come in existence after the passing of the order of the Court or which factors would be a consequence of the order of the Court itself. So is the case with the change in the circumstances. Exercising its jurisdiction under Rule 4 abovesaid, the Court may with advantage draw upon the principles revolving around Explanation IV to Section 11 of the Civil Procedure Code and ask itself whether the pleas raised in the application under Rule 4 might and ought to have been raised prior to the passing of the order ? If the answer be 'yes', the Court may reject the application. If the answer be in the negative, the Court may very well entertain the application and dispose of the same on merits.
12. The abovesaid view finds accordance with the view taken by this Court in Sitaram Madan v. Rajkunwarbai, 1959 MPLJ 532, wherein it was held :
"Order 39, Rule 4 of the Code of Civil Procedure can be invoked only when an urgent order ex parte has been passed under Rule 3, or when an injunction already in force has owing to fresh circumstances become inappropriate. When however, by his own laches, the party against whom an order of injunction is made, after notice to him, has omitted to file his reply to the application for temporary injunction at the original hearing, he cannot later on move the Court under Rule 4 and have the matter reopened and reheard on material which was available to him and could have been urged at the original hearing."
The decision of the Madras High Court in Govind Ramanui v. Vijiaramaraju, AIR 1929 Mad. 803 was relied on holding :
"Rule 4 is not intended to set at naught the ordinary cursus curiae that, once a Court has decided a matter after giving each side an opportunity of being heard, its order is final and binding on itself as much as on the parties, and cannot be reopened except on the presentation of some new matter not available when the original order was passed."
13. Applying the abovesaid test to the facts of the case at hand, the trial Court was justified in exercising its jurisdiction under Order 39, Rule 4, Civil Procedure Code if it was satisfied that by exercise of due diligence, the defendants could not have detected the falsity and fabrication of documents of title relied on by the plaintiffs. If the documents put forth by the plaintiffs were registered documents on their face, and also appearing to be old documents, ordinarily, the suspicion of the defendants would not have been aroused so as to put them on enquiry and persuade them embarking upon an in-depth scrutiny or investigation of the documents before filing reply to the application under Order 39, Rules 1 and 2 of the Civil Procedure Code which in its very nature requires a summary and expeditious hearing, more so when the stage had not yet arrived for recording evidence and also where the defendants were the State and its Officer having impersonal interest in litigation. Falsity and fabrication of plaintiffs' documents of title, having been detected after the passing of the order, can in appropriate cases amount to 'a change in the circumstances' attracting the jurisdiction of the Court under Rule 4 abovesaid.
14. When the appellate court passes an order of injunction while finally disposing of the appeal before it, the order stands substituted in place of the order of the trial Court. The order is passed not for the purpose of appeal, nor to remain operative during the hearing of the appeal; it is an order passed for the purpose of the suit and to terminate with the decision of the suit. An application under Order 39, Rule 4, Civil Procedure Code can appropriately be dealt with by the trial Court though the order of injunction sought to be discharged, varied or set aside be one passed by the appellate Court.
15. There is yet another angle of approaching at the problem posed. The operative part of appellate order dated 24-7-1989 clearly indicates the order of the trial Court having been set aside. In view of the order of remand, the matter was to be heard and decided afresh by the trial Court. The order directing maintenance of status quo passed by the appellate Court was an interregnum merely referable to inherent power of the Court under Section 151, Civil Procedure Code so as to see that the power of the Court to dispose of finally the application under Order 39, Rules 1 and 2, Civil Procedure Code was not frustrated. If status quo in respect of the work in progress at the suit site would not have been directed to be maintained and if the construction work would have stood completed by the time occasion arose for deciding the application for injunction finally, what would have remained to be decided ? The Court has an inherent power to make such orders, is a principle deducible and supportable from the law laid down by their Lordships of the Supreme Court in Manoharlal v. Hiralal, AIR 1962 SC 527. The fact remains that the order dated 24-9-1989 of the appellate Court was an order of remand. It has already been said hereinabove that the appellate Court had not decided by expressing any opinion on merits on any point of controversy even at that stage so as to pre-empt the jurisdiction of the trial Court deciding application for the grant of injunction on merits and on all points arising for decision. An order of remand implies a reversal of the decision of the lower Court and reopens the whole case for determination afresh except in regard to matters decided by the order of remand. The Judge in lower Court can come to conclusions different from those arrived at by himself or his predecessor previously in respect of matters not touched by order of remand. [See : Kaluram and Anr. v. Mehtab Bai and Anr., 1958 MPLJ 704 = AIR 1959 MP 181 and Ramgulzarilal v. Bhanuprasad, 1941 NLJ 117 = AIR 1941 Nag. 188]. Inasmuch as the trial Court was directed to Consider and decide the matter as to grant of ad interim injunction afresh, of course subject to receipt of the demarcation report as directed by the appellate Court, really speaking, there was no occasion for moving an application under Order 39, Rule 4 of the Civil Procedure Code. Even without that application it was open to the defendant-respondents to have demonstrated before the trial Court the falsity or fabrication of the documents of title put forth by the plaintiffs because that was not a point decided by the appellate Court. The confusion was created because of the defendants having styled their application dated 6-9-1989 as one under Order 39, Rule 4, Civil Procedure Code and the confusion was worst confounded when the trial Court also framed its order dated 4-1-1990 (Annexure P/5) as if it was an order under Order 39, Rule 4, Civil Procedure Code. If that label is removed, the order dated 4-1-1990 would show its real face of its being an order finally disposing of an application under Order 39, Rules 1 and 2, Civil Procedure Code pure and simple. Complete reading of the order dated 24-7-1989 demonstrated the inability felt by the learned District Judge in deciding the matter as to grant of injunction finally in the absence of demarcation and hence without expressing any final opinion on any points of controversy or on any of the three principles for grant of injunction had postponed by making over the task of final adjudication to the trial Court to be done on receipt of results of demarcation.
16. For the foregoing reasons, I am of the opinion that B. C. Varma, J. was not right in the opinion which he formed and expressed in his order. I agree with the view taken by K. M. Agrawal, J. in his order though for reasons little at variance with the reasons assigned by him and hold the petition under Article 227 of the Constitution filed by the petitioners liable to be dismissed. However, I would like to make it clear that I have not expressed agreement with the view expressed by K. M. Agrawal, J. in para 14 of his order for prosecution of plaintiffs under Sections 193, 196, Indian Penal Code. The opinion expressed by him should have been better left to be formed by the trial Judge at an appropriate stage.
17. Let the matter be now placed before the Division Bench.