Orissa High Court
Prasanna Kumar Singh vs Golak Chandra Madhual And Anr. on 31 July, 1995
Equivalent citations: 1995(II)OLR394
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. An interesting point relating to scope and ambit of Sub-section (3) of Section 6 of the Specific Relief Act, 1963 (in short, 'the Act') is the subject-matter of adjudication in this revision application.
2. A brief reference to the factual aspects as presented by the petitioner, would suffice.
Petitioner as plaintiff filed a suit under Section 6 of the Act in the Court of Subordinate Judge, Balasore (presently designated as Civil Judge, Senior Division) for a decree for recovery of possession of the suit property, mandatory injunction and other consequential reliefs. Plaintiff's case was that he was inducted as a tenant in respect of the suit property in the year 1977. After his induction he had developed the land, got electric power supply to the premises and started a motor repairing garage. The defendants with mala fide intention stopped granting receipts for which the rent due was sent by money orders. On 3-5-1993, the defendants with the help of hired goondas demolished the structures and boundary wall constructed by the plaintiff, drove him out of the suit premises and threw away his belongings. In the suit, an application was filed by the plaintiff under Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908 (in short, 'the Code') for injuncting the defendants (present respondents) from alienating the suit property and from raising any permanent structure on the suit plot. Defendants filed their objection to the prayer. It was admitted that the plaintiff was a tenant under them, but a plea was taken that the plaintiff had volunatrily vacated the suit premises on 1-3-1993 after demolishing the structures and removing the belongings.
3. The learned trial Judge rejected the prayer for injunction. An appeal was preferred before the learned District Judge which was numbered as Misc. Appeal No. 98 of 1993. When the appeal was taken up for consideration the defendants-respondents raised a preliminary objection about maintainability of the appeal with reference to Sub-section (3) of Section 6 of the Act. The plaintiff-apppellant took a stand that the appeal was maintainable, but took the stand that as a matter of abundant caution he had filed a petition stating inter alia that in case the appeal was held to be not maintainable, same may be converted to a revision. The learned District Judge held that the appeal was not maintainable and directed that the maintainability of the petition for revision shall be considered on its own merits.
4. According to Mr. A. Mukherji, learned counsel for petitioner, appeal is a creature of statute and the undisputed position being that an order disposing of an application under Order 39, Rules 1 and 2 of the Code can be dealt with in terms of Order 43, Rule 1 (r) thereof, the appeal should have been held to be maintainable. The expression 'order' as appearing in Sub-section (3) of Section 6 of the Act cannot be given a restricted meaning to frustrate the intention of Legislature to provide remedy and too technical view should not have been taken. With reference to certain observations of the apex Court in Collector, Land Acquisition, Anantnag arid another v. Mst. Katili and Ors., AIR 1987 SC 1353, it was submitted that where substantial justice and technicalities are pitted against each other, the former has to prevail. It is, further urged that the expression 'order' would only engulf those decisions which are in relation to the suit itself and not outside the scope thereof. Mr. H.M. Dhal, learned counsel for respondents, on the ether hand, submitted that the language of the act being clear and the legislative intention being in keeping out any order passed under Section 6 out of the umbrella of appeal, the learned District Judge was justified in his conclusion.
5. For resolution of the controversy it is necessary to take a bird's eye view of the provision itself which reads as follows :
"6. Suit by person dispossessed of immovable property-- (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this Section shall be brought-
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall, any review of any such order or decree, be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."
The provision contained in Sub-section (3) is absolute in terms. It rules out any appeal from any order or decree passed in a suit instituted under Section 6 of the Act and also rules out any review of any such order or decree. The question arises as to why such remedy has been denied.
6. The object of enactment of the Act is to protect possession. Several grounds have been suggested for this, e.g., (i) to discourage people from taking law into their own hands, however, good their title may be, and thereby deriving any benefit; (ii) to put an additional restraint upon illegal dispossession, by depriving the dispossessor of the privilege of proving a better title to the property in dispute; and (iii) to prevent the shifting of the burden of proof by illegal dispossession. The object is, further to provide a special summary and speedy remedy for recovery of possession without establishing title, to person who being whatever his title, in possession of immovable property, is illegally ousted therefrom without his will and consent otherwise than in the due course of law. The plain object is to discourage proceedings calculated to lead to serious breaches of peace and to provide against the person, who has taken the law into his own hands, deriving any benefit from the process. The Legislature has considered it advisable to do away with the opportunity, to powerful persons, of shifting, by a wrongful act, the burden of proof from their shoulders be those of persons less able to support it. The Court does not try question of title. It simply determines three questions of fact, namely, (a) who was formerly in possession and (b) whether he was dispossessed within six months from the date of the institution of the suit; and (c) whether he was dispossessed without his consent otherwise than in accordance with law. Section 6 affirms an important principle of substantive law. Disputed rights are to be decided by due process of law and not otherwise, and existing peaceable possession will be protected against disturbance without regard to the question of its origin. The only way to do this with effect is to restore the dispossessed holder, without prejudice to the ultimate rights of any adverse claimants, including the dispossessor himself. It provides a summary and speedy remedy through a medium of the Civil Court for the restoration of possession to a party dispossessed by another, leaving them to fight out the question of their respective titles if they are so advised. The remedy, independent' of the Act, of a suit founded on a claim of possessory title is not excluded.
7. The question involved in the present case is whether the order refusing to accept the prayer in terms of Order 39, Rules 1 and 2, of the Code is encompassed by the expression 'order' appearing in Sub-section (3) of Section 6. The terms, "judgment', 'decree', 'decision', and 'order' are more or less cognate as applied in general proceedings and closely allied in meaning. The term 'order' is not infrequently used in a more restricted sense than the word 'judgment'. The expression 'order' as has been defined in the Code in Section 2(14) reads as follows :
"(14) 'order' means the formal expression of any decision of a Civil Court which is not a decree ;'' It is generally understood to be a command, direction or decision of the Court or Judge on some intermediate point or issue in the case, but without finally disposing of the main issue or issues in the cause. Then it is merely interlocutory. But the term is sometimes given a more extensive signification, even in legal controversies, and is occasionally used as a synonym of judgment or decree. In the practice of Courts the term 'order' means a decision made during the progress of the case, either prior or subsequent to final judgment, settling some point of practice, of some question collateral to the main issue presented by the pleadings; and necessary to be disposed of before such issue can be tried in the Court, or necessary to be determined in carrying into execution the final judgment. Anderson's "Law Dictionary" defines it to be any direction of a Court, other than a judgment or decree, made in a cause. According to barill it is any direction in writing, granted by a Court or Judge, regulating or authorising some act to be done, it means in terms of Section 2(14) of the Code the formal expression of any decision of a Civil Court which is not a decree. Every direction of a Court or Judge made or entered in writing, and not included in a judgment or decree, is denominated an order. The word 'order' has been given a special meaning in order to distinguish it from a decree under the Code. 'Order' as a case can be said to be equivalent to or synonymous with decision. It is not a term or act. It has no fixed legal meaning, but generally is termed to be comprehensive enough to include every decision or order made under any statute.
8. As indicated above, the prohibition of an appeal against any order or decree in the suit is absolute. There can be no quarrel over the proposition that the order to which the prohibition applies must have nexus with the subject-matter of dispute. In the case at hand, undisputedly the decision which was assailed in appeal was passed in adjudicating an application in terms of Order 39, Rules 1 and 2 of the Code. Whether the order is wrong or not, not is the question. What is relevant and what has to be considered is whether it is an order passed in the suit instituted under Section 6 of the Act. The plain, simple and emphatic answer to the question is yes. However, the situation may be different where an order or decree is passed in a suit under Section 6, which has additional directions or prohibitions for example, a decree for possession and damages. Obviously the decree does not have only nexus with the suit itself, which has restricted operation in term of Section 6. In such case the whole decree may be applied against. But that is not the case here. The dispute relates to correctness of the order passed in respect of the application under Order 39, Rules 1 and 2 of the Code. The inevitable conclusion, therefore, is that the appeal was not maintainable and it has been rightly held to be so by the learned District Judge.
The revision application fails, and is dismissed. But in the circumstances without any order as to costs.