Abdul Ghani Daga vs Mahant Ram Saran and others

(1) This application which seeks revision of an order dated November 14, 1974, of the City Judge Srinagar, refusing to stay the execution of the

decree dated April 5, 1974, passed by the sub Judge (CJM) Srinagar, arises in the following circumstances :

(2) Mahant Ram Saran Das, respondent No. 1 herein and a few others, trustees of the Asthanpan Sri Chander Chinar, Kothi Bagb, Residency

Road, Srinagar, brought a suit on March 19, 1959, in the court of the SubJudge (CJM), Srinagar. for ejectment of Abdul Gbani Farash,

respondent No. 2 herein, and Abdul Gaffar Khan son of Ahmad Khan resident of Ikhraj Pura, Lalmandi, Srinagar, and of Mohd Sidiq Soofi betel

vendor, Residency Road, Srinagar, from an area measuring 915 sq. ft. situate in Kothi Bagh, Residency Road, Srinagar, and for recovery of Rs.

105/ on account of rent and Rs. 110/ by way of damages for use and occupation of the said property and for a declaration to the effect that the

Malba lying thereon belongs to the Asthanpan and the defendants had no right to interfere with the same as also for an injunction restraining the

defendants from raising any new construction on the suit property.

(3) The case of the said plaintiffs was that the defendants namely Abdul Ghani Farash (respondent No. 2 herein) and Abdul Ghaffar Khan took on

lease the aforesaid area belonging to the Asthapan vide lease deed dared Poh 10, 2009 (Satnvat), with effect from Magh 17 2009 (Samvat) on a

rental of Rs. 50/' per mensem, that the lease was to ensure up to the end of Poh 2015 (Samvat), i. e. Jan. IS 959 that Abdul Ghani Farasb and

Abdul Gaffar Khan had by means of the aforesaid deed undertaken not to sub 1st the area during the continuance of the lease and to restore the

property on the expiry of the aforesaid period of lease in the same condition in which it was taken by them and to remove the structure, if any,

raised by them on the aforesaid area during the aforesaid period of lease, that in violation of the terms of lease deed' Abdul Ghani Fara and Abdul

Ghaffar Khan sublet a qart of the demised area in favour of Mohd Sidiq Soofi and since the defendants had not restored possession of the area

after removing the Malba lying thereon and demolishing a part of the structure raised by them which still stood on the area and which according to

the terms of the lease deed had become the property of the Asthapan, hence the suit.

(4) On August 1, 1967, Mohammad Sidiq Soofi made an application to the Sub Judge (CJM) acknowledging therein that Abdul Gbani Farash

had, out of the demised property, sub let to him an area measuring 71/2 X 8 in the form of a shop and seeking permission to enter into a direct

compromise with the plaintiffs in respect of the property in his possession, and further praying that his name be deleted from the array of the

defendants. The suit was, after a protracted trial extending over ten years decreed in favour of the trustees vide his judgement and decree by the

Sub judge (C J. M) Srinagar. dated March 31. 1969. On appeal by Abdul Ghani Farash and Abdul Ghaffar Khan the learned District Judge,

Srinagar, vide his judgement dated March 12, 1970, set aside the aforesaid judgement and decree of the Sub judge (C J M) on the technical

ground that it had been rendered without hearing the arguments and remanded the case to the trial court for a fresh decision in accordance with law

after disposing of the application for amendment of the plaint filed by the said plaintiffs. After remand negotiations commenced between the parties

for compromise of the suit. Before the disposal, however, of the said suit Mohemmad Sidiq Soofi died whereupon his legal representatives were

brought on the record. On April 5,1974, the Sub judge (C J m) decreed the suit in favour of the said plaintiffs on the basis of the compromise

dated March 27, 1974, arrived at between the said plaintiffs on the one part and Abdul Gbani Farash and Abdul Gbaffar (Chan on the other. In

the course of the judgement given by him on the basis of the aforesaid compromise the Sub judge observed that the decree would be ex parte

against the legal representatives of Mohammed Sidiq Soofi.

(5) On May 21, 1974, respondent No. 1 herein cook out execution of the aforesaid compromise decree whereupon a warrant for delivery of the

property covered by the decree was issued by the Sub Judge (C J M). During the course of the execution of the warrant by the plaintiff,

HabibuIIah Dagga, son of the petitioner herein, who was found in possession of the shop run under the name and style of 'Soofi Pan House'

offered resistance, and openly declared that be would not allow execution of the warrant to take place as his father, who had no connection with

the judgement debtors, had been in possession of the shop for the last 26 years whereupon the bailiff reported the matter to the execution court

and sought its instructions as to whether Habib Ullah Dagga had to be ejected from the property or not and also requested that the aid of the

police be made available to him for execution of the warrant. Alongwith his report the Bailiff also forwarded to the Executing court the written

objections dated July 26, 1974, handed over to him by the petitioner herein in which he, inter alia, averred that the property belonged to him and

he was not bound by the aforesaid decree to which he was not a party and that he had already filed a suit for declaration of his title to the property

covered by the aforesaid decree in the court of the City Judge who had also issued an order for maintenance of status quo in regard to the 'Soofi

Pan House/

(6) On July 27, 1974, the petitioner filed an application before the Sub Judge (C J M) Srinagar objecting to the execution of the said decree on the

same grounds as were raised by him in the written note handed by him to the Bailiff on July 26,1974. After inviting objection from respondent No.

I herein, the Sub Judge (C I M) dismissed this application on August 27, 1974, holding that the same was not maintainable and that the objector

could only move an application under O 21 R 100 of the Civil P. C. after"" his dispossession. Aggrieved by this order the petitioner came up in

revision to this court but remained unsuccessful as the revision application was dismissed by the erstwhile Chief Justice vide order dated October,

31, 1974, on the ground that the interim injunction had already been issued in the civil suit instituted by the petitioner in the court of the City Judge,

Srinagar.

(7) As already indicated the petitioner herebrought a suit in the court of the City Judge, Srinagar, against respondents herein on June 26, 1974, for

a declaration to effect that he was owner in possession of the property covered by the aforesaid decree passed by the Sub Judge (C J M) which

was ineffectual and not binding on him as it had been obtained by collusion between respondents Nos. 1 and 2 herein and he was not a party to

the same and for an injunction restraining the respondents herein from interfering with his rights and from altering the condition of the property.

Along with his petition of plaint, the petitioner also made an application for issue of temporary injunction restraining the respondents hearing from

interfering with his possession of the property whereupon the City Judge, Srinagar, by an ex parte order directed the respondents to maintain the

status quo. Denying that the property belonged to the petitioner or was in his possession and that the property had also been leased out by him to

respondents 3 and 4 after it was relinquished by Abdul Ghani Farash and Abdul Nhaffar Khan, respondents No. 1, herein filed objections on June

19, 1974, to the aforesaid ex parte order made by the City Judge Srinagar, directing maintenance of the status quo. Thereupon the City Judge

issued a commission for making a local inspection of the spot and reporting as to which of the parties was in possession of the property in question.

With a view to ascertain the true position, the City Judge also inspected the spot himself and after hearing the learned counsel for the parties, made

an order on July 9, 1974. vacating his earlier exparte order directing maintenance of the status quo observing therein that the petitioner's case that

be was in possession of the entire suit property was not borne out from the record or from the spot inspection, that Abdul Ghani Farash and others

had executed a relinquishment deed in favour of respondent No. 1 herein which showed that possession of the suit property had been handed over

to Mahant Ram Saran, respondent No. 1 herein, who had in turn leased out the main shop, which was the subject matter of dispute, to Rajindra

Kumar, respondent No. 4 herein who had effected substantial improvements therein, and that the counsel for respondent No. 1 had offered to give

an undertaking that in case the petitioner eventually succeeded in his suit, his client would not at all claim the cost of the renovation and

improvement of the building.

(8) The petitioner did not remain content with this order and on November 1. 1974, made an other application to the City Judge, Srinagar,

reiterating his earlier stand and praying that the aforesaid decree passed by the Sub Judge be stayed as he carried on business in 'Soofi Fan House'

and in case he was dispossessed therefrom, he and his family would be put to a great hardship and loss. This application was also after hot contest

dismissed by the City Judge vide his order dated November 14, 1974, observing that although the principles of resjudicata could not be invoked

by respondent No. 1, the second application made by the petitioner herein on the same facts as were put forth by him in his previous application

for issue of temporary injunction was not maintainable, that the grant of the prayer of the petitioner would tantamount to issue of injunction

restraining the respondents from executing the decree obtained by them which did not constitute an injury within the meaning of O, 39 R. 1 of the

Civil P. C. and no injunction could be issued to a court of coordinate jurisdiction in view of the provisions of S 56 (b) of the Specific Relief Act.

The learned City Judge further held that the order sought for could not be issued under S. 151 of the Civil P. C. as the petitioner had failed to

make out a Prima facie case, as the issue of the order would result in overriding and by passing the express provisions of the law contained in S.

56 (b) of the Specific Relief Act, and as the petitioner was not in possession of the entire property and respondent No. 4 had acquired possession

of the main shop and respondent No 1 had already given an undertaking that he would not in the event of the petitioner's success claim cost of the

improvement or of renovation thereof. It is against this order that the present revision is directed.

(9) I have heard the learned counsel for the parties. Mr. Sham Lal. learned counsel for the petitioner, has urged that the learned City Judge has

erred in not passing the order sought for by his client which was warranted by the facts and circumstances of the case and the law bearing thereon.

(10) The provisions regarding the issue of injunction are contained in S. 94 (c) and Rr. 1 and 2 of O. 39 of the Code of Civil Procedure

(hereinafter referred to as the Code), and S. 56 of the Specific Relief Act. S 94 (c) of the Code authorizes a court to grant temporary injunctions in

the manner prescribed by the Code itself to prevent the ends of justice being defeated O. 39 of the Code prescribes the rules governing the issue

of temporary injunctions to restrain individuals to proceed in a particular manner and not to restrain a court from continuing a proceeding pending

before it. R, I of O. 39, inter alia, empower a court to issue a temporary injunction to a party to a suit with a view to prevent him from wasting

damaging or alienating the property in dispute. R. 2 O. 39 authorizes a court to issue temporary injunctions to restrain the defendant from

committing any kind of injury to the property which is the subject matter of dispute.

(11) In the instant case there can be no question of the property in dispute being wasted, damaged or alienated by the respondents.

(12) Let us see whether the delivery of immovable property to a decree holder in execution of a decree obtained by him can be said to amount to

an injury within the meaning of SubR. (1) of R. 2 of O. 39 of the Code Some High Courts seem to be of the view that a court has jurisdiction to

grant a temporary injunction only under O. 39 Rr. 1 and 2 and since the execution of a decree which is an exercise of a valid legal right cannot

constitute commission of an injury within the meaning of Sub. R. (l)of Rule 2 of O 39 of the Code, no injunction can be granted to restrain a decree

holder from executing the decree, obtained by him (See AIR 1961 J & K 29, AIR 1956 Madhya Bharat 75, AIR 19S7 Madhya Bharat 95, AIR

1949 Madras 104 and AIR 1973 Madras 258).

(13) In Abdul Rahim Vs. Safarmal, 1964 MP L J (SN) 14 also it was held that no injunction can be granted under O 39 Rules 1 and 2 to restrain

a decree holder from executing a decree in his favour so long as the decree stands.

(14) A contrary view has recently been taken by the Madya Pradesh High Court in Surendrasingh V. Lal Sheoraj, AIR 1975 M.P. 85 wherein it

has been held that if an injury is construed in the sense of harm or damage to the right of a person or property, a decree which prima facie appears

to be illegal or void can be construed as causing injury to him; and that a court is competent to issue an injunction under O. 39 R. 2 to a decree

holder restraining him from executing the decree, if the word 'injury' is liberally construed.

(15) In some cases a distinction has been drawn between a case where an injunction is sought by a judgement debtor and one where an injunction

is sought by a third party. Acting on this distinction it was held in Mohd, Feroz Khan V. Mulla Mumtaz, 1963 MP L. J. (SN) 24 that an injunction

at the instance of a third party can be granted in order to maintain the status quo. This view was followed in 1967 M. P L. J. (SN) 111 wherein it

was held that where a person is not bound by an earlier decree or order of a court or Tribunal, injunction may be granted, but if a person is a party

to the decree or order he should not be granted an injunction restraining the other party from executing it even though the earlier order may be a

summary order.

(16) Drawing another distinction, namely, a distinction between a decree of a regular civil court which on the face of it is final and conclusive and

one which is subject to decision in a regular suit, it was held in Ram Singh Vs. Hardayal Singh, 1972 Juh L. J. 104 that where a decree it of a

revenue court or of a civil court in proceeding of a summary nature which is subject to the decision of a civil court in a regular suit, a temporary

injunction may be granted if the other conditions justifying the grant of injunction are fulfilled.

(17) Again in Ram Prashad V. Sh Khurshid Jahan, 1956 MP L. J. (SN) 14 a single judge of the Madbya Pradesh High Court held that a

temporary injunction can be granted against the decree holder on the ground that the decree is not binding on the plaintiff, if a prima facie case is

made out.

(18) After a careful study of the aforesaid decisions. I am however inclined to follow the view expressed by Nair J. of this court in AIR 1961 J &

K 29 (Supra) which receives ample support from the decision reported in AIR 1956 Madhya Bharat 75, AIR 1957 Madhya Bharat 95, AIR

1949 Madras 104 and AIR 197.4 Madras 258 (Supra), that the execution of a decree being in exercise of a legal right cannot constitute an injury

within the meaning of SubR (1) of R. 2 of O. 39 of the Code.

(19) Let me now examine the provisions of S. 56 of Specific Relief Act and see if a temporary injunction can be issued under it. It would be noted

that this section occurs in the chapter relating to 'perpetual injunctions, and has no application to temporary injunctions which are by the express

words of S. 53 of the Act left to be governed and regulated by O. 39 of the Code. I am fortified in this view by three decisions reported in AIR

1923 Lahore 144 (2), Madhya Bharat L. J. 1954 H. C R. 42 (*3) and AIR 1925 Cal. 233.

(20) It has also to be borne in mind that S. 56 (a) lays down that no injunction can be granted to stay a judicial proceeding pending at the time of

institution of a suit by which an injunction is sought unless such restraint is necessary to prevent multiplicity of proceedings S. 57 (b) also does not

authorize a court to issue an injunction to a court not subordinate to it, i, e. a court is prohibited from issuing an injunction to a court of coordinate

jurisdiction. (See ILR 2 Cal. 190 (216) and AIR 19M Papsu 78).

(21) The facts and circumstances of the instant case did not render it necessary to restrain respondent No I from executing the aforesaid decree.

The court of the Sub Judge (CJM) Srinagar is also not in any way subordinate to the court of the City judge, Srinagar. Both the court are of

concurrent jurisdiction.

(22) Thus in view of the above noted authorities and the facts and circumstances of the case, I am clearly of the view that the order sought for by

the petitioner could not be passed either under O. 39 of the Code or under S 56 of the Specific Relief Act and the learned City Judge was right in

expressing his inability to come to his relief.

(23) Let me now advert to S. 151 of the Code on which strong reliance has been placed by the learned counsel for the petitioner. It seems to me

that though injunction cannot be granted under O. 39 Rs. 1 and 2 of the Code or under S. 56 of the Specific Relief Act, it can in view of the

decisions reported in AIR 1955 Andh. Pradesh 4 and A. I. R. 1950 Madras 219 which receive support from a decision of the Supreme Court

reported in AIR 1962 S C 527 be granted under S. 151 of the Code in the ends of justice or to prevent an abuse of the process of the Court. If,

however, appears from para 27 of the judgement of the Supreme Court reported in A. I R. 1962 S C. 527 (Supra) that inherent power can be

exercised only in exceptional cases.

(24) The principle is also well settled that before an order in exercise of inherent power is passed, the court roust be satisfied 1 that the applicant

has a prima facie case in his favour, 2) that irreparable injury would be caused to the applicant if the order sought for by him is not granted during

the pendency of the legal proceedings, or 3) that the balance of convenience lies in favour of the applicant. But it appears from a perusal of the

decision in Surinder Singh V. Lal Sheoraj, AIR J975 M. P. 85 (Supra) that since a party in whose favour a decree or order has been passed holds

his prima facie title to the property or the right which was the subject matter of the decree or the order, very strong evidence would be necessary

to rebut the presumption of prima facie title in favour of the decreeholder. The following observations made in that decision are very pertinent and

must be borne in mind while granting the relief to an applicant :

Decreeholder should not ordinarily be restrained from enjoying the fruits of the decree obtained by him after a successful litigation. Merely,

because a party chooses to file a suit challenging the decree or order on certain grounds, would not suffice to destroy the presumption in his favour

and a very heavy burden would lie on the applicant to produce strong and cogent prima facie evidence to satisfy the court that the grounds on

which the decree or order is challenged are fairly strong and that there is a reasonable possibility of the success of such suit.

(25) No exceptional case for the grant of relief sought for by the petitioner is made out in the present case and as rightly observed by the learned

City Judge, the petitioner has even failed to make out a prima facie case or to show that the balance of convenience lies in his favour.

(26) It cannot also be said that the petitioner who is admittedly the fatherinlaw of Mohd. Sidiq Soofi was unaware of the previous litigation which

lasted for ten long years and in the course of which the latter unequivocally admitted in the aforesaid application filed by him on August 1, 1967,

that an area of 71/2 x 8' had been sublet to him by the original lessees namely Abdul Ghani Farash and Abdul Ghaffar Khan.

(27) As held in a decision of the Madhya Pradesh High Court in AIR 1563 MP 209, where a decree is passed by a court of competent

jurisdiction in favour of a party, the principles of justice require that he should not be deprived of the fruits of the decree pending decision of the

independent suit relating to the same property which could but was not filed till the termination of the former litigation,

(28) It cannot also be ignored that no irreparable loss or injury is likely to be caused to the petitioner by the execution of the decree and even if an

injury may be caused to him, it is not such as cannot be easily compensated by damages. I am, therefore, of the view that it was not necessary in

the ends of justice or to prevent the abuse of the process of the court to pass an order sought for by the petitioner and the City Judge was perfectly

right in refusing the prayer of the former.

(29) In view of the decision of their Lordships of the Supreme Court reported in AIR 1964 S C 993, I find myself in complete agreement with the

observations of the learned City Judge that although the principle of res judicata may not be applicable to the findings contained in interim, or

interlocutory orders like stay, injunction or receiver; which are designed to preserve the status quo pending the litigation and to ensure that the

parties may not be prejudiced by the delay which the proceedings before the court usually entail, a second application for obtaining substantially

the same order or relief cannot He when a previous application on identical facts has been refused.

(30) The impugned order also does not seem to suffer from any defect of jurisdiction to justify interference with the same

(31) For the foregoing reasons, the revision application fails and is hereby dismissed.