Director of Health Services and Others vs Sevugaperumal

J.K. Biswas, J—The two petitioners in the CR under Article 227 of the Constitution of India dated January 15, 2015 are questioning an order of the Joint Civil Judge (Sr. D), Port Blair dated June 27, 2014 in the first opposite party''s MJ No. 4 of 2014. The Estate Officer, South Andaman, Port Blair passed an order dated December 8, 2010 against the first opposite party under s. 5(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

On December 31, 2010 the first opposite party filed a Title Suit No. 181 of 2010 in the Court of the Civil Judge (Sr. D), Port Blair. The suit was renumbered as Title Suit No. 22 of 2011. In para. 29 of the plaint the first opposite party said that in view of the eviction order dated December 8, 2010, his cause of action arising in 1977, when he had encroached upon the Government land (the suit property) and erected a residential house and a temple using the land, was continuing.

The first opposite party prayed for a decree for a declaration of his possessory right, title and interest in the encroached land and a decree for regularization of his encroachment and allotment of the land to him by the defendants in the suit.

In his pending suit the first opposite party filed an application under 0.39, Rr. (1) and (2) CPC for temporary injunction. During pendency of the temporary injunction application in which no interim order was passed, the Civil Judge dismissed the suit on December 31, 2013. On January 31, 2014 the first opposite party filed an application for restoration of the suit. The restoration application was registered as MJ No. 4 of 2014.

At once the first opposite party filed an application under s. 151 CPC seeking an interim order restraining the defendants in the dismissed suit from evicting him and the members of his family from the property. During the pendency of the application for restoration of suit, the Civil Judge passed the order dated June 27, 2014. The Judge restrained the defendants in the suit from disturbing the first opposite party''s enjoyment of the suit property till the disposal of MJ No. 4 of 2014.

The two petitioners in the CR were not among the defendants in the suit. The eviction order dated December 8, 2010 had been passed by the Estate Officer on the basis of a report submitted by the first petitioner in the CR. The first opposite party filed an application in his MJ No. 4 of 2014 for addition of the two petitioners as defendants; and by an order dated September 26, 2014 the petitioners were added to the MJ. They entered appearance before the Civil Judge on December 10, 2014.

Mr. Tabraiz appearing for the petitioners has submitted as follows. The first opposite party fully aware of the eviction order dated December 8, 2010 at the date he instituted the suit never questioned the eviction order. The first petitioner was entitled to seek enforcement of the order and the first opposite party was not entitled to any relief in his suit as to the eviction order. The Civil Judge could not pass the interim order dated June 27, 2014; for it amounted to restraining the petitioners from enforcing the eviction order. In any case, until the suit was restored there was no scope for considering the question of any interim relief to the first opposite party.

Mr. Sivabalan appearing for the first opposite party has submitted as follows. The first opposite party was entitled to institute the suit seeking a decree for regularization of his encroachment. The first opposite party erected a temple using the land and the temple is the source of his livelihood. He has also created a trust and the suit property is the trust property. The Civil Judge passed the interim order, because the original defendants and the added defendants in the suit were taking steps for evicting the first opposite party and demolishing the structures erected by him. In any case, against the interim order the petitioners'' remedy, if any, was only an appeal, not a revision.

Mr. Mandal appearing for the proforma opposite parties (the original defendants in the suit) has submitted as follows. When the suit itself was not in existence, it is not understood how the Civil Judge could pass the ad interim order of injunction in aid of the final reliefs sought in the dismissed suit, and that too on the basis of an application under s. 151 CPC. In the face of the eviction order passed by the Estate Officer, the first opposite party never questioning the order by filing any s. 9 appeal, was not entitled to any relief in the suit as to his eviction from the suit property.

As noted hereinbefore, the Civil Judge passed the impugned interim order in the first opposite parry''s MJ entertaining an application filed by the first opposite party under s. 151 CPC. No provision of any law provides that an interim order of injunction passed under s. 151 CPC is appealable. Hence I am unable to accept that the petitioners'' Article 227 application seeking revision of the order of the Civil Judge is not maintainable.

It was clearly stated in the first opposite party''s plaint and then again in his application under 0.39, Rr. (1) and (2) CPC that the Estate Officer concerned had passed an eviction order dated December 8, 2010 against him with respect to the suit property. In view of the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, against the eviction order the first opposite party was not entitled to seek any relief directly or indirectly from the Civil Judge. His remedy, if any, was an appeal under s. 9 of the Act and s. 15 of the Act created a bar to the jurisdiction of Civil Judge.

The first opposite party filed an application for a temporary injunction restraining the defendants in the suit from interfering with his occupation of the suit property. The Civil Judge did not pass any interim order in the application. The Judge dismissed the suit for the first opposite party''s non-appearance. The application for restoration was registered. During the pendency of the application, the Civil Judge passed the impugned injunction order entertaining an application of the first opposite party under s. 151 CPC. There can be no doubt that because of the interim order the defendants and the added defendants in the suit are unable to enforce the eviction order dated December 8, 2010.

After hearing Mr. Tabraiz, Mr. Sivabalan and Mr. Mandal, and after considering the facts and circumstances of the case noted hereinbefore, I am of the opinion that the Civil Judge has committed a grave error of law by passing the impugned interim order on the basis of the first opposite party''s s. 151 CPC application filed in his MJ for restoration of the suit dismissed for his nonappearance.

Even in the existing suit the Civil Judge could not have passed an order restraining the defendants in the suit from enforcing the eviction order dated December 8, 2010 passed under s. 5(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Section 15 of this Act created a bar. Hence when the suit itself was not in existence, in my opinion, the Civil Judge possessed no power to pass the impugned interim order. The order is clearly without jurisdiction. For these reasons, I set aside the impugned order of the Civil Judge and allow the C.R. No costs. Certified xerox.