Gauhati Municipal Corporation vs Deepak Sarma and Another

J.N. Sarma, J.—This revision petition has been filed against the order dated 30.3.98 passed by the learned Civil Judge (Sr. Division) No. 1, Kamrup, Guwahati in T.S. 65/98 directing the Petitioner-Defendant (Gauhati Municipal Corporation) to maintain status-quo in respect of a notification dated 12.3.98 issued under the signature of the Commissioner of GMC, Guwahati. Challenging this notification itself, C.Rs. 1468/98 (S.K. Nath v. GMC) 1469/98 (G. Rabhav. G.M.C.) 1477/98 (A. Rahman v. G.M.C.) were filed before this Court and this Court refused to grant stay. Thereafter, by judgment dated 11.11.98, this Court held that the notification which was challenged is a valid one. The plaintiff of the title suit had a lease of Kamakhya Paridng Place upto 31.3.98 and on 30.3.98 the injunction order was obtained with a direction to maintain status-quo in respect of the notification dated 12.3.98. As against this, this revision petition has been filed invoking the jurisdiction under Article 227 of the Constitution of India. This Court while admitting this revision granted stay of that impugned order dated 30.3.98. That order is dated 3.4.98. An application is filed to modify/vary that order by the Plaintiff of the suit.

I have heard Mr. C.K. Sarma Baruah, learned Counsel for Petitioner and Mr. S.P. Roy, learned Counsel for Respondents. I have heard the civil revision on merit regarding admission instead of hearing the application for modification of stay etc. There is also an order on 6.11.98 in Misc. Case No. 81/98 to dispose this at the time of admission.

Mr. Sarma Baruah, learned Counsel rightly urges that as the validity of the notification in question has been held to be valid by this Court, the suit itself filed by the Plaintiff, one of the lease holder, whose lease period has already expired on 31.3.98, cannot maintain a suit and this order of injunction which was obtained on 30.3.98 just one day before expiry of the lease period, is nothing but a fraud on the power of the Court and accordingly he submits that this revision should be allowed and the order of injunction should be quashed and even a direction may be given to the trial Court to dispose of the suit in view of the subsequent development. It is submitted by Mr. Roy, learned Counsel for Respondent that the order of stay passed by this Court on 3.4.98 was obtained by the Petitioner in spite of lodging of a caveat. It is submitted by Mr. Sarma Baruah, learned Counsel that there was no caveat in the eye of law inasmuch as proper Court fee was not paid. It is stated that the caveat petition was registered as 248/98 i.e. Misc. Case No. 107/98. It is seen from the report that this caveat petition was filed with a deficit Court fee of Re. 1/- on 31.3.98. So, this caveat petition filed with deficit Court fee cannot be a caveat petition in the eye of law. However, that deficit Court fee was paid later on, that is, on 3.4.98, but whether before the order or after the order is not known. The grievance of the Respondent No. 1 is that in spite of lodging of the caveat this order of stay dated 3.4.98 was passed and as such the order of stay is without jurisdiction. But the question remains that whether the order of stay or an order of injunction passed in spite of lodging of a caveat can be deemed to be nullity in the eye of law. Whether the Court retains the powers to pass appropriate order in spite of lodging of a caveat. The word "nullity" has been defined in Black''s Law Dictionary as "nothing, no proceeding and act or proceeding, in a cause which the opposite party may treat as though it had not then place or which is absolutely no legal force or effect. That cannot be deemed to be the position of law and any authority is required for this proposition, one may have a look at Reserve Bank of India Employees Association and Another Vs. The Reserve Bank of India and Others, a Single Judge of the A.P. High Court in paragraph 5 pointed out as follows:

What appears to me to be significant from the above two meanings taken out from the two well known legal dictionaries is the fact that none of these standard works puts the caveat so high as to act as a fetter on the exercise of power by the Court. In other words, they do not say that any action taken by the Court without giving prior notice to the caveator would be a nullity. The reason seems to me to be that the caveat has no effect on the exercise or powers by the Court. It follows, therefore that the order passed by a Court without giving a notice to the caveator cannot be treated as a nullity. If a statute intends to demolish the ordinary powers of a civil Court, it is well settled proposition of law that it can only be done by a direct piece of legislation enacted for that purpose and not by the effect of an indirect legislation as if it were by a side wind. The powers of a civil Court are too sacrosanct to be allowed to be diluted or to be curtailed by a mere remote implication. I, therefore, hold that as there is no specific provision declaring any action taken by the Court contrary to its mandatory duty under Sub-section (3) to give a notice would be void, the order passed by the Court below on 30.10.1980 is not a nullity.

I respectfully agree with this decision. So, this order cannot be deemed to be nullity in the eye of law.

Mr. Roy, learned Counsel places reliance on the following decisions.

(1994) 1 GLR 259 (M/s. Contemporary Target Pvt. Ltd. and Ors. v. M.B. Enterprises and Ors.) where a Single Judge of this Court considered the object and reasons and duty of die Court u/s 148A of CPC and further held that an ad interim injunction obtained without notice to the caveator is invalid.

With all respect, I do not agree with this decision laying down the law in such board terms inasmuch as that will take away the power of the Court to pass appropriate order in certain situation because there may be so many myriad situations where the caveator just may avoid to appear before the Court in order to make a wrongful gain and if the Court does not have the power to pass appropriate order for the ends of justice in such a situation, there will be a chaotic situation. But it must not be understood that I have granted a liberty to the Court to ignore the caveat and pass order in a despotic manner. Bonafide e�fort must be made to adhere to the object of lodging caveat. In an extreme situation only order may be passed without hearing the caveator to uphold the cause of justice. There also may be a situation where lodging of a caveat is not brought to the notice of the Court as in the present case and in such a case the order will not be nullity and Court must give an opportunity to the caveator to be heard later and the order passed earlier may be suitably modified or cancelled. Even in appropriate case resort may be taken to Section 151 of Code of Civil Procedure. This I have indicated only to say that there may be necessity to pass appropriate order in spite of lodging the caveat.

The next case relied on is Ranjit Kr. Malo Das and Another Vs. Khanindra Nath Gayan, That is also a Single Judge decision of this Court. There is no discussion regarding the proposition of law and in view of the facts and circumstances of that case, that order was passed. That cannot be deemed to be an authority in order to decide the question of nullity as raised in this particular case.

1994 (2) GLR 202 (Md. Safiulla Wake Estate and Anr. v. Smti. Sara Devi Agarwalla). This is a case where it has been stated that when a caveat is lodged and that caveat is ignored by the trial Court and order is passed, the higher Court has right to interfere with such an order under Article 227 of the Constitution of India.

That is not the position in hand. Here lodging of caveat was not brought to the notice of Court. Here the question comes that w4iether the order dated 3.4.98 passed by this Court requires modification in view of the lodging of a caveat. An application has been filed for modification of stay order which is Misc. Case 81/98 and two grounds have been urged for modification of the stay order-(i) question of caveat; (ii) an appeal lies and as such this Court should not interfere in exercise of the power under Article 227 of the Constitution.

Regarding caveat and the passing of the stay order even without going to the question of nullity and other things, today I have heard the parties and I am satisfied that the order dated 3.4.98 was passed by this Court for the ends of justice and to uphold the cause of justice. Further, this is a technical objection then by Mr. Roy, learned Counsel that in spite of lodging caveat, stay order was passed without any notice to caveator. This Court can exercise its jurisdiction under Article 227 of the Constitution by interferring with an order of subordinate Court, if the order is without jurisdiction and in flagrant violation of law principles of law and fairplay. A Court of equity must so act within permissible limits so as to prevent injustice. An effort to do justice between parties is a compulsion of judicial conscience. Courts can and should evolve an appropriate remedy in the facts and circumstances of each case so as to further the cause of justice, [see 1996 (10) SCC 56 (Chenga Reddy v. State of A.P.].

As a matter of fact as on today there is no need to entertain and hear the question regarding caveat as I am hearing the parties regarding admission of Civil Revision, but as this question was urged by Mr. Roy with some amount of heat and venom I have dealt with the matter as indicated above and only having some introspection in the matter. I have looked to the objects and reasons for inserting Section 148A CPC in 1976. The purpose appears to be as follows:

(1) To safeguard the interest of a person against whom an order may be passed.

(2) to avoid multiplicity of proceedings.

(3) the caveator must have a right to be heard, it must be shown that prejudice will be caused to him if the order is passed behind his back. But where right of hearing is not provided by the statute as for example attachment of movable property under Order 21 Rule 43 CPC a caveat by judgment debtor is not tenable. (see Nav Digvijaya Co-operative Housing Society Limited Vs. Sadhana Builders and Others, so also an execution application filed by decree holder.

(4) Where the Court finds that ad-interim relief should be immediately granted so that an irreversible situation is not created in spite of caveat such an order can be passed and caveator can be immediately heard thereafter see 1983 (1) 24 Guj LR 784.

This is with regard to caveat and validity of stay order dt. 3.4.98. The order dated 3.4.98 I find to be a valid order. As pointed out above, as on today, there is no necessity to consider its validity in asmuch as if I find justified even today the stay order can be varied/modified.

Next come to the question that whether right of appeal being available power can be exercised under Article 227 of the Constitution. That question need not detain us long inasmuch this power can be exercised in appropriate case. Let us see whether the present one is such an appropriate case.

A notice was issued on 12.3.98 by Municipality deciding to abolish certain parking places from 1.4.98. The Plaintiff in the suit was lessee of Kamakhyadham Parking place and his lease was till 31.3.98. On 30.3.98 a suit was filed for injunction. A prayer was made as follows:

Permanent injunction restraining the Defendants, their servants, employees, agents from giving effect to the notice No. GEF/396/ 97 dt. 12.3.98 issued by the Commissioner of the GMC and published in the daily "The Assam Tribune" in its issue dt. 16.3.98 in any manner and a decree of injunction that the said notice is without jurisdiction and illegal, nullity in the eye of law, inoperative and malafide.

Along with the plaint, an application was filed under Order 39 Rule 1 and 2 for temporary injunction and the prayer was-

Injunction order restraining the O.Ps./Defendants their servants, employees, workmen and agents from giving effect to the notice No. GEF 396/97 dated 12.3.98 issued by the Commissioner, GMC and published in the daily "The Assam Tribune" in its issue dated 10.3.98 m any manner.

By order dated 30.3.98, the learned Judge directed status quo as on 30.3.98 with regard to the notification.

Before die grant of this order this matter was challenged as indicated above in different Civil Rules, this Court did not grant stay and ultimately on 12.11.98 dismissed all the Civil Rules and held that the notification is valid. The Plaintiff is a different person, he may or may not know the filing of Civil Rules and rejection of stay prayer. But as on today this order dated 30.3.98 passed learned Judge cannot hold the field, as the matter has received final seal of approval from this Court.

That being the position, this revision is allowed at the admission stage itself hearing the parties. The impugned order shall stand quashed.

No costs.