Ghanshyam Pyare vs Alim Qureshi and Others

R.S. Garg, J.

The appellant/defendant No. 1 who has suffered an order of injunction passed in favour of respondents Nos. 1 and 2, by the learned 3rd Additional District Judge, Jabalpur, in Civil Suit No. 47-A of 1989, dated 3.10.1989, has filed the present appeal under order 43, Rule 1 (r) of the Code of Civil Procedure.

Brief facts leading to the controversy are that truck No. CIJ 8035 which is registered in the names of respondents Nos. 1 and 2, was sold by their father (respondents No. 3) Kallu Qureshi in favour of the present appellant. Possession of the said truck was given by Kallu Qureshi to the present appellant, after receiving consideration of Rs. 60,000/-. Respondent No. 3 had also executed a sale letter in favour of the present appellant. The present appellant lodged report at the Police Station on 25.4.1989, stanting therein that the truck has been stolen. On the said report, the truck was seized by the Gorakhpur Police. After seizure of the truck, respondents Nos. 1 and 2/plaintiffs applied for Supurdnama to take the truck in their possession. After hearing the appellant and respondents Nos. 1 and 2 who were represented by their lather (respondent No. 3), the learned Additional Chief Judicial Magistrate ordered that the truck be delivered to respondents Nos. 1 and 2. The said order was challenged by the present appellant before the Sessions Court and the learned 2nd Additional Sessions Judge, Jabalpur, setting aside the order passed by the Addl. Chief Judicial Magistrate, in Criminal Revision No. 84 of 1989, by his order dated 11.5.1989 ordered in favour of the present appellant. Respondents No. 1 and 2, through their guardian lather (respondent No. 3), filed a criminal revision No. 330 of 1989 before this Court, which was dismissed on 31.3.1989. It was held that the present appellant is entitled to get possession of the truck. This Court, while dismissing the revision ordered that if the present respondents Nos. 1 and 2 are aggrieved by the acts of their father, they can approach the Civil Court for an appropriate declaration of their title over the vehicle and may also file a criminal complaint against the present appellant for forging the said sale letter. However, the order for delivery of possession to the present appellant was maintained.

Taking advantage of the observations made by this Court in Criminal Revision No. 330 of 1989, respondents Nos 1 and 2 filed the present civil suit No. 47-A of 1989 before the learned trial Court for declaration of their title and permanent inunction. In the said suit, an application under Order 39, Rules 1 and 2, C.P.C. Was also filed that possession of the truck be not delivered to the present appellant. It would not be out of place to mention that immediately after the order passed by the Addl. Chief Judicial Magistrate, respondents Nos. 1 and 2 had taken possession of the truck. The appellant, after putting in appearance before the learned trial Court, raised various contentions and submitted that the truck was purchased by the present respondent No. 3 form his own funds in the names of his two minor sons. According to him respondent no. 3 is the real owner, while respondents Nos. 1 and 2 are Benamidar. It was also submitted by him that they parted with a sum of Rs. 60.000/-. It was also submitted that respondent No. 3 earlier appeared as guardian of respondents No. 1 and 2 and now the mother Smt. Munni Bai has filed the present suit as the next friend of the minors. It was further submitted that if under the order of one criminal Court, respondents Nos. 1 and 2 have taken possession of the truck, then they are bound to restore possession of the truck to the present appellant as the order passed in their favour has been set aside. It was also submitted that respondents Nos. 1 and 2 could not be permitted to take advantage of their own wrong, parties must be relegated to their original position and if under some order of some Court, possession of the truck was delivered to respondents Nos. 1 and 2 then after the order is set aside the truck should be given back in the custody of the Court and the order passed by the criminal Court should be observed in its letter and spirit.

After hearing the parties, the learned trial Court held that as respondents Nos. 1 and 2 are in possession of the truck, equity lies in their favour, holding that they have a prima facie case being registered owners and would suffer an irreparable injury if injunction is not granted in their favour, granted an injunction and directed that till the disposal of the suit, the present appellant should not interfere with the possession of the truck personally of through any body. Being aggrieved by the said order, the appellant has preferred this appeal: Learned counsel for the appellant contended that the truck Was sold by respondent No. 3 in his capacity as father of the minors, respondent No. 3 has taken a sum of Rs. 60.000/- from the appellant, the truck was seized at the instance of the present appellant, there is no order in favour of the present respondents Nos. 1 and 2 permitting them to continue with the possession of the truck and the order under which they took possession of the truck having been dislodged they cannot continue to remain in possession of the truck. It was also submitted that the learned trial Court was unnecessarily impressed by the fact that respondents Nos. 1 and 2 are registered owners. It was contended that as the truck was given in Supurdgi of respondents Nos. 1 and 2 by the criminal Court and immediately after the said order was set aside, as per the Supurdgi, respondents Nos. 1 and 2 must surrender the truck to the criminal Court and the truck should be delivered to the present appellant as he is found entitled not only by the Sessions Court but even by this Court. None appeared to oppose the present appeal.

It is not in dispute that the truck was seized by the Police on the complaint of the present appellant. It is also not is dispute that after the sale effected by respondent No. 3, the truck stands registered in the name of the present appellant. It is clear form the record that the permit is also in favour of the present appellant. A copy of the sale letter, dated 11-3-1.989, executed by respondent No. 3 for and on behalf of the respondents Nos. 1 and 2 is also on record. It is also not in dispute that after the truck was seized, the Addl. Chief Judicial Magistrate by this order directed the truck to be delivered in Supurdgi of respondents Nos. 1 and 2. It is thus clear from the record that the same sale letter was executed by respondent No. 3 for and on behalf of respondents Nos. 1 and 2. It is also clear from the record that possession of the truck was given to the present appellant. The matter in criminal jurisdiction came up to the High Court and this Court maintained the dislodgment of the order of the Add. Chief Judicial Magistrate by which the truck was given in Supurdgi of respondents Nos. 1 and 2. Once the order under which respondents Nos. 1 and 2 had taken possession of the truck was dislodged, they were duty bound to surrender the truck to the custody of the Court. The purpose of Supurdnama and delivery of possession is only to deliver possession to a party who is found best entitled. It is not the universal law that possession of the vehicle should always be given to the registered owner. However, in the present case. I am not called upon to dwell in the said controversy because the learned Additional Sessions Judge was of the opinion that the appellant was entitled to the possession of the turck. The said order was maintained by the High Court.

True it is that the High Court, while disposing of the criminal revision No. 330 of 1989, has made certain observations, but the said observations are to be read in the context of the controversy, which the High Court was called upon to decide. This Court ordered that if the present respondents Nos. 1 and 2 are aggrieved by the acts of their father (respondent No. 3), they can approach the civil Court for an appropriate declaration of their title and may also file a criminal complaint. This Court nowhere said that till disposal of the civil suit, the respondents Nos. 1 and 2 would be permitted to maintain possession over the truck. The judgment and findings which are to be delivered by the Civil Court in the present matter would certainly have the overriding effect over the findings recorded by the criminal Court but so long as the final judgment is not delivered by the Civil Court, it would not be in the Unless of things to grant such an injunction.

The learned trial Court has misdirected itself by treating the possession of movable property with the possession over the immovable property. In the instant case, the learned trial Court held that as respondents Nos. 1 and 2 are in possession of the said truck, their possession should be maintained. The learned trail Court did not care to see that the possession of the truck was given to the respondents Nos. 1 and 2 under the orders of the Addl. Chief Judicial Magistrate. If the order passed by the learned Addl. Chief Judicial Magistrate lost its life because of the super-imposed order passed by the Addl. Sessions Judge, then the order passed by the Addl. Sessions Judge should have been given its full effect: In any case, is mandatory for the learned trial Court to consider that if under the orders of a criminal Court, possession was delivered to the respondents Nos. 1 and 2., then after the order is set aside, the person taking superego should restore back the property to the criminal Court. In the instant case, instead of surrendering the property in favour of the criminal Court for its proper disposal. respondents Nos. 1 and 2 chose, after changing their next friend, to file the present suit. It is nowhere stated as to why the next friend was also changed. Respondent No. 3 in the criminal case, was throughout contending that his signatures were taken on some blank papers. Now the allegations are being made against him that he has joined hands with the present appellant.

The learned trial Court was also unnecessarily impressed by the observations made by the High Court in the matter of Mithilesh Kumari v. Prem Bihari, 1989 M. P. L.J. 156. The distinction betweeen the movable property and immovable property must always be considered. Delivery of possession in the matter of immovable property may or may not conclude a sale, but in case of movable property payment of price and delivery of possession would always conclude a sale. In the instant case, according to the allegations made by the appellant, the sale was concluded, but according to the allegations made by the respondent No. 3 his signatures were taken on some blank papers. He has not stated that the documents do not bear his signature. What has he contended is that the sale letter has been forged. This aspect of the matter is yet to be proved by cogent clinching and convincing evidence by respondents Nos. 1 and 2. It is further to be noted that respondent No. 3 would be a star witness for the plaintiff. He acted as a guardian for respondents Nos. 1 and 2 in the criminal matter and now though arrayed as a defendant would be witness for the plaintiff. In fact, what emerges from the facts is that respondent No. 3 has signed the sale letter after having mentioned that possession of the truck was given to the present appellant. The truck was seized by the Police on the complaint of the present appellant. The Addl. Chief Judicial Magistrate ordered Superego in favour of respondents Nos. 1 and 2 and the said order has been set aside by the revisional Court. Under these circumstances, I do not find any prima facie case in favour of respondents Nos. 1 and 2. The learned trial Court should have seen that in fact injunction was being sought against the criminal Court. The appellant was not interfering with the possession of respondents Nos. 1 and 2 over the truck, but was trying to execute the provisional order passed in his favour. A judicial order has ordinarily to be executed, unless there are compelling reasons for staying its execution. The interim order granted by the learned trial Court nowhere says that it has directed the present appellant not to execute the order passed by the learned Addl. Sessions Judge. Without appreciating the facts and the legal position, it has merely ordered that the appellant personally or through some body should not interfere with the possession of respondents Nos. 1 and 2. The words ''through some body'' would not mean some Court. If an order is passed by a Court of competent jurisdiction, then its execution, as said above, cannot be stayed for fanciful reasons. The learned trial Court was absolutely wrong in holding that respondents Nos. 1 and 2 were entitled to injunction. The balance of convenience is also not in favour of respondents Nos. 1 and 2. The truck was in possession of the appellant. It was stolen and was seized on report to the police. But, if on an application of respondents Nos. 1 and 2 for Superego, an order was passed by the learned Addl. Chief Judicial Magistrate, the truck should have been given back to the appellant after the intervening event lost its life. Without the order of delivery passed by the criminal Court, respondents Nos. 1 and 2 would not have taken the truck in their possession. If that intervening event is over, the parties should be relegated back to their original position. If the truck was removed from the possession of the present appellant, it should have been restored back to him. Respondents Nos. 1 and 2 are not going to suffer any irreparable injury, because on the date of the seizure and prior to it, they were not in possession of the vehicle. As respondents Nos. 1 and 2 do not have a prima facie case in their favour, no injunction could have been granted in their favour. The order passed by the trial Court is patently illegal and is liable to be set aside and the same is hereby set aside.

The appeal is accordingly allowed and the injunction order granted by the trial Court is vacated. No orders as to costs.