Gurubax Singh Kohali vs District Judge, Dehradun and Others

Hon''ble Rajesh Tandon, J.—Present writ petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 21.2.2002 and all consequential orders and also for issuing direction to strike off the plaint as not maintainable in respect of Plot No. 69, Rajpur Road, Dehradun in respect of which Suit No. 301 of 1999 was filed by the Respondents No. 7 and 8.

The facts giving rise to the present writ petition are that according to the Petitioner property No. 69 Rajpur Road, was owned by Mohd. Laik Beg and after partition of India he left for Pakistan and consequently his citizenship ceased. According to the Petitioner since Mohd. Laik Beg has left for Pakistan and, therefore, the property was being dealt under the provisions of Displaced Persons (Compensation and Rehabilitation) Act 1954. Consequently Laik Beg was declared as evacuee after he migrated to Pakistan. His property was acquired by the Managing Officer and placed in the compensation pool. The property was auctioned on 25.1.1996 and the Petitioner was the highest bidder for a sum of Rs. 58,000/-. On 30.9.1958 the auction was confirmed by the Managing Officer. Sale certificate was issued in favour of the Petitioner on 17.1.1959. A perusal of letter dated 27.4.1959, issued by the Managing Officer shows that the possession was also transferred on 1.10.1958 in favour of the Petitioner. On 17.1.1959 Managing Officer executed the sale deed in favour of the Petitioner and said sale deed was registered on 31.1.1959.

According to the Petitioner aforesaid sale deed was never challenged by Sri Liak Beg nor any other person claiming through him and the sale deed became final in favour of the Petitioner.

So far as the property of 69, Rajpur Road the Petitioner has alleged that he executed a gift deed on 23.1.1971 and gifted half of the property in favour of his maternal uncle Mahendra Singh, Satbeer Singh and Inder Singh. On the death of Mahendra Singh on 21.12.1981, he was substituted by his wife Smt. Tej Kaur and sons Inder Jeet Singh, Harjeet Singh and Satbeer.

According to the Petitioner there was another property known as property No. 71, Rajpur Road, which was in the ownership of Mohd. Akmal Beg, which was purchased by Kirpal Singh from Managing Officer. Mohd. Akhtar son of Azoor and Mohd. Adil son of Munawar Ali claimed the property of Mohd. Akmal Beg on the basis of will dated 25.4.1995. Later on Jagpal Singh son of Mohan Singh and Mohd. Alam Khan son of Jaminudin also claimed their ownership rights on the basis of Patta from Mohd Akhtar and Mohd Adil. Thus Jagpal and Mohd Alam claimed the properties of Mohd. Akmal Beg.

The following suits were preferred by the parties in different Courts:

(1) Suit No. 138 of 2002, Jagpal Singh and Mohd Alam v. Bharat Bhushan Gupta and others.

(2) Suit No. 301 of 1999 Mohd. Akhtar v. Union of India and another

A suit being Suit No. 301 of 1999 was filed by one Mahmood Akhtar and Mohd. Adil alleging themselves to be beneficiary of will executed by Mohd Akmal Beg in which property No. 71 Rajpur Road, was given by way of will in their favour. He claimed the following reliefs in that suit:

(A) That it be declared that alleged proceedings under the provisions of displaced pers (Compensation and Re-habilitation) Act, 1954 and sale certificate dated 17.1.1959 said to be registered in the office of Sub Registrar, Dehradun at document No. 93 book No. 1 Vol. No. 560 page 333 additional file book No. 1, Volume No. 5587 at pages 167 to 168 registered on 31.1.1959 are forged, false, does not relate to the property in suit and further they are illegal, void, without consideration, without authority of law and are null and void and does not confer any title upon Defendant No. 3 to 7 and are not binding on Plaintiffs. The Plaintiffs are owner in possession of the property in suit.

(B) That the Defendants be restrained by a decree of permanent injunction from interfering in the peaceful pos-session of the Plaintiffs over the property mentioned in Schedule ''A" of the plaint and from evicting the Plaintiffs other wise then in due course of law.

(C) That any other relief or further relief which can be granted in favour of the Plaintiffs and against the defend-ant be kindly granted.

The Petitioner contested the said suit by filing written statement Along with the suit the Plaintiff of suit No. 301 of 1999 has filed an application for temporary in-junction. The application for injunction was dismissed on 23.12.2000 on the ground that property No. 69 Rajpur Road falls within the Municipal limits and not under Z.A.& L.R. Act and further no evidence was produced regarding their title over the said property. It was also observed that property claimed by virtue of will does not refer to plot No. 69, Rajpur Road but refers to some other property.

Appeal No. 1 of 2001 was preferred by the Petitioner of Suit No. 301 of 1979 against the aforesaid order dated 23.12.2000. The appeal was heard by Hon''ble the Chief Justice and Hon''ble Mr. Justice Irshad Hussain. Their Lordships were pleased to pass the following order on 4.4.2000

The matter was pending for quite some time. Learned Counsel for the Appellants Sri Sanjay Kaushik seeks permission to with-draw the appeal. Permission granted.

At the request of Mr. L.P. Naithani, learned A.G. we direct the Appellants to deposit Rs. 2500/- (Rupees two thousand five hundred only) in this Court. The same shall be transmitted to the Legal Aid Fund within a period of one month.

The appeal is disposed of accordingly.

In suit No. 138 of 2002 Jagpal Singh and Mohd Alam v. Bharat Bhushan and Others the following prayer has been made:

The aforesaid litigation started by filing Suit No. 138 of 2002 by Sri Jaipal Singh son of Nahar Singh and Mohd. Alam Khan against Bharat Bhushan, Petitioner, Kripal Singh, Mahmood Akhtar and Mohd Adid for permanent injunction alleging that Mehmood Akhtar, Mohd. Adil son of Munwar Ali had 10 Bigha land and it fell into the share of Mehmood Akhtar which has been leased in their favour on 19.10.2001 for 30 years.

On 21.2.2002 the learned Civil Judge passed an order restraining the Defendants from interfering in the Plaintiff''s right over the property in dispute. The present writ petition has been filed against the order dated 21.2.2002. The following order was passed while admitting the writ:

Admit.

Issue notices to the Respondents No. 3 to 8 returnable within three weeks. List thereafter. In the mean time, operation of impugned order dated 21.2.2002 passed by Respondent No. 2 in suit No. 138 of 2002 shall remain stayed till the next date of listing.

Heard Sri L.P. Naithani, Sri v. K. Kohali and Sri Arvind Vashist for the Petitioner and Sri S.K. Jain, Sri Alok Singh, S.K. Jain and Sri A.K. Sharma for the Respondents at great length.

In order to understand the controversy between the parties it is necessary to examine the plaint of Suit No. 138 of 2002 (annexure 7) where the Petitioner Jaipal Singh and Mohd. Alam have filed the suit against the Petitioner as well as Bharat Bhushan, Kripal Singh, Mohd. Akhatar and Mohd. Abid regarding property khasara No. 94, 96 and 102 situated at Mohalla Karanpur, Rajpur Road, Dehradun. The basis of the suit was that property was given on lease for 30 years to the Plaintiffs but the Defendants are interfering in their pos-session. The argument of the counsel for the Petitioner is that the Petitioner acquired the title in respect of khasara plot No. 69 from Laik Beg and the property No. 71 belongs to Akalam Beg and both being separate, it is not open for the Respondent Mohd. Akhatar and Mohd. Adil to exercise any right in respect of property No. 69 and as such the suit filed by these two persons impleading the Petitioner as a party who is the owner of the property No. 69, Rajpur Road, is an abuse of process of the court.

Mohd. Akhtar and Mohd. Abid has filed a suit being Suit No. 301 of 1999, impleading the Petitioner as one of the Respondent claiming title from Akamal Beg and further on 25.4.1995 alleging that Akhatar Beg had executed a will in favour of the Respondents of suit No. 301 of 1999 i.e. Mohd. Akhatar and Mohd. Adil.

In the written statement in paragraph 30 it has been stated by the Petitioner as under:

That the said Shri Aklam Beg on the basis of whose alleged and forged WILL the Plaintiffs are placing reliance upon, was owner of the property No. 71 -Rajpur Road, Dehradun, and not No. 69-Rajpur road, Dehradun. Both Shri M. Layak Beg as well as Shri Aklam Beg had left India at the time of partition and both the properties i.e. the property No. 69- Rajpur Road, Dehradun, as well as property No. 71-Rajpur Road, Dehradun, were declared as evacuee properties and were acquired by the Central Government.

On the basis of aforesaid averment the learned Civil Judge has come to the conclusion that no injunction can be granted as the property No. 69 does not belong to the Plaintiff i.e. Mohd. Akhatar and Mohd Adil of Suit No. 301 of 1999 and it belong to the Defendant viz Petitioner. Relevant portion of the judgment of the trial Court is quoted below:

Order dated 23.12.2000 became final as appeal No. 1 of 2001 was disposed of as withdrawn. Suit No. 489 of 1997 between Kripal Singh and Mohd Akhtar and another also remained final even from the Apex Court. The order of the Apex Court is quoted below:

On the application of Learned Counsel for the Petitioners and Respondent Nos. 1 and 2, the SLP is dismissed as against the Respondent No. 3.

The compromise deed dated 27th November, 2001 between the Petitioners and Respondent Nos. 1 and 2 is taken on record.

Leave granted.

The Civil appeal is disposed of in terms of the said compromise deed.

Paragraph 1 and 2 of the compromise are important which formed the part of the decree of the Apex Court. The same are quoted below:

That both the parties admit that the suit property shown in red colour in the map annexed hereto, which the Respondents in the aforesaid SLP have stated to be municipal No. 71. Rajpur Road. Dehradun, exists in Khewat No. 11 Khasra No. 94, 96 and 102 Munjumla in Mauiza Karanpur Khas Rajpur road. Kendriya Doon, Dehradun and which formed a part of the total area of land measuring 2,462 Hectare in the said Khasras. 2. That the Petitioners in the aforesaid SLP are claiming the ownership of the entire property admeasuring 2.462 Hectare which originally belonged to late Shri Aklam Beg son of late Shri Karim Beg.

Thus it is evident that Municipal No. 71 Rajpur Road which was acquired from the ownership of Aklam Beg and plot No. 69 for which Petitioners is claiming title originally belong to Laik Beg.

The counsel for the Petitioner Sri L.P. Nainthani has vehemently argued that suit No. 138 of 2002 by which the injunction has been sought the Petitioner has been impleaded as Respondent No. 2, as such it is an abuse of the process of the Court. He further argued that under Article 227 of the Constitution of India, High Court has ample jurisdiction to quash the plaint in such circumstances.

Sri Alok Singh has raised a preliminary objection that the writ petition is not maintainable in as much as Petitioner having availed an alternative remedy of filing appeal under Order 43 Rule 1 CPC Writ petition is liable to be dismissed on this ground alone. After perusal of the entire pleadings of the parties and hearing arguments at length, therefore, no doubt the appeal has already been preferred by of the Petitioner against the injunction order as well as a stay vacation application has also been preferred by the Petitioner before the Civil Judge.

The submission which has to be decided in the present writ petition is that the learned Civil Judge while deciding the injunction application has to adopt the procedure as contained under Order 39 Rule 1 CPC Legislature while enacting Order 39 Rule 1 CPC has introduced Order 39 Rule 3 CPC in order to safe guard the interest of both the parties. It has been held by the Apex Court that while issuing injunction the Court should follow the procedure as contained under Order 39 Rule 3 CPC and a notice has to be issued to the opposite party. The provision further provides that where the process will be defeated then the court has to give reasons before granting injunction. Order 39 Rule 3 is quoted below:

The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party.

Provided that where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by....

Apex Court in Shiv Kumar Chadha v. Municipal Corporation, 1993 (3) SCC 162 has laid down that where a statue requires a thing to be done in a particular manner, it should be done in that manner alone. The observations of the Apex Court are quoted below:

As such whenever a court considers it necessary in the facts an circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the Plaintiff should be required to serve the notice on the defend-ant concerned. In the Supreme Court Practice 1993 1 514, reference has been made to the views of the English Courts saying:

''Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion....

An ex parte injunction should generally be until a certain day, usually the next motion day....

The Apex Court has further directed that the application for interim injunction should be considered and disposed of in the following manner:

(i) The court should first direct the plain-tiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the Corporation or any competent authority of the corporation and the order should be passed only after hearing of the parties.

(ii) If the circumstances of a case so war-rant and where the court is of the opinion, that the object of granting the injunction the injunction would be defeated by delay, the court should record reasons for its opinion as required by proviso to Rule 3 of Order 39 of the Code, before passing an order for injunction. The court must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should be served on the competent authority or the counsel for the Corporation. Affidavit of service of notice should be filed as provided by proviso to Rule 3 of Order 39 aforesaid. If the Corporation has entered, appearance, any such ex parte order of injunction should be extended only after hearing the counsel for the Corporation.

In Road Flying Carrier and another Vs. The General electric company of India Ltd., ; the Division Bench of Allahabad High Court has also held as under:

In view of this proposition of law, we are not inclined to agree with the sub-mission made by the Learned Counsel for the Respondent, as the law requires reasons to be recorded by the court, which has not been done and, there-fore, the order under appeal cannot be sustained....

Before parting with this appeal, it must be stressed that the subordinate courts are granting temporary injunction without having any regard to the mandatory provisions of Rule 3 of Order 39 CPC It is of utmost importance to note that an exparte order of injunction is an exception, the general rule being that order be passed only after hearing both the parties. It is only in rare case where the court finds that object of granting injunction would be defeated by the delay, the court can issue an injunction exparte but that too only after recording reasons therefore. Ex parte injunction is not routine matter and it must be borne in mind by the courts below.

In the light of the aforesaid judgment of the Apex Court it is necessary that the learned Civil Judge should exercise the powers in the manner contained in the judgment of the Apex Court.

Similar view has been taken by a Division Bench of Allahabad High Court, (2003 R.D. 239) American Institute of English Language Put. Ltd. Agra v. Nitin Saraswat and another, where it has been held as under:

A perusal of the impugned order indicates that the learned District Judge has apparently prejudice the mandatory pro-visions of law and has only recorded a conclusion without giving any reasons.

It should not be lost sight of that as indicated by the Apex Court in its decision in the case of Union of India (UOI) Vs. Mohan Lal Capoor and Others, , " Reasons are the links between the materials on which certain conclusions are based and the actual conclusions ". In its later decision, in the case of Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and Others, . the Apex Court had clarified that it was settled law that the reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record.

Taking into consideration the facts and circumstances noticed here in above this appeal is disposed of finally, providing that the operation of the impugned order shall remain stayed till 26.11.2002 which is the date fixed for the final hearing of the application 5-C requiring the District Judge Agra to conclude the hearing of the application on the date fixed and deliver the orders disposing of the same within 3 days of the hearing.

I am also supported by the judgment of Apex Court A. Venkatasubbiah Naidu Vs. S. Challappan and Others, the observations of the Apex Court are quoted below:

Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2-A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party which does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3-A of the Code is flouted, the aggrieved party, shall be en-titled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission, of the subordinate court in complying with the provisions of Rule 3-A.

In the light of aforesaid facts and circumstances since the Petitioner has already availed the alternative remedy of filing appeal and the same is pending before the District Judge, it is desirable in the interest of justice that the appellate court shall hear both the parties and pass proper order in the light of the observations made by the Apex Court.

The trial court should also bear in mind that while granting temporary injunction the Court must be satisfied that strong prima facie case has been made out by the Plaintiff including question of maintainability of the suit as observed by the Apex Court in D.R. Chawla and Others v. Municipal Corporation (supra) to the following effect:

Power to grant injunction is an extraordinary power vested in the court to be exercised taking into consideration the facts and circumstances of a particular case. The courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the CPC (Amendment) Act 1976, a proviso has been added to the said rule saying that "where it is pro-posed to grant an injunction without giving notice of the application to the opposite-party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay....

The scope of Article 227 of the Constitution of India cannot be exercised where there is remedy of appeal under Order 43 Rule 1 CPC It has been held in the case A. Venkatasubbiah Naidu Vs. S. Challappan and Others, as under:

The aforesaid Rule casts a three pronged protection to the party against whom the exparte injunction order was passed. First is the legal obligation that the court shall make an endeavour to finally dispose of the application of in-junction within the period of thirty days. Secondly is, the legal obligation that if for any valid reasons the court could not finally dispose of the application within the aforesaid time the court has to record the reasons thereof in writing.

Now what rains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Hough no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned Single Judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition.

Similar view has been taken in 2002 SCFBC. 88, Estralla Rubber v. Doss Estate (Put.) Ltd. as under:

This Court in Ahmedabad Mfg. and Calico Ptg. Co. Ltd. Vs. Ram Tahel Ramnand and Others, in Para 12 has stated that the power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the Subordinate Courts and Tribunals within the bounds of their authority and not for correcting mere errors. Reference also has been made in this regard to the case Waryam Singh and Another Vs. Amarnath and Another, . This Court in AIR 1975 1297 (SC) has observed that the power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a Superior Court can do in exercise of its statutory power as a court of appeal and that the High Court in exercising its jurisdiction under Article 227 cannot convert itself into a Court of appeal when the legislature has not conferred a right of appeal, Judged by these pronounced principles, the High Court clearly exceeded its jurisdiction under Article 227 in passing the impugned order.

The jurisdiction under Article 227 of the Constitution of India cannot be exercised as a substitute to the appeal or revision in view of the judgment of the Apex Court reported in AIR 1975 1297 (SC) , The same is quoted below:

The limited power of interference which the High Court possessed under the Article 227 was to see that the District Court functions within the limits of its authority. It is true that the High Court claimed to interfere with the findings of the fact reached by the District Court on the ground that the District Court had misread a part of the evidence and ignored another part of it but that was clearly outside the jurisdiction of the High Court to do under Article 227.

The argument of the Petitioner with regard to abuse of the process of the Court, is concerned the counsel for the Petitioner Sri L.P. Naithani has referred the judgments of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, in order to demonstrate that the second suit was an abuse of the process of the Court. I am not expressing any opinion with regard to the aforesaid proposition on the abuse of the process of the Court. It will be open to the Petitioner to raise the arguments before the trial court. Suffice it to say that the Petitioner shall have an opportunity of contesting the matter and can rely upon the provisions of Order 7 Rule 11 CPC if so desires before the trial court and the court shall consider it on its own merits.

The learned appellate court as well as the Civil Judge, shall apply his own in-dependent mind before granting injunction or considering the objection of the parties on merits after examining the facts independently.

In the result this writ petition is disposed of with the direction that the lower appellate Court shall pass appropriate orders in the appeal filed by the Petitioner against the injunction order dated 21.2.2002, in the light of the observations made above, within a period of three weeks after filing of the certified copy of this order. For a period of three weeks only the interim order passed by this Court on 12.4.2002 shall remain in operation.

Registrar General of the Court is directed to circulate this judgment to all the District Judges, subordinate to High Court of Uttaranchal for compliance of law by all the Judicial Officers.