Jalaluddin & Others vs Haseena And Others

Lok Pal Singh, J

Petitioners have invoked extra ordinary jurisdiction of this Court under Article 226/227 of the Constitution of India seeking a writ in the nature of certiorari/quashing the order dated 21.05.2009 (contained as annexure no. 9 to the writ petition) passed by the trial court on an application under Section 151 C.P.C. directing the parties to maintain status quo as regard to the property in question.

Brief facts of the case are that respondents/ plaintiffs filed a suit being Suit No. 167 of 2007 "Smt. Haseena and others vs. Smt. Khursid and others" in the Court Civil Judge (Senior Division), Haridwar against the petitioners/defendants. During the pendency of the aforesaid suit, the respondents/plaintiffs filed an application seeking temporary injunction under Order 39 Rule 1 & 2 C.P.C. with the prayer that the petitioners/defendants are threatening to the plaintiff/respondents to raise construction over the disputed property, therefore, they may be restrained to raise any construction over it.

The petitioners/defendants filed objections against the aforesaid application denying the fact that the property in dispute is a joint property and stated that they are in exclusive possession on the disputed property on the basis of sale deed dated 05.12.1997. Civil Court Amin was appointed to make spot inspection and to submit report thereof. In presence of the parties, spot inspection was carried out and thereafter Civil Court Amin submitted its report alongwith sketch map on 09.05.2007. During the pendency of interim injunction application, plaintiffs filed another application under Section 151 C.P.C. stating therein that the defendants be restrained from changing the nature of the property. The trial court by impugned order dated 21.05.2009 passed an order on the application under Section 151 C.P.C. directing the parties to maintain status quo over the property in dispute.

Feeling aggrieved by the said order, petitioners preferred this writ petition on the ground that discretionary power under Section 151 C.P.C. ought not to have been exercised by the Court.

The coordinate bench of this Court, vide order dated 11.06.2009 has passed following order:

"Prima face it reveals, by perusal of the impugned order, the Court concerned has not considered whether the plaintiff was entitled to ad interim injunction in a partition suit. The part of the order whereby the parties were directed to maintain status quo shall remain stayed till the next date. However, it is made clear that the plaintiff -respondent nos. 1 to 7 may pursue their application which was moved under Order 39 (1 & 2) C.P.C. and the trial court may decide the case on merit."

The Coordinate Bench of this Court vide order dated 11.06.2009 having considered the fact that since the interim injunction application under Order 39 Rule 1 & 2 of C.P.C. was pending, thus, the trial court has exercised in its jurisdiction under Section 151 C.P.C., directing the parties to maintain status quo. Thus the Court has illegally exercised in its jurisdiction under Section 151 C.P.C. as during the pendency of interim relief application, as there is a specific provision made for interim relief under Order 39 Rule 1 & 2 C.P.C. that the same may be decided by the trial court. The said interim order is continuing since then.

Learned counsel for the parties made statement at bar that suit filed by the respondents/plaintiffs is still pending in the trial court. However, they are unable to make statement as to whether any order has been passed on interim relief application filed by the respondents/plaintiffs.

Learned counsel for the petitioner would submit that the trail court could have exercised its jurisdiction under Section 151 C.P.C., when there is no specific provision to grant the relief to a particular party. He would further submit that provision under Section 151 C.P.C could not be invoked just to grant undue benefit to a particular party, which is legally not entitled for the same on an application under specific provisions of law.

I find force in the contentions of learned counsel for the petitioners.

Without expressing any opinion on this aspect, the Coordinate Bench by order dated 11.06.2009 has stayed the operation of the order of status quo and directed that the trial court shall decide the interim relief application on merit.

In view of above discussion, the impugned order dated 21.05.2009 is unsustainable in eyes of law. The writ petition is allowed. The order impugned is liable to be quashed. The same is hereby quashed.

No order as to costs.