Jhummamal vs Motilal and Others

K.L. Shrivastava, J.

This appeal under Order 43, Rule 1(r) of the Civil Procedure Code, 1908 (for short ''the C.P.C.'') is directed against the order dated 9-9-1988 passed by the Vth Additional Judge to the District Judge, Ujjain in Civil Suit No. 24-A of 1988 for declaration of title to the property in dispute and for permanent injunction restraining the appellant from disturbing the possession of the respondents Nos. 1 to 3, whereby their application under Order 39, Rule 1 ibid has been allowed.

It is not in controversy that the disputed property comprising of a shop on the ground floor with two rooms behind, forms part of a building which initially belonged to one Badrinarayan, the deceased father of the respondents 1 to 3. The said Badrinarayan on 19-7-1952 mortgaged with possession the property in dispute. As mortgage money was not paid a suit for sale of the mortgaged property was instituted. In the suit a preliminary decree was passed on 24-4-68 and was followed by the final decree for sale passed on 4-1-1969.

The final decree for sale of the mortgaged property was purchased by one Asgarali in 1969. According to the present appellant the said Asgarali on 7-8-1982 inducted him in the property in dispute as tenant on monthly rent for a period of 11 months but later the respondents dispossessed him of the property on 11-8-82. On the report dated 11-8-82 lodged with the police in respect of the occurrence of dispossession a crime was registered under S. 448 of the I.P.C. against the respondents 1 to 3.

The police on 13-8-1982 also moved the A.D.M. Ujjain in proceedings u/s 145 of the Criminal Procedure Code, 1973 (for short ''the Cr. P.C.'') alleging that a dispute of the nature contemplated under the provision exists in relation to the property.

The learned A.D.M. passed a preliminary order u/s 145(1) of the Cr. P.C. on 13-8-1982. At the conclusion of the summary inquiry relating to the fact of actual possession he passed a final order u/s 145(6) ibid on 17-5-1985 and held that the appellant was forcibly and wrongfully dispossessed by the respondents and further ordered that possession of the property be restored to him.

The aforesaid final order passed by the learned A.D.M. was unsuccessfully challenged by the respondent Motilal by filing a revision petition in the Court of Session, Ujjain. The said revision petition was dismissed and thereafter he successfully approached the High Court.

The present appellant took up the matter to the Apex Court of the country which by its judgment dated 25-8-1988, reported in Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, detailing the history of the litigation set aside the order passed by the High Court and restored that passed by the A.D.M. Ujjain.

On the date the Apex Court delivered its judgment, the respondents instituted the present suit.

It may be stated that after the Sessions Court, Ujjain dismissed the revision petition filed by the respondent Motilal his brother Prahladdas, the respondent No. 2, on 15-7-1985 instituted a civil suit in the Court of IVth Civil Judge, Clause II, Ujjain against the appellant for the relief of permanent injunction restraining the latter from taking possession of the property in dispute. That application was allowed by the trial Court but in appeal the order granting temporary injunction was set aside.

Asgarali, the purchaser of the final decree for the sale of the property in dispute moved the Court for execution of that decree. In the said proceedings the respondents on 20-8-1982 deposited Rs. 21,794.50 p. payable under the decree for sale.

The main contention of the learned counsel for the appellant is that the order passed by the learned A.D.M. regarding restoration of possession of the property to the appellant has been upheld by the Apex Court and the respondents being wrong-doers are by their conduct disentitled to the equitable relief of temporary injunction. It is contended that apart from this taking possession in pursuance of a subsisting final order u/s 145(6), Cr. P.C. cannot be characterised as a threat or as occasioning any injury and, therefore, there is no case for grant of injunction under Order 39, Rule 1(c) of the C.P.C. It is further contended that in view of Section 41(b) of the Specific Relief Act temporary injunction could not be granted by the District Court against the A.D.M. and the appellant could not be restrained from prosecuting the criminal proceedings for restoration of possession. It has also been contended that the dismissal of the application for temporary injunction in the suit filed before the Civil Judge Class II operates as res judicata.

According to the respondents, with the deposit of the money, the mortgage came to an end as provided under Order 34, Rule 5, C.P.C. and they get the statutory right to obtain possession of the property in dispute. It is urged that even the period of alleged tenancy in favour of the appellant admittedly expired on 7-7-1983 and on a consideration of the totality of the facts and circumstances of the case, their possession which admittedly dates back to 11-8-1982 deserves to be protected in law by grant of temporary injunction and no exception can, therefore, be taken to the impugned order.

The learned lower Court held that the order for restoration of possession passed by the Criminal Court is subject to the decision of the Civil Court. With the deposit of mortgage money, the mortgage came to an end the respondents became statutorily entitled to the possession of the property in dispute, which is urban property, even as against the appellant who has come with a case of tenancy in his favour. For this view reliance was placed on the decision in Lalji Purshottam Vs. Thacker Madhavji Meghaji, It held that the order on the application for grant of temporary injunction in the suit filed before the Civil Judge Class II could not operate as res judicata as the Civil Judge had no jurisdiction to try the present suit. Further holding that the proviso inserted in 1984 below Order 39, Rule 2, C.P.C. in this State providing bar to the grant of temporary injunction in certain cases was not applicable where the case is covered under Order 39, Rule 1 ibid it passed the impugned order. Reliance was placed on the decision in Kaliprasad Das and Another Vs. Gadadhar Sahu,

The point for consideration is whether in passing the impugned order the learned lower Court has not exercised its discretion properly and interference therewith is necessary.

An injunction is a judicial process whereby a party is required to do or the refrain from doing any particular act. It is a preventive relief granted to a litigant because he fears future possible injury. Its main purpose is to preserve the subject of the suit in status quo which must be clearly delineated as pointed out in Dr. Albert case AIR 1989 Mad 73.

Perpetual injunction is regulated by Sections 38 to 42 of the Specific Relief Act, 1963. Temporary injunction on the other hand, as provided by Section 37 of the Act, is regulated mainly by the provisions of the C.P.C. For an order for temporary injunction under Order 39, Rule 1, C.P.C. the suit need not be one for injunction. For the relief of temporary injunction under Rule 2 of Order 39 the suit has to be one for injunction.

Courts exist for doing justice and temporary injunction may be granted under inherent powers u/s 151, C.P.C. the powers which inhere in the Court in virtue of its duty to do justice between the parties. In this connection reference may usefully be made to the decision in Chitra Sengupta Vs. Dhruba Jyoti Sengupta, which relates to a matter under the Hindu Marriage Act, 1955. Therein reference has been made to the decision in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, wherein with reference to Section 94, Order 39, Rules 1 and 2 and Section 151, C.P.C. it has been laid down that in cases not covered by Order 39, temporary injunction can be issued under inherent powers.

In the Division Bench decisions in Surendra Singh and Others Vs. Lal Sheoraj Bahadur Singh and Others, with reference to the subject of temporary injunction against a decree, the import of the word ''injury'' in relation to the relief has been stated and it has been pointed out that in India, the Courts do not possess equity jurisdiction independent of their ordinary jurisdiction under the law but in principles of equity are extremely useful for regulating the grant of injunction whether permanent or temporary. Apart from the three well settled conditions which must be found to co-exist in favour the party praying for the relief of temporary injunction, the maxim of equity being : He who conies into equity must come with clean hands and the relief being an equitable one, it has also to be seen that the conduct of the party has been fair and honest and has not been such as to disentitle him to the Court''s assistance. This discretionary relief has to be granted on a balanced consideration of the facts and circumstances of a given case. In this connection the decisions in Chhotey Singh''s case (1968 JLJSN 68) and Kallu''s case 1987 MPLJ 716 may usefully be perused.

Before entering into detailed discussion touching the controversy as to whether or not temporary injunction could be granted in the case of an order u/s 145(6), Cr. P.C. for restoration of possession, it is apposite to advert to the relevant provisions in Sub-section (4) and Sub-section (6) of Section 145, Cr. P.C. They run as under:--

"145(1) to (3) ......................

(4) The Magistrate shall then without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible decide whether any and which of the parties was, as the date of the order made by him under Sub-section (1), in possession of the subject of dispute:

Provided that, if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed, within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under Sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under Sub-section (1).

(5) .......

(6) If the Magistrate decides that one of the parties was, or should under the proviso to Sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to Sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed."

It may be noted that according to the provision in Sub-section (4) of Section 145 of the Cr. P.C. the Magistrate is concerned with the factum of actual possession of the subject of dispute on a particular day ''without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute''. An order u/s 145(6) ibid confers no title as such to remain in possession of the disputed property.

In the decision in Mathuralal Vs. Bhanwarlal and Another, it has been pointed out that Sections 145 and 146 of the Cr. P.C. together constitute a scheme for resolution of a situation where there is likelihood of breach of the peace and with the attachment of the property on the ground of emergency the jurisdiction of a Magistrate does not come to an end and he can proceed to pass a final order u/s 145(6) and need not wait for determination of the rights of the parties by the competent Court. In the decision in Bhinka and Others Vs. Charan Singh, it has been observed that the life of an order u/s 145(6) of the Cr. P.C. is conterminous with the passing of a decree by a Civil Court. In the decision in Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, (supra) it has been held that the final order u/s 145(6) of the Cr. P.C. cannot be set at naught on the ground that civil litigation has been commenced though the Civil Court has jurisdiction to give a different finding. The decision in Shankarlal''s case 1989 MPLJ 464: (1989 Cri LJ 150) is also pertinent.

Section 145(6) of the Cr. P.C. contemplates eviction in due course of law. In the decision in Narayansingh''s; case 1974 Jab LJ (SN) 100 pointing out that orders u/s 145(6) of the Cr. P.C. are police orders, distinction has been drawn between a case where a party is found to be in actual possession of the property and a case where he is deemed to be in possession and it has been held that in the former case there is no question of grant of temporary injunction as it is for maintaining status quo and not for ''eviction''but in the other case the power of the Civil Court under the C.P.C. is not fettered and temporary injunction can be granted. The decision in Kaliprasad Das and Another Vs. Gadadhar Sahu, (supra) refers to Bhinka and Others Vs. Charan Singh, (supra) and makes an illuminating reading on the subject.

It may be stated that where a person has a right to possession but taking the law into his hands makes forcible entry otherwise than in due course of law, it would be a case of both forcible and wrongful dispossession within the meaning of the proviso to Sub-section (4) of, Section 145 of the Cr. P.C. which is founded on the principle that forcible and wrongful dispossession is not to be recognized under the criminal law. Reference in this connection may usefully be made to the decision in R.H. Bhutani Vs. Miss Man J. Desai and Others,

As already stated the orders u/s 145(6) of the Cr. P.C. are merely temporary police orders made to prevent the breaches of the peace. Such orders passed as a result of an inquiry in a summary proceedings decide no question of title and are not conclusive. They are subject to the result of the decision of the competent Court entitled to determine the question of right or title to the property and the powers of the Civil Court are in no way fettered by an order passed u/s 145(6), Cr. P.C. In this connection reference may usefully be made to the decisions in Kaliprasad Das and Another Vs. Gadadhar Sahu, (supra) Narayansingh''s case (1974 Jab LJ 100) (supra). In the last mentioned decision reliance has been placed on the decision in Brojendra Kumar''s case AIR 1960 Gau 111. In the said Assam decision it has been held that order for restoration of possession by the Criminal Court in proceedings u/s 145 did not in any manner affect the jurisdiction of the Civil Court to grant an injunction restraining the defendant from dispossessing the plaintiff, if an appropriate case was made out for the exercise of its discretion under Order 39, C.P.C. In this connection reference may also be usefully made to the decision in Ramsingh''s case 1972 Jab LJ 104, Therein it has been observed as under :--

"Where a person has obtained a decree in a regular suit there would be no justification for granting an interim injunction merely because it is challenged in a separate suit on the ground of fraud or otherwise. But where the decree is that of a Revenue Court or of a Civil Court in proceedings of a summary nature which is subject to the decision of a Civil Court in regular suit an interim injunction may be granted if other conditions justifying the grant of an injunction are fulfilled."

The decision in Chhaganlal Vs. Nane Shah, is also apposite. It may be stated here that the decision in Sevadas'' case AIR 1947 Lah 173 strikes a discordant note. Therein it has been stated that the Civil Court cannot question the finding in the order u/s 145(6), Cr. P.C. though it is open to it to decide ultimately that the person in whose favour the order was passed had no right or title to be or to remain in possession.

In the decision in Kamalsingh''s case (1986) 1 MPWN 116 relying on the decision in Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others, it has been held that temporary injunction under Order 39, Rule 1 cannot be claimed merely on the basis of possession. The possession should be lawful and possession of a trespasser cannot be protected. In the decision in K. V. Narayan''s case AIR 1986 Kar 77 it has been pointed out that the insertion of Rule 1(c) in Order 39 of the C.P.C. by 1976 amendment does not mean that the Legislature intended that a trespasser in possession may be granted temporary injunction. The relief being a relief in equity the Court cannot aid a person who himself is guilty of doing a wrongful thing. The matter may be different where there is acquiescence. In paragraph 14 of the decision in R.H. Bhutani Vs. Miss Man J. Desai and Others, (supra) the decision in Jiba v. Chandulal, AIR 1926 Bombay 91 and Amritlal N. Shah Vs. V. Nageswara Rao, have been referred to. In the Bombay decision it has been stated that it would be unfair to allow a party the advantage of his forcible and wrongful possession. In the Madras decision it has been observd that a party who does not take the law in his own hands in reply to the other party forcibly and wrongfully dispossessing him is not to be put to a disadvantage and he is entitled to the benefit of the remedy u/s 145, Cr. P.C. In the decision in Chandmal''s case (Civil Revision No. 235/83, decided on 26-4-1985) it has been held that an injunction being the remedy in equity, a wrong-doer is not entitled to take advantage of his own wrong.

In the decision in Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others, it has been held that Section 41(b) of the Specific Relief Act, 1963 curtails the power to grant injunction in personam and if the final relief cannot in terms be granted temporary relief in the same terms can hardly, if ever, be granted as power to grant temporary relief is in aid or as auxiliary to the final relief in order to maintain status quo so that the final relief can be appropriately moulded without the party''s position being altered during the pendency of the suit and that Section 151 cannot be invoked to nullify the provision in S. 41(b) of the said Act. The decision in Kaliprasad Das and Another Vs. Gadadhar Sahu, (supra) is also pertinent. Reference may also be usefully be made to the decision in Raman Hosiery Factory, Delhi and Others Vs. J.K. Synthetics Ltd. and Others,

The order u/s 145(6) of the Code is subject to the decision of competent Court and on a careful consideration of the authorities referred to above, I am of the view that even in the face of an order u/s 145(6) of the Cr. P.C. temporary injunction may be granted. However, where the Civil Court on the basis of the material placed before it does not come to a conclusion contrary to that recorded by the Criminal Court regarding forcible and unlawful dispossession of the defendant it has to be held that no case under Order 39, Rule 1(c) of the C.P.C. for grant of temporary injunction has been made out. Where the finding of the Criminal Court is not found to be incorrect, to grant temporary injunction to the trespasser would amount to putting a premium on lawlessness and allowing the period of unlawful possession to be prolonged. On equitable considerations no Court would in the circumstances countenance the grant of the relief to him.

In the instant case the finding of the Criminal Court is against the respondents and there is nothing to hold that prima facie the possession of the respondents over the property in dispute has a lawful origin. The question whether or not the deposit of money towards the mortgage debt has the effect of bringing the mortgage as also the tenancy to an end has to be determined by the executing Court with reference to the relevant documents and it is only when the answer is in favour of the respondent that they become lawfully entitled to obtain possession of the property.

The learned lower Court failed to consider the full effect of the finding as to the respondents'' forcible and unlawful entry in the property in dispute. As already pointed out the order u/s 145(6), Cr.P.C. no doubt deals merely with the factum of possession as distinguished from title to it and contemplates eviction ''in due course of law'' which does not necessarily mean eviction under a decree as is clear from the decision in Kaliprasad Das and Another Vs. Gadadhar Sahu, (supra) wherein it has been held that the life of the order is not necessarily conterminous with a Civil Court''s decree for eviction, however, when the finding of the Criminal Court was not interfered with, the learned lower Court ought to have realised that by granting the relief of temporary injunction it would not only be lending a helping hand to the trespassers but would also be acting in derogation of the provision in Section 41(b) of the Specific Relief Act, 1963 because the word ''injunction'' used therein comprehends both interim and perpetual injunction as held in paragraph 10 of the decision in Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others,

From the foregoing discussion the conclusion is irresistible that in passing the impugned order the learned lower Court did not exercise its discretion with due advertence to considerations legal as well as equitable.

The impugned order is thus vitiated by improper exercise of the discretion and cannot be allowed to stand.

In the result, the appeal succeeds and is allowed with costs. The impugned order is set aside and the respondents'' application for grant of temporary injunction is dismissed. Counsel''s fee Rs. 200/-, if certified.