Madan Lal and others vs Dil Singh

S.P. Goyal, J.—Respondent Dil Singh filed a suit for possession of the land in dispute by way of pre emption on the ground that he was a tenant thereon under the vendor on the date of its sale. As the vendees had instituted the proceeding, for has ejectment under the Punjab Security of Land Tenures Act, he moved an application for an ad interim injunction restraining the vendees from proceeding with the ejectment proceedings. Relying on a decision of the Supreme Court in Rikhi Ram v. Ram Kumar 1975 P.L.J. 331, the trial Court accepted the application and issued an ad interim injunction, as prayed, vide orders dated October 6, 1980. The appeal filed by the vendees against that order was dismissed by the learned District Judge, Rohtak, vide judgment dated December 18, 1980. Still dissatisfied, they have come up in this revision petition.

No specific provision of law was relied upon by the respondent or mentioned in the orders of the Courts below under which the impugned order had been passed but the Learned Counsel for the respondent sought to support it by invoking clause (c) of rule 1, Order 39, Civil Procedure Code. The said clause (c) provides that a temporary injunction may be granted by the Court where in a suit it is proved that the defendant threatened to dispossess the plaintiff or otherwise cause an injury to him in relation to any property in dispute. Obviously, by pursuing the suit for ejectment, the vendees were neither threatening to dispossess the plaintiff nor to cause an injury to him in relation to the suit property because the threat or the injury necessarily in plies the commission of a wrongful act When a person pursues his legal remedy in a court of law, may be to eject the plaintiff, he cannot, by any stretch of reasoning be said to threaten to dispossess or cause injury to the plaintiff in relation to the suit property. The Learned Counsel for the respondent also did not seriously dispute this proposition and, therefore, laid stress mainly on the inherent powers of the courts u/s 151, Civil Procedure Code.

In Manohar Lal Chopra v. Rai Bahadur Rao Raje Seth Hiralal AIR 1 62 S.C. 527 it was ruled that the provisions of Order 39 are not exhaustive and that ad interim injunction can be issued in exercise of the inherent powers of the Court for the ends of justice even if the matter is not covered by the former provisions. Relying on Cohen v. Rothfield (1919) 1. K.B. 410, it was further ruled out while the jurisdiction is there to restrain the defendant from proceeding with any other suit in a regularly constituted Court of law but that jurisdiction is to be exercised with great care and caution and not to be resorted to unless action of the defendant is really vexatious and useless. As the proceedings instituted by the vendees were neither vexatious nor useless no case was made out for issuing ad interim injunction restraining them from pursuing the proceedings for ejectment.

The Learned Counsel for the respondent then contended that if the order of ejectment is passed against the plaintiff during the pendency of the suit, his right of pre-emption would be defeated and it would cause irreparable less and to prefect the same ad interim injunction has been rightly issued by the Courts below. Reliance for this proposition has been placed on a decision of the Supreme Court in Rikhi Ram''s case (supra). I, however, do not find any merit in this contention All that was observed in Rikhi Ram''s case was that in a given case the landlord may be prevented from obtaining the order of ejectment against a tenant so that latter''s right to preempt the sale made in favour of the former may not be defeated. From these observations, it cannot be inferred that any absolute rule was laid down that whenever a tenant files a suit for pre-emption proceedings instituted by the vendees for his ejectment should be stayed. Nor any guidance has been provided as to what would be the circumstances under which such an injunction may he issued. On the other hand as far back as the year 1958 the Supreme Court in Bishan Singh and Others Vs. Khazan Singh and Another, ruled that the right of pre-emption being a very weak right, can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place. If the right of pre emption can be defeated by the vendees by allowing a claim of superior or equal right being substituted in his place it can certainly also be defeated by pursuing a legal remedy so as to deprive the pre-emptor of the qualification by lawful means, on the basis of which he claims superior right of pre emption. In fact, by allowing the claim of superior or equal right being substituted in his place also, the vendees in a way deprived the pre-emptor of his superior right of pre-emption. On principle, therefore, there would be no distinction where the right is defeated in the way as recognised in Bishan Singh''s case (supra) or by seeking an ejectment order through properly instituted legal proceedings The vendees, therefore, were committing no wrong in pursuing the ejectment proceedings and the Courts below had no jurisdiction to issue any injunction restraining them from doing so.

It may also be observed that a co-sharer has also a right of pre-emption if the sale is made out of the joint khewat by another co-sharer. The vendee can defeat the right of pre-emption in such a case by getting the khewat partitioned before any decree in the suit is passed, is mode of defeating the right of pre-emption of a co-sharer has been (sic) by the Courts and never a contrary view has been taken, (sic) therefore, the rule of stare decisis can also be safely invoked to hold (sic) has a right to deprive the pre-emptor of the qualification basis of which he claims preferential right by means of an order passed by a competent authority in collateral proceedings. The vendees were, therefore, within their right to institute ejectment proceedings to deprive the pre-emptor of the status of a tenant to defeat his right of pre-emption and the Courts below has no jurisdiction to restrain them from pursuing ejectment proceedings.

In view of the above discussion, this petition is allowed and the impugned order set aside. No costs.