Naresh Chandra Agrawal vs State of U.P. and Others

Pankaj Mithal, J.—The plaintiff respondent No. 3 Ram Saran Rai instituted Original Suit No. 79 of 2010 (Ram Saran v. Naresh) to declare the judgment, order and decree dated 7.9.1996 passed in Original Suit No. 361 of 1993 between the parties as illegal, null and void and for permanent injunction restraining the defendant petitioner from evicting him from the suit land in pursuance of the said decree.

In the suit his application for interim injunction under Order 39 Rule 1 and 2 CPC was rejected by the first court vide judgment and order dated 6.5.2010. The said judgment and order was taken in appeal by the plaintiff respondent No. 3 and the said Misc. Appeal has been allowed by the impugned judgment and order dated 5.6.2010. The order of the first court dated 6.5.2010 has been set aside, the application of the plaintiff respondent No. 3 for temporary injunction has been allowed and the delivery of possession of the disputed property has been kept in abeyance.

The defendant appellant as such has preferred this writ petition challenging the judgment and order of the lower appellate court dated 5.6.2010 passed in Misc. Civil Appeal No. 48 of 2010.

After exchange of affidavits petition has been placed before me by nomination and the parties agree for the final disposal of the petition at the admission stage itself.

I have heard Sri Bhagwati Prasad Singh, Senior Advocate assisted by Sri M.M.D. Agrawal on behalf of the defendant petitioner and Sri D.P. Singh, Senior Advocate assisted by Sri V.R. Dwivedi learned Counsel for the plaintiff respondent No. 3. Respondents No. 2 and 3 are only formal parties.

The brief facts giving rise to the above writ petition are as follows:

Petitioner claimed himself to be the owner and land lord of the land in dispute wherein respondent No. 3 was in possession of the same and on that basis petitioner instituted Suit No. 24 of 1980 Mahesh Chandra v. Ram Saran Rai for ejectment of respondent No. 3 and for recovery of arrears of rent and damages for the use and occupation. The suit was decreed on the basis of a compromise on 4.3.1981. The land in dispute in the compromise was shown by letters A,G, F and E. Respondent No. 3 was admitted as tenant of the same at a rent of Rs. 300/- per month. He was not accepted to be the tenant of any part of 15ft wide open rasta situate on the north of it. Respondent No. 3 defaulted in the payment of rent, therefore, petitioner by registered notice terminated his tenancy and instituted another Original Suit No. 361 of 1993 for his ejectment, recovery of arrears of rent and damages for use and occupation @ Rs. 25/- per day. The suit was contested by respondent No. 3 by filing written statement accepting the compromise dated 4.3.1981 and that he was tenant of the land in dispute. The suit was decreed on 7.9.1996. The appeal preferred by respondent No. 3 was partly allowed on 27.1.1998 and the decree for ejectment and for damages was set aside. However, in second appeal filed by the petitioner, the judgment and order of the lower appellate court was set aside and the decree of the trial court for ejectment, arrears of rent and damages was restored by the High Court vide judgment and order dated 25.8.2008. The SLP of the respondent No. 3 against the said judgment and order of the High Court was dismissed on 27.1.2009 and as such the decree of the trial court dated 7.9.1996 passed in Original suit No. 361 of 1993 attained finality between the parties. In respect of the said decree execution case No. 3 of 2009 is pending in the court of Civil Judge (Junior Division), Jhansi which is being contested by the respondent No. 3. It was in the above background that respondent No. 3 instituted suit No. 79 of 2010 against the petitioner declaring the decree dated 7.9.1996 as illegal, null and void and not to dispossess him from the land in dispute on the basis of the said decree on the allegation that the land in dispute is covered by the provisions of the U.P. Tenancy Act, 1939 and therefore the civil court had no jurisdiction to grant a decree which is a nullity.

The submission of Sri B.P. Singh, learned Counsel for the petitioner is that the decree of eviction passed against respondent No. 3 in suit No. 361 of 1993 passed by the trial court having been restored and confirmed by the High Court and upheld by the Supreme Court, the present suit of respondent No. 3 is not maintainable and is clearly barred by principles of constructive res-judicata. Respondent No. 3 having accepted himself to be the tenant of land can not take objection even in execution that he has become the owner of the land in dispute by virtue of provisions of U.P. Tenancy Act and that the decree is nullity. Moreover, when the lower court had refused temporary injunction to respondent No. 3, it is not open for the lower appellate court to have granted any interim protection to respondent No. 3.

The arguments of the learned Counsel for the petitioner have been countered by Sri D.P. Singh on behalf of respondent No. 3 and it has been contended that as the lower appellate court was prima-facie satisfied that the issue involved in the suit is with regard to decree being nullity for want of jurisdiction, the lower appellate court committed no error of law in protecting the rights of respondent No. 3 by way of interim injunction till the validity of decree is decided.

No doubt, one of the questions involved in the present suit may be about its maintainability or as to whether the decree passed in the earlier suit is a nullity but none of these two questions can be made the subject matter of the present writ petition.

In the instant writ petition the Court is only concerned and has been called upon in exercise of his supervisory jurisdiction to see as to whether the lower appellate court was within its jurisdiction in passing the impugned order or has materially erred in exercising the same by granting interim injunction when the same was refused by the lower court.

In view of the above, I am confining myself to the limited aspect as enumerated above instead of going into the wider issues which in fact may be the subject matter of the suit itself.

Respondent No. 3 in the plaint has started claiming himself to the owner in possession of the land and alleges that the said land was not within the ambit of the U.P.Z.A. and L.R. Act and as such was covered by U.P. Tenancy Act, 1939. Therefore, the civil court was not competent to pass any decree of eviction and the decree so passed against him in the earlier suit is a nullity. The pleadings of the suit are apparently in conflict with his earlier stand taken in Original Suit No. 361 of 1993 wherein he accepts himself to be the tenant only. The aforesaid pleadings are also in contravention of the decree passed in yet another earlier suit No. 24 of 1980. Therefore, the stand taken by respondent No. 3 in the present suit can not be reconciled with his earlier defence. The plea which he has taken in the present suit was actually available to him at the time of the previous suit but admittedly he had not pleaded the same. Therefore, the suit appears to be ex-facie barred by principles of constructive res-judicata as well as Order 2 Rule 2 read with Order 23 Rule 1 CPC.

Respondent No. 3 in the present suit has not even pleaded as to exactly in what manner and under what provisions of law the jurisdiction of the civil court in the earlier suit stood ousted so as to render the decree passed a nullity.

The petitioner is admittedly having a decree of eviction against respondent No. 3 of the civil court which has been affirmed by the High Court in second appeal and has also been upheld by the Supreme Court. Therefore, the case of the petitioner stands at higher and better footing in comparison to that of respondent No. 3. He can not be denied the benefit or the fruits of the decree which stands in his favour unless the decree is established to be a nullity.

It is true that in view of Kiran Singh and Others Vs. Chaman Paswan and Others, Most. Rev. P.M.A. Metropolitan and others, etc. etc. Vs. Moran Mar Marthoma and another etc. etc., and Urban Improvement Trust, Jodhpur Vs. Gokul Narain and another, the objection with regard to the nullity of the decree passed by the civil court can be set up whenever and wherever it is sought to be executed, enforced or relied upon and even in collateral or execution proceedings and as such may entitle respondent No. 3 to take objection with regard to nullity of the decree either in the execution proceedings or by way of a separate suit but mere filing of such a suit and alleging the decree to be nullity can not in itself be sufficient to entitle him to an interim protection until and unless the court is satisfied that the three necessary conditions viz., prima-facie case, balance of convenience and irreparable loss are proved to be in his favour apart from host of other factors which may be relevant under the facts and circumstances of the case.

The lower court in refusing interim injunction to respondent No. 3 has recorded a very clear finding that in view of decree of eviction passed in suit No. 361 of 1993 which has attained finality upto the Supreme Court, respondent No. 3 has no prima-facie case and that the balance of convenience is also not in his favour.

The aforesaid findings returned by the lower court have not been disturbed or set a side by the lower appellate court. The lower appellate court has not said a word with regard to essentials of Order 39 Rule 1 CPC for grant of temporary injunction except for the fact that a suit has been filed alleging that the decree sought to be executed is a nullity as the civil court lacked jurisdiction to pass the same. The lower appellate court has not in any manner recorded any reasoning to justify the grant of temporary injunction much less with regard to prima-facie case, balance of convenience and irreparable loss.

Law is well settled that unless at least the above three essential conditions are fulfilled and satisfied, no court has any authority in law to grant any injunction of a temporary nature. Thus, in the absence of such a finding about fulfilment of the conditions for grant of temporary injunction, the lower appellate court grossly erred and in fact exceeded its jurisdiction in passing the order protecting possession of respondent No. 3 from the land in dispute till the plea of nullity is decided.

In DDA v. Skipper Construction Co (P) Ltd. the Supreme Court deprecated the practice of some of the courts in granting interim orders/injunctions in a mechanical manner without realising the harm caused to the other side or to public interest. It observed that before making an order, the court must be satisfied that it is a case which calls for such an interim order/injunction. A case of grant of interim injunction can only be made out, if general principles like prima-facie case, balance of convenience and irreparable loss are considered and satisfaction in that regard is recorded.

Moreover, the lower appellate court materially erred in interfering with the discretion exercised by the lower court in refusing the interim injunction to respondent No. 3 particularly when no error or legal flaw in exercise of said discretion has been pointed out.

In view of the aforesaid facts and circumstances, the impugned order dated 5.6.2010 passed by the lower appellate court in Misc. Civil Appeal No. 48 of 2010 (Ram Saran Rai v. Naresh Chandra Agrawal) is unsustainable in law and can not be allowed to stand a minute henceforth. It is accordingly set aside.

Petition allowed with costs.