Shakuntala Devi vs District Judge and Another

D.K. Seth, J.—The opposite party had initiated a proceeding in 1992 u/s 145, Code of Criminal Procedure The property was taken into custodia legis by the court in terms of Section 146, Code of Criminal Procedure In the said proceeding, the Plaintiff was not a party though her brother was a party thereto, Against the said order, a writ petition being Civil Misc. Writ Petition No. 9369 of 1993 was filed in which it was held as follows:

In this writ petition, no final order regarding the subject-matter of dispute can be passed. At best, the judgments and orders passed by the Respondents Nos. 1 and 2 could be quashed and Respondent No. 2 could be directed to proceed in the matter after making Petitioner No. 1 party to the proceedings. This would, however, not serve any purpose because the matter is pending in the civil court and during the pendency of the matter in the civil court, the Magistrate would not be entitled to pass any final order in so far as proceedings u/s 146, Code of Criminal Procedure are concerned.

The legal position is that the order passed by the Magistrate in proceedings u/s 145, Code of Criminal Procedure would be subjected to the decision of the civil suit filed by Petitioner No. 1 in the court of Munsif City, Jaunpur and in this view of the matter, no useful purpose would be served by quashing the impugned orders of Respondents Nos. 1 and 2.

On the above observation, the said writ petition was dismissed.

In a suit being Original Suit No. 283 of 1993, an order of injunction was granted by the learned Civil Judge, Junior Division, Jaunpur on 5th August, 1995 upon an application for interim injunction. Against the said order, Misc. Appeal No. 140 of 1995 was preferred by opposite party No. 2 herein, being the Defendant in the suit filed by the Petitioner herein as Plaintiff. The said appeal was allowed by order dated 15th November, 1995. The present petition has been moved against the said order.

When the question of maintainability of an application under Article 226 of the Constitution in respect of the order passed by the civil court in a suit for injunction was raised on the basis of the decision in the case of Qamruddin v. Rasool Bux 1990 (1) AWC 308 and the case of Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad and others, . Mr. Shashi Nandan, learned counsel for the Petitioner, prayed for leave to amend the cause title so as to convert the application under Article 227 of the Constitution. In the facts and circumstances of the case, the said leave is granted. Mr. Shashi Nandan is directed to carry on the amendment in the course of a week.

Drawing my attention to the order passed by the learned Munsif being Annexure ''3'' to the petition, while translating the same at the bar, Mr. Shashi Nandan pointed out that the learned Civil Judge had come to a definite finding that the suit property is in possession of the Plaintiff and that has been proved by various documents produced by her. Drawing my attention to the order passed by the lower appellate court while translating the same simultaneously at the Bar. Mr. Shashi Nandan points out that nowhere the said appeal court has come to a definite finding as to the possession of the parties. The learned lower appellate court has also not dealt with the finding of the learned trial court with regard to the possession of the Plaintiff. On the other hand, he points out that the learned lower appellate court has proceeded on the basis that by reason of an order passed in proceedings u/s 145, Code of Criminal Procedure, the Plaintiff was not in possession and that the said fact having not been disclosed, the Plaintiff was not entitled to any relief and, therefore, she could not have any injunction.

Mr. Shashi Nandan appearing on behalf of the Petitioner contends that any order passed u/s 145, Code of Criminal Procedure is subject to the decision by the civil court. Therefore, the question of possession by virtue of any order u/s 145, Code of Criminal Procedure cannot survive as soon as any order has been passed by the civil court and the same has been so observed in the order passed in the said Misc. Writ Petition No. 9369 of 1993, as quoted above. Even then, the order passed in the said criminal proceedings has not reached any finality and was subject to pending civil suit. The learned trial court having found possession of the Plaintiff and the same having not been dealt with by the lower appellate court, the lower appellate court had acted illegally and with material irregularity in the exercise of its jurisdiction particularly when it proceeded with alleged basis of criminal proceedings and the fact of non-disclosure thereof. In view of the situation, it was not necessary to disclose the said fact and the same cannot be a concealment. On these submissions, Mr. Shashi Nandan prays for setting aside the order passed by the lower appellate court.

Mr. Ashok Bhushan, learned counsel for the opposite party No. 2, on the other hand, contends, relying on the judgments in the case of Jagdish Vs. Rajendra, , that when the property is in custodia legis, in that event, the Plaintiff cannot claim possession by way of temporary injunction. Admittedly, the possession was with the court in terms of the order passed in the said criminal proceedings. He contends further that interim order is granted only in aid of and is ancillary to the main relief which may be available to the party on final determination of the rights in a suit or proceeding. If the purpose is achieved by way of temporary relief, in that event, the same would amount to granting the main relief, and, therefore, relying on the decision in the case of Cotton Corporation of India Ltd. v. United Industrial Bank Ltd. and Ors. AIR 1988 SC 1272. Mr. Ashok Bhushan contends that the grant of interim order by the learned trial court cannot be sustained, and was rightly set aside by the lower appellate court.

Admittedly, an order passed in proceedings u/s 145, Code of Criminal Procedure is subject to the decision that might be passed in the civil suit and there is no second opinion with regard thereto. In the present case, the Petitioner/Plaintiff is admittedly not a party to the said proceeding. An order that might have been passed in respect of self same property, the same shall not bind the Petitioner if she is not a party to the said proceeding. Therefore, she can establish and espouse her cause in the suit despite an order u/s 145, Code of Criminal Procedure in which the Petitioner was not a party. Admittedly, the brother of the Petitioner is not the owner of the property.

In that background, I am unable to accept the contention of Mr. Ashok Bhushan that no injunction can be granted when the suit property is in custodia legis as has been held in the case of Jagdish (supra). Even in that case, it was not an absolute proposition that injunction cannot be granted when a property is in custodia legis. On the other hand, it was so held in the said case that if the property is In custodia legis. in that event, it is not necessary to insert any prayer or claim any relief for possession of the property inasmuch as it was not necessary to claim possession of the property when the same is in the custody of the court. Therefore, the said case appears to be distinguishable so far as the facts and circumstances of the present case is concerned.

So far as the question of principal relief having been granted by way of interim relief, as contended by Mr. Ashok Bhushan relying on the case of Cotton Corporation of India Ltd. (supra) is concerned, is also not attracted in the facts and circumstances of the case. Inasmuch as, even if the principal relief is for an injunction, the Plaintiff can very well pray for a temporary injunction. In a suit for injunction, grant of temporary injunction that might preserve: a situation but cannot be said that the same cannot be granted unless suit is decided finally.

In the facts and circumstances of the present case, the trial court having found possession of the Plaintiff to have been proved and the lower appellate court having not decided the same and having not come to a definite finding and having proceeded on the basis of alleged concealment of fact relating to the order passed in Section 145, Code of Criminal Procedure proceeding and that the property is in possession of the court by reason of an order passed in the said criminal proceedings, it is apparent that the learned lower appellate court has acted illegally and with material irregularity in exercise of its jurisdiction while deciding the case and, therefore, cannot be said to have come to a proper finding.

The question of concealment of proceedings u/s 145, Code of Criminal Procedure in which the Plaintiff is not a party cannot be said to be a fact of concealment which can weigh for the purpose of attracting the principle that a person claiming equity should come with clean hands.

On the other hand, the facts remain that even if the Plaintiff was dispossessed by reason of an order passed u/s 145, Code of Criminal Procedure In which she was not a party, the same position cannot be allowed because the opposite party has obtained such an order without making her a party in the proceeding. In such case, the restoration of possession was not a position changed between the parties inter se by reason of the act of volition of any of the parties and the parties to such change of position is affected by reason of the order passed by the court and possession is also not. that of the opposite party No. 2 but is of the court when admittedly, as conceded by Mr. Ashok Bhushan, that property was in custodia legis. Therefore, even in such case, if the possession is given to the Plaintiff, it cannot be said that a mandatory interim order has been passed by altering the situation, namely, dispossessing the opposite party No. 2 as is understood In ordinary legal parlance, in the backdrop of the present case. Therefore, even if the Plaintiff is given possession after being dispossessed by reason of an order passed u/s 145, Code of Criminal Procedure in which the Plaintiff was not a party, the same cannot offend the principles laid down in respect of granting mandatory order by which the entire relief is granted. Even then, here it is not a case of granting such a relief. That too, it is established principle that such mandatory orders cannot be passed ex parte. More is this case, the order has not been passed ex parte but has been passed after hearing the parties. If the circumstances warrant, such orders can very well be passed. There is no absolute bar even on the established principles to grant mandatory interim order.

Therefore, in my view, it appears that the learned lower appellate court has acted illegally and with material irregularity in exercise of its jurisdiction in the facts and circumstances in allowing the appeal. In that view of the matter, the order dated 15th November, 1995 passed by the learned District Judge, Jaunpur, in Misc. Appeal No. 140 of 1995 is hereby set aside.

The suit appears to have been filed in 1993 and the question is with regard to the possession of a shop. Therefore, it is desirable that the suit itself should be disposed of as early as possible, preferably within a period of one year from this date. Both the parties are directed to produce a certified copy of this order before the learned trial court within a period of four weeks from date. Both the learned counsel assure that they shall co-operate in the early disposal of the matter and shall not seek adjournment except which is exceptionally unavoidable.

With these observations, this petition stands allowed. There will, however, be no order as to costs.

Certified copy of the order may be issued on payment of usual charges within seven days.