Sheo Nandan Prasad vs Sheo Parsan pathak and Others

Fazl Ali, J.—This is an appeal under the Letters Patent from a judgment of Dhavle, J., affirming the concurrent decrees of the first two Courts in a second appeal. The facts found are briefly these: The plaintiffs are the mortgagees of a share of which defendant 1 is the proprietor. The plaintiffs were not recorded in the Collector''s register until some time after 1931. In 1934 defendant 1 instituted suits against a number of tenants to recover rent for the years 1337 to 1340 F. These suits were resisted by the tenant defendants on the ground that defendant 1 was not entitled to the rents and that the rent had been paid to the plaintiffs. This plea did not succeed as the plaintiffs were not recorded, in register D. After the original decrees of the trial Court the plaintiffs got themselves recorded, but they were not allowed to prove this fact during the later stages of the suit. Defendant 1, however, brought a suit (Suit No. 170 of 1934) for getting the mutation order in the rehandar''s favour set aside, but this suit was dismissed in 1936 and the defendant''s appeal from the dismissal was also dismissed in June 1937. In November 1936, the plaintiffs brought the present suit for a declaration that the rehan deed standing in favour of their ancestor still subsisted, and so long as the rehan was not redeemed, defendant 1 had no right to realise rent from the tenants and that the decrees which had been passed in the rent suits were not binding upon them. They also prayed for an injunction to restrain defendant 1 from realising the decretal amounts, and to restrain the defendants second party who were the tenants against whom the decrees had been obtained from making any paym&it to defendant 1.

The first two Courts decreed the plaintiffs'' suit and granted an injunction permanently restraining defendant 1 from realizing rent under the decrees made in the rent suits to which reference has already been made. The Munsif also directed that "a note to that effect will be made in the relevant register of the Munsif, Second Court, Arrah." Defendant 1 thereupon preferred a second appeal, but this appeal was dismissed by Dhavle, J. who upheld the decrees of the Courts below. Defendant 1 has preferred this appeal under the Letters Patent. The only question which has been raised in this appeal is that on the facts of the case no injunction can be granted in favour of the plaintiffs. The learned advocate for the appellant in support of his argument referred us to the provisions of Section 56, Clause (a) and (b), Specific Belief Act. Clause (a) provides that "an injunction cannot be granted to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings." Again Clause (b) provides that "an injunction cannot be granted to stay proceedings in a Court not subordinate to that from which the injunction is sought." It is contended, in the first place, that the injunction which has been granted is virtually an injunction staying a judicial proceeding, and it is also contended that the injunction is wholly unwarranted, firstly, because there is no likelihood of multiplicity of proceedings, and, secondly because the Munsif, in whose Court the execution proceedings are pending, is not subordinate to the Munsif who has tried the present suit. It was pointed out that the present suit has been tried by the Munsif in charge of the third Court at Arrah, whereas the execution proceedings are pending in the Court of the Munsif in charge of the second Court.

Now, it appears to me that the whole argument is based upon a misconception. The plaint in the suit as well as the decree against which this appeal is directed clearly show that the plaintiff never asked for an injunction for staying any judicial proceeding but simply asked for an injunction against defendant 1 so as to restrain him from executing his decrees. The decree further shows that an injunction has been granted as against defendant 1 only. In my opinion therefore Clause (a) and (b) of Section 56 have no application to the present case. In my view, the injunction, which has been granted in this case could have been granted u/s 54, Specific Belief Act. Section 54 provides that "subject to the other provisions contained in, or referred to by, this chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.

The second part of the section further provides that "when the defendant invades or threatens to invade the plaintiff''s right to, or enjoyment of, property, the Court may grant a perpetual injunction in certain cases, one of the cases being where the injunction is necessary to prevent a multiplicity of judicial proceedings." In my opinion, the present case falls within the first as well as the second part of Section 54. It is apparent that defendant 1 as a mortgagor was under an obligation to allow the plaintiffs who are the mortgagees to remain in peaceful possession of the property mortgaged to them, and that so long as the mortgage subsists the plaintiffs and not defendant 1 is entitled to realize rents from the tenants. If during the subsistence of the mortgage defendant 1 tries to realize rent from the tenants, it is undoubtedly a "breach of an obligation existing in favour of" the plaintiffs, and it is also an invasion of their rights to enjoy the property. In the present case, the injunction was claimed on the ground that it was necessary to prevent the breach of the obligation and also on the ground that the defendant by executing the decree against the tenants, who were under an obligation to pay rent to the plaintiffs, was invading the plaintiffs'' right to the enjoyment of the property. If the case falls under the first part of Section 54, then, clearly, no further question arises. If the case falls under the second part of Section 54, then it is necessary to show that the injunction is necessary to prevent a multiplicity of judicial proceedings. In the present case, there can be no doubt that but for the injunction there would be a multiplicity of judicial proceedings. The position as to whether the plaintiffs have already realized rent from the tenants or not is not quite clear; but whether they have realized it or not, there is bound to be litigation if the injunction is not granted. The learned advocate for the appellant pointed out that it was held by the Munsif that the plaintiffs have not realized rent from the tenants. If that is so, and if defendant 1 is allowed to realize rent from the tenants by execution of his decrees, then, u/s 60, Ben. Ten. Act, and Section 81, Land Registration Act, the plaintiffs will be entitled to recover the sum so realized from defendant 1 by means of a suit. In other words, they will be driven to another suit for the purpose of realizing the rents which defendant 1 proposes to realize from the tenants by means of execution. This multiplicity of proceedings can, however, be avoided by granting an injunction in the present case.

The learned advocate for the appellant referred us in the course of his argument to Karnodhar Haldhar v. Hari Prosad Rai 1910 37 Cal. 731 and Ram Kissen v. Pooran Mull AIR 1920 Cal. 239 In the former case, it was held that where the defendant has not invaded, or threatened to invade, the plaintiff''s right to, or enjoyment of, any property, and there is no apprehension of a multiplicity of judicial proceedings to which the plaintiff need be subjected for the purpose of establishing or safeguarding his rights or for preventing the acquisition of rights of the defendant, Section 56, Specific Relief Act, constituted a manifest bar in the way of the plaintiff''s suit for a declaration that the defendant had no title to taking possession of the lands by executing his decree. In that case, however, as was explained by Jenkins Order, J., the plaintiff had not succeeded in establishing that the injunction was necessary to prevent a multiplicity of judicial proceedings. The learned Judges did not deal with the question as to whether the injunction was directed against the Court or the party; but it may be assumed that on the facts which were before them, it was held that the case was hit by the provisions of Section 56, Specific Relief Act. The case in Ram Kissen v. Pooran MullAIR 1920 Cal. 239 does not, also, in my opinion, assist the appellant in any way. It was rightly pointed out in that case that Sections 54 and 56, Specific Relief Act, are to be read together as supplementing each other, because the former defines the circumstances under which the perpetual injunction may be granted and the latter enumerates cases where an injunction must not be granted. The present case, as I have already shown, clearly rails u/s 54, and the learned advocate for the appellant has not been able to convince us that it falls within any of the clauses of Section 56.

The only other question which need be dealt with now is the question relating to that part of the decision of the Munsif which directs that a note should be made in the relevant register of the Munsif of the second Court to the effect that defendant 1 has been restrained from executing his decrees. The question is whether an order to this effect amounts to an injunction against the Court. The learned single Judge of this Court has relied upon Chandmal Marwari and Others Vs. Raja Shib Prasad Singh and Another, , to show that though there may be several Munsifs in the district the Court is the same. In my opinion, it is not necessary to approach the matter from that point of view. In my opinion, the direction in question in the decree of the Munsif does not amount to an injunction against another Court but was merely intended to convey the information to that Court that an injunction has been granted as against defendant 1. In my view, this appeal must fail, and I would dismiss it with costs.

Harries, C.J.

I agree.