Sheodhar Prasad Singh vs Ramsaroop Singh

Ross, J.—The Local Government acting under the powers conferred upon it by Section 35 of the Bengal Ferries Act, 1885, have transferred the management of a ferry called Rewa Ghat Ferry in the District of Saran to the District Board. The lease of the tolls of the ferry being about to ''expire oil'' the 30th November, 1924, notice was given that, the tolls would be leased by public auction on the 30th October, 1924. The auction was held on that date and continued on the 3rd November, when the respondent was the highest bidder with a bid of Rs. 5,700. After consideration by the Vice-Chairman and the Chairman, an order was passed en the 29th November, settling the ferry with the respondent for a term of three years from the 1st December, 1924, and requiring him to take charge-of the ferry and make the necessary payments. Thereafter on the 1st December, the respondent took possession of the ferry and the settlement was referred to the Commissioner of the Division for approval u/s 9 of the Act. But the Commissioner disapproved of the settlement with the respondent and directed that the ferry should be settled with the appellant for a term of one year. An order was then issued by the Chairman of the District Board informing the respondent that the settlement with him had been disapproved by the Commissioner and requiring him to give up possession'' to the appellant. Thereafter the respondent instituted a suit for a declaration that the settlement of the ferry was lawfully made with him and that the settlement with the appellant was inoperative and ineffective against him. With his plaint he made an application for an. interlocutory injunction restraining the defendant from interfering with his possession. The defendant replied to the application for an injunction maintaining that the settlement made with him by the Commissioner was a good settlement and that he had been put in possession by the Chairmen of the District Board and. that no injunction could issue. The learned Subordinate Judge however, made an order, in favour of the plaintiff holding that the plaintiff had taken possession of the ferry in due course and that it was the duty of the Court to preserve the existing state of things pending the suit. Against that order the present appeal has been brought.

"In order to entitle the plaintiffs to an interlocutory injunction, though the Court is not called upon to decide finally upon the right of the parties, it is necessary that the Court should be satisfied that there is a serious question to be tried at the hearing, and. on the facts before it there is a probability that the plaintiffs are entitled to relief per Cotton, L.J., in Preston v. Luck (1884) 27 Ch. D. 497.

That is the general principle on which the Courts act in these matters. On the question of title, so far as it falls to be considered at this stage, it is only necessary to, refer to the order of the Commissioner and to the relevant section of the Ferries Act. The Commissioner after reciting the facts said:

I do not approve the settlement with Ram Swamp Singh but u/s 9 of the Ferries Act I approve the lease of the tolls to Sheodhar Prasad Singh for a period of one year as asked for by him at the highest amount bid, viz., Rs. 5,700.

Now Section 9 of the Bengal Ferries Act runs, as follows:

The tolls of any public ferry may, from time to time, be leased by public auction for such term as the Magistrate of the District in which such ferry is situated may, with the approval of the Commissioner, direct.

It would appear from the terms of this section that in the District of Saran, where the District Board has been substituted for, the Magistrate of the District in this matter, the tolls of a public ferry are to be leased by public auction and that the approval of the Commissioner is limited to the term of the lease. The order of the Commissioner, therefore, seems to assume a power which is not conferred by law, in that he disapproved not of the term of the lease but of the whole lease and made a settlement with one who had not been the highest bidder at the auction. At this stage it as unnecessary to say more on the question of title; but it is clear that the plaintiff has a substantial question to raise and that so far as can be seen at present there is a probability that he is entitled to relief.

On the question of possession there is the parivana to the plaintiff issued on the 29th November, 1924, by the District Board reciting the settlement with him and ordering him to take charge of the ferry from the old contractor and manage the ferry. There is a further order by the Chairman dated the 8th January, 1925, to the plaintiff informing him that the Commissioner had disapproved of the settlement of the ghats with him and had sanctioned a settlement with the old lessee, Babu Sheodhar Prasad Singh, for a year. The plaintiff was, therefore, directed to give up possession and make over charge to Babu Sheodhar Prasad Singh. On the same day a parwana was, issued to the peon of the District Board who reported on the 9th that he went to deliver possession of the ferry to Babii Sheodhar Prasad Singh and put his servants in possession and they began to ply a boat; but two hours after the plaintiff''s party with a large number of people came prepared to commit a riot and with great difficulty he persuaded them to desist. On the 12th of January, a notice was issued against the respondent by the Magistrate u/s 144 Of the Cr.P.C. but the order was discharged on the 3rd of February.

The suit was instituted on the 19th January, and the injunction was granted on the 22qd. It, therefore, appears that the plaintiff had been put in possession of the ghat and had been in effective possession-from the 1st December till the 9th of January, and that his possession was only temporarily and not apparently effectually disturbed when the settlement was subsequently made with the defendant. In these circumstances it seems to me that it was the duty of the Court to maintain the possession of the respondent by granting this injunction.

The only question that remains is whether it is competent to the Court to grant an interlocutory injunction in a suit which is a suit for a declaration only, where no permanent'' injunction is claimed. The learned Vakil for the respondent, in order to escape from the difficulty which this question raises, has undertaken to amend the plaint, praying for a permanent injunction, and to pay the necessary Court-fee. If this is done, there is no legal obstacle to the injunction being continued.

The proper order, therefore, to make in this appeal is that if the plaint is amended in this manner and the necessary Court-fee is paid by the 15th of April, 1925, the appeal will stand dismissed, but in default of this amendment and payment of Court-fee being made by that date, the injunction will stand dissolved.

The application in revision is dismissed. There will be no order as to costs.

Mullick, J.

I agree.