Shri R.S. Patel vs Shri B.K. Gupta and Others <BR> B.K. Gupta and Others Vs R.S. Patel

S.K. Ray, J.—M.A. 159 of 1973 has been filed by the Plaintiff and M.A. 171 of 1973 has been filed by the Defendants, in a suit for specific performance of contract for sale of a house described in schedule appended to the plaint. In the suit, the Plaintiff filed an application under Order 39 Rules 1 and 2 and Section 151, CPC for an order of injunction restraining the Defendants from proceeding with execution petition No. 10 of 1973 in the Court of the Munsif, Berhampur for eviction of the present Plaintiff in pursuance of the order of eviction passed under the House-Rent Control Act. This application was registered as M.J.C. No. 34 of 1973 and ad interim injunction older was issued which was made absolute by order dated 11-8-1973 on condition that the Plaintiff would deposit Rs. 15. 000/ - in Court by 18-8-1973. The operative portion of the order under appeal runs as follows:

.... In conclusion I direct that ad interim order of injunction be made absolute upon deposit of Rs. 15,0001- in Court by 18-8-1973. In default of deposit within the stipulated date, the ad interim order of injunction shall stand vacated....

To properly appreciate the contentions raised, it is necessary to narrate the background facts in more detail. The Plaintiff was a monthly tenant under Defendant No. 1 who was the landlord in respect of the plaint schedule house where the Plaintiff was holding his shop under the name and style of M/s. New Bombay Cloth Store. The landlord instituted proceedings for eviction before the House-Rent Controller. Ultimately, the order of eviction was passed on 22-7-1972 in House-Rent Control Appeal No. 5 of 1970. Thereafter, the Plaintiff filed O.J.C. No. 599 of 1972 on 10-8-1972 for quashing the eviction order, but he withdrew the same on 19-12-1972 by filing a memo that there had been a settlement between him and the landlord by which the landlord had agreed to sell the suit house to the plain tiff. Filing of that memo was unilateral act to which the landlord-Defendant was not a party. Subsequently on 2-1-1973, the Plaintiff filed. Title Suit No. 1 of 1973 in the Court of the Sub-Judge, Berhampur for the following reliefs:

(a) Specific performance of the contract;

(b) Confirmation of continued possession after declaring that he is the owner from 16-12-1972;

(c) For injunction restraining the Defendants from taking any step in execution of the decree passed by the House-Rent Controller; and

(d) For injunction against the Defendants from selling the plaint schedule house to any third party.

In paras 3 and 4 of the plaint, the allegations were:

That during the pendency of the said eviction proceedings, there was a discussion between the parties and a contract was entered into on 16th December, 1972 in which the Defendant No. 1 acting as Karta of Hindu Mitakshara coparcenery consisting of himself and Defendant No. 2 and Defendant No. 3 agreed to sell the plaint schedule property to the Plaintiff for a total consideration of Rs. 20, 000/ -.

That in part performance of the said contract, a sum of Rs. 5, 000/ - in cash was paid by the Plaintiff to Defendant No. 1 as advance consideration money of the contract and the Defendant No. 1 acknowledged and gave to Plaintiff one receipt for receiving the said advance of Rs. 5,000/

The reliefs claimed in the injunction petition filed on 2-1-1973 were:

(i) to issue injunction restraining the Defendants from taking any step in executing the decree passed in their favour by the House Rent Controller and A.D.M. (judicial), Berhampur;

(ii) and to injunct the Defendants from selling the plaint scheduled house to any third party;

(iii) xx xx xx

Contemporaneously with the filing of the injunction petition the Plaintiff filed the original receipt for Rs. 5, 000/ - referred to in para 4 of the plaint.

On 21-3-1973 counter and written statement by the Defendants were filed. The alleged agreement to sell the house was denied as also the grant of receipt in token of acknowledging the receipt of Rs. 5, 000/ - towards part payment of consideration in advance. Before the ad interim order of injunction was passed the landlord had put the eviction order into execution In the Court of Munsif, Berhampur by instituting Execution Petition No. 10 of 1973. Then on 10-2-1973 the Sub-Judge directed an ad interim injunction to be issued restraining the Defendants from proceeding with Execution Petition No. 10 of 1973 in the Court of the Munsif, Berhampur for eviction of the Plaintiff. So the Defendants entered appearance and filed their counter and also written statement. By the final order dated 11-8-1973 the Sub-Judge made the ad interim order absolute and directed that this order is conditional upon deposit of Rs. 15, 000/ - in Court by the Plaintiff which represents the balance consideration money under the contract for sale.

Being aggrieved by that portion of the order directing deposit of Rs. 15, 000/. the Plaintiff has preferred M.A. 159 of 1973. The Defendants being aggrieved by the order making the ad interim injunction absolute, have preferred M.A. 171 of 1973. Both these appeals have been heard together and will be governed by this judgment.

There is no dispute that if M.A. 171 of 1973 is allowed and the order making the ad interim injunction absolute is vacated, the other appeal must necessarily be allowed, because that part of the order directing the Plaintiff to deposit Rs. 15, 000/ - will be recalled along with the main order. But if this appeal is dismissed, even then M.A. 159 of 1973 will be considered on merits.

The petition for injunction was compositely made under Order 39 Rules 1 and 2 and Section 151, CPC Code. But the trial Court proceeded to deal with it as if it was an application made under Order 39 Rule 1, CPC arising out of a suit for specific performance of contract for sale. Mr. Murty, therefore, contends that the Parties having abandoned their case of injunction under Rule 2 of Order 39 and Section 151, CPC in the Court below and the trial Court, accordingly, having refrained from considering the question of injunction under those other two provisions of law, it is no longer open to contend, in the alternative, that the order of injunction can be maintained as well under Rule 2 of Order 39 and also u/s 151, CPC Code. In view of the Orissa amendment of Rule 1 of Order 39, civil Procedure Code, it is not possible to pass an order of injunction in violation of the provisions of Section 41(b) of the Specific Relief Act. The Orissa amendment of Rule 1 of Order 39 is to the effect that no temporary injunction shall be granted thereunder if it contravenes the provisions of Section 56 of the Specific Relief Act which is now equivalent to Section 41 of the present Specific Relief Act, 1963. Section 41(b) of the Specific Relief Act prohibits grant of injunction to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought. The order of eviction is being executed in the Court of the Munsif, Berhampur which Court is not a Court subordinate to the Sub-Judge which issued the order of injunction. Therefore, the Sub-Judge had no jurisdiction to grant injunction as prayed for, such an injunction being violative of Section 41(b) of the Specific Relief Act. There is a direct decision of this Court on the point in the case of Narayan Misra Vs. Surendranath Das and Others, where it was held that the Court of a Munsif is not subordinate to that of the Sub-Judge and that consequently the Sub-Judge in issuing the order of temporary injunction would violate the proviso to Order 39, Rule 1, CPC Code. I would, therefore, uphold Mr. Murty''s contention.

The question of grant of injunction under Rule 2 of Order 39 or u/s 151, CPC has not at all been considered by the trial Court. Mr. Murty, therefore, contends that such question should not be allowed to be agitated for the first time here and places reliance on a decision of this Court in the case of Shrimati Soudamini Misra v. Fagunmani Khuntia and Ors. 32 (1966) C.L.T. 733. In my opinion such a stand is too technical. I would, therefore, proceed to see whether the order of injunction can be maintained u/s 151 or under Order 39, Rule 2, CPC Code.

It has been ruled by the Supreme Court that Court has inherent power to issue order of injunction apart from Order 39, Rules 1 and 2. The power u/s 151 for such purpose must be rarely exercised, only when there is an imperative need for such exercise for the ends of justice. In the face of a statutory bar contained in Section 41(b) of the Specific Relief Act which has been incorporated in Rule 1 of Order 39, CPC Code, and in the absence of any peculiar circumstances in the case which make it necessary for the ends of justice or to prevent abuse of the Court to invoke the inherent power of the Court so as to override the express statutory bar, inherent power u/s 151, CPC cannot and should not be invoked. To exercise the inherent power in this case would amount to depriving a party of the fruits of his litigation in another forum and under another statute which has become final and binding on the Plaintiff, on the off-chance of his success in the present suit. The Defendants executing the order of eviction in the Court of the Munsif does not amount to abuse of the process of the Court and, therefore, inherent power cannot be exercised to prevent the same. In my considered opinion, this is not a fit case where the inherent power u/s 151, could or should be invoked.

The next question is whether the injunction order could be issued under Order 39 Rule 2, CPC Code. There is no controversy on the legal position that the prohibition u/s 41 of the Specific Relief Act only applies to Order 39, Rule 1 and does not extend to Rule 2. Order 39, Rule 2 applies to suits for restraining the Defendant from committing a breach of contract or other injury of any kind. It appears from the reliefs claimed in the plaint as already extracted above, that this in principally a suit for specific performance of contract and not a suit for injunction restraining the Defendant from committing any breach of contract or other injury of any kind. Of the four reliefs claimed, the main two reliefs are for specific performance of contract and confirmatiOn of continued possession after declaring that he is the owner from 16-12-1972. The relief of injunction restraining the Defendants from taking any step in executing the decree passed by the House-Rent Controller is a subsidiary relief. If this relief is construed to be a relief of permanent injunction, then such an injunction cannot be granted u/s 41(b) of the Specific Relief Act which becomes directly applicable. Construed In that manner the injunction prayed for being a perpetual injunction, cannot be granted. When the main relief of permanent injunction is not available, no temporary relief of that nature can be granted under Rule 2.- The preconditions far applicability of Rule 2 being that the suit must be principally one for injunction, it does not apply to the present case. To take steps for execution of a valid order of eviction passed by the House-Rent Controller does not amount to an injury of any kind. It is a step which is authorized expressly by law and that order is executable unless it is prima facie established that the right to execute has been extinguished by a subsequent contract to sale. Therefore, in my opinion, execution of the order of eviction does not amount to committing an injury of any kind. In my opinion, therefore, Rule 2 of Order 39 also is inapplicable. The order of injunction cannot also be justified under Order 39, Rule 2, CPC Code.

In the result, therefore, the order of injunction passed by the sub-Judge is set aside and the petition for injunction is dismissed. M.A. 171 of 1973 is, accordingly allowed.

As the consequence of allowing M.A. 171 of 1973 the order directing the Plaintiff to deposit Rs. 15, 000/ - as a condition precedent to making the ad interim order of injunction absolute must go. M.A. 159 of 197 j must, necessarily, be allowed.

In view of the success of the Plaintiff and the Defendants in their respective appeals, there will be no order for costs in any of these appeals.

It appears that the case is ripe for hearing. The Sub-Judge is directed to dispose of the suit within three months from today under intimation to this Court.

Both the appeals are allowed without costs.