Shri Seikh Sunti Ali and Others vs Shri Janti Hussain and Others

K.N. Saikia, J.—In this application the Petitioner, who are Defendants, impugn if order dated 19.2.85 passed by the trial Court setting aside own order dated 7.1.85 purportedly acting u/s 151 of CPC Code.

Title Suit No. 74 of 1984 bat been instituted by the instant opposite parties u/s 6 of the Specific Relief Act. is the said suit the instant Petitioners, as Defendants, filed a petition under Order 6 Rule 5 of the CPC stating that in the second area of the plaint the Plaintiffs alleged that the suit land "-are in exclusive possession of the Plaintiffs from time immemorial and the Plaintiffs are possessing and enjoying the same" and that was not mentioned as to bow they were possessing the suit and and on what strength i.e. whether they are the owner or tenant (sic) etc It was stated in the application that due to nondisclosure of the above facts the Defendants were not in a position to know their alleged possesion "from time immemorial" and, as such were not in a position to file their written statement. It was, therefore, prayed that the Plaintiffs be directed to disclose their nature of alleged possession under Order 6 Rule 5 CPC for the ends of justice. By order dated 7.1.85 the learned Munsiff, after hearing the counsel for the parties observed that his considered view was that in order to meet the case of the Plaintiffs, i.e. to give a real answer to the Plaintiffs case, the Defendants should know as to how the Plaintiffs came to possess the land and accordingly ordered the Plaintiff to furnish those particular on 8.1.55. The Plaintiffs thereafter, instead of complying with the order, filed a petition before the same Court which was cumbered as Petition No 161/85, under Section. 151 CPC for re-considering the direction given in the order dated 7.1.85 to furnish better particulars as to bow the Plaintiffs same into possession of the suit land. It was submitted by the learned Counsel for the Plaintiffs that in a suit u/s 6 of the Specific Relief Act title of the parties is immaterial and the Court need not go into the question as to how and in what manner the Plaintiffs came to possets the land, too only relevant question being the question of dispossession, Reliance was placed on AIR 1940 91 (Rangoon) wherein it bad been observed:

The plaint in such a suit mutt aver previous possession and dispossession by the Defendants otherwise than in due course of law within six month of the suit being brought, and should aver nothing else, and the only prayer in such a suit can be a prayer for recovery of possession. The decree must either dismiss the suit or the Plaintiffs to be put into possession by the Defendants, such decree being based on previous possession and dispossession merely and not on title.

After referring to the decisions in AIR 1968 Mys 270; AIR 1970 Raj 179 ; AIR 1979 Cat 253 ; (1994) 2 G.LR. 502 ; J AIR 1979 All 445 and (1984) J G.L.R. 379 the Court came to the conclusion that its earlier direction in its order dated 7.1.85 was erroneous in view of the observations made in AIR., 1940 Rangoon 91 and it thought that it could correct that errors for ends of justice to the Plaintiffs and accordingly accepting the Plaintiffs'' petition set aside its order dated 7.1.85. The result is that the Defendants, the instant Petitioners, are now required to file their written statement without having what they said better particulars" as were ordered to be furnished by order dated 7.1.85.

Mr. A.K. Borpujari, the learned Counsel for the Petitioners submits, inter alia, that the learned trial Court baying passed the order dated 7.1.85 under Order 6 Rule 5 CPC it acted without jurisdiction in setting aside its own order in in application under Section. 151 CPC and that the impugned order will cause prejudice to the Defendant the instant Petitioners, In as much as they shall have to file their written statement without knowing by what right the Plaintiff-opposite parties allegedly were in possession of the suit load "from time immemorial", as has been stated in the plaint.

Two question, therefore, arise in this application. First whether the learned trial Court acted within its jurisdiction in setting aside its own order passed under. Order 6 Rule 5 CPC purporting to act u/s 151 Code of Civil Procedure.; and whether the order would cause prejudice to the Defendants the; instant Petitioners, if they are left to file their written statement without the particulars they sought for in their earlier application. The provision (c)of Section 6(1) of the Specific Relief Act, 1963 may conveniently be quoted at this stage.''

Suit by person dispossessed of immovable property.

(I) If any person dispotesied without his consent of immovable property otherwise than in due course of law, be or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

From the above provision it in clear, as was held in AIR 1940 91 (Rangoon) the main averment in a suit under this Section will be that the Plaintiff is dispossessed without his consent of immovable property otherwise than in due course of law and he may recover possession thereof notwithstanding any other title that may be set up in such suit, This section deals with the right of possession which creates the right in continue in possession by those who are in possession and who cannot be dispossessed otherwise than in due course of law. In other words, it deals with ''jus possessions'' which gives the possessor the right to continue in possession unless be is dispossessed in due course of law. It does not deal with ''Jus possidentis which is a right or possession as the legal consequence; of the ownership. ''Jus possldendt'' is distinguished from "Jus possessionis which is a right of possession and may exist without ownership, Possession is the de facto relation between the possessor and the thing possessed. ''Jus possessionis is the right (if any) of which possession is the source or title, ''jus pcssiclendi'' in the right (if any) which a man has to acquire or to "retain possession'' As was observed in Subodh Gopol Base v. Province of Bihar AIR 1960 Pat 222, possession is a good title against all but the true owner, and entities the possessor to maintain an action in ejectment against any person other than the true owner who dispossesses him, Similarly, In Jeewqnial v. Dr. pharamehand Khatri AIR 1971 Raj 84 it has been held that the true scope of Section 9 (present Section 6) of the Specific Relief Act is to see whether the Plaintiff has been dispossessed without his consent or in a manner otherwise than in due course of law and if these two ingredients are established, the Court dealing with a suit under the section has no other discretion but to restore possession of the land from which the Plaintiff has been dispossessed without due course of law.

Mr, Borpujari has read over para 2 of the plaint which says: "the land and the house shown in the Schedule below is tie subject-matter of this suit. The suit-lands measuring 3 (three) Kathas and 6 (six) lechas are in exclusive possession of the Plaintiffs from time immemorial and the Plaintiffs are possessing and enjoying the same by growing various crops etc. with a residential house thereon". In para 3 it is stated that while the Plaintiffs were in possession of the suit property, the Defendants in a body wrongfully and forcefully trespassed upon the suit land and assaulted the Plaintiffs and even threatened with dire consequences on 25.10.84 for which the Plaintiff No. 5 filed a criminal case under Section, 447/448/427/354/506/34 CPC against the Defendants on that very day in the Court of the Chief Judicial Magistrate, Sibsagar which had been registered us C.R. Case No. 996/84, which is now pending in that Court.

the above being (he averments in the plaint, when the Court has come to the conclusion that the order to furnish better and fuller particulars over and above what have been stated in the plaint, was wrong it cannot be said that the Court acted beyond jurisdiction in setting aside that order. The Court being in seisin of the case has to adjudicate it in accordance with law and while doing so if it bus decided as above, the decision ipso facto cannot be held to be without jurisdiction.

The next question Is whether having already passed the order under Order 6 Rule 3, Code of Civil Procedure, the Court could itself set aside that order purporting to act u/s 131 Code of Civil Procedure. It cannot bo said that the Court under no circumstances can set aside its own order passed without jurisdiction. The Court has inherent jurisdiction to ignore order passed without jurisdiction, An order passed under Order 6 Rule 5 directing a party to furnish particulars on matters which are not alleged in and not necessary for the purpose of the suit would be Without jurisdiction. This Rule permits merely a further and better particulars of any matter stated in the pleading; and submission of new materials altogether based on an entirely different cause of action is repugnant to this provision and such an order would fall guaide (sic) the purview of the Rule and so, beyond the jurisdiction of the Court, On failure to furnish better particular the court my order the allegation of which better particulars were ordered be struck out from the pleading, In the instant case there was no allegation of ownership ownership or title made in the plaint and matter particulars of title or ownership could not have been order by the Court; and in doing so it acted without jurisdiction and so the Court could itself set aside that order u/s 151 Code of Civil Procedure. Even so, it would be open for the Defendant-the instruct Petitioners, to tike up the question of validity of the order after the said is decided, in appeal/revision. This question is accordingly left opera.

The essential ingredients for a suit u/s 6 of Specific Relief Act, lamely (sic) prevision possession add dispossession having been a slatted in the plaint, it cannot be said that if the impugned order is allowed to stand it will cause prejudice to the Defendants Petitioners as they shall have to file their written statement without further particulars. It does not appear to be a case where on the allegations made in the plaint no written statement can be filed. If it really prejudices them it will be open for them (the Defendants) to agitate that point its appeal/revision.

A suit u/s 6 of the Specific Relief Act is the civil counter-part of u proceeding u/s 145 of the Code of Criminal Procedure and, as such, it requires speedy disposal. If too proceedings are stayed at this stage and the above point is to be decided staying too proceeding, it will naturally delay the disposal of the suit.

u/s 115 Code of Civil Procedure. this Court shall not vary or reverie any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. the impugned order if not an order, which, if made in favour of the instant Petitioners, would have finally disposed of that suit. It is also not an order, which, if allowed to stand, would occasion failure of justice or cause irreparable injury to the party against whom it was made. This being the position, interference u/s 115 CPC is not called for at this stage. The questions of prejudice and the validity of the impugned order are left open for the Defendants-the instant Petitioners to agitate those in appeal/revision after the suit is finally decided by the trial Court.

In the; result, with the above observations, this petition is rejected.