HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 5 Case :- MISC. SINGLE No. - 5377 of 2015 Petitioner :- Darshan Singh And 3 Ors. Respondent :- Additional Commissioner (Judicial) Lucknow Division & Ors. Counsel for Petitioner :- Anil Kumar Mishra Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav Hon'ble Ritu Raj Awasthi,J.
(Order Oral) Heard learned counsel for the petitioners as well as learned Additional Chief Standing Counsel Mr.M.E. Khan and perused the records.
Since the writ petition involves purely legal questions of law which can be considered without issuing notice to private respondents and without calling for any counter affidavit, the writ petition is being decided at the admission stage with the consent of parties counsel.
The questions which has cropped up in this writ petition are (i) whether in the proceedings under Section 176 of U.P.Z.A. & L.R. Act the concerning court is competent to grant temporary injunction/stay and; (ii) whether the order refusing or granting temporary injunction is appellable or revisable.
The instant writ petition has been filed challenging the order dated 10.08.2015, passed by opposite party no.2/Sub-Divisional Officer, Palia Kalan, Lakhimpur Kheri as well as order dated 26.08.2015 whereby in the suit filed under Section 176 U.P.Z.A. & L.R. Act by petitioners the opposite party no.1 has come to conclusion that there is no provision for grant of stay in the proceedings under Section 176 of U.P.Z.A. & L.R. Act. The temporary injunction order dated 9.2.2015 was therefore vacated. The revision preferred against the said order under Section 333 of U.P.Z.A. & L.R. Act by the petitioners has been dismissed as being not maintainable.
The facts of the case in brevity are that the land in dispute bearing Gata No.176 (Mi)/0.109, 184 (M.)/6.272, 197 (M.)/0.012, 174/0.348, 246/0.518 and 247/0.077 hectare situated at Village Murur Khaida, Pargana & Tehsil Palia Kalan, District Lakhimpur Kheri were recorded in the name of Nahar son of Hari Singh as tenure holder. After the death of original tenure holder the land in question was jointly recorded in the name of petitioners along with opposite parties no.3 to 15 being legal heirs of original tenure holder. As per petitioners opposite parties had started interfering in the peaceful possession of the petitioners, as such, petitioners had filed a suit for partition under Section 176 of U.P.Z.A. & L.R. Act which is registered as Suit No.375 (Darshan Singh and others Vs. Malkeet Singh and others). The petitioners in the said suit had filed an application dated 7.2.2015 for grant of stay. The said application was allowed vide order dated 9.2.2015 and the parties were directed to maintain status-quo till further orders in respect to the land in dispute. The opposite parties no.7 to 11 had filed an application dated 13.7.2015 for vacation of stay order. On the said application the opposite party no.2 vide impugned order dated 10.8.2015 has vacated stay order dated 9.2.2015. The petitioners feeling aggrieved had filed revision under Section 333 of U.P.Z.A. & L.R. Act which has been dismissed holding that the revision since has been filed against an interlocutory order, as such is not maintainable.
Learned counsel for the petitioners submit that opposite party no.2 without properly considering the submissions made by the petitioners had vacated the stay order dated 9.2.2015. It is wrong to say that in the proceedings under Section 176 of U.P.Z.A. & L.R. Act the concerning Court does not posses the power of granting stay.
Submission is that under Section 341 of of U.P.Z.A. & L.R. Act the applicability of Code of Civil Procedure has been made, as such, once a suit is filed the concerning Court is fully empowered to grant ad-interim injunction/stay.
It is further submitted that since there is no specific provision of appeal in such proceedings, as such, in view of Section 333 of U.P.Z.A. & L.R. Act an order passed in the proceedings where no appeal lies or where an appeal lies but has not been preferred the revision is maintainable.
Mr. M.E. Khan, learned Additional Chief Standing Counsel, on the other hand, submits that under Section 341 of U.P.Z.A. & L.R. Act it has been specifically provided that provisions of Indian Court Feel Act, Code of Civil Procedure, 1908 and Limitation Act shall apply to the proceedings of this Act except expressly barred.
As such, in the proceedings under Section 176 of U.P.Z.A. & L.R. Act the procedure prescribed in Code of Civil Procedure shall be fully applicable. Under Order XLIII Rule 1 of C.P.C. an appeal shall lie from an order passed in the proceedings under Order XXXIX Rules 1 and 2 C.P.C. Order XXXIX Rules 1 and 2 C.P.C. empowers the Court to grant temporary injunction. As such, the Court dealing with the proceedings under Section 176 of U.P.Z.A. & L.R. Act shall be empowered to grant ad-interim injunction/stay and any order passed in this regard is appellable. In support of his submissions he has relied on a Division Bench judgment of this Court in the case of Smt. Urmila Devi Vs. Pooran Chand Dabar and others, [1999 (17) LCD-201] wherein the Court has come to conclusion that in a suit for partition the Court can grant temporary injunction.
I have considered the submissions made by parties' counsel and gone through the records.
So far as the question as to whether the concerning competent Court dealing with the proceedings under Section 176 of U.P.Z.A. & L.R. Act is empowered to grant temporary injunction/stay is concerned, it is to be noted that Section 341 of U.P.Z.A. & L.R. Act clearly provides that unless otherwise expressly provided by or under this Act provisions of Code of Civil Procedure, 1908 would be fully applicable.
Section 341 of U.P.Z.A. & L.R. Act on reproduction reads as under:-
"341. Application of certain Acts to the proceeding of this Act.-Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 (V of 1908), and the [Limitation Act, 1963 (XXXVI of 1963)] [including Section 5 thereof] shall apply to the proceedings under this Act.
1. Purpose of.-Section 341 of the U.P.Z.A. and L.R. Act makes applicable the provisions of the Code of Civil Procedure to the proceedings under the U.P.Z.A. and L.R. Act unless otherwise expressly provided by or under the Act. If a different procedure is contemplated under the U.P.Z.A. and L.R. Rules, the procedure under the CPC would not be applicable.
Section 341 of the U.P.Z.A. and L.R. Act makes applicable the provisions of the Civil Procedure Code also to the second appeals in the Board of Revenue. The substantial questions of law have, therefore, also to be framed by the Board of Revenue.
2. Application of provisions of CPC.- Section 341 of the U.P.Z.A. and L.R. Act applies the provisions of the CPC to proceedings under the U.P.Z.A. and L.R. Act unless otherwise expressly provided. The Z.A. Act has made provisions for suits, appeals, second appeals revisions etc. The IPC thus has been made applicable to them unless otherwise expressly provided.
3. Second appeal.- By virtue of Section 341 of the U.P.Z.A. and L.R. Act, the provisions of the Code of Civil Procedure are applicable to second appeals under the U.P.Z.A. and L.R. Act."
Section 176 of U.P.Z.A. & L.R. Act does not expressly bar the applicability of the Code of Civil Procedure. As such, it can be easily concluded that the provisions of the Code of Civil Procedure are fully applicable in the proceedings under Section 176 of U.P.Z.A. & L.R. Act.
Order XXXIX of C.P.C. deals with temporary injunction and interlocutory orders. Order XXXIX Rule 1 of C.P.C. relates to the case in which temporary injunction may be granted whereas sub-Section (2) deals with injunction to restrain repetition or continuance of breach.
Order XXXIX Rules 1 and 2 of C.P.C. provides that wherein any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or the defendant threatens or intends to remove or dispose of his property which may cause injury to the plaintiff, the Court may by order grant a temporary injunction to restrain such act.
Order XXXIX Rules 1 and 2 C.P.C. for convenience are reproduced hereinbelow:-
"1. Cases in which temporary injunction may be granted.- Where in any Suit it is proved by affidavit or otherwise?
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,the court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach.- (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The court may by Order grant such injunction, on such terms, as to the duration of the injunction, keeping an account, giving security, or otherwise, as the court thinks fit."
As such, I am of the considered view that in the proceedings under Section 176 of U.P.Z.A. & L.R. Act the Court concerned is fully empowered to grant temporary injunction/stay.
So far as the question as to whether the order granting or refusing the interim stay in the proceedings under Section 176 of U.P.Z.A. & L.R. Act is concerned, it is to be noted that the order XLIII Rule 1 C.P.C. deals with the orders which are appeallable. Order XLIII Rule 1 (r) C.P.C. provides that an appeal shall lie from an order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order XXXIX.
Order XLIII of C.P.C. on reproduction reads as under:-
"1. Appeals from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely:?
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper court except where the procedure specified in rule 10A of Order VII has been followed;
(b) Omitted by Act 104 of 1976, w.e.f. 1-2-1977
(c) an order under rule 9 of Order IX rejecting an appiication (in a case open to appeal) for an order to set aside the dismissal of a Suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an Order to set aside a decree passed e parte;
(e) [* * *]
(f) an order under rule 21 of Order XI;
(g) [* * *]
(h) [* * *]
(i) an order under rule 34 of order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
(ja) an order rejecting an application made under sub-rule (1) of rule 106 of order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that order is appealable;
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(I) an order under rule 10 of Order XXII giving or refusing to give leave;
(m) [* * *]
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(na) an order under rule 5 or rule 7 or Order XXXIII rejecting an application for permission to sue as an indigent person;
(o) [* * *]
(p) order in interpleader suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII;
(r) an order under Rule 1, Rule 2, Rule 2A Rule 4 or Rule 10 of Order XXXIX;
(s) an order under Rule 1 or Rule 4 of Order XL;
(t) an order of refusal under Rule 19 of Order XLI to re-admit, or under Rule 21 of Order XLI to re-hear, an appeal;
(u) an order under Rule 23 or Rule 23A or Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(v) Omitted by Act 104 of 1976, w.e.f. 1-2-1977 (w) an order under Rule 4 of Order XLVII granting an application for review."
As such, it is very much clear that an appeal shall be filed against an order passed in exercise of powers under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order XXXIX.
In view of above, it is held that an appeal shall lie against an order granting or refusing temporary injunction/stay in the proceedings under Section 176 of U.P.Z.A. & L.R. Act.
It is also to be noted that the appeal shall lie before the authority as provided under Schedule II which is to be read with Section 331 of U.P.Z.A. & L.R. Act. As such, an appeal shall lie before the Commissioner concerned in such circumstances.
This Court in the case of Smt. Urmila Devi Vs. Pooran Chand Dabar and others (supra) has held that in the proceedings with respect to Section 176 of U.P.Z.A. & L.R. Act the provisions of Code of Civil Procedure would be applicable including Order XXXIX C.P.C. The relevant paragraphs 7 and 8 of the judgment on reproduction reads as under:-
"7. The learned counsel for appellant contended that in a suit for division of holding, no injunction can be issued under Order 39 of Code of Civil Procedure in respect of grant of temporary injunction. We are not inclined to accept the said contention in view of Section 341 of the Act, which reads as follows :
"341. Application of certain Acts to the proceedings of this Act.-- Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 (V of 1908), and the [Limitation Act. 1963 (XXXVI of 1963)], [Including Section 5 thereof] shall apply to the proceedings under this Act."
As there is no express provision by or under the Act providing for exclusion of Order 39 of Code of Civil Procedure in respect of grant of temporary injunction during pendency of a suit, the said provision is applicable to a suit for division of holding and the Court in which suit under Section 176 of Code of Civil Procedure is pending could have given the relief to the appellant which is being sought in present proceedings. At one stage, the learned counsel for appellant tried to argue that as Section 229-D of the Act provides for grant of temporary injunction only in respect of suit for declaration filed under Sections 229-B and 229-C, the provisions of Order 39 of Code of Civil Procedure for temporary injunction impliedly extends excluded. We are not inclined to accept the said contention. The provision under Section 229-D is only supplemental to Order 39 which permits grant of temporary injunction. By incorporating Section 229-D, a temporary Injunction can be granted in a suit for declaration though no permanent injunction is being sought which would not have been possible ha'a the specific provision been not there. Thus, the argument that Order 39 of Code of Civil Procedure stands excluded in view of Section 229-D of the Act is unacceptable to us.
8. It is argued by learned counsel for the plaintiff/appellant that there was no Justification for the Court to vacate the interim Injunction which was continuing from 28.4.1998 as an appeal was preferred which was dismissed as withdrawn and order of Court below stood merged in it. The contention has no force. Order 39, Rule 4 of Code of Civil Procedure comes into play in case conditions mentioned therein come into existence. The power of a trial court to vacate its earlier order passed under Order 39, Rule 2 does not come to an end merely because an appeal against it stands dismissed. It is in different circumstances that the power is to be exercised and if conditions mentioned therein arise, the Court can vacate a temporary injunction granted by it. even if it has been subject-matter of appeal provided it is satisfied that the conditions are such that Us continuance is not possible and It is giving rise to undue hardship to party. In the instant case, the shares of Smt. Urmila Devl and Smt. Kanak Lata are admittedly 1/2 each. Smt. Kanak Lata has transferred a specific portion (western portion) to respondent Nos. 1, 2 and 3. If it is assumed for the sake of argument that Smt. Kanak Lata could not have transferred any particular portion of land yet 1/2 share of Smt. Kanak Lata has certainly passed to the vendees. It makes no difference if the half share is specified by area. The parties can always get the land partitioned and under the circumstances of this case, when preliminary decree for division of holding has already been passed, the parties should get the land partitioned by metes and bounds."
In view of above, the order impugned dated 10.8.2015, passed by opposite party no.2 is not sustainable in the eyes of law. It is hereby set aside. Since this Court has held that against the order dated 10.8.2015 the appeal shall lie before the Commissioner, as such, the proceedings under Section 333 of of U.P.Z.A. & L.R. Act by the petitioners were nullity in the eyes of law.
The writ petition, as such, stands allowed. The opposite party no.2 shall consider and pass appropriate orders on the application for stay as well as on application for vacation of stay moved by the petitioners and opposite parties respectively.
Order Date :- 16.9.2015 Ram.