Dr. Dinesh Kumar Srivastava vs District Judge, Allahabad And 5 ...
2013 Latest Caselaw 5744 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
(1)	Case :- MATTERS UNDER ARTICLE 227 No. - 1656 of 2013
 

 
Petitioner :- Dr. Dinesh Kumar Srivastava
 
Respondent :- District Judge, Allahabad And 5 Others

Counsel for Petitioner :- Ashish Agarwal

Counsel for Respondent :- Chandan Sharma,S.C.

And

(2) Case :- WRIT - C No. - 33268 of 2013

Petitioner :- M/S Magic Bricks Infrastructure Pvt. Ltd.

Respondent :- Dr. Dinesh Kumar Srivastava And 3 Others

Counsel for Petitioner :- Atul Kumar Singh,Chandan Sharma

Counsel for Respondent :- P.K. Srivastava,Ashish Agarwal,S.C.

Hon'ble Sudhir Agarwal. J.

1. Heard Sri Ashish Agarwal, Advocate, for petitioner and Sri U.N. Sharma, learned Senior Advocate, assisted by Sri Chandan Sharma, learned counsel for contesting respondent no. 6 in Writ Petition No. 1656 of 2013 (hereinafter referred to as "first petition") and Sri U.N. Sharma, learned Senior Advocate, assisted by Sri Chandan Sharma, learned counsel for petitioner; and, Sri Ashish Agarwal, Advocate, for respondent no. 1. in Writ Petition No. 33268 of 2013 (hereinafter referred to as "second petition").

2. Both these matters have come up to this Court, on nomination, by the Hon'ble Senior Judge.

3. Before coming to the merits of both the matters, a bird eye view of the background facts may be noticed.

4. Dr. Dinesh Kumar Srivastava, petitioner in first petition, instituted Original Suit No. 769 of 2012 in respect to half of the portion of House No. 147/58, Jawahar Lal Nehru Road, Allahabad, seeking a declaration that in view of 'Will' dated 29.4.2007 executed by Smt. Rupan Chandra, he is owner of half of the disputed property; and in possession thereof. A declaration is also sought that the sale deed dated 7.5.2012 executed by defendants no. 1 to 3, in favour of defendant no. 4, in respect to entire house, to the extent of half of the property belong to plaintiff, is void. He also prayed for a permanent injunction restraining defendant no. 4 and its agents and representatives from interfering in the possession of plaintiff in respect to the disputed premises and also to refrain from damaging the said property or raising any construction thereon.

5. The summons were issued to defendants, pursuant whereto defendant no. 4 put in appearance before Trial Court, i.e., Additional Civil Judge (Senior Division), Court No. 14, Allahabad. He raised a preliminary objection about valuation of the suit and sufficiency of Court fee. The Trial Court adjudicated on the aforesaid preliminary issue vide order dated 13.8.2012 and held that valuation, for the purpose of Court fees, ought to have been done as per Section 7 (iv-A) of Court Fees Act, 1870 (hereinafter referred to as "Act, 1870"), which has not been done, hence, it directed plaintiff to amend valuation clause as well as Court fee clause of the plaint, and, submit requisite court fee.

6. Against the order dated 13.8.2012 passed by Trial Court, plaintiff preferred Civil Revision No. 255 of 2012 which was allowed by In-charge District Judge, Allahabad. Setting aside order dated 13.8.2012, it (Revisional Court) remanded the matter to Trial Court for deciding question of valuation of Court fee again.

7. It also appears that the Trial Court issued an Amin's Commission for submitting report about valuation of property, which was submitted by him estimating value of disputed property as Rs. 2,00,89,349.44. In respect to the Amin's report (Paper No. 52-C), an objection dated 20.11.2012 was filed by plaintiff. Thereafter Trial Court heard the matter and vide order dated 5.12.2012, accepted the said report, and decided Issue No. 1 with respect to valuation and court fee, accordingly.

8. The plaintiff preferred another Revision No. 12 of 2013 against order dated 5.12.2012. When the aforesaid revision was pending, plaintiff, alleging that defendant no. 4 has started demolition of building on the suit property, preferred a Misc. Application in Revisional Court seeking an ad interim injunction. This was considered by the In-charge District Judge, Allahabad/ Revisional Court on 18.2.2013 and it restrained opposite parties from demolishing construction over the disputed plot. The Revisional Court also directed parties to maintain status quo.

9. This order of Revisional Court came to be assailed in Writ Petition No. 26740 of 2013 at the instance of M/S Magic Bricks Infrastructure Pvt. Ltd. (defendant no. 4 in the suit). This Court did not pass any interim order and permitted parties to exchange pleadings. Hence the interim injunction order dated 18.2.2013 granted by Revisional Court continued. This Revision, i.e., Civil Revision No. 13 of 2013, itself, came to be finally decided vide Revisional Court's order dated 24.5.2013. It was partly allowed. The order passed by Trial Court confirming Amin's report was upheld but with respect to the decision on Issue No. 1, Trial Court's order was set aside. The matter was remanded to decide the said issue afresh. Since the Revision itself stood finally decided, the interim order dated 18.2.2013 passed during its pendency, obviously merged with final order. In this view of the matter, Writ Petition No. 26740 of 2013 instituted by defendant no. 4 was dismissed as infructuous, on 27.5.2012.

10. Faced with this situation that no interim injunction is now operates after final disposal of Civil Revision No. 12 of 2013, the plaintiff preferred an application dated 30.5.2013 under Order 39 Rule 1 and 2 read with Section 151 Code of Civil Procedure, 1908 (hereinafter referred to as "Code) before Trial Court, for ad interim injunction in respect to the said property.

11. The Trial Court misread the application and observing that it is an application for extension of temporary injunction, passed following order on 30.5.2013:

"Called out, file put up today after being received. There is resolution for abstaining the work today. Plaintiff has moved application for extension of T.I. in accordance with previous order, which has been opposed by O.P. 4's learned counsel. Parties are directed to comply with orders of Hon'ble High Court and previous order mentioned therein. Put up for disposal in accordance with order of respected District Judge on next date fixed i.e. 10.07.2013."

12. Since the summer vacations were ensuing and Trial Court had not passed any order as prayed by plaintiff, on the ad interim injunction application, he (the plaintiff) approached the District Judge, Allahabad, filing an application under Section 151 of the Code with a prayer that the suit property be protected from damage or change of its nature etc., by issuing an ad-interim injunction. On this application of plaintiff, In-charge District Judge, Allahabad passed an order on 31.5.2013 directing parties to maintain status quo, in respect to property in dispute. He also directed Trial Court to dispose of plaintiff's application, filed under Order 39 Rule 1 and 2 C.P.C., within 30 days.

13. Revisional Court's order dated 31.5.2013 gave rise to second petition, preferred by the defendant no. 4, i.e., M/S Magic Bricks Infrastructure Pvt. Ltd. This Court by order dated 7.6.2013 stayed In-Charge District Judge's order dated 31.5.2013.

14. Sri U.N. Sharma, learned Senior Advocate, appearing on behalf of defendant no. 4 (petitioner in second petition), contended that, when there is no matter pending before the District Judge in the form of appeal or revision etc., he had no jurisdiction to entertain a Misc. Application so as to grant an order in the nature of ad interim injunction to the plaintiff (respondent no. 1 in second petition), and hence the order dated 31.5.2013 passed by In-charge District Judge is patently illegal and without jurisdiction.

15. Sri Ashish Agarwal, learned counsel appearing for plaintiff, respondent no. 1 in second petition, could not dispute that when he filed Misc. Application on 31.5.2013 before the In-charge District Judge, no matter was pending before him in which such Misc. Application could have been filed. In fact, Misc. Application was filed as an independent case which was entertained by the District Judge and the order dated 31.5.2013 was passed.

16. The only question need be considered in the context of second petition is, whether this order of In-charge District Judge passed on 31.5.2013 on the Misc. Application preferred by the plaintiff, respondent no. 1 in second petition, is valid.

17. It is well established that Section 151 of the Code does not confer a jurisdiction. The question, whether a temporary injunction could have been granted under Section 151 of the Code came to be considered by Apex Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527. The Court noticed divergent opinions of various High Courts. One view was that an order of temporary injunction cannot be passed if the circumstances do not fall within the provisions of Order 39 of the Code. Another was that a Court can issue an interim injunction under the circumstances which are not covered by Order 39 of the Code, if it is of the opinion that interest of justice require issue of such interim injunction. The Apex Court approved the later view that the Courts have inherent jurisdiction to issue temporary injunction in the circumstances which are not covered by the provisions of Order 39 of the Code. It held that the provisions of Code are not exhaustive for the simple reason that Legislature is incapable of contemplating all the possible circumstances, which may arise in future litigation, and, consequently, for providing the procedure for them. The effect of the expression "if it is so prescribed" is only this that when the rules prescribe circumstances in which temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make necessary order in the interest of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rules. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunction, but it could do so in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction. The Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. Order 39 Rules 1 and 2 of the Code also nowhere prevent grant of temporary injunction in the circumstances not mentioned in those Rules. Moreover, Section 151 is not controlled by other provisions of the Code. It was also observed that the inherent powers are to be exercised by the Court in very exceptional circumstances for which Code lays down no procedure. The reason being that power has been conferred upon the Court by virtue of its duty to do justice between the parties, before it.

18. But can Section 151 of Code be availed as a substitute of appeal or revision etc. and when a temporary injunction has not been granted by Trial Court, is it permissible for the higher Court to entertain an application under Section 151 of Code to pass an order of temporary injunction when no appeal or revision or other proceedings permissible in law has come up before the superior Court. In my view, the answer would be in negative. It is not a source of power to confer a jurisdiction to sit in appeal and, thereafter, pass an order without any substantive proceedings taken before it.

19. In State of West Bengal and others Vs. Indira Debi and others (1977) 3 SCC 559, the Apex Court has observed that Section 151 of the Code cannot be taken to be a source of power, to do something, so much so, to clothe upon oneself with a power, as that available in the proceedings like appeal or revision and to pass an order which the Court below has not chosen to pass. I, therefore, find no hesitation in holding that in the peculiar facts and circumstances of this case, learned District Judge committed error in entertaining application as an independent case under Section 151 of Code, and, passing an order of temporary injunction thereon. Had any appeal, revision or such proceeding as permissible in law, against the order of Trial Court in not granting temporary injunction on that date, been taken in the superior Court, and, the circumstances contained in the Order 39 Rules 1 and 2 of the Code were found not existing to grant temporary injunction, the superior Court could have invoked its jurisdiction under Section 151 of the Code to grant a temporary injunction looking to the exigency and circumstances demanding justifying such an order, but Section 151 cannot be taken a source of power to sit in appeal over the proceedings pending before Court below, particularly when no action or inaction of the Court below is complained in an appropriate proceeding before superior Court. The order dated 31.5.2013, therefore, cannot sustain.

20. Now coming to the first petition, learned counsel for plaintiff, who is petitioner therein, could not dispute that the order dated 24.5.2013 insofar as it has confirmed the report of Amin Commissioner cannot be faulted. Second part of the order whereby the Revisional Court has set aside the Trial Court's order on Issue No. 1 is already in favour of plaintiff and, therefore, I do not find any reason or justification to interfere with the aforesaid order, as no patent error, legal or otherwise, in the impugned order could be shown.

21. Having said so, I also could not find any justification for the Trial Court for not considering and passing any order on the application of plaintiff, filed under Order 39 Rule 1 and 2 of the Code, and keeping it pending, till the issue of valuation of Court fees is decided. It is not disputed by learned counsel for parties that change in valuation or payment of additional Court fee will not result in change of jurisdiction of the Court. The suit would continue to be triable by the same very Court.

22. The bar under Section 6 (3) of the Act, 1870, therefore, will have no application in the present case, particularly, when no objection with regard to valuation or Court fee has been taken by an Officer of the Court. Such an objection has been taken by one of the defendants and it must be decided by the Trial Court before proceeding to decide any other issue, but not an application for ad interim injunction.

23. The distinction in the language of Section 6 (3) and (4) of Act, 1870 has been noticed by this Court in Umesh Chandra and others Vs. Sri Krishna Murari Lal 1979 Alld. Civil Journal 296. The Court found that other issues in the suit may be decided subsequently but that will not cover an application for temporary injunction when the preliminary objection about undervaluation and insufficient Court fees is raised by one of the defendants. One of the reason which would justify consideration of temporary injunction application by Trial Court, even when the preliminary issues of valuation and Courts fee raised by one of the defendants has not been decided, would be, that, in a given case, if a temporary injunction is not granted, it may frustrate the very subject matter of the suit. The very purpose of obtaining temporary injunction may easily be defeated by the defendants raising a plea of valuation, and, thereafter, obstructing the entire proceeding by insisting upon a decision on this issue before consideration of the application for interim injunction. This cannot be the intention of Legislature at all.

24. In the present case, it has come on record that the construction activities were initiated by the defendant no. 4 when the suit was pending and that is how during pendency of suit, application under Order 39 Rules 1 and 2 of the Code was filed by the plaintiff. It was incumbent upon the Trial Court, therefore, to look into such application and pass appropriate order. It could have kept application in abeyance till the preliminary issue regarding valuation raised by one of the defendants is decided. This amounts to illegal failure of exercise of power on the part of Trial Court.

25. At this stage, I do not propose to make any further observation or discussion, for the reason that the entire matter is pending before the Trial Court and any observation, otherwise, may influence either of the parties in one or other manner. Therefore, looking to the facts and circumstances of the case, I dispose of both the writ petitions in the following manner:

(1)The order dated 31.5.2013 passed by In-charge District Judge, Annexure-1 to second petition, is hereby quashed.

(2)The order dated 24.5.2013, Annexure 8 to first petition, is upheld.

(3)The Trial Court must pass an order, whether by granting or not granting ad interim injunction, on the application preferred by the plaintiff under Order 39 Rules 1 and 2 C.P.C., after hearing the parties, within 15 days from the date of production of certified copy of this order before it.

(4)Sri U.N. Sharma, learned Senior Advocate, after receiving instructions from defendant no. 4, i.e., M/S Magic Bricks Infrastructure Pvt. Ltd. (petitioner in second petition and respondent no. 6 in first petition) has given an undertaking that defendant no. 4 shall maintain status quo in respect to property in dispute till an order is passed by Trial Court, either way, on temporary injunction application filed by plaintiff. In that view of the matter, I am deferring to pass any order on this part and it is provided that the defendant no. 4 shall abide the above undertaking.

26. No costs.

Dt. 12.9.2013

PS