Murtiman Bhagwan Shree ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 6430 MP

                                                                                   1                  MP-2637-2021


                                                     The High Court Of Madhya Pradesh


                                                                           MP-2637-2021
                                            (MURTIMAN BHAGWAN SHREE RAMCHANDRAJI PRIVATE TEMPLE VILLAGE BHOINDA THROUGH
                                             SEVAYAT AND PUJARI ABHISH AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS)

                                            2
                                            Indore, Dated : 05-10-2021
                                                 Heard through Video Conferencing.

                                                 Shri Vinay Gandhi, learned counsel for the petitioners.

                                                 Shri Amit Raj, learned Panel Lawyer for the respondent/State.

This miscellaneous petition under Article 227 of the Constitution of India by the plaintiffs is directed against the order passed by the Appellate Court on 26.07.2021 under Order 43 Rule 1 of CPC while setting aside the order of the trial Court rejecting injunction. The appellate Court though set aside the order of the trial Court, but has observed in paragraph 13 as under:-

"13- mijksDRk leLr ifjfLFkfr;ksa esa xq.knks"kksa ij vihy dk fujkdj.k laHko u gksus ds dkj.k] e-iz- 'kklu dks tcko dk volj nsrs gq;s] izdj.k fu"ks/kkKk vkosnu ds iqu% fujkdj.k gsrq fopkj.k U;k;ky; dks izfrizsf"kr fd;k tkuk] vko';d gks x;k gSA vr% vihy va'kr% Lohdkj dh tkdj] iz'uk/khu vkns'k vkiLr djrs gq;s vknsf'kr fd;k tkrk gS fd fopkj.k U;k;ky; }kjk] izfroknh e-iz- 'kklu dks 'kkldh; vf/koDrk ds ek/;e ls] fu"ks/kkKk vkosnu dk [email protected] izLrqr djus dk volj fn;k tkos] rRi'pkr bl vkns'k esa crk;s x;s fcanqvks ij fopkj djrs gq;s] vkosnu varxZr vkns'k 39 fu;e 1 o 2 lhihlh dk iqu% xq.knks"kksa ij fujkdj.k fd;k tkosA "

Signature Not VerifiedDigitally signed by SAN REENA JOSEPH Date: 2021.10.07 14:14:11 IST 2 MP-2637-2021

2. While taking exception to the such observations, learned counsel for the petitioners/plaintiffs contends that the appellate Court ought not to have granted liberty to the State Government to file written statement and reply to the injunction application in the absence of any application on behalf of the State Government, therefore, there is a patent jurisdictional error in the impugned order. He relies upon a judgment of this Court in the case of Dhundasingh Vs. Leeladhar and another reported in AIR 1982 MP 14 to bolster his submission.

3. Per contra, learned counsel for the State combating the submissions so advanced contending that the appellate Court has noticed in paragraph 12 of the impugned order that neither the State Government was represented, nor it was proceeded ex-parte albeit the State Government has been arrayed as defendant no.1 in the suit. The Tehsildar/defendant no.2 has chosen to file reply in his capacity as such by engaging an Advocate. The trial Court committed a grave illegality while treating the said reply as if the same was filed on behalf of the State Government. Under such circumstances, the appellate Court has found that the State Government has neither been proceeded ex-parte, nor there was representation by the State Government. The reply so filed has been treated to have been filed by the State Government as well. Such illegality and irregularity committed by the trial Court is sought to be remedied by the appellate Court in the form of observations/directions, as contained in the impugned order. In any case, the petitioners/plaintiffs shall not be prejudiced, if the State Government arrayed as respondent no.1, is afforded an opportunity to file written statement and reply to the application under Order 39 Rules 1 and 2 of CPC.

Signature Not VerifiedDigitally signed by SAN REENA JOSEPH Date: 2021.10.07 14:14:11 IST 3 MP-2637-2021

4. Before adverting to the rival contentions of the parties, it is expedient to observe that procedural laws are handmaid laws and not a mistress of judicial process. True it is that Courts are required to adhere to procedural laws to regulate the trial or appeal provided thereunder, nevertheless, the procedural adherence is to ensure substantive justice regard being had to the concept of justice, equity and good conscience, therefore, the Courts are required to exercise a discretionary jurisdiction with circumspection.

5. In the instant case, admittedly, the State Government is arrayed as respondent no.1 and Tehsildar is arrayed as respondent no.2. There is no representation of the State Government. The Tehsildar, in his capacity, as such, has filed written statement and reply to the application under Order 39 Rules 1 and 2 of CPC. The trial Court appears to have committed error in having treated the written statement and reply filed by the Tehsildar, as if the same has been filed for and on behalf of the State Government. Further, the trial Court has decided the application under Order 39 Rules 1 and 2 of CPC as if there is effective representation of the State Government as well. Thus, the aforesaid patent illegality has been pointed out by the appellate Court, while hearing an appeal under Order 43 Rule 1 of CPC arising out of the order rejecting injunction. There is no cavil of doubt that while hearing an appeal under Order 43 Rule 1 of CPC, the appellate Court may not allow an amendment application, as the procedure prescribed for seeking amendment is separately provided for in the Court. Nevertheless, if the appellate Court has reached the conclusion that a necessary party though not represented, but has been treated to have been represented by the trial Court, in the opinion of this Court, the

Signature Not VerifiedDigitally signed by SAN REENA JOSEPH Date: 2021.10.07 14:14:11 IST 4 MP-2637-2021

appellate Court was justified in ensuring that there is effective representation of the State Government as so far the State Government has not been proceeded ex-parte. The representation of the State Government indeed shall have bearing on the application under Order 39 Rules 1 and 2 of CPC as well as on the merits of the suit.

6. In the considered opinion of this Court, there is no illegality committed by the appellate Court which may not be construed to be an excessive jurisdiction, instead the Court regard being had to the concept of justice, equity and good conscience has made certain observations/directions in paragraph 13 and the same in no way shall cause any prejudice to the petitioners/plaintiffs.

Consequently, this miscellaneous petition under Article 227 of the Constitution of India sans merit and is hereby dismissed.

(ROHIT ARYA) JUDGE

RJ

Signature Not Verified VerifiedDigitally Digitally signed by SAN REENA JOSEPH Date: 2021.10.07 14:14:11 IST