Shri Dev Hanuman Ji Mandir Sarvajanik ... vs Kamal Kumar Jain
2024 Latest Caselaw 21249 MP

Madhya Pradesh High Court

Shri Dev Hanuman Ji Mandir Sarvajanik ... vs Kamal Kumar Jain on 6 August, 2024

Author: Gurpal Singh Ahluwalia

Bench: G. S. Ahluwalia

                                    1                       MP-4511-2021



IN THE HIGH COURT OF MADHYA PRADESH
                         AT JABALPUR
                                   BEFORE

              HON'BLE SHRI JUSTICE G. S. AHLUWALIA
                     ON THE 6th OF AUGUST, 2024

                   MISC. PETITION No. 4511 of 2021

 SHRI DEV HANUMAN JI MANDIR SARVAJANIK SAMITI REHLI
                                   Versus

                          KAMAL KUMAR JAIN


Appearance:
 Ms. Shobhana Sharma - Advocate for petitioner.
 Shri Sanjay Agrawal - Senior Advocate with Shri Akshay Singh -
 Advocate for respondent.


                                   ORDER

This petition under Article 227 of Constitution of India has been filed seeking following reliefs:

"(i) To call for the record of the lower court.

(ii) To set aside the order impugned dated 28.10.2021 (Annex.P/ ), passed by the Additional Commissioner Sagar in case no.869/A-6/2020-21 in the interest of justice.

(iii) To grant any other relief as deemed fit and proper in the circumstances of this case"

2. It is submitted by counsel for petitioner that respondent filed an application for mutation on the basis of sale deeds and by order dated 2 MP-4511-2021

24.10.2002 passed by Tehsildar, Tehsil Rehli, District Sagar in Case No.23A/6 Year 2000-01, the said application was allowed.

3. Being aggrieved by said order, one Ramesh Kumar preferred an appeal before S.D.O. Rehli, District Sagar which was registered as Revenue Appeal No.2A/6 Year 2002-03. The said appeal was allowed by order dated 28.08.2003 and S.D.O. Rehli, District Sagar remanded the matter back to Tehsildar. However, Tehsildar did not take up the issue. It is submitted that thereafter another application was filed by respondent for mutation of name which was allowed by order dated 05.06.2018 passed by Tehsildar, Tehsil Rehli, District Sagar. The said order was assailed by petitioner by filing Revenue Appeal No.45/A- 6/Year 2017-18 and by order dated 24.07.2018 the order passed by Tehsildar was set aside on the ground that Second Appeal No.385/2010 is pending.

4. Being aggrieved by the said order, respondent preferred an appeal before Additional Commissioner, Sagar Division, Sagar which was allowed by order dated 28.10.2022 passed in Case No.869/A-6/2020-21 and the order passed by S.D.O. Rehli, District Sagar was set aside and a direction was given to mutate the name of respondent. It was further directed that mutation order shall be subject to final outcome of Second Appeal No.385/2010.

5. It is submitted by counsel for petitioner that although the mutation has already been done but now the respondent has initiated proceedings under Section 250 of M.P.L.R. Code and since civil dispute is pending between the parties, therefore, order is liable to be interfered with. To buttress her contentions, counsel for petitioner has relied upon an order passed by a coordinate Bench of this Court in the case of Rajeshwari 3 MP-4511-2021

Bhatt and another vs. State of Madhya Pradesh and others decided on 22.11.2017 in W.P. No.416/2016.

6. Per contra, the petition is vehemently opposed by counsel for State. It is submitted that second appeal is pending for the last more than 14 years. On two occasions, the same was dismissed for want of prosecution. The second appeal has not been admitted so far and even there is no stay in the matter.

7. Heard learned counsel for the parties.

8. Second Appeal No.385/2010 is pending before this Court and it has been accepted by both the counsel that it has not been admitted so far.

9. The Supreme Court in the case of Raghavendra Swamy Mutt v. Uttaradi Mutt reported in (2016) 11 SCC 235 has held as under:

"23. The submission of the learned Senior Counsel for the appellant is that Order 41 Rule 5 confers jurisdiction on the High Court while dealing with an appeal under Section 100 CPC to pass an ex parte order and such an order can be passed deferring formulation of question of law in grave situations. Be it stated, for passing an ex parte order the Court has to keep in mind the postulates provided under sub-rule (3) of Rule 5 of Order 41. It has to be made clear that the Court for the purpose of passing an ex parte order is obligated to keep in view the language employed under Section 100 CPC. It is because formulation of substantial question of law enables the High Court to entertain an appeal and thereafter proceed to pass an order and at that juncture, needless to say, the Court has the jurisdiction to pass an interim order subject to the language employed in Order 41 Rule 5(3).

24. It is clear as day that the High Court cannot admit a second appeal without examining whether it raises any substantial question of law for admission and thereafter, 4 MP-4511-2021

it is obliged to formulate the substantial question of law. Solely because the Court has the jurisdiction to pass an ex parte order, it does not empower it not to formulate the substantial question of law for the purpose of admission, defer the date of admission and pass an order of stay or grant an interim relief. That is not the scheme of CPC after its amendment in 1976 and that is not the tenor of precedents of this Court and it has been clearly so stated in Ram Phal [Ram Phal v. Banarasi, (2003) 11 SCC 762] . Therefore, the High Court has rectified its mistake by vacating the order passed in IA No. 1 of 2015 and it is the correct approach adopted by the High Court. Thus, the impugned order is absolutely impregnable."

10. Thus, unless and until the second appeal is admitted, the High Court has no jurisdiction to pass an interim order.

11. Order 41 Rule 5 CPC reads as under:

"5. Stay by Appellate Court.--(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

Explanation.--An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.

(2) Stay by Court which passed the decree.--

Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.

5 MP-4511-2021

(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied--

(a) that substantial loss may result to the party applying for stay of execution unless the order is made;

(b) that the application has been made without unreasonable delay; and

(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

(4) Subject to the provision of sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application.

(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree."

12. Thus, it is clear that mere filing of an appeal would not operate as a stay, therefore, pendency of second appeal before this Court cannot be a ground for S.D.O. to set aside the order of mutation because when the High Court cannot pass an interim order before the admission of the appeal, then the same can also not been done by S.D.O.

13. So far as judgment relied upon by counsel for petitioner passed in the case of Rajeshwari Bhatt (supra) is concerned, the coordinate Bench of this Court as held as under:

"7. A bare perusal of the aforesaid Section reveals that so far as the title of the property is concerned, the Civil Court has exclusive jurisdiction to decide the same and in such circumstances when the dispute between the parties is still pending before the Civil Court, no purpose would be served if mutation is carried out at the instance of any of the parties for the reason that the order passed by the Civil Court would be binding on the parties and if in the meantime, before such decision is delivered and 6 MP-4511-2021

title is decided, the mutation is carried out in favour of any of the parties, it would only lead to further litigation. Reference may had to the Division Bench judgment of this Court in the case of Ambika Prasad Bakshi vs. Onkar Prasad Saini and other reported in AIR 2005 MADHYA PRADESH 60. The relevant paras of the same read as under:-

17. We refrain from making any comment regarding the claim of Ambika Prasad Bakhshi as the same was left open by the Supreme Court, and any observation by us in that regard may cause prejudice to the parties. Suffice it to say that the jurisdiction of a Civil Court is superior to the Revenue Courts and whatever is decided by the Civil Court is the final decision and Tahsildar is bound to make a mutation on the basis of a valid order of the Civil Court. Where a judgment of the Civil Court relating to disputed land is produced before the Revenue Court, the Revenue Court is bound by it and should order mutation according to the decree of the Civil Court. When there was definite finding of the Civil Court that the respondents have become Bhumiswamis of the suit land, the Revenue Courts had no jurisdiction to enquire regarding the rights of the respondents after coming into force of M.P. Land Revenue Code, 1959.

18. The learned counsel for the appellants next contended that the learned single Judge failed to see that in the trial Court and the lower appellate Court, the suit filed by the plaintiffs was dismissed on the ground that notice of termination of the original tenancy was not valid as the tenancy was terminated in the month of April, instead of month of June and the title of the respondents was not decided.

19. The contention is devoid of any merit. In fact, the judgment of the trial Court and lower appellate Court were to the effect that since the defendants have acquired the right of Bhumiswami, 7 MP-4511-2021

the plaintiffs lost their claim in the suit property.

Thus, title of the respondents was decided and on the basis of this decision the Revenue Courts were bound to order the mutation of the names of the defendants in the suit whose estate the present respondents represent.

(emphasis supplied) Thus, this court, in so many words has already held that the jurisdiction of the civil court is superior to that of the jurisdiction of a revenue court. In such circumstances also when the civil suit is already pending between the parties regarding the title of the property, the mutation proceedings before the revenue authorities can have no sanctity attached to them."

14. In the case of Rajeshwari Bhatt (supra) the matter was pending before the Trial Court and the rights were yet to be decided, whereas in the present case the second appeal is pending and rights have already been adjudicated by District Court.

15. In the view of the provisions of Order 41 Rule 5 C.P.C. coupled with the fact that before admission of second appeal, High Court has no jurisdiction to pass an interim order, this Court is of considered opinion that what cannot be done by High Court can also not be done by the subordinate Tribunals.

16. Under these circumstances, this Court is of considered opinion that Additional Commissioner did not commit any mistake by setting aside the order passed by S.D.O. Rehli, District Sagar and rightly held that mutation shall be subject to final outcome of Second Appeal No.385/2010.

17. So far as contention raised by counsel for petitioner that proceedings under Section 250 of M.P.L.R. Code have been initiated is concerned, it is neither pleaded in the writ petition nor it is the subject 8 MP-4511-2021

matter of the litigation. However, it is observed that in case if petitioner is apprehensive of dispossession by virtue of any order under Section 250 of M.P.L.R. Code, then it can make an application for urgent hearing of Second Appeal No.385/2010.

18. With aforesaid liberty, the petition is dismissed.

(G.S. AHLUWALIA) JUDGE vc

VARSHA

CHOUR 2.5.4.20=f460d4685ef5a4622238f0b5 9b78c2407fd3ee2f619d9ce8e428c22 4c23ec8ac, postalCode=482001, st=Madhya Pradesh, serialNumber=A0506346908D8FDC4

ASIYA A2DA9968A85B01E1D95EF7D16305 53560798626817C4267, cn=VARSHA CHOURASIYA Date: 2024.08.07 15:03:43 +05'30'