ravishankar and anr. vs viith additional district judge ...pdf

11/4/2015 Ravishankar And Anr. vs Viith Additional District Judge ... on 31 January, 1994

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Madhya Pradesh High CourtRavishankar And Anr. vs Viith Additional District Judge ... on 31January, 1994

Equivalent citations: 1994 (0) MPLJ 783

Bench: R Lahoti, B Verma, K Agrawal

ORDER

1. On the question of scope, applicability and ambit of Order 39, Rule 4, CivilProcedure Code, two learned Judges of this Court (B. C. Varma, J. and K. M.Agarwal, J.) having differed in their opinions, the matter has been placed before mefor resolving the difference.

2. The plaintiffpetitioners have filed the present suit before the Court of Civil JudgeClass I, Bhopal based on their title and seeking permanent injunction against thedefendantrespondents Nos. 3 and 4 for protecting their possession over the propertyand restraining the defendantrespondents from raising any construction thereon.According to the plaintiffs, the suit property was purchased by them under registereddeed of sale dated 12111948 from one Sikandar Mohammad Khan. SikandarMohammad Khan had acquired title under an Inayatnama (gift deed) dated 1731947 executed by late Nawab Hanidullah Khan, the then ruler of Bhopal State.

3. The plaintiffs had also sought for an ad interim injunction protecting theirpossession over the suit land and restraining the defendantrespondents from raisingany construction thereon.

4. The suit and the application under Order 39, Rules 1 and 2, Civil Procedure Codefiled by the plaintiffs were contested by the defendantrespondents submitting thatthe suit land formed part of survey No. 90/1 area 1.40 acres of Dharampuri villagewhich was given to the Capital Project Authority by the State Government and thedefendants were constructing VI.P. guest house thereon.

5. The trial Court by its order dated 571989 rejected the application for grant of adinterim injunction as it was convinced that the plaintiffs had no prima facie case, thebalance of convenience did not lie in their favour and they were the defendants andnot the plaintiffs who would suffer irreparable injury by the interlocutory relief ifallowed to the plaintiffs. The plaintiffs preferred an appeal to the District Courtwhich was registered as Misc. Civil Appeal No. 54/89 and decided by the order dated2471989 (Annexure P/2). The appeal was allowed, followed by an order of remand.Vide para 13 of its order, the learned District Judge expressed an opinion that thematter in controversy could not have been satisfactorily decided unless and untilthere was a demarcation conducted and demarcation report brought on record so asto fix the identity of the suit land by reference to the survey number. The Courtobserved :



"It was, therefore, necessary to get it demarcated in the presence of the appellantsaccording to Section 129 of the M.P.L.R. Code. How, without demarcation, one canconfirmly say that the respondent No. 2 was placed in the possession of land bearingKhasra No. 90/1 area 1.48 acre only and not on the appellants plots which are partsof Khasra No. 21/3 ? How, without demarcation, one can say that the suit land is theone allotted to the respondent No. 2 ?"

How the appeal was disposed of, it would be useful to reproduce and read from theoperative part of the order :

"Accordingly, the appeal preferred by the appellants is allowed. The impugned orderdated 571989 is set aside. The respondents are directed to maintain status quo inrespect of all the work in progress at the site towards construction of State GuestHouse and to apply for demarcation of land before the authority competent to do so.On receipt of the demarcation report, the lower Court may be approached by theparties for appropriate order in that light."

By way of abundant caution, it may be stated here itself that the appellate Court hasnot recorded any finding of its own touching the merits of the case as mightthereafter have bound the trial Court.

6. On the matter being set at large before the trial Court, two important eventshappened which may now be noticed as they form the core of controversy arising fordecision in this petition. On 2981989, the defendants moved an application(Annexure R/10) under Order 26, Rule 9, Civil Procedure Code inviting attention ofthe trial Court to the observations made by the District Court and seekingdemarcation of the suit land so as to determine whether it constituted part of surveyNo. 90/1 or of 21/3. The trial Court directed the commission to be issued. On 691989, the defendants moved yet another application (Annexure P/3) styled as oneunder Order 39, Rule 4, Civil Procedure Code. It was stated in the application thatthe plaintiffs had based their case on the Inayatnama (gift deed) dated 1731947following by deed of sale dated 12111948 vesting title in them, but on a search andinspection made of the records of the Registrar of Deeds, Bhopal, it was found thatthe Inayatnama and the saledeed were both fabricated documents as they werenever executed and registered in the manner alleged in the plaint. Inasmuch as thesefacts were not in the knowledge of the defendants when the order of injunction waspassed earlier, they prayed that the Court be pleased to take into consideration thesefacts supported by the documents which they were now placing on record and setaside the interim order maintaining status quo passed by the appellate Court as itwas causing serious and irreparable every day prejudice to the defendants. Thisapplication remained pending for consideration and in between the Commissionerappointed by the Court executed the commission and submitted its report dated 1111989 (Annexure R/12), the conclusions of which report were against the plaintiffsand supported the defendants' plea that the land on which the defendants wereraising construction had belonged to the State Government handed over to the



defendants for the project.

7. After hearing the parties afresh, on 411990, the trial Court disposed of the matteras to the grant of ad interim injunction by passing an order afresh (Annexure P/5).The opening sentence of the order states the application under Order 39, Rule 4,Civil Procedure Code being disposed of by that order. The closing part speaks theinterim order, directing status quo to be maintained, being vacated by that order inview of the subsequent changed circumstances. I may hasten to observe that it is thephraseology used by the trial Court which has really given rise to this seriouscontroversy with which this Court is now seized. One need remind oneself of the wellsettled position of law that what has to be determined is the real jurisdictionexercised by the Court without regard to the label affixed.

8. The plaintiffs preferred an appeal to the District Court against the order of the trialCourt dated 411990. Vide order dated 2411990 (Annexure P/6), the appeal filedby the plaintiffs has been dismissed. On 2911990, the plaintiffs have preferred thispetition under Article 227 of the Constitution of India. Their grievances are mainlytwo : Firstly that on the facts stated in the application dated 691989 (AnnexureP/3), the trial Court could not have exercised jurisdiction under Order 39, Rule 4,Civil Procedure Code, and secondly, that the order to maintain status quo havingbeen passed by the appellate Court, it was the appellate Court alone and not the trialCourt which was competent to entertain the application under Order 39, Rule 4, CivilProcedure Code.

9. Earlier, when the matter was heard by the Division Bench, B. C. Varma, J. was ofthe opinion that the order of the appellate Court direeting status quo to bemaintained was certainly an order granting temporary injunction and when theapplication under Order 39, Rule 4, Civil Procedure Code was moved, an applicationfor issuance of commission was not even made that is why it would be deemed thatthe trial Court had varied the order of the appellate Court in exercise of powerconferred by Order 39, Rule 4, Civil Procedure Code. The documents relied on by theplaintiffs which were subsequently alleged by the defendants as forged and fabricatedwere considered by the Court while passing the earlier order and hence the prayermade by the defendants was incapable of being entertained under Order 39, Rule 4,Civil Procedure Code. According to him, the petition deserved to be allowed quashingthe orders of the trial Court and appellate Court (Annexures P/5 and P/6) andrejecting the application under Order 39, Rule 4, Civil Procedure Code filed by thedefendants. K. M. Agrawal, J. was of the opinion that the injunction passed by theappellate Court was passed for the suit and not for any appeal and hence the trialCourt was not powerless to entertain the application under Order 39, Rule 4, CivilProcedure Code. He also held that discovery of such facts, as of which the defendantswere not aware earlier, provided a ground for exercise of jurisdiction under Order 39,Rule 4, Civil Procedure Code. In addition, there was the report of the Commissioner.On such material available, the trial Court was competent to exercise jurisdictionunder Order 39, Rule 4, Civil Procedure Code and hence its order dismissing the

http://indiankanoon.org/doc/1331149/



plaintiffs' application under Order 39, Rules 1 and 2, Civil Procedure Code anddischarging the ad interim injunction maintaining status quo could not be foundfault with.

10. Order 39, Rule 4, Civil Procedure Code provides as under :

"ORDER XXXIX TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS.

...... ...... ......

R. 4. Order for injunction may be discharged, varied or set aside. Any order for aninjunction may be discharged, or varied, or set aside by the Court, on an applicationmade thereto by any party dissatisfied with such order :

Provided that if in an application for temporary injunction or in any affidavitsupporting such application, a party has knowingly made a false or misleadingstatement in relation to a material particular and the injunction was granted withoutgiving notice to the opposite party, the Court shall vacate the injunction unless, forreasons to be recorded, it considers that it is not necessary so to do in the interests ofjustice :

Provided further that where an order for injunction has been passed after giving to aparty an opportunity of being heard, the order shall not be discharged, varied or setaside on the application of that party except where such discharge, variation orsetting aside has been necessitated by a change in the circumstances, or unless theCourt is satisfied that the order has caused undue hardship to that party."

The opening part of Rule 4 uses the terms "discharged, varied or set aside" whichcover all possible eventualities in which an order of injunction originally issued maybe tampered with. What is enacted by Second Proviso is nothing but a reflection ofthe principles of res judicata/constructive res judicata and issue estoppel. In theleading case of Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, their Lordships ofthe Supreme Court have said :

"Though Section 11 of the Civil Procedure Code clearly contemplates the existence oftwo suits and the findings in the first being res judicata in the later suit, it is wellestablished that the principle underlying it is equally applicable to the case ofdecisions rendered at successive stages of the same suit or proceeding."

xxxxxx xxxxxx xxxxxx "Interlocutory orders are of various kinds; some like orders ofstay, injunction or receiver are designed to preserve the status quo pending thelitigation and to ensure that the parties might not be prejudiced by the normal delaywhich the proceedings before the Court usually take. They do not, in that sense,decide in any manner the merits of the controversy in issue in the suit and do not, ofcourse, put an end to it even in part. Such orders are certainly capable of beingaltered or varied by subsequent applications for the same relief, though normallyonly on proof of new facts or new situations which subsequently emerge. As they do




not impinge upon the legal rights of parties to the litigation the principle of resjudicata does not apply to the findings on which these orders are based, though ifapplications were made for relief on the same basis after the same has once beendisposed of, the Court would be justified in rejecting the same as an abuse of theprocess of Court."

xxxx xxxx xxxx "But what we are concerned with is slightly different and that iswhether the same Court is finally bound by that order at later stages so as to precludeits being reconsidered. Even if the rule of res judicata does not apply, it would notfollow that on every subsequent day on which the suit stands adjourned for furtherhearing, the petition could be repeated and fresh orders sought on the basis ofidentical facts. The principle that repeated applications based on the same facts andseeking the same reliefs might be disallowed by the Court does not howevernecessarily rest on the principle of res judicata."

Second Proviso to Rule 4 of Order 39, Civil Procedure Code appears to have beenenacted by way of abundant caution. Even if this provision would not have beenthere, the Court would not have been justified in tampering with or taking up forreconsideration the orders of injunction passed once after affording opportunity ofhearing to both the parties merely because another application was filed unless anduntil there were new facts or new situations emerging subsequently. For all practicalpurposes, there is no difference between the phraseology used by their Lordships inArjun Singh's case (supra) "on proof of new facts or new situations whichsubsequently emerged" and the phraseology used in second Proviso to Rule 4 "necessitated by a change in the circumstances or on satisfaction that the order wascausing undue hardship to a party."

11. Whenever a prayer is made under Order 39, Rule 4, Civil Procedure Code, theCourt has to pose itself with a question whether there is a, change in thecircumstances or whether the order of the Court is causing undue hardship to a party? The later part of the question, needless to say, would involve consideration of onlysuch factors causing undue hardship as have come in existence after the passing ofthe order of the Court or which factors would be a consequence of the order of theCourt itself. So is the case with the change in the circumstances. Exercising itsjurisdiction under Rule 4 abovesaid, the Court may with advantage draw upon theprinciples revolving around Explanation IV to Section 11 of the Civil Procedure Codeand ask itself whether the pleas raised in the application under Rule 4 might andought to have been raised prior to the passing of the order ? If the answer be 'yes', theCourt may reject the application. If the answer be in the negative, the Court may verywell entertain the application and dispose of the same on merits.

12. The abovesaid view finds accordance with the view taken by this Court in SitaramMadan v. Rajkunwarbai, 1959 MPLJ 532, wherein it was held :

"Order 39, Rule 4 of the Code of Civil Procedure can be invoked only when an urgent




order ex parte has been passed under Rule 3, or when an injunction already in forcehas owing to fresh circumstances become inappropriate. When however, by his ownlaches, the party against whom an order of injunction is made, after notice to him,has omitted to file his reply to the application for temporary injunction at the originalhearing, he cannot later on move the Court under Rule 4 and have the matterreopened and reheard on material which was available to him and could have beenurged at the original hearing."

The decision of the Madras High Court in Govind Ramanui v. Vijiaramaraju, AIR1929 Mad. 803 was relied on holding :

"Rule 4 is not intended to set at naught the ordinary cursus curiae that, once a Courthas decided a matter after giving each side an opportunity of being heard, its order isfinal and binding on itself as much as on the parties, and cannot be reopened excepton the presentation of some new matter not available when the original order waspassed."

13. Applying the abovesaid test to the facts of the case at hand, the trial Court wasjustified in exercising its jurisdiction under Order 39, Rule 4, Civil Procedure Code ifit was satisfied that by exercise of due diligence, the defendants could not havedetected the falsity and fabrication of documents of title relied on by the plaintiffs. Ifthe documents put forth by the plaintiffs were registered documents on their face,and also appearing to be old documents, ordinarily, the suspicion of the defendantswould not have been aroused so as to put them on enquiry and persuade themembarking upon an indepth scrutiny or investigation of the documents before filingreply to the application under Order 39, Rules 1 and 2 of the Civil Procedure Codewhich in its very nature requires a summary and expeditious hearing, more so whenthe stage had not yet arrived for recording evidence and also where the defendantswere the State and its Officer having impersonal interest in litigation. Falsity andfabrication of plaintiffs' documents of title, having been detected after the passing ofthe order, can in appropriate cases amount to 'a change in the circumstances'attracting the jurisdiction of the Court under Rule 4 abovesaid.

14. When the appellate court passes an order of injunction while finally disposing ofthe appeal before it, the order stands substituted in place of the order of the trialCourt. The order is passed not for the purpose of appeal, nor to remain operativeduring the hearing of the appeal; it is an order passed for the purpose of the suit andto terminate with the decision of the suit. An application under Order 39, Rule 4,Civil Procedure Code can appropriately be dealt with by the trial Court though theorder of injunction sought to be discharged, varied or set aside be one passed by theappellate Court.

15. There is yet another angle of approaching at the problem posed. The operativepart of appellate order dated 2471989 clearly indicates the order of the trial Courthaving been set aside. In view of the order of remand, the matter was to be heard and




decided afresh by the trial Court. The order directing maintenance of status quopassed by the appellate Court was an interregnum merely referable to inherentpower of the Court under Section 151, Civil Procedure Code so as to see that thepower of the Court to dispose of finally the application under Order 39, Rules 1 and2, Civil Procedure Code was not frustrated. If status quo in respect of the work inprogress at the suit site would not have been directed to be maintained and if theconstruction work would have stood completed by the time occasion arose fordeciding the application for injunction finally, what would have remained to bedecided ? The Court has an inherent power to make such orders, is a principlededucible and supportable from the law laid down by their Lordships of the SupremeCourt in Manoharlal v. Hiralal, AIR 1962 SC 527. The fact remains that the orderdated 2491989 of the appellate Court was an order of remand. It has already beensaid hereinabove that the appellate Court had not decided by expressing any opinionon merits on any point of controversy even at that stage so as to preempt thejurisdiction of the trial Court deciding application for the grant of injunction onmerits and on all points arising for decision. An order of remand implies a reversal ofthe decision of the lower Court and reopens the whole case for determination afreshexcept in regard to matters decided by the order of remand. The Judge in lowerCourt can come to conclusions different from those arrived at by himself or hispredecessor previously in respect of matters not touched by order of remand. [See: Kaluram and Anr. v. Mehtab Bai and Anr., 1958 MPLJ 704 = AIR 1959 MP 181 andRamgulzarilal v. Bhanuprasad, 1941 NLJ 117 = AIR 1941 Nag. 188]. Inasmuch as thetrial Court was directed to Consider and decide the matter as to grant of ad interiminjunction afresh, of course subject to receipt of the demarcation report as directedby the appellate Court, really speaking, there was no occasion for moving anapplication under Order 39, Rule 4 of the Civil Procedure Code. Even without thatapplication it was open to the defendantrespondents to have demonstrated beforethe trial Court the falsity or fabrication of the documents of title put forth by theplaintiffs because that was not a point decided by the appellate Court. The confusionwas created because of the defendants having styled their application dated 691989as one under Order 39, Rule 4, Civil Procedure Code and the confusion was worstconfounded when the trial Court also framed its order dated 411990 (AnnexureP/5) as if it was an order under Order 39, Rule 4, Civil Procedure Code. If that labelis removed, the order dated 411990 would show its real face of its being an orderfinally disposing of an application under Order 39, Rules 1 and 2, Civil ProcedureCode pure and simple. Complete reading of the order dated 2471989 demonstratedthe inability felt by the learned District Judge in deciding the matter as to grant ofinjunction finally in the absence of demarcation and hence without expressing anyfinal opinion on any points of controversy or on any of the three principles for grantof injunction had postponed by making over the task of final adjudication to the trialCourt to be done on receipt of results of demarcation.

16. For the foregoing reasons, I am of the opinion that B. C. Varma, J. was not rightin the opinion which he formed and expressed in his order. I agree with the view




taken by K. M. Agrawal, J. in his order though for reasons little at variance with thereasons assigned by him and hold the petition under Article 227 of the Constitutionfiled by the petitioners liable to be dismissed. However, I would like to make it clearthat I have not expressed agreement with the view expressed by K. M. Agrawal, J. inpara 14 of his order for prosecution of plaintiffs under Sections 193, 196, IndianPenal Code. The opinion expressed by him should have been better left to be formedby the trial Judge at an appropriate stage.

17. Let the matter be now placed before the Division Bench.



ravishankar and anr. vs viith additional district judge ...pdf

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