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SUPREME COURT OF INDIA
Dipak Misra, Shiva Kirti Singh, JJ.
Raghavendra Swamy Mutt – Appellant
Versus
Uttaradi Mutt – Respondent
Civil Appeal No. 3190 of 2016 (Arising out of S.L.P. (Civil) No. 6662 of 2016)
Decided on : 30-03-2016
(2000) 1 SCC 434; (2000) 3 SCC 708; (2010) 13 SCC 216; (2011) 9 SCC 684 – Relied upon
(b) Code of Civil Procedure, 1908 – Sections 96 and 100 – Distinction – First appeal u/s 96 can be formally admitted – Second appeal u/s 100, however, can only be admitted on framing of substantial question of law. (Para 18)
(c) Code of Civil Procedure, 1908 – Section 100, Order XLI Rule 5 and Order XLII Rule 1 and 2 – High Court’s power to pass ex parte order or interim order – Subject to postulates of section 100 – No ex parte or interim order can be passed without formulating substantial question of law – Impugned order absolutely impregnable. (Para 23)
(2003) 11 SCC 762 – Relied upon
AIR 2000 SC 3032 – Referred
Facts of the case:
The suit was filed by the plaintiff-respondent for the relief(s) for perpetual injunction for restraining the defendant-Mutt, its agents, servants, devotees, etc., from entering upon the suit schedule property or interfering with its possession and enjoyment of the suit property and/or interfering or disturbing with the performance of annual “Aradhana” of His Holiness Sri Padmanabha Teertharu, Sri Kavindra Teertharu and Sri Vageesha Teertharu.
The suit preferred by the plaintiff was dismissed.
The first appellate Court allowed the appeal in part restraining the present appellant from interfering with the plaintiff/respondent Mutt's possession and enjoyment of suit property subject to the right of the defendant Mutt to perform Adradhanas and Poojas of the Vrindavanas at Navavrindavanagatti.
Thereafter the respondent filed execution petition. The executing court passed certain orders.
In the meantime, the appellant, being grieved by the order in the Regular Appeal, had preferred RSA. As the order passed by the executing court affected certain rights of the appellant, it filed IA No.1 of 2015 seeking temporary injunction against the respondent.
The Single Judge, while considering the interlocutory application for injunction, passed an interim order. Finally it was held that the principle stated in Order XXXIX Rule 3 had not been followed, notice to the respondent had not been issued although permission was granted to the counsel to raise objections and further delved into the distinction between an appeal under Section 100 CPC and the regular first appeal, and in the ultimate eventuate, allowed I.A. no.1/2016 for vacating interim order dated 16.12.2015.
Finding of the Court:
Impugned order is absolutely impregnable.
Result: Appeal dismissed.
JUDGMENT :
Dipak Misra, J.
The present appeal, by special leave, assails the order dated 11.02.2016 passed by the learned Single Judge of the High Court of Karnataka at Dharwad in I.A. No.1 of 2016 in RSA No.100446 of 2015 whereby he has vacated the interim order dated 16.12.2015 passed in I.A. No.1 of 2015.
2. The facts for the purpose of adjudication of the present appeal need to be stated in brief. The respondent, Uttaradi Mutt, filed O.S. No.193/1992 in the Court of Civil Judge, Koppal but in due course the said suit was transferred to the Court of Additional Civil Judge, Gangavati and was registered as O.S. No.74/2010. The suit was filed by the plaintiff-respondent for the relief(s) for perpetual injunction for restraining the defendant-Mutt, its agents, servants, devotees, etc., from entering upon the suit schedule property or interfering with its possession and enjoyment of the suit property and/or interfering or disturbing with the performance of annual “Aradhana” of His Holiness Sri Padmanabha Teertharu, Sri Kavindra Teertharu and Sri Vageesha Teertharu. The suit preferred by the plaintiff was dismissed.
3. The judgment and decree passed in the suit was assailed before the Principal Civil Judge, Senior Division, Gangavati and eventually by virtue of the order passed by this Court in Special Leave Petition (Civil) No. 20346 of 2014, it stood transferred to the Court of Civil Judge, Senior Division, Dharwad and numbered as R.A. No.123/2014. The first appellate Court allowed the appeal in part. The appellate Court restrained the present appellant from interfering with the plaintiff/respondent Mutt's possession and enjoyment of suit property subject to the right of the defendant Mutt to perform Adradhanas and Poojas of the Vrindavanas at Navavrindavanagatti.
4. After the appeal was disposed of, the respondent filed execution petition, E.P. No.122/2015 before the Principal Civil Judge, Junior Division, Gangavati. The executing court passed certain orders on 10.12.2015. In the meantime, the appellant, being grieved by the order in the Regular Appeal, had preferred RSA No.100446/2015. As the order passed by the executing court affected certain rights of the appellant, it filed IA No.1 of 2015 seeking temporary injunction against the respondent. Be it stated, the respondent had filed a caveat which was defective but it was allowed to represent through the counsel when the IA No.1 of 2015 was argued. As is discernible from the narration of facts, the executing court had directed the Deputy Superintendent of Police, Gangavati to give police protection to the decree-holder for possession and enjoyment of the suit scheduled property and preventing the judgment-debtor from trespassing into the suit property violating the decree in RA No.123/2014.
5. When the matter stood thus, IA No.1 of 2015 was taken up by the High Court. The learned Single Judge, while considering the interlocutory application for injunction, passed the following order:-
“List this matter on 20.01.2016 for filing of objections to I.A.1/2015 and 2/15. In the meanwhile, registry to secure the LCR from both the courts below. The same should reach this court on or before 16.01.2016. However, it is made clear that the appellant, who is defendant in O.S., and respondent who is plaintiff in the O.S., shall have their right to perform pooja on regular basis without staking claim with respect to disputed land, which shall be subject to out come of this appeal.”
6. As is manifest, the respondent filed objections to I.A. No.1/2015 and also filed I.A. No.1/2016 for vacation of the interim order. I.A. No.1/2016 was taken up by the learned Single Judge who referred to Order XXXIX Rule 3-A of the Code of Civil Procedure (CPC), the authority in A. Venkatasubbiah Naidu v. S. Chellappan & others, AIR 2000 SC 3032 noted the contentions advanced by the learned counsel for the parties, adverted to the litigations that had been taken recourse to by both sides, acquainted itself with the ear
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