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High Court Of Calcutta
Salil Kumar Datta
RATHINDRA NATH BOSE - Appellant
Versus
JYOTI BIKASH GHOSH - Respondent
Civilrevncase 3471 Of 1973
Decided On : 07/07/1975
CIVIL PROCEDURE CODE - SECTION 94 - ORDER 39 - INJUNCTION - APPEALABILITY OF ORDER - ORDER UNDER SECTION 94 READ WITH ORDER 39 - APPEALABLE - ORDER UNDER SECTION 94 SIMPLICITER - NOT APPEALABLE - ORDER UNDER SECTION 151 - NOT APPEALABLE - REVISION - SCOPE - ORDER NOT BROUGHT BEFORE COURT IN ACCORDANCE WITH LAW - COURT CANNOT PASS ORDERS.
Fact of the Case:
The landlords obtained a decree for possession of the suit premises from the trial court. The plaintiffs filed a suit for a declaration that they were joint tenants of the suit premises and for permanent injunction restraining the landlords from proceeding with execution of the decree. The trial court granted an ad interim injunction. The landlords filed an appeal against the injunction order. The appellate court held that the trial court had exercised jurisdiction under Order 39 while passing the order under Section 94(c) of the Code and the appeal was maintainable under Order 43, Rule 1, Clause (r). The appellate court allowed the appeal and vacated the injunction.
Finding of the Court:
The court held that the order of the trial court was not under Section 94 read with Order 39, but under Section 151 of the Code. An order under Section 151 simpliciter is not appealable. The court further held that the revisional powers of the court do not extend to correct an order passed when the party disputing the propriety of the order has not legally moved against it.
Issues: 1. Whether the order of the trial court was under Section 94 read with Order 39 or under Section 151 of the Code? 2. Whether an order under Section 94 read with Order 39 is appealable? 3. Whether an order under Section 151 is appealable? 4. Whether the court can pass orders in revision against an order which has not been challenged before it in accordance with law?
Ratio Decidendi: 1. The court held that the order of the trial court was under Section 151 of the Code and not under Section 94 read with Order 39. The court reasoned that the circumstances contemplated in Rules 1 and 2 of Order 39 did not exist to warrant the issue of an injunction under the said order. Therefore, the injunction under Section 94, which is circumscribed to the circumstances contemplated under the Rules, could not be validly issued. 2. The court held that an order under Section 94 read with Order 39 is appealable. The court reasoned that Section 94 creates jurisdiction while Order 39 is the procedure through which such power can be exercised. Therefore, an order under Section 94 read with Order 39 is subject to appeal under the provisions of Order 43. 3. The court held that an order under Section 151 is not appealable. The court reasoned that Section 104 and Order 43, Rule 1, only mention specific orders that are appealable and no appeal lies from any other order. The order made under Section 151 is not included in the category of appealable orders. 4. The court held that the court cannot pass orders in revision against an order which has not been challenged before it in accordance with law. The court reasoned that in all the cases cited, the order impugned was validly brought under challenge before the court in revision, when it passed appropriate orders on the subject-matter at issue.
Final Decision: The court made the rule absolute and set aside the appellate order. The court directed that the records be sent down to the trial court for hearing and disposal of the Misc. Case under Order 9, Rule 9.
( 1 ) THIS Rule has been obtained against the order passed on appeal by the Additional District Judge, 1st Court, Alipore, dissolving the injunction granted by the trial court. The facts in short are as follows :
( 2 ) OPPOSITE parties Nos. 1 and 2, the landlords who purchased the suit premises in 1966, instituted Title Suit No. 137 of 1968 against opposite parties Nos. 7 and 8 for recovery of possession of premises No. 7-A, Nafar Kundu Road, Calcutta, P. S. Bhowanipore, which, it was alleged, the said opposite parties held as monthly tenants. The ground for eviction was the plaintiffs' reasonable requirement of the suit premises for own use and occupation. The suit was decreed on February 14, 1969. The cousins of the defendants filed Title Suit No. 73 of 1969 on February 26, 1969 for a declaration that they and the opposite parties Nos. 7 and 8 were joint tenants of the suit premises and also for permanent injunction restraining the landlords from proceeding with execution of the decree for possession. They also filed a petition for ad interim injunction, which was dismissed and was affirmed on appeal. The order was challenged by the said plaintiffs of T. S. No. 73 of 1969 in revision in C. R. 3152 of 1969. This Rule was discharged by this Court on January 21, 1970 with direction that the suit should be heard within three months and the execution of the decree was allowed after May 7, 1970.
( 3 ) ON July 20, 1971 Title Suit No. 73 of 1969 was dismissed for default. On August 17. 1971 an application for restoration of the suit under Order 9, Rule 9 of the Code of Civil Procedure was filed registered as Misc. Case No. 78 of 1971. The plaintiffs thereafter filed an application under Section 151 in the said proceeding for injunction restraining the decree-holder landlords from executing the decree and this application was dismissed on August 28, 1972. Thereafter, on August 30, 1972 the plaintiffs filed a petition under Section 94 (c) and (e) read with Section 151 of the Code before the trial court for an injunction restraining the landlords from executing the decree and an ad interim injunction was granted thereon. The application, treated as an application under Section 94 (c) and (e) of the Code was thereafter allowed on contest by order dated February 7, 1973 and the landlords were restrained by an injunction from proceeding with their Title Execution Case No. 59 of 1972 in execution of the decree obtained by them as aforesaid till the disposal of the application under Order 9, Rule 9 registered as Misc. Case No. 78 of 1971. The landlords preferred an appeal against the said decision and the appellate court held that the learned Munsif is to be deemed to have exercised jurisdiction under Order 39 while passing the order under Section 94 (c) of the Code and the appeal before him as such was maintainable under provisions of Order 43, Rule 1, Clause (r ). On merits it was held that the plaintiffs failed to make out a prima facie case and mere joint possession, if true, would not show that there was joint tenancy of the premises. The Court further held that the balance of convenience would be against the landlords if the injunction was sustained as they instituted the suit for recovery of possession for their own use and occupation in 1967, while the plaintiffs were not actually residing at the suit premises. The appeal was accordingly allowed and the injunction granted by the trial court was vacated. The petitioner, who is one of the plaintiffs, in Title Suit No. 73 of 1969, moved this Court against this appellate order and obtained the present Rule.
( 4 ) MR. Saraf, learned Advocate appearing for the petitioner submitted that the appeal against the order of the learned Munsif, was not maintainable in law. The order passed was clearly under Section 94 (c) and (e) and not under Order 39, Rule 1 or 2 as Order 39 applies only to proceedings in suit. No appeal lies against an order under Section 94 (c) or (e)
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