1995 Supreme(Guj) 162

Gujarat High Court
Judgename :S.D.Shah
BHAGWANJI VISHAVJI THAKKAR - Appellant
Versus
PRAVINCHANDRA JIVANBHAI PATADIA - Respondent
Civil Revision 501 of 1994
Decided On : 03/24/1995

Headnote:Civil Procedure Code, 1908 - Sec. 115, Order 39, Rules 1& 2 - Revisional jurisdiction - Scope - Fraudulent and collusive decree of auction obtained by landlord against tenant - Petitioner and decree collusively got executed - Same quashed and mandatory direction to restore possession to tenant issued - Same upheld by appellate Court and even High Court - Landlord father in order to defy the said direction tenanted the suit premises to his son - Thereafter the respondent - Son filed another suit in Court of co-ordinate jurisdiction and obtained temporary injunction - Held, the trial Court acted in total disregard of earlier directions and the whole exercise of jurisdiction is against judicial propriety - Same therefore quahsed - Conduct of trial court strongly deprecated - Direction to restore possession to tenant.

       When with respect to very suit property, three courts including the High Court of Gujarat has at interlocutory stage, issued mandatory directions to the original landlord to restore possession of the suit shop to the original tenant, in a subsequently instituted suit by the son of the landlord, claiming to be the tenant of his father, grant of temporary injunction by the trial court is not only unreasonable or injudicious exercise of discretion, but, in my opinion it is nothing but an attempt to encourage the abuse of the process of the court by undermining the supermacy of the District Court and the Hight Court over the trial court and thereby the trial court has thrown overboard canons of judicial propriety expected from the subordinate court. The trial Court under no circumstances would have issued inconsistent injunction so as to render meaningless the interlocutory mandatory directions of restoration of possession of the suit shop issued by three courts. The exercise of discretion by the trial Court was, therefore, in every respect injudicious, wrongful and to say the least, it was a daring raid by a subordinate court to overreach the binding decisions of the superior courts with oblique motive. There appears to be no reason for the father to let out the suit shop to his son and that too to carry on the same business of Ashok Mandap Service which he was already carrying on at another shop at Rajkot itself. Despite these telling facts and circumstances, the trial court not only entertained second suit at the instance of the son but granted inconsistent and contradictory injunction so as to render meaningless and otiose the mandatory direction issued by the High Court requiring the landlord to restore possession to the regular tenant. In fact, the trial court lacked the jurisdiction to entertain such a suit and to pass such an order when it was appraised of the facts that in the earlier proceeding, mandatory directions were already issued by the trial court and confirmed by the District Court, Rajkot for handing over possession of the suit shop to the regular tenant by landlord. This is a case where the trial court having known the true facts of earlier proceedings and orders passed therein totally lacked the jurisdiction and, therefore, in my opinion, this court has full jurisdiction to interfere with the orders passed by two courts below. It becomes clear that the judgment and order passed by the Assistant Judge, Rajkot on 15th January, 1994 confirming the judgment and order of R.J. Sakiwala (under suspension) Small Cause Court Judge, Rakot, are required to be interfered with and this Civil Revision Application is required to be allowed. The aforesaid two judgments are set aside and the directions issued by the learned Single Judge K.R. Vyas, J. of this Court on 1st of October, 1992 in Civil Revision Application No. 1251 of 1993, thereby confirming the interim mandatory directions issued by the Small Cause Court Judge in Civil Suit No. 150 of 1992 are required to be restored and are hereby restored and respondents No. 1 and 2 are directed to hand over possession of the suit shop to the present petitioner Bhagwanji Vishavji Thakkar within three months and the learned Assistant Judge, Rajkot is directed to see that such possession is restored to the tenant, if need be with the assistance of Police.

       [Paras 22, 28 & 33]

       Civil Procedure Code, 1908 - Order 43, Rule 2 - Appeal from order - Power of appellate court - Grant of injunction by trial Court in total disregard of earlier direction issued by court of co-ordinate jurisdiction and upheld by High Court - Appellate Court also confirming impugned order - Held, approach is erroneous and not justified.

       Unfortunately, the learned Assistant Judge who exercised the appellate power merely adopted confirmist approach and did not realise that how braze facedly and abashedly the judicial discretion was misused by the trial court while granting injunction in favour of the son in the subsequently instituted suit. Having clearly earmarked the jurisdiction of the lower appellate court while deciding Appeal From Order, it would be appropriate for this Court at this stage to notice that glaring and eloquent facts which are unfortunately missed by the trial court as well as the lower appellate court which, it taken into consideration appropriately would justify ultimately the rejection of the application of injunction granted to the son and restoration of the order passed by the High Court for handing over peaceful and vacant possession of the suit shop to the original tenant.

       [Paras 22 & 23]

       Rent & Eviction - Tenancy created by father in favour of son - In disregard of mandatory direction of the Court - Held, impugned tenancy is illegal.

       Since the very decree of eviction was collusive and against a non-existant person, it cannot be said that the landlord has lawfully obtained possession of the suit premises and he cannot pass over possession of the suit premises to his son as a tenant. It is required to be noted that despite this factual position, in the suit instituted by real tenant three courts have concurrently ordered landlord to restore possession. In such proceeding landlord has not claimed that he has created new tenancy in favour of his son.

       [Para 31]

       Administration of justice - Jurisdiction of Court of co-ordinate jurisdiction - Exercise of - Eviction Suit - Fraudulent and collusive decree of eviction obtained by land lord - Tenant obtained mandatory direction for restoration of possession - Same confirmed by High Court - Another trial court entertaining suit of son of land lord issued injunction in total disregard of earlier orders of court of co-ordinate jurisdiction - Held, such exercise of power is blatant misuse and calculated attempt to defeat the majesty of law - Conduct of trial Court strongly deprecated.

       In the opinion of this Court, the process of the Civil Court was blatently misused and abused solely with view to rendering meaningless the order of temporary mandatory injuncution granted by two courts concurrently directing the landlord to restore possession of the suit shop to the tenant. It is unfortunate that Assistant Judge, Rajkot acted in such blatant disregard of the binding judgment and order of the learned Single Judge of this Court that he did not deal with and did not assign any reason as to why he was granting contrary injunction to the mandatory direction issued in the earlier suit in favour of the tenant by the trial court as well as by the District Court at Rajkot. The conduct of the learned Assistant Judge, Rajkot, to say the least, deserves denounciation and is required to be strongly deprecated as he has not only smartly overreached the three concurrent judgments of the Courts including that of the learned Single Judge of the High Court but has proceeded to confirm the judgment and order of R.J. Sakiwala, which was in every respect contrary to the judgment and order of the learned Single Judge of this court. The judgment and order of R.J. Sakiwala was nothing but an outrageous attempt to brazen facedly over-reach the order of the learned Single Judge of this Court. I for myself fail to understand as to how and for what justifiable reason even the Assistant Judge, Rajkot fell in the same trap and confirmed the order of injunction which rendered nugatory the success of the original tenant Bhagwanji Vishavji Thakkar in getting an order of mandatory injunction of restoration of possession of the suit shop in his favour. When one Civil Court of competent jurisdiction has granted ex parte or temporary injunction with respect to the same property, another court of co-ordinate jurisdiction ordinarily should not issue totally inconsistent or contradictory injunction to the one which is already granted in favour of the opposite party, exercise of such power by a court of coordinate jurisdiction would lead to passing of inconsistent or contradictory orders in favour of different parties and would create chaos of administration in justice. Practice of bringing successive suits by the same plaintiff so as to defeat the success of the defendant or by different plaintiffs against the same defendants so as to tire him out or harass him by resorting to successive litigations is regarded by the Apex Court as well as by this Court as nothing but an abuse of the process of the Court. When a party knowingly institutes the second suit solely with a view to defeat the success of the defendant in earlier proceedings and that too in collusion with or at the instance of unsuccessful party in the earlier proceeding it is misusing the process of the Court and is ultimately frustrating the object underlying in Order 39, Rules 1 & 2 of the C.P. Code. In fact, when the second suit is instituted, the trial court as court of co- ordinate jurisdiction lacks the jurisdiction to grant inconsistent or contradictory injunction, which would defeat the ends of justice and which would render meaningless the earlier orders granted by the superior courts. All the question which this Court articulated in Para 7 hereinabove, thus stand squarely answered by the aforesaid weighty observatons of the Apex Court and of this Court. The trial court while granting contradictory or inconsistent injunction has exercised the jurisdiction, which is not vested in it by law. The order of the trial court as confirmed by the Assistant Judge, if allowed to stand, is likely to occasion failure of justice or cause irreparable injury to the party against whom it is made and, therefore, interference of this Court in its revisional jurisdiction become necessary and a desideratum.

       [Paras 2 & 16]