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2006 Supreme(All) 3334
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
DEVI PRASAD SINGH, J.
Cantonment Board and Another - Appellants
Versus
District Judge (Incharge) and Others - Respondents
Writ Petition No. 1609 (M/S) of 2006
Decided On : 27-04-2006
For the Appellant : Akhilesh Kalra.
For the Respondent: Shesh Verma and C.S.C.
Revisional power u/s 115 of CPC is not maintainable against an order issuing notice to defendants on an application for temporary injunction filed under Order XXXIX, Rules 1 and 2 of CPC.
Headnote:
Revision u/s 115 of CPC is not maintainable against an order issuing notice to defendants on an application for temporary injunction filed under Order XXXIX, Rules 1 and 2 of CPC.
Fact of the Case:
Plaintiffs filed a Regular Suit No. 129 of 2006 in the Court of Civil Judge, Senior Division Lucknow for permanent injunction. They claimed to be migrants from Pakistan and settled in India during the partition years. The Government of India had rehabilitated them in various parts of the country. According to plaintiffs, the Cantonment Board had allotted to plaintiffs family the shops in question. They have got certain gumties on Nehru Road near Sadar Bazar Chauraha, Cantonment Lucknow, alleged to be allotted to them by the defendants. Notices were issued to them by the Cantonment Board to vacate the premises in question. The employees of Board had tried to demolish the premises in question. In the order dated 8.2.2006 filed as Annexure-5 to the writ petition it has been observed by learned trial court that for identical dispute already a Regular Suit is pending in which a temporary injunction was granted and is in operation. The trial court had fixed 23.2.2006 for further proceeding. Since, no injunction was granted by learned trial court feeling aggrieved the plaintiff respondents had preferred a revision u/s 115 of CPC against the order dated 8.2.2006 before the District Judge, Lucknow. The revision was heard by learned officiating District Judge, Lucknow on 20.2.2006. Out of eight plaintiffs three namely Ravindra Kumar Dhawan, Mamta Dhawan and Swarnkanta (plaintiff No. 2, 4 and 5) had not preferred a revision nor they were arrayed as party. Learned District Judge, at admission stage by common order admitted the revision and decided finally directing the parties to maintain status quo regarding the nature of possession of property in question. Learned Incharge District Judge, Lucknow had also directed the trial court to decide the application of temporary injunction within a period of one months with liberty to adjourn the case only in very exceptional circumstances.
Finding of the Court:
The impugned order passed by learned officiating District Judge, while directing to maintain status quo is not only contrary to settled proposition of law enable a court to grant temporary injunction but it also does not fulfil the conditions provided u/s 115 of the Code of Civil Procedure. Learned Incharge District Judge, Lucknow had not recorded any finding after hearing the argument advanced by learned Counsel for the parties as to what miscarriage of justice or failure of justice or irreparable injury shall cause to the plaintiff in case no interim order is passed. More so when the defendants have set up a case that parties had entered into the agreement or mutual settlement to vacate the premises accepting the defendant right to construct the building over the premises in question. Assuming that the learned officiating District Judge, was having Jurisdiction to entertain the revision (though it is not for the reason discussed hereinafter) then while passing the impugned order and directing the parties to maintain status quo it was necessary for him not only to meet out the requirement provided u/s 115 of the CPC but also it was necessary for him to record finding relating to prima facie case, irreparable loss and balance of convenience which is necessary concoctment of Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure.
Issues: Whether against an order issuing notice to defendants on an application for temporary injunction filed under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, a revision u/s 115 of the CPC shall be maintainable?
Ratio Decidendi: The revisional power of higher courts in its very nature is a truncked power. The width of power of revisional court cannot be equated with the power of appellate court. Mere possibility of a different view is no ground to interfere in exercise of revisional power. The word "case" used in Section 115 of the CPC is of comprehensive import and it includes civil proceedings other than suit and is not restricted by anything contained in the section to the entirety of proceedings in a civil suit. The Apex Court further held in the same case that the power of revisional court is supervisory in nature and in case there is alternative remedy to file an appeal or in case alternative remedy is available against the order in question or from the ultimate order or decree in the proceeding then superior court may decline to exercise revisional jurisdiction.
Final Decision: Writ Petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 20.2.2006 passed in Civil Revision No. 65 of 2006 with natural consequence.
Devi Prasad Singh, J.
Controversy relates to interpretation of Section 115 of the Code of Civil Procedure. Whether against an order issuing notice to defendants on an application for temporary injunction filed under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, a revision u/s 115 of the CPC shall be maintainable is the question involved in the present writ petition?
2. Plaintiffs opposite parties No. 2 to 6 had filed a Regular Suit No. 129 of 2006 in the Court of Civil Judge, Senior Division Lucknow for permanent injunction. According to plaintiffs they are migrants from Pakistan and settled in this country during the partition years. The Government of India had rehabilitated them in various parts of the country. According to plaintiff respondents, the Cantonment Board had allotted to plaintiffs family the shops in question. They have got certain gumties on Nehru Road near Sadar Bazar Chauraha, Cantonment Lucknow, alleged to be allotted to them by the defendants. Notices were issued to them by the Cantonment Board to vacate the premises in question. The employees of Board had tried to demolish the premises in question. It has been pleaded in the plaint (Annexure-4) under Para 8 that on 4.2.2006 the defendants employees had tried to demolish the shops in question, feeling aggrieved they have preferred the suit.
3. Learned trial court by order dated 8.2.2006 issued notices to defendants including the petitioner of the present writ petition on the application for temporary injunction. In the order dated 8.2.2006 filed as Annexure-5 to the writ petition it has been observed by learned trial court that for identical dispute already a Regular Suit is pending in which a temporary injunction was granted and is in operation. The trial court had fixed 23.2.2006 for further proceeding.
4. Since, no injunction was granted by learned trial court feeling aggrieved the plaintiff respondents had preferred a revision u/s 115 of the CPC against the order dated 8.2.2006 before the District Judge, Lucknow. The revision was heard by learned officiating District Judge, Lucknow on 20.2.2006. Out of eight plaintiffs three namely Ravindra Kumar Dhawan, Mamta Dhawan and Swarnkanta (plaintiff No. 2, 4 and 5) had not preferred a revision nor they were arrayed as party. Learned District Judge, at admission stage by common order admitted the revision and decided finally directing the parties to maintain status quo regarding the nature of possession of property in question. Learned Incharge District Judge, Lucknow had also directed the trial court to decide the application of temporary injunction within a period of one months with liberty to adjourn the case only in very exceptional circumstances.
5. The rival claim and material on record as discussed by learned Incharge District Judge, reveals that for the same property a regular suit No. 307 of 1991 is pending between the parties. About 72 tenants are in possession of the shops belonging to petitioner Cantonment Board. They had filed a Writ Petition No. 490 of 2006 in this Court which was dismissed on account of pendency of civil suit. It was contended by the petitioner that all the tenants including the defendants of the suit in question had entered into the compromise with the Cantonment Board and agreed to vacate the premises in question. It was agreed between the parties that after construction of new shops the tenants including the plaintiff shall be accommodated. It has also been submitted by petitioner before the learned Incharge District Judge. Lucknow that 72 occupants or tenants had availed the benefit of new shops in terms of agreement except eight persons who are the plaintiffs in suit.
During the course of hearing before learned District Judge, (Incharge) question of jurisdiction was also raised by the defendant petitioner with the submission that revision was not maintainable as the trial court had issued only notices to the defendants. Learned Counsel for the petitioner had
