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1990 Supreme(MP) 293
High Court Of Madhya Pradesh
K. L. SHRIVASTAVA
JHUMMAMAL - Appellant
Versus
MOTILAL - Respondents
Misc. Appeal 158 Of 1988
Decided On : 08/01/1990
R.G.VAGHAMARE, S.L.GARG, S.S.Garg, UDAY VARUNJIKAR
Temporary injunction can be granted against an order under S. 145 (6) of the Cr. P. C., but only if the Civil Court comes to a conclusion contrary to that recorded by the Criminal Court regarding forcible and unlawful dispossession of the defendant.
Headnote:
INJUNCTION - POSSESSION - S. 145 (6), CR. P. C. - TEMPORARY INJUNCTION AGAINST ORDER UNDER S. 145 (6), CR. P. C. - PRINCIPLES GOVERNING GRANT OF TEMPORARY INJUNCTION - EFFECT OF ORDER UNDER S. 145 (6), CR. P. C. - INTERPRETATION OF S. 41 (B) OF THE SPECIFIC RELIEF ACT, 1963.
Fact of the Case:
Appellant claimed tenancy rights over the disputed property, while respondents claimed ownership. Appellant was dispossessed from the property by respondents, and a criminal case was registered. The A. D. M. passed a final order under S. 145 (6) of the Cr. P. C., restoring possession to the appellant. The respondents challenged this order in the High Court and obtained a stay. The appellant then approached the Supreme Court, which set aside the High Court's order and restored the A. D. M.'s order. Subsequently, the respondents filed a suit for declaration of title and permanent injunction, and obtained an order for temporary injunction from the trial court.
Finding of the Court:
The court held that the order under S. 145 (6) of the Cr. P. C. was subject to the decision of the competent Civil Court. However, the court also held that temporary injunction could be granted even in the face of an order under S. 145 (6) of the Cr. P. C., but only if the Civil Court came to a conclusion contrary to that recorded by the Criminal Court regarding forcible and unlawful dispossession of the defendant. In the present case, the court found that the finding of the Criminal Court was against the respondents and that there was nothing to hold that prima facie the possession of the respondents over the property in dispute had a lawful origin. The court also held that the learned lower court failed to consider the full effect of the finding as to the respondents' forcible and unlawful entry in the property in dispute and that by granting the relief of temporary injunction, it would not only be lending a helping hand to the trespassers but would also be acting in derogation of the provision in S. 41 (b) of the Specific Relief Act, 1963.
Issues: 1. Whether temporary injunction can be granted against an order under S. 145 (6) of the Cr. P. C.? 2. Whether the respondents had a lawful right to possession of the property in dispute?
Ratio Decidendi: 1. The court held that temporary injunction could be granted even in the face of an order under S. 145 (6) of the Cr. P. C., but only if the Civil Court came to a conclusion contrary to that recorded by the Criminal Court regarding forcible and unlawful dispossession of the defendant. 2. The court held that the respondents did not have a lawful right to possession of the property in dispute, as the finding of the Criminal Court was against them and there was nothing to hold that prima facie their possession had a lawful origin.
Final Decision: The appeal was allowed, the impugned order was set aside, and the respondents' application for grant of temporary injunction was dismissed.
( 1 ) THIS appeal under O. 43, R. 1 (r) of the Civil Procedure Code, 1908 (for short 'the C. P. C. ') is directed against the order dated 9-9-1988 passed by the Vth Additional Judge to the District Judge, Ujjain in Civil Suit No. 24-A of 1988 for declaration of title to the property in dispute and for permanent injunction restraining the appellant from disturbing the possession of the respondents Nos. 1 to 3, whereby their application under O. 39, R. 1 ibid has been allowed.
( 2 ) IT is not in controversy that the disputed property comprising of a shop on the ground floor with two rooms behind, forms part of a building which initially belonged to one Badrinarayan, the deceased father of the respondents 1 to 3. The said Badrinarayan on 19-7-1952 mortgaged with possession the property in dispute. As mortgage money was not paid a suit for sale of the mortgaged property was instituted. In the suit a preliminary decree was passed on 24-4-68 and was followed by the final decree for sale passed on 4-1-1969.
( 3 ) THE final decree for sale of the mortgaged property was purchased by one Asgarali in 1969. According to the present appellant the said Asgarali on 7-8-1982 inducted him in the property in dispute as tenant on monthly rent for a period of 11 months but later the respondents dispossessed him of the property on 11-8-82. On the report dated 11-8-82 lodged with the police in respect of the occurrence of dispossession a crime was registered under S. 448 of the I. P. C. against the respondents 1 to 3.
( 4 ) THE police on 13-8-1982 also moved the A. D. M. Ujjain in proceedings under S. 145 of the Criminal Procedure Code, 1973 (for short 'the Cr. P. C. ') alleging that a dispute of the nature contemplated under the provision exists in relation to the property.
( 5 ) THE learned A. D. M. passed a preliminary order under S. 145 (1) of the Cr. P. C. on 13-8-1982. At the conclusion of the summary inquiry relating to the fact of actual possession he passed a final order under S. 145 (6) ibid on 17-5-1985 and held that the appellant was forcibly and wrongfully dispossessed by the respondents and further ordered that possession of the property be restored to him. ( 6 ) THE aforesaid final order passed by the learned A. D. M. was unsuccessfully challenged by the respondent Motilal by filing a revision petition in the Court of Session, Ujjain. The said revision petition was dismissed and thereafter he successfully approached the High Court.
( 7 ) THE present appellant took up the matter to the Apex Court of the country which by its judgment dated 25-8-1988, reported in Jhummamal v. State of M. P. , 1988 Jab LJ 584 : 1989 MPLJ 166 detailing the history of the litigation set aside the order passed by the High Court and restored that passed by the A. D. M. Ujjain.
( 8 ) ON the date the Apex Court delivered its judgment, the respondents instituted the present suit.
( 9 ) IT may be stated that after the Sessions Court, Ujjain dismissed the revision petition filed by the respondent Motilal his brother Prahladdas, the respondent No. 2, on 15-7-1985 instituted a civil suit in the Court of IVth Civil Judge, Cl. II, Ujjain against the appellant for the relief of permanent injunction restraining the latter from taking possession of the property in dispute. That application was allowed by the trial Court but in appeal the order granting temporary injunction was set aside.
( 10 ) ASGARALI, the purchaser of the final decree for the sale of the property in dispute moved the Court for execution of that decree. In the said proceedings the respondents on 20-8-1982 deposited Rs. 21,794. 50 p. payable under the decree for sale.
( 11 ) THE main contention of the learned counsel for the appellant is that the order passed by the learned A. D. M. regarding restoration of possession of the property to the appellant has been upheld by the Apex Court and the respondents being wrong-doers are by their conduct disentitled to the equitable relief of t
