1980 Supreme(MP) 729

IN THE HIGH COURT OF MADHYA PRADESH
J.P. Bajpai, J.
Kedar Singh – Applicants
Vs.
Babooram – Non-applicants
C. Revn. No. 540 of 1979 (G)
Decided On : 05-03-1980

Headnote:(1) Civil Procedure Code, 1908 - O. 39 R. 4 - temporary injunction duly upheld in appeal - when may be interfered with under - no change in circumstances - Court has no jurisdiction, to vacate injunction.

       (2) Practice - Court - action of - when liable to be condemned - action in utter disregard of superior appellate Court - committing legal mischief under garb of provisions of law - such action is liable to be condemned.

       Short Note

       1. The plaintiff - non - applicants instituted a suit for the reliefs of declaration and permanent in junction against the defendant - applicants in respect of certain agricultural holding on the ground that they were the sole and exclusive owners of the said holding because Mahila Samota, the widow of Saligram, who was the brother of the plaintiffs, had already surrendered her interests in their favour long back and, as such, neither she was the owner nor she was in possession of the suit holding in any manner It was also contended that the sale deed executed by Mst. Samota in respect of the suit holding in favour of the present defendants who are strangers to the family did not confer any right, tille or interest on them and that. they were un - necessarily, on the basis of the aforesaid invalid deed of sale, trying to interfere with their possession. During the pendency of the suit the plaintiff moved an application for grant of temporary injunction. The said request was ultimately allowed as per order made by the Additional District Judge, Bhind on 3 - 11 - 1977 affirming that of the trial Court made on 7 - 7 - 1976 and that present applicants were restrained from interfering with the possession of the plaintiffs. Having lost even before the appellate Court and the order made by the Trial Court having become final and effective the present - defendants in an attempt to get rid of the effect of the Same moved an application after about six months by styling the Same as one under O. 39, R. 4 CPC. The grounds put forth in the said application were that previously the order made by the Trial Court and affirmed by the lower appellate Court granting temporary injunction against them in favour of the plaintiffs, had been passed without properly appreciating the legal and factual position and, as such, the same deserved to be set aside on the said application under R.4 of O. 39 C.P.C., and that the rejection of their request for imposing conditions regarding security was also not proper and, therefore, the same was also open for reconsideration. In order to anyhow make their application under O. 39, R. 4 C.P.C. to appear as tenable being based on subsequent events, it was stated that subsequent to the orders made by the Courts below in the matter of grant of temporary injunction in favour of the plaintiffs, the Additional Commissioner on the revenue side had allowed the claim for partition of the suit holding according to the provisions of the M. P. Land Revenue Code, 1959. This allegation as is apparent from the face of the record was contrary to the undisputed facts in as much as the order being made by the Additional Commissioner was not a subsequent one but was already passed on 30 - 4 - 1977, i. e. long before the order dated 3 - 11 - 1977 made by the Additional District Judge, and the circumstances that the proceedings, for partition before the revenue Courts had been pending before them right from the beginning and, actually, speaking, the said circumstance was the occasion for approaching the Court for grant of temporary injunction.

       2. Held: It is really surprising that the aforesaid contentions put. forth in the garb of an application under O.39, R. 4 C.P.C. found favour with the learned civil Judge and he went to the extent of setting at nought the order made. which had been upheld by the superior Court in appeal. It is further not only surprising but is also painful to note that the civil Judge vacated the order which had been affirmed by the superior Court, despite being aware of the said fact without there being any material on record even for name's sake to show that due to change in circumstances or undue hardship a case was made out for vacating the earlier order of temporary injunction by invoking the jurisdiction under R. 4 of O. 39 C.P.C. As stated above, the grounds which were put forth in the application under O 39, R. 4 C.P.C. did not disclose any case of subsequent change in the circumstances or undue hardship so as to attract the said provisions. Actually speaking, what was considered, discussed and relied for disturbing the order made earlier amounted to nothing but re - hearing of the matter already dealt and disposed of and passing a fresh order.

       3. It would be further significant to mention that in the plaint itself it was specifically mentioned that the defendants had approached the revenue Court seeking partition and that if they were not restrained from interfering with their possession and were allowed to implement any partition, the same will disturb the status quo during the pendency of the suit and, therefore, their application for grant of temporary injunction be allowed Under these circumstances, it cannot be said that simply because the order made in the proceedings before the revenue Court happened to pass through various stages in appeal or revision before the superior revenue Courts, the same amounted to a change in the circumstances. Even otherwise, as is apparent from the record, the ultimate order passed by the Additional Commissioner was also not subsequent to the order made by the Additional District Judge. Thus this plea was nothing but a camouflage to anyhow make the application to appear like one tenable under O. 39, R. 4 C.P.C. Similarly; the contention that the legal position was not properly appreciated while making the earlier order was also apparently not a ground covered by R. 4. As regards the question of propriety of imposing a condition of security, the position was the same. Earlier this aspect of the case had been specifically dealt and the Court making the final order did not think proper in the facts and circumstances of the case to impose the condition of security.' Thus on all counts the application under O. 39, R. 4 C.P.C. was not at all tenable according to its frame itself, and the order made by the Civil Judge disturbing the earlier order as affirmed by the superior Court in appeal was apparently beyond jurisdiction.

       4. However before parting with the case, this Court finds it necessary to observe that if the subordinate Court act in the manner as indicated above in utter disregard of the decision of the superior appellate Court and commit legal mischief by entertaining a request in the garb of certain provisions, which even according to the allegations made by the party, is not tenable under Such provisions and goes to the extent of disturbing the order made by the superior Court, there will remain neither any certainty nor sanctity to the orders made by the superior Courts, Had there been any such thing so as to confer jurisdiction and scope for taking such a view, though erroneous, the position would have been different But it is not so in the present case, and, therefore, the conduct of the learned Civil Judge deserves to be condemned. A copy of this order be sent to the Civil Judge concerned where so ever he may be through the District Judge concerned and assessment slip with the remarks be kept in the confidential file of the civil Judge concerned in compliance of the procedure in that respect. Revision dismissed.