1989 Supreme(MP) 345

K. L. Shrivastava, J.
Dattatraya Vaishampayan v. Janakarya Vibhag Karamchari
Grih Nirman Sahakari Samiti.
M. A. No. 28 of 1988 (I); Decided on 22-9-1989.

Headnote:(1) Jurisdiction-Court having Jurisdiction-has jurisdiction to decide wrongly as well as rightly.

        (2) Civil P. C., 1908-O. 39, Rr. 1 and 2-issuance of temporary injunction-is discretionary.

       

        (3) Judgment d`right judgment by wrong Court-no judgment in eye of law.

       

        (4) Chit P. C., 1908-O.39. Rr. 1 and 2-temporary injunction-cannot be granted in favour if a trespasser-possession must be legal.

       

        (5) Civil P. C., 1908-O.39, Rr. l and 2-initial stage of temporary injunction-jurisdiction of Court cannot be questioned.

       ¼1½ vf/kdkfjrk&vf/kdkfjrk&laiUu U;k;ky;&xyr ,oa Bhd fofu‘p; djus dh vf/kdkfjrk gSA

       ¼2½ flfoy izfdz;k lafgrk] 1908&vk- 39] fu- 1 ,oa 2&vLFkkh O;kns‘k tkjh fd;k tkuk&oSosfdd gSA

       ¼3½ fu.kZ;&xyr U;k;ky; }kjk Bhd fu.kZ;&fof/k dh n`f"V esa fu.kZ; ugha gSA

       ¼4½ flfoy izfdz;k lafgrk] 1908&vk- 39] fu- 1 ,oa 2&vLFkkh O;kns‘k vf/kdzked ds i{k esa iznku ugha fd;k tk ldrk&dCtk oS/k gksuk pkfg,A

       ¼5½ flfoy izfdz;k lafgrk] 1908&vk- 39] fu- 1 ,oa 2&vLFkkh O;kns‘k dk izkjafHkd izdze&Uk;ky; dh vf/kdkfjrk ij vk{ksi ugha fd;k tk ldrkA

        This appeal is directed against the order dated 21-12-87 passed by the 5th Addl. Judge to the District Judge, Indore in C. S. No. 97-A of 1987 whereby the appellants application under order 39, rules 1 & 2 C. P. C. 1908 (for short the Code) read with S. 151 ibid bas been dismissed.

        Held: It may be noted that there is a clear distinction between the two forms i e. jurisdiction and exercise of jurisdiction, jurisdiction to hear and determine a case will not depend either upon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the simple reasons that the power to decide necessarily carries with it the power to decide wrongly as well as rightly. If any wrong decision is made, the aggrieved party can take recourse according to law for setting the matter right and if that course is not availed, even a wrong decision cannot be disturbed, But there is a clear boundary between an error in jurisdiction and usurpation of power. The error of judgment can be considerable by the appellate Court, and therefore, is only voidable. But if any order is passed by the authority having no jurisdiction that will be totally a nullity. Reference in this connection may usefully be made to the decision in Arunchandra Sinhas case (AIR 1924 Cal. 153). It bas rightly been observed that even a right judgment by a wrong Court is no judgment in the eye of law.

        As pointed out in Preetpals case (1988 JLJ 549) any dispute about jurisdiction has to be determined at the trial and not at the initial stage of supplemental proceedings of temporary injunction (vide section 94 of the Cede). The relief of temporary injunction is an equitable one and is discretionary. Therefore, even where the three well known Concurrent conditions requisite for grant of the relief exist, it is not obligatory on tbe Court to grant the same. On the facts and in the circumstances of a given case the Court exercising its discretion in the matter in a judicial manner is entitled to refuse the relief to the party applying for it.

        The Deputy Registrars order requiring the appellant to deLi"Ver the possession of the land in dispute to the respondent passed at the initial stage of the proceedings on the appellants application for temporary injunction appears to be without jurisdiction. The fact, however, remains that there is nothing to indicate that for all these years any action has been taken by the Government against the appellant in regard to the alleged encroachment on Government land by him. In the circumstances the greater probability is that it is by mistake that the land in dispute which initially, belonged to the respondent remained to be shown as existing between plot No. 112 sold to the appellant and the plot No.1 13 and the appellant is labouring hard to take the most of this mistake.

        In the decision in Kamal Singhs case [1986 (I) M. P. W. N. 116] it has been held that injunction cannot be claimed merely on the basis of possession. Possession to be protected must be legal and possession of a trespasser cannot be protected. In the decision in Kamal Kumars case [1986 (I) M. P.W. N. 165] it has been held that every injury is not irreparable injury and only that irreparable Injury which results from some illegal act has to be taken into consideration. According to the decision possession being taken under authority of law does not constitute irreparable injury and the relief is granted for the protection of some legal right and not when it would be rendered public in the absence of such right. 1988(1) MPWN 117, 1978 JLJ 51, AIR 1969 SC 1230 discussed. AIR 1924 Cal. 153, 1988 JLJ 549, 1983 MPWN 119, 1986 (1) MPWN 116 and 1986 (1) MPWN 165 relied on.

        (1) Jurisdiction-Court having Jurisdiction-has jurisdiction to decide wrongly as well as rightly.

        (2) Civil P. C., 1908-O. 39, Rr. 1 and 2-issuance of temporary injunction-is discretionary.

       

        (3) Judgment d`right judgment by wrong Court-no judgment in eye of law.

       

        (4) Chit P. C., 1908-O.39. Rr. 1 and 2-temporary injunction-cannot be granted in favour if a trespasser-possession must be legal.

       

        (5) Civil P. C., 1908-O.39, Rr. l and 2-initial stage of temporary injunction-jurisdiction of Court cannot be questioned.

       ¼1½ vf/kdkfjrk&vf/kdkfjrk&laiUu U;k;ky;&xyr ,oa Bhd fofu‘p; djus dh vf/kdkfjrk gSA

       ¼2½ flfoy izfdz;k lafgrk] 1908&vk- 39] fu-1 ,oa 2&vLFkkh O;kns‘k tkjh fd;k tkuk&oSosfdd gSA

       ¼3½ fu.kZ;&xyr U;k;ky; }kjk Bhd fu.kZ;&fof/k dh n`f"V esa fu.kZ; ugha gSA

       ¼4½ flfoy izfdz;k lafgrk] 1908&vk- 39] fu- 1 ,oa 2&vLFkkh O;kns‘k vf/kdzked ds i{k esa iznku ugha fd;k tk ldrk&dCtk oS/k gksuk pkfg,A

       ¼5½ flfoy izfdz;k lafgrk] 1908&vk- 39] fu- 1 ,oa 2&vLFkkh O;kns‘k dk izkjafHkd izdze&Uk;ky; dh vf/kdkfjrk ij vk{ksi ugha fd;k tk ldrkA

        This appeal is directed against the order dated 21-12-87 passed by the 5th Addl. Judge to the District Judge, Indore in C. S. No. 97-A of 1987 whereby the appellants application under order 39, rules 1 & 2 C. P. C. 1908 (for short the Code) read with S. 151 ibid bas been dismissed.

        Held: It may be noted that there is a clear distinction between the two forms i e. jurisdiction and exercise of jurisdiction, jurisdiction to hear and determine a case will not depend either upon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the simple reasons that the power to decide necessarily carries with it the power to decide wrongly as well as rightly. If any wrong decision is made, the aggrieved party can take recourse according to law for setting the matter right and if that course is not availed, even a wrong decision cannot be disturbed, But there is a clear boundary between an error in jurisdiction and usurpation of power. The error of judgment can be considerable by the appellate Court, and therefore, is only voidable. But if any order is passed by the authority having no jurisdiction that will be totally a nullity. Reference in this connection may usefully be made to the decision in Arunchandra Sinhas case (AIR 1924 Cal. 153). It bas rightly been observed that even a right judgment by a wrong Court is no judgment in the eye of law.

        As pointed out in Preetpals case (1988 JLJ 549) any dispute about jurisdiction has to be determined at the trial and not at the initial stage of supplemental proceedings of temporary injunction (vide section 94 of the Cede). The relief of temporary injunction is an equitable one and is discretionary. Therefore, even where the three well known Concurrent conditions requisite for grant of the relief exist, it is not obligatory on tbe Court to grant the same. On the facts and in the circumstances of a given case the Court exercising its discretion in the matter in a judicial manner is entitled to refuse the relief to the party applying for it.

        The Deputy Registrars order requiring the appellant to deLi"Ver the possession of the land in dispute to the respondent passed at the initial stage of the proceedings on the appellants application for temporary injunction appears to be without jurisdiction. The fact, however, remains that there is nothing to indicate that for all these years any action has been taken by the Government against the appellant in regard to the alleged encroachment on Government land by him. In the circumstances the greater probability is that it is by mistake that the land in dispute which initially, belonged to the respondent remained to be shown as existing between plot No. 112 sold to the appellant and the plot No.1 13 and the appellant is labouring hard to take the most of this mistake.

        In the decision in Kamal Singhs case [1986 (I) M. P. W. N. 116] it has been held that injunction cannot be claimed merely on the basis of possession. Possession to be protected must be legal and possession of a trespasser cannot be protected. In the decision in Kamal Kumars case [1986 (I) M. P.W. N. 165] it has been held that every injury is not irreparable injury and only that irreparable Injury which results from some illegal act has to be taken into consideration. According to the decision possession being taken under authority of law does not constitute irreparable injury and the relief is granted for the protection of some legal right and not when it would be rendered public in the absence of such right. 1988(1) MPWN 117, 1978 JLJ 51, AIR 1969 SC 1230 discussed. AIR 1924 Cal. 153, 1988 JLJ 549, 1983 MPWN 119, 1986 (1) MPWN 116 and 1986 (1) MPWN 165 relied on.

       Appeal dismissed.