2006 Supreme(SC) 1297

2007(2) Supreme 772
SUPREME COURT OF INDIA
(From Allahabad High Court)
Dr. AR. Lakshmanan and Tarun Chatterjee, JJ.
Meera Chauhan—Appellant
versus
Harsh Bishnoi & Anr.—Respondents
Civil Appeal No. 5783 of 2006
(Arising out of SLP (C) No. 18762/2005)
Decided on 13-12-2006
Counsel for the Parties :
For the Appellant : Dipankar P. Gupta, V.B. Singh, Sr. Advocates, S.K. Mishra, C.D. Singh, Neeraj Kumar, Shrish Kumar Misra, Advocates.
For the Respondent No. 1 : In-Person.
For the Respondent No. 2 : L.N. Rao, Sr. Advocate, Sheetal Prasad Juneja, Advocate.

IMPORTANT POINT
The courts have inherent jurisdiction to issue temporary order of injunction in the circumstances which are not covered under the provisions of Order 39 of the Civil Procedure Code. However, the inherent power under Section 151 of the Code must be exercised only in exceptional circumstances.

Headnote:(i) Civil Procedure Code, 1908—Section 151; Order 39—Scope of Inherent Powers—Power to pass order of injunction in the form of order of possession—Application u/s 151 for restoration of possession—Maintainability —Whether such an application can be entertained by the Court when specific provision under Order 39 of the Code has been made for grant of injunction in the form of mandatory order—Held, courts have inherent jurisdiction to issue temporary order of injunction in the circumstances which are not covered under the provisions of Order 39 of the Code—However, inherent power u/s 151 of the Code must be exercised only in exceptional circumstances for which the Code lays down no procedure—When parties violate order of injunction or stay order or act in violation of the said order the Court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of injunction order.

       Held : A bare perusal of Section 151 of the Code of Civil Procedure, it cannot be said to be in dispute that Section 151 confers wide powers on the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. (Para 15)

       The power of Section 151 to pass order of injunction in the form of restoration of possession of the code is not res integra now. (Para 16)

       At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the Court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order.(Para 18)

       It is also well settled that when in the event of utter violation of the injunction order, the party forcibly dispossesses the other, the Court can order restoration of possession to the party wronged.(Para 19)

       (ii) Specific Relief Act, 1963—Section 6—Civil Procedure Code, 1908—Section 151; Order 39—Suit for restoration of possession—Proof of fact of actual possession—Suit property originally belonged to mother of respondents 1 and 2 who expired in year 1996—Respondent 1 applied for mutation before the authorities which was rejected—Suit filed by respondent 1 for declaration of title over the suit property against respondent 2 on basis of oral settlement of year 1988—Ex-parte interim order of injunction restraining respondent 2 from transferring, alienating or encumbering the suit property was passed—No interim order of injunction was granted by the Court against respondent 2 from interfering with possession of respondent 1 in respect of suit property—While interim order of injunction was in force, on 17-7-2002, appellant purchased the suit property from respondent 2 and she was put into possession of the same on the same date—Writ petition filed against State as well as appellant claiming thereby forcible dispossession during his absence—Suit filed u/s 6 of the Act for restoration of possession—Application u/s 151 of the Code alleging dispossession during pendency of suit and interim order of injunction—Trial Court rejected the application—However, revision filed before the High Court allowed—After remand, trial Court directed respondent 2 and appellant to restore possession of suit property—Whether High Court was justified in rejecting revisional application filed against order of trial Court allowing application for restoration of possession, at the admission stage—(No).

       Held : The High Court proceeded to affirm the order of the trial court on the basis that the respondent No.1 was dispossessed during the operation of the injunction order and also held that the trial court only wanted the order of injunction, which was violated, should be implemented and that the possession which existed at the time when the order of injunction was granted should be restored. Therefore, from the above it is clear that the High Court proceeded to affirm the order of the trial court only on the ground that as an order of injunction passed by that court restraining the appellant and the respondent No. 2 from interfering with the possession of the respondent No. 1 was violated and therefore possession should be restored. This approach of the High Court, in our view, was totally unsustainable as it had failed to notice that no order of injunction restraining the respondent No. 2 from interfering with the possession of the respondent No.1 in respect of the suit property was passed. On the other hand, it was a matter of fact that only an order restraining the respondent No. 2 from transferring, alienating or encumbering the suit property was passed till the disposal of the application for injunction. That apart, in our view, the High Court was also not justified in rejecting the civil revisional application without going into the propriety of the order of the trial court. Such being the position, we are of the opinion that it was improper on the part of the High Court to reject the revisional application in the manner it was done.(Para 10)

       Although the trial court in its impugned judgment could not prima facie find title of the respondent No.1 in respect of the suit property as noted herein above, restoration of possession in favour of the respondent No.1 was, however, directed basing its finding on the fact of possession at the time of filing of the suit and the application for injunction.(Para 13)

       In order to come to a proper finding of fact that who was in actual possession, the parties ought to have produced oral evidence along with documentary evidence. In our view, the documents on which reliance was placed by the respondent no.1 cannot conclusively prove that he was in actual possession of the suit property at the time of dispossession. For this purpose not only documentary evidence would be required to be produced but at the same time oral evidence should also be adduced by the parties particularly when the parties dispute the question of possession at the appropriate time and also one party made out a case that possession of the suit property was amicably handed over to the other party. In this view of the matter, although for deciding an application under Section 151 of the Code of Civil Procedure, it would not be proper to permit the parties to adduce oral evidence but in the peculiar facts and circumstances of this case we are of the view that the trial court ought to have directed the parties to adduce oral evidence along with documentary evidences and also considered the fact of pendency of the suits as noted herein earlier. The suit filed by the respondent no.1 is not a suit for decree for permanent injunction restraining the respondent no.2 from interfering with possession of the suit property. There is another aspect of this matter. We have already noted herein earlier that at the time of allowing the application for impleadment filed by the appellant before the trial court, the trial court had come to a finding that neither the pendency of the suit nor the ex-parte order of injunction was within the knowledge of the appellant. Therefore, we are of the view that the appellant was a bona fide purchaser for value without notice. Be that as it may, this question may not be very germane in the facts of this case.(Para 24)

       It is not now in dispute that in compliance with the order of the trial court, which was affirmed by the High Court, possession has now been delivered to the respondent no.1. In the event, trial court comes to a finding that the respondent no.1 was in possession of the suit property at the relevant time as indicated above, the question of delivery of possession by the respondent no.1 to the appellant shall not arise. However, if the trial court finds that the respondent no.1 was not in possession of the suit property at the relevant point of time and the respondent no.2 was in possession of the suit property, in that case the trial court shall direct restoration of possession in favour of the appellant.(Para 26)