Citation Codes

Equivalent Citations

citation codes

Case Number

Second Appeal No. 818 of 2005,

Judges

Mr. Justice S.B. Deshmukh

Acts

section 96 read with Order 41 of the Code of Civil Procedure.
section 151 of the Code of Civil Procedure. Imposition
Order XXXIX, Rule 2(A) of the Code of Civil Procedure.
Order VI, Rule 1 of the Code of Civil Procedure.
Order VI, Rule 1 and Order VII Rule 7 of C.P.C.
Order XXXIX, Rule 2(A) of Civil Procedure Code
section 151 of the Code of Civil Procedure
CONTEMPT OF COURTS ACT 1971
section 100 of Code of Civil Procedure.
SECTION 151 CIVIL PROCEDURE CODE
418. Order XLI, Rule 22, C.P.C.
Order XLI, Rule 22, C.P.C.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This Second Appeal was filed by defendant No. 2 in Regular Civil Suit No. 48/1994 (plaintiff and defendants are referred to by their original statuses in that suit). The plaintiff had filed Regular Civil Suit No. 48/1994 on October 26, 1994 for a decree of perpetual injunction in respect of agricultural land bearing Survey No. 94 (the "suit land"). The plaint alleged ownership and actual physical possession of the suit land for about 60–70 years and complained that defendants were attempting to construct a road from the southern side of the suit land. The plaint's prayer clause 6(A) sought perpetual injunction in relation to possession and specifically against construction work of the road, and prayer 6(B) sought removal of the road if the defendants succeeded in constructing it during pendency of the suit.

The trial Court, after framing seven issues, dismissed the suit by judgment and order dated October 12, 2001. The plaintiff challenged that dismissal by filing Regular Civil Appeal No. 3/2002, which the First Appellate Court allowed by its judgment and order dated October 18, 2004: it quashed and set aside the trial Court's dismissal, decreed the suit with costs, and directed the defendants to remove the construction of the road passing through the plaintiff's land on or before November 30, 2004. The present Second Appeal challenges that First Appellate Court judgment.

Advocates appearing: Mr. N.D. Sonawane, instructed by Advocate Shri V.D. Hon, for the appellant (defendant No. 2). The opinion is authored by DESHMUKH S.B., J.

Legal Issues Presented

Whether the Court can grant a relief which is not asked by the plaintiff and more so when there are no pleadings to that effect in the plaint? (Ground III)
Whether the relief of injunction can be granted in favour of a person who is not in possession of the suit land? (Ground IV)
Whether, in a suit for perpetual injunction, the plaintiff must prove possession of the suit land and, unless possession is proved, injunction cannot be decreed? (Ground VII)
Whether the appellate court erred in holding that, without filing a cross-objection or appeal, the appellant cannot agitate that the road existed since 1982, given that a party aggrieved by a lower Court finding can agitate it in an appeal filed by another party? (Ground X)
Whether the Appellate Court considered the ratio in Santosh Hazari v. Purushottam Tiwari when reversing the trial Court's finding and whether that requires interference by the High Court? (Ground XI)
Whether the relief granted (removal of road alleged to be on southern side of Survey No. 94) is justified where both courts found the road is on the northern side of the suit land? (Ground XII)

Arguments of the Parties

Appellant (Defendant No. 2) — Arguments as set out in the opinion

Challenged the First Appellate Court's judgment on multiple grounds, including that the appellate court granted relief not asked for and beyond the pleadings (Grounds III, IV).
Contended that injunction relief could not be granted in favour of a person not in possession of the suit land (Ground IV) and that, in a suit for perpetual injunction, proof of possession is essential (Ground VII).
Pressed that the appellant should be permitted to agitate existence of the road since 1982 in the Second Appeal without filing a cross-objection, relying on the view that cross-objections are optional (Ground X).
Relied on authorities emphasizing the importance and limits of pleadings (citing State Bank of India v. S.N. Goyal; Gulabrao Balwantrao Shinde v. Chababai Balwantrao Shinde) to argue that the First Appellate Court improperly granted relief beyond the plaint.
Relied upon a single-Bench decision (State of Goa v. Gurudas Timblo) and discussion of Order XLI, Rule 22, C.P.C. to support the argument concerning cross-objections and the scope of appeal.

Plaintiff — Position and Pleadings (as presented in the opinion)

Plaintiff pleaded ownership and actual physical possession of Survey No. 94 for about 60–70 years and alleged that defendants were attempting to construct a road from the southern side of the suit land, bringing construction material on October 20, 1994.
Prayer Clause 6(A) sought perpetual injunction against defendants in relation to possession and for prevention of construction of the road; prayer 6(B) sought removal of the road in case the defendants succeeded in constructing it during pendency of the suit; the plaint as a whole was read by the courts as seeking mandatory relief/direction if required.

Defendant No. 2 — Written Statement Defenses (as described in the opinion)

Denied the description of property and asserted there was no cause of action; pleaded non-joinder and misjoinder of necessary parties.
Denied plaintiff's claim that no road existed near Survey Nos. 90 and 95 and denied that the suit land was not acquired by the State or Municipal Council.
Pleaded that buildings, open spaces and public streets within Municipal limits are under municipal control and that land may be acquired for public convenience; stated that Shirdi was declared a holy place under a special programme on April 6, 1996 and that road construction was started under that programme.
Asserted that the construction work was not from the suit land and plaintiff had no concern with the construction; also contended that plaintiff obtained an ex parte temporary injunction unnecessarily and caused inconvenience to the municipal council.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State Bank of India v. S.N. Goyal (2008 DGLS (soft) 582; A.I.R. 2008 S.C.W 4355; 2008(8) S.C.C. 92)	Importance of pleadings; parties must plead material facts and pleadings form the foundation of a civil case.	The Court relied on this authority to reiterate that pleadings must be considered and that the plaint should be read as a whole to determine what relief was claimed; used to assess whether mandatory relief was pleaded.
Gulabrao Balwantrao Shinde v. Chababai Balwantrao Shinde (2002 DGLS (soft) 896; A.I.R. 2002 S.C.W. 4587; 2003(1) S.C.C. 212; A.I.R. 2003 S.C. 160)	Consideration of Order VI, Rule 1 and Order VII, Rule 7 C.P.C.; Court cannot make out a new case which is not pleaded.	Used by the Court to analyze whether the First Appellate Court granted a relief beyond the plaint or whether mandatory relief (removal) was sufficiently pleaded in prayer 6(B); Court found adequate pleading when plaint is read as a whole.
Santosh Hazari v. Purushottam Tiwari (A.I.R. 2001 S.C. 965; 2001(3) S.C.C. 179)	Authority concerning appellate consideration of issues and evidence; cited in connection with appellate powers and review of trial findings.	The Court referred to this precedent (among others) to support the proposition that the First Appellate Court must deal with all issues and evidence before recording findings and to assess whether the appellate court correctly exercised its jurisdiction.
Madhukar v. Sangram (2001 DGLS (soft) 682; A.I.R. 2001 S.C.W. 1804; 2001(4) S.C.C. 756)	Power, scope and jurisdiction of the First Appellate Court under Section 96 C.P.C.; duty of the First Appellate Court to deal with all issues and evidence.	Cited to support the view that the appellate court should reappraise the issues and evidence; applied to justify the First Appellate Court's consideration and decision on entitlement to relief.
State of Goa v. Shri Gurudas Timblo (2003(4) Bom.C.R. 598; 2004(3) All.M.R. 418)	Consideration of Order XLI, Rule 22 C.P.C.; filing of cross-objection in an appeal is optional.	Relied upon in the opinion to observe that defendants in an appeal by the plaintiff may support the trial Court's judgment without necessarily filing a cross-objection, relevant to arguments about who may agitate certain findings before an appellate court.

Court's Reasoning and Analysis

The Court proceeded in a stepwise manner:

Examined the pleadings in the plaint (Order VI, Rule 1 C.P.C. referenced) and emphasized the foundational role of pleadings in civil proceedings. The Court read the plaint from the property description through prayer clauses 6(A), 6(B) and 6(C) to determine whether mandatory relief (removal of construction) was sufficiently pleaded.
Considered the contents of the record: the existence of a development plan (published in 1982), temporary injunction issued by the trial Court, and the fact that defendants carried out and completed construction of the road during pendency of the suit and in defiance of the temporary injunction. The First Appellate Court had referred to documents Exhs. 69 and 70 (development plan) and other evidence/reports such as the Commissioner's report.
Analyzed the trial Court's reasoning in holding the suit not maintainable: the trial Court noted an alleged admission by the plaintiff that construction was completed on the northern side of Survey No. 94, observed that the plaintiff had lost possession of the road, and held that the plaintiff should have sought a decree for removal/possession (mandatory relief) which, in the trial Judge's view, the plaint did not explicitly claim.
Applied authorities on the scope of pleadings and appellate jurisdiction. The Court accepted that pleadings are to be construed liberally, especially in mofussil (rural) pleadings, and concluded that paragraph 6(B) of the plaint, together with the plaint read as a whole, adequately pleaded a claim for mandatory relief if the defendants constructed the road during the suit.
Considered the role of inherent powers under Section 151 C.P.C. and the Court's duty to set wrongs right where interim orders (such as injunctions) have been flouted. The opinion reasons that where a party disobeys an injunction or stay, the Court has the right and duty to treat the disobedient act for its purposes as not having taken place and to restore the status quo, relying on Section 151 and principles of judicial policy.
Found that the First Appellate Court legitimately exercised its jurisdiction under Section 96/Order 41 to consider the issues and evidence and to restore the plaintiff's position (by granting mandatory relief directing removal), given that defendants had carried out construction in defiance of the temporary injunction and the plaint contained prayer 6(B). The High Court held that the appellate court's exercise of inherent powers under Section 151 was not arbitrary, absurd or perverse.
Addressed whether grounds raised in the Second Appeal involved substantial questions of law within the meaning of Section 100 C.P.C. and concluded that grounds III and IV (and the other grounds relied upon) did not, in truth, involve such substantial questions of law. Accordingly, the Second Appeal was held to be devoid of substantial question of law.

Holding and Implications

Core Ruling: The Second Appeal is DISMISSED as devoid of any substantial question of law within the meaning of Section 100, Code of Civil Procedure.

Consequences and immediate effects:

The First Appellate Court's judgment and decree (dated October 18, 2004) which quashed and set aside the trial Court's dismissal, decreed the suit in favour of the plaintiff with costs, and directed the defendants to remove the road construction passing through the plaintiff's land, stands.
The High Court found no perversity or arbitrariness in the First Appellate Court's decision to restore the plaintiff's position and to exercise inherent jurisdiction under Section 151 C.P.C. to undo the consequences of disobedience of an interim order.
No order as to costs was made by the High Court in disposing of the Second Appeal.

Broader precedent: The opinion applies and discusses settled principles (importance of pleadings, appellate duty to deal with issues/evidence, and exercise of inherent powers), but does not purport to create a new legal precedent beyond applying these principles to the facts. The decision's direct effect is the dismissal of the Second Appeal and the upholding of the First Appellate Court's decree in favour of the plaintiff.

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Municipal Council, Shirdi v. Sau. Soniya Devidas Patil Others

Cases referred :

1. State Bank of India Vs. S.N. Goyal : 2008 DGLS (soft) 582 : A.I.R. 2008 S.C.W 4355 : 2008(8) S.C.C. 92.

2. Gulabrao Balwantrao Shinde Vs. Chababai Balwantrao Shinde, 2003(3) Bom.C.R. 84(S.C.) : 2002 DGLS (soft) 896 : A.I.R. 2002 S.C.W. 4587 : 2003(1) S.C.C. 212 : A.I.R. 2003 S.C. 160.

3. Santosh Hazari Vs. Purushottam Tiwari deceased by L.Rs, 2002(Supp.) Bom.C.R. 746 (S.C.) : 2001(2) Mh.L.J. 786 : 2001 DGLS (soft) 216 : 2001(3) S.C.C. 179 : A.I.R. 2001 S.C. 965.

4. Madhukar Vs. Sangram, 2001(Supp.) Bom.C.R. 765(S.C.) : 2001 DGLS (soft) 682 : A.I.R. 2001 S.C.W. 1804 : 2001(4) S.C.C. 756.

5. State of Goa . Vs. Shri. Gurudas Timblo, 2003(4) Bom.C.R. 598 (P.B.) : 2004(3) All.M.R. 418.

Advocates appeared :

N.D.Sonawane, h/f. V.D. Hon.

DESHMUKH S.B., J.: - Heard learned Counsel Mr. N.D.Sonawane instructed by Advocate Shri. V.D. Hon, who appears for the appellant. This Second Appeal is filed by the defendant No. 2 in Regular Civil Suit No. 48/94. (The parties hereinafter are referred to their original status as plaintiff and defendants in Regular Civil Suit No. 48/94).

2. The plaintiff had filed Regular Civil Suit No. 48/2004 on October 26, 1994 against the defendants for perpetual injunction. The suit, after hearing the parties, came to be dismissed by the trial Court by its judgment and Order passed on October 12, 2001. This judgment, dismissing the suit, was challenged by the plaintiff in Regular Civil Appeal No. 3/2002. This Regular Civil Appeal No. 3/2002, after hearing the parties came to be allowed by the learned Additional District Judge, Kopargaon by its judgment and Order dated October 18, 2004, and dismissal of the Regular Civil Suit No. 48/1994 was quashed and set aside by the First Appellate Court. The First Appellate Court decreed the suit with costs. The defendants were directed to remove the construction of the road, passing through the land of plaintiff on/or before 30th, November, 2004. This judgment and decree passed by the First Appellate Court on October 18, 2004 in Regular Civil Suit No. 3/2002 is the subject matter of this Second Appeal.

3. The learned Counsel for appellant has made available copy of the paper book supplied to the parties by the office of learned Additional District Judge, Kopargaon, District Judge, Ahmednager. The pleading of the parties in Civil Suit is important. The pleading is defined under Order VI, Rule 1 of the Code of Civil Procedure. Plaint is pleading of the plaintiff and written statement is the pleading of the defendant. The parties are expected to plead material facts in their pleadings. The parties can lead their evidence in support of their pleadings. The pleading of the parties, thus is a foundation of stance taken by the parties in Civil Proceeding. Importance of the pleading is reiterated by the Supreme Court time and again. Reference can be made to the recent judgment of the Supreme Court in the matter of (State Bank of India Vs. S.N. Goyal)1, reported in 2008 DGLS (soft) 582 : A.I.R. 2008 S.C.W 4355 : 2008(8) S.C.C. 92. The learned Counsel has also relied on the judgment of Supreme Court regarding pleadings, in the matter of (Gulabrao Balwantrao Shinde Vs. Chababai Balwantrao Shinde and others)2, reported in 2003(3) Bom.C.R. 84(S.C.) : 2002 DGLS (soft) 896 : A.I.R. 2002 S.C.W. 4587 : 2003(1) S.C.C. 212 : A.I.R. 2003 S.C. 160. There, the Supreme Court has considered the provisions laid down under Order VI, Rule 1 and Order VII Rule 7 of C.P.C. The Supreme Court has held that the Court cannot make out a new case which is not pleaded. In the matter of Gulabrao, (supra) plaintiff had claimed only the half share in the property.

4. The learned Counsel for appellant has invited my attention to the grounds Nos. (III), (IV), (VII), (X), (XI), (XII) raised in present appeal. These grounds are reproduced hereinbelow.

(III) Whether the Court can grant a relief which is not asked by the plaintiff and more so when there is no pleadings to that effect in the plaint ?

(IV) Whether the relief of injunction can be granted in favour of a person who is not in possession of the suit land and it is settled principle of law ?

(VII) Whether the courts have overlooked the main aspect of the case that in a suit for perpetual injunction the plaintiff has to prove her possession in the suit land and unless she proves her possession in the suit land, the suit for relief of injunction can not be decreed and injunction should not have been granted in her favour ?

(X) Whether the Appellate Court has erred in holding that without filing cross-objection or appeal the appellant can not agitate that the road was in existence since the year 1982, when it is now settled law that the party aggrieved by the lower Court finding can agitate it in appeal filed by other party without preferring appeal or cross-objection and the Appellate Court has overlooked this legal aspect and if it would have consider it will have adverse inference and findings ?

(XI) Whether the Appellate Court while reversing the finding of the trial Court has considered the ratio in (Santosh Hazari Vs. Purushottam Tiwari deceased by L.Rs.)3 case reported in 2002 (Supp. 2) Bom.C.R. 746 (S.C.) : 2001 DGLS (soft) 216 : 2001(2) Mh.L.J. 786 : 2001(3) S.C.C. 179 : A.I.R. 2001 S.C. 965 and therefore, the impugned JUDGMENT and decree passed by the Appellate Court requires interference by this Honble Court ?

(XII) Whether the relief asked by the respondent No. 1 is in respect of construction of road on the Southern side of the Survey No. 94 i.e. the suit land and when from the evidence, it is proved and held by both courts that the road is on the Northern side of the suit land, then is it legal and justifiable on the part of the Appellate Court to pass a relief of removal of the road and that too passing through the land of the respondent No. 1 ?

5. From the papers, it appears that Regular Civil Suit No. 48/1994 was in respect of agricultural land Survey No. 94 (suit land). Area of this land is not given in description of the property. However, boundaries have been specifically given. In para 2 of the plaint, a statement is made that suit property is owned by the plaintiff and it is in actual physical possession of the plaintiff since about 60-70 years prior to the date of filing of this suit. The suit land earlier was in the name of father of plaintiff and after his demise, plaintiff succeeded to the suit property. To the southern side of the suit property, land survey Nos. 95 and 90 are situated. The owner of the land survey No. 95, had committed an encroachment over the suit property in the year 1990-91. Plaintiff had applied for measurement to the District Inspector of Land Records. To the Southern side, Survey Nos. 95 and 90 are situated. However, there is no public road. Suit land was never acquired by the State Government or defendant No. 2 Municipal Council. Grievance is raised that defendant No. 1 with the aid of defendant Nos. 1 and 3 was trying to construct road from the southern side of the suit property. The said road, admitted by the defendants, runs in east west direction. On October 20, 1994, construction material had been brought by the defendants. Therefore, prayer for decree of perpetual injunction in para No. 6(A) was made. Though reference in the body of the plaint is made regarding construction of road by the defendants from the southern side of the suit land, para 6(A) i.e. prayer clause specifically seeks a decree for perpetual injunction against defendants Nos. 1 to 3 in relation to possession of the plaintiff over the land Survey No. 94 i.e. suit property and especially for construction work of the road from suit land and/or prayer Clause 6(B) makes a prayer that in case defendants succeed in constructing the road from the suit land, the said construction of the road may be removed and plaintiff be permitted to enjoy the suit property peacefully.

6. Since grievance is raised regarding the pleading, I have considered the importance of the pleading and noted the pleading in the plaint made by the plaintiff right from the description of the property till the end of the prayers i.e. para 6(A)(B) of the plaint.

Written statement is filed by the defendant No. 2 at Exh. 15. Description of property is denied. According to the defendant No. 2, there was no cause of action, suit filed by the plaintiff was hit by the principle of non joinder of necessary parties to the suit. According to the defendant No. 2, suit was also bad for misjoinder of parties. Contentions of the plaintiff that there was no road near Survey No. 90 and 95, was denied. Statement of plaintiff that there was no acquisition of the suit land either by the State Government or Muncipal Council was also denied. In para (8), it is pleaded that all buildings, open space, public streets, within the limits of Municipal Council are under the control of the Municipal Council. For the public convenience and in the interest of public, properties can be acquired by the Municipal Council. On April 6, 1996 town Shirdi was declared as holy place under special programme, by the State of Maharashtra. Construction work of the road in question which is pleaded, has been started under this programme. A specific statement is made in para 10 that construction work of the road is not from the suit land and plaintiff has no concern with the said construction of the road. In para 11 of the written statement, it is pleaded that plaintiff has filed suit and obtained ex parte temporary injunction unnecessarily and put the municipal council to inconvenience. This written statement seems to have been filed on December 16, 1995.

7. The trial Court has framed as many as seven issues in the suit. The issue No. 1 was in respect of apprehension of the plaintiff and/or grievance of the plaintiff regarding obstruction to the possession and enjoyment and the finding is in the affirmative i.e. in favour of plaintiff. Issue No. 2 was in respect of grievance of the defendants that suit was bad for non-joinder of necessary parties and finding is against the defendants and in favour of plaintiff. The description of property, according to the trial Court, was the subject matter of the issue No .4 and finding is recorded in favour of plaintiff. Issue No. 5 was in respect of maintainability of the suit and finding is against the plaintiff, holding that the suit is not maintainable. Issue No. 6 was regarding entitlement of the plaintiff for injunction and finding is against the plaintiff.

8. I have considered the finding of the trial Court on Issue No. 5, holding that suit is not maintainable. Discussion and/or observation of the trial Court is in para 9 of the judgment. The trial Court has referred to oral evidence of the plaintiff Exh. 60 and alleged admission given by the plaintiff that construction of the road is now completed and the road is prepared in the northern side of the land Survey No. 94. The learned trial Judge also observed that the plaintiff has lost possession over the road and therefore, it was necessary for her to seek the relief of removal of encroachment and to seek possession of the said portion. However, plaintiff did not amend the plaint and not prayed for such removal. Plaintiff also did not ask for mandatory injunction/direction in the suit. For these reasons learned Judge of the trial Court recorded finding that present suit for simpliciter injunction is not maintainable.

9. The plaintiff was appellant in Regular Civil Appeal No. 3/2002 filed under section 96 read with Order 41 of the Code of Civil Procedure. Power, scope and jurisdiction of the First Appellate Court under section 96 has been considered by the Supreme Court. In the matter of (Madhukar and others Vs. Sangram and others}4, reported in 2001(Supp.) Bom.C.R. 765(S.C.) : 2001 DGLS (soft) 682 : A.I.R. 2001 S.C.W. 1804 : 2001(4) S.C.C. 756. Supreme Court has observed that it is the duty of the First Appellate Court to deal with all issues and evidence led by the parties before recording the findings. It is also aposite to refer to another judgment of Supreme Court i.e. in the matter of Santosh Hazari Vs. Purushottam Tiwari, A.I.R. 2001 S.C.W. 723.

10. From this view point let us now turn to the judgment of First Appellate Court in the hand. The First Appellate Court has framed two points for determination in the appeal. Point No. 1 is in respect of the entitlement of the plaintiff to get the relief sought for and finding is in favour of the plaintiff. In para No. 11, First Appellate Court has referred to two documents i.e. Exhs. 69 and 70. It is not seriously in dispute that development plan was published in the year 1982. The case of the defendants is that road was shown in the Development plan. In para 12 of the judgment the First Appellate Court has referred to the findings of the trial Court that defendant has carried out construction of the road during the pendency of the suit and in defiance of the temporary injunction order passed by the trial Court against the plaintiff. The First Appellate Court opined that it is clear case that by flouting the order of the Court, the defendants have carried out construction of the road. The First Appellate Court, therefore, observed that it is open for the Court and it is in the inherent jurisdiction to bring back party to its position where it originally stood before the injunction order was passed. It was submitted before the First Appellate Court that plaint para 6(B) was not considered by the trial Court, wherein it has been mentioned that during the pendency of the suit, if the defendant carries out the construction work, then they be directed to remove the said construction. The First Appellate Court then observed in para 13 that Thus, it appears that from the contents of the plaint that plaintiff has claimed relief of mandatory injunction. The First Appellate Court was of the opinion that even though it is not claimed, then also, the Court has authority and duty to restore the possession of the plaintiff which has been dispossessed during the pendency of the suit. The First Appellate Court further proceeded to hold that the trial Court has committed error by dismissing the suit only on the ground that she has not claimed mandatory injunction, ultimately the First Appellate Court has allowed the appeal and quashed and set aside the judgment and decree.

11. The learned Counsel for appellant has also placed his reliance on the judgment of learned Single Bench of this Court in the matter of (State of Goa & ors. Vs. Shri. Gurudas Timblo & ors.)5, reported in 2003(4) Bom.C.R. 598 (P.B.) : 2004(3) All.M.R. 418. Order XLI, Rule 22, C.P.C. has been considered by the learned Single Judge of this Court while holding that filing of cross-objection in an appeal, is purely optional. Scope of Order XLI, Rule 22, C.P.C. now has been clarified by the Supreme Court also. In other words, in appeal filed by the plaintiff, defendants were permitted to support the judgment of the trial Court. The courts below have considered mainly three aspects of the matter i.e. the oral evidence, alleged admission given by the plaintiff in cross-examination, development plan Exhs. 69 and 70 as well as fact of issuing temporary injunction by the Court which remained in operation till the disposal of the suit and fact of construction of the road by the defendant No. 2 during the pendency of the suit. The learned Counsel for appellant could not point out that temporary injunction order granted by the trial Court was at any point of time challenged by filing legal proceeding and was quashed and set aside till the disposal of the suit.

12. The pleading of the party has to be considered and understood in its proper perspective. This Court and Supreme Court has held that mofussil pleading has to be construed liberally. Para 6(B) of the prayer Clause specifically makes a prayer that if defendant Nos. 1 to 3 succeed in carrying out the construction of the road legally, in that circumstances said work (construction of the road) and said action should be removed and plaintiff be permitted to enjoy the property peacefully. This pleading is in vernacular. I read the plaint from para (1) till last prayer in para 6(C). If the plaint as a whole is read and appreciated, in my view, adequate and sufficient pleading is made by the plaintiff seeking mandatory injunction and/or direction. In the case in hand, both the courts are concurrent on the point that temporary injunction was issued by the Court. The courts have referred to various dates right from the date of filing of the suit and even couple of months before it. The courts have referred the report of the Commissioner. The courts have also appreciated the short span of time within which the defendant No. 2 could complete the construction work of the road in defiance of the temporary injunction granted by the Civil Court. The conduct of the defendants carrying out and completing the construction work in defiance of temporary injunction granted by the Court, has been taken cognizance by the First Appellate Court referring to the pleading i.e. para 6(B) and has quashed and set aside the judgment and decree passed by the trial Court. It is unfortunate that the trial Court did not read the plaint especially para Nos. 6(A),(B) and (C) in its proper perspective. The parties cannot be permitted to flout the orders of the Civil Court, if such instances are brought to the notice of the Court and Court has restored the possession on the date of filing of the suit, said order cannot be said to be perverse.

In my view, a party to the litigation, cannot be allowed to take an unfair advantage by committing breach of an interim order passed by the Civil Court and escape the consequences thereof. Wrong committed by the party disobeying the order of the Civil Court should not be allowed to continue or perpetuate such wrong as a precedent. Such disregard of the order of the Civil Court should not be permitted to hold good. Such disobedience, if brought to the notice of the Court, what is the duty of the Court ? A party suffering breach of injunction order may or may not resort to provision laid down under Order XXXIX, Rule 2(A) of the Code of Civil Procedure. Such party may or may not file or take out contempt petition in accordance with the provisions of law. However, the Civil Court seized with hearing of such lis always can resort to section 151 of the Code of Civil Procedure. Imposition of punishment or consequences of order passed under Order XXXIX, Rule 2(A) of Civil Procedure Code and/or order passed by the Competent Court under the provisions of Contempt of Courts Act, 1971 would be altogether different aspect of the matter. Citizens/litigants who approaches to the Civil Court for adjudication of alleged rights is/are basically interested in seeking remedy/decree/order from the Competent Civil Court. Primarily he has concern with relief of Civil nature in his favour from the Civil Court upon adjudication of rights. The Civil Court, therefore, is duty bound, to exercise inherent powers under section 151 of the code for setting wrong at naught. This is because it is of high importance that orders of the Court should be obeyed. Thus, in my view, on principle those who defy a prohibition imposed ought not to be able to get away with the fruits of their defiance. If act of the disobedience were to let it go as such, it would defeat the ends of justice and prevalent public policy. When the Court intends a particular state of affair to exist while it is in seizin of lis, that state of affair is not only required to be maintained, but it is presumed to exist till the same Court orders otherwise or Superior Court orders otherwise. The Court, in these circumstances, has the duty and also right to treat such disobedient act as having not taken place at all for its purposes. In my view, these inherent powers under section 151 of the Code of Civil Procedure are wide and are not subject to any limitation. To put it in other words, it can be stated that where in violation of stay order or injunction against a party, something has been done in disobedience, it shall be the duty of the Court as a policy to set the wrong, right and not allow the perpetuation of the wrong. In my view, the inherent powers will not only be available in such case, but it is bound to be exercise in that manner in the interest of justice. Even apart from the section 151 of Civil Procedure Code, in my view, as a matter of judicial policy, the courts should guard against itself being stultified. In the circumstances like this it cannot be held that Court is powerless to undoing a wrong done in disobedience of Court orders. However, in the case on hand the First Appellate Court has exercised such power under section 151 of the code. This exercise, therefore, cannot be said to be arbitrary, absurd or perverse.

13. In the case on hand, the learned Counsel for appellant fairly conceded that there is no acquisition on behalf of Council. The First Appellate Court with reasoned judgment has quashed and set aside the judgment and decree passed by the trial Court, decreed the suit with costs and directed the defendants to remove the construction work of the road, which is passing through the land of plaintiff. In view of the order passed by the First Appellate Court, grounds No. III and IV stated in memo of appeal cannot be accepted to be grounds involving substantial questions of law. In my view, the grounds which according to the learned Counsel for appellant involve substantial question of law in reality do not involve such substantial question/s within the meaning of section 100 of Code of Civil Procedure. This appeal being devoid of substantial question of law, needs to be dismissed. In the result, Second Appeal stands dismissed being devoid substantial question of law. No order as to costs.

Appeal dismissed.

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Municipal Council, Shirdi v. Sau. Soniya Devidas Patil Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Defendant No. 2) — Arguments as set out in the opinion

Plaintiff — Position and Pleadings (as presented in the opinion)

Defendant No. 2 — Written Statement Defenses (as described in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Municipal Council, Shirdi v. Sau. Soniya Devidas Patil Others

Comments