Shivaraya And Others, v. Sharnappa And Others,

1. C.R.P No. 577/1965 is directed against the order of the Principal Munsiff, Gulbarga, in case No. 237/2 of 1960 ordering that the respondent herein is entitled to restoration of possession of the suit lands. C.R.P No. 583/1965 is directed against the order passed by the Civil Judge, Gulbarga, in Appeal No. 158/5 of 1964, reversing the order dated 25-8-1964 on the file of the Principal Munsiff, Gulbarga.

2. In C.R.P 577/1965, the petitioner is the plaintiff and the respondents are the defendants. In C.R.P 583/1965, petitioners are defendants 2 and 4 and respondent 1 is the plaintiff and respondents 2 and 3 are defendants and 3. In both the C.R.Ps common questions of fact and law arise out of the same suit pending before the Principal Munsiff, Gulbarga. Hence, they are heard and disposed of together.

3. Previous to the suit in question, the suit properties were subject matter of proceedings under section 145 Cr. P.C in which defendants' possession was declared. Revisions filed before the Dist. Magistrate and also before the High Court were missed in the year 1959. In the meanwhile, the plaintiff filed a suit in C.S 82/1/53-54 for declaration of his adoption and title to the suit schedule properties against the defendants. On 1-6-1953, an interim injunction was issued against the defendants. The suit was dismissed for default and was restored on 26-9-1953. Again, the suit was dismissed for default on 19-7-1955. The restoration application filed on 17-8-1955 was also dismissed for default on 19-10-1955. The case came up in revision to the High Court and was allowed on 15-11-1960 and the case was remanded. On 20-12-1960, the case was again dismissed for default. On 21-12-1960 restoration application was filed. During that period, an application under Order 39, Rr. 1 and 2 was rejected on 25-1-1961 on the ground that the court had no inherent powers to grant the relief prayed for.

4. Against that order, C.R.P No. 232/61 was filed in which an order of temporary injunction was obtained. In the said revision petition, I.A No. II was filed for vacation of the interim order obtained. The Court passed an order on 29-3-1961 directing the 2nd defendant to take possession of the property and to withdraw the amount in deposit after giving security to the satisfaction of the Sub-Judge, Gulbarga after dissolving the interim injunction. Later on, the C.R.P 232/61 was disposed of by this court on 19-11-1962. The Revision Petition was allowed and the trial court was directed to consider whether the temporary injunction order passed by it should or should not be vacated. In the meanwhile, the restoration application dated 21-12-1960 filed by the plaintiff was dismissed by the trial court on 25-8-1964 and on appeal to the Civil Judge, Gulbarga, it was allowed on 23-4-1965. C.R.Ps 577/65 and 583/65 on the file of this Court are directed against these orders.

5. In pursuance of the order passed by this Court on I.A No. II on 29-3-1961 in C.R.P No. 232/61, the learned Principal Munsiff, Gulbarga, has heard both the parties on 15-1-1965 and passed an order directing the 2nd defendant to furnish security to the extent of Rs. 16,560.58 P. The 2nd defendant filed a security bond and the plaintiff objected to the security. Thereafter, the 2nd defendant filed an application on 2-6-1965 stating that he did not want to withdraw the amount in deposit and requested the court to restore possession of the suit lands without calling upon him to furnish any security. The plaintiff also filed an application stating that M.A No. 158/5/1964 against the order of the Munsiff dated 25-8-1964 in Miscellaneous No. 237/2/60 was set aside and O.S No. 83/1 of 1963-1964 was restored to file by the Civil Judge, Gulbarga and further he claimed that the Page: 285restoration of the suit revives the ancillary orders which were passed in the original suit and accordingly the interim injunction passed by the then Subordinate Judge should be deemed to have been restored and, therefore, the 2nd defendant was not entitled to ask for possession of the suit property much less the refund of the amount in deposit.

6. Mainly, three questioss arise for decision in these two petitions:

7. Firstly, whether the Munsiff had jurisdiction to enquire into the interim order passed in C.R.P 232/61 on the file of this Court which was finally disposed of on 11-9-1962?

8. Secondly, whether the restoration of the suit in O.S 83/1 of 1963-1964 by the Civil Judge has revived ancillary orders passed before the dismissal for default of the said suit?

9. Thirdly, the order of restoration passed by the Civil Judge, Gulbarga, suffers from material irregularity in the exercise of his jurisdiction.

10. Sri V. Krishna Murthy, learned Advocate for the plaintiff contended that the Munsiff had no jurisdiction to enforce the order dated 29-3-1961 of this Court after C.R.P 232/61 was finally disposed of on 11-9-1962. He nextly contended that the order of this court dated 29-3-1961 expressed a cumulative condition and the Munsiff was wrong in restoring possession of the suit properties without security. Thirdly, he contended that when the suit was restored, the order granting temporary injunction on 1-6-1953 automatically got revived and therefore the Munsiff was wrong in passing an order to the effect that the second defendant is entitled to possession.

11. On the other hand Sri Jagirdar learned Advocate for the respondents contended that the order passed by the Munsiff should not be taken as an order interpreting the interim order of the High Court, but it should be taken as an order passed under Order 39, Rule 4, as per the direction given by this court in the order passed on C.R.P 232/61 dated 11-9-1962. He secondly contended that even assuming that the order passed by the Munsiff is without jurisdiction, taking into consideration the conduct of the plaintiff throughout the litigation, there is no justification to exercise discretion in favour of the plaintiff.

12. In support of the first contention, Sri Krishna Murthy urged that the inerim order passed by this Court on 29-3-1961 cannot be sought to be executed after the final orders were passed by this court on 11-9-1962. He urged that the interim order cannot operate after the final disposal of the case. He relied upon a decision of this court in S.M Channamallikarjunappa v. Basavanneppa, Misc. S.A Nos. 59 and 62 of 1966 (Mys) wherein Govinda Bhat, J has held as follows:

“In the appeal before the Civil Judge, plaintiff had made an application for grant of temporary injunction pending disposal of the appeal. No order was passed on the said application during the pendency of the appeal. In the order setting aside the decree of the trial court and remanding the suit for trial afresh, the Civil Judge made an order granting temporary injunction holding that the plaintiff has made out a prima facie case of possession. Against the said order of temporary injunction, the defendants have preferred M.S.A 62/66. The order of temporary injunction made by the Civil Judge, in my opinion, is clearly without jurisdiction. A temporary injunction can be granted only during the pendency of the appeal and any order of temporary injunction cannot operate after the disposal of the appeal. Therefore, M.S.A 62/66 has to succeed, and the order of temporary injunction granted by the Court below has to be set aside.”

13. In the instant case, the interim order passed by this court on 29-3-1961 is on the following terms:

“Heard Advocates. Order of injunction is dissolved. The respondent No. 2 will withdraw the amount and take possession of the property, after giving security to the satisfaction of the Sub-Judge at Gulbarga.”

14. The above order operated only during the pendency of the Civil Revision Petition No. 232/1961. After the main petition was disposed of by this court on 11-9-1962, the interim order passed in Civil Revision Petition No. 232/1961 cannot continue to operate. The ratio of the decision rendered by Govinda Bhat, J. is applicable to the facts of the instant case. Therefore, the interim order passed by this court during the pendency of the C.R.P No. 232/61 cannot operate after the disposal of the said petition. Sri Jagirdar, learned Advocate for the 2nd respondents was unable to meet the first contention of Sri V. Krishna Murthy. What he submitted was that the order passed by the Munsiff should not be taken as an order passed in respect of the interim order passed by the High Court, but it should be taken as an order passed under Order 39, Rules 1 and 2. I am unable to accept the argument advanced by Sri Jagirdar. It is not possible to construe the impugned order as an order passed under Order 39, Rules 1 and 2. Therefore, I agree with the contention of Sri V. Krishna Murthy that the Munsiff had no jurisdiction to seek to enforce the interim order dated 29-3-1961 passed by this court after C.R.P 232/1961 was disposed of on 11-9-1962. Therefore, the said order is not sustainable in law and the same is liable to be set aside.

15. The next question is whether the restoration of the suit in O.S 82/1 of 1953-1954 by the Civil Judge, has revived the ancillary orders passed before the dismissal for default of the suit. Answer to this question depends upon the terms in which the order of dismissal for default is passed by the trial court and also the terms in which the Page: 286trial court or the appellate court has restored the suit in question. If the Court passes an order dismissing the suit for default without any reference to the ancillary orders I and such a suit is restored by the court which dismissed it for default or by the appellate court, then the ancillary orders passed in the suit get revived after the order of restoration of the suit is passed. But, where the court which dismisses the suit specifically vacates the ancillary orders passed therein and the court restoring such a suit does not advert to ancillary orders so vacated, then the ancillary orders would not get revived even if there is restoration of the suit. This view is supported by a decision in Saranath Ayyangar v. Muthiah Moopanar, AIR 1934 Mad 49 wherein it is held as follows:

“The question whether the restoration of a suit does not restore the interlocutory orders or matters as between the parties to the suit, should be decided with reference to the intention of the officer who passed the order restoring the suit. It is a question of the construction of the order of restoration. If he intended to restore the suit and all the ancillary matters connected with it they are all restored. If he did not so intend to restore all of them, they are not restored. As a matter of general rule, the intention would be to restore the suit and all incidental matters. If there is anything expressly appearing against the view that all the interlocutory matters are restored, then one would hold that they are not so restored.”

16. The above view is followed in the decision in Bankim Chandra v. Chandi Prasad, AIR 1956 Pat 271, wherein it is held as follows:

“Orders like one for stay are nothing but ancillary orders and they are all meant to aid and supplement the ultimate decision arrived at in the main suit or appeal. Therefore, once a suit or appeal dismissed for default is restored by the order of the Court, all ancillary orders passed in the suit or appeal before its dismissal also revive and operate since that date with all their legal implications unless there is any other factor on the record or in the order passed to show to the contrary.”

17. Sri Jagirdar contended that restoration of a suit does not revive ancillary orders passed before the suit was dismissed for default. He strongly relied upon a decision in Raj Chander Gupta v. Ramesh Kishore, AIR 1965 All 546 wherein it is held as follows:

“There does not seem to be any reasonable basis for making a distinction between the dismissal of suit for default and a dismissal of suit on merits. If the plaintiff succeeds in getting the suit restored in one case and the dismissal of suit is set aside on appeal in the other, all that happens is that the suit becomes alive. It cannot be disputed that once a suit is dismissed either for default or on merits, it ceases to exist in the eye of law and therefore, any ancillary orders passed in the suit would automatically come to an end and cease to operate.”

18. With great respect to the learned Judge who has laid down the law as above, I am unable to agree with that view in view of the two decisions of Madras and Patna High Courts quoted above. As can be seen from the above judgment, the learned single Judge who rendered the decision in Allahabad case appears to have noticed the two decisions which I have referred to above. The Allahabad decision, in my opinion, does not lay down the correct principle of law.

19. Sri Jagirdar invited my attention to a Full Bench decision of the former High Court of Mysore, in Gangappa v. Boregowda, AIR 1955 Mys 91, wherein it is laid down as follows:

20. An attachment before judgment which ceased to be in force with the dismissal of the suit will not revive when the decree dismissing the suit is subsequently reversed and a decree in plaintiff's favour is passed by the same court or by a superior Court.

21. An attachment before judgment is in the nature of an interlocutory order. It is an extraordinary relief granted to a plaintiff even before his claim is adjudicated upon and found to be true and if a suit is dismissed either for default or on its merits by the trial Court and the attachment before judgment has therefore to cease, he can certainly have not as much grievance as a person who has obtained a decree and attached property of the judgment-debtor whose right to attached property has been questioned and decided in summary proceedings and which are made expressly subject to a decision in a regular suit. Moreover, it cannot also be urged that all interlocutory orders like say those passed on applications for temporary injunction the operation of which would have to cease on the dismissal of a suit, would automatically be revived or can be deemed to be in force without any further orders by an appellate Court or by the same Court after the suit is dismissed. To hold so would lead to obvious and real difficulties. It is not also as though the plaintiff in such a case has no remedy. He could always apply to the same Court if a suit which has been dismissed for default is restored to file or to an appellate Court which has also ample powers to grant an order of attachment before judgment under the provisions of S. 107(2), Civil P.C In any event the possibility of hardship cannot warrant the ignoring of the express provisions of Order 38, Rule 9 by which it is specifically laid down that an attachment before judgment shall cease by the dismissal of a suit.”

22. The ratio of the above decision is based on the express provisions of Order 38, Rule 9 which reads as under:

“Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment or when the suit is dismissed.”

23. Similar provisions are not found in Order 39 relating to temporary injunctions and interlocutory orders. In para 10 of the above quoted decision, their Lordships have observed as follows:

“Moreover, it cannot also be urged that all interlocutory orders like say those passed on applications for temporary injunction the operation of which would have to cease on the dismissal of a suit, would automatically be revived or can be deemed to be in force without any further orders by an appellate Court or by the same Court after the suit is dismissed. To hold so would lead to obvious and real difficulties. It is not also as though the plaintiff in such a case has no remedy. He could always apply to the same Court if a suit which has been dismissed for default is restored to file or to an appellate Court which has also ample powers to grant an order of attachment before judgment under the provisions of Section 107(2), Civil P.C”

24. Sri Jagirdar strongly relied upon those observations. In my opinion, these observations are only obiter. This question was not specifically before the Full Bench for decision. The question that was before the Full Bench for decision was whether an attachment before judgment which ceased with the dismissal of the suit, is revived when the decisions of dismissal is reversed by the Superior Court. Therefore, with great respect to the learned Judges who have rendered the decision, I am not inclined to agree with the observations made in para 10 of the Judgment with regard to the operation of temporary injunctions. In the instant case, the learned Civil Judge while setting aside the order passed by the lower court has stated that the suit be restored to its original number and proceeded with according to law. The terms in which the dismissal order for default had been passed is however not before me. Therefore, it is difficult to say whether the trial court while dismissing the suit for default, made any specific order vacating the ancillary orders passed in the case. There is no reference to it in the course of the judgment of the appellate Court.

25. In the light of the principle of law stated above, this matter requires to be referred to the Munsiff once again for consideration. The Principal Munsiff is therefore directed to look into the terms of the order of dismissal for default passed by the trial Court as well as the terms of the order of restoration passed by the appellate court and dispose of the application filed by the plaintiff.

26. As regards the third question Sri Jagannatha Shetty, learned Advocate for the petitioner in C.R.P 688/1905 contended that the suit was dismissed due to the negligence of the plaintiff. He further urged that the appellate Court has not considered the evidence of the plaintiff and the defendants and, therefore, the appellate Court's order suffers from material irregularity in the exercise of jurisdiction. In support of this contention Sri Shetty urged that the Bus Conductor was the proper witness in the case and in the absence of his evidence, the appellate Court's order is vitiated by material irregularity. Sri Shetty relied upon a decision in Krishna Saroop…Defendant Applicant; v. Raj Bahadur Singh…Plaintiff Opposite Party., AIR 1931 All 452 wherein it is laid down as follows:

“Where a Court sets aside an order of dismissal without considering the evidence produced by the parties and without any reference to the pleadings involved in the case and without determining the crucial issue whether or not there was any sufficient cause for the non-appearance of the plaintiff on the date fixed, the order in question is vitiated by a material irregularity.”

27. In the above case relied upon by Sri Shetty, the court restoring the suit had to rely upon affidavits which did not disclose sufficient material to justify the setting aside the order of dismissal. But the facts of the present case are entirely different. The plaintiff in the instant case has examined himself and P.Ws 2 and 3 in support of his case and some Exhibits relating to the total number of passengers carried by the bus which the plaintiff missed are also produced in the case. The appellate Court has come to the conclusion that the evidence led on behalf of the plaintiff was trustworthy and the Court below ought to have considered the reason put forth by the plaintiff for his non-appearance in the court. Further, the appellate court has found that the plaintiff had shown sufficient cause for his non-appearance on the date when the suit was called for hearing. On question of fact, thus, the appellate Court has come to the above conclusion. Shri V. Krishna Murthy strongly relied upon a decision in Manindra Land & Building Corporation Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336 wherein it is held as follows:

“It is not open to the High Court in the exercise of its revisional jurisdiction under Section 115, to question the findings of fact recorded by a subordinate Court. Section 115 applies to cases involving questions of jurisdiction, i.e questions regarding the irregular exercise or non-exercise of jurisdiction or the illegal assumption of Jurisdiction by a court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved.”

28. In view of this decision of the Supreme Court, the Allahabad decision relied upon by Sri Shetty is of little assistance to the petitioners case in C.R.P 583/1965. The contention of Sri Shetty, therefore, fails.

29. Before parting with this case, there is one other point urged by Sri Jagirdar which deserves consideration. Sri Jagirdar Page: 288urged before the Court that the conduct of the plaintiff in this case ever since he filed the suit in 1953 cannot be countenanced by any courts of law. No doubt, there have been orders of dismissal for default of the suit in question on many occasions. This bears ample testimony for the negligence of the plaintiff and his intention to protract the proceeding. The suit is already more than 13 years old. Such inordinate delay in the disposal of this suit owing to the conduct of the plaintiff should no longer be allowed to continue in the case. The principal Munsiff, Gulbarga, is therefore directed to take this suit for trial from day-to-day and dispose of the same before the courts are closed for ensuing summer vacation. It is hoped that the parties in the suit would be diligent and co-operate with the lower court for the expeditious disposal of his suit. For the reasons stated above, C.R.P No. 577/1965 is allowed and the order passed by the Principal Munsiff that the 2nd defendant is entitled to restoration of possession of the suit lands and the amount in deposit on the criminal side is sufficient security for restoration of the possession of suit lands is hereby set aside. The principal Munsiff is directed to dispose of the application filed by the plaintiff afresh on the question whether the restoration of the suit revives the ancillary orders passed in the original suit. C.R.P No. 583/1965 is dismissed.

30. No costs.

LGC/D.V.C

Petition allowed.