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Shankar Singh v. Firm Sudarshan & Co. And Others
Factual and Procedural Background
The revision petition arises from an order passed by the learned Additional District Judge, Amritsar, on an appeal under Order 43 Rule 1 of the Code of Civil Procedure. The dispute concerns a parcel of land in village Balkalan, Amritsar, originally held by Smt. Basant Kaur and her daughter Smt. Swaran Kaur. After Basant Kaur's death, her husband Bishan Singh, acting also as Mukhtiar of Swaran Kaur, executed an agreement to sell the land and associated assets to Messrs Sudarshan and Co. for Rs. 31,700, with Rs. 2,000 paid in advance, and possession was delivered on the agreement date. However, the land was attached due to a debt owed by Bishan Singh to the State Government, which the buyers were to pay to release the attachment. The buyers were misled about the debt amount, which was actually Rs. 40,000 rather than Rs. 16,000, preventing execution of the sale deed within the stipulated period. The Collector subsequently sold the land at a public auction to Shankar Singh, son of Bishan Singh, who took symbolic possession. Sudarshan and Co. filed a suit for permanent injunction restraining interference with their possession and sought to prevent Shankar Singh from taking possession through the Collector's sale. Bishan Singh died during the suit, and his legal representatives were added. The plaintiffs applied for a temporary injunction under Order 39 Rules 1 and 2 read with Section 151 of the CPC; the trial court initially granted it ex parte but later set it aside. On appeal, the Additional District Judge granted the temporary injunction restraining defendants from forcibly taking possession. Shankar Singh challenged this order by way of revision.
Legal Issues Presented
- Whether an appeal lies to the District Judge against an order of the trial Judge refusing to grant a temporary injunction when the order is passed under Section 151 of the Code of Civil Procedure and not under Order 39 Rules 1 or 2.
- Whether the temporary injunction could be granted under Order 39 Rule 2(1) in a suit restraining a party from committing “other injury of any kind” when possession is sought pursuant to a Court order.
- Whether the order of the Additional District Judge granting the temporary injunction was passed with jurisdiction.
- Whether the plaintiffs satisfied the conditions necessary for granting a temporary injunction as laid down in Manohar Lal Mahabir Pershad v. Narain Babu Lal.
Arguments of the Parties
Petitioner's Arguments
- No appeal lies to the District Judge against the trial Judge's order refusing temporary injunction because it was passed under Section 151 and not under Order 39 Rules 1 or 2 CPC.
- The order granting the temporary injunction on appeal was without jurisdiction and should be set aside.
- The case did not meet the conditions enumerated under Order 39 Rules 1 and 2 for granting a temporary injunction.
Respondents' Arguments
- The temporary injunction could be granted under Order 39 Rule 2(1) CPC as the suit sought to restrain “other injury of any kind.”
- The word “injury” in this context has been interpreted to mean an act contrary to law, and since defendant No. 3 was attempting to obtain possession pursuant to a Court order, he was not acting contrary to law.
- The injunction prayed for falls within the ambit of Order 39 Rules 1 and 2 CPC.
- Support for this view was drawn from precedents including Kanshi Ram v. Sharaf Din and Hari Chand v. Mst. Durga Devi.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Manohar Lal Mahabir Pershad v. Narain Babu Lal, A.I.R. ??? I ah. 436 | Interpretation of “injury” under Order 39 Rule 2(1) CPC as an act contrary to law. | Used to analyze whether defendant No. 3's act of obtaining possession pursuant to Court order amounted to “injury” justifying injunction. |
| Kanshi Ram v. Sharaf Din, A.I.R. 1923 Lah. 1442 | Support for the scope of Order 39 Rules 1 and 2 CPC in granting injunctions. | Supported respondent's argument that injunction was maintainable under Order 39. |
| Hari Chand v. Mst. Durga Devi, A.I.R. 1934 Lah. 792 | Clarification that an order refusing temporary injunction restraining possession pursuant to a decree is passed under Section 151 CPC, not Order 39 Rule 1. | Clarified that no appeal lies against such an order, supporting the petitioner's jurisdictional objection. |
Court's Reasoning and Analysis
The Court examined the jurisdictional basis for the appeal to the Additional District Judge against the trial Judge's refusal to grant a temporary injunction. It noted the distinction that an order refusing a temporary injunction restraining possession pursuant to a decree is passed under Section 151 CPC rather than under Order 39 Rule 1. Consequently, no appeal lies against such an order. The Court found that the Additional District Judge acted without jurisdiction in entertaining the appeal and granting the injunction. Further, the plaintiffs failed to demonstrate that no other remedy was available to protect them or that irreparable injury would occur absent the injunction. The plaintiffs had been in possession for approximately four years without paying rent, and if successful, could claim damages for wrongful possession. Thus, the conditions necessary for granting a temporary injunction as laid down in Manohar Lal’s case were not satisfied. The Court concluded that the appellate order was legally flawed and liable to be set aside.
Holding and Implications
The revision petition is allowed with costs, and the order under appeal is set aside.
The direct consequence is that the temporary injunction granted by the Additional District Judge is vacated. No new precedent was established; rather, the Court reaffirmed the principle that no appeal lies against certain orders refusing temporary injunctions passed under Section 151 CPC. The plaintiffs must seek protection through other legal remedies and cannot rely on the set-aside injunction.
P.D Sharma, J.:— The facts giving rise to this revision petition against an order passed by the learned Addl. District Judge. Amritsar, on an appeal filed before him under Order 43 rale, 1, Code of Civil Procedure, may briefly be noticed. A certain parcel of land situate in the area of village Balkalan, tehsil and district Amritsar was held by Smt. Basant Kaur and her daughter Smt. Swaran Kaur, the first of them died 4½ years' back Her husband Bishan Singh personally and as Mukhtiar of Smt. Swam Kaur on 8th August, 1963 executed an agreement to sell the above land along with the buildings, tube-well and other machinery situate thereon for a sum of Rs. 31,700/- in favour of Messrs Sudarshan and Co. through Sudarshan Singh. Rs. 2,000/- were pand in advance. Possession of the land and the buildings was delivered to the prospective buyers on the date of the execution of the agreement. This land already stood attached towards the realisation of debt executed by Bishan Singh from the State Government. The prospective buyers were required to pay this debt of the Government and to get the land released from attachment. The buyers were given to understand that near about Rs. 16,000/- only were due from Bishan Singh but in fact he had to pay Rs. 40,000/-. Therefore the sale deed could not be executed within the stipulated period. The Collector sold the land in a public auction and was purchased by Shankar Singh son of Bishan Singh. He also obtained symbolical possession thereof. Thereupon, firm Sudarshan and Co. instituted a suit in the Court of the Subordinate Judge, Amritsar, for permanent injunction restraining Bishan Singh, Smt. Swaran Kaur and Shankar Singh from interfering in their lawful possession thereof and further prayed that defendant No. 3 should also be restrained from obtaining possession of the land through the Collector who had sold the land in public auction. They alleged that the land in fact was purchased by Bishan Singh, and Shankar Singh was only a benamidar and that Bishan Singh and Shankar Singh both constituted a joint Hindu family. Bishan Singh died during the pendency of the suit. Names of his legal representatives were brought on the record. The plaintiffs in the suit had also applied under Order 39 rules 1 and 2 read with section 151, Civil Procedure Code, for a temporary injunction in the terms of the permanent injunction prayed for by them. The learned Subordinate Judge granted their prayer exparte but on being moved by defendant No. 3 set aside the above order and declined to grant the temporary injunction by his order dated the 1st July, 1966. The plaintiffs preferred an appeal against this order which came up for hearing before the learned Additional District Judge who allowed it and granted them a temporary injunction restraining the defendants from taking possession of the property in dispute either forcibly or on the basis of a warrant of possession to be obtained by defendant No. 3 from the Collector. Shankar Singh defendant No. 3 has come up in revision to this Court.
2. The learned counsel for the petitioner maintained that no appeal lay to the District Judge against the order of the trial Judge by which he had refused to grant the temporary injunction to the plaintiffs as the order was passed by him under section 151 of the Code of Civil Procedure and not under Order 39 rules 1 or 2, Civil Procedure Code, and that being so the order under revision was without jurisdiction and was liable to be set aside. He relied on the provisions made in order 39 rules 1 and 2 of the Code of Civil Procedure which provide the conditions under which temporary injunctions could be granted by the civil Court. The present case did not fall in any one of the contingencies enumerated therein. The learned counsel for the respondents, however, maintained that the temporary injunction could be granted by the Court below under Order 39 rule 2(1) of the Code of Civil Procedure as the suit was for restraining defendant No. 3 from committing “other injury of any kind” as mentioned therein. The word ‘injury’ as used in this provision of law has been interpreted in Manohar Lal Mahabir Pershad v. ??? Narain Babu Lal . A.I.R ??? I ah. 436., as an act which is contrary to law. Defendant No. 3 indeed was trying to obtain possession of the land in pursuance of an order of a Court and while doing so cannot be sand so be acting contrary to law. The injunction prayed for by so stretch of imagination is covered by Order 39, rules 1 and 2 of the Code of Civil Procedure. My view finds support from Kanshi Ram v. Sharaf Din . A.I.R 1923 Lah. 1442. and Hari Ckand v. Mst. Durga Devi . A.I.R 1934 Lah. 792.. In the latter case Bhide, J. observed.
“An order refusing to grant temporary injunction restraining the decree-holder purchaser from obtaining possession of property purchased is one passed under section 151 and not under Order 39, rule 1, and as such no appeal lies from such order.”
There is no doubt left in my mind that no appeal lay against the order of the trial Judge to the District Court and as such the order under revision was passed by the learned Additional District Judge without jurisdiction. Further, the plaintiffs had not made out that there was no other remedy open to them by which they could protect themselves from the consequences of the injury complained of. They have also not shown that unless defendant No. 3 is restrained forthwith by a temporary injunction, irreparable injury or inconvenience may result to them before the suit is decided on merits. These are the conditions on which a temporary injunction of the kind prayed for in the present proceedings could have been granted as land down in Manohar Lal's case. The plaintiffs have been in possession thereof for almost four years without payment of rent to anybody. In case of success they can claim damages from defendant No. 3 for wrongful possession of the land belonging to them. The order passed on appeal is bad in law and is liable to be set aside to revision.
3. The revision, therefore, is allowed with costs and the order under appeal set aside. Counsel fee Rs. 50/-.
Revision allowed.
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