Ramesh Akre v. Mangalabai Pralhad Akre

1. Heard Shri Gharote, learned counsel for the applicants, and Shri Shukla, learned counsel for the non-applicants.

2. The revision is directed against the order dated 15-3-1995 passed by the 2nd Joint Civil Judge, Junior Division, Nagpur below Exh. 1 in Regular Darkhast No. 25/1995 whereby Executing Court issued warrant of possession against the present applicants (original plaintiffs) under Order XXI Rule 32(1) read with Order XXXIX. Rule 2(a) of the Code of Civil Procedure. The relevant facts, which have given rise to the controversy in issues, are as follows:—

3. The applicants filed Regular Civil Suit bearing No. 2262/1992 against the Corporation of City of Nagpur and deceased Pralhad Ramaji Akre, husband of non-applicant No. 1 and father of non-applicant Nos. 2 to 4. It was pleaded by the applicants in the suit that they were in possession of shop No. 26 situated at Fuloli, Itwari, Nagpur and were doing business of sale of flowers in the said premises since long. The said shop was taken on lease by Ramaji Akre, who was father of applicant Nos. 1 and 2 and husband of applicant No. 3 sometime in the year 1932 and since then Ramaji Akre was conducting his business in the said premises, which belonged to Nagpur Municipal Corporation.

4. It was further stated in the plaint by the applicants that Ramaji Akre was karta of the joint Hindu family consisting of applicants and Prahlad s/o Ramaji Akre (original defendant No. 3) as well as other children of Ramaji Akre. Ramaji Akre continued his business in the said shop till his death, i.e 27-8-1970. After his death, Pralhad became the Karta of joint Hindu family and was permitted to mutate his name as lessee of shop No. 26. Pralhad Akre wanted to start his own business and, therefore, he orally relinquished his claim/share in ship No. 26 as well as in the business of sale of flowers in favour of applicants. The applicants, therefore, came into possession of shop No. 26 sometime in the year 1973 and carried on the business of sale of flowers in the suit premises. However, in 1992. Pralhad Akre lodged a complaint with Police Station, Lakadganj against the applicants with intention to harass them. Pralhad Akre also lodged a complaint in the office of Corporation of City of Nagpur with mala fide intention to dispossess the applicants from shop No. 26. In view of the above facts, the applicants apprehended dispossession and, therefore, filed Regular Civil Suit No. 2262/1992.

5. In the said suit, application for grant of temporary injunction was moved by the applicants under the provisions of Order XXXIX Rules 1 and 2 of Code of Civil Procedure. Original Defendant No. 3 Pralhad Akre on 4-1-1993 also moved an application for grant of mandatory injunction under Order XXXIX, Rules 1 and 2 read with S. 151 of Code of Civil Procedure and in the said application, it was alleged by him that suit shop No. 26 was allotted to him on licence by the Corporation and he was in possession till 23-10-1992. It was further stated by him that he was dispossessed by the applicants sometime in the month of October 1992.

6. Both the above referred applications were decided by the trial Court on 5-4-1993. The trial Court rejected the application moved by the plaintiffs/applicants for grant of temporary injunction (Exh. 5) and allowed the application for interim injunction filed by Pralhad Akre (Exh. 16) and directed that original defendant No. 3 Pralhad Akre be put in possession of shop No. 26 at Fuloli, Bhajimandi, Itwari, Nagpur and further applicants were temporary restrained from interfering with the possession of original defendant No. 3 Pralhad Akre. The applicants thereafter filed a pursis dated 25-1-1995 and stated therein that the applicants/plaintiff do not want to proceed with Regular Civil Suit No. 2262/1992 and sought permission to withdraw the same. The trial Court passed an order on the said pursis No. 25-1-1993, which reads thus:

“In view of the withdrawal pursis Exh. 68, this suit stands disposed of for want of prosecution. Issue Court fee refund certificate as per rules.”

7. The present non-applicants (legal heirs of original defendant No. 3 deceased Pralhad Akre) filed Regular Darkhast No. 25/1995 for issuance of warrant of possession against the applicants. The executing Court issued notice to the applicants, who were parties to the execution proceedings. The applicants submitted their reply/objection. The trial, Court after taking into consideration the contentions of the non-applicants as well as objections lodged by the applicants, passed the impugned order dated 15-3-1995 and issued warrant of possession against the applicants/original plaintiffs under Order XXI Rule 32(1) read with Order XXXIX Rule 2(a) of Code of Civil Procedure. Being aggrieved by the same, the applicants/plaintiffs have moved the present revision.

8. Shri Gharote, learned counsel for the applicants, assails the impugned order on the ground that the applicants were plaintiffs in Regular Civil Suit No. 2262/1992 and the non-applicants were defendants. The applicants filed a pursis for withdrawal of the suit and the trial Court was pleased to allow the same vide order dated 25-1-1995 and proceedings were closed. It is contended by the learned counsel for the applicants that since the suit is disposed of, the orders, which were passed during pendency of the suit on interlocutory applications, merged in the order of withdrawal of the suit and those interlocutory orders came to an end on the date the suit was permitted to be withdrawn and the interlocutory orders cannot be treated to be in existence thereafter. It is, therefore, contended that execution proceedings initiated by the non-applicants for execution of interim injunction order dated 15-4-1993 are not maintainable since existence of that interim order came to an end on 25-1-1995 when trial Court passed a final order and permitted the applicants/plaintiffs to withdraw the suit and proceedings initiated by filing the suit were closed.

9. The learned counsel for the applicants states that the non-applicants did not file counter claim in the suit and, therefore, there was no occasion for the trial Court to adjudicate upon the claim of the non-applicants in regard to premises in question, i.e shop No. 26. It is contended that if the non-applicants were aggrieved by the order dated 25-1-1995 passed by the trial Court allowing the applicants to withdraw the suit, they were at liberty to file an appeal or could have taken suitable steps to get the above referred order reviewed. However, non-applicants neither filed appeal nor moved application for review of the said order and, therefore, order dated 25-1-1995 reached finality and proceedings initiated by way of Regular Civil Suit No. 2262/1992 by the applicants were withdrawn and proceedings were closed. All these objections were raised before the executing Court. However, the executing Court erred in ignoring these objections and, therefore, impugned order is not sustainable in law. In order to substantiate the contentions, reliance is placed by the learned counsel for the applicants on the judgments is Nagar Mahapalika, Lucknow v. Ved Prakash, AIR 1976 Allahabad 264, Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 and Bank of Maharashtra v. M.V River Oqbese, a Vessel Registered Outside India, 1989 Mh LJ 1037 : AIR 1990 Bom 107.

10. Shri Shukla, learned counsel for the non-applicants (legal representatives of original defendant No. 3 Pralhad Akre), disputes the contentions canvassed by the learned counsel for the applicants and states that in the year 1972 licence was issued in the name of original defendant No. 3 Pralhad Akre by the Corporation and since 1972 to 1992, he was paying the licence fee and running the shop. The applicants never raised any objection in this regard. It is contended that in the month of August 1992, original defendant No. 3 Pralhad Akre fell ill and was admitted in the hospital. The applicants/plaintiffs took advantage of his illness and started running business of sale of flowers from the premises in question in his absence. Pralhad Akre, therefore, lodged a complaint in Police Station in the month of October 1992. It is further contended that original licence of the shop was issued in the name of father of defendant No. 3, namely, Ramaji and after death of Ramaji, same was allotted afresh in the name of defendant No. 3 Pralhad as per Parwana letter dated 2-7-1993.

11. It is contended by learned counsel Shri Shukla that defendant No. 3 Pralhad filed an application for mandatory injunction under Order XXXIX Rules 1 and 2 read with S. 151 of Code of Civil Procedure in Regular Civil No. 2262/1992 against the applicants (Exh. 16) and the trial Court vide order dated 5-4-1993, allowed the application (Exh. 16) and directed the applicants to put defendant No. 3 Pralhad in possession of shop No. 26 and the present applicants (original plaintiffs) were temporarily restrained from interfering with possession of defendant No. 3. It is further contended that the order dated 5-4-1993 passed by the trial Court below Exh. 16 is conclusive in nature and an executable order under S. 36 of Code of Civil Procedure and hence, executing Court was justified in passing the impugned order dated 15-3-1995 in Regular Darkhast No. 25/1995.

12. It is further contended by the learned counsel for the non-applicants that the trial Court vide order dated 25-1-1995 disposed of the suit for want of prosecution in view of pursis for withdrawal of suit filed by the applicants. Even then, force of the order dated 5-4-1993 passed by the trial Court does not come to an end and the rights created in favour of the present non-applicants in the said order are conclusive in character and could not be affected by order dated 25-1-1995 and hence, the impugned order dated 15-3-1995 is just and proper and sustainable in law.

13. It is further contended by learned counsel Shri Shukla that the applicants should not be allowed to blow hot and cold at the same time. The applicants had filed the regular civil suit for declaration and injunction. The trial Court rejected the application moved by the applicants for grant of temporary injunction and allowed the application for temporary injunction filed by the defendant No. 3 Pralhad and also directed for restoration of possession of the suit shop to the defendant No. 3. The applicants/plaintiffs at that stage with mala fide intention filed a pursis for withdrawal of suit in order to defeat the order dated 5-4-1993 passed by the trial Court below Exh. 16 and suit was accordingly disposed of for want of prosecution vide order dated 25-1-1995. However, rights accrued to the non-applicants in view of order dated 3-4-1993 are executable and, therefore, non-applicants filed Regular Darkhast No. 25/1995. According to the learned counsel, the impugned order is sustainable in law. In order to substantiate the contentions, reliance is placed by the learned Counsel on the judgments in Venkat Niloba Kabade v. Kishan Dadarao Dhumal 1983 Mh LJ 1105, Bendakayala Abdul Rajack v. Vested Abdul Latheef AIR 1961 AP 482 and Suresh P. Naik v. Manquesh R. Wagle 2000 (4) Mh LJ 157.

14. In order to appreciate the issue in question, it will be proper to consider some of the undisputed facts, which are as follows:

The applicants/original plaintiffs filed Regular Civil Suit No. 2262/1992 against Corporation and others for declaration and injunction in respect of shop No. 26 at Fuloli, Bhajimandi, Itwari. Nagpur, During pendency of the suit, the applicants moved an application for temporary injunction under Order XXXIX Rules 1 and 2 of Code of Civil Procedure. The present non-applicants are the legal representatives of original defendant No. 3 Pralhad Akre. The original defendant No. 3 also moved an application under Order XXXIX, Rules 1 and 2 read with S. 151 of Code of Civil Procedure (Exh. 16). The trial Court vide order dated 5-4-1993 rejected the application moved by the applicants/plaintiffs (Exh. 5) and allowed the application moved by the original defendant No. 3 (Exh. 16) and he was directed to be put in possession of suit shop No. 26 and present applicants were temporarily restrained from interfering with possession of the defendant No. 1. The applicants thereafter filed a pursis before the trial Court on 25-1-1995. In the said pursis, it was stated that the plaintiffs do not want to proceed with Regular Civil Suit No. 2262/1992 and prayed for grant of permission to withdraw the same. The trial Court vide order dated 25-1-1995 allowed the pursis and suit stood disposed of for want of prosecution.

15. Original defendant No. 3 Pralhad Akre died during pendency of the suit and present non-applicants were brought on record as legal representatives of deceased defendant No. 3. The present non-applicants filed Regular barkhast No. 25/1995 in the executing Court for execution of order dated 5-4-1993 and the executing Court vide impugned order dated 15-3-1995 issued warrant of possession against applicants/plaintiffs under Order XXI Rule 32(1) read with Order XXXIX Rule 2(a) of Code of Civil Procedure. This order is assailed by the applicants in the present revision.

16. In the instant revision, this Court is not concerned whether plaintiffs' claim in the suit in respect of shop in question was valid and sustainable or whether present non-applicants had a better claim in respect of the said shop. All these issues in respect of entitlement of shop are kept open.

17. In view of the above referred undisputed facts, the only question which falls for consideration in the present revision is—

“Whether ad interim mandatory injunction granted by the trial Court by order dated 5-4-1993 by allowing Exh. 16 in favour of the original defendant No. 3 during pendency of Regular Civil Suit No. 2262/1992 would survive or can be enforced by filing execution proceedings under S. 36 of Code of Civil Procedure after the original suit itself stands disposed of as withdrawn for want of prosecution vide order dated 25-1-1995.”

18. Order XXXIX, Rules 1 and 2 of Code of Civil Procedure deals with powers of the Court to grant temporary injunction. The plain reading of Order XXXIX, Rules 1 and 2 shows that the injunction granted by the Court under these provisions is temporary in nature and can operate until disposal of the suit or until further orders. Therefore, order passed under these provisions cannot be said to have independent existence de hors of the suit and can survive or can be continued only during pendency of the suit unless the same is modified or altered either by the same Court or by the higher Court. In the Instant case, order dated 5-4-1993 passed by the trial Court is an interlocutory order, which is of temporary nature and by very nature of the order, could remain in existence during pendency of Regular Civil Suit No. 2262/1990.

19. Similarly, S. 151 of Code of Civil Procedure gives inherent power to the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court, however same is required to be exercised by the Court, normally, when there is no other statutory remedy available to the parties to redress their grievance or to prevent abuse of the process of Court. Whenever there is a statutory provision remedy provided under the Code or statute. Parties to the litigation are required to exhaust those remedies and in such situation. Court is not expected to exercise inherent powers. In the instant case, application though moved by the non-applicants under Order XXXIX, Rules 1 and 2 read with S. 151 of Code of Civil Procedure, the trial Court has exercised power under Order XXXIX, Rules 1 and 2 only while passing order dated 5-4-1993 whereby defendant No. 3 was directed to be put in possession of shop No. 26 and applicants were temporarily restrained from interfering with his possession. The order dated 5-4-1993 passed by the trial Court undoubtedly is an interlocutory order having temporary existence during pendency of the main suit and same must merge in the final order passed in the suit unless contrary is proved.

20. The orders which are passed under Order XXXIX Rules 1 and 2 of Code of Civil Procedure by the Court during pendency of the suit, if are treated to be conclusive and final orders, decides the rights of the parties involved in the suit finally, and it would create a peculiar situation not known to the civil procedure. As stated hereinabove, the order under Order XXXIX. Rules 1 and 2 is always interlocutory/temporary in nature and can be said to be in force only during pendency of the suit unless it is altered or modified by the competent Court.

21. Similarly, it is also not necessary that suit should be disposed of only on merits in order to bring an end to interim order. What is contemplated in law is that such interim order would continue to operate till suit is disposed of one way or the other and would come to an end on the day suit is disposed of. Whether suit is disposed of for want of prosecution or on merits is not the criteria to decide existence of interim orders. These orders by their very nature are temporary and remain in force only during the pendency of the suit and come to an end when the suit is disposed of one way or the other.

22. Another aspect which requires consideration is whether provisions of S. 36 of Code of Civil Procedure are attracted in the case of orders which are passed under Order XXXIX Rules 1 and 2 of Code of Civil Procedure. The provisions of S. 36 relate to execution of decree and are also deemed to apply to execution of orders. However, considering the controversy in the present case and as already discussed hereinabove, the order dated 5-4-1993 being an interlocutory order of a temporary nature has come to an end or merged in the order by which suit is disposed of. Once having held that the said order has come to an end, it loses its force and effectiveness and same is not executable via S. 36 since the same is not in existence. The contention canvassed by the learned counsel for the non-applicants in this regard is misconceived and devoid of substance. In view of the facts and circumstances of the present case, the provisions of S. 36 of Code of Civil Procedure are not attracted and, therefore, application which is filed by the non-applicants for issuance of warrant of possession under S. 36 is not maintainable. Similarly contingencies contemplated under Order XXI, Rule 32(1) of Code or Civil Procedure are entirely different and operate in a different area altogether and cannot be equated with the issue in question and, therefore, same also cannot be said to be attracted in the present case. Consequently, the impugned order dated 15-3-1995 cannot be sustained in law.

23. This Court in the case of Bank of Maharashtra v. M.V River Oqbese, a Vessel registered outside India, 1989 Mh LJ 1037 : (AIR 1990 Bom 107) while dealing with Rule 941 of the Rules of the High Court of Judicature at Bombay on the original Side had an occasion to consider the concept of interim order/interim relief and in para 10 of its judgment, this Court observed thus (at page 110 of AIR):

“the word “interim” when used as a noun means “intervening” and when used as an adjective, it means “temporary” or “provisional” (Pocket Oxford Dictionary). Interim reliefs are granted to serve the temporary purpose of protecting the plaintiffs interest so that the suit is not frustrated. By their very nature, interim reliefs last as long as the suit lasts. They are “interim” because they operate during the interval between the institution of the suit and its disposal. The words “interim reliefs” mean reliefs granted to last during such intermediate time, interval, interlude or meantime, as exists during the pendency of the suit. Such reliefs whether granted ex parte or upon hearing the defendant have a common character, which is marked by their temporary, provisional, intermediate nature. The argument of counsel stems from the erroneous assumption that ex part reliefs are interim and those granted after hearing the defendants are not. In my opinion, all reliefs ex parte or otherwise, granted during the pendency of the suit, the interim in their nature.”

24. In view of the above referred observations, it is evident that the orders which are passed during pendency of the suit are interim or temporary in nature and can last as long as the suit lasts. In the instant case, therefore, the order dated 5-4-1993 passed by the trial Court undoubtedly was interim in nature Whereby applicants/plaintiffs were temporarily restrained from interfering with possession of the original defendant No. 3 and hence, it must necessarily come to an end on 25-1-1995 when the trial Court disposed of the suit for want of prosecution and further proceedings by way of Regular Darkhast No. 23/1995 initiated by the present non-applicants cannot be sustained in law.

25. Similarly, the Apex Court in para (13) of the judgment in the case of Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 observed thus (at page 1000-1001):

“It is needless to point out that interlocutory orders are of various kinds: some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the Court would be justified in rejecting the same as an abuse of the process of Court.”

These observations also propagate that the order granting stay or injunction, etc. are passed to preserve status quo pending litigation and such orders do not decide merits of the controversy in issue in the suit. In view of this legal position, the order of grant of injunction in the present case, i.e order dated 3-4-1993 is an order which is interlocutory in nature and it does not decide merits of the controversy in issue in the suit and is, in that sense, designed to preserve status quo pending litigation and, therefore, must merge in the final order by which suit is disposed of one way or the other and whatever rights created by the said order in favour of the non-applicants also would come to an end by the final order in the suit and execution proceedings pursuant to such order will not be maintainable.

26. Similar view is expressed by the learned single Judge of Allahabad High Court in the case of Nagar Mahapalika, Lucknow v. Ved Prakash, AIR 1976 Allahabad 264 by observing that if interim injunction is issued under Order XXXIX, Rule 1 of Code of Civil Procedure and subsequently the suit is dismissed for default, interim injunction order would cease on dismissal of the suit and would not automatically revive on setting aside dismissed order and restoration of suit.

27. In view of the ratio laid down by the above referred judgment of Apex Court and other High Courts, the view taken by this Court in the present case is fortified and, therefore, the impugned order passed by the Executing Court is not sustainable in law.

28. The ratio laid down in the judgment of this Court in Venkat Niloba Kabade… v. Kishan Dadarao Dhumal….. LJ 1105, on which reliance is placed by the learned counsel for the non-applicants, does not help the proposition canvassed by the non-applicants since facts involved in the said case are different than those in the present case. There is, even otherwise, no quarrel with the proposition that by virtue of amended S. 36 of Code of Civil Procedure, the orders of the Court can be executed and provisions of Code of Civil Procedure relating to execution of decree are made applicable to execution of the orders. In the instant case, as observed hereinabove, the order dated 5-4-1993 passed by the trial Court does not survive after suit is disposed of and hence, question of execution thereof does not arise. In my opinion therefore, non-applicants cannot derive any advantage from the ratio laid down by this Court in the above referred case.

29. Similarly, reliance placed by the learned counsel for the non-applicants on the judgment of Andhra Pradesh High Court in Bendakayala Abdul Rajack v. Vastad Abdul Latheef, AIR 1961 AP 482, in my opinion, does not support the contention of the non-applicants particularly when the nature of order in the said case was in the form of decretal order and same was based on the consent memo, which contained undertaking of the plaintiff himself. In view of the facts and circumstances of the said case, provisions of S. 36 of Code of Civil Procedure were said to be attracted. The matter was remanded by the learned Judge to the lower Court with a direction to dispose of the same afresh in the light of the observations made therein. In view of these aspects, the ratio laid down in the said case does not help the present non-applicants.

30. Another judgment of this Court in the case of Suresh D. Naik v. Manguesh R. Wagle 2000 (4) Mh LJ 157 relief upon by the non-applicants is also not of any help to the non-applicants. In that case it was held that—

“once the forcible possession of the respondents from the suit premises was established, they had to be put back in possession. Technicalities or technical objections to frustrate the mandatory temporary injunction which had attained finality cannot be permitted to thwart the course of justice. The impugned order did not suffer from any jurisdictional error or that the trial Court had in any manner acted illegally or with material irregularity so as to justify interference in revisional jurisdiction by the High Court.”

The issue involved in the above case is, therefore, entirely different. In that case. Court was considering the issue as to whether possession can be restored back to a party, who was forcibly dispossessed and validity of such order was called in question. The ratio therefore, in my opinion, does not have any bearing on the issue in question.

31. For the reasons stated hereinabove, the above referred question is answered in negative.

32. In the result, the impugned order dated 15-3-1995 passed by the Executing Court below Exh. 1 in Regular Darkhast No. 25/1995 cannot be sustained in law and hence, the same is quashed and set aside. The revision is allowed. No order as to costs.

Revision allowed.