Allowed

Dayanand Inter College v. Smt. Jabbar Fatima and Another

Allahabad HC25 Aug 2022A227/4808/2022

Case brief

AI extract

What is this about?

This High Court set aside an ex parte absolute injunction order passed by a Civil Judge under Section 151 CPC. The Court held that inherent powers cannot override express provisions of the CPC when a specific remedy exists, and since the plaintiff had pending injunction proceedings, the Section 151 application was set aside to preserve the remedy.

What did the court decide?

The impugned order dated 28.03.2022 passed by the Civil Judge (JD), Hasanpur, is set aside. The lower court is directed to expedite the pending possession and injunction application.

Dayanand Inter College Vs Smt. Jabbar Fatima and Another — Property and Title | Allahabad HC (2022)

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Reserved On: 08.08.2022 Delivered On:25.08.2022

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Court No. - 01

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Case :- MATTERS UNDER ARTICLE 227 No. - 4808 of 2022

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Petitioner :- Dayanand Inter College Respondent :- Smt. Jabbar Fatima And Another Counsel for Petitioner :- Ram Kishore Pandey,Bed Prakash Rai Counsel for Respondent :- Aijaz Ahmad Khan

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Hon'ble Piyush Agrawal,J.

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1. Heard Shri Rakesh Pande, learned Senior Advocate, assisted by Shri Ram Kishore Pandey, learned counsel for the petitioner and Shri Raj Kumar Kesari, along with Shri Aijaz Ahmad Khan, learned counsel for the respondent.

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2. Learned counsel for the respondents raises a preliminary objection with regard to the maintainability of the present petition in so far as challenge to the order dated 06.05.2022 (Annexure No. 11) is concerned. He submits that against the said order, revision lies before this Court.

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3. On the said submission, learned Senior Counsel, on instruction, states that he will not press prayer no. 'F' challenging the order dated 06.05.2022.

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4. Therefore, prayer no. 'F' of the petition is deleted as not pressed.

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5. The present petition has been filed for the following relief:-

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A. Call for the record of the case, allow the present petition and set aside the impugned order dated 28.03.2022 (Annexure No. 7 to this petition) passed by Civil Judge (JD), Hasanpur, District – Amroha;

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B. Direct to Civil Judge (JD) Hasanpur, District Amroha to decide the 6-C6- application filed by the plaintiff – respondent along with objection of the defendant – petitioner forthwith or within stipulated period as may be prescribed by this Hon'ble Court;

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C. Till the disposal of 6-C-2 application effect and operation of the order dated 28.03.2022 (Annexure No.) passed by Civil Judge (JD) Hasanpur, District Amroha may be suspended;

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6. The facts of the case are that the plaintiff – respondent instituted an Original Suit No. 86 of 2022 for permanent injunction against the defendant – petitioner restraining from raising construction as well as alienating the property in question. Along with the plaint of the suit, the plaintiff – respondent had also filed an application (paper no. 6-C) for grant of interim injunction supported by affidavit. On 23.03.2022, notices issued fixing 23.03.2022 for filing objection and disposal of the application (6-C). Thereafter, 08.04.2022 was fixed for disposal of the 6-C application. In the meantime, on 28.03.2022, without serving notice upon the defendant – petitioner, an application under section 151 CPC was allowed granting absolute injunction for maintaining status quo in favour of the plaintiff – respondent. Thereafter, on 31.03.2022, the defendant – petitioner filed an application under Order 39, Rule 4 CPC for recalling the order dated 28.03.2022, which was marked as paper no. 42-C. On 16.05.2022, the defendant – petitioner had also filed objection to the 6-C application filed by the plaintiff – respondent. However, the application of the defendant – petitioner under section 151 CPC was rejected vide order dated 06.05.2022 fixing 16.05.2022 as the next date for filing objection on 6-C application.

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7. Learned Senior Counsel submits that on 08.03.2022, order passed on the 6-C application fixing 23.03.2022 as the next date and the plaintiff – respondents were directed to take steps for service of notice, but no steps were taken for service of notice by the plaintiff – respondent. On the date fixed, i.e., 23.03.2022, the plaintiff – respondent chose not to appear for reasons best known to them. On 23.03.2022, 08.04.2022 was fixed and in the meantime, without taking proper steps for service of notice upon

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the defendant – petitioner, the application under section 151 CPC was moved and on the said application, an ex parte order was passed on the very day. He further submits that for the same cause of action, another application under section 151 CPC is not maintainable as the plaintiff - respondents had moved an interim injunction application (paper no. 6-C), which is still pending, in which date was fixed for 08.04.2022. Therefore, there was no occasion for the court below to pass an order without hearing to the defendant – petitioner. In support of this submission, he has relied upon the judgement in V. Sreeramachandra Avadhani (D) by L.R.'s Vs. Shaik Abdul Rahim & Another reported in 2014 (6) Supreme 471.

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8. Per contra, learned counsel for the respondent submits that the present petition is liable to be dismissed in limine as the petitioner has given a categorical statement before the Court that he is not pressing the order dated 06.05.2022 (prayer no. 'F') rejecting his application under Order 39, Rule 4 CPC. He further submits that there is no limitation for the Court to pass an order in the interest of justice under section 151 CPC. He further submits that there is no restriction to the inherent powers of the Court to pass such order, as it is necessary in the interest of justice. He further submits that on earlier occasions, the defendant – petitioner has alienated the property after construction of shops by three different sale deeds, the dates of which have been specifically mentioned in the impugned order. He further submits that a gift deed was executed in favour of the defendant – petitioner where a specific condition was mentioned that the property will be used exclusively for imparting education, but under the garb of the same, the defendant – petitioner is constructing the shops and the property was earlier alienated and now, after construction of the shops, again same will be alienated. Therefore, the impugned order has rightly been passed for maintaining status quo. He further submits that no prejudice will

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be caused to the defendant – petitioner by the impugned order. In support of his submissions, he has relied upon the judgement in Keshardeo Chamria Vs. Radha Kissen Chamria & others reported in AIR 1953 SC 23. He submits that there is ample power of the court below to pass an order under section 151 CPC during the pendency of the 6-C application. He prays for dismissal of the petition.

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9. The court has perused the record.

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10. Along with the original suit, the plaintiff – respondent filed an application (paper no. 6-C) under Order 39, Rules 1 & 2 of CPC for grant of interim injunction, in which 23.03.2022 was fixed for hearing, but on the said date, the plaintiff – respondent chose not to appear and hence, the matter was adjourned for 08.04.2022. In the meantime, on 28.03.2022, an application under section 151 CPC, along with an affidavit, was filed and without serving any notice to the defendant – petitioner, on the same day, absolute injunction was granted in favour of the plaintiff – respondent.

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11. Once 04.08.2022 was fixed for hearing on the application (paper no. 6-C) for grant of interim injunction filed by the plaintiff – respondent, passing of the impugned order on the application filed under section 151 CPC without any notice to the defendant – petitioner is unsustainable in law. Application under section 151 CPC can be pressed into service in the interest of justice, but the same cannot be supplemented or replaced by the remedy provided in CPC. In other words, the provisions of section 151 CPC cannot be invoked when there is express provision; even under which, relief can be claimed by the parties, the power can only be invoked to supplement the provisions of Code and not to override the express provisions.

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12. In the case in hand, the plaintiff – respondent moved an injunction application (paper no. 6-C), in which date was fixed for

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08.04.2022. In the meantime, just to overcome the same, provision under section 151 CPC was invoked and the impugned order was passed, which cannot be permitted in the eyes of law. The Supreme Court in State of U.P. Vs. Roshan Singh reported in 2008 (2) SCC 488, has held as under:-

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“7. The principles which regulate the exercise of inherent powers by a court have been highlighted in many cases. In matters with which the CPC does not deal with, the Court will exercise its inherent power to do justice between the parties which is warranted under the circumstances and which the necessities of the case require. If there are specific provisions of the CPC dealing with the particular topic and they expressly or necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent powers of the Court cannot be invoked in order to cut across the powers conferred by the CPC. The inherent powers of the Court are not to be used for the benefit of a litigant who has remedy under the CPC. Similar is the position vis-`-vis other statutes. The object of Section 151 CPC is to supplement and not to replace the remedies provided for in the CPC. Section 151 CPC will not be available when there is alternative remedy and same is accepted to be a well-settled ratio of law. The operative field of power being thus restricted, the same cannot be risen to inherent power. The inherent powers of the Court are in addition to the powers specifically conferred to it. If there are express provisions covering a particular topic, such power cannot be exercised in that regard. The section confers on the Court power of making such orders as may be necessary for the ends of justice of the Court. Section 151 CPC cannot be invoked when there is express provision even under which the relief can be claimed by the aggrieved party. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions. The position is not different so far as the other statutes are concerned. Undisputedly, an aggrieved person is not remediless less under the Act.”

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13. Further, the plaintiff – respondent has contended that there is a condition stipulated in the gift deed that the property can only be used for imparting education, but the construction of shop and thereafter, alienation of the same, violates the condition

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mentioned in the gift deed. There is no dispute about the gift deed as to whether the gift deed can be conditional or not. The Supreme Court in V. Sreeramachandra Avadhani (supra) has held as under:-

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“17. Having concluded that the donor Sheikh Hussein through the gift deed dated 26.04.1952, had transferred the corpus of the immovable property to his wife Banu Bibi, it is natural to conclude that the gift deed executed in favour of Banu Bibi, was valid. Likewise, while applying the principles of Muhammedan Law expressed in recognized texts, and the decision of the Privy Council in Nawazish Ali Khan's case (supra) it is inevitable to hold, that all conditions depicted in the gift deed dated 26.04.1952, which curtail use or disposal of the property gifted are to be treated as void. In the above view of the matter, the conditions depicted in the gift deed, that the donee would not have any right to gift or sell the gifted property, or that the donee would be precluded from alienating the gifted immovable property during her life time, are void. Similarly, the depiction in the gift deed, that the gifted immovable property after the demise of the donee, would devolve upon her off spring and in the event of her not bearing any children, the same would return back to the donor or to his successors, would likewise be void.”

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14. The judgement cited by the learned counsel for the respondent in V. Sreeramachandra Avadhani (supra) is of no help in the facts & circumstances of the present case.

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15. In view of the foregoing discussions as well as the law laid down by the Apex Court, the impugned order cannot be sustained. In the result, the petition is allowed. The impugned order dated 28.03.2022 passed by the Civil Judge (JD), Hasanpur, Amroha in Original Suit No. 86 of 2022 is hereby set aside.

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16. However, it will be open for the court below to consider and decide the pending application (paper no. 6-C) under Order 39, Rules 1 & 2 CPC expeditiously in accordance with law.

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Order Date :- 25/ 08/2022 Amit Mishra

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Digitally signed by AMIT KUMAR MISHRA Date: 2022.08.26 13:59:02 IST Reason: Location: High Court of Judicature at Allahabad

Dayanand Inter College v. Smt. Jabbar Fatima and Another

Case brief

What is this about?

What did the court decide?

Dayanand Inter College v. Smt. Jabbar Fatima and Another

Case brief

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