Remanded

Khalil Uddin Khan v. the State of Assam and 4 Ors.

Gauhati HC16 Mar 2018CRP(IO)/111/2016

Case brief

AI extract

What is this about?

Petitioner filed a writ under Article 227 challenging a lower appellate order that set aside an injunction in a possession suit. The High Court ruled it was not liable to interfere but directed the Trial Court to decide the merits of the suit without being influenced by the appellate court's observations on maintainability.

What did the court decide?

Directions to the Trial Court to decide the suit on merits without being influenced by the appellate order's observations on maintainability.

Khalil Uddin Khan Vs the State of Assam and 4 Ors. — Property and Title | Gauhati HC (2018)

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GAHC010235532016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(I/O) 111/2016

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1:KHALIL UDDIN KHAN

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S/O. LT. ABDUL KADIR KHAN, VILL. MOINALA, P.O. ERALIGOOL, P.S. PATHERKANDI, DIST. KARIMGANJ, ASSAM, PIN-788723.

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS

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2:THE DEPUTY COMMISSIONER KARIMGANJ P.O. KARIMGANJ PIN-788710 P.S. and DIST. KARIMGANJ ASSAM.

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3:THE CIRCLE OFFICER NILAM BAZAR CIRCLE P.O. and P.S. NILAMBAZAR DIST. KARIMGANJ ASSAM PIN-788722.

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4:MD. ANCHAR ALI S/O. LT. HAJI ABDUL HAQUE VILL. MOINALA P.O. ERALIGOOL P.S. PATHERKANDI DIST. KARIMGANJ ASSAM PIN-788723.

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5:ABDUL HASIB

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S/O. LT. MASUK AHMED VILL. MOINALA P.O. ERALIGOOL P.S. PATHERKANDI DIST. KARIMGANJ ASSAM PIN-788723

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Advocate for the Petitioner : MR.H DEKA

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Advocate for the Respondent : G.A. ASSAM (R1), MR G UDDIN (R4), MR S Y AHMED (R5)

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BEFORE

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HON BLE MR. JUSTICE KALYAN RAI SURANA

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JUDGMENT

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Date : 16-03-2018

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Heard Mr. R. Sharma, learned Counsel appearing for the petitioner. Also heard Mr. C. K. S. Baruah, learned Junior Govt. Advocate appearing for the respondents No. 1, 2 and 3, i.e., the State of Assam, Deputy Commissioner, Karimganj and the Circle Officer. Also heard Mr. S. Y. Ahmed, learned Counsel appearing for the respondents no. 4 and 5, i.e., the newly impleaded parties, namely, Md. Anchar Ali and Abjul Hasib.

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This application under Article 227 of the Constitution of India is directed against the judgment and order dated 14.06.2016, passed by the learned Civil Judge, Karimganj in Misc. Appeal No. 16 of 2015, by which the judgment and order dated 30.06.2015 passed by the learned Court of Munsiff No. 1, Karimganj, in Misc. Case No. 209 of 2014 was set aside, and thereby the order of an ad-interim injunction directing maintaining of status-quo in respect of the suit land was reversed.

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The case of the petitioner in brief is that he had filed a suit for declaration of his possessory right for the land described in Schedule 2 of the plaint and for confirmation of possession as well as for declaration that the suit land described in Schedule 2 was the homestead land of the petitioner. The petitioner had further prayed for declaration that the notice issued in connection with the Encroachment Case No. 10 of 2014 was illegal, inoperative and for cancelling of the same. The Petitioner had also prayed for permanent

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injunction not to be evicted. Alongwith the suit, the petitioner had filed another application under Order XXXIX Rules 1 & 2 read with Section 151 CPC, praying for ad-interim injunction, inter-alia, seeking protection from his eviction. The said case was registered as Misc. (J.) Case No. 209/2014

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The learned Trial Court by an order dated 13.06.2015, by taking note of the Swaranlipi (agreement) as well as possession certificate of the vendor of the petitioner, as produced by the petitioner, held that the petitioner had a prima facie case for trial and that if no injunction is granted, he would suffer irreparable loss and injury. Further, it was held that the balance of convenience was also in favour of the petitioner. Hence, the parties were directed to maintain the status-quo regarding the nature and feature of the suit land till the disposal of this suit.

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Assailing the said order, the respondents No. 1, 2 and 3 had preferred an appeal, which was registered as Misc. Appeal No. 16 of 2015. Upon hearing the learned Counsel of all sides, the learned first Appellate Court took note of the fact that encroachment Case No. of 10 of 2014 was proceeding against the petitioner and, as such, it was held that learned Trial Court could not sit as an appellate Court or the revisional authority to decide about the legality as to the initiation of the encroachment case and held that petitioner’s allegation was not maintainable and hit by the provisions of the Section 41(b) of the Specific Relief Act, 1963. It was also held that without seeking relief of declaration, the reliefs claimed were barred by Section 34 of the Specific Relief Act. Accordingly, it was held that the petitioner has no prima facie case for injunction, therefore, the order passed by the learned Trial Court was set aside.

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The learned Counsel for the petitioner, by referring to various provisions of the Civil Procedure Code as well as the Specific Relief Act has submitted that the learned First Appellate Court had wrongly relied on the provisions of the Section 41(b) of the Specific Relief Act, because it was not the projected case that the Court deciding the Encroachment Case was either a superior or a subordinate court to the court of learned Munsiff and it was never projected that his suit ought to be considered as an appeal and or revision against initiation of the encroachment cases. Moreover, it is submitted that the learned First Appeal Court by holding that the reliefs were barred by Section 34 of the Specific Relief Act, had non-

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suited the petitioner. Therefore, he has prayed for interference with the impugned order.

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The learned State Counsel as well as the learned Counsel appearing for the respondents No. 4 and 5 had made their argument in support of the impugned judgment and they have referred to their various pleas taken before the learned Courts below and they have made the submission for upholding the order impugned herein.

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At the outset this court would like to observe at this application has been filed under Article 227 of the Constitution of India. However, as the appellate order arose from a challenge to the order injunction, such an appeal is presumed to be an appeal under provision of order XLIII Rule 1(r) CPC. Therefore, under the scheme of the Civil Procedure Code, such an appellate order can only be assailed under Section 115 CPC. However, as this revision is pending for more than a year, this court does not intend to dismiss this application on this ground. Therefore, notwithstanding that this application presented under Article 227 of the Constitution of India is not maintainable, but owing to the pendency of this application for over a year now, this court is not inclined to dismiss this application. Hence, this present order shall not be treated as a precedent in any subsequent proceeding.

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From the perusal of the impugned order, it does not appear that the respondents had taken any steps for rejection of the plaint. The learned First Appellate Court was exercising an appellate jurisdiction under Order XLIII Rule 1(r) CPC, therefore, the learned First Appellate Court ought to have considered the issue relating to grant of ad-interim injunction. In the opinion of this court, the learned first appellate court had an observation as to the non-maintainability of the suit under Section 41(b) and Section 34 of the Specific Relief Act 1963. The cumulative effect of such an observation can amount to non suiting the petitioner in his suit.

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In view of the fact that competent authority is in sesin of the Encroachment Case of 10 of 2014, in the considered opinion of this court, the said authority cannot be prevented from exercising its statutory power under the appropriate provisions of law, however, it goes without saying that the statutory authority is required to deal with issues arising before it in accordance with law. On this count, there appears to be no ground to interfere with the impugned order.

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However, in view of the observations made in the impugned order regarding maintainability, as reflected in first appellate order, which amounts to an observation made on the merit of suit, this court is inclined to direct the learned Trial Court to decide the suit pending before it without being influenced by any of the observations made by the learned first appellate Court in Misc. Appeal of 16 of 2015 or by any observations made by this court, which is for the limited purpose of deciding this application.

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In view of the discussion above, without interfering with the judgment and order dated 14.06.2016, passed by the learned Civil Judge, Karimganj in Misc. Appeal No. 16/2015, this court only inclined to make a clarification to the effect that although the order of reversal injunction by the first appellant court is not interfered with, however, the learned Trial Court shall not be influenced by the observations made therein while deciding the suit on its merit.

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The revisions stand disposed of in accordance with observations made above.

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The parties are left to bear their own cost.

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JUDGE

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Comparing Assistant

Khalil Uddin Khan v. the State of Assam and 4 Ors.

Case brief

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Khalil Uddin Khan v. the State of Assam and 4 Ors.

Case brief

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