Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Petition Under Article 227 Dismissed On Ground Of Alternative Remedy-injunction Application Filed In Regular First Appeal-
JUDGEMENT TITLE : Mohd. Tahir Khan Vs. Mohd. Yunus Khan And Others. On 25/04/2006 By Allahabad High Court
CASE NO : MATTERS UNDER ARTICLE 227 NO. 52 OF 2006
CORAM : Hon'ble Satya Poot Mehrotra,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Civil Misc. Application No. 52 Of 2006
(Under Article 227 Of The Constitution Of India)

Mohd. Tahir Khan......................Applicant/Petitioner (plaintiff)
Versus
Mohd. Yunus Khan And Others.......Respondents.

****
Hon'ble S.P.Mehrotra, J.
The Present Petition /Application Under Article 227 Of The Constitution Of India Has Been Filed, Inter-alia, Praying For Quashing / Setting Aside The Order Dated 17-01-2006 (Annexure 9 To The Petition /Application) Passed By The Learned III Additional District Court, Shahjahanpur.
It Appears That The Petitioner /applicant Herein, As The Plaintiff, Filed A Suit For Partition Against The Respondents Herein, As The Defendants, In Regard To The Properties Mentioned In The Plaint Of The Said Suit.
The Said Suit Was Registered As Suit No. 377 Of 1992.
Copy Of The Plaint Of The Said Suit Has Been Filed As Annexure 1 To The Petition /Application.
It Further Appears That The Said Suit Was Dismissed By The Trial Court By Its Judgment And Order Dated 26-11-1999.
It Further Appears That Against The Said Judgment And Decree Of The Trial Court, The Petitioner / Applicant Filed An Appeal Being Civil Appeal No.136 Of 1999, In The Court Of District Judge, Shahjahanpur.
It Is Further Evident From The Averments Made In Paragraph 7 Of The Petition /Application That The Said Civil Appeal No. 136 Of 1999 Was Transferred For Disposal Before The III Additional District Judge, Shahjahanpur, And The Said Civil Appeal Is Still Pending Before The III Additional District Judge, Shahjahanpur.
Copy Of The Memorandum Of The Said Civil Appeal Has Been Filed As Annexure 2 To The Petition /Application.
It Further Appears That During The Pendency Of The Said Civil Appeal No. 136 Of 1999, An Application Dated 13-01-2000 Under Order XXXIX, Rules 1 And 2 Read With Section 151 Of The Code Of Civil Procedure Was Filed On Behalf Of The Petitioner /applicant, Inter-alia, Praying That The Respondent Nos. 5 To 10, Herein, Be Restrained From Causing Any Destruction To The Joint House T.P. No. 367, Mohalla Mahmand, Jalal Nagar, Shahjahanpur, And From Making Any Alteration In The Said House, And From Alienating The Said House And Its Malwa.
Copy Of The Said Injunction Application Has Been Filed As Annexure 3 To The Petition /Application.
An Affidavit, Sworn On 12-1-2000, Was Also Filed In Support Of The Said Injunction Application, Copy Whereof Has Been Filed As Annexure 4 To The Petition /Application.
It Further Appears That The Lower Appellate Court Passed An Order Dated 20th January, 2000 On The Aforesaid Injunction Application Thereby Restraining The Respondents From Making Any Changes In The Disputed House And From Selling The Disputed House.
Copy Of The Said Order Dated 20th January, 2000 Has Been Filed As Annexure 5 To The Petition /Application.
It Further Appears That The Said Civil Appeal No. 136 Of 1999 Was Dismissed In Default On 11th December, 2001.
It Further Appears That On Restoration Application Filed Thereafter On Behalf Of The Petitioner /applicant, The Said Civil Appeal No. 136 Of 1999 Was Restored By The Order Dated 20th May, 2002.
It Is, Inter-alia, Averred In Paragraph 11 Of The Petition / Application That The Petitioner / Applicant All Along Believed That After Restoration Of Civil Appeal No. 136 Of 1999, The Injunction Order Dated 20th January, 2000 Remained In Operation, And It Is Submitted On Behalf Of The Petitioner /applicant That When Despite The Said Injunction Order Dated 20th January, 2000, The Respondents, Herein, Started Causing Destruction And Making Alteration And Construction In The Disputed House, An Application Being Application No. 51-Ka, Under Section 151 Of The Code Of Civil Procedure Was Filed On Behalf Of The Petitioner/ Applicant.
Thereupon, The Lower Appellate Court (learned III Additional District Judge, Shahjahanpur) Passed An Order Dated 16th December, 2005, Inter-alia, Restraining The Respondents, Herein, From Making Any Alteration In Or Sale Of The Disputed House Till The Next Date Fixed In The Matter, Namely, 25th January, 2006.
Copy Of The Said Order Dated 16-12-2005 Has Been Filed As Annexure 6 To The Petition /Application.
It Further Appears That An Application Dated 17-12-2005, Being Application No. 54-Ka, Was Filed On Behalf Of The Respondents, Inter-alia, Praying For Recall Of The Said Order Dated 16-12-2005.
Copy Of The Said Application No. 54-Ka (Dated 17-12-2005) Has Been Filed As Annexure 7 To The Petition/ Application.
It Further Appears That Another Application Dated 14-01-2006, Being Application No. 60-Ga, Was Filed On Behalf Of The Petitioner/applicant, Inter-alia, Stating That Even Though The Injunction Order Dated 20th January, 2000 Was Still Operative And The Said Injunction Order Dated 20th January, 2000 Was Not Affected After The Restoration Of The Said Civil Appeal No. 136 Of 1999, Still If The Court Was Of The View That In View Of The Dismissal Of The Said Civil Appeal No. 136 Of 1999 In Default, The Said Injunction Order Ceased To Remain Effective, Then In The Alternative, A Clear Order Be Passed For Making The Said Injunction Order Dated 20th January, 2000 Effective So That The Nature Of The Disputed Property Would Not Be Changed.
It Further Appears That Objections Dated 12-01-2006 (61-Ga) Were Filed On Behalf Of The Respondents, Herein, Against The Said Application No. 60-Ga Filed On Behalf Of The Petitioner/ Applicant.
Copy Of The Said Objections Dated 12-01-2006 Has Been Filed As Annexure 8 To The Petition / Application.
It Further Appears That By The Order Dated 17th January, 2006 Passed By The Learned III Additional District Judge, Shahjahanpur, The Said Order Dated 16-12-2005 Was Vacated, And The Said Application No. 51-Ka And The Said Application No. 60-Ga Filed On Behalf Of The Petitioner /applicant, Were Rejected.
Copy Of The Said Order Dated 17th January 2006, As Mentioned Above, Has Been Filed As Annexure 9 To The Petition /Application.
Thereafter, The Petitioner/ Applicant Has Filed The Present Petition /Application Under Article 227 Of The Constitution Of India Seeking The Reliefs, As Mentioned Above.
I Have Heard Sri Santosh Kumar, Learned Counsel For The Petitioner /applicant And Sri K.G. Srivastava, Learned Counsel For The Caveators / Respondents, And Perused The Record.
It Is Submitted By Sri K.G. Srivastava, Learned Counsel For The Caveators/Respondents That The Impugned Order Dated 17th January, 2006 Is Appealable Under Order XLIII, Rule 1 (r) Read With Section 104 (1) And Section 107 (2) Of The Code Of Civil Procedure, And In The Circumstances, The Petition /Application Under Article 227 Of The Constitution Of India Is Liable To Be Dismissed On The Ground Of Availability Of Alternative Remedy.
Sri Srivastava Has Placed Reliance On A Decision Of Full Bench Of This Court In Zila Parishad, Budaun And Others Vs. Brahma Rishi Sharma, AIR 1970 All. 376 (F.B.).
In Reply, Sri Santosh Kumar, Learned Counsel For The Petitioner /applicant Submits That No Appeal Lies Against The Impugned Order Dated 17th January, 2006 In View Of The Bar Created By Sub-section (2) Of Section 104 Of The Code Of Civil Procedure.
Reference Is Made To A Full Bench Decision Of This Court In M/s. Jupiter Chit Fund (Pvt.) Ltd. Vs. Dwarka Diesh Dayal & Others, 1979 All. L.J. 685 (FB).
I Have Considered The Submissions Made By The Learned Counsel For The Parties.
In Order To Appreciate The Submissions Made By The Learned Counsel For The Parties, It Is Necessary To Refer To Certain Provisions Of The Code Of Civil Procedure.
Section 96 Of The Code Of Civil Procedure, Which Deals With Appeal From Original Decree, Provides As Follows :
"96. Appeal From Original Decree.--(1) Save Where Otherwise Expressly Provided In The Body Of This Code Or By Any Other Law For The Time Being In Force, An Appeal Shall Lie From Every Decree Passed By Any Court Exercising Original Jurisdiction To The Court Authorised To Hear Appeals From The Decisions Of Such Court.
(2) An Appeal May Lie From An Original Decree Passed Ex Parte.
(3) No Appeal Shall Lie From A Decree Passed By The Court With The Consent Of Parties.
[(4) No Appeal Shall Lie, Except On A Question Of Law, From A Decree In Any Suit Of The Nature Cognizable By Courts Of Small Causes, When The Amount Or Value Of The Subject-matter Of The Original Suit Does Not Exceed [ten] Thousand Rupees.]"
Section 104 Of The Code Of Civil Procedure Deals With Orders From Which Appeal Lies. The Said Section 104 Is As Follows:
"104. Orders From Which Appeal Lies.--(1) An Appeal Shall Lie From The Following Orders, And Save As Otherwise Expressly Provided In The Body Of This Code Or By Any Law For The Time Being In Force, From No Other Orders :-
[* * *]
[(ff) An Order Under Section 35-A;]
[ffa] An Order Under Section 91 Or Section 92 Refusing Leave To Institute A Suit Of The Nature Referred To In Section 91 Or Section 92, As The Case May Be;]
(g) An Order Under Section 95 ;
(h) An Order Under Any Of The Provisions Of This Code Imposing A Fine Or Directing The Arrest Or Detention In The Civil Prison Of Any Person Except Where Such Arrest Or Detention Is In Execution Of A Decree ;
(i) Any Order Made Under Rules From Which An Appeal Is Expressly Allowed By Rules :
[Provided That No Appeal Shall Lie Against Any Order Specified In Clause (ff) Save On The Ground That No Order, Or An Order For The Payment Of A Less Amount, Ought To Have Been Made.]
(2) No Appeal Shall Lie From Any Order Passed In Appeal Under This Section."

Order XLIII, Rule 1 Deals With Appealable Orders. Clause (r) Of Rule 1 Of Order XLIII Is As Follows :
"1. Appeals From Orders.--An Appeal Shall Lie From The Following Orders Under The Provisions Of Section 104, Namely :-
(a)....
(b)....
(c)....
(d)....
(e).....
(f).....
(g).....
(h).....
(i).....
(j).....
[(j A)...
(k)....
(l)....
(m)....
(n).....
[(na).....
(o)....
(p)...
(q).....
(r) An Order Under Rule 1, Rule 2, [Rule 2-A], Rule 4 Or Rule 10 Of Order XXXIX;
(s).....
(t).....
(u).....
(v).....
(w)........................................................"
Section 106 Of The Code Of Civil Procedure Deals With The Courts Empowered To Hear The Appeals. The Said Section 106 Lays Down As Follows :
"106. What Courts To Hear Appeals.--- Where An Appeal From Any Order Is Allowed It Shall Lie To The Court To Which An Appeal Would Lie From The Decree In The Suit In Which Such Order Was Made, Or Where Such Order Is Made By A Court (not Being A High Court) In The Exercise Of Appellate Jurisdiction, Then To The High Court."
Section 107 Of The Code Of Civil Procedure Deals With The Powers Of Appellate Court. The Said Section 107 Is Quoted Below :
"107. Powers Of Appellate Court.---(1) Subject To Such Conditions And Limitations As May Be Prescribed, An Appellate Court Shall Have Power -
(a) To Determine A Case Finally ;
(b) To Remand A Case ;
(c) To Frame Issues And Refer Them For Trial ;
(d) To Take Additional Evidence Or To Require Such Evidence To Be Taken.
(2) Subject As Aforesaid, The Appellate Court Shall Have The Same Powers And Shall Perform As Nearly As May Be The Same Duties As Are Conferred And Imposed By This Code On Courts Of Original Jurisdiction In Respect Of Suits Instituted Therein."
Rule 1 Of Order XXXIX Of The Code Of Civil Procedure Deals With The Cases In Which Temporary Injunction May Be Granted.
The Said Rule 1 Is Reproduced Below :
"1. Cases In Which Temporary Injunction May Be Granted.--Where In Any Suit It Is Proved By Affidavit Or Otherwise -
(a) That Any Property In Dispute In A Suit Is In Danger Of Being Wasted, Damaged Or Alienated By Any Party To The Suit, Or Wrongfully Sold In Execution Of A Decree, Or
(b) That The Defendant Threatens, Or Intends, To Remove Or Dispose Of His Property With A View To [defrauding] His Creditors,
[(c) That The Defendant Threatens To Dispossess The Plaintiff Or Otherwise Cause Injury To The Plaintiff In Relation To Any Property In Dispute In The Suit,]
the Court May By Order Grant A Temporary Injunction To Restrain Such Act, Or Make Such Other Order For The Purpose Of Staying And Preventing The Wasting, Damaging, Alienation, Sale, Removal Or Disposition Of The Property [or Dispossession Of The Plaintiff, Or Otherwise Causing Injury To The Plaintiff In Relation To Any Property In Dispute In The Suit] As The Court Thinks Fit, Until The Disposal Of The Suit Or Until Further Orders."
Rule 2 Of Order XXXIX Of The Code Of Civil Procedure Provides For Injunction To Restrain Repetition Or Continuance Of Breach. The Said Rule 2 Is As Follows :
"2.Injunction To Restrain Repetition Or Continuance Of Breach.--(1) In Any Suit For Restraining The Defendant From Committing A Breach Of Contract Or Other Injury Of Any Kind, Whether Compensation Is Claimed In The Suit Or Not, The Plaintiff May, At Any Time After The Commencement Of The Suit, And Either Before Or After Judgment, Apply To The Court For A Temporary Injunction To Restrain The Defendant From Committing The Breach Of Contract Or Injury Complained Of , Or Any Breach Of Contract Or Injury Of A Like Kind Arising Out Of The Same Contract Or Relating To The Same Property Or Right.
(2) The Court May By Order Grant Such Injunction, On Such Terms As To The Duration Of The Injunction, Keeping An Account, Giving Security, Or Otherwise, As The Court Thinks Fit.
[* * *]"
Rule 4 Of Order XXXIX Of The Code Of Civil Procedure Provides For Discharge, Variation Or Setting Aside Of The Order For Injunction. The Said Rule 4 Is As Under :
"4. Order For Injunction May Be Discharged, Varied Or Set Aside.---Any Order For An Injunction May Be Discharged, Or Varied, Or Set Aside By The Court, On Application Made Thereto By Any Party Dissatisfied With Such Order:
[Provided That If In An Application For Temporary Injunction Or In Any Affidavit Supporting Such Application, A Party Has Knowingly Made A False Or Misleading Statement In Relation To A Material Particular And The Injunction Was Granted Without Giving Notice To The Opposite Party, The Court Shall Vacate The Injunction Unless, For Reasons To Be Recorded, It Considers That It Is Not Necessary So To Do In The Interest Of Justice:
Provided Further That Where An Order For Injunction Has Been Passed After Giving To A Party An Opportunity Of Being Heard, The Order Shall Not Be Discharged, Varied Or Set Aside On The Application Of That Party Except Where Such Discharge, Variation Or Setting Aside Has Been Necessitated By A Change In The Circumstances, Or Unless The Court Is Satisfied That The Order Has Caused Undue Hardship To That Party.]"
A Perusal Of The Provisions Of Clause (i) Of Sub-section (1) Of Section 104 Read With Rule 1 Of Order XLIII Shows That The Said Provisions Provide For Appeal Against The Orders Enumerated In Clauses (a) To (w) Of Rule 1 Of Order XLIII Of The Code Of Civil Procedure. In Other Words, If An Order Of The Nature Covered Under Any Of The Clauses (a) To (w) Of Rule 1 Of Order XLIII Of The Code Of Civil Procedure Is Passed By A Court Then An Appeal Against Such Order Will Lie To The Higher Court Under Section 104 (1) (i) Read With Order XLIII, Rule 1 Of The Code Of Civil Procedure.
Thus, If An Order Is Passed By The Trial Court During The Pendency Of A Suit, And Such Order Is Covered Under Any Of The Clauses (a) To (w) Of Rule 1 Of Order XLIII Of The Code Of Civil Procedure, Then An Appeal Will Lie Against Such An Order To The Court Mentioned In Section 106 Of The Code Of Civil Procedure.
Now Suppose An Appellate Court While Dealing With An Appeal Filed Under Section 104 (1) Read With Order XLIII, Rule 1 Of The Code Of Civil Procedure Against An Order Passed By The Trial Court In A Pending Suit, Passes An Order, And Such Order Passed By The Appellate Court In Such An Appeal Is Covered Under Any Of The Clauses (a) To (w) Of Rule 1 Of Order XLIII Of The Code Of Civil Procedure, Then The Question Arises As To Whether Any Further Appeal Against Such An Order Of The Appellate Court May Be Filed Under Section 104 (1) Read With Order XLIII, Rule 1 Of The Code Of Civil Procedure.
The Answer To The Said Question Is Provided By Sub-section (2) Of Section 104 Of The Code Of Civil Procedure Which Lays Down That "no Appeal Shall Lie From Any Order Passed In Appeal Under This Section".
Hence, The Answer To The Above Question Will Evidently Be In The Negative. In Other Words, In Case An Appellate Court While Dealing With An Appeal Filed Under Section 104 (1) Read With Order XLIII, Rule 1 Of The Code Of Civil Procedure Against An Order Passed By The Trial Court In A Pending Suit, Passes An Order, And Such Order Passed By The Appellate Court In Such An Appeal Is Covered Under Any Of The Clauses (a) To (w) Of Rule 1 Of Order XLIII, Then No Further Appeal Under Section 104 (1) Read With Order XLIII, Rule 1 Of The Code Of Civil Procedure Will Lie Against Such An Order Of The Appellate Court In View Of The Bar Created By Sub-section (2) Of Section 104 Of The Code Of Civil Procedure.
Let Us Now Consider Another Situation Suppose A Suit Has Been Finally Decided By The Trial Court, And A Regular First Appeal Against The Decree Of The Trial Court Is Pending Under Section 96 Of The Code Of Civil Procedure Before The Appellate Court.
Now Suppose The Appellate Court, During The Pendency Of Such A Regular First Appeal Filed Under Section 96 Of The Code Of Civil Procedure, Passes An Order, And Such Order Is Covered Under Any Of The Clauses (a) To (w) Of Rule 1 Of Order XLIII Of The Code Of Civil Procedure. Question Arises As To Whether Against Such An Order Passed By The Appellate Court, An Appeal Can Be Filed Under Section 104 (1) Read With Order XLIII, Rule 1 Of The Code Of Civil Procedure.
I Am Of The Opinion That In Such A Situation, Where The Appellate Court During The Pendency Of The Regular First Appeal Before It Under Section 96 Of The Code Of Civil Procedure Passes An Order Of The Nature Mentioned In Any Of The Clauses (a) To (w) Of Rule 1 Of Order XLIII, Then An Appeal Will Lie Against Such An Order Under Section 104 (1) Read With Order XLIII, Rule 1 Of The Code Of Civil Procedure. Such An Appeal Will Lie To The High Court In View Of The Provisions Of Section 106 Of The Code Of Civil Procedure.
As Regards The Submission Made By Sri Santosh Kumar, Learned Counsel For The Petitioner /applicant That In Such A Situation The Appeal May Not Lie In View Of The Bar Created By Sub-section (2) Of Section 104 Of The Code Of Civil Procedure, I Am Unable To Accept The Same.
Sub-section (2) Of Section 104 Of The Code Of Civil Procedure, As Noted Above, Provides That "no Appeal Shall Lie From Any Order Passed In Appeal Under This Section."
The Words "under This Section" Occurring In Sub-section (2) Of Section 104 Of The Code Of Civil Procedure Are Significant. The Said Words Evidently Show That The Bar Created By Sub-section (2) Of Section 104 Applies Where An Appeal Has Been Filed "under This Section", I.e. Under Section 104 Of The Code Of Civil Procedure, And An Order Is Passed In Such An Appeal. Accordingly, No Further Appeal Will Lie Against Such An Order Passed In Appeal Under Section 104 Of The Code Of Civil Procedure.
Sub-section (2) Of Section 104 Of The Code Of Civil Procedure, Therefore, Applies In Case An Order Is Passed In An Appeal Under Section 104 Of The Code Of Civil Procedure. Sub-section (2) Of Section 104 Of The Code Of Civil Procedure Has No Application Where An Order Is Passed In An Appeal, Which Has Not Been Filed Under Section 104 Of The Code Of Civil Procedure, But Under Any Other Provision Of The Code Of Civil Procedure.
Thus, In Case, A Regular First Appeal Has Been Filed Under Section 96 Of The Code Of Civil Procedure, And The Appellate Court Passes An Order During The Pendency Of Such A Regular First Appeal, Then Such An Order Will Not Be Covered Under Sub-section (2) Of Section 104 Of The Code Of Civil Procedure. This Is Because, Sub- Section (2) Of Section 104 Of The Code Of Civil Procedure Is Confined Only To An Order Passed In An Appeal Filed Under Section 104 Of The Code Of Civil Procedure.
Therefore, In Case An Appellate Court Is Dealing With A Regular First Appeal Under Section 96 Of The Code Of Civil Procedure, And During The Pendency Of Such An Appeal, The Appellate Court Passes An Order Which Is Covered Under Any Of The Clauses (a) To (w) Of Rule 1 Of Order XLIII, Of The Code Of Civil Procedure, Then An Appeal May Be Filed Against Such An Order Under Section 104 (1) Read With Order XLIII, Rule 1 Of The Code Of Civil Procedure, And The Bar Created By Sub-section (2) Of Section 104 Of The Code Of Civil Procedure Will Not Apply To Such An Appeal.
The Above Conclusions Are Supported By The Provisions Of Section 106 Of The Code Of Civil Procedure.
A Perusal Of Section 106 Of The Code Of Civil Procedure Shows That An Order Covered Under Section 104 (1) Read With Order XLIII, Rule 1 Of The Code Of Civil Procedure May Be Passed By A Court In The Exercise Of Appellate Jurisdiction,and An Appeal Against Such An Order Will Lie To The High Court.
The Above Conclusions May Be Explained By An Example. Suppose An Injunction Order Sought Under Order XXXIX, Rules 1 And 2 Of The Code Of Civil Procedure Is Refused By The Trial Court During The Pendency Of A Suit Before It. An Appeal Will Evidently Lie Under Section 104 (1) Read With Clause (r) Of Rule 1 Of Order XLIII Of The Code Of Civil Procedure Against Such Order Refusing To Grant Injunction, Passed By The Trial Court. Such Appeal Will Lie To The Court Mentioned In Section 106 Of The Code Of Civil Procedure.
Now Suppose The Appellate Court While Dealing With Such An Appeal Filed Under Section 104 (1) Read With Order XLIII, Rule 1, Clause (r) Of The Code Of Civil Procedure Passes An Order Allowing The Appeal, Setting Aside The Order Of The Trial Court, And Granting Injunction In Favour Of The Appellant.
Such An Order Passed By The Appellate Court Will Apparently Be Covered Under Section 104 (1) Read With Order XLIII, Rule 1, Clause (r) Of The Code Of Civil Procedure, And Therefore, Such An Order Will Be Appealable Under The Said Provisions. However, In View Of The Bar Created By Sub-section (2) Of Section 104 Of The Code Of Civil Procedure, No Further Appeal May Be Filed Against The Said Order Passed By The Appellate Court.
Let Us Now Take An Example Where The Trial Court Has Finally Decided The Suit, And A Regular First Appeal Under Section 96 Of The Code Of Civil Procedure Has Been Filed Against The Decree Of The Trial Court. During The Pendency Of Such Regular First Appeal, The Appellate Court Passes An Order Granting Injunction As Mentioned In Order XXXIX, Rules 1 And 2 Of The Code Of Civil Procedure.
It May Be Noted That An Appellate Court, During The Pendency Of A Regular First Appeal Under Section 96 Of The Code Of Civil Procedure, Has Power To Grant Injunction Under Order XXXIX, Rules 1 And 2 Of The Code Of Civil Procedure In View Of The Provisions Of Sub-section (2) Of Section 107 Of The Code Of Civil Procedure Which, Inter-alia, Provides That The Appellate Court Shall Have The Same Powers And Shall Perform As Nearly As May Be The Same Duties As Are Conferred And Imposed By The Code Of Civil Procedure On Courts Of Original Jurisdiction In Respect Of Suits Instituted Therein.
Question Arises As To Whether An Appeal May Be Filed Under Section 104 (1) Read With Order XLIII, Rule 1, Clause (r) Of The Code Of Civil Procedure Against Such Order For Injunction Passed By The Appellate Court Under Order XXXIX, Rules 1 And 2 Of The Code Of Civil Procedure During The Pendency Of Regular First Appeal Under Section 96 Of The Code Of Civil Procedure.
In View Of The Conclusions Drawn Above, An Appeal May Be Filed Under Section 104 (1) Read With Order XLIIII, Rule 1 (r) Of The Code Of Civil Procedure Against Such An Order Of The Appellate Court, And The Bar Created By Sub-section (2) Of Section 104 Of The Code Of Civil Procedure Will Not Apply In Such A Situation.
Certain Judicial Decisions Which Support The Above Conclusions, May Be Referred To.
In Dalip Singh And Others Vs. Kundan Singh And Others, AIR 1914 Allahabad 128, A Suit For Pre-emption Was Brought In The Court Of Munsif. The Valuation Of The Property, Possession Whereof Was Sought, Was Mentioned As Rs. 800/-. The Defendants Took Many Defences Including An Objection That The Real Value Of The Property Was Rs. 1500/- And The Munsif's Court Had No Jurisdiction To Entertain The Suit. The Munsif Framed All The Issues In The Case, Took Evidence Thereon, Held That The Value Of The Property Was Rs. 1500/- But In Spite Of That Proceeded To Decide All The Issues And Dismissed The Suit. The Claim For Pre-emption Made By The Plaintiff Was Based On Village Custom, And The Munsif's Court Held That The Custom Did Not Exist.
The Plaintiff Filed Appeal Urging That The Custom Of Pre-emption Did Exist And That The True Value Of The Property Was Rs. 1800/-.
The Lower Appellate Court Decided That The Value Of The Property Was Rs. 1500/-. It Thereupon Without Deciding Any Other Point, Set Aside The Decree Of The Munsif's Court And Directed The Plaint To Be Returned To The Plaintiff For Presentation In The Proper Court.
Thereupon, The Defendants Filed Appeal Before This Court Urging That The Lower Appellate Court Should Have Taken Action Under Section 11, Suits Valuation Act, And Ought Not To Have Returned The Plaint As It Had Done.
A Preliminary Objection Was Taken That No Appeal Lay To This Court From The Order Of The Lower Appellate Court Directing The Plaint To Be Returned.
A Division Bench Of This Court Rejected The Preliminary Objection. It Was Held As Follows:
"........................................A Preliminary Objection Is Taken That No Appeal Lies To This Court From The Order Of The Lower Appellate Court Directing The Plaint To Be Returned. The Point Is One Which Was Considered By A Full Bench Of This Court In Wahidullah V. Kanhaya Lal, [1903] 25 All. 174 = (1902) A. W.N. 222. The Present Code Has Made No Alteration In This Respect And In Accordance With That Ruling It Is Clear That An Appeal Does Lie To This Court..........................."
After Rejecting The Preliminary Objection, The Division Bench Set Aside The Order Of The Lower Appellate Court And Remanded The Case For Disposal By It, Having Due Regard To The Provisions Of The Suits Valuation Act As Mentioned In The Judgment Of The Division Bench.
In Jaggannath Vs. Union Of India, 1975 A.L.J. 591, A Suit Was Filed Claiming The Reliefs (1) For A Declaration That The Order Of Removal Of The Plaintiff From Service Was Invalid, (2) That A Decree For Rs.5,587.97 Be Passed As Arrears Of Wages, And (3) That A Mandatory Injunction Be Issued Directing The Defendant To Reinstate The Plaintiff In Service.
The Trial Court Decreed The Suit. However, On Appeal, The Lower Appellate Court Held That The Suit Was Not Cognizable By The Civil Court And Directed That The Plaint Be Returned For Presentation To The Proper Authority.
Thereupon, The Plaintiff Filed A Second Appeal Before This Court. This Court Held That The Order Of The Lower Appellate Court Was Not Appealable As A Decree But Was Appealable As An Order Under Order XLIII, Rule 1 (a) Of The Code Of Civil Procedure. Accordingly, This Court Entertained The Said Second Appeal As An Appeal From Order.
This Court Observed As Follows (paragraphs 2 And 3 Of The Said A.L.J.) :
"2. The Trial Court Decreed The Suit Holding That The Order Dated 13th December, 1967 Terminating The Plaintiff's Service Was Illegal And Ultra Vires. A Mandatory Injunction Was Also Issued Commanding The Defendant To Reinstate The Plaintiff In Service. The Trial Court Also Granted A Decree For Recovery Of The Amount Claimed As Arrears Of Wages For The Period December 16, 1957 And February 14, 1961. On Appeal The Learned Additional District Judge Held That The Suit Was Not Cognizable By The Civil Court And Directed That The Plaint Be Returned For Presentation To The Proper Authority.
3. The Impugned Order Of The Learned Additional District Judge Dated 17-3-1969 Is Not Appealable As A Decree. The Suit Of The Plaintiff Has Not Been Dismissed. The Impugned Order Is In The Nature Of An Order Under Rule 10, Order VII, C.P.C. However, That Order Would Be Appealable As An Order Under Order XLIII, Rule 1(a), C.P.C. And I Entertain The Present Appeal As An Appeal From Order."
In Zila Parishad, Budaun & Others Vs. Brahma Rishi Sharma, AIR 1970 Allahabad 376 (F.B.) (supra), Relied Upon By Sri K.G. Srivastava, Learned Counsel For The Caveators/Respondents, A Full Bench Of This Court Was, Inter-alia, Dealing With The Question As To Whether An Ex Parte Order Issuing Temporary Injunction Under Order XXXIX, Rules 1 And 2 Of The Code Of Civil Procedure Was Appealable Under Order XLIII Rule 1 (r) Of The Code Of Civil Procedure. The Full Bench Of This Court Held That An Ex Parte Order Issuing Temporary Injunction Under Order XXXIX, Rules 1 And 2 Of The Code Of Civil Procedure Against The Defendants Was Appealable Under Order XLLIII, Rule 1 (r) Of The Code Of Civil Procedure. It Was Observed As Follows (Paragraph 18 Of The Said A.I.R.):
"18. We Are Unable To Accept This Submission Of The Learned Counsel For The Respondents. As Already Discussed Above, Once The Court, After Perusing The Application And Affidavit, Comes To The Conclusion That The Case Is A Fit One In Which Temporary Injunction Should Be Issued Ex Parte The Court Takes A Final Decision In The Matter For The Time Being And The Expression Of This Decision In Our Opinion Is A Final Order For The Duration It Is Passed. Such An Order Is Contemplated By Rules 1 And 2 Of Order 39, C.P.C. We Have Looked Into The Authorities Referred To Above, But They Are Not Applicable To The Facts Of This Case And They Have Little Bearing On The Precise Point Raised By The Learned Counsel For The Respondents."
Let Us Now Consider The Decision In M/s. Jupiter Chit Fund (Pvt.) Ltd. Vs. Dwarka Diesh Dayal & Others,1979 A.L.J. 685 (F.B.) (supra), Relied Upon By Sri Santosh Kumar, Learned Counsel For The Petitioner/applicant. In The Said Case, A Full Bench Of This Court Was Dealing With Section 115 Of The Code Of Civil Procedure, As Amended By The State Legislature Of Uttar Pradesh From Time To Time.
Section 115 Of The Code Of Civil Procedure Conferred Powers Of Revision On The High Court Alone. The State Legislature Of Uttar Pradesh Amended Section 115 Of The Code Of Civil Procedure In 1970, 1972 And 1973.
Section 115, As Amended In 1972, Was As Follows :
"The High Court In Cases Arising Out Of Original Suits Of The Value Of Twenty Thousand Rupees And Above, And The District Court In Any Other Case May Call For The Record Of Any Case Which Has Been Decided By Any Court Subordinate To Such High Court Or District Court, As The Case May Be, And In Which No Appeal Lies Thereto, And If Such Subordinate Court Appears :
(a) To Have Exercised A Jurisdiction Not Vested In It By Law, Or
(b) To Have Failed To Exercise A Jurisdiction So Vested, Or
(c) To Have Acted In The Exercise Of Its Jurisdiction Illegally And With Material Irregularity,
the High Court Or The District Court May Make Such Order In The Case As It Thinks Fit."
In 1973, The Following Proviso Was Added In Section 115, As Amended In Uttar Pradesh:
"Provided That In Respect Of Cases Decided Before The 20th Day Of September, 1972, And Also All Cases Arising Out Of Original Suits Of Any Valuation Decided By The District Court, The High Court Alone Shall Be Competent To Make An Order Under This Section."
One Of The Questions Referred To The Full Bench Was:
"Whether The Phrase ''case Arising Out Of An Original Suit' Occurring In Section 115 Of The Code Of Civil Procedure Covers Orders Passed In An Appeal Or Revision?"
The Full Bench Answered The Said Question In The Negative.
It Was Observed As Follows (paragraphs 22 And 23 Of The Said A.L.J.) :
"22. An Appeal Or A Revision Is For Some Purposes Treated As A Continuation Of A Suit. The Appeal Or The Revision Is The Case Which Arises Out Of The Suit. But When The Appeal Or The Revision Is Decided, Such Decision Creates A Different Or A Fresh Case Which Arises Out Of The Appeal Or The Revision. It Has An Identity And Existence Different And Apart From The Case Which Arose Out Of The Suit.
23. It Is Settled Law That A Judicial Order Passed By The Trial Court Merges In The Order Passed By The Appellate Or Revisional Court: Shankar Ramchandra V. Krishnaji Dattatraya (AIR 1970 SC 1). How Can It Be Said That An Appellate Or Revisional Decision In Which The Decision Of The Trial Court Has Merged, Is Still A Case Arising Out Of The Original Suit. After Merger, That Case, I.e. The Decision Arising Out Of The Original Suit Vanishes. The Decision Of The Appeal Or Revision Brings Into Existence A Case Which Can Properly Be Said To Be Arising Out Of The Appeal Or Revision. The Decision Of An Appeal Or Revision Is Hence Not Amenable To The Revisional Jurisdiction Under S. 115 Even After The Amendment In 1973."
It Will, Thus, Be Noticed That The Full Bench In M/s Jupiter Chit Fund (Pvt.) Ltd. Case, 1979 A.L.J. 685 (F.B.) (supra) Was Dealing With The Phrase "case Arising Out Of An Original Suit" Occurring In Section 115 Of The Code Of Civil Procedure, As Amended In Uttar Pradesh. The Full Bench Was Not Considering The Provisions Of Section 104 Of The Code Of Civil Procedure, Which Are Under Consideration In The Present Case.
Therefore, I Am Of The Opinion That The Said Full Bench Decision Is Not Applicable To The Question Involved In The Present Case.
Keeping In View The Legal Position, As Mentioned Above, Let Us Now Consider The Facts And Circumstances Of The Present Case In Order To Decide The Preliminary Objection Raised By The Learned Counsel For The Caveators/Respondents Regarding Availability Of Alternative Remedy Of Appeal Against The Impugned Order Dated 17th January, 2006.
As Noted In The Earlier Part Of The Judgment, The Petitioner/applicant Herein, As The Plaintiff, Filed The Said Suit No. 377 Of 1992 For Partition Against The Respondents Herein, As The Defendants, In Regard To The Properties Mentioned In The Plaint Of The Said Suit.
By The Judgment And Order Dated 26-11-1999, The Trial Court Dismissed The Said Suit.
Thereupon, The Said Civil Appeal No. 136 Of 1999 Was Filed Against The Said Judgment And Decree Of The Trial Court.
The Said Civil Appeal Was Evidently A Regular First Appeal Under Section 96 Of The Code Of Civil Procedure.
During The Pendency Of The Said Civil Appeal, An Injunction Order Dated 20-01-2000 Was Passed By The Lower Appellate Court On An Application Dated 13-01-2000 Under Order XXXIX, Rules 1 And 2 Read With Section 151 Of The Code Of Civil Procedure.
The Said Civil Appeal Was Dismissed In Default On 11th December, 2001. However, By The Order Dated 20th May, 2002, The Said Civil Appeal Was Restored.
As Is Further Evident From The Narration Of Facts In The Earlier Part Of This Judgment, An Application No. 51-Ka, Purporting To Be Under Section 151 Of The Code Of Civil Procedure, Was Filed On Behalf Of The Petitioner/applicant. Thereupon, The Lower Appellate Court (learned III Additional District Judge, Shahjahanpur) Passed An Order Dated 16th December, 2005, Inter-alia, Restraining The Respondents, Herein, From Making Any Alteration In Or Sale Of The Disputed House Till The Next Date Fixed In The Matter, Namely, 25th January, 2006.
The Said Order Dated 16th December, 2005 Was Evidently An Injunction Order Passed By The Lower Appellate Court Under Order XXXIX, Rules 1 And 2 Read With Section 107 (2) Of The Code Of Civil Procedure.
An Application Dated 17-12-2005, Being Application No. 54-Ka, Was Filed On Behalf Of The Respondents, Inter-alia, Praying For Recall Of The Said Order Dated 16-12-2005.
As Noted Earlier, By The Impugned Order Dated 17-01-2006, The Said Order Dated 16-12-2005 Was Vacated. Such An Order Vacating The Injunction Order Dated 16-12-2005 And Rejecting The Said Application 51-Ka Would Evidently Be An Order Under Order XXXIX, Rule 4 Read With Section 107 (2) Of The Code Of Civil Procedure Passed By The Lower Appellate Court During The Pendency Of The Regular First Appeal Under Section 96 Of The Code Of Civil Procedure, Namely Civil Appeal No. 136 Of 1999.
Hence, An Appeal Would Lie Under Order XLIII, Rule 1 (r) To This Court Against The Impugned Order Dated 17-01-2006 Passed By The Lower Appellate Court Vacating The Injunction Order Dated 16-12-2005 And Rejecting The Said Application No. 51-Ka.
Further, As Noted Earlier, An Application No. 60-Ga Was Filed On Behalf Of The Petitioner/applicant, Inter-alia, Stating That Even Though The Injunction Order Dated 20-01-2000 Was Still Operative And The Said Injunction Order Dated 20-01-2000 Was Not Affected After The Restoration Of The Said Civil Appeal No. 136 Of 1999, Still If The Court Was Of The View That In View Of The Dismissal Of The Said Civil Appeal No. 136 Of 1999 In Default, The Said Injunction Order Ceased To Remain Effective, Then In The Alternative, A Clear Order Be Passed For Making The Said Injunction Order Dated 20-01-2000 Effective So That The Nature Of The Disputed Property Would Not Be Changed.
Objections Dated 12-01-2006 (61-Ga) Were Filed On Behalf Of The Respondents, Herein, Against The Said Application No. 60-Ga Filed On Behalf Of The Petitioner/applicant.
In My Opinion, The Said Application No. 60-Ga Filed On Behalf Of The Petitioner/applicant Is, In Substance, An Application For Grant Of Fresh Injunction Order In Case, The Lower Appellate Court Was Of The View That In View Of The Dismissal Of The Said Civil Appeal No. 136 Of 1999 In Default, The Injunction Order Dated 20-01-2000 Ceased To Remain Effective. Thus, The Said Application No. 60-Ga Is, In Substance, An Application For Grant Of Injunction Under Order XXXIX, Rules 1 And 2 Read With Section 107 (2) Of The Code Of Civil Procedure.
By The Impugned Order Dated 17-1-2006, The Said Injunction Application No. 60-Ga Was Rejected By The Lower Appellate Court.
Such An Order Passed By The Lower Appellate Court Rejecting The Said Injunction Application No. 60-Ga Would Evidently Be An Order Under Order XXXIX, Rules 1 And 2 Read With Section 107 (2) Of The Code Of Civil Procedure Passed By The Lower Appellate Court During The Pendency Of The Regular First Appeal Under Section 96 Of The Code Of Civil Procedure, Namely Civil Appeal No. 136 Of 1999.
Therefore, In View Of The Legal Position Discussed Above, An Appeal Would Lie To This Court Under Order XLIII, Rule 1 (r) Of The Code Of Civil Procedure Against The Impugned Order Dated 17-1-2006 Passed By The Lower Appellate Court Rejecting The Said Injunction Application No. 60-Ga.
In View Of The Above, It Is Evident That An Appeal Under Order XLIII, Rule (1) (r) Of The Code Of Civil Procedure Lies To This Court Against The Impugned Order Dated 17-01-2006 Passed By The Lower Appellate Court.
In The Circumstances, I Am Of The Opinion That The Application /Petition Under Article 227 Of The Constitution Of India Filed By The Petitioner/applicant Is Liable To Be Dismissed On The Ground Of Availability Of Alternative Remedy To The Petitioner/applicant.
The Petition/Application Under Article 227 Of The Constitution Of India Is, Accordingly, Dismissed On The Ground Of Availability Of Alternative Remedy To The Petitioner/applicant.
It Is Made Clear That I Have Refrained From Expressing Any Opinion On The Question As To Whether Or Not, The Injunction Order Dated 20-01-2000 Remained Effective After The Restoration Of The Said Civil Appeal No. 136 Of 1999 As The Petitioner/applicant May Raise The Said Question While Pursuing The Alternative Remedy Available To Him.

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