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Cites 5 docs
Section 9 in the Drugs (Control) Act, 1950
The Code Of Civil Procedure (Amendment) Act, 2002
The Managing Director (Mig) ... vs Ajit Prasad Tarway on 5 November, 1971
Section 9 in The Code Of Civil Procedure (Amendment) Act, 2002
the Drugs (Control) Act, 1950

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Patna High Court
Smt. Bhikhani Devi And Ors. vs Amar Lal on 10 May, 2006
Equivalent citations: AIR 2006 Pat 141
Author: N P Singh
Bench: N P Singh

JUDGMENT

Navaniti Prasad Singh, J.

Page 1106

1. The three defendants are the petitioners before this Court and this revision application has been filed against the appellate order by which the order of the trial Court has been reversed in an injunction matter. The trial Court had refused interim injunction. The appellate Court has granted injunction in a very peculiar form. The opposite party is the plaintiff who had appealed against refusal of injunction. Shri S.S. Dwivedi, learned Senior Counsel appears on behalf of defendants-petitioners and Shri S.K. Majumdar, learned Senior Counsel appears on behalf of plaintiff-opposite party. Heard the parties.

2. The plaintiff filed Title Suit No. 487 of 1999 in the Court of Sub Judge I, the plaint whereof is Annexure-1. The relief claimed was for a direction to the defendants to repair the shop failing which permit the plaintiff to repair the shop and further to injunct the defendants from letting out the shop to another. On the face of it, there was apparent contradiction. If the prayer was for the repair of the shop, it presupposes the plaintiff's possession. If the prayer was for injuncting the defendants from letting out the shop to another, it presupposes the plaintiff was not in possession. However, this need not detain this Court at this moment. In course of the proceedings, an injunction application was filed with a prayer that the plaintiff be put in possession and the shop be repaired. The trial Court rightly rejected the prayer on the simple ground that by way of interim relief, the final relief cannot be granted.

3. The matter was then taken by the plaintiff to the appellate Court. I need not go through the lengthy order of the appellate Court for the simple reason that after reversing the order of the trial Court refusing injunction, the appellate Court has ordered thus: Respondents are hereby directed to hand over the shop in question to the appellant within the period of two months from this order by completing the reconstruction work in the said shop.

This is the order that is assailed by the defendants-petitioners.

4. Shri Dwivedi, in his brief submission, has pointed out that firstly no injunction at interim stage can be granted which would amount to granting final relief. Moreover, interim injunction cannot be granted even beyond the ultimate relief as prayed in the plaint. On the other hand, Shri Majumdar appearing for the plaintiff has relied on a decision reported in the case of Joynarain Sarogi v. Brojendra Nath Misra and Ors. AIR (38) 1951 Patna 546 to submit that mandatory injunction at interim stage can be granted and then relied on the decision of the Apex Court in the case of the Managing Director (MIG) Hindustan Aeronautics Ltd Balanagar, Hyderabad and Anr. v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd Balanagar, Hyderabad to submit that the appellate Court had the jurisdiction to decide the matter whether it decided the matter rightly or wrongly it decided it Page 1107 within its jurisdiction. Having taken a decision within its jurisdiction, the revision application under Section 115 of CPC would not lie. I have considered the rival contentions.

5. The present application must succeed and the so-called injunction order which is more in the shape of a final judgment and decree is liable to be vacated. The final relief as claimed was limited to a direction for repair and restraining defendants from letting out the premises to anyone else. So far as the relief for repair is concerned. Shri Majimdar for the plaintiff-opposite party has submitted that the plaintiff being a tenant had the remedy under Section 9 of the Bihar Buildings (Lease, Rent & Eviction) Control Act (hereinafter referred to as "the Act"). It had moved the Rent Controller for repairs. The Rent Controller directed the landlords. The landlords appealed without success. The defendants did not obey the orders of the Rent Controller. Therefore, the plaintiff-tenant had to file the suit. I am afraid this is no ground. If the defendants-landlords failed to carry out the orders of Rent Controller then the consequences are provided in Section 9 of the Act itself. However, coming to the main controversy the relief, as stated above, was limited to repair and injunction but what the appellate Court has granted is an immediate decree of the final relief prayed for and further decree against the defendants to reconstruct and put the plaintiff in possession, a relief which even the plaintiff had not prayed for. In my view, it is not a case where the appellate Court has wrongly decided the matter. It is a case where the decision of appellate Court is wholly without jurisdiction and perverse. The appellate Court has illegally usurped jurisdiction not vested in it and, accordingly. I find no difficulty in setting aside the appellate order.

6. So far as coming to the decisions, as cited by Shri Majumdar, the Patna decision is no authority for the proposition sought to be pressed into service. In that case, an interim injunction against construction had been granted. That was vacated. Before appeal could be preferred, the defendant tried to complete the construction injuncted earlier, this Court clearly inferred that the defendant was trying to overreach the Court and deny any chance of the plaintiff getting any relief from the Court and, therefore, injuncted the defendant from construction and directed that the construction so made, during pendency of the suit, be removed. The next decision relied is Smt. Rajnibai alias Mannibai v. Smt Kamla Devi and Ors. AIR 1996 Supreme Court 1946. Here the suit was for merely declaration of title and confirmation of possession. The plaintiff, then feeling threatened of being dispossessed, filed an injunction application and the defendants were injuncted from interfering with possession. This case again is of no help to the plaintiff-opposite party. It is not his case that he was in possession and during the pendency of suit, he had been dispossessed because a reference to the relief sought in the plaint would show that there was something missing, something unsaid, something hidden. The last decision relied on was the decision of the Apex Court reported in 1973 Supreme Court 76 (supra). Shri Majumdar submitted that applying the principles as laid down by the Apex Court that the appellate Court had the jurisdiction to decide the issue, whether that decision was right or wrong, was a decision within jurisdiction which decision could not be interfered in revision. I regret that the said case has no application to the present case. Here, as indicated above, the appellate Court acted wholly Page 1108 without jurisdiction in granting, by way of interim relief, the reliefs far in excess of the final relief as sought by the plaintiff himself. Further, the Court has no jurisdiction to grant final relief by way of an interim measure.

7. I, accordingly, find that the appellate order is wholly unsustainable, without jurisdiction and is, accordingly, set aside and this revision application is allowed.

8. However, I may observe that the suit being of the year, 1999, the trial Court may expedite the same.