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CASE NO.:

Appeal (civil) 5783 of 2006

PETITIONER:

Meera Chauhan

RESPONDENT:

Harsh Bishnoi & Anr

DATE OF JUDGMENT: 13/12/2006

BENCH:

DR. AR. LAKSHMANAN & TARUN CHATTERJEE

JUDGMENT:

J U D G M E N T

(Arising out of SLP (C) No. 18762/2005)

TARUN CHATTERJEE,J.

Leave granted.

Bungalow No.12 at Thimayya Road, Cantonment Lucknow

(hereinafter referred to as the "Suit property") originally belonged

to Smt. Vimla Bishnoi since deceased who was the mother of the

Respondent Nos.1 and 2. By a registered Will executed by her,

the suit property was bequeathed in favour of Anil Bishnoi, who is

the respondent No.2 in this appeal. On 15th of May 1996 Smt.

Vimla Bishnoi expired. On 11th of June 1996 Harsh Bishnoi, who

is the respondent No.1 in this appeal, applied for mutation before

the Army Authorities, which was rejected by them by an order

dated 5th January 1998.

A suit has been filed, being Suit No. 199/2002, in the Court

of Civil Judge (Sr. Div.) Lucknow by the respondent No.1 for

declaration of title over the suit property against the respondent

No.2 on the basis of an oral family settlement of the year 1988. In

the plaint, the Respondent No.1 herein, has prayed for permanent

injunction restraining the Respondent No.2 from interfering with

his possession over the suit property. In the suit, an application for

injunction restraining the respondent No.2 from transferring,

alienating or encumbering the same has been filed. On 6th May

2002 on the application for injunction, an ex-parte interim order of

injunction restraining the respondent No.2 from transferring,

alienating or encumbering the suit property was passed. It is

therefore clear that no interim order of injunction was granted by

the Court against the respondent No.2 from interfering with

possession of the respondent No.1 in respect of the suit property.

According to the respondent No.2 neither the application for

injunction nor the ex-parte interim order of injunction was served

upon him. When the interim order of injunction was in force, more

precisely on 17th of July 2002, the appellant purchased the suit

property from the respondent No.2 at a consideration of Rs.19 lacs

and she was put into possession of the same on the same date.

Thereafter, a Writ Petition being W.P. No. 4994/2002 was

filed by the respondent No.1 in the High Court of Allahabad,

(Bench at Lucknow) on 18th August 2002 against the State and the

Army Authorities as well as the appellant claiming thereby forcible

dispossession during his absence and praying for restoration of

possession.

Subsequent to the filing of the writ petition the respondent

No.1 on 20th August 2002 filed a suit being Suit No.402/2002

under Section 6 of the Specific Relief Act (in short "the Act")

before the Civil Judge, Lucknow for restoration of possession. An

application for restoration of possession was filed by him against

the respondent No.2 under Section 151 of the Code of Civil

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Procedure, inter alia, on the allegations that he was dispossessed

from the suit property during the pendency of the suit and interim

order of injunction was in force. However, the application under

Section 151 filed in the suit was rejected on the ground that the suit

under the Act had already been filed and was pending. More than a

year thereafter, more precisely on 22nd September 2004, an

application was made at the instance of the respondent No.1 for

withdrawing the suit on the ground that the Writ Petition for

possession was pending in the High Court. The Civil Judge,

Lucknow by an order dated 22nd September 2004 allowed the

Respondent No.1 to withdraw the Suit. After the application for

withdrawal of the Suit was allowed, the appellant made an

application for impleadment in the Suit No.199/2002, which was

allowed after hearing the parties. While considering the application

for impleadment, the trial court made the following observation on

the question of service of notice of injunction order as well as the

application for injunction which is reproduced below:

"On the record there is no document to prove before

17.7.2002 when the sale deed was executed prior to

that the opposite party had acknowledged about the

interim order passed in this case. There is no proof

about this knowledge nor there is evidence to the

effect that even third party Smt. Meera had any

knowledge about any interim order. Opposite party

No.3 through here affidavit had stated that she has

purchased her valuable consideration with bona fide

and she has no knowledge that any other person has

any claim on disputed property at the time of

disputed property purchased."

(Underlining is ours)

As noted herein earlier, the application under Section 151

was rejected by the trial court. Feeling aggrieved by the said order

the respondent No.1 moved a revisional application being C.R. No.

212/2002 before the High Court which was allowed and the order

rejecting the same was set aside. The High Court directed the trial

court to decide the matter on merits after hearing the parties. In

the application under Section 151 of the Code of Civil Procedure

the respondent No.1 alleged his dispossession from the suit

property although he was claiming to be in possession on the basis

of the oral family settlement of the year 1988 at the time of filing

the suit and, therefore, prayed for restoration of possession.

After the remand, the application under Section 151 was

heard in presence of the appellant and the respondent Nos. 1 and 2

and the trial court by an order dated 28th July 2005 allowed the said

application directing the respondent No.2 and the appellant to

restore possession of the suit property, inter-alia, on the ground

that dispossession of the respondent No.1 from the suit property

during the pendency of the suit and the operation of the order of

injunction was not in due course of law.

Feeling aggrieved by the order of the Civil Judge (Sr. Div.)

Lucknow, the appellant filed a revisional application, which was

rejected by the impugned order by making the following

observations:

"I find no illegality, irregularity or jurisdictional

in the impugned order. During the injunction order

the plaintiff was dispossessed and restoration of

possession to the plaintiff was ordered. The trial

court only wanted that the injunction order which

has been violated the same position which existed at

the time when the injunction was granted, should be

restored."

Feeling aggrieved thereby, the present Special Leave has

been filed for which leave is granted.

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We have heard the learned counsel for the parties and have

examined the impugned order after considering the fact of

pendency of the writ petition, suit filed under Section 6 of the Act

and the nature of relief claimed in suit no 199/2002 as noted herein

earlier. We are of the view that the High Court in the facts and

circumstances of this case ought not to have rejected the revisional

application at the admission stage. Let us, therefore, first consider

whether the High Court was justified in rejecting the revisional

application filed against the order of the trial court allowing the

application for restoration of possession, at the admission stage. As

quoted herein above, the High Court proceeded to affirm the order

of the trial court on the basis that the respondent No.1 was

dispossessed during the operation of the injunction order and also

held that the trial court only wanted the order of injunction, which

was violated, should be implemented and that the possession which

existed at the time when the order of injunction was granted should

be restored. Therefore, from the above it is clear that the High

Court proceeded to affirm the order of the trial court only on the

ground that as an order of injunction passed by that court

restraining the appellant and the respondent no. 2 from interfering

with the possession of the respondent no. 1 was violated and

therefore possession should be restored. This approach of the High

Court, in our view, was totally unsustainable as it had failed to

notice that no order of injunction restraining the respondent no. 2

from interfering with the possession of the respondent No.1 in

respect of the suit property was passed. On the other hand, it was a

matter of fact that only an order restraining the respondent no. 2

from transferring, alienating or encumbering the suit property was

passed till the disposal of the application for injunction. That apart,

in our view, the High Court was also not justified in rejecting the

civil revisional application without going into the propriety of the

order of the trial court. Such being the position, we are of the

opinion that it was improper on the part of the High Court to reject

the revisional application in the manner it was done.

Let us now deal with the order of the trial court allowing the

application of the respondent No.1 under Section 151 of Code of

Civil Procedure for restoration of possession. A perusal of the

order passed by the trial court on the application under Section 151

of the Code of Civil Procedure reveals that the case of the

respondent No.1 that he had exclusively got the suit property by an

oral family settlement dated 24th December, 1988 was not prima

facie believed by it. While considering the case of the respondent

No.1, the trial court also took into consideration that the prayer for

recording his name before the Chief Executive Officer,

Cantonment Board on the basis of such oral family settlement was

refused. The trial court on the other hand considered the case of the

respondent No.2 made against the application for restoration in

which he claimed the title of the suit property on the basis of the

registered Will executed by the mother of the Respondent Nos.1

and 2.

While dealing with this aspect of the matter, the trial court

had drawn an adverse inference against the respondent No.1 for

not filing any evidence of ownership and also accepted prima facie

the case of the respondent No.2 that he has acquired title to the suit

property on the basis of the Will executed by his mother. On the

basis of this finding, the trial court held that the ownership of the

respondent No.1 in respect of the suit property appeared to be

doubtful in view of the fact that the mother of the respondent

Nos.1 and 2 was admittedly the owner of the suit property who had

executed a Will bequeathing the suit property in favour of the

respondent No.2, as noted herein earlier.

Although the trial court in its impugned judgment could not

prima facie find title of the respondent No.1 in respect of the suit

property as noted herein above, restoration of possession in favour

of the respondent No.1 was, however, directed basing its finding

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on the fact of possession at the time of filing of the suit and the

application for injunction.

Before we deal with this question of possession as to who

was in actual possession at the relevant point of time it would be

appropriate to note that the order for restoration was passed by the

trial court on an application under Section 151 of the Code of Civil

Procedure. A question may arise whether such an application can

be entertained by the Court when specific provision under Order

39 of the Code of Civil Procedure has been made for grant of

injunction in the form of mandatory order in the exercise of power

under the said Order. Therefore to decide this aspect of the matter,

let us consider the scope of Section 151 of the Code of Civil

Procedure. Section 151 reads as under :-

"151.Saving of inherent powers of

Court.- Nothing in this Code shall be deemed

to limit or otherwise affect the inherent power

of the Court to make such orders as may be

necessary for the ends of justice or to prevent

abuse of the process of the Court."

A bare perusal of Section 151 of the Code of Civil Procedure,

it cannot be said to be in dispute that Section 151 confers wide

powers on the court to make such orders as may be necessary for

the ends of justice or to prevent abuse of the process of the Court.

The power of Section 151 to pass order of injunction in the

form of restoration of possession of the code is not res integra now.

In Manohar vs. Hira Lal [AIR 1962 SC 527] while dealing

with the power of the Court to pass orders for the ends of justice or

to prevent the abuse of the process of the Court, this Court held

that the courts have inherent jurisdiction to issue temporary order

of injunction in the circumstances which are not covered under the

provisions of Order 39 of the Code of Civil Procedure. However, it

was held by this Court in the aforesaid decision that the inherent

power under Section 151 of the Code of Civil Procedure must be

exercised only in exceptional circumstances for which the Code

lays down no procedure.

At the same time, it is also well settled that when parties

violate order of injunction or stay order or act in violation of the

said order the Court can, by exercising its inherent power, put back

the parties in the same position as they stood prior to issuance of

the injunction order or give appropriate direction to the police

authority to render aid to the aggrieved parties for the due and

proper implementation of the orders passed in the suit and also

order police protection for implementation of such order.

It is also well settled that when in the event of utter violation

of the injunction order, the party forcibly dispossesses the other,

the Court can order restoration of possession to the party wronged.

Keeping the aforesaid principles in mind for exercising of

power under Section 151 of Code of Civil Procedure, we proceed

to consider the facts and circumstances of the case and decide

whether the High Court as well as the trial court was justified in

the facts and circumstances of the case to direct restoration of

possession.

While considering the question as to who was in possession

at the appropriate time, the trial court came to a finding on

consideration of certain electricity bills and other materials, that

the respondent No.1 was in possession of the suit property till the

respondent no.2 had forcibly dispossessed him and therefore he

was entitled to get his possession restored as he was evicted

without following any legal procedure. In the said order, the trial

court considered that although the respondent no.1 had not sought

protection of his possession either in the plaint or in the application

for injunction nor any order of injunction protecting possession

was in force, even then it directed restoration of possession in

favour of the respondent No.1 only on a finding that the suit was

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pending and that the respondent No.1 who was in possession was

dispossessed illegally. Accordingly the trial court directed

restoration of possession in the interest of justice against such

illegal action.

At the risk of repetition, looking to the prayers made in the

plaint as well as in the application for injunction, we do not find

that the prayer for injunction restraining the respondent No.2 from

interfering with the possession of the respondent No.1 over the suit

property was granted. Respondent No.1 simply prayed for an

order of injunction restraining the respondent No.2 from

transferring, alienating or encumbering the suit property till the

disposal of the application for injunction.

Coming back to the propriety of the order of the trial court,

we may note that while allowing the application for restoration of

possession, the High Court and the trial court failed to notice the

pendency of the writ petition in which prayer for restoration for

possession was the main issue and the fact of pendency of suit

under Section 6 of the Act.

Now, the question before us relates to the issue to be decided

as to who was in possession of the suit property at the time when

Suit No. 199/2002 was filed. As per the findings of the trial court,

it appears that the respondent no.1 was in possession of the suit

property and that he was unlawfully dispossessed from the suit

property by the respondent No.2 after relying on certain documents

produced by him and the court directed restoration of possession to

the respondent No. 1. In order to find who was in possession of

the suit property the respondent no.1 relied on the report of change

of electricity meter dated 9th April, 2002 and photocopy of bail

bond dated 14th January, 2005. Certain other electricity bills of

the year 2003 were also filed to show that the respondent no.1 was

the consumer of the electricity in the suit property. Some other

documents to show that address of the respondent no.1 was the suit

property were also filed. In order to show that the respondent no.2

was in possession of the suit property at the time of filing of the

suit and such possession was delivered to the appellant, reliance

was placed on the rejection of the prayer of the respondent no. 1 to

record his name being in possession of the same. It also appears

that it was the case of the appellant that possession of the suit

property was amicably handed over to the respondent no.2 by the

respondent no. 1. In order to come to a proper finding of fact that

who was in actual possession, the parties ought to have produced

oral evidence along with documentary evidence. In our view, the

documents on which reliance was placed by the respondent no.1

cannot conclusively prove that he was in actual possession of the

suit property at the time of dispossession. For this purpose not

only documentary evidence would be required to be produced but

at the same time oral evidence should also be adduced by the

parties particularly when the parties dispute the question of

possession at the appropriate time and also one party made out a

case that possession of the suit property was amicably handed over

to the other party. In this view of the matter, although for deciding

an application under Section 151 of the Code of Civil Procedure, it

would not be proper to permit the parties to adduce oral evidence

but in the peculiar facts and circumstances of this case we are of

the view that the trial court ought to have directed the parties to

adduce oral evidence along with documentary evidences and also

considered the fact of pendency of the suits as noted herein earlier.

The suit filed by the respondent no.1 is not a suit for decree for

permanent injunction restraining the respondent no.2 from

interfering with possession of the suit property. There is another

aspect of this matter. We have already noted herein earlier that at

the time of allowing the application for impleadment filed by the

appellant before the trial court, the trial court had come to a finding

that neither the pendency of the suit nor the ex-parte order of

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injunction was within the knowledge of the appellant. Therefore,

we are of the view that the appellant was a bona fide purchaser for

value without notice. Be that as it may, this question may not be

very germane in the facts of this case.

That being the position, we set aside the order of the High

Court and the trial court and direct the trial court to decide the

application for restoration afresh after permitting the parties to

adduce oral and further documentary evidence and thereafter come

to a conclusion of fact as to who was in actual possession of the

suit property at the relevant point of time.

It is not now in dispute that in compliance with the order of

the trial court, which was affirmed by the High Court, possession

has now been delivered to the respondent no.1. In the event, trial

court comes to a finding that the respondent no.1 was in possession

of the suit property at the relevant time as indicated above, the

question of delivery of possession by the respondent no.1 to the

appellant shall not arise. However, if the trial court finds that the

respondent no.1 was not in possession of the suit property at the

relevant point of time and the respondent no.2 was in possession of

the suit property, in that case the trial court shall direct restoration

of possession in favour of the appellant.

The trial court is directed to dispose of the application under

Section 151 of the Code of Civil Procedure afresh within a period

of three months from the date of this judgment. If application for

injunction is still pending for adjudication, the same may also be

decided at an early date preferably within a period of three months

from the date of passing of final order on the application under

Section 151 of the Code of Civil Procedure.

Accordingly, the appeal is allowed to the extent indicated

above. There will be no order as to costs.