RATI RAM Vs. RAM BHAJ GUPTA

JUDGEMENT

(1.) This petition under Article 227 of the Constitutionof India is directed against the order of the Additional Senior Sub-Judge, Delhidated 9/02/1987 whereby the application of the petitioners under Order39 Rules 1 and 2 of the Code of Civil Procedure was dismissed,

(2.) The brief facts leading to the filing of this petition, as stated by thepetitioners, are as follows :-The petitioners and one Shri Mangal Sain respondent no. 8 herein by wayof a registered sale deed dated 31/01/1972 purchased and measuring 5bighas and 16 biswas situated at Village Karawal Nagar, Illaqa, Shahdra, Delhifrom Smt. Khazano widow of late Shri Likhi of Village Karawal Nagar, IllaqaShahdra, Delhi. Respondents 1 to 6 claimed their right in this land on accountof two sale deeds dated 29/12/1971 alleged to have been executed bySmt. Khazano, Smt, Chhazia and respondent no. 7. Smt. Khazano filed a suitfor declaration that the sale deeds dated 29/12/1971 were fraudulentand that she had never executed the sale deeds in favour of respondents 1 to 6.The suit was tried by Sh. S.S. Handa, Sub-Judge, 1st Class, Delhi and by hisorder dated 28/05/1982 the said suit was decreed in favour of Smt Khazano.Respondents 1 to 6 filed an appeal against the said judgment, however beforethe appeal could be finally decided, during the pendency of the appeal, Smt.Khazano died and respondents 1 to 6 got respondent no. 7 impleaded as legalheir of Smt. Khazano though respondent no. 7 was not the son of Smt.Khazano but was the son of Smt. Chhazia and got the matter compromised andthe Additional District Judge, Delhi passed a compromise decree. Separateproceedings under Sec. 145 of the Cr. P.C. were started between respondents Ito 6 one Shri Ghasi and the Magistrate attached the land under Sec 146 Cr.P.C.and made a reference to the civil court for decision as to which party was inpossession of the land in dispute on the date of the passing of the preliminaryorder passed by the Magistrate on 17/04/1972 and within two monthsprior to that. This reference under Sec. 146 Cr. PC was decided by Shri R.S.Mahla, Sub-Judge, Delhi on 16/04/1983 and held that respondents 1 to 6were in possession and were entitled to the possession of the land in question.The petitioners were not party either to the suit filed by Smt. Khazano againstrespondents 1 to 6 or in the proceedings under Sec. 145 Cr. P.C. and 146 Cr.PC.The petitioners filed a suit for declaration against respondents alleging thereinthat the consent decree passed by the Additional District Judge on 27-4-83 inthe appeal filed bp respondents 1 to 6 against Smt. Khazano was obtained bymis-representation, collusion and fraud. Alongwith this suit, the petitionersfiled an application under Order 39 Rules 1, 2 and 3 read with Sec. 151 of theCode of Civil Procedure praying that injunction be issued restraining respondents 1 to 6 from dispossessing the petitioners or otherwise interfering withtheir possession over the land measuring 5 bighas and 16 biswas. The trial courtby order dated 31/01/1987 dismissed the application against which thepetitioners filed an appeal before the Additional Senior Sub-Judge, Delhi andby way of the impugned order dated 9/02/1987 the first lower appellate court admitted the appeal but refused to grant injunction.3. The main ground on which the first lower appellate court has rejectedthe application of the petitioners for injunction is that if an order of injunctionis granted, it will put a restraint on the S.D.M. who is ceased of the matterunder Sec. 145 Cr. P.C. which is not permitted as observed in the judgment ofthe Orissa High Court in Kaliprasad Das & Another v. Gadadhar Sahu,AIR 1978 Orissa 8.4. It was contended by the learned counsel for the petitioners that thejudgment of the Orissa High Court in Kaliprasad Das & Another (supra) wasnot in applicable to the facts of the present ease because the Orissa High Courtin that case had held that the order of temporary injunction could not be grant-ed because of the proviso to Order 39 Rule I applicable to Orissa. Learnedcounsel relied on a judgment of the Special Bench of Assam High Court inBrajender Kumar Sen Gupta v. Jitender Chandra & Others, AIR 1960 Ass 111in support of his contention that the order of a Magistrate under Sec. 145Cr.P.C. holding that a party is deemed to be in possession did not in anymanner affect the jurisdiction of the civil court to grant an injunction.

(3.) I find substantial force in the contention of the learned counsel for thepetitioners that the judgment of the Orissa High Court in Kaliprasd Das &Another (supra) which is based on a proviso as applicable only to Orissa willnot be applicable in the present case. The judgment of the Assam High Courtin Brajender Kumar Sen Gupta (supra) is conclusive on the matter. There canba no doubt that the jurisdiction and power of the civil court, if an appropriatecase is made out for exercise of its discretion under Order 39 of the Code ofCivil Procedure, is not in any manner hampered merely because Proceedingsunder Sec. 145 Cr. PC for maintaining peace are initiated.