MOHAMMAD Vs. MOHAMMED HAJI

JUDGEMENT

(1.) THE revision petitioner is the 1st defendant in O. S. 157/81. He is the present President of Udumbra Pazhaya Jumayath Palliparipalana committee. Plaintiff filed the suit for permanent injunction restraining defendants 1 and 2 from trespassing in the plaint schedule property and using the same as a burial ground. Defendants contended inter-alia that the plaint schedule property is the ancient burial ground of the mahal and the plaintiffs cannot restrain the defendants and the members of the mahal from using the same as burial ground. THEy also contended that the plaint schedule property is not identifiable.

(2.) PLAINTIFFS filed I. A. 2252/85 for police protection against (be defendants to enforce the order made by the court in I. A. 1275/81. I. A. 1275/81 was filed by the plaintiff for an interim injunction restraining the defendants or their men from entering upon the plaint A schedule property or committing any loss or damage to the same. Injunction was granted by the court below. The grievance of the plaintiffs is that despite the order in their favour defendants continued to trespass upon the property and attempted to use it as a grave-yard unauthorisedly. PLAINTIFFS contended that the respondents have no manner of right to enter into the plaint schedule property or use it for burying dead bodies. According to the plaintiffs, though they approached the police authorities to enforce the injunction order they did not show even any lukewarm response. The court below allowed the petition holding that as the injunction order is in force it is the duty of the court to see that it is enforced.

(3.) IN a case where manifest injustice would result if immediate action is not resorted to the court should definitely exercise its powers under S. 151 CPC. S. 151 preserves the power of the court to pass orders exdebito justice by virtue of the duty of the court to do justice to the parties the court can definitely exercise powers under S. 151 CPC. It is true that inherent powers cannot over-ride the provisions of the Code. For violation of the injunction order action can be taken under 0. 39 R. 2a. But, that may hardly be the answer in a situation like the present case. Violation of the injunction order by burying dead bodies in the suit property has to be prevented as the plaintiffs have obtained order of injunction against the defendants. The injunction order cannot be allowed to remain as a worthless piece of paper. INjunction order granted by the court cannot be allowed to be flouted with impunity. By the exercise of power under S. 151 CPC. it cannot be said that it will conflict with the action to be taken under O. 39 R. 2a, CPC. IN Manohar Lal v. Seth Hiralal (AIR. 1962 SC. 527) it is held as follows: "s. 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. IN the face of such a clear statement, it is not possible to hold the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. " IN some cases violation of injunction order will have to be effectively met by taking immediate preventive action. If this could be done by exercising powers of the court under S. 151 CPC. the court should not feel diffident to exercise that power. IN many cases action taken under 0. 39 R. 2a may altogether be found wanting. IN such cases it is always open to the court to render necessary assistance to the aggrieved party by invoking powers under s. 151 CPC. Whenever interests of justice require compelling attention of the court to do justice to the party who is faced with violation of his legal rights the court should definitely prevent such transgressions or violation. For that court can fall back in its powers under S. 151 CPC.