SHAMBHUDAYAL SAXENA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) REFUSAL of temporary injunction finally by the trial Court is the subject - matter of challenge in this petition. The admitted position, however, is that the petitioner is in possession of the premises and his counsel contends foreefully that the premises not being "public premises" within the meaning of section 2 (c) of the Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974 (for short, the 'act') he cannot be evicted therefrom pursuant to the notice served and any decision taken under the Act by any authority. In the suit, validity of notice as well as the decision rendered by the "competent Authority" was challenged.

(2.) SHRI Apte, learned counsel for the respondent (No. 3), has vehemently opposed petitioner's prayer for temporary injunction, reiterated in this Court, which was refused by the trial Court. In the fore-front of his argument, Shri Apte has pressed a very forceful weapon, relying on the provisions of Section 10 of the act. It is contemplated thereunder that every order made by a competent authority or appellate authority under the Act shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

(3.) FOR disposal of Shri Apte's objection, I need not travel far because of the view 1 took in the case of State of Assam v. B. D. Patowari, 1984 1 GLR 66. wherein a similar question cropped up. It was held that the power of the trial Court to order temporary injunction in a case in which its jurisdiction to entertain the suit was barred did not lose its efficacy or potency wholly. The question of maintainability of the suit was question which had to be decided in accordance with the provisions of the Civil Procedure Code and not any other law. I am also of the view in this case that the provision of Section 10 cannot be read as implied and omnibus repeal of any provision of Civil Procedure Code the settled law being that Courts frown upon exclusion of jurisdiction and hold that even when any statutory exclusion is pleaded, it would be a question for decision on the facts and circumstances of the case as to whether the provision could at all be invoked. It is only in the course of trial at any of the different stages indicated by the provisions of Order 14 Rule 2 and Order 16 Rule 3 Civil Procedure Code that the question relating to exclusion of jurisdiction can be decided by a civil Court and on the Court's jurisdiction refusing it power to issue a temporary injunction till is not to be countenanced. This view was taken in B. D. Patowari (supra) and I see no reason to depart from the view so taken even reading the provision of Section 10, relied on by Shri Apte.