GAUHATI MUNICIPAL CORPORATION Vs. DEEPAK SARMA

JUDGEMENT

(1.) This revision petition has been filed against the order dated 30.3.98 passed by the learned Civil Judge (Sr. Division) No.1, Kamrup, Guwahati in TS 65/98 directing the petitioner-defendant (Gauhati Municipal Corporation) to maintain status-quo in respect of a notification dated 12.3.98 issued under the signature of the Commissioner of GMC, Guwahati. Challenging this notification itself, CRs 1468/98 (S.K. Nath -Vs- GMC) 1469/98 (G. Rabha -Vs- G.M.C.) 1477/98 (A. Rahman -Vs- G.M.C.)were filed before this Court and this Court refused to grant stay. Thereafter, by judgment dated 11.11.98, this Court held that the notification which was challenged is a valid one. The plaintiff of the title suit had a lease of Kamakhya Parking Place upto 31.3.98 and on 30.3.98 the injunction order was obtained with a direction to maintain status-quo in respect of the notification dated 12.3.98. As against this, this revision petition nas been filed invoking the jurisdiction under Art. 227 of the Constitution of India. This Court while admitting this revision granted stay of that impugned order dated 30.3.98. That order is dated 3.4.98. An application is filed to modify/vary that order by the plaintiff of the suit.

(2.) I have heard Mr. C.K. Sarma Baruah, learned counsel for petitioner and Mr. S.P. Roy, learned counsel for respondents. I have heard the civil revision on merit regarding admission instead of hearing the application for modification of stay etc. There is also an order on 6.11.98 in Misc. Case No. 81/98 to dispose this at the time of admission.

(3.) Mr. Sarma Baruah, learned counsel rightly urges that as the validity of the notification in question has been held to be valid by this Court, the suit itself filed by the plaintiff, one of the lease holder, whose lease period has already expired on 31.3.98, cannot maintain a suit and this order of injunction which was obtained on 30.3.98 just one day before expiry of the lease period, is nothing but a fraud on the power of the Court and accordingly he submits that mis revision should be allowed and the order of injunction should be quashed and even a direction may be given to the trial Court to dispose of the suit in view of the subsequent development. It is submitted by Mr. Roy, learned counsel for respondent that the order of stay passed by this Court on 3.4.98 was obtained by the petitioner in spite of lodging of a caveat. It is submitted by Mr. Sarma Baruah, learned counsel that there was no caveat in the eye of law inasmuch as proper Court fee was not paid. It is stated that the caveat petition was registered as 248/98 i.e. Misc. Case No. 107/98. It is seen from the report that this caveat petition was filed with a deficit Court fee of Re. 1/- on 31.3.98. So, this caveat petition filed with deficit Court fee cannot be a caveat petition in the eye of law. However, that deficit Court fee was paid later on, that is, on 3.4.98, but whether before the order or after the order is not known. The grievance of the respondent No.1 is that in spite of lodging of the caveat this order of stay dated 3.4.98 was passed and as such the order of stay is without jurisdiction. But the question remains that whether the order of stay or an order of injunction passed in spite of lodging of a caveat can be deemed to be nullity in the eye of law. Whether the Court retains the powers to pass appropriate order in spite of lodging of a caveat. The word "nullity" has been defined in Black's Law Dictionary as "nothing, no proceeding and act or proceeding, in a cause which the opposite party may treat as though it had not taken place or which is absolutely no legal force or effect. That cannot be deemed to be the position of law and any authority is required for this proposition, one may have a look at AIR 1981 A.P. 246 (Reserve Bank of India Employees Association & Anr. - Vs- The Reserve Bank of India-& Ors.) where a Single Judge of the A.P. High Court in para 5 pointed out as follows: