(1) This revision petition is aimed at oversetting an order of the trial court directing the plaintiff petitioner to remove the door which he has installed
in the stairs which the respondents claim to be the common stairs of the houses belonging to the parties.
(2) The petitioner brought a suit for declaration and injunction against the respondents that he was the exclusive owner of the stairs which the
respondents had no right to use and that they may be permanently restrained from using the same. The trial court issued an ad interim exparte
injunction on 26 5. 1977 interdicting the respondents from using the stairs. On 28.5.1977, however, the said order was vacated by it after hearing,
the respondents. The petitioner filed an appeal before DistrictJudge, Poonch against the said order, who on the petitioner's application for
adinterim stay passed the following order:
Stay mean while.
This order was also communicated to the trial court, which on 18.6.1977 issued a notice to the respondents that its order dated 28.5.1979 had
been stayed by the appellate court, and that its earlier order dated 2651977 stood revived, which the responddents were bound to obey. In the
meantime, it appears the petitioner installed a door in the stairs with the result that the passage of the respondents was thereby blocked even
otherwise. The respondents made an application under Order 39 R. 1 read with Section 151 of the Code of Civil Procedure inviting the trial court
to issue mandatory injuction against the petitioner, directing him to remove the door. An objection was raised on behalf of the petitioner that after
the appellate court had issued the aforesaid stay order, the trial court had ceased to have any jurisdiction to entertain such an application and pass
any order on it This objection did not weigh with the trial court, which consequently allowed the application of the respondents, and ordered the
petitioner to remove the door. It is this order which has been assailed in this revision petition.
Appearing for the petitioner, Mr. Sethi has contended that the moment the appellate court of District Judge, Poonch, issued the stay order, powers
of the trial court to deal with the respondents' application had been clearly taken away. The trial court, argued the learned counsel, was bound to
obey the order of the appellate court, and had no jurisdiction to entertain the respondents' application and pass any order on it.
(4) Mr. Bakhshi appearing for the respondents has, on the other hand, contended that the trial court retained its powers to deal with all matters,
which were either collateral or incidental to the main suit, inspite of the fact that the appellate court had issued a stay order. The stay order, added
the learned counsel, was much too vague and criptic. Which failed to disclose its extent of application. In any case, argued Mr. Bakhshi, the stay
could be limited to the injunction matter only, and to no other matter Viewed thus, argued the learned counsel, the trial court's jurisdiction to deal
with any matter which was not subject matter of the appeal could not be said to have been taken away. Learned counsel for the parties have also
relied upon a number of authorities in support of their respective contentions.
(5) Controversy in this case has in fact been triggered by the ridiculously brief and cryptic stay issued by the District Judge, which comprises of
merely two words, Viz; ""stay meanwhile"", These words were indeed incapable of conveying as to what the District Judge intended to stay, i. e,
whether he intended to stay the entire proceeding in the suit before the trial court, or he intended to stay the operation of the order challenged
before him in the appeal. In these circumstances, therefore, this order cannot be said to be capable of an extended application, so as to coyer the
entire gamut of the proceedings before the trial court, and its application has to be restricted to the order impugned in the appeal or at the most, to
that part of the proceedings which gave rise to the impugned order.
(6) The next question which when falls for determination is; what would be the effect of such an order on the powers of the trial court to conduct
proceedings in the main suit ? Mr. Bakshi has relied upon a Bench decision of Madhya Pradesh High Court in Madan Lal Agarwal Versus Smt.
Kamlesh Nigam, A. I. R 1975 M. P 132, to bring horns his point that even if entire proceeds as in the suit are stayed by the higher court, the trial
court still retains its powers to deal with matters, which are either collateral or incidental to the main suit, with a view to preserving the subject
matter of the suit, or for similar other reasons. In Madan Lal's case (Supra), the defendants' defence had been struck off by the trial court, A
revision had been taken by him to the High Court of Madhya Pradesh which had passed the following order :
(Meanwhile, further proceedings in the trial court shall be stayed.
(7) The plaintiff, while the revisions was pending in the High Court; had applied to the trial court for attachment before judgement under Order 38
R. 5 C. P. C. The trial court had ordered the attachment, and the question before the High Court was whether it had jurisdiction to do so, after
proceedings in the trial court had been stayed by the High Court. The High Court held that application under Order 38 R. 5 not being a step in
furtherance of the trial of the suit on merits, powers of the trial court to grant the application could not be said to have been taken away on account
of the stay order issued by it. While holding so, the High court had relied upon a decision of Madras High Court in Chidambaram Vs
Subramaniam. A. I. R. 1953 Madras 492 This authority undoubtedly supports the contention of Mr. Bakhshi that an order staving further
proceedings in the trial court merely means staying further proceedings which are aimed at trying the suit on merits, but not any other proceedings.
(8) Mr, Sethi has, on the other hand, relied upon the number of authorities in support of his contention that once proceedings in the trial court have
been stayed by a higher court, the trial court ceases to have jurisdiction to deal with any matter, irrespective of fact whether or not such
proceedings are in furtherance of the trial of the suit on merits. To begin with, he has referred to Raj Bahadur Singh v. Pirthvipal Singh and others,
A I. R, 1942 Oudh 24. In this case execution of the decree had been stayed by the appellate court, but before such an order could be
communicated to the executing court, property of the judgmentdebtor had been put to sale. The High Court held that the stay order took effect
from the date it was issued, and not from the date it was communicated to the executing court, It, therefore, held that the order putting the property
to sale was without jurisdiction, as further proceeding in execution had been stayed by the High Court. To the same effect is another authority viz.
Venkatappayya and another Vs. Kasarababa yenkatachalayathi Rao; A. I. R. 1927 Mad 450.
(9) The next authority, relied upon by the learned counsel is Motriam Roshanial Coal Co. (P) Ltd: Vs. District Committee, Dhanbad and others.
A.I.R. 1962 Patna 357. In this case, a person was added by the trial court as a party to a suit. The plaintiff went in revision against the said order.
The High Court stayed further proceedings in the trial court till final disposal of the revision petition. During the currency of the stay order, the trial
court appointed a Commissioner to make report on the existing conditions of the suit land, which according to the defendants, had to be repaired
to bring it bisk to its original conditions. The High Court held that the order appointing the Commissioner was without jurisdiction, as further
proceedings of whatever nature they may be, had been stayed by it.
(10) Another authority cited by the learned counsel is Shri Theamolapuran Bus Transport Ltd. Pulghat Vs. The Regional Transport Officer,
Kohikode, A. I. R. 1958 Kerala 109. In this case the route permit of the appellant had been suspended by the R. T. A. on 21. 9. 1955; the
suspension to take effect from 25. 10, 1955. The appellate authority granted stay of the order of suspension on 29. 10. 55 i. e. before it became
effective. It, however, dismissed the appeal on 27. 12. 1955 without saying anything in regard to the stay order issued by it. Both the orders were
challenged by the appellant in a writ petition, and the point raised was whether suspension of the route permit which was to remain in force for a
period of sixty days was to operate from the date of the dismissal of appeal or not at all; the period of sixty days having expired during the
pendency of the appeal. It was held that the effect of the stay order was to keep the order suspended till the disposal of the appeal, and it had to
be given effect to from the date of dismissal of the appeal.
(11) Mr. Sethi then relied upon Rash Behari Mandal and others v. Memanta Kumar Ghose and others A I. R. 1926 Calcutta 1023. In this case a
decree for ejectment was passed in favour of landlords against tenants an appeal was taken from it to the High Court by the tenants. The High
Court issued an order on 5. 12 1964, staying further proceedings in the execution proceedings. On 6.12.1924, however, the executing court
ordered delivery of possession to the landlords, by reviewing its earlier I order suspending execution of the decree. The High Court held that after
it had issued an order on 5. 12. 19 5 staying further proceedings in the case, the order passed by the executing court on 6.12. 1924 was without
jurisdiction All the authorities do support Mr. Sethi's contention that an order passed by a higher court staying further proceedings in the trial court,
takes away the powers of the trial court to deal with any matter, whether or not it tends to progress the trial of the suit on merits.
(12) With utmost respect to the learned Judges who constituted the Bench in Madan Lal's case (Supra) (A.I.R. 1975 M.P. 132). I am unable to
subscribe to the extreme view taken by them that even if all further proceedings in the trial court have been stayed by a higher court. The trial court
still retains its powers ID deal with matters which are either collateral or incidental to the main case. Staying further proceeding, in my opinion,
cannot imply staying further proceedings in furtherance of the trial of the suit on merits only, but includes staying further proceedings of every kind.
Once a higher court is seized of the matter, it can exercise all the powers which are vested in the trial court, whether it be a question of issuing
adinterim injunction, or it be a question of bringing on record the legal representatives of a deceased party, or the like. On the principle of judicial
propriety also, it would be desirable that once entire proceedings in the trial court have been stayed by a higher court, the former does not proceed
to decide any matter collateral or otherwise. This is also likely to result in a tug of war between the trial court had the higher court, and there is
every likelihood of the trial court's clutching at the jurisdiction of the higher court with impunity. I am, on the other hand, in respectful agreement
with the view taken by the High Courts of Oudh, Madras, Patna, Kerala and Calcutta in the authorities referred to above wherein it was held that
powers of the trial court to pass any order in a case are clearly taken away when entire proceedings in the trial have been stayed by a higher court.
It may not, however, be so in case the stay order has a limited application. In such case it would be effective only to the extent proceedings in the
trial court have been stayed.
(13) As already indicated, the stay order in the instant case was to apply to the matter relating to adinterim injunction only. As a consequence of
this, order, operation of the impugned order had been stayed by the District Judge, which automatically revived the earlier order issued by the trial
court on 2651977, restraining the respondents from using the stairs. So long as this order remained operative, it was inconsequential, whether or
not a door closing the stairs stood installed there. The respondent , in case they were keen to get the door removed immediately ought to have
approached the District Judge, or waited to make such an application in the trial court itself till the petitioner's appeal was dismissed. The
application belonging to the realm of temporary injunction restraining the defendants from using the stairs, the trial court had no jurisdiction to deal
with any question, directly relating to it, so long as the stay order issued by the DistrictJudge remained effective. For the respondents, the proper
forum to make such an application was the District Judge himself.
(14) In the result, the revision petition is allowed and the order of the trial court is set aside. In the peculiar circumstances of the case, the parties
are left to bear their own costs.
