J.N. Sarma, J.@mdashThis revision raises an important question of law. Before we go to that aspect of the matter, let us have a look at the facts of this case.
2. The Petitioner herein filed title suit being TS 440/80 in the court of Munsiff No. 1 at Dhubri against the opposite parties for a declaration of right, title and interest of the suit land measuring 2 bighas for perpetual injunction restraining the Defendants from dispossessing the Petitioner and also for cancellation of two sale deeds pertaining to the suit land executed on 13.4.79 executed in favour of opposite party No. 3 and dated 21.6.80 executed in favour of opposite party No. 1. On 13.6.83 the title suit was dismissed by the learned Munsiff at Dhubri. The Petitioner preferred an appeal being TA 35/83 before-the Assistant District Judge at Dhubri and that appeal was allowed by the learned Judge by judgment dated 16.3.85 and the suit was decreed. A second appeal being SA 95/85 was filed by the opposite parties before this Court against the judgment and decree dated 16.3.85 and this Court allowed the second appeal and remanded the matter to the learned Munsiff at Dhubari with a direction to allow the Petitioner to prove the original sale deed contended to be executed in his favour in accordance with law. The learned Munsiff on 21.7.93 dismissed the suit after allowing the Plaintiff to prove the sale deed as per die direction given by die High Court. He came to the finding mat the sale deed proved by the Petitioner was a forged and collusive one. The Petitioner preferred title appeal being TA 46/93 in the court of Assistant District Judge at Dhubri and on 20.12.93 die learned judge allowed the appeal and decreed the suit of the Petitioner and restrained the opposite parties from dispossessing the Petitioner from the suit land by granting a perpetual injunction. After disposal of the appeal, an application was filed before the learned Assistant District Judge under Order 39 Rule 2 read with Section 94 and 151 of CPC praying for issuance of a mandatory injunction directing the opposite parties to remove all construction from the suit land to deliver vacant possession thereof to the Petitioner. This application was registered as Misc (J) Case No. 5/94. On 6.4.94 the learned Judge allowed the application and the learned Judge directed the opposite parties to remove all constructions over the suit land and to deliver die vacant possession thereof to the Petitioner within 30 days from the date of the order. Opposite parties filed Misc Appeal No. 7/95 in me court of me District Judge against me order dated 6.4.94. That appeal was allowed by the learned District Judge vide his judgment dated 14.9.95. Hence mis revision.
3. I have heard Mr. P.K. Barua, learned Counsel for Petitioner, Mr. B.K. Goswami, learned Senior Counsel appeared as Amicus Curiae and also Mr. A.K. Das, learned counsel for Respondents.
4. The first contention of Mr. P.K. Barua, learned Counsel for Petitioner is that no appeal lies before the learned District Judge as the order was passed by the learned Assistant District Judge on appellate side and as such the order of the learned District Judge is liable to the set aside and quashed.
An appeal may be competent before this Court (not decided for die purpose of this case). So, this order of the learned District Judge is liable to be quashed which I hereby do. It is at this stage that me matter needs serious consideration. Mr. A.K. Das, learned Counsel for opposite parties submits mat the revisional court by quashing an order without jurisdiction or lacking jurisdiction must not bring into existence or allow an illegal order to hold the field. He further submits that the revisional court by setting aside an order should not bring into existence/revive an invalid order and if mere is such a situation an order lacking jurisdiction need not be set aside if me result would be me revival of an illegal order. In this connection, Mr. A.K. Das, learned Counsel for Respondents relies on
14. In Mohd. Swalleh v. Illrd AdJ similar view was also expressed by this Court. In that case the order passed by the prescribed authority under the U.P. (Temporary) control of Rent and Eviction Act, 1947 was set by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the prescribed authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The order of the High Court was affirmed by this Court on the ground that though technically the Appellant had a point regarding the jurisdiction of the District Judge but the order of the prescribed authority itself being bad, no exception can be taken against the refusal of the High Court to exercise powers under Article 226.
15. Therefore, in view of the above ratio laid down by this Court, we hold that even if the Member of Board of Revenue had no power to issue direction for giving notice for refund of the excess amount paid, no exception can be taken to the said order if it is found that legally the Appellant was paid excess compensation under the Act.
5. Now, the question is that whether the learned Assistant District Judge will have the jurisdiction to pass an order of injunction after disposal of the appeal. For that, let us have a look at Order 39 Rule 2 of CPC Order 39 Rule 2 of CPC is quoted below:
2. Injunction to restrain repetition or continuance of breach. - (1) In any suit for restraining the Defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the Plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the Defendant from committing the breach of contract of injury complained of, or any breach of contract of injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security ,or otherwise, as the court thinks fit.
A bare perusal of Order 39 Rule 2 will show that the court can grant an injunction either before or after the judgment. This power can also be exercised u/s 151 in an appropriate case. If any authority is required for this proposition, one may have look at the following decisions:
i)
We are of opinion that Section 151 CPC would always be available to the court executing the decree, for in such a case, when the stay order is brought to its notice, it can always act u/s 151 and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so." Reliance was also placed on
The Madras High Court was of the opinion that if a person had been dispossessed by wilfully disobeying an order of injunction the court which issued the order of injunction can after considering the circumstances of each case and the conduct of the parties always pass such an order for the ends of justice as would undo the wrong done to the party in whose favour the order of injunction had been issued. The exercise of this inherent power vested in the court is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court.
In para 9 of the judgment, the Madras High Court held as follows:
9. In our opinion, the inherent powers of this Court u/s 151 CPC are wide and are not subject to any limitation. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. In our view, the inherent power will not only be available in such a case, but it is bound to be exercised in that manner in the interests of justice. Even apart from Section 151, we should observe that as a matter of judicial policy, the court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the court''s orders. But in this case it is not necessary to go to that extent as we hold that the power is available u/s 151 CPC (ii)
18. The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke V. Chadburn Sir Robert Megarry V-C observed.
I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly, effected some charge in the rights and liabilities of Ors. , I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validity done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said mat the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.
19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. v. S. Suppiah and Sujit Pal v. Prabir Kumar Sun. In Century Flour Mills Ltd. it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.
20. In Sujit Pal a Division Bench of the Calcutta High Court has taken the same view. There, the Defendant forcibly dispossessed the Plaintiff in violation of the order of injunction and took possession of the property. The court directed the restoration of possession to the Plaintiff with the aid of police. The court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only when such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed to prevent the abuse of process of law.
6. Mr. P.K. Baruah, learned Counsel for Petitioner submits that the learned Assistant District Judge was fully within jurisdiction to pass the impugned judgment directly restoration of possession of the suit property and it does not suffer from any error of jurisdiction making it liable to be interferred in Civil revision and in this connection, he relies on 1997 (2) GLR 238 (Debasish Majumdar and Anr. v. Saha BrOrs. and ors.) Where in paras 8 and 9 this Court held as follows:
8. In my considered opinion, on the aforesaid facts and circumstances, the learned Addl. District Judge was fully within his jurisdiction to issue mandatory injunction restoring the possession of the suit land in favour of Respondents 1 and 2. In a recent decision of die Supreme Court in the case of
9. In view of the aforesaid observations of the apex court, in my considered opinion, the learned Addl. District Judge was fully within his jurisdiction to pass the impugned judgment and order directing restoration of possession of the portion of the suit property in favour of the Respondent Nos. 1 and 2. The said judgment and order of the learned Addl. District Judge was passed on a complaint of violation of the orders of temporary injunction which took place in the year 1991 by the Respondent Nos. 3 to 6 inducting tile Petitioner No. 1 as a lessee into the portion of the suit property for selling petroleum products as an agent of the Petitioner No. 2 and not for alleged violation of the said orders of temporary injunction which took place in the year 1987 in respect of which Misc Case No. 79 of 1987 filed by the Respondent No. 1 is still pending before the court. As has been held by the Apex Court in the aforesaid case of Delhi Development Authority V. Skipper Construction Co(P) Ltd. (Supra), the court will as a matter of duty enforce its orders, if necessary, by overruling any procedural or other technical objections. The said impugned judgment and order of the learned Addl. District Judge, therefore does not suffer from any error of jurisdiction liable to be interferred in this civil revision.
7. I am in respectful agreement with the decisions quoted above. It is the duty and responsibility of the court to see that an order of injunction passed by it is meticulously implemented/followed, otherwise an order of injunction will be a mere paper tiger without having the force to bite. That is not the purpose for granting an order of injunction. An order of injunction creates certain rights and liabilities between the parties and that order of injunction must be enforced by the court by passing necessary order. That is also necessary to shorten the litigation inasmuch as if that is not done, by executing a decree for perpetual injunction, a person may be put in possession on a particular date and on the next date, by using muscle power the Defendant may again take back the possession of the land. It cannot be the object or the purpose of law. In such a situation, a person so dispossessed is not to go again for a fresh round of litigation to establish his right, and to get the order for recovery of possession. He can approach the court by filing necessary application u/s 151 of CPC to obtain an order for restoration of possession and the court in such a situation can always give back/restore the possession.
8. Now, let us look to the legality and validity of the order. In this particular case, an application for restoration of possession and for mandatory injunction was filed and that is available in record and that quoted below:
In the Court of Assistant District Judge Misc (J) No. 5/94.
Petitioner : Aymuddin Dewan, Minor son of Israil Dewan represented by father, Israil Dewan, resident of Char-Bidyapara, PS and District Dhubri. v. Opp. Party : 1 Haren Ali S/o L. Dukhai SK
2. Kushai SK S/o Fakirchand SK
3. Maleka Khatun W/o Kushai SK
All are resident of Char-Bidyapara under PS & District Dhubri.
Petition under Order 39 Rule 2 read with Section 94 & 151 CPC for issue of mandatory injunction.
The humble petition of the above named Petitioner, most respectfully sheweth:
1. That Petitioner filed TS No. 440/80 in the Court of Munsiff I, for declaration of title over 2B. of land under Dag No. 1396 of Khatian No. 746 of vill Bidyapara, for declaring sale deed No. 7567 dt. 13.4.79 and sale deed No. 4421 dt. 21.6.80 to be null and void and for perpetual injunction restraining the opposite party from dispossessing the Plaintiff Petitioner from the suit land.
2. That Munsiff I, while dismissing the said suit, found overwhelming evidence of possession of the Plaintiff and in consequence of which while admitting TA No. 35/83 the learned Asst. Dist Judge, Dhubri issued injunction to the Opp. Party restraining them from dispossessing the Plaintiff-Appellant. The appeal resulted in decree and the Petitioner continued possession.
3. That while disposing of SA No. 95/85 on 27.10.92 and passing for an order for remand, the Hon''ble High Court pass direction : "During pendency of the proceeding before the lower court below, the Plaintiff''s possession of the suit land shall not be disturbed."
4. That on receiving the record on remand, learend Munisiff I, issued to opp. party-Defendants restraining them from disturbing possession of the Plaintiff and thus the petition remained in possession.
5. That as the learned Munsiff I dismissed the suit on technical point, Petitioner file TA No. 46/93 and while admitting the appeal the learned Asstt. District Judge on 31.7.93 passed a prohibitory order restraining the opp-party-Respondents from disturbing possession of the Petitioner-Appellant.
6. That the TA No. 46/93 resulted in decree on 20.12.93 and opp. party are restrained from dispossessing the Plaintiff from the suit land.
7. That on the same night of 20.12.93 the opp. party armed with deadly weapons entered into die suit land and constructed two thatched hut which was converted to one tile house later on and thus the dispossessed the Petitioner.
8.That in view of the aforesaid circumstances, the Petitioner humbly prays to issue mandatory injunction directing the opp. party to remove all constructions from the suit land and to deliver vacant possession thereof to the Petitioner failing which contempt proceeding may be initiated against them.
And the Petitioner, as in duty bound, shall ever pray.
Verification
I, Israil Dewan representing my son Aynuddin Dewan do hereby verify that the contents of above petition are mostly matter of records and contents of para 7 are true to my knowledge. I sign it at Dhubri on 23.2.94
9. As against that, objection was filed which is available at page 39 of the original case and that is quoted below:
In the Court of Asstt. District Judge at Dhubri:
Misc(J) No. 5/94 Petitioner : Aynuddin Dewan v. Opp. Party : Haren Ali and Ors.
Written objection of the opposite party (1 to 3) in the above case.
1. That the petition under Order 39 Rule 2 read with Section 151 CPC filed by the Petitioner is not maintainable in law.
2. That the petition does not disclose schedule, identity and description of the suit land for which mandatory injunction has been sought for and the same is vague frivolous and liable to be dismissed.
3. That all the allegation and statements made in die petition are imaginary, baseless, false and made for this petition only.
4. That the Petitioner/Plaintiff has not come with clean hands and suppressed many materials facts and hence not entitled to any relief as prayed for.
5. That since there is no description and identity of the suit land in the petition and even in the notice of the mandatory injunction served to these opp. parties* it is difficult to make any proper averment of the opp. parties/Defendants as to the allegations made in the petition.
6. That all the contents and allegations made in the petition are denied by the Opp. parties save and except anything if specifically admitted.
7. That the statements made para 1 of die petition are matters of records. Hence no comment.
8. That the statement made in para 2 of the petition are denied by the opp. party and submitted that Munsiff I found no evidence regarding possession of the Petitioner and the Petitioner was never in possession of the suit land. The opp. Party did not know about the said injunction whether it was all passed, it was infructuous.
9. That the statements made in para 3 and 4 of the petition are denied by the opp. parties and submitted mat me Petitioner was never in possession of the suit land.
10. That the statements made in para 5 and 6 of the petition are matters of record which require to be strictly proved and the same are denied by the opp. party.
11. That the statement and allegations made in para 7 of the petition are vehemently denied by the opp. party and submitted that from the date of purchase, the opp. party was and is in continuous possession of the suit land having dwelling houses constructed thereon. Hence, no question arisen to enter and construct houses on the suit land. In other words, on the night of 20.12.93 the opp. party did not enter or construct any house on the suit land and disposses the Petitioner alleged. Hence the petition is liable to be dismissed.
12. That the opp. party''s case is that he purchased the suit land by registered sale deed dt. 13.4.79 and 21.6.80 and from the date of purchase he is in continuous possession of the said land and constructed dwelling houses thereon. The Petitioner several times attempted to disposses the Opp. party from the S/L also filed several cases such as GR Case No. 1096/83 GR No. 193/82 GR case No. 688/80, GR Case No. 82/88 etc. and Civil cases also. After the judgment dated 20.12.93 passed in TA No. 46/93, decreeing the Petitioners appeal, the O.R obtained stay of the said judgment for the appeal period and filed second April before the Hon''ble High Court, Guwahati, along with a petition for stay of the judgment dated 20.12.93. Hence, in the present petition if any order is passed, that will be injurious to the O.P and it will cause irreparable loss to the O.P So, die petition is liable to be dismissed.
Under the circumstances, it is, therefore, prayed that your honour would graciously be pleased to dismiss the petition with cost for the ends of justice.
Verification
I, Haren Ali do hereby declare that the written objection are true 10 the best of my knowledge, belief and information and I sign this verification this 17th day of May/94.
Sd/illegible
10. Mr. B.K. Goswami, learned Senior Advocate as Amicus Curiae made elaborate arguments for the assistance of the court regarding scope of injunction and power of the court to grant injunction. He submitted that injunction can be granted by the courts under Order 39 and Section 151 Code of Civil Procedure. He also urged that court can also grant mandatory injunction to uphold the cause of justice and to compell a person to give up some benefit which a person obtains by violating/ignoring an order of injunction. He must be forced to shead such benefits. After all justice is our goal and to arrive at that end, the means adopted even though somewhat irregular, that should not be disturbed by the Revisional court, unless the procedure adopted is blatantly erroneous and or so arbitrary/capricious as to shock judicial conscience. If a court by adhering to the principle of natural justice passes an order for the ends of justice the source of it in the absence of any prohibition/bar or well laid down procedure in the code can always be traced to Section 151 CPC Law and enforcement of it should not be interpreted in a manner which will encourage a person to wield his muscle power to throttle a decision arrived at after a long drawn battle. The courts should always have the anxiety to give the fruits of the litigation to the person in whose favour the decision has been made. In the absence of it the justice delivery system shall get a body blow and litigation shall never reach finality. The confidence of the people in the system shall stand eroded, the courts have a duty to be on guard against such an eventuality.
11. The learned judge examined the witnesses and certain documents also were exhibited before him and the learned judge by a considered judgment has passed the order dated 6.4.95 in Misc (J) Case No. 5/94. Accordingly, I do not find any error of jurisdiction and/or infirmity in the order. This revision petition is accordingly allowed and the order passed by the learned District Judge, Dhubri in Misc Appeal No. 7/95 shall stand quashed and the order dated 6.4.95 passed by the learned Asstt. District Judge, Dhubri in Misc (J) Case No. 5/94 is restored back to file.
