As observed by the Apex
Court in Manohar Lal Chopra vs. Rai
Bahadur Rao Raja Seth Hira Lal, AIR 1962
SC 527, that Order 39, Rules 1 and 2 is
not exhaustive and the situations not
covered by Order 39, Rules 1 and 2 of
the Code of Civil Procedure could be met
by passing suitable orders in fit cases
under sections 94 and 151 of the Code of
Civil Procedure. Of course, such power
is sparingly used and cannot be claimed
as a matter of right but in deserving
cases and where it is imminently
required, the court is not powerless and
may pass appropriate order of temporary
injunction at the instance of defendant
in the interest of justice. The Court
cannot be mute and silent spectator to
the illegal act and exercise of force by
the Plaintiff in dispossessing the
Defendant in the grab of court s order
of ad interim injunction and once the
court finds that the Plaintiff has taken
the law in his own hand and by abusing
the process of court has sought to
dispossess the defendant, the court may
not only pass an appropriate order for
restoration but also it becomes bounden
duty of the court to ensure that the
Defendant who has been dispossessed by
force is restored back his possession.
Such order by the court may be an
exercise of its inherent powers under
section 151 of the Code of Civil
Procedure or under section 94 of Civil
Procedure Code and need not be covered
under clauses (b) and (c) of Rule 1,
Order 39, of the Code of Civil
Procedure.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION NO.1306 OF 2010
Suneel K. Zende .. Petitioner.
V/s.
Rajab K. Sayani .. Respondent.
CORAM :A.S.OKA,J.
DATE :12th APRIL,2010
1] The submissions of the learned Counsel
appearing for the Petitioner were heard on Friday, the
9th April, 2010. The Petitioner is the original
Plaintiff and the Respondent is the original
Defendant. A suit for declaration and injunction was
filed by the Petitioner in respect of the Flat No.
A-4, admeasuring 790 square feet more particularly
described in paragraph 1 of the said plaint. The
prayer in the suit is for declaration of the ownership
in respect of the suit flat. The second prayer in the
suit is for permanent injunction restraining the
Respondent from entering into the suit flat and from
creating any third party interests. An application at
Exhibit 5 for temporary injunction was made by the
Petitioner. In the said application, a prayer was made
for injunction restraining Respondent/Defendant from
disturbing alleged possession of the Petitioner over
the suit flat. The averment made in the Plaint is
that one Mr. Liban A. Paul had entered into an
agreement for sale in respect of the suit flat from
the builder and developer after payment of entire
consideration. It is alleged that the said Mr. Liban
Paul was the owner of the suit flat. The case of the
Petitioner is that after demise of the said Mr. Liban
Paul, his legal representatives executed a
registered Deed of Gift dated 4th May 2007 in his
favour in respect of the suit flat. The Petitioner
claims to be the owner of the suit flat on the date
of institution of the suit. On 4th January, 2008, on
the application for temporary injunction at Exhibit
5, the learned Trial Judge passed an ad-interim order
directing the parties to maintain status-quo in
respect of the suit flat.
2] The Respondent appeared in the suit and filed
Written Statement and reply. In the Written Statement,
it was contended that Mr. Liban Paul was never the
owner of the suit flat and he was never in possession
thereof. It is pointed out that the builder executed
an agreement for sale in respect of the suit flat in
favour of one Mr. Abbas Kothari on 30th November, 1977
and the said agreement has been registered in the
office of the Sub-Registrar of Assurances. Reliance
is placed on the fact that the said Mr. Liban was an
employee of the builder. It is pointed out that the
said Mr.Liban was an attesting witness to the
agreement executed between the builder and said Abbas
Kothari. It is stated that on 13th August, 1976, there
was an agreement for sale in respect of the suit flat
already executed by the builder in favour of the
Respondent. Reliance is placed on various documents
including a document executed by and between the
builder , the said Abbas Kothari and the Respondent by
which the said Abbas surrendered his rights in respect
of the suit flat and handed over the original
documents to the Respondent. The Respondent claimed to
be the owner in possession on the date of institution
of the suit. By judgment and order dated 25th February,
2008, the Trial Court rejected the application for
temporary injunction. An appeal was preferred by the
Petitioner which was dismissed by the District Court.
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While dismissing the appeal, it was observed that on
the basis of ad-interim order of status-quo passed on
4th January, 2008 the Petitioner has illegally and
unlawfully dispossessed the Respondent from the suit
flat.
3] An application for mandatory injunction and
for restitution under Section 144 of the Code of Civil
Procedure, 1908 (herein after called as said Code) was
made by the Respondent for the restoration of
possession. The said application was made on the
ground that on the date of institution of suit, the
Petitioner was not in possession of the suit flat and
that he dispossessed the Respondent on the basis of
the ad-interim order of status-quo passed on 4th
January 2008. The said application was contested by
the Petitioner. By the impugned Judgment and order
dated 8th January, 2010, the said application made by
the Respondent at Exhibit 32 was allowed and the
Petitioner was ordered to place the Respondent in
possession of the suit flat. In July, 2009 the
Petitioner made an application under Rule 15 of Order
XI of the said Code seeking a direction against the
Respondent to produce documents of title. However , by
filing a reply the Respondent declined to produce the
documents. The challenge in Writ Petition under
Article 227 of the Constitution of India is to the
said judgment and order dated 8th January, 2010 by
which the Petitioner has been directed to place the
Respondent in possession of the suit flat.
4] The learned Counsel appearing for the
Petitioner pointed out that while deciding the
application at Exhibit 5, the Trial Court did not
record any finding that the Respondent was
dispossessed on the basis of the ad-interim order of
status-quo. He pointed out that though there is no
material on record, while dismissing an appeal
preferred by the Petitioner against order passed below
Exhibit 5, the Appellant Court has erroneously
observed that Trial Court has recorded such finding.
He submitted that the application on which the
impugned order has been passed was essentially an
application seeking interim mandatory injunction.
Placing reliance on the decision of the Apex Court in
the case of Dorab Cawasji Warden vs. Coomi Sorab
Warden and Others [(1990)-2 SCC-117], he submitted
that before an interim mandatory injunction is
granted, the Court has to record a finding that the
Plaintiff has a strong case for Trial. He submitted
that the Apex Court has held that the strong case
shall be of a higher standard than prima facie case
required for a prohibitory injunction. He submitted
that no finding has been recorded by the learned Trial
Judge while passing impugned order that the Respondent
has established a strong case for trial. He submitted
that in absence of such finding, mandatory injunction
could not have been granted by the Trial Court. He,
therefore, submitted that the impugned order of
delivery of possession is bad in law. The learned
Counsel appearing for the Respondent supported the
impugned judgment and order.
5] I have given careful consideration to the
submissions. The suit filed by the Petitioner proceeds
on the footing that he was in possession of the suit
flat on the date of institution of suit. On the basis
of the said contention, on 4th August, 2008 the Trial
Court passed ad-interim order on application at
Exhibit 5, directing the parties to maintain status
quo in respect of the suit flat. The application for
temporary injunction was rejected by the Trial Court
on recording a prima facie finding that the Petitioner
has failed to prove his possession of the suit flat on
the date of the institution of the suit. While
rejecting the application for temporary injunction,
Trial Court in paragraph 11 of the judgment held thus:
..... I, therefore, hold that, no
prima facie case is made out for grant of
temporary injunction as prayed by the
plaintiff in his favour. The balance of
convenience not lies in favour of the
plaintiff but in favour of the defendant.
Since the defendant, by virtue of the
agreement of the year 1976, was put in
possession of the suit flat and allegedly
dispossessed during the pendency of the
suit by the plaintiff by taking undue
advantage of the status-quo order granted
in favour of the plaintiff, therefore, the
defendant would be put to an irreparable
loss if the relief of temporary injunction
is granted against him, as prayed by the
plaintiff.
The order of rejection of injunction was confirmed in
Appeal by the District Court. A Categorical finding
recorded by the District Court is that Mr. Liban Paul
was never put in possession of the suit flat. After
recording the said finding, in paragraph 13 of the
judgment, the Appellate Court proceeded to hold
that :-
Moreover, even the order passed
by the trial court reflects that on the
basis of the status-quo order dated
4/1/08, the appellant has dispossessed
respondent from the said flat. Therefore,
the appellant on equitable grounds also,
cannot be entitled to get any relief of
interim injunction. As respondent has
already filed separate application for
restoration of the possession, that issue
need not detain me for long. But so far
as the present appeal is concerned,
absolutely no case is made out by the
appellant to show that the impugned order
of the trial court suffers from any
illegality. As on the date of the suit,
respondent was not in possession, his
application for interim injunction has to
be dismissed.
The aforesaid two orders have attained finality.
Thus, the Courts below while rejecting the application
for temporary injunction filed by the Petitioner found
that the Petitioner was not in possession of the suit
flat on the date of institution of the suit and that
on the basis of the ad-interim order of status-quo
passed in his favour, the Petitioner has dispossessed
the Respondent.
6] Perusal of the averments in the application
at Exhibit 32 made by the Respondent shows that apart
from claiming mandatory injunction, the Respondent
purported to invoke provision of 144 of the said Code.
The contention in short was that as the Respondent
was dispossessed on the basis of an ad-interim order
passed by the Trial Court which was vacated
subsequently, the principle of restitution must
apply. This is a case where there are concurrent
findings already recorded by the Courts below
rejecting the case made out by the
Petitioner/Plaintiff that he was in possession of the
suit flat on the date of institution of suit. In
fact, the finding of the Appellate Court which is
unchallenged is that on the basis of the Order of
status-quo passed by the Trial Court, the Respondent
has been dispossessed by the Petitioner. In such
situation, a Civil Court is not powerless and the
Civil Court cannot be a silent spectator. In such a
case, apart from provisions of Rule 1 and 2 of Order
XXXIX of the said Code, there are sufficient powers
vesting in the Civil Court under section 94 as well as
section 151 of the said Code for placing such a party
in the same position which existed on the date of
passing of the ad-interim order. In the case of
Harishchandra Narayan Maurya vs. Rajendraprasad
Dargahi Varma [(1997)-3-MH.L.J.-437). This Court held
thus:-
11. However, present case is not a
case where the Defendant was seeking a
temporary injunction against the
Plaintiff under clauses (b) and (c) of
Rule 1, Order 39 and Nanasahbe s case
(supra) has no application wherein the
Plaintiff on misstatement of facts or
misrepresentation of facts obtain a
order of temporary injunction from the
court against the Defendant and in the
guise and grab of that injunction order
seeks to dispossesses the Defendant and
in fact dispossess the Defendant. In
such situation, and once it is found
that in the grab of court s order; the
Plaintiff has taken law in his own hand
and by use of his muscle power
dispossessed the Defendant, the Court in
exercise of its inherent power could
always pass an order of restoration of
possession to the Defendant to meet the
ends of justice. Such power of the
Court could be traced in section 94 as
well as section 151 of the Code of Civil
Procedure. As observed by the Apex
Court in Manohar Lal Chopra vs. Rai
Bahadur Rao Raja Seth Hira Lal, AIR 1962
SC 527, that Order 39, Rules 1 and 2 is
not exhaustive and the situations not
covered by Order 39, Rules 1 and 2 of
the Code of Civil Procedure could be met
by passing suitable orders in fit cases
under sections 94 and 151 of the Code of
Civil Procedure. Of course, such power
is sparingly used and cannot be claimed
as a matter of right but in deserving
cases and where it is imminently
required, the court is not powerless and
may pass appropriate order of temporary
injunction at the instance of defendant
in the interest of justice. The Court
cannot be mute and silent spectator to
the illegal act and exercise of force by
the Plaintiff in dispossessing the
Defendant in the grab of court s order
of ad interim injunction and once the
court finds that the Plaintiff has taken
the law in his own hand and by abusing
the process of court has sought to
dispossess the defendant, the court may
not only pass an appropriate order for
restoration but also it becomes bounden
duty of the court to ensure that the
Defendant who has been dispossessed by
force is restored back his possession.
Such order by the court may be an
exercise of its inherent powers under
section 151 of the Code of Civil
Procedure or under section 94 of Civil
Procedure Code and need not be covered
under clauses (b) and (c) of Rule 1,
Order 39, of the Code of Civil
:
Procedure. In this background and legal
position, the order of the trial court
in my view is expedient and meets the
ends of justice.
(emphasis added)
7] In the circumstances, the submission of the
learned Counsel appearing for the Petitioner that
before passing impugned order, the Trial Court ought
to have recorded the finding of existence of a strong
case for Trial deserves to be rejected. An undue
advantage was taken by the Petitioner of the adinterim
order passed in his favour by dispossessing
the Respondent. The Trial Court has exercised inherent
powers by ordering the Petitioner that the Respondent
shall be placed in possession. Even if the Respondent
is placed in possession, it is obvious that his
possession will be subject to final outcome of the
suit.
8] Subject to what is observed above, no case
for interference is made out. The Petition is
rejected.
9] The learned Counsel appearing for the Petitioner
seeks continuation of interim relief granted earlier.
The said request is opposed by the Respondent. The
ad-interim relief granted on 18th February, 2010 is
extended for a period of six weeks from today, subject
to the condition on the Petitioner filing in this
Court an undertaking stating that he will not create
any third party interests in respect of the suit flat
and he will not part with possession of the suit flat.
If said undertaking is not filed within three weeks
from today, the protection granted by this Court will
come to an end and it will be open for the Respondent
to execute the impugned order.
(A.S.OKA,J.)
Print Page
Court in Manohar Lal Chopra vs. Rai
Bahadur Rao Raja Seth Hira Lal, AIR 1962
SC 527, that Order 39, Rules 1 and 2 is
not exhaustive and the situations not
covered by Order 39, Rules 1 and 2 of
the Code of Civil Procedure could be met
by passing suitable orders in fit cases
under sections 94 and 151 of the Code of
Civil Procedure. Of course, such power
is sparingly used and cannot be claimed
as a matter of right but in deserving
cases and where it is imminently
required, the court is not powerless and
may pass appropriate order of temporary
injunction at the instance of defendant
in the interest of justice. The Court
cannot be mute and silent spectator to
the illegal act and exercise of force by
the Plaintiff in dispossessing the
Defendant in the grab of court s order
of ad interim injunction and once the
court finds that the Plaintiff has taken
the law in his own hand and by abusing
the process of court has sought to
dispossess the defendant, the court may
not only pass an appropriate order for
restoration but also it becomes bounden
duty of the court to ensure that the
Defendant who has been dispossessed by
force is restored back his possession.
Such order by the court may be an
exercise of its inherent powers under
section 151 of the Code of Civil
Procedure or under section 94 of Civil
Procedure Code and need not be covered
under clauses (b) and (c) of Rule 1,
Order 39, of the Code of Civil
Procedure.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION NO.1306 OF 2010
Suneel K. Zende .. Petitioner.
V/s.
Rajab K. Sayani .. Respondent.
CORAM :A.S.OKA,J.
DATE :12th APRIL,2010
1] The submissions of the learned Counsel
appearing for the Petitioner were heard on Friday, the
9th April, 2010. The Petitioner is the original
Plaintiff and the Respondent is the original
Defendant. A suit for declaration and injunction was
filed by the Petitioner in respect of the Flat No.
A-4, admeasuring 790 square feet more particularly
described in paragraph 1 of the said plaint. The
prayer in the suit is for declaration of the ownership
in respect of the suit flat. The second prayer in the
suit is for permanent injunction restraining the
Respondent from entering into the suit flat and from
creating any third party interests. An application at
Exhibit 5 for temporary injunction was made by the
Petitioner. In the said application, a prayer was made
for injunction restraining Respondent/Defendant from
disturbing alleged possession of the Petitioner over
the suit flat. The averment made in the Plaint is
that one Mr. Liban A. Paul had entered into an
agreement for sale in respect of the suit flat from
the builder and developer after payment of entire
consideration. It is alleged that the said Mr. Liban
Paul was the owner of the suit flat. The case of the
Petitioner is that after demise of the said Mr. Liban
Paul, his legal representatives executed a
registered Deed of Gift dated 4th May 2007 in his
favour in respect of the suit flat. The Petitioner
claims to be the owner of the suit flat on the date
of institution of the suit. On 4th January, 2008, on
the application for temporary injunction at Exhibit
5, the learned Trial Judge passed an ad-interim order
directing the parties to maintain status-quo in
respect of the suit flat.
2] The Respondent appeared in the suit and filed
Written Statement and reply. In the Written Statement,
it was contended that Mr. Liban Paul was never the
owner of the suit flat and he was never in possession
thereof. It is pointed out that the builder executed
an agreement for sale in respect of the suit flat in
favour of one Mr. Abbas Kothari on 30th November, 1977
and the said agreement has been registered in the
office of the Sub-Registrar of Assurances. Reliance
is placed on the fact that the said Mr. Liban was an
employee of the builder. It is pointed out that the
said Mr.Liban was an attesting witness to the
agreement executed between the builder and said Abbas
Kothari. It is stated that on 13th August, 1976, there
was an agreement for sale in respect of the suit flat
already executed by the builder in favour of the
Respondent. Reliance is placed on various documents
including a document executed by and between the
builder , the said Abbas Kothari and the Respondent by
which the said Abbas surrendered his rights in respect
of the suit flat and handed over the original
documents to the Respondent. The Respondent claimed to
be the owner in possession on the date of institution
of the suit. By judgment and order dated 25th February,
2008, the Trial Court rejected the application for
temporary injunction. An appeal was preferred by the
Petitioner which was dismissed by the District Court.
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While dismissing the appeal, it was observed that on
the basis of ad-interim order of status-quo passed on
4th January, 2008 the Petitioner has illegally and
unlawfully dispossessed the Respondent from the suit
flat.
3] An application for mandatory injunction and
for restitution under Section 144 of the Code of Civil
Procedure, 1908 (herein after called as said Code) was
made by the Respondent for the restoration of
possession. The said application was made on the
ground that on the date of institution of suit, the
Petitioner was not in possession of the suit flat and
that he dispossessed the Respondent on the basis of
the ad-interim order of status-quo passed on 4th
January 2008. The said application was contested by
the Petitioner. By the impugned Judgment and order
dated 8th January, 2010, the said application made by
the Respondent at Exhibit 32 was allowed and the
Petitioner was ordered to place the Respondent in
possession of the suit flat. In July, 2009 the
Petitioner made an application under Rule 15 of Order
XI of the said Code seeking a direction against the
Respondent to produce documents of title. However , by
filing a reply the Respondent declined to produce the
documents. The challenge in Writ Petition under
Article 227 of the Constitution of India is to the
said judgment and order dated 8th January, 2010 by
which the Petitioner has been directed to place the
Respondent in possession of the suit flat.
4] The learned Counsel appearing for the
Petitioner pointed out that while deciding the
application at Exhibit 5, the Trial Court did not
record any finding that the Respondent was
dispossessed on the basis of the ad-interim order of
status-quo. He pointed out that though there is no
material on record, while dismissing an appeal
preferred by the Petitioner against order passed below
Exhibit 5, the Appellant Court has erroneously
observed that Trial Court has recorded such finding.
He submitted that the application on which the
impugned order has been passed was essentially an
application seeking interim mandatory injunction.
Placing reliance on the decision of the Apex Court in
the case of Dorab Cawasji Warden vs. Coomi Sorab
Warden and Others [(1990)-2 SCC-117], he submitted
that before an interim mandatory injunction is
granted, the Court has to record a finding that the
Plaintiff has a strong case for Trial. He submitted
that the Apex Court has held that the strong case
shall be of a higher standard than prima facie case
required for a prohibitory injunction. He submitted
that no finding has been recorded by the learned Trial
Judge while passing impugned order that the Respondent
has established a strong case for trial. He submitted
that in absence of such finding, mandatory injunction
could not have been granted by the Trial Court. He,
therefore, submitted that the impugned order of
delivery of possession is bad in law. The learned
Counsel appearing for the Respondent supported the
impugned judgment and order.
5] I have given careful consideration to the
submissions. The suit filed by the Petitioner proceeds
on the footing that he was in possession of the suit
flat on the date of institution of suit. On the basis
of the said contention, on 4th August, 2008 the Trial
Court passed ad-interim order on application at
Exhibit 5, directing the parties to maintain status
quo in respect of the suit flat. The application for
temporary injunction was rejected by the Trial Court
on recording a prima facie finding that the Petitioner
has failed to prove his possession of the suit flat on
the date of the institution of the suit. While
rejecting the application for temporary injunction,
Trial Court in paragraph 11 of the judgment held thus:
..... I, therefore, hold that, no
prima facie case is made out for grant of
temporary injunction as prayed by the
plaintiff in his favour. The balance of
convenience not lies in favour of the
plaintiff but in favour of the defendant.
Since the defendant, by virtue of the
agreement of the year 1976, was put in
possession of the suit flat and allegedly
dispossessed during the pendency of the
suit by the plaintiff by taking undue
advantage of the status-quo order granted
in favour of the plaintiff, therefore, the
defendant would be put to an irreparable
loss if the relief of temporary injunction
is granted against him, as prayed by the
plaintiff.
The order of rejection of injunction was confirmed in
Appeal by the District Court. A Categorical finding
recorded by the District Court is that Mr. Liban Paul
was never put in possession of the suit flat. After
recording the said finding, in paragraph 13 of the
judgment, the Appellate Court proceeded to hold
that :-
Moreover, even the order passed
by the trial court reflects that on the
basis of the status-quo order dated
4/1/08, the appellant has dispossessed
respondent from the said flat. Therefore,
the appellant on equitable grounds also,
cannot be entitled to get any relief of
interim injunction. As respondent has
already filed separate application for
restoration of the possession, that issue
need not detain me for long. But so far
as the present appeal is concerned,
absolutely no case is made out by the
appellant to show that the impugned order
of the trial court suffers from any
illegality. As on the date of the suit,
respondent was not in possession, his
application for interim injunction has to
be dismissed.
The aforesaid two orders have attained finality.
Thus, the Courts below while rejecting the application
for temporary injunction filed by the Petitioner found
that the Petitioner was not in possession of the suit
flat on the date of institution of the suit and that
on the basis of the ad-interim order of status-quo
passed in his favour, the Petitioner has dispossessed
the Respondent.
6] Perusal of the averments in the application
at Exhibit 32 made by the Respondent shows that apart
from claiming mandatory injunction, the Respondent
purported to invoke provision of 144 of the said Code.
The contention in short was that as the Respondent
was dispossessed on the basis of an ad-interim order
passed by the Trial Court which was vacated
subsequently, the principle of restitution must
apply. This is a case where there are concurrent
findings already recorded by the Courts below
rejecting the case made out by the
Petitioner/Plaintiff that he was in possession of the
suit flat on the date of institution of suit. In
fact, the finding of the Appellate Court which is
unchallenged is that on the basis of the Order of
status-quo passed by the Trial Court, the Respondent
has been dispossessed by the Petitioner. In such
situation, a Civil Court is not powerless and the
Civil Court cannot be a silent spectator. In such a
case, apart from provisions of Rule 1 and 2 of Order
XXXIX of the said Code, there are sufficient powers
vesting in the Civil Court under section 94 as well as
section 151 of the said Code for placing such a party
in the same position which existed on the date of
passing of the ad-interim order. In the case of
Harishchandra Narayan Maurya vs. Rajendraprasad
Dargahi Varma [(1997)-3-MH.L.J.-437). This Court held
thus:-
11. However, present case is not a
case where the Defendant was seeking a
temporary injunction against the
Plaintiff under clauses (b) and (c) of
Rule 1, Order 39 and Nanasahbe s case
(supra) has no application wherein the
Plaintiff on misstatement of facts or
misrepresentation of facts obtain a
order of temporary injunction from the
court against the Defendant and in the
guise and grab of that injunction order
seeks to dispossesses the Defendant and
in fact dispossess the Defendant. In
such situation, and once it is found
that in the grab of court s order; the
Plaintiff has taken law in his own hand
and by use of his muscle power
dispossessed the Defendant, the Court in
exercise of its inherent power could
always pass an order of restoration of
possession to the Defendant to meet the
ends of justice. Such power of the
Court could be traced in section 94 as
well as section 151 of the Code of Civil
Procedure. As observed by the Apex
Court in Manohar Lal Chopra vs. Rai
Bahadur Rao Raja Seth Hira Lal, AIR 1962
SC 527, that Order 39, Rules 1 and 2 is
not exhaustive and the situations not
covered by Order 39, Rules 1 and 2 of
the Code of Civil Procedure could be met
by passing suitable orders in fit cases
under sections 94 and 151 of the Code of
Civil Procedure. Of course, such power
is sparingly used and cannot be claimed
as a matter of right but in deserving
cases and where it is imminently
required, the court is not powerless and
may pass appropriate order of temporary
injunction at the instance of defendant
in the interest of justice. The Court
cannot be mute and silent spectator to
the illegal act and exercise of force by
the Plaintiff in dispossessing the
Defendant in the grab of court s order
of ad interim injunction and once the
court finds that the Plaintiff has taken
the law in his own hand and by abusing
the process of court has sought to
dispossess the defendant, the court may
not only pass an appropriate order for
restoration but also it becomes bounden
duty of the court to ensure that the
Defendant who has been dispossessed by
force is restored back his possession.
Such order by the court may be an
exercise of its inherent powers under
section 151 of the Code of Civil
Procedure or under section 94 of Civil
Procedure Code and need not be covered
under clauses (b) and (c) of Rule 1,
Order 39, of the Code of Civil
:
Procedure. In this background and legal
position, the order of the trial court
in my view is expedient and meets the
ends of justice.
(emphasis added)
7] In the circumstances, the submission of the
learned Counsel appearing for the Petitioner that
before passing impugned order, the Trial Court ought
to have recorded the finding of existence of a strong
case for Trial deserves to be rejected. An undue
advantage was taken by the Petitioner of the adinterim
order passed in his favour by dispossessing
the Respondent. The Trial Court has exercised inherent
powers by ordering the Petitioner that the Respondent
shall be placed in possession. Even if the Respondent
is placed in possession, it is obvious that his
possession will be subject to final outcome of the
suit.
8] Subject to what is observed above, no case
for interference is made out. The Petition is
rejected.
9] The learned Counsel appearing for the Petitioner
seeks continuation of interim relief granted earlier.
The said request is opposed by the Respondent. The
ad-interim relief granted on 18th February, 2010 is
extended for a period of six weeks from today, subject
to the condition on the Petitioner filing in this
Court an undertaking stating that he will not create
any third party interests in respect of the suit flat
and he will not part with possession of the suit flat.
If said undertaking is not filed within three weeks
from today, the protection granted by this Court will
come to an end and it will be open for the Respondent
to execute the impugned order.
(A.S.OKA,J.)
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