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CASE NO.: Appeal (civil)  5783 of 2006

PETITIONER: Meera Chauhan

RESPONDENT: Harsh Bishnoi & Anr

DATE OF JUDGMENT: 13/12/2006

BENCH: DR. A.R. LAKSHMANAN & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 5783 of  2006 (Arising out of SLP (C) No. 18762/2005)

TARUN CHATTERJEE,J.         Leave granted.         Bungalow No.12 at Thimayya Road, Cantonment Lucknow  (hereinafter referred to as the "Suit property") originally belonged  to Smt. Vimla Bishnoi since deceased who was the mother of the  Respondent Nos.1 and 2.   By a registered Will executed by her,  the suit property was bequeathed in favour of Anil Bishnoi, who is  the respondent No.2 in this appeal. On 15th of May 1996 Smt.  Vimla Bishnoi expired.  On 11th of June 1996 Harsh Bishnoi, who  is the respondent No.1 in this appeal, applied for mutation before  the Army Authorities, which was rejected by them by an order  dated 5th January 1998.  A suit has been filed, being Suit No. 199/2002, in the Court  of Civil Judge (Sr. Div.) Lucknow by the respondent No.1 for  declaration of title over the suit property against the respondent  No.2 on the basis of an oral family settlement of the year 1988. In  the plaint, the Respondent No.1 herein, has prayed for permanent  injunction restraining the Respondent No.2 from interfering with  his possession over the suit property. In the suit, an application for  injunction restraining the respondent No.2 from transferring,  alienating or encumbering the same has been filed. On 6th May  2002 on the application for injunction, an ex-parte interim order of  injunction restraining the respondent No.2 from transferring,  alienating or encumbering the suit property was passed. It is  therefore clear that no interim order of injunction was granted by  the Court against the respondent No.2 from interfering with  possession of the respondent No.1 in respect of the suit property.  According to the respondent No.2 neither the application for  injunction nor the ex-parte interim order of injunction was served  upon him. When the interim order of injunction was in force, more  precisely on 17th of July 2002, the appellant purchased the suit  property from the respondent No.2 at a consideration of Rs.19 lacs  and she was put into possession of the same on the same date. Thereafter, a Writ Petition being W.P. No. 4994/2002 was  filed by the respondent No.1 in the High Court of Allahabad,  (Bench at Lucknow) on 18th August 2002 against the State and the  Army Authorities as well as the appellant claiming thereby forcible  dispossession during his absence and praying for restoration of  possession.    Subsequent to the filing of the writ petition the respondent  No.1 on 20th August 2002 filed a suit being Suit No.402/2002  under Section 6 of the Specific Relief Act (in short "the Act")  before the Civil Judge, Lucknow for restoration of possession.  An  application for restoration of possession was filed by him against

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the respondent No.2 under Section 151 of the Code of Civil  Procedure, inter alia, on the allegations that he was dispossessed  from the suit property during the pendency of the suit and interim  order of injunction was in force. However, the application under  Section 151 filed in the suit was rejected on the ground that the suit  under the Act had already been filed and was pending. More than a  year thereafter, more precisely on 22nd September 2004, an  application was made at the instance of the respondent No.1 for  withdrawing the suit on the ground that the Writ Petition for  possession was pending in the High Court.   The Civil Judge,  Lucknow by an order dated 22nd September 2004 allowed the  Respondent No.1 to withdraw the Suit.   After the application for  withdrawal of the Suit was allowed, the appellant made an  application for impleadment in the Suit No.199/2002, which was  allowed after hearing the parties. While considering the application  for impleadment, the trial court made the following observation on  the question of service of notice of injunction order as well as the  application for injunction which is reproduced below: "On the record there is no document to prove before  17.7.2002 when the sale deed was executed prior to  that the opposite party had acknowledged about the  interim order passed in this case.  There is no proof   about this knowledge nor there is evidence to the  effect that even third party Smt. Meera had any  knowledge about any interim order.   Opposite party  No.3 through here affidavit had stated that she has  purchased her valuable consideration with bona fide  and she has no knowledge that any other person has  any claim on disputed property at the time of  disputed property purchased."                            (Underlining is ours)

As noted herein earlier, the application under Section 151  was rejected by the trial court.  Feeling aggrieved by the said order  the respondent No.1 moved a revisional application being C.R. No.  212/2002 before the High Court which was allowed and the order  rejecting the same was set aside. The High Court directed the trial  court to decide the matter on merits after hearing the parties.   In  the application under Section 151 of the Code of Civil Procedure  the respondent No.1 alleged his dispossession from the suit  property although he was claiming to be in possession on the basis  of the oral family settlement of the year 1988 at the time of filing  the suit and, therefore, prayed for restoration of possession.   After the remand, the application under Section 151 was  heard in presence of the appellant and the respondent Nos. 1 and 2  and the trial court by an order dated 28th July 2005 allowed the said  application directing the respondent No.2 and the appellant to  restore possession of the suit property, inter-alia, on the ground  that dispossession of the respondent No.1 from the suit property  during the pendency of the suit and the operation of the order of  injunction was not in due course of law.  Feeling aggrieved by the order of the Civil Judge (Sr. Div.)  Lucknow, the appellant filed a revisional application, which was  rejected by the impugned order by making the following  observations: "I find no illegality, irregularity or jurisdictional  in the impugned order.   During the injunction order  the plaintiff was dispossessed and restoration of  possession to the plaintiff was ordered.   The trial  court only wanted that the injunction order which  has been violated the same position which existed at  the time when the injunction was granted, should be  restored."

Feeling aggrieved thereby, the present Special Leave has

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been filed for which leave is granted.         We have heard the learned counsel for the parties and have  examined the impugned order after considering the fact of  pendency of the writ petition, suit filed under Section 6 of the Act  and the nature of relief claimed in suit no 199/2002 as noted herein  earlier. We are of the view that the High Court in the facts and  circumstances of this case ought not to have rejected the revisional  application at the admission stage. Let us, therefore, first consider  whether the High Court was justified in rejecting the revisional  application filed against the order of the trial court allowing the  application for restoration of possession, at the admission stage. As  quoted herein above, the High Court proceeded to affirm the order  of the trial court on the basis that the respondent No.1 was  dispossessed during the operation of the injunction order and also  held that the trial court only wanted the order of injunction, which  was violated, should be implemented and that the possession which  existed at the time when the order of injunction was granted should  be restored. Therefore, from the above it is clear that the High  Court proceeded to affirm the order of the trial court only on the  ground that as an order of injunction passed by that court  restraining the appellant and the respondent no. 2 from interfering  with the possession of the respondent no. 1 was violated and  therefore possession should be restored. This approach of the High  Court, in our view, was totally unsustainable as it had failed to  notice that no order of injunction restraining the respondent no. 2  from interfering with the possession of the respondent No.1 in  respect of the suit property was passed. On the other hand, it was a  matter of fact that only an order restraining the respondent no. 2  from transferring, alienating or encumbering the suit property was  passed till the disposal of the application for injunction. That apart,  in our view, the High Court was also not justified in rejecting the  civil revisional application without going into the propriety of the  order of the trial court. Such being the position, we are of the  opinion that it was improper on the part of the High Court to reject  the revisional application in the manner it was done. Let us now deal with the order of the trial court allowing the  application of the respondent No.1 under Section 151 of Code of  Civil Procedure for restoration of possession. A perusal of the  order passed by the trial court on the application under Section 151  of the Code of Civil Procedure reveals that the case of the  respondent No.1 that he had exclusively got the suit property by an  oral family settlement dated 24th December, 1988 was not prima  facie believed by it.  While considering the case of the respondent  No.1, the trial court also took into consideration that the prayer for  recording his name before the Chief Executive Officer,  Cantonment Board on the basis of such oral family settlement was  refused. The trial court on the other hand considered the case of the  respondent No.2 made against the application for restoration in  which he claimed the title of the suit property on the basis of the  registered Will executed by the mother of the Respondent Nos.1  and 2.   While dealing with this aspect of the matter, the trial court  had drawn an adverse inference against the respondent No.1 for  not filing any evidence of ownership and also accepted prima facie  the case of the respondent No.2 that he has acquired title to the suit  property on the basis of the Will executed by his mother. On the  basis of this finding, the trial court held that the ownership of the   respondent No.1 in respect of the suit property appeared to be  doubtful in view of the fact that the mother of the respondent  Nos.1 and 2 was admittedly the owner of the suit property who had  executed a Will bequeathing the suit property in favour of the  respondent No.2, as noted herein earlier.  Although the trial court in its impugned judgment could not  prima facie find title of the respondent No.1 in respect of the suit  property as noted herein above, restoration of possession in favour

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of the respondent No.1 was, however, directed basing its finding  on the fact of possession  at the time of filing of the suit and the  application for injunction. Before we deal with this question of possession as to who  was in actual possession at the relevant point of time it would be  appropriate to note that the order for restoration was passed by the  trial court on an application under Section 151 of the Code of Civil  Procedure. A question may arise whether such an application can  be entertained by the Court when specific provision under Order  39 of the Code of Civil Procedure has been made for grant of  injunction in the form of mandatory order in the exercise of power  under the said Order. Therefore to decide this aspect of the matter,  let us consider the scope of Section 151 of the Code of Civil  Procedure. Section 151 reads as under :- "151.Saving of inherent powers of  Court.- Nothing in this Code shall be deemed  to limit or otherwise affect the inherent power  of the Court to make such orders as may be  necessary for the ends of justice or to prevent  abuse of the process of the Court."

A bare perusal of Section 151 of the Code of Civil Procedure,  it cannot be said to be in dispute that Section 151 confers wide  powers on the court to make such orders as may be necessary for  the ends of justice or to prevent abuse of the process of the Court.  The power of Section 151 to pass order of injunction in the  form of restoration of possession of the code is not res integra now.  In Manohar vs. Hira Lal [AIR 1962 SC 527] while dealing  with the power of the Court to pass orders for the ends of justice or  to prevent the abuse of the process of the Court, this Court held  that the courts have inherent jurisdiction to issue temporary order  of injunction in the circumstances which are not covered under the  provisions of Order 39 of the Code of Civil Procedure. However, it  was held by this Court in the aforesaid decision that the inherent  power under Section 151 of the Code of Civil Procedure must be  exercised only in exceptional circumstances for which the Code  lays down no procedure.        At the same time, it is also well settled that when parties  violate order of injunction or stay order or act in violation of the  said order the Court can, by exercising its inherent power, put back  the parties in the same position as they stood prior to issuance of  the injunction order or give appropriate direction to the police  authority to render aid to the aggrieved parties for the due and  proper implementation of the orders passed in the suit and also  order police protection for implementation of such order. It is also well settled that when in the event of utter violation  of the injunction order, the party forcibly dispossesses the other,  the Court can order restoration of possession to the party wronged. Keeping the aforesaid principles in mind for exercising of  power under Section 151 of Code of Civil Procedure, we proceed  to consider the facts and circumstances of the case and decide  whether the High Court as well as the trial court was justified in  the facts and circumstances of the case to direct restoration of  possession.   While considering the question as to who was in possession  at the appropriate time, the trial court came to a finding on  consideration of certain electricity bills and other materials, that  the respondent No.1 was in possession of the suit property till the  respondent no.2 had forcibly dispossessed him and therefore he  was entitled to get his possession restored as he was evicted  without following any legal procedure. In the said order, the trial  court considered that although the respondent no.1 had not sought  protection of his possession either in the plaint or in the application  for injunction nor any order of injunction protecting possession  was in force, even then it directed restoration of possession in

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favour of the respondent No.1 only on a finding that the suit was  pending and that the respondent No.1 who was in possession was  dispossessed illegally. Accordingly the trial court directed  restoration of possession in the interest of justice against such  illegal action. At the risk of repetition, looking to the prayers made in the  plaint as well as in the application for injunction, we do not find  that the prayer for injunction restraining the respondent No.2 from  interfering with the possession of the respondent No.1 over the suit  property was granted.   Respondent No.1 simply prayed for an  order of injunction restraining the respondent No.2 from  transferring, alienating or encumbering the suit property till the  disposal of the application for injunction.   

Coming back to the propriety of the order of the trial court,  we may note that while allowing the application for restoration of  possession, the High Court and the trial court failed to notice the  pendency of the writ petition in which prayer for restoration for  possession was the main issue and the fact of pendency of suit  under Section 6 of the Act. Now, the question before us relates to the issue to be decided  as to who was in possession of the suit property at the time when  Suit No. 199/2002 was filed. As per the findings of the trial court,  it appears that the respondent no.1 was in possession of the suit  property and that he was unlawfully dispossessed from the suit  property by the respondent No.2 after relying on certain documents  produced by him and the court directed restoration of possession to  the respondent No. 1.  In order to find who was in possession of  the suit property the respondent no.1 relied on the report of change  of electricity meter dated 9th April, 2002 and photocopy of bail  bond dated 14th January, 2005.  Certain other electricity bills of  the year 2003 were also filed to show that the respondent no.1 was  the consumer of the electricity in the suit property.  Some other  documents to show that address of the respondent no.1 was the suit  property were also filed.  In order to show that the respondent no.2  was in possession of the suit property at the time of filing of the  suit and such possession was delivered to the appellant, reliance  was placed on the rejection of the prayer of the respondent no. 1 to  record his name being in possession of the same.  It also appears  that it was the case of the appellant that possession of the suit  property was amicably handed over to the respondent no.2 by the  respondent no. 1.  In order to come to a proper finding of fact that  who was in actual possession, the parties ought to have produced  oral evidence along with documentary evidence. In our view, the  documents on which reliance was placed by the respondent no.1  cannot conclusively prove that he was in actual possession of the  suit property at the time of dispossession.  For this purpose not  only documentary evidence would be required to be produced but  at the same time oral evidence should also be adduced by the  parties particularly when the parties dispute the question of  possession at the appropriate time and also one party made out a  case that possession of the suit property was amicably handed over  to the other party. In this view of the matter, although for deciding  an application under Section 151 of the Code of Civil Procedure, it  would not be proper to permit the parties to adduce oral evidence  but in the peculiar facts and circumstances of this case we are of  the view that the trial court ought to have directed the parties to  adduce oral evidence along with documentary evidences and also  considered the fact of pendency of the suits as noted herein earlier.   The suit filed by the respondent no.1 is not a suit for decree for  permanent injunction restraining the respondent no.2 from  interfering with possession of the suit property. There is another  aspect of this matter.  We have already noted herein earlier that at  the time of allowing the application for impleadment filed by the  appellant before the trial court, the trial court had come to a finding

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that neither the pendency of the suit nor the ex-parte order of  injunction was within the knowledge of the appellant. Therefore,  we are of the view that the appellant was a bona fide purchaser for  value without notice. Be that as it may, this question may not be  very germane in the facts of this case.  That being the position, we set aside the order of the High  Court and the trial court and direct the trial court to decide the  application for restoration afresh after permitting the parties to  adduce oral and further documentary evidence and thereafter come  to a conclusion of fact as to who was in actual possession of the  suit property at the relevant point of time. It is not now in dispute that in compliance with the order of  the trial court, which was affirmed by the High Court, possession  has now been delivered to the respondent no.1. In the event, trial  court comes to a finding that the respondent no.1 was in possession  of the suit property at the relevant time as indicated above, the  question of delivery of possession by the respondent no.1 to the  appellant shall not arise.  However, if the trial court finds that the  respondent no.1 was not in possession of the suit property at the  relevant point of time and the respondent no.2 was in possession of  the suit property, in that case the trial court shall direct restoration  of possession in favour of the appellant. The trial court is directed to dispose of the application under  Section 151 of the Code of Civil Procedure afresh within a period  of three months from the date of this judgment. If application for  injunction is still pending for adjudication, the same may also be  decided at an early date preferably within a period of three months  from the date of passing of final order on the application under  Section 151 of the Code of Civil Procedure.     Accordingly, the appeal is allowed to the extent indicated  above. There will be no order as to costs.