1. Service is complete in the case.
2. The plaintiff--respondents filed a suit for pre--emption of sale of land by one Sardhi in favour of the vendee--petitioners on two grounds, namely, (1) that the plaintiffs are the sons of the brother of the husband of the vendor and (2) that the plaintiffs are co--sharers in the suit--land. During the pendency of the suit the vendees applied to the revenue officer for partition of the suit--land. If partition is effected before the pre--emption suit is disposed of, the plaintiff--respondents would lose their character as co--sharers. To avoid the possibility of such a situation, the plaintiffs made an application to the trial Court under O. 39, R. 1(c) of the Civil P. C. for restraining the vendee--respondents (petitioners before me) from continuing the partition proceedings. The application was allowed by the trial Court, and the appeal of the vendees having failed, they have come up for revision of the appellate order.
3. Mr. V. K. Bali, the learned counsel for the vendee--petitioners, submits that it is a recognised legitimate right of the vendees to defeat the claim for pre--emption by any lawful means including changing the situation in any lawful manner before the passing of the decree which would result in the failure of the pre--emptors' claim. Counsel submits that the petitioners do not make any secret of the fact that they have rushed to the revenue officer for partition in exercise of their said legitimate right particularly when they have got the statutory right to claim partition of the joint khata. The argument of Mr. Bali is that no injunction can be granted to restrain the vendees from exercising their said lawful right of prosecuting the partition proceedings to their logical end and that if the exercise of their such right is likely to cause any injury to the plaintiffs' claim for pre--emption such proceedings cannot be restrained by a temporary injunction, as any harm accruing to a party by the exercise of a lawful right by the other side is not an injury within the meaning of that expression as used in clause (c) of R. 1 of O. 39 of the Code. There is no doubt that this Court (Verma J.) has held in Pishora Singh v. Smt. Lajo Bai, 1975-77 Pun LR 30, that the lawful exercise of a right vesting in a person cannot be said to be an injury (for purposes of R. 1 of O. 39 of the Code) and as such the same cannot furnish a ground for granting an injunction restraining such person from exercising it. There are other authorities also in support of that proposition.
4. The counsel for the petitioners contends that no temporary injunction can be granted where there is no prayer by a party applying for the temporary injunction for the grant of any such permanent relief in the suit in which the temporary injunction is prayed for. The argument of the counsel is that if at the end of the suit no permanent injunction can be granted in terms of the temporary injunction or the relief claimed by way of temporary injunction cannot ultimately be granted at all in the suit in which the ad interim injunction is prayed for, no such injunction can be granted. In support of this proposition, counsel has referred to the judgment of Parkash Narain, J. in Raman Hosiery Factory, Delhi v. J. K. Synthetics Ltd., AIR 1974 Delhi 207. The learned Judge has held that relief is granted as an interim measure till the disposal of the suit in which the validity of the claim or right that has been put forward by the party claiming the injunction has to be investigated. It has been held that if no such claim has been put forward in the suit it means that there can be no occasion for investigation of such a claim in the suit and there can be no justification for the grant of an interim relief which will just lapse on the termination of the suit, but which will leave the parties in the same position in which they were before the institution of the suit in the course of which the interim relief was sought and obtained. That, held Parkash Narain, J., is not the scope of O. 39, R. 1.
5. Nor can such an injunction be granted even under S. 151 of the Code. In support of this, counsel places reliance on the judgment of this Court in Surja v. Gopi, 1970 Cur LJ 188. The argument relating to S. 151 need not detain me at all, as it is common case of both the sides that the injunction was claimed and granted under O. 39, R. 1 and not under S. 151. had the injunction been granted under S. 151 of the Code there would have been no appeal to the learned District Judge.
6. On the other side, Mr. A. K. Jaiswal, the learned Counsel for the plaintiff--respondents, has relied on the judgment of their Lordships of the Supreme Court in Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway, AIR 1973 SC 76, and submitted that the High Court cannot interfere with an appellate order upholding the grant of a temporary injunction merely because the order of the lower appellate Court may be right or wrong or may or may not be in accordance with law so long as the lower appellate Court had the jurisdiction to make that order. Their Lordships have, however, made it distinctly clear that the High Court can of course interfere with the order of the lower appellate Court if the lower appellate Court had no jurisdiction to make the order it made. It has also observed that the statement of law made by them would not apply where the lower appellate court has exercised jurisdiction either illegally or with material irregularity.
7. In the same strain Mr. Jaiswal has referred me to the judgment of the Supreme Court in the Municipal Corporation of Delhi v. Suresh Chandra Jaipuria, AIR 1976 SC 2621. It was on the facts of that case that interference by the High Court with the concurrent findings of the two Courts below was held to be unjustified and was reversed by the Supreme Court on account of the High Court having overlooked the principles governing its jurisdiction to interfere under S. 115 of the Civil P. C. Both the Courts below had held that Suresh Chandra Jaipuria and another, the plaintiffs, had not made out any prima facie case. The High Court reversed that concurrent finding of fact and granted an injunction. No such question of interfering with any finding of fact or about there being or not being a prima facie case arises in this petition at this stage. Similarly the judgment of the Supreme Court in M/s. D. L. F. Housing and Construction Co. (P) Ltd. v. Sarup Singh, AIR 1971 SC 2324, does not advance the respondents' case any further. The Supreme Court again laid emphasis in the case of M/s. D. L. F. Housing and Construction Co. (P) Ltd. (supra) on the scope of jurisdiction of the High Court under S. 115 of the Code and held that the High Court is not competent to correct errors of fact, however gross, or even errors of law unless the said errors have relation to the jurisdiction of the Court. They made it clear that the errors in the matter of exercise of jurisdiction contemplated by cl.(c) of S. 115 may relate either to breach of some provision of law or to material defect of procedure affecting the ultimate decision as distinguished from errors either of fact of law.
8. No ruling has been cited by Mr. Jaiswal, nor do I think that it is possible to lay down, that if the Courts below have granted an ad interim injunction which the Court has no jurisdiction to grant, the High Court will express its helplessness and allow the injustice caused by the grant of such an injunction to prevail. I am unable to agree with the sweeping and wild proposition enunciated by Mr. Jaiswal that once an injunction has been granted by the trial Court and upheld by the lower appellate Court, the High Court has no jurisdiction to interfere with the same on any ground or in any circumstances. If the Courts below assume jurisdiction for granting an injunction which does not exist in them or commit illegalities or irregularities in the exercise of their jurisdiction under R. 1 of O. 39, the High Court would in my opinion be duty bound to interfere.
9. Mr. Jaiswal lastly contended that the right to file a suit for pre--emption and to pursue it to a successful end is as much a legal right of the plaintiff--pre--emptor as the defendant--vendee's right to claim partition of the joint khata and that in order to exercise the pre--emptor should also be able to obtain an injunction to restrain the defendant--vendee from claiming partition before a revenue officer so as to deprive the pre-emptor of his character of a co--sharer and thus defeat the claim for pre--emption. Such an injunction if and when asked for must, according to the submission of Mr. Jaiswal, be always granted; and in any case if it has once been granted the High Court should not interfere with the same. This proposition is also too broadly stated by Mr. Jaiswal and cannot be accepted as such. In order to exercise the right of pre--emption conferred by a statute the Court cannot become a party to help the pre--emptor to suspend the legal right of a vendee to have partition of the joint khata in case of a claim based on co--sharership.
10. I find force in the submission of Mr. V. K. Bali that the petitioners are as much entitled to defeat the pre--emptor's claim by any lawful means as the pre--emptor is entitled to pursue the claim to a successful end. The right to have joint property partitioned by a co--sharer is neither subject to the right of a pre--emptor nor suspended during the pendency of a pre--emption suit. No claim for a permanent injunction to restrain partition proceedings has either been made in the suit for pre--emption nor can such a claim be made therein. Whichever way the suit is decided the Courts below will have no jurisdiction to stay the partition proceedings. Such proceedings are absolutely independent of the suit for pre--emption and have to be conducted by an altogether different authority under a different statutory law. Right of pre--emption may not be such a piratical right as it was once understood to be; but it is no doubt a right which is fast weaning away by stages. In any case it is not such a right as would override the statutory and legal rights of others which the Legislature has neither abrogated nor diluted or even suspended during the pendency of a suit for possession under any provision in the law of pre--emption. In this view of the matter I hold that the Courts below had no jurisdiction to grant an injunction restraining partition proceedings during the pendency of a suit for possession in exercise of the plaintiff's right of pre--emption as a co--sharer. Inasmuch as the Courts below have exercised jurisdiction which does not vest in them by law, I have no hesitation in interfering in this case.
11. For the forgoing reasons I allow this petition, set aside and reverse the order of the lower appellate Court, and dismiss the application of the plaintiff--pre--emptor for temporary injunction against the defendant--petitioners from pursuing the proceedings for partition of the land in question. The parties are left to bear their own costs.
12. Revision allowed.