Skip to content


Minerva Shiksha Samiti Vs. Smt. Mithlesh Kumari D/O Chaudhari Bhagwan Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 350 of 1984
Judge
Reported in1985(1)WLN1
AppellantMinerva Shiksha Samiti
RespondentSmt. Mithlesh Kumari D/O Chaudhari Bhagwan Singh
DispositionPetition allowed
Cases Referred and Chagan Lal v. Nanhe Shah
Excerpt:
.....after site inspection--held it committed a jurisdictional error and revision is maintainable.;the learned trial court has committed jurisdictional error when it did not consider the most material evidence i.e. the commission's report after inspecting the site on 5-7-1984 and the other affidavits submitted in support of the application. the petitioner has also filed an affidavit on 12-7-1984 explaining as to under what circumstances it had to remove his goods from the premises. after taking into consideration all the facts and circumstances of the case. i am of the opinion that the revision petition should be accepted.;revision allowed with costs - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986,..........a compromise on 11-7-1982 out side the court and in the said compromise had agreed to vacate the suit premises in the 1st week of february 1983 and in pursuance to that agreement the petitioner herself had vacated the portion of the suit premises in the month of june. 1984 as will be evident by the site inspection report dated 16th july, 1984, wherein the commissioner did not find any articles of the petitioner present in the premises, which was locked from inside by the non-petitioner and has placed reliance on ganesh anigrahi v. joore sahu : air1973ori232 , lakshminarasimhaih v. valakki air 1965 mysore 310 and mahua v. union of india and ors. : air1971cal507 .9. on the other hand, learned counsel for the petitioner has submitted that the learned trial court has committed serious.....
Judgment:

S.N. Bhargava, J.

1. This is a revision petition against the order of Munsiff cum Judicial Magistrate, Bharatpur passed on 18-7-84 rejecting the application filed by the petitioner under Section 151 CPC for grant of mandatory injunction.

2. Petitioner Minerva Shiksha Samiti is running a school having more than 350 students in the disputed premises, which was taken on rent from the mother of the non-petitioner in July, 1978 at the rate of Rs. 100/-P.M. The rent was gradually increased to Rs. 180/- P.M. The non-petitioner started harassing the petitioner and therefore, it had become necessary for the petitioner to file the present suit on 9-7 82, for permanent injunction restraining the non-petitioner from interfering with the peaceful possession of the disputed property. Along with the plaint the plaintiff had also filed an application under Order 39, Rule 1 and 2 Civil Procedure Code. An Ad-intenm order was passed by the trial Court on 9-7.1982 and since the non-petitioner refused to accept the service, ex-parte proceedings were ordered on 31-7-1982 and the ad-interim order was confirmed by order dt. 5-8-1982 restraining the defendant from dispossessing the plaintiff from the disputed premises and further not to interfere with the plaintiff's right to use and enjoy the whole of the disputed property The suit was dismissed in default on 6-10-1982. The petitioner moved an application for restoration and the suit was restored on 11-11-82 and there after the suit was decreed ex-parte on 9-12-1982 Thereafter an application under Order 9 Rule 13 CPC was filed by the non-petitioner for setting side the ex parte decree and the trial Court by its order 14-1-83 set aside the ex parte decree & restored the suit to its original number Inspite of the order of the trial Court dated 5-5-1982, the non-petitioner locked the disputed premises from inside on 29-6-1984 and, therefore, the petitioner moved an application Under Section 151 CPC on 2-7-84 supported by an affidavit of Shri Mohan Singh The trial Court appointed a Commissioner and issued notices of the said application to the non-petitioner. The non petitioner filed a reply to the said application on 6-7-1984 The Commissioner inspected the site on 5-7 1984 and submitted its report. Another Commissioner was appointed, who inspected the site on 16-7-1984 and also submitted his report. The trial Court after hearing the parties, rejected the application dated 2-7-1984 Under Section 151 CPC and it is against this order that the present revision petition has been filed.

3. Learned Counsel for the non-petitioner has taken a preliminary objection that the revision petition is not maintainable as the impugned order is covered under Order 39, Rule 1 and 2 CPC and which is appealable and therefore, the petitioner eight to have filed an appeal against the impugned order dt. '8-7-1984 and has placed reliance on Chandmal v. Ram Kishan AIR 1957 RLW 54, Pukhraj v. Ghawar Chand 1974 RLW 59, Nando Pictures v. Art Pictures : AIR1956Cal428 and Ram Chandra v. M/s Ram Rakhmal AIR 1971 Raj. 292 He has further submitted that even if the order is held to have been passed Under Section 151 CPC and not covered under Order 39, Rule 1 and 2 CPC the High Court should not interfere in revision in such matter and has placed reliance on Nand v. District Judge 1972 RLW 512 Ajmer Singh v. Om Prakash : AIR1978All15 and Prem Chand v. Bajrangi Bai and has submitted that since the order passed Under Section 151 CPC is discretionary, the revision petition is not maintainable even if the order is wrong and illegal unless there is an jurisdictional error.

4. On the other hand, learned Counsel for the petitioner has submitted that the order passed Under Section 151 CPC is not appealable and only revision petition is the proper remedy and in this connection he has placed reliance on Bevisnav v. Parma : AIR1964Ori156 , Mohni Modak v. Swaran Lata AIR 1976 Cal 371, Bajrang Rai v. Ismail Minya : AIR1978Pat339 , Zila Pahshad v. B.R. Sharma (FF) : AIR1970All376 , Gopal Krishna and Ors. v. State and Ors. AIR 1976 Cal 341, Ammadar v. Aziz Dar AIR 1977 J&K; 67, Sanjabam Mamta Devi v. V.C. Manipur University AIR 1983 Gauhati 8, Smt. Gita Devi v. Jokhi Ram Mohan Lal : AIR1984Pat43 and Harihar Pati and Anr. v. Dyetary Khhtoi AIR 1984 Ori 38.

5. He has further submitted that the injunction in the mandatory form can be issued under the inherent powers of the Court Under Section 151 CPC and in that connection has placed reliance on Manohar Lal v. Seth Hari Lal : AIR1962SC527 Manga and Anr. v. Rustam and Anr. , Shri Rang Padmaaban Paropdesai v. Marino AIR 1975 Goa 23 Madan Mohan v. Ravti Prasad AIR 1977 RLW 386 Bajrung Rai v. Ismail Mian : AIR1978Pat339 Bhagel Mina v. Mehboob Chik AIR 1878 Pat 318 and Gowardhan Singh v. Mulak Raj AIR 1973 J&K; 67.

6. I have considered the submissions made by learned Counsel for the parties in this respect and I have also perused the various authorities cited at the bar. In my opinion, the preliminary objection raised by the learned Counsel for the non-petitioner is not maintainable. The application was moved only Under Section 151 CPC and ordinarily under Order 39, Rule 1 and 2 CPC a mandatory injunction cannot be issued. The Court under its powers under Order 39. Rule 1 and 2 CPC can maintain status-quo as it existed on the date of the suit and hence I am of the view that the petitioner was right in invoking inherent powers Under Section 151 CPC to obtain mandatory injunction sought by him in his application dated 2-7 1984 and, therefore, the impugned order was not appealable, but it could be challenged only by who of tiling revision petition Under Section 151 CPC.

7. Learned Counsel for the non-petitioner vehemently submitted that even if the revision petition is maintainable this Court should not interfere in the revisional jurisdiction even if the order is wrong or not in accordance with law unless the trial Court has exercised its jurisdiction illegally or with material irregularity or the matter relates to the jurisdictional fact, and in this connection he has placed reliance on Hindustan Aeronautic v. Ajit Prasadi : (1972)ILLJ170SC M.L. Sethi v. R.L. Kapoor : [1973]1SCR697 Sher Singh v. It. Director Consolidation : [1978]3SCR982 Learned Counsel for the non-petitioner then submitted that this Court should not interfere to correct the errors of law or fact, however erroneous that may be unless they have relation to the jurisdictional fact and since the trial court has jurisdiction to hear and decide the application Under Section 151 CPC this Court should not interfere in revision petition.

8. On merits also he has submitted that the petitioner is not entitled to the discretionary relief as he is guilty of suppressing the material facts in his application dated 2nd July, 1984. According to him the petitioner had entered into a compromise on 11-7-1982 out side the court and in the said compromise had agreed to vacate the suit premises in the 1st week of February 1983 and in pursuance to that agreement the petitioner herself had vacated the portion of the suit premises in the month of June. 1984 as will be evident by the site inspection report dated 16th July, 1984, wherein the Commissioner did not find any articles of the petitioner present in the premises, which was locked from inside by the non-petitioner and has placed reliance on Ganesh Anigrahi v. Joore Sahu : AIR1973Ori232 , Lakshminarasimhaih v. Valakki AIR 1965 Mysore 310 and Mahua v. Union of India and Ors. : AIR1971Cal507 .

9. On the other hand, learned Counsel for the petitioner has submitted that the learned trial Court has committed serious illegality and material irregularity in not considering the site inspection note dated 5-7-84 and other documents filed by the petitioner in support of his application under Section 151 CPC. Therefore, the order is liable to be quashed in the revision and in this connection has placed reliance on 5m/. Vimla Devi v. Jang Bahadur 1977 RLW 326, Chagan Lal v. Nanhe Shah 1982 RLW 519 and Chagan Lal v. Nanhe Shah .

10. On merits he has submitted that the alleged compromise has never taken place. The petitioner has been paying rent of the disputed premises continuously and has produced receipts upto May, 1984 in the trial Court. The alleged compromise had been denied and repudiated by the petitioner at the earliest in the reply to the application under Order 9, Rule 13 CPC, dated 17-5-1983 and therefore, there was no question of concealment of any important event. He has produced before me a copy of the complaint Under Sections 341, 342 read with Section 34 I.P.C. filed on behalf of the petitioner in this connection on 7-7-1984, which is still pending.

11. I have considered the revision petition on merits and have perused the whole record of the court below as well as various submissions and the rulings submitted the bar. In my opinion, the learned trial Court has committed jurisdictional error when it did not consider the most material evidence i.e. the Commissioner's report after inspecting the site on 5-7-1984 and the other affidavits submitted in support of the application. The petitioner has also filed an affidavit on 12-7-1984 explaining as to under what circumstances it had to remove his goods from the premises. After taking into consideration all the facts and circumstances of the case, I am of the opinion that the revision petition should be accepted, judgment of the trial court dismissing the application under Section 151 CPC dated 2-7-84 is set aside and the non-petitioner is directed to hand over the vacant possession of the property in dispute which is on rent with the petitioner forthwith, so that the school which is being run in the premises is not disturbed and the career of 350 students who are studying in the school is not jeopardised. The revision petition is therefore allowed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //