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Ram Sadan Biswas Vs. Mathura Mohan Hazra and ors. - Court Judgment

LegalCrystal Citation
Subject Property; Civil
CourtKolkata
Decided On
Reported inAIR1925Cal233
AppellantRam Sadan Biswas
RespondentMathura Mohan Hazra and ors.
Cases Referred and Ramayyar v. Ramayyar
Excerpt:
- .....that were claimed.4. the learned munsif passed a decree declaring the plaintiff's rights. to the land in suit, and that the plaintiff was not bound and the land in suit had not been affected by the decree in rent suit no. 168 of 1919 of his court as the said decree was fraudulent and collusive, and restraining the principal defendant from putting the land in suit up to sale in execution of the said decree,5. on appeal by the principal defendant the learned sub. j. vacated the aforesaid decree in so far as it declared the title of the plaintiff be the disputed land.6. the principal defendant has appealed to this court and the following grounds have been urged on his behalf:1st, that as upon the allegation in the plaint the plaintiff had not obtained possession for 4 cottas out of the 7.....
Judgment:

Mukerji, J.

1. Plaintiff Mathura Mohan Hazra instituted this suit against Ram Sadhan Biswas as principal defendant and Hari Sadhan Biswas as pro forma defendant in the Court of the Second Munsif at Baruipore on the following allegations:

2. The pro forma defendant held 7-1/2 cottas of land under Narendra Kumar Banerjee and others. The said land together with other lands were mortgaged by the pro forma defendant to one Srimanta Mondal, who enforced his mortgage and obtained a decree thereon and purchased the mortgaged lands. Sri Manta Mondal thereafter obtained khas possession in respect of 3-1/2 cottas out of the said 7-1/2 cottas, but being unable to get possession of the remaining 4 cottas whereon stood the homestead of the pro forma defendant) instituted a suit against the latter for khas possession and obtained a decree. The plaintiff purchased the 7-1/2 cottas of land along with some other lands from the heirs of Srimanta.

3. The principal defendant Ram Sadhan Biswas in collusion with the pro forma defendant Hari Sadhan Biswas thereafter instituted a suit for rent against the latter alleging the said 7-1/2 cottas of land to be-only 3-1/2 cottas and recovered a decree for rent in Suit No. 168 of 1919 of the said Court and put the decree into execution in Execution Case No, 808 of 1919 of the said Court and also put the said 7-1/2 cottas of land up for sale for which a date was fixed. The plaintiff, therefore, prayed for the following reliefs:-(a) that the plaintiff's right by purchase to the said 7-1/2 cottas of land might be declared and it be declared that the pro forma defendants had no right therein, (6) that the decree in Suit No. 168 of 1919 might be declared to be fraudulent and collusive and that the same might be set aside, (c) that a permanent injunction might be issued so that the principal defendant may not put up to auction the said 7-1/2 cottas of land, and it might be declared that the said land was liable to be sold for the debts of the principal defendant, (d) that a temporary injunction might be issued so that during the pendency of the suit the principal defendant may not put up to sale the said lands in Rent Execution Case No. 808 of 1919 of the said Court or in any other execution case relating to the said decree, and it might be declared that the said Execution Case No. 808 of 1919 was a fraudulent one, (e) that it might be declared that the said decree or Execution Case has not affected the plaintiff's rights and that the plaintiff is not bound thereby, and (f) that a temporary injunction might be issued to the effect that the said land may not be put up to sale. It is unnecessary to refer to two other reliefs that were claimed.

4. The learned Munsif passed a decree declaring the plaintiff's rights. to the land in suit, and that the plaintiff was not bound and the land in suit had not been affected by the decree in Rent Suit No. 168 of 1919 of his Court as the said decree was fraudulent and collusive, and restraining the principal defendant from putting the land in suit up to sale in execution of the said decree,

5. On appeal by the principal defendant the learned Sub. J. vacated the aforesaid decree in so far as it declared the title of the plaintiff be the disputed land.

6. The principal defendant has appealed to this Court and the following grounds have been urged on his behalf:

1st, that as upon the allegation in the plaint the plaintiff had not obtained possession for 4 cottas out of the 7 1/2 cottas of land the suit for declaration without a prayer for relief in the shape of recovery of possession in respect of the said 4 cottas of land was not maintainable in view of Section 42 of the Specific Relief Act.

2nd, that the Court has no jurisdiction to stay the proceedings pending before itself in view of the provisions of Section 56 of the Specific Relief Act.

7. With regard to the first contention, it is unnecessary to go into the question as to whether the portion of the relief refused by the learned Subordinate Judge was rightly refused. In any view of the matter the relief (a) set forth above stands on a different footing from the other reliefs, namely, (b) to (f). Relief (a) was claimed substantially against the pro forma defendant, who was in possession of the 4 cottas of land though a decree for possession had been obtained by the plaintiff's predecessor against that defendant.

8. It might be urged that if a declaration of plaintiff's right was sought for, he should have coupled it with a consequential relief for possession. Whether that is right or wrong in view of the fact that the plaintiff's predecessor had already obtained a decree for possession against the pro forma defendant, it is unnecessary for me to consider. That, however, cannot be said in respect of the suit in so far as it prays for reliefs against the principal defendant, to which extent the other defendant was only a pro forma defendant. The declarations sought for in that part of the suit are consequential reliefs which were prayed for in the shape of injunctions, temporary as well as permanent. It is unnecessary to discuss the authorities bearing on the interpretation to be put upon the proviso to Section 42 of the Specific Belief Act, As explained in judicial decisions which need not be specifically referred to all that the proviso to Section 42 forbids ' is a suit for a pure declaration without relief, it does not compel a plaintiff to sue for all the reliefs which could possibly be granted, or debar him from obtaining a relief which he wants unless at the same time he asks for a relief which he does not want.' Joy narain Sen Ukil v. Suchitra Debya A.I.R. 1922 Cal. 8: Aisa Siddika v. Bidhu Sekhar (1913) 17 C.L.J. 30. If the declaration of right to the property was open to objection on the ground that no consequential relief was asked for as against the pro forma defendant, that part of the decree has been rightly set aside by the learned Subordinate Judge. That objection cannot apply to the other part of the suit in which declarations coupled with other reliefs of a consequential nature were sought for against the principal defendant, for injunction is a consequential relief [Deokali Koer v. Kedar Nath (1912) 39 Cal. 704]. It cannot be said that the prayer for possession was a prayer for consequential relief appropriate to the declaration of the fraudulent character of the rent-decree and execution proceedings. The appropriate relief was a relief in the shape of injunctions which were duly applied for. The section does not authorise the dismissal of the suit but only forbids the Court to make the declaration the prayer for which is not coupled with a prayer for a consequential relief, Kunj Behari v. Keshavlal (1901) 28 Bom. 567, Sakharam Krishna v. Collector of Ratnagiri (1904) 28 Bom, 332 and Kalabhai Bapuji v. Secretary of State (1905) 29 Bom. 19. These authorities have been followed and the same view has been taken in this Court in the case of Swarnamoyi Debya v. Navadurga Debya (1909) 3 I.C. 161. The contrary view propounded by the Allahabad and Madras High Courts has not been accepted by this Court.

9. As for the second contention the words of the statute are plain. Section 56 of the Act says: 'An injunction cannot be granted to stay proceedings in a Court not subordinate to that from which the injunction is sought.'

10. It is well settled that temporary injunctions are governed not by the Act but by the provisions of the Civil Procedure Code, Order 39, Rule 1, and a temporary injunction may be granted by a Subordinate Court against a party even in respect of proceedings in a superior Court, So far as perpetual injunctions are concerned they are regulated by the Act and an injunction cannot be issued by a Court to stay proceedings in a Court not subordinate to that from which the injunction is issued. In Venkatesa Tawker v. Ramasami Chettiar (1895) 18 Mad. 338 and Ramayyar v. Ramayyar (1898) 21 Mad. 356 it has been held that a Court cannot by reason of Clause (6) of Section 56 of the Act grant an injunction in respect of proceedings before itself. I am not aware of any case in which this view has been either accept-ed or dissented from. The objection, however, is one of a highly technical character and has very little of sense in it, and puts an obstacle in some measure at least of a description which probably was never meant by the Legislature, The sources of thin relief, the Courts of Chancery in England, made abundant use of injunction as a means of controlling proceedings in other Courts which were in theory perfectly independent of them. This they did not by any order addressed to such Courts, nor by the assumption of any power to control them, but through the fundamental principle of their own jurisdiction of acting in personem and so compelling parties to suits before them to regulate their proceedings in other Courts in accordance with what the Courts of Chancery conceived to be the dictates of equity and good conscience in the particular case. It is difficult to conceive on what principle a Court can be said to be not empowered to do in respect of proceedings before itself what it thinks proper in respect of proceedings before another Court subordinate to if). I beg, therefore, to respectfully dissent from the view taken by the Madras High Court, in support of which I have not been able to discover any authority so far as any other High Court is concerned. So far as this Court is concerned I think I am not wrong in treating this question as res Integra. My view is that the prohibition operates only in respect of Courts which are not subordinate in the sense that they are co-ordinate or superior and not in respect of the Court itself which must always be taken as competent to regulate its own proceedings.

11. In this view of the matter I must hold that the appellant's contentions fail and this appeal must be dismissed with costs.


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