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Kanshi Ram Vs. Bansi Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Review No. 1 of 1974
Judge
Reported inAIR1977HP61
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 151 - Order 39, Rules 1 and 2
AppellantKanshi Ram
RespondentBansi Lal
Appellant Advocate K.D. Sud, Adv.
Respondent Advocate H.K. Bhardwaj and; P. Malhotra, Advs.
DispositionApplication rejected
Excerpt:
- .....restraining the landlord from enforcing the order of the controller during the pendency of the suit. the landlord filed an appeal, and on november 28, 1972 the learned district judge made an order vacating the injunction. thereafter, the tenant applied in revision to this court against the order of the learned district judge. this court held that the order of the controller was a nullity, the order having been made without reference to any of the statutory grounds of eviction. being a nullity, the court said, the order could be questioned by a suit in a court of law. the court observed that the order of the learned district judge vacating the injunction suffered from a jurisdictional error. the court set aside the order of the learned district judge and restored the order of the.....
Judgment:

R.S. Pathak, C.J.

1. This review petition prays for the recalling of our judgment and order dated June 19, 1974 allowing a revision petition.

2. The petitioner is the landlord of a shop in Solan. He applied under Section 13 of the Bast Punjab Urban Rent RestrictionAct for the eviction of the respondent-tenant from the shop. On July 29, 1970 the Controller passed an order of eviction in terms of a compromise arrived af between the parties. Under the compromise the tenant agreed to vacate the accommodation by February 1, 1971.

3. On March 16, 1972 a, suit was filed by the tenant for a declaration that the order dated July 29, 1970 was a nullity and he was not obliged to leave the premises. He also applied for an interim injunction. The learned Subordinate Judge granted an injunction on May 20, 1972 restraining the landlord from enforcing the order of the Controller during the pendency of the suit. The landlord filed an appeal, and on November 28, 1972 the learned District Judge made an order vacating the injunction. Thereafter, the tenant applied in revision to this Court against the order of the learned District Judge. This Court held that the order of the Controller was a nullity, the order having been made without reference to any of the statutory grounds of eviction. Being a nullity, the Court said, the order could be questioned by a suit in a court of law. The court observed that the order of the learned District Judge vacating the injunction suffered from a jurisdictional error. The Court set aside the order of the learned District Judge and restored the order of the learned Subordinate Judge granting an injunction.

4. And now this review petition has been filed by the landlord.

5. Learned counsel for the landlord urges that this Court has held that the order of the Controller is a nullity end in the result has disposed of the suit itsell Learned counsel reminds us that in a proceeding for interim injunction the court should not render a finding which terminates the suit itself in which the injunction is: prayed for. Ordinarily, we would have no hesitation in endorsing the proposition advanced by learned counsel. But let us examine what has happened in the present case. The learned Subordinate Judge granted an injunction after holding that the order of the Controller was a nullity and therefore the tenant had a prima facie case to go to trial, that the balance of convenience was in his favour and apparently an irreparable loss would be suffered in the event of his being compelled to vacate the premises. In the appeal filed by the landlord against that order, it appears that the only point pressed before the learned District Judge related to the question whether the order of the Controller was a nullity and therefore whether the suit was not barred by the East Punjab Urban Rent Restriction Act. A perusal of the order of the learned District Judge does not show that the landlord questioned the finding of the learned Subordinate Judge in relation to the balance of convenience between the parties or made any attempt to have the point determined whether the tenant would suffer irreparable loss if an injunction was not granted. When the revision was heard by this Court, again the point in controversy between the parties remained whether the order of the Controller was a nullity. No attempt was made by the landlord to show that even if the order could be described as a nullity and therefore a prima facie case could be said to exist in favour of the tenant, the ingredients of 'balance of convenience' and 'irreparable loss' were not satisfied by the tenant, and the findings of the learned Subordinate Judge in that behalf were erroneous,

6. Now, therefore; this Court was called upon to decide the question whether the order of the Controller was a nullity and a prima facie case existed in favour of the tenant. The question whether the order of the Controller was a nullity had received the detailed consideration both of the learned Subordinate Judge and of the learned District Judge, and this Court was called upon to determine that point. The Court found it necessary to consider the point in depth. Nonetheless, having regard to the nature of the jurisdiction exercised and the stage at which the suit then stood, we are of opinion that the finding of this Court that the order of the Controller was a nullity must be regarded as a finding in regard to a prima facie case only. It was not intended, and cannot be construed, as a finding disposing of the suit itself, in every application for an interim injunction in a pending suit, it is necessary for the court to enter, to some degree, into the merits of the case in order to determine whether a prima facie case exists. To what degree the court will enter will vary with the facts of each case. When the Court declares that a prima facie case exists, it intends to say that the case of the plaintiff is not without merit. It is an opinion rendered on the state of the evidence then existing on the record, and it is open to the trial Court to take a different view when all the evidence has been let in and the suit itself has to be decided. In some cases, a pure question of law alone may arise in the suit. In such a case when the Court expresses an opinion on the question in order to determine in an injunction application whether a prima facie case exists, an impression can conceivably be gathered that the suit itself has been disposed of. But when the matter is considered in deeper perspective, it will be evident that the impression is a false one. The finding is limited to the context in which it has been given. It is a finding on an application for interim relief only. Any opinion expressed by the court, whether it be of the trial Court or an appellate Court or revisional Court, cannot in law preclude the trial court from considering the issue afresh when deciding the suit, and for that purpose it must have regard to all the material then before it. In deciding that issue, it will properly have no regard to the finding rendered on the point while disposing of the application for interim injunction No matter how superior the court rendering that finding--and we would include this Court--the trial Court is bound in the proper discharge of its duties to ignore the finding when it proceeds to dispose of the suit and to apply its mind independently to the decision of the issue. The trial court will bear in mind that the opinion expressed on the merits of the suit when deciding an application for interim injunction does not operate as res judicata. Even in a case where the suit calls for the decision of a pure question of law alone, the trial court would be entitled to, and indeed is bound to, express its independent opinion on the issue of law and dispose of the suit accordingly. Conceivably, the Supreme Court may meanwhile have expressed a contrary opinion on the point of law, or the statutory law itself may have altered retrospectively. Considerations such as these and many others can come into existence after the application for interim injunction has been disposed of. .

7. Bearing these observations in mind, we are of opinion that anything said in our order dated June 19, 1974 allowing the revision petition cannot in law be treated as deciding any issue in the suit itself, and therefore the contention raised on behalf of the landlord must be rejected.

8. It is then urged by learned counsel for the landlord that when this Court found that a prima facie case existed, it should have gone on to decide whether the other two ingredients necessary for the grant of an injunction, that is to say, the balance of convenience between the parties and irreparable loss to the plaintiff, existed in the present case. Now, as has already been mentioned, the learned Subordinate Judge granted an injunction after considering the several ingredients necessary for such grant. The only finding of the learned Subordinate Judge which was challenged in appeal by the landlord was the finding relating to the existence of a prima facie case. We have perused the grounds of appeal filed before the learned District Judge, and we see no clear ground set forth therein challenging any other finding of the learned Subordinate Judge. The order of the learned District Judge is also confined to the decision whether the order of the Controller was a nullity and the suit was maintainable, that is to say, whether a prima facie case existed. Before us also, during the hearing of the revision petition, learned counsel for the landlord did not urge that this Court should also address itself to the questions whether the balance of convenience was in favour of granting an injunction and whether the tenant would suffer irreparable loss if the injunction was not granted. No such argument was raised before us. Indeed, it seems that all along the parties confined themselves to the question whether the order of the Controller was a nullity and a prima facie case existed. It was in such circumstances that having held that the learned District Judge had taken an erroneous view, this Court set aside his order and, without anything more, restored the order of the learned Subordinate Judge.

9. We see no force in this review application and, accordingly, it is rejected. There is no order as to costs.


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