Civil Revision No. 1394 of 2008 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 1394 of 2008 (O&M)
Date of decision: 23.10.2009
Suresh Saggar
....Petitioner
Versus
Vijay Saggar
....Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: - Mr. B.R. Mahajan, Advocate,
for the petitioner.
Mr. K.S. Dadwal, Advocate,
for the respondent.
*****
VINOD K. SHARMA, J (ORAL)
This order shall dispose of Civil Revision No. 1394 of 2008
titled Suresh Saggar Vs. Vijay Saggar and Civil Revision No. 2006 of
2008 titled Vijay Saggar Vs. Suresh Saggar and another, as the
impugned order is the same.
For brevity sake, facts are being taken from Civil Revision
No. 1394 of 2008 titled Suresh Saggar Vs. Vijay Saggar.
The plaintiff/petitioner filed a suit under Section 6 of the
Specific Relief Act to recover portion of two rooms, bathroom
comprising part of property bearing No. 27, Model Town, Amritsar,
from which plaintiff claimed to have been forcibly and illegally
dispossessed by the defendants. Along with the suit, the petitioner filed
application under Order 39 Rules 1 and 2 of the Code of Civil Procedure
for grant of ad interim injunction, restraining the respondent/defendants
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from demolishing/changing the nature of the suit property or to part with
possession of the suit property in favour of any third party, during the
pendency of the suit.
The application moved under Order 39 Rules 1 and 2 of the
Code of Civil Procedure was accepted by the learned Additional Civil
Judge (Senior Division), Amritsar, on 2.8.2006 and the
respondent/defendants were restrained from demolishing/changing the
nature of the property in question or parting with possession of the same
in favour of any third party, during the pendency of the suit.
The defendant/respondent preferred an appeal against the
order passed by the learned trial Court.
The learned Additional District Judge (Adhoc) Fast Track
Court, Amritsar, partly allowed the appeal, and modified the injunction
order to the effect that the alienation, if any, made by the
respondent/defendants, shall be subject to law of lis pendens, and further
directed the defendants/respondent to file undertaking before the Court,
that he would remove the construction raised by him in the event of suit
being decreed.
Defendant/respondent, who is petitioner in Civil Revision No.
2006 of 2008, has challenged the impugned part of the order passed by
the learned Additional District Judge (Adhoc) Fast Track Court,
Amritsar.
Mr. B.R. Mahajan, learned counsel, appearing on behalf of the
petitioner has challenged the impugned order primarily on the ground,
that the order is without jurisdiction, as no appeal was competent against
the order passed by the learned trial Court in a suit filed under Section 6
Civil Revision No. 1394 of 2008 (O&M)
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of the Specific Relief Act.
Section 6 of the Specific Relief Act reads as under: –
“6. Suit by person dispossessed of immovable property.-
(1) If any person is dispossessed without his consent of
immovable property otherwise than in due course of law,
he or any person claiming through him may, by suit,
recover possession thereof, notwithstanding any other title
that may be set up in such suit.
(2) No suit under this section shall be brought-
(a) after the expiry of six months from the date of
dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in
any suit instituted under this section, nor shall any review
of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing
to establish his title to such property and to recover
possession thereof.”
The contention of the learned counsel for the petitioner is that,
the appeal filed by the defendant/respondent was barred under Section 6
(3) of the Specific Relief Act, therefore, the impugned order deserved to
be set aside.
In support of this contention, the learned counsel for the
petitioner placed reliance on the judgment of the Hon’ble Allahabad
High Court in Jamaludin and others Vs. Asimullah and others, AIR
1974 Allahabad 69, wherein the Hon’ble Allahabad High Court was
pleased to lay down as under: –
“4. It was, however, argued by the learned counsel for
the appellants that the appellants would be without a
remedy in view of the provisions contained in sub-section
Civil Revision No. 1394 of 2008 (O&M)
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correctness of the order passed by the execution Court in
appeal. Sub-section (1) of S. 47 lays down that all
questions arising between the parties to the suit in which
the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the
decree, shall be determined by the Court executing the
decree and not by a separate suit. In our opinion the
words “not by a separate suit” refer to a suit of the nature
in which the decree under execution itself has been passed.
They do not refer to a suit of a different nature which is
permitted by sub-section (4) of S. 6 of the Specific Relief
Act 1963 itself. This sub-section lays down that nothing in
this section shall bar any person from suing to establish
his title to such property and to recover possession thereof.
If the decree that is passed under Section 6 is itself open to
challenge by a regular suit permitted by sub-section (4),
there is no reason to think that an order passed in
connection with that decree on the execution side under
Section 47, Civil P.C. would be a final order and not open
to challenge by a similar regular suit. Of course, a suit
under Section 6 of the Specific Relief Act cannot be filed to
challenge an order passed under Section 47(1) of the Code
of Civil Procedure. But a regular suit to challenge that
order or for that matter to challenge the decree itself
passed under Section 6 of the Specific Relief Act, would not
be barred. To that extent the provisions of the general law
contained in Section 47(1) shall be deemed to have been
overridden by the special law contained in sub-section (4)
of S. 6 of the Specific Relief Act. So it is not correct to say
that the appellants would be without any remedy if their
appeal against the order passed by the execution Court
under Section 47(1) is not entertained.”
5. The appeal is accordingly dismissed on the
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preliminary point. In the circumstances of the case we
make no order as to costs.”
Mr. K.S. Dadwal, learned counsel, appearing on behalf of the
respondent, controverted the contentions raised by the learned counsel
for the petitioner by contending that the application moved by the
petitioner was under Order 39 Rules 1 and 2 of the Code of Civil
Procedure, which was allowed by the learned trial Court, therefore, the
appeal was competent under Order 43 Rule 1(r) of the Code of Civil
Procedure. The appeal, therefore, was rightly entertained and decided.
Learned counsel for the respondent also contended, that the
judgment relied upon by the petitioner can be of no help, as the Hon’ble
Allahabad High Court in Jamaludin and others Vs. Asimullah and
others (supra) had interpreted the provisions of Section 47 of the Code
of Civil Procedure, to hold that the execution would be continuation of
the suit, therefore, the said judgment would have no application to an
order passed under Order 39 Rules 1 and 2 of the Code of Civil
Procedure.
It was also the contention of the learned counsel for the
respondent, that the petitioner was estopped to raise objection qua the
jurisdiction of the appellate Court, as no such objection was taken by the
petitioner in appeal, which was decided on merits.
On consideration, I find force in the contentions raised by the
learned counsel for the petitioner. It is well settled law that what cannot
be granted finally cannot be granted by way of interim relief also. Once
the order passed under Section 6 of the Specific Relief Act is not
appealable, any interim order passed in the said suit, though under Order
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39 Rules 1 and 2 of the Code of Civil Procedure, would also not be
appealable. The plea of estoppel raised by the learned counsel for the
respondent also deserves to be rejected, as appeal is the creation of a
statute. In absence of a provision for appeal in statute, no jurisdiction
can be vested in Court to hear an appeal, merely by invoking principle of
estoppel, as parties by consent cannot confer jurisdiction on Court. It is
also well settled that there can be no estoppel against law.
For the reasons stated above, this revision is allowed, the
impugned order is set aside, whereas Civil Revision No. 2006 of 2008 is
rendered infructuous in view of the order passed in Civil Revision No.
1394 of 2008.
(Vinod K. Sharma)
Judge
October 23, 2009
R.S.