JUDGMENT
Sailendra Prasad Talukdar, J.
1. This is directed against order dated 27th February, 2003 passed by the learned District Judge, Howrah in Miscellaneous Appeal No. 77 of 2002 arising out of Order No. 38 dated 4th March, 2002 passed by the learned Civil Judge, (Junior Division), 2nd Court, Howrah in connection with Title Suit No. 90 of 2001.
2. Grievances of the petitioner/plaintiff may briefly be stated as follows:
The petitioner/plaintiff is the mother of the defendant/O.P.No. 1 and the proforma opposite parties. Petitioner’s husband was the ‘karta’ of the Dayabhaga Hindu family comprising of himself, the petitioner and the opposite parties as well as one Bhabatosh Das Gupta, since deceased. Petitioner’s family in order to purchase the land comprising in the suit property being Municipal premises No. 709/1, Sarat Chatterjee Road, P.S. Shibpur, Howrah, approached the Shibpur Co-operative bank as O.P. No. 1 was an employee of the said Bank since 1981 and the said Bhabatosh Das Gupta was an active member of the Co-operative. Such loan of Rs. 25,000/- was taken in the name of O. P. No. 1 for the aforesaid reason. The land was purchased by the husband of the petitioner on 19.01.1983 at a consideration money of Rs. 35,000/-. The registered deed of conveyance was executed in favour of the Shibpur Cooperative Bank Limited in view of the land agreement between the O. P. No. 1 and the said Bank. There could be no scope for any anxiety in this regard as O. P. No. 1 is son of the petitioner and was the only male member in the family. O. P. No. 1 at the relevant time had an income of about Rs. 450/- per month only and, as such, was not in a position to share the family burden and so was required to liquidate the loan amount without contributing any money towards running of the family.
3. With the ‘Stridhan’ of the present petitioner and out of further contribution made by her husband and the said Bhabatosh Das Gupta, apart from the loan amount, building was constructed on the said land. After construction of the building the petitioner along with her husband, one son, unmarried daughter as well as said Bhabatosh Das Gupta started living in the said premises. Petitioner’s husband died on 11.12.1989. After his death, the said Bhabatosh Das Gupta used to look after the family but he died as a bachelor in 1996. But, thereafter, problems cropped up as O.P. No. 1 refused to contribute any money towards running of the common mess.
4. Plaintiff’s youngest daughter, Lisa, got married to Sri Mantu Mohan Sadhu in 1998. After her daughter’s marriage, petitioner No. 1 was practically left with no fund. While residing in the said premises, petitioner could only survive with the assistance of her daughters. The land in question was reconveyed by Shibpur Co-operative Bank Ltd., in favour of O.P. No. 1 on 12.02.1998. Taking advantage of the changed situation, O.P. No. 1 tried to sell out the same. This put the petitioner with no choice but to file the suit.
5. An application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure was filed in the said suit praying for an order of injunction against the present O.P. No. 1 restraining him from selling or alienating the suit property and from evicting the petitioner from the premises.
6. Learned Trial Court passed an order directing the parties to maintain atatus quo on 18.05.2001.
7. Though the parties reside in the same premises, O. P. No. 1 was reluctant to receive the notice of such order of the learned Trial Court but, subsequently, notice of the proceeding and the order of injunction were served upon O. P. No. 1 on 29.05.2001. Such order of status quo dated 18.05.2001 was, thereafter, extended from time to time till 09.08.2001.
8. The opposite party No. 1 refused to maintain the petitioner thereby compelling her to initiate a maintenance case in which order was passed granting maintenance to the tune of Rs. 800/- per month. The injunction application was heard and disposed of by an order dated 21.09.2001.
9. Taking advantage of temporary absence, the O.P. No. 1 tried to dispossess the petitioner thereby forcing her to file an application for temporary mandatory injunction praying for restoration of possession. Thereafter, by virtue of an order dated 24. 07.2001 and with the help of the police as per direction of the learned Trial Court, the petitioner could regain her possession.
10. Opposite party No. 6 claimed to have purchased the suit property from opposite party No 1 by registered deed of conveyance dated 04.06.2001 and he was added as a party in the suit. Out of four rooms in ‘the suit property, the petitioner is still in possession of two rooms. Possession of any portion of the suit property was not handed over in favour of O.P, No. 6 in pursuant to the alleged transfer. The alleged transfer of the property took place on 04.06.2001 when admittedly the order directing the parties to maintain status quo was in force.
11. O.P. No. 6 filed an application on 04.09.2001 under Order 39 Rules 1 and 2 of the Civil Procedure Code praying for restoration of possession on the plea that he was a bona fide purchaser. Learned Trial Court allowed the said petition by order dated 04.03.2002. An appeal was preferred being Miscellaneous Appeal No. 77 of 2002 by the present petitioner but by order dated 27.02.2003, the said misc. appeal was dismissed.
12. Being aggrieved by, and dissatisfied with, the said order dated 4th March, 2002 passed by the learned Trial Court and the order dated 27th February, 2003 passed in Misc. Appeal No. 77 of 2002, the petitioner has filed the instant application under Article 227 of the Constitution praying for setting aside of the same.
13. After hearing learned Counsel for the parties and on perusal of the relevant materials it appears that in response to an application for injunction under Order 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code the learned Trial Court initially i.e., by order dated 18.05.2001, directed the parties to maintain status quo in respect of the suit property. Such order of status quo was, thereafter, extended from time to time. But on 21.09.2001 the said application under Order 39 Rules 1 and 2 read with Section 151 of the C.P. Code was rejected and the order of interim injunction was accordingly vacated.
14. Learned Counsel for the petitioner drew attention of the Court to the copy of the process server’s report in support of his contention that the copy of the interim order of injunction was served on 29.05.2001 by affixing as opposite party recused to accept the same. This was sought to be further strengthened by copy of the information slip.
15. On the other hand, learned Counsel for the O.P. No. 1 and learned Counsel for O.P. No. 6, strongly denied the aforesaid position. The materials-on-record reveal that the O.P. No. 6 filed an application for mandatory injunction and claimed to be a bona fide purchaser of the suit property for value without notice. He claimed to have purchased the entire property at a consideration of Rs. 4,90,000/- and got possession in respect of the same. He alleged that by virtue of order dated 24th July, 2001, O.P. No. 1 was directed to allow the petitioner to enter into the suit property and the local police provided the petitioner with an entry into the disputed property by breaking open the lock on 31st July, 2001, O.P. No. 6 alleged that he was dispossessed by virtue of the order dated 24th July, 2001 and, in the circumstances, he filed an application for mandatory injunction before the learned Trial Court.
16. Learned Trial Court by order dated 04.03.2002 allowed the said petition and directed the present petitioner/plaintiff to vacate the suit property.
17. It is the categorical stand of the present O.P. No. 1 that the property in question was purchased by him after taking loan from Co-operative Bank and after repayment of the said loan amount, a deed of reconveyance was executed in his favour. O.P. No. 1 denied that the petitioner was in possession at the time of his transfer of the property in favour of O.P. No. 6. Opposite party No. 6 joined O.P. No. 1 in claiming that possession was duly delivered in his favour after his purchase of the property. According to the said opposite parties, the petitioner got possession of 24. 07. 2001 and that was by virtue of an order of the Court.
18. The present petitioner is admittedly the mother of O.P. No. 1 and it is also on record that they are far from being in good terms with each other. So much so, petitioner had to file an application seeking maintenance under Section 125 of the Criminal Procedure Code.
19. The materials-on-record indicate that O.P. No. 1 executed a deed of transfer in favour of O.P. No. 6 on 4th June, 2001. According to such O. P. Nos. 1 and 6, vacant peaceful possession was delivered at that time. It cannot be denied that an ex parte order directing the parties to maintain, status quo was passed on 18th May, 2001 and that was directed to remain in force till 16th June, 2001. It was alleged by the petitioner that on 27th June, 2001, she was not allowed to enter into the suit property by O.P. No. 1. An application under Section 151 of the Civil Procedure Code was filed on 17th July, 2001 and by order dated 24th July, 2001, direction was given upon the police authority to implement the order allowing the petitioner to enter into the suit property. It was only on 31st July, 2001 that the petitioner could be provided with an entry after breaking open the lock by concerned police authority.
20. Subsequently, O.P. No. 6 was added as a party in the surt and he filed an application for temporary mandatory injunction. Application for injunction filed by the petitioner was rejected on contest on 21st September, 2001 whereas the application for temporary mandatory injunction was allowed by order dated 4th March, 2002. The miscellaneous appeal preferred as against the said order dated 04.03.2002 was dismissed on 27.02.2003.
21. Learned Counsel for the petitioner referring to Mulla’s ‘The Transfer of Property Act, 1882″ submitted that no notice is required to be served on transferee pendente lite and such transfer is subject to the proceedings in the suit. It was submitted that if alienation of the property takes place during pendency of a suit, it is hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act. In this context reference was made to the decision in the case of Sarvinder Singh v. Dalip Singh and Ors., .
22. It was next submitted that the petitioner was put back into possession by breaking open the lock and this clearly indicated that the order of the learned Court directing the parties to maintain status quo was not given due regard. ‘Status quo’ implies existing state of thing at any given point of time.
23. Relying upon the decision in the case of Krishna Kumar Khemka v. Grindlays Bank P.L.C. and Ors., , it was contended that no right can be created in favour of a third party by acting in violation of the order of the Court.
24. Attention of the Court was drawn to the decision in the case of Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and Anr., , in support of the contention that the Court is under legal obligation to direct remedial measures in order to undo the wrong. In the said case the Apex Court dealt with the power of Hon’ble Supreme Court under Article 142(1) of the Constitution of India in making orders to do complete justice.
25. Learned Counsel further contended that alienation assignment made in defiance of Court’s order is to be considered as non est in the eyes of law. Reference was made to the decision in the case of Surjit Singh and Ors. v. Harbans Singh and Ors., .
26. In the case of Bijali Naskar v. Amalendu Saha, reported in 2000 CWN 830, learned Single Bench of this Court held that a transfer in violation of an order of injunction does not convey any title and is to be treated as non-existent.
27. Learned Counsel for the petitioner in course of his submission expressed wonder as to how could the property in question be transferred in favour of a third party when an order of this Court directing the parties to maintain status quo was in force.
28. Mr. Saktinath Mukherjee, learned Counsel for the petitioner, drew attention of the Court to Section 20(3) of the Hindu Adoptions and Maintenance Act which is set out b1 herebelow:
“(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earning or property.”
29. Mr. Jiban Ratan Chatterjee, learned Counsel for the O.P. No. 1, submitted that there was nobody in the disputed property when it was transferred and none was in possession. It was submitted that O.P. No. 1 appeared on his own on 01.08.2001. According to Mr. Chatterjee, petitioner failed to prove that on the relevant date she was in possession of the disputed property.
30. While O.P. Nos. 2, 4 & 5 supported the petitioner, O.P. No. 6 contested the case and disputed the claim of the petitioner. Learned Counsel for O.P. No. 6, Mr. S.P. Roychowdhury, submitted that if O.P. No. 6 was in possession at the relevant time and was, thereafter, dispossessed illegally, his possession was to be restored. While referring to the backdrop of the present case, Mr. Roychowdhury argued that it could very well be that O.P. No. 6 is victim of a family conspiracy. According to him, the possibility of an unholy alliance between the mother and the son being petitioner and O.P. No. 1 cannot be ruled out.
31. Referring to the judgment in the case of Irrani Mundle and Ors. v. Naimuddin Sardar and Ors., reported in 39 CLJ 251, it was submitted that an order made in the course of a suit is final and cannot be retired by the Judge in the course of the same litigation.
32. In the case of Y. B. Patil and Ors. v. Y. L Patil, , it was held that principles of resjudicata can apply at a subsequent stage of the proceedings in respect of orders already rendered final in those very proceedings. In this contest Mr. Roychowdhury also referred to the decision in the case of Sushil Chandra Roy Chowdhury v. Sambhu Nath Saha, reported in 1976(1) CLJ 325.
33. Relying upon the judgment in the case of Jatindra Nath Nandi and Ors. v. Krishnadhan Nandi and Ors., reported in 56 CWN 858. Mr. Roychowdhury submitted that High Court is competent to see that proper orders are made when a matter comes up in revision. According to him, the mere fact that a particular order was not assailed cannot stand in the way of the High Court making an order in accordance with law.
34. Learned Counsel, Mr. Roychowdhury, alleged that presence of O.P. No. 6 in the suit is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Referring to the decision in the case of Savitri Devi v. District Judge, Gorakhpur and Ors., . It was submitted that avoidance of multiplicity of proceedings is also one of the objects of Order 1 Rule 10 of the Civil Procedure Code.
35. Mr. Roychowdhury, thereafter, contended that High Court has no jurisdiction to interfere with the impugned order. He referred to the decision in the case of Managing Director (MIG) Hindustan Aeronautics Ltd. and Anr., Balanagar v. Ajit Prasad Tarway, , relevant paragraph of the said judgment is set out as follows:
“In our opinion the High Court had no jurisdiction to interfere with the order of the First Appellate Court. It is not the conclusion of the High Court that the First Appellate Court had no jurisdiction to make the order that it made. The order of the First Appellate Court may be right or wrong ; may be in accordance with law or may not be in accordance with law ; but one thing is clear that it had jurisdiction to make that order. It is not the case that the First Appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code.”
36. Reference was also made to the decision in the case of State of West Bengal v. Hemant Kumar Bhattacharjee and Ors., , in support of the contention that a wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides.
37. In the present case, by order dated 27th February, 2003, the learned District Judge dismissed the miscellaneous appeal being No. 77 of 2002 which was directed against the order dated 4th March, 2002 passed by the learned Civil Judge (Junior Division), 2nd Court, Howrah in Title Suit No. 90 of 2001. The impugned judgment dated 27.02.2003 contains an elaborate discussion on various aspects of the present controversy. But, it does not seem to have taken due note of the claim of possession made by the parties. It appears that the learned Trial Court took notice of the fact that there is Ration Card, Identity Card etc., in support of the claim of the present petitioner that she along with her husband, since deceased, and others were in possession of the property. Such claim does not seem to be improbable or irrational in the backdrop of the present case. In fact, it is referred to in the impugned judgment that there is material to indicate that husband of the present petitioner died in the disputed property.
38. Much was argued in regard to the service of the copy of the order directing the parties to maintain status quo. As indicated earlier, the petitioner is equipped with copy of the process server’s report etc., in this regard, the question now arises as to whether the present petitioner was at all in physical possession of the disputed property or not. Learned Trial Court was of the view that possession was delivered in favour of the present petitioner by police authority after breaking open the lock. Such stand of the learned Trial Court was accepted by the District Judge while considering the appeal. But it is difficult to accept such proposition right now in view of the categorical assertion made on behalf of the petitioner that she had been in possession of the property though its title is the name of her son, being O.P. No. 1 for the reasons as discussed earlier. It is neither possible nor desirable to enter into the dispute in regard to title in respect of the suit property at this stage. There is, no doubt, little scope for controversy in regard to the fact that property was transferred by O.P. No. 1 in favour of O.P. No. 6. The claim of title in respect of the suit property, as made by O.P. No. 1, cannot just be lost sight of. But, even after taking into consideration that aspect, there does not appear to be any satisfactory reason as to hold that the petitioner was not in possession of the disputed property at the relevant time. There could be no rational justification for the learned Trial Court to direct the petitioner to vacate the suit premises in response to an application for injunction filed by the present O.P. No. 6 in a zeal to undo a wrong. The order of the learned Trial Court or for that matter of the learned District Judge which is now under challenge before this Court, does not clearly reflect any proper finding as to possession. In absence of a clear finding and concrete material to the satisfaction of the judicial conscience of the Court in support of the claim of possession, there could be no reason for the learned Trial Court to direct the present petitioner to vacate the suit premises and to allow an application for temporary mandatory injunction in the manner as sought for.
39. Having regard to the scope of the present application, I do not think it necessary to deal with certain other matters raised by the learned Counsel for the parties which include the right of maintenance of the mother, who is unable to maintain herself.
40. The scope and ambit of an application under Article 227 of the Constitution are, no doubt, narrow and limited. But the Court cannot also afford to remain a passive onlooker when it finds that there has been a failure to exercise jurisdiction vested in a Court and there is every reason to justify interference in order to undo a wrong. In the present case, it is not a question of mere misappreciation of facts but it is misapplication of the legal principle resulting in miscarriage of justice.
41. Considering all such facts and materials, this Court is of the view that the order under challenge suffers from inherent impropriety which calls for and justifies interference by this Court.
42. The present application under Article 227 of the Constitution succeeds. The order impugned dated 27th February, 2003 passed by the learned District Judge, Howrah in Miscellaneous Appeal No. 77 of 2002 affirming the Order No. 38 dated 4th March, 2002 passed by the learned Civil Judge, (Junior Division), 2nd Court, Howrah in connection with Title Suit No. 90 of 2001 be set aside.
44. There is no order as to costs.
45. Urgent xerox certified copy of the order, if applied for, be supplied to the parties after due compliance of legal formalities.