High Court Punjab-Haryana High Court

Suresh Saggar vs Vijay Saggar on 23 October, 2009

Punjab-Haryana High Court
Suresh Saggar vs Vijay Saggar on 23 October, 2009
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
Civil Revision No. 1394 of 2008 (O&M)
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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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(1) of S. 47, if they are not allowed to challenge the
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
Civil Revision No. 1394 of 2008 (O&M)
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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
Civil Revision No. 1394 of 2008 (O&M)
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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.