# Smt. Sukhraji Devi v. Babu Ram Kanaujia and others

- **Citation:** (2005) 4 ILRA 1241
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-14
- **Case number:** Civil Misc. Writ Petition No. 48778 of 2005
- **Bench:** Dr. B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sukhraji-devi-v-babu-ram-kanaujia-and-others-40785
- **Pages:** 4

## Headnote

Constitution of India, Art. 226- Practice
of Procedure-Order of status quo-passed
by
S.D.M.
to
maintain
the
peaceaggrieved party can file separate suit or
to take the recourse of filing application
under Order 39 rule 1 C.P.C.-but can not
be interfered under writ jurisdictionvarious reasons disclosed.

Held: Para 14

In
view
of
the
above,
we
reach
inescapable conclusion that in a matter
where the issue of title is involved, the
party has to get the grievance redressed
through the Civil Court. Petitioner ought
to have resorted to the same, and it is
still open to him, even today, to do so.
Case law discussed:
AIR 1962 SC-527
1972 ALJ-379
AIR 1989 Ker-81
AIR 1995 Ker-74
AIR 1989 Ker-164
AIR 1975 Kar-137
AIR 1955 SC-566
AIR 1971 SC-1244
AIR 1996 SC-339
2002 (8) SCC-87
AIR 1982 SC-1081
1995 Suppl (2) SCC-290
AIR 1968 SC-1165

## Text

4 All] Smt. Sukhraji Devi V. Babu Ram Kanaujia and others
1241
respondent no. 4 Mining Officer has been
impleaded by him, but no allegations of
mala fides have been alleged against him.
We could not understand the purpose of
impleading the respondent no. 4 by him as
a party is required to be impleaded by
name also in case there are allegations of
mala fide against him.

In view of the above, we do not find
any ground to interfere with. Petition
lacks merit and is accordingly dismissed.
There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 48778 of 2005

Smt. Sukhraji Devi

...Petitioner
Versus
Babu Ram Kanaujia and others

 ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Singh

Counsel for the Respondents:
S.C.

Constitution of India, Art. 226- Practice
of Procedure-Order of status quo-passed
by
S.D.M.
to
maintain
the
peaceaggrieved party can file separate suit or
to take the recourse of filing application
under Order 39 rule 1 C.P.C.-but can not
be interfered under writ jurisdictionvarious reasons disclosed.

Held: Para 14

In
view
of
the
above,
we
reach
inescapable conclusion that in a matter
where the issue of title is involved, the
party has to get the grievance redressed
through the Civil Court. Petitioner ought
to have resorted to the same, and it is
still open to him, even today, to do so.
Case law discussed:
AIR 1962 SC-527
1972 ALJ-379
AIR 1989 Ker-81
AIR 1995 Ker-74
AIR 1989 Ker-164
AIR 1975 Kar-137
AIR 1955 SC-566
AIR 1971 SC-1244
AIR 1996 SC-339
2002 (8) SCC-87
AIR 1982 SC-1081
1995 Suppl (2) SCC-290
AIR 1968 SC-1165

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
for quashing the order dated 05.06.2005
(Annex.18) passed by the Sub Divisional
Magistrate, Gyanpur, Sant Ravidas Nagar;
holding an enquiry and till then to
maintain status quo regarding possession,
over the property in dispute.

2. The facts and circumstances
giving rise to this case are that the
petitioner on the one hand and the
respondents no. 4 and 5 on the other, have
a dispute in respect of a particular piece of
land. The petitioner claims that she had
been granted a Patta in respect of the said
land under the scheme of Family Planning
and
she
is
in
possession
thereof.
Respondents no. 4 and 5 claim ownership
over the said land and filed a Civil Suit
No. 525 of 2004 for permanent injunction
against the present petitioner. However,
their application for interim relief under
Order XXXIX Rule 1 of the Code of Civil
Procedure (hereinafter called the ''C.P.C.')
is still pending and no order has yet been
passed. The respondents no. 4 and 5
approached
the
Sub
Divisional
1242 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Magistrate,
Gyanpur
and
the
Sub
Divisional Magistrate has passed the
order dated 05.06.2005 that the parties
shall maintain status quo. Hence, the
present petition.
3. Learned counsel for the petitioner
has submitted that the order passed by the
Sub Divisional Magistrate is without
jurisdiction and nullity. No order could be
passed by him as no interim order has yet
been passed in favour of the said plaintiffrespondents. Thus, the petition deserves
to be allowed and the order dated
05.06.2005 is liable to be quashed.

4. Learned Standing Counsel has
submitted that the Civil Suit is still
pending wherein the present petitioner is
the defendant and in case the respondents
no. 4 and 5 herein could not succeed in
getting an interim injunction, there is no
bar in law for the present petitioner to file
an application for interim relief before the
said Court. Even otherwise, if she
apprehends any threat to her property, she
may maintain an independent suit. More
so, the order passed by the Sub Divisional
Magistrate is in order to maintain the law
and order situation, as is evident from the
language of the order itself and once the
Civil Court passes an order, the order
passed by the Sub Divisional Magistrate
will stand superceded. Thus, the petition
should not be entertained.

We
have
considered
the
rival
submissions made by learned counsel for
the parties and perused the record.

5. The petitioner herself claims to be
in possession of the land. The order
impugned also provides for maintaining
the status quo. We fail to understand how
the order impugned is adversely affecting
the petitioner and what grievance she can
have. More so, if petitioner feels any kind
of apprehension, there is no bar in law for
her to file a separate and independent suit
against the said respondents or to apply
for interim relief in the said suit and once
she succeeds in getting the interim relief
from the Civil Court, either by moving an
application in the same suit or by filing an
independent suit, the order passed by the
Sub Divisional Magistrate will stand
superceded. In the peculiar facts and
circumstances of the case, the Civil Court
can grant an interim relief even if the case
does not fall within the ambit of Order
XXXIX Rules 1 and 2, C.P.C.

6. The Hon'ble Supreme Court in
Manohar Lal Chopra Vs. Raj Bahadur Rai
Raja Seth Hira Lal, AIR 1962 SC 527
held that the Civil Court has a power to
grant interim injunction in exercise of its
inherent jurisdiction even if the case does
not fall within the ambit of provisions of
Order 39 CPC while delivering the
judgment
the
Hon'ble
Apex
Court
considered the scope of application of the
provisions of Section 94 CPC and
observed as under:-

"It is well settled that the provisions
of the Code are not exhaustive, for the
simple reason that the Legislature is
incapable
of
contemplating
all
the
possible circumstances which may arise
in future litigation and consequently for
providing the procedure for them. The
effect of the expression 'if it is so
prescribed' in Sec. 94 is only this that
when the rules in Order 39, Civil P.C.
prescribe the circumstances in which the
temporary injunction can be issued,
ordinarily the Court is not to use its
inherent powers to make the necessary
orders in the interests of justice, but is
merely to see whether the circumstances
4 All] Smt. Sukhraji Devi V. Babu Ram Kanaujia and others
1243
of the case bring it within the prescribed
rule. If the provisions of Sec. 94 were not
there in the Code, the Court could still
issue temporary injunctions, but it could
do that in the exercise of its inherent
jurisdiction. It is in the incident of the
exercise of the power of the Court to issue
temporary injunction that the provisions
of Sec. 94 of the Code have their effect
and not in taking away the right of the
Court to exercise its inherent power."

7. The said judgment has been
followed by this Court in Dileep Kumar
Vs. Ram Saran, 1972 All LJ 379 as well
as the Patna High Court in Bhagelu Mian
Vs. Mahboob Chik, AIR 1978 Pat 318.

In exercise of the power under Order
39, Rule 1, C.P.C., injunction can also be
passed against the plaintiff, as the last two
clauses of the Rule refer to orders of
injunction against defendants, whereas the
clause (a) does not confine to application
filed by the plaintiffs. The words "by any
party to the suit" in the said clause are
sufficient enough to indicate that the
Legislature intended such orders to be
passed even on applications filed by the
defendants. The purpose for granting
temporary injunction is to maintain status
quo. (Vide Vincent Vs. Aisumma, AIR
1989 Ker 81; Sathyabhama Amma Vs.
Vijaya Amma, AIR 1995 Ker 74; and
Shiv Ram Singh Vs. Mangara, AIR 1989
All 164).

8. In Dr. Ashish Ranjan Das Vs.
Rajendra Nath Mullick, AIR 1982 Cal
529 a similar view has been reiterated.
However, it was clarified that the
defendant can pray for interim relief only
if the cause of action of the defendant is
the same as that of the plaintiff, otherwise
not.
9. In Suganda Bai Vs. Sulu Bai &
Ors., AIR 1975 Kar 137, the Division
Bench of the Karnataka High Court had
taken the same view observing that for
granting the relief to the defendant the
cause of action of the defendant as well as
the plaintiff must be the same.

10. We are not impressed by the
submissions made by learned counsel for
the petitioner that the order passed by the
Sub Divisional Magistrate is without
jurisdiction, as the order impugned itself
made it clear that the order was being
passed in order to maintain the piece.
Thus, it is evident that it has been passed
in exercise of powers under Section 145
of the Code of Criminal Procedure and it
has nothing to do with the determination,
title, right or interest of the parties in the
land in dispute. Even otherwise, the
findings recorded by the Criminal Court
in
this
respect
are
not
final
for
determining the right, interest or title, nor
binding on the Civil Court. On the other
hand, the findings recorded by the Civil
Courts in such matters are binding on
Criminal Courts. (Vide Anil Behari
Ghosh Vs. Smt. Latika Bala Dassi & Ors.,
AIR 1955 SC 566; and M/s. Karamchand
Ganga Persad & Anr. Vs. Union of India
& Ors., AIR 1971 SC 1244). It is settled
law that decisions of Civil Courts are
binding on Criminal Courts but converse
is not true.

11. In V.M. Shah Vs. State of
Maharastra & Anr., AIR 1996 SC 339, the
Apex Court held that findings of the
Criminal Court, particularly in summary
proceedings, cannot be taken note of in
Civil Court for recording the findings on
an issue. The Apex Court in K.G.
Premshankar Vs. Inspector of Police,
(2002) 8 SCC 87, reconsidered the
1244 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
aforesaid cases and held that the rule does
not
apply
universally
and
finding
recorded by the Civil Court would not
supersede the finding recorded by the
Criminal Court. The issue involved
therein had been as to whether dismissal
of the suit for damages filed by the
complainant against the accused, would
bring the criminal proceedings to end.
The reply had been in negative observing
that criminal proceedings would not be
dropped. Thus, it depends as to what
extent the previous judgments are binding
in subsequent proceedings under Sections
40, 41, 42 and 43 of the Evidence Act.

12. Issue of title cannot be
determined in summary proceedings even
under the Statutes like the Public
Premises Act, Urban Development Act,
Municipalities Act, and for determination
of such an issue, recourse has to be taken
to the Civil Court. (Vide Govt. of Andhra
Pradesh Vs. Thummala Krishna Rao &
Anr., AIR 1982 SC 1081; State of
Rajasthan Vs. Padmavati Devi & Ors,
1995 Supp (2) SCC 290; and Mohammed
Yunus Vs. Improvement Trust Jodhpur,
AIR 1999 Raj 334).

13. Even in a suit under Section 6 of
the Specific Relief Act, the question of
title is not much relevant and matter for
that purpose has to be agitated before the
Civil Court separately. Presumption of
title on the basis of possession under
Section 110 of the Evidence Act can be
drawn only where facts disclose no title in
any party. (Vide New Service Society
Ltd. Vs. K.C. Alexendar & Ors., AIR
1968 SC 1165).

14. In view of the above, we reach
inescapable conclusion that in a matter
where the issue of title is involved, the
party has to get the grievance redressed
through the Civil Court. Petitioner ought
to have resorted to the same, and it is still
open to him, even today, to do so.
15. In view of the above, it is not a
fit case for indulgence in writ jurisdiction
and the petitioner may approach the Civil
Court for redressal of her grievances.

With the aforesaid observations, the
petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2005

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 15566 of 2005

Suresh Chandra and another ..Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri V.D. Chauhan

Counsel for the Respondents:
Sri Neeraj Tiwari
Sri C.K. Rai
S.C.

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2003&Reg. 3-Absorbtion of retrenched
employee
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Corporationpetitioner being retrenched employee of
borrowing department can not claim
absorption as a matter of right after
completing
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them.