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Monday, May 6, 2013

Section 9-A of the Code of Civil Procedure (Maharashtra Amendment).= The correct principle, therefore, is the one recognised and reiterated in Section 9-A - to wit, where an objection to jurisdiction of a civil court is raised to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the court from passing any interim orders. It can yet pass appropriate orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. The interim orders so passed are orders within jurisdiction when passed and effective till the court decides that it has no jurisdiction to entertain the suit. These interim orders undoubtedly come to an end with the decision that this Court had no jurisdiction. It is open to the court to modify these orders while holding that it has no jurisdiction to try the suit. Indeed, in certain situations, it would be its duty to modify such orders or make appropriate directions. For example, take a case, where a party has been dispossessed from the suit property by appointing a receiver or otherwise; in such a case, the Court should, while holding that it has no jurisdiction to entertain the suit, put back the party in the position he was on the date of suit. But this power or obligation has nothing to do with the proposition that while in force, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the Court on the question of jurisdiction." (emphasis supplied); We may also notice Section 23 of the Indian Contract Act, 1872, which lays down that the consideration or object of an agreement is lawful,unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is unlawful and every agreement executed with such an object or consideration which is unlawful is void. Since the sale deed was executed in favour of respondent No.1 in the teeth of the order of injunction passed by the trial Court, the same appears to be unlawful.


NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3937 OF 2013
(Arising out of SLP (C) No. 8987 of 2008)

Jehal Tanti and others ...Appellants

versus

Nageshwar Singh (dead) through L.Rs.
...Respondents




J U D G M E N T
G.S. SINGHVI, J.


1. This is an appeal for setting aside order dated 16.05.2007 passed by
the learned Single Judge of the Patna High Court whereby she dismissed the
second appeal filed by the appellants and upheld the decree passed by 1st
Additional District Judge, Jamui (hereinafter described as 'the lower
appellate Court') in Title Appeal No. 20 of 1989/07 of 1999.
2. The respondents filed suit for grant of a declaration that by virtue
of the sale deed executed in their favour by Bhuneshwar Tanti, son of
Dukhan Tanti, they have become owner of the suit property, but a cloud has
been created on their rights by the judgment and decree passed in Title
Suit No. 13 of 1977 filed by Smt. Pariya Devi (predecessor of the
appellants herein).
3. Smt. Pariya Devi contested the suit on several grounds including the
one that the sale deed was illegal and was not binding on her because the
same had been executed in violation of the order of temporary injunction
passed on 06.05.1971 in Suit No. 49 of 1970.
4. On the pleadings of the parties, the trial Court framed the following
issues:
"1. Whether the suit is legally maintainable.


2. Whether the suit is barred by law of limitation, estoppels,
waiver and lispendens.


3. Whether the plaintiff has got valid cause of action to file
the suit.


4. Whether the decree passed in Title Suit No. 13 of 1977 is
fraudulent, collusive and not binding upon the plaintiff.


5. Whether the plaintiff has acquired title on the basis of sale
deed dated 9.11.1973.


6. Whether the plaintiff is entitled to any decree or relief."



5. After considering the pleadings and evidence of the parties, the
trial Court dismissed the suit by holding that in view of the order of
injunction passed in Suit No.49 of 1970, Bhuneshwar Tanti was not entitled
to execute the sale deed in favour of the plaintiffs. 

The trial Court held
that the plaintiffs were very much aware of the order of injunction passed
in Title Suit No.49 of 1970 and said order dated 6.5.1971 passed by the
learned Munsif was binding on the parties and their successors.

6. The lower appellate Court adverted to the pleadings of the parties
and the order of injunction passed by the learned Munsif in Title Suit
No.49 of 1970 and held that once the suit was returned for being presented
in the Court of competent jurisdiction, the order of injunction did not
survive and the sale deed executed on 9.11.1973 cannot be castigated on the
ground of violation of the injunction order. 

The lower appellate Court
further held that the preliminary and final decrees passed in Title Suit
No.13 of 1977 were fraudulent and not binding on the plaintiffs. 

Another
finding recorded by the lower appellate Court was that sale deed dated
9.11.1973 was not hit by the doctrine of lis pendens. 
In view of these
findings, the lower appellate Court allowed the appeal of the respondents
and decreed the suit filed by them.
7. The second appeal filed by the appellants was dismissed by the
learned Single Judge of the High Court by relying upon the judgment of this
Court in Amar Chand Inani v. Union of India (1973) 1 SCC 115.

She held
that none of the questions raised in the second appeal could be termed as a
substantial question of law.

8. We have heard learned counsel for the parties and carefully perused
the record.
9. There cannot be any quarrel with the proposition of law laid down in
Amar Chand Inani's case that 
a suit is deemed to have been filed on the
date of presentation of plaint before the competent Court but the same does
not have any bearing on the question relating to legality of sale deed
dated 9.11.1973 executed by Bhuneshwar Tanti during the currency of an
order of injunction passed by the learned Munsif on 6.5.1971. 
It is not in
dispute that as on 9.11.1973, i.e., the date on which the sale deed was executed, 

the order of injunction passed by the trial Court in Suit No. 49
of 1970 was operative.

 It is also not in dispute that the order of
injunction remained effective till 1976 when the plaint was returned for
presentation before the competent Court. 

In other words, till the refiling
of the plaint, the order of injunction passed by the learned Munsif in Suit No.49 of 1970 restraining the defendants from alienating the suit property was in force and Bhuneshwar Tanti could not have executed the sale deed in favour of the respondents herein.

10. The nature and effect of an alienation made in violation of an order
of injunction was considered in Tayabbhai M. Bagasarwalla and another v.
Hind Rubber Industries Pvt. Ltd. and others (1997) 3 SCC 443 and the
following propositions were laid down:


"According to this section, if an objection is raised to the
jurisdiction of the court at the hearing of an application for
grant of, or for vacating, interim relief, the court should
determine that issue in the first instance as a preliminary issue
before granting or setting aside the relief already granted. An
application raising objection to the jurisdiction to the court is
directed to be heard with all expedition. Sub-rule (2), however,
says that the command in sub-rule (1) does not preclude the court
from granting such interim relief as it may consider necessary
pending the decision on the question of jurisdiction. In our
opinion, the provision merely states the obvious. It makes
explicit what is implicit in law. Just because an objection to
the jurisdiction is raised, the court does not become helpless
forthwith - nor does it become incompetent to grant the interim
relief. It can. At the same time, it should also decide the
objection to jurisdiction at the earliest possible moment. This
is the general principle and this is what Section 9-A reiterates.
Take this very case. The plaintiff asked for temporary
injunction. An ad interim injunction was granted. Then the
defendants came forward objecting to the grant of injunction and
also raising an objection to the jurisdiction of the court. The
court overruled the objection as to jurisdiction and made the
interim injunction absolute. The defendants filed an appeal
against the decision on the question of jurisdiction. While that
appeal was pending, several other interim orders were passed both
by the Civil Court as well as by the High Court. Ultimately, no
doubt, the High Court has found that the Civil Court had no
jurisdiction to entertain the suit but all this took about six
years. Can it be said that orders passed by the Civil Court and
the High Court during this period of six years were all non est
and that it is open to the defendants to flout them merrily,
without fear of any consequence. Admittedly, this could not be
done until the High Court's decision on the question of
jurisdiction. 
The question is 
whether the said decision of the
High Court means that no person can be punished for flouting or disobeying the interim/interlocutory orders while they were in
force, i.e., for violations and disobedience committed prior to
the decision of the High Court on the question of jurisdiction.
Holding that by virtue of the said decision of the High Court (on
the question of jurisdiction), no one can be punished thereafter
for disobedience or violation of the interim orders committed
prior to the said decision of the High Court, would indeed be
subversive of the Rule of Law and would seriously erode the
dignity and the authority of the courts. 
We must repeat that this
is not even a case where a suit was filed in the wrong court
knowingly or only with a view to snatch an interim order. As
pointed out hereinabove, the suit was filed in the Civil Court
bona fide. 
We are of the opinion that in such a case the
defendants cannot escape the consequences of their disobedience
and violation of the interim injunction committed by them prior
to the High Court's decision on the question of jurisdiction.



The learned counsel for Defendants 1 and 2 submitted that this is
not a proceeding for contempt but a proceeding under Rule 2-A of
Order 39 of the Civil Procedure Code. 
The learned counsel
submitted that proceedings under Order 39 Rule 2-A are a part of
the coercive process to secure obedience to its injunction and
that once it is found that the Court has no jurisdiction,
question of securing obedience to its orders any further does not
arise. 
The learned counsel also submitted that enforcing the
interim order after it is found that the Court had no
jurisdiction to try the said suit would not only be unjust and
illegal but would also reflect adversely upon the dignity and
authority of the Court. 
It is also suggested that the plaintiff
had instituted the present suit in the Civil Court knowing fully
well that it had no jurisdiction to try it.
 It is not possible to
agree with any of these submissions not only on principle but
also in the light of the specific provision contained in Section
9-A of the Code of Civil Procedure (Maharashtra Amendment).
 In
the light of the said provision, it would not be right to say
that the Civil Court had no jurisdiction to pass interim orders
or interim injunction, as the case may be, pending decision on
the question of jurisdiction. The orders made were within the
jurisdiction of the Court and once this is so, they have to be
obeyed and implemented. 
It is not as if the defendants are being
sought to be punished for violations committed after the decision
of the High Court on the question of jurisdiction of the Civil
Court. Here the defendants are sought to be punished for the
disobedience and violation of the order of injunction committed
before the decision of the High Court in Special Land Acquisition
Officer vs. Vishanji Virji Mepani (AIR 1996 Bom. 366). 

According
to Section 9-A, the Civil Court and the High Court did have the
power to pass interim orders until that decision. If they had
that power they must also have the power to enforce them. In the
light of the said provision, it cannot also be held that those
orders could be enforced only till the said decision but not
thereafter. The said decision does not render them (the interim
orders passed meanwhile) either non est or without jurisdiction.
Punishing the defendants for violation of the said orders
committed before the said decision (Vishanji Virji Mepani) does
not amount, in any event, to enforcing them after the said
decision. Only the orders are being passed now. The violations
are those committed before the said decision.


The correct principle, therefore, is the one recognised andreiterated in Section 9-A - to wit, 
where an objection to
jurisdiction of a civil court is raised to entertain a suit and
to pass any interim orders therein, the Court should decide the
question of jurisdiction in the first instance but that does not
mean that pending the decision on the question of jurisdiction,
the Court has no jurisdiction to pass interim orders as may be
called for in the facts and circumstances of the case. 

A mere
objection to jurisdiction does not instantly disable the court
from passing any interim orders. It can yet pass appropriate
orders. 

At the same time, it should also decide the question of
jurisdiction at the earliest possible time. 

The interim orders so
passed are orders within jurisdiction when passed and effective
till the court decides that it has no jurisdiction to entertain
the suit. 

These interim orders undoubtedly come to an end with
the decision that this Court had no jurisdiction. It is open to
the court to modify these orders while holding that it has no
jurisdiction to try the suit. 

Indeed, in certain situations, it
would be its duty to modify such orders or make appropriate
directions. 

For example, take a case, where a party has been
dispossessed from the suit property by appointing a receiver or
otherwise; in such a case, the Court should, while holding that
it has no jurisdiction to entertain the suit, put back the party
in the position he was on the date of suit. But this power or
obligation has nothing to do with the proposition that while in
force, these orders have to be obeyed and their violation can be
punished even after the question of jurisdiction is decided
against the plaintiff provided the violation is committed before
the decision of the Court on the question of jurisdiction."

(emphasis supplied)


11. The same issue was considered in Vidur Impex and Traders (P) Ltd.
and others v. Tosh Apartments (P) Ltd. and others (2012) 8 SCC 384, and it
was held :
"At the cost of repetition, we consider it necessary to mention
that Respondent 1 had filed suit for specific performance of
agreement dated 13.9.1988 executed by Respondent 2. The
appellants and Bhagwati Developers are total strangers to that
agreement. They came into the picture only when Respondent 2
entered into a clandestine transaction with the appellants for
sale of the suit property and executed the agreements for sale,
which were followed by registered sale deeds and the appellants
executed agreement for sale in favour of Bhagwati Developers.
These transactions were in clear violation of the order of
injunction passed by the Delhi High Court which had restrained
Respondent 2 from alienating the suit property or creating third-
party interest. To put it differently, the agreements for sale
and the sale deeds executed by Respondent 2 in favour of the
appellants did not have any legal sanctity."
(emphasis supplied)


12. In view of the aforesaid judgments, it must be held that one of the
questions of law raised in the second appeal filed by the appellants was a
substantial question of law within the meaning of Section 100(1) CPC and
the learned Single Judge committed serious error by summarily dismissing
the second appeal.

13. We may also notice Section 23 of the Indian Contract Act, 1872, which lays down that the consideration or object of an agreement is lawful,unless it is forbidden by law; or is of such a nature that, if permitted,
it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is unlawful and every agreement executed with such an object or consideration which is unlawful is void.
Since the sale deed was executed in favour of respondent No.1 in the teeth of the order of injunction passed by the trial Court, the same appears to be unlawful.

14. As a sequel to the above conclusion, the appeal is allowed, the
impugned order is set aside and the second appeal is remitted to the High
Court for fresh disposal. The High Court shall frame appropriate
substantial question of law in the light of the observations made in this
order and decide the appeal after giving opportunity of hearing to the
parties with reference to the substantial question of law. If, during the
course of hearing, the High Court finds that any other substantial question
of law arises for its consideration then it shall be free to frame that
question and decide the same after hearing the parties.


...............................................J.
(G.S. SINGHVI)




.............................................J.
(SHARAD ARVIND BOBDE)
New Delhi;
April 18, 2013.


ITEM NO.39 COURT NO.3 SECTION XVI


S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).8987/2008

(From the judgement and order dated 16/05/2007 in SA No.50/2001 of The
HIGH COURT OF PATNA)

JEHAL TANTI & ORS. Petitioner(s)

VERSUS

NAGESHWAR SINGH(D) THR. LRS. Respondent(s)

(With appln(s) for c/delay in filing SLP and exemption from filing O.T. and
with prayer for interim relief and office report)

Date: 18/04/2013 This Petition was called on for hearing today.

CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MR. JUSTICE SHARAD ARVIND BOBDE

For Petitioner(s) Mr.Amarendra Sharan, Sr.Adv.
Mr.Awadhesh Kumar Singh, Adv.

For Respondent(s) Mr.Santosh Kumar, Adv.
Mr.Madhurendra Sharma, Adv.

UPON hearing counsel the Court made the following
O R D E R

Delay condoned.

Leave granted.

The appeal is allowed in terms of the signed judgment.



(Satish K.Yadav) (Phoolan Wati Arora)
Court Master Court Master
( Signed non-reportable judgment is placed on the file )




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