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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).
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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
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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.
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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:
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“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
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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
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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 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)
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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
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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.
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