Judgment:
W.P.(C) No.1517 OF 201.08. 14.08.2012 Heard Mr. Dwibedi, learned counsel for the petitioners and Mr. Bijan Ray, learned senior counsel appearing for the opposite party No.1 – plaintiff.
2. Facts reveal that C.S. No.25 of 2005 was filed by the opposite party No.1 seeking a decree for declaration of right, title, interest and for permanent injunction and other consequential reliefs. In the said suit, an application for amendment of the plaint was filed by the plaintiff, which was rejected by order dated 18.07.2011. The plaintiff – opposite party No.1 preferred W.P. (C) No.21261 of 2011 challenging the order of rejection of prayer for amendment. When the said writ application was pending, the suit was dismissed on 06.08.2011 for default of the plaintiff.
3. However, in the writ application filed by the opposite party No.1, an order was passed on 09.08.2011 staying further proceedings of the suit, which shows that the suit was already dismissed when the said stay order was passed. On 10.08.2011, the plaintiff – opposite party No.1 filed an application under Order – 9, Rule – 9 C.P.C., which was registered as CMA No.103 of 2011. In the said Misc. Case for restoration of the suit, the plaintiff also filed CMA No.110 of 2011 purportedly under Order – 39, Rules 1 and 2 C.P.C. read with Section 151 C.P.C.
4. The learned court below refused to pass an order of injunction on the said application on the ground that the High Court has stayed further proceedings of the 2 suit. The said writ application has been disposed of today by this Court being dismissed as No.pressed and the interim order of stay passed earlier in the said writ application has been vacated.
5. On 01.10.2011, the learned trial court taking up the application of the plaintiff, wherein a prayer was made for injunction, i.e., CMA No.110 of 2011, passed the order under Section 151 CPC directing the parties to maintain status quo over the disputed property. The said order was No.challenged by the petitioner, but, however, the petitioner filed an application on 15.10.2011 purportedly under Order – 39, Rule -4 CPC for vacation of the order of status quo. The said application was dismissed by the learned trial court on 24.11.2011. Being aggrieved by the said order of dismissal, the present writ application has been filed.
6. Mr. Dwibedi, learned counsel for the petitioners vehemently urges that since the suit was in a state of dismissal, the learned trial court could No.have passed an order of status quo in the Misc. Case registered as CMA No.110 of 2011 in view of the judgment of this Court in the case of Gelhei Mallick and six others v. Dibakar Mallik and seven others, 2011 (I) OLR 68.and submits that the order of status quo as prayed for in the writ application should be vacated.
7. Mr. Ray, learned senior counsel appearing for the opposite party No.1 – plaintiff, on the contrary, submits that in the case of Gelhei Mallick and six others (supra), this 3 Court, considering the fact that the suit was in a state of dismissal, observed that since the suit is already dismissed, the provisions of Order – 39, Rules – 1 and 2 CPC could No.have been made applicable. He further submits that though this Court framed a question as to whether the order of interim injunction directing to maintain status quo over the suit property can be passed by exercising the inherent power under Section 151 CPC, but the said question was No.dealt with in the aforesaid judgment.
8. On perusal of the said judgment, it is found that the contention of Mr. Ray is correct. He further relies upon the decision in the case of T. Panneerselvam v. A. Baylis, AIR 198.Madras 284, where, under similar circumstances, the Madras High Court held that bereft of the power under Order – 39, Rules 1 and 2 CPC, the Court possesses the power under Section 151 CPC to grant interim injunction, if the case could No.be brought within the four corners of Order – 39, Rules – 1 and 2, CPC, but in the interests of justice.
9. Perusal of the said judgment shows that in the said case also an application for injunction was filed in an application under Order – 9, Rule – 9 CPC. The Supreme Court, in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 196.SC 52.considered the scope of exercising inherent power under Section 151 CPC and observed as follows :“Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise 4 affect the inherent power of the Code to make orders necessary for the ends of justice. In the face of such a clear statement, it is No.possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has No.been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code”..
10. Similar view has also been expressed by the Allahabad High Court and Calcutta High Court with regard to exercise of power under Section 151 CPC for grant of injunction in the interest of justice.
11. Mr. Ray, learned senior counsel further contends that the order impugned in the present writ application having been passed on an application under Order – 39, Rule – 4 CPC, which is an appealable order, the writ application should No.be entertained.
12. It is stated at the Bar that the Misc. Case filed under Order – 9, Rule – 9 CPC for restoration of the suit is still pending.
13. On analyzing the law as laid down by various High Courts as well as the Hon’ble Supreme Court, I find that the decisions of this Court in the case of Gelhei Mallick and six others (supra) canNo.be taken to be the guiding factor to decide the present lis and in the said decision, this Court did No.consider the scope of exercising power under Section 151 CPC in an application for restoration of the suit”
14. It is by No.well settled that where the provisions of the Code do No.provide for passing of an order in a particular contingency, if passing of such an order is felt essential, for the ends of justice, which is No.specifically barred by any of the provisions of the Code, it is always open for a court to exercise its inherent power under section 151 of the Code to meet the requirements of justice.
15. I am, therefore, No.inclined to interfere with the impugned order, but, however, direct that the learned trial court shall dispose of the application for restoration of the suit filed by the opposite party No.1 under Order – 9, Rule – 9 CPC by 15th December, 2012.
16. The writ application is accordingly disposed of. In the event, the suit is restored, the same being of the year 2005, the learned trial court shall make all endeavour to dispose of the said suit finally by the end of February, 2013. While disposing of the suit, the learned trial court shall No.be influenced by any observation made by this Court in any of the interim orders of this Court as well as the observations made in the present order. Urgent certified copy of this order be granted as per rules. ………… …… M.M. Das, J.Subh”
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