Fulbaria Adarsha Market Dokandar Malik Samity Vs. Fulbaria Adarsha Market Khatigrashta Kallyan Samabaya Samity Dokandar & others, 53 DLR (2001) 220

Case No: Civil Revision Nos. 58, 125 of 2001

Judge: Md. Abdur Rashid ,

Court: High Court Division,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Mahbubey Alam,,

Citation: 53 DLR (2001) 220

Case Year: 2001

Appellant: Fulbaria Adarsha Market Dokandar Malik Samity

Respondent: Fulbaria Adarsha Market Khatigrashta Kallyan Samabaya Samity Dokandar & others

Subject: Injunction,

Delivery Date: 2001-04-12

Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Abdur Rashid, J.
 
Fulbaria Adarsha Market Dokandar Malik Samity
……………………..Petitioner
Vs.
Fulbaria Adarsha Market Khatigrashta Kallyan Samabaya Samity Dokandar & others
……………………..Opposite Parties
 
Judgment
April 12, 2001.
 
Code of Civil Procedure (V of 1908)
Section 151 Order XXXIX rules 1 & 2
Mandatory Injunction can only be passed by a Court in the exercise of its inherent jurisdiction. Provisions of Order 39 rules 1 or 2 of the Code do not empower a Court to make such order.
 
Cases Referred To-
Nandan Pictures Ltd Vs. Art Pictures Ltd, AIR 1956 Calcutta 428; Ministry of Communication Vs. Md Ferozur Rahman, 45 DLR 762; Abul Hayat Vs. MA Reja, 47 DLR 170; Renu Begum Vs. Kazi Liakat Ali, 50 DLR (AD) 142; Abdul Barek Vs. Serajul Islam, 20 DLR 501; Abdul Jalil Vs. Abu Baker Siddique, 35 DLR (AD) 42; Barada Sundari Paul Vs. Assistant Custodian, Enemy Property and others; 15 BLD (AD) 95 in para 23; Razia Begum Vs. Shahebzadi Anwara Begum, AIR 1958 (SC) 886; Babul Kanti Das Vs. Abul Hashem, 47 DLR (AD) 6; National Bank of India Vs. Yakub Ali, 7 DLR 606; Md. Ashid Ali Vs. Province of East Pakistan, 22 DLR 694.
 
Lawyers Involved:
Mahbubey Alam with Md. Shah Alam, Advocates—For the Petitioner
Khondakar Mahbubuddjn Ahmed with Subrata Chowdhury, BA Rashid, Promila Biswas, Advocates—For the Opposite Parties.
 
Civil Revision Nos. 58, 125 of 2001
 
JUDGMENT
 
Abdur Rashid J.
 
1. The Rule in Civil Revision Case No.58 of 2001 was on 21-01-2001 obtained by added defendant No. 4 against an order dated 29-11-2000 passed by Assistant Judge, 4th Court at Dhaka in Title Suit No. 321 of 2000 by which defendant Nos. 1 to 3 Waqf Authorities were directed to restore possession to the plaintiff an ad interim mandatory injunction.
 
2. The other Rule in Civil Revision No.125 of 2001 was on 23-01-2001 obtained by the plaintiff against the order dated 04-01-2001 passed by the same Court in the suit by which added defendant’s No.4 (petitioner in the earlier Rule) and 5 were added in the suit.
 
3. As both the Rules arise out of the same suit, the Rules are heard one after another, and is now being disposed of by this order.
 
4. On 29-11-2000 the petitioner in the later Rule as plaintiff instituted the suit against the Waqf Authorities, defendant Nos.1 to 3 for a decree for mandatory injunction for restoration of possession of the suit land measuring 1.00 acre comprising of 92 satak out of 4.62 acre of plot No. 711, 04 satak out of 92 satak of plot No. 712 and 04 satak out of 8.35 acre of plot No. 713 appertaining to SA Khatian No. 7. It is averred in the plaint, inter alia, that on 06-09-95 the suit land was transferred to a Waqf by Shahjadi Begum. On 27-11-95 the suit land was burnt to ashes by a fire. Then 411 shop owners who were possessing the suit land formed the plaintiff-samity. On 24-12-96 defendant No.1 Waqf Administrator served a notice of eviction upon them. Thereafter, through negotiation defendant No. 3 Official Mutwali granted them lease for five years and the shoppers executed and registered Kabuliyat on 07-01-98.
 
5. They were in possession of the suit land since lease. But on 22-05-2000 the miscreants with the help of the police dispossessed the from the suit land.
 
6. On the same date i.e. 29-11-2000 stating the above facts and circumstances, the plaintiff made and moved an application under Order 39 rules 1 and 2 read with section 151 of the Code of Civil Procedure for compelling the defendant Nos. 1 to 3 to restore possession of the suit land by way of a temporary mandatory injunction till disposal of the suit, and also prayed for ad-interim mandatory injunction for a direction upon the defendant Nos.1 to 3 to restore possession of the suit land to them pending hearing of the said application. The trial Court allowed the prayer by its order passed on the same date as impugned in earlier Rule and directed the Waqf Authorities to restore possession of the suit land to the plaintiff till disposal of the application.
 
7. On 04-01-2001 Dhaka Mohanagar Fulbaria Hawkers Samity (Reg. No. 1777) through its Secretary General Md. Ruhul Amin and the petitioner Samity in the earlier Rule made and moved two separate applications under section 151 read with Order 1 rule 10 of the Code of Civil Procedure for adding them as parties in the suit.
 
8. In the applications, it is stated that after Fulbaria Railway Station was shifted to Kamalapur, the Government transferred the suit land along with other lands to the Dhaka City Corporation. Then, in 1989 the City Corporation granted lease of the entire land to the members of their two Samities on receipt of proper salami. Erecting shops and getting connections of various utility services to them, and doing business therefrom, the members of the Samity have since then been in possession of the said land, The plaintiff Samity and the Joint Official Mutawalli-defendant No.3 of the instant suit were also restrained by a decree of perpetual injunction dated 16-11-2000 passed on contest by the Assistant Judge, First Additional Court, Dhaka in Title Suit No. 49 of 2000 from entering into the suit land forcefully and disturbing the enjoyment of the suit land by the added defendants. Having failed to face the title and possession of the added defendants in the suit land, the plaintiff instituted the instant suit on false claims.
 
9. The Trial Court, after hearing the applications and on perusal of the record, was pleased to allow the applications and order to add them as defendant Nos.4 and 5 in the suit in the interest of justice by its order passed on the same date i.e. 04-01-2001 which is impugned in the subsequent Rule.
 
10. This subsequent Rule obtained by the plaintiff against the order of addition is taken up first for hearing, In support of the Rule; Mr. Khondakar Mahbubuddin Ahmed submits that the Trial Court erred in law in the absence of the plaintiff in allowing the prayer for addition and without giving any opportunity to the plaintiff. He also submits that no relief has been prayed for against the added defendants in the suit, and, as such, they are neither necessary nor proper parties and the Court therefore committed error of law in adding such parties in the suit.
 
11. On behalf of the added defendants, Mr. Mahbubey Alam has filed an affidavit-in-opposition annexing copies of Judgment and decree dated 16- 11-2000 and 07-01-2001 respectively and opposes the Rule. In defending the order for addition, he submits that the members of the added Samities have been possessing the suit land since 1989 as lessees under the Dhaka City Corporation. When the suit is for possession, they are necessary parties in the suit and in their absence, the issues raised in the suit cannot be adequately adjudicated and no effective decree can be passed. He further submits that the plaintiff Samity and the Official Mutawalli are already restrained by a contested decree of perpetual injunction dated 16-11-2000 passed inter parties in Title Suit No. 49 of 2000 from disturbing the possession of the added defendants in the suit land. He also refutes the submission of Mr. Khondakar submitting that it is not correct to say that the plaintiff was not aware of the applications for addition because certified copies of the applications for addition annexed in their Revision Application clearly show that the learned Advocate of the plaintiff refused to accept the copy of the applications, Knowing fully well about the making and moving of the applications for addition, if none appears in Court when the matter is heard, and an order is passed thereupon by the Court, such order cannot be said to have been passed behind the back of a party.
 
12. Mr. Khondakar Ahmed in reply points out that the plaintiff has by this time preferred an appeal against the decree which is now pending for hearing.
 
13. In support of the earlier Rule, Mr. Mahbubey Alam first refers to various proceedings initiated by the parties. As stated earlier, he submits that the members of the added Samities have been in possession as lessees under the Dhaka City Corporation of the suit land since 1989. In 1995, the plaintiff Samity was formed and instituted Title Suit No. 71 of 1998 for declaration of title and perpetual injunction against the added defendants but the plaint of the suit was on 11-03-98 returned for want of territorial jurisdiction. On 26-04-98 the plaintiff again instituted Title Suit No.115 of 1998 for declaration of their leasehold right in the suit land and also for perpetual injunction for restraining the added defendants from dispossessing them from the suit land. They obtained an ad-interim order of injunction and under the cover of such restraining order, the plaintiff’s people forcibly entered into the shops of the added defendants. Such ad interim order was however stayed. Then, the added defendants prayed to the Corporation for restoration of possession from the plaintiff’s people who were consequently evicted on 22-05-2000 by the police from the suit land under the supervision of a Magistrate at the behest of the Dhaka City Corporation. He also submits that the suit as framed for restoration of possession by mandatory injunction is totally misconceived. In the frame of such suit, he submits, ad-interim order of mandatory injunction directing the defendants Nos.1 to 3 to restore possession is not only misconceived but also clear abuse of the process of the Court. He also cites the decisions in the case of Nandan Pictures Ltd Vs. Art Pictures Ltd, AIR 1956 Calcutta 428; Ministry of Communication Vs. Md. Ferozur Rahman, 45 DLR 762 and Abul Hayat Vs. MA Reja, 47 DLR 170.
 
14. Opposing the Rule, on behalf of the plaintiff an affidavit-in-opposition is filed and Mr. Khandaker Ahmed refers to some dates of the proceeding He shows from the record that on 29-11-2000 as stated earlier ad interim mandatory injunction was granted. Against the order, on 10-01-2001 the added defendants preferred an appeal being Misc. Appeal No. 11 of 2001 before the District Judge at Dhaka. While the appeal was still pending, on 18-01-2001, the added defendant No.4 also made a revision application ready and obtained permission for swearing the affidavit. On 21-01-2001 affidavit was sworn and the revision application was moved before a Bench when the Bench on hearing the application was about to reject the same summarily, further permission was obtained for moving the revision application before any other Bench, and ultimately, the Rule was obtained on the same date from another Bench when the appeal was still pending. Although the appeal was withdrawn only on 23-01-2001, he further submits, the revision application of the added defendant must be held to be mala fide and that such added defendant has not come before this Division with clean hands. He also cites the decision in the case of Renu Begum Vs. Kazi Liakat Ali 50 DLR (AD) 142 in support of his submission that both appeal and revision cannot proceed at the same time. Earlier, Mr. Subrata submitted that revision under section 115 of the Code of Civil Procedure against the order of mandatory injunction passed under Order 39 rules 1 and 2 is not maintainable.
 
15. In reply, Mr. Alam read out the provision of Order 39 rules 1 and 2 of the Code and submits that no such ad interim injunction in the mandatory form as passed by the Assistant Judge in the case can be granted under the provisions. It was only possible for the Court to pass such order under section 151 of the Code as was also invoked in the application for mandatory injunction. When the order deems to have been passed invoking the provision of section 151 of the Code, only remedy available is under section 115 of the Code by way of revision. In support, he cites the decisions in the cases of A Barek Vs. Serajul Islam, 20 DLR 501; Abdul Jalil Vs. Abul Baker Siddique, 35 DLR (AD) 42 and Abul Hayat Vs. MA Reja; 47 DLR 170. He submits that when the Rule is being heard no appeal is pending, therefore the submission of Mr. Khondakar has no merit.
 
16. Let me first take up the Rule against addition. It has not been denied by the plaintiff that added defendants are now in possession of the suit land. The suit as framed does not leave any doubt that it is a suit for recovery of possession although prayer is made for a mandatory injunction for direction upon the Waqf Authorities to restore session. But the Waqf Authority is admittedly not in possession of the suit land.
 
17. Under the provisions of Order 1 rule 10(2) Code of Civil Procedure-
“The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. be added” (underlined by me). It is true that the plaintiff is a “Dominus litis” and not bound to sue every possible adverse claimant in the suit. But the Court may, under the above provisions, at any stage of the suit order addition of a party and generally, it is a matter of judicial discretion which is to be exercised in view of facts and circumstances of a particular case. On the question, our Appellate Division has held in the case of Barada Sundari Paul Vs. Assistant Custodian, Enemy Property and others, 15 BLD (AD) 95 in para 23.
 
“The position in law undoubtedly is that in the absence of necessary parties a decree will not be passed in favour of the plaintiff. As to who is a necessary party in a suit one test which has all along been recognised as of great importance is that when in the absence of a party the Court cannot give an effective remedy that party is a necessary party. There is however, always a distinction between a necessary party and a proper party. A suit will inevitably fail in the absence of a necessary party but it may not be always so in the case of a proper party.”
 
There is another test as prescribed in Razia Begum Vs. Shahebzadi Anwara Begum, AIR 1958 (SC) 886 that the person concerned must have a direct interest in the action.
 
18. Needless to state that the added defendants have direct interest in the suit land. Therefore, it cannot be said that the added defendants are neither proper nor necessary parties to the suit. The appearances of the added defendants in the suit were therefore correctly thought necessary by the Court to adjudicate the questions relating to possession of the suit land. Moreover, for any effectual decree for possession that may be passed in the suit, the presence of the added defendants is not only proper but also necessary.
 
19. Mr. Khondakar submits that if a decree is passed, then the Waqf Authority can take possession under section 64 of the Waqf Ordinance and restore possession, thereafter, to the plaintiff. It is on the record that the Dhaka City Corporation as owner got the trespassers evicted from the suit land through the police under the supervision of a Magistrate. Against the eviction, the Waqf Authorities do not appear to have taken any step whatsoever till date. Whether the suit land is a Waqf property or not is also a very contentious issue which can only be finally determined by a Civil Court. In such circumstances, how the Waqf Authority without getting its title first determined by a Civil Court can proceed under section 64 is totally misconceived.
 
20. In the exercise of its discretion in ad the defendant Nos.4 and 5 by the impugned order dated 04-01-2001, the trial Court therefore acted judiciously, and there is no scope for this Division to interfere with such sound exercise of discretion. So, the submissions of Mr. Khondakar have no substance.
 
21. Then, the Rule against ad interim mandatory injunction. It is now well settled that if any party to a suit obstructs or interferes, in any way, with the course of administration of justice, it is the duty of the Court to restore the parties to the position when the mischief is done or to restore the status quo ante in the facts and circumstances of a case. In a case, with notice of the institution of the plaintiff’s suit and the prayer made in it for an injunction to restrain the doing of a certain act, the defendant does that act and thereby altering the factual basis upon which the plaintiff claimed his relief, the Court can also make an order of mandatory injunction upon an interlocutory application. Court acts though in rare case when the facts of the case demand such action. In the case of Md. Ashid Ali, 22 DLR 694, it was so held that such power is rarely exercised and could be used only when there is an imminent grave danger to life o property or for the purpose of restoring maintaining status quo. In Babul Kanti Das Vs. Abul Hashem, 47 DLR (AD) 6 it is stated that such an action is not only a concern for the private parties but also a concern for public policy in the interest of administration of justice.
 
22. The law is now settled that such order of ad interim (in the absence of other party) pending hearing of the interlocutory application or temporary, till disposal of the suit, mandatory injunction can only be passed by a Court in the exercise of its inherent jurisdiction. Provisions of Order 39 rules 1 or 2 of the Code do not empower a Court to make such order in mandatory form as was held in National Bank of India Vs. Yakub Ali, 7 DLR 606, Abdul Barek Vs. Serajul Islam, 20 DLR 501, Md Ashid Ali Vs. Province of East Pakistan, 22 DLR 691 A Jalil Vs. Abu Bakr Siddique, 35 DLR (AD) 42 and Babul Kanti Das Vs. Abul Hashem, 47 DLR (AD) 6. In Abdul Jalil’s Case, there is however an observation in para 13 that-
 
“It may be mentioned that in some Case of the Indian High Courts a view has been take that an appropriate order of mandatory injunction may be made under Rules 1 to 2 o the Order 39 of the Code, as an order of restraint, as is contemplated in the said rules may be so framed as may have the effect of mandatory injunction and compel the doing an act to prevent the continuance of mischief.”
 
In the Case before us, the Court by its order passed on the date of institution of the suit i.e. 29 11-2000 in mandatory form has clearly directed the defendants 1 to 3 to restore possession till disposal’ of the application. This order cannot be said to be an order of restraint and is clearly not contemplate under Order 39 rules 1 or 2 of the Code. As said earlier, the order as conceived can only be passed in the exercise of inherent jurisdiction.
 
23. If it is so, then, no appeal lies from such an order of ad-interim or temporary mandatory injunction as were stated in National Bank of India Vs. Yakub Ali, 7 DLR 606, A Barek Vs. Serajul Islam, 20 DLR 501, Md. Ashid Ali Vs. Prov of East Pak, 22 DLR 694, and A Jalil Vs. Abu Bakr Siddique, 35 DLR (AD) 42. An appeal is provided under Order 43 rule 1(r) of the Code only when the order is passed either under rules 1and 2 of Order 39 of the Code. The instant revision application against such order of ad- interim mandatory injunction is therefore quite maintainable.
 
24. The submission of Mr. Khondakar that both appeal and revision are not maintainable at the same time is quite legally but factually incorrect because long before the hearing of the Rule the appeal was withdrawn. For presenting the appeal against the impugned order of ad interim mandatory injunction, it would not be fair to admonish a party or to say that the party acted mala fide or that he has not come with clean hands before this Division for the simple reason that a party did exactly that what his learned Advocate advised him to do. Moreover, under the provisions of section 115 of the Code, the jurisdiction of this Division is based upon the premise where no appeal lies from a decision of a Court subordinate to this Division and this jurisdiction is in the nature of discretion as was restated in the decision cited by Mr. Khondakar in 50 DLR (AD) 142. But the decision has no manner of application in the facts and circumstances of the Case before us.
 
25. Now, on merit of the impugned order of ad- interim mandatory injunction, I find that on the date of institution of the suit i.e. 29-11-2000 the plaintiff was admittedly not in possession of the suit land. It was held in the case on Nandan Pictures Case.
 
“If (order of mandatory injunction) is granted only to restore the status quo and is not granted to establish a new state of things different from the state which existed at the date when the suit was instituted.
 
This principle was approved by our Appellate Division in the case of Abdul Jalil, “if a party to a suit does act to bring about a change in the state of things existing at the date of suit or just prior to that date, in order to forestall a possible order of the Court, the Court may, in an appropriate case, in exercise of its inherent power, require the offending party, by issuing a temporary injunction in mandatory form to restore the status quo ante. This principle is in consonance with fair administration of justice and this power of making an order of mandatory injunction on an interlocutory application may be exercised, irrespective of the merits of the main case as it is one of the main concerns of a Court of law to see that no one dares to interfere with the course of justice by presenting the Court with a fait accompli.”
 
In the case before us the plaintiff was admittedly, as is averred in the plaint, dispossessed by the police on 22-05-2000. So, by the order it was intended to restore possession to the plaintiff which is simply beyond the jurisdiction of the Court. It should be noted that such extraordinary jurisdiction cannot be used as a device to restore possession to a party in a suit who is out of possession since before the institution of the suit. In both cases of Abul Hayat and Abdul Jalil, Mr. Khondaker appeared and could not but concedes to the principles enunciated therein. He was therefore very candid to refrain himself from submitting on the merit of the order. In the facts and circumstances of the case, there is no escape from the conclusion that the trial Court has acted beyond its jurisdiction in ordering restoration of possession by the impugned order of ad interim mandatory injunction pending disposal of the application, and such order is clear abuse of the process of the Court.
 
26. In the result, the Rule in Civil Revision No. 125 of 2001 is discharged. Order dated 04-01-2001 adding defendants Nos. 4 and 5 is hereby confirmed. Stay granted at the time of issue of the Rule is vacated.
 
27. Other Rule in Civil Revision No. 58 of 2001 is made absolute. The impugned ad-interim order of injunction in mandatory form dated 29-11-2000 is hereby set aside. No order as to cost.
 
Communicate this order to the Court.
 
Ed.