MANU/GH/0500/2018

True Court CopyTM

IN THE HIGH COURT OF GAUHATI

Review Pet. 187/2017 and I.A.(Civil) 4221/2017

Decided On: 05.06.2018

Appellants: Ibrahim Ali Barbhuiya and Ors.
Vs.
Respondent: Rustana Begum and Ors.

Hon'ble Judges/Coram:
Kalyan Rai Surana

JUDGMENT

Kalyan Rai Surana, J.

1. Heard Mr. B. Banerjee, the learned Senior Counsel, assisted by Mr. M.J. Quadir, the learned counsel for the petitioner. Also heard Mr. N. Dhar, the learned counsel appearing for the respondents No. 5 to 13. None appears on call for respondents No. 1 to 4.

2. This application for review under Section 114 CPC is directed against the order dated 19.09.2017 passed by this Court in I.A.(C) No. 1345/2017 in RFA 63/2016. The connected I.A.(C) 4221/2017 is an application under Section 94(c), read with Section 151 CPC, wherein the review petitioner have prayed for ad-interim injunction for restraining the opposite parties from disturbing the possession of the petitioners in respect of the land mentioned in Schedule-2 to 5 of the plaint. As this Court would have to deal with the same set of facts in both the cases, for convenience, both the matters have been heard and decided together.

3. The review petitioners are the appellants in RFA 63/2016, and they are the plaintiffs in T.S. 13/1997. The said suit was for declaration of title and partition. The said suit was dismissed by the judgment and decree dated 05.09.2016 passed by the learned Civil Judge, Hailakandi, inter-alia, on the ground that the suit was not maintainable in its present form and that the suit was bad for non-joinder of necessary parties. However, liberty was granted that the petitioners are not precluded from instituting a suit afresh by impleading all the necessary parties. The said judgment is assailed in the accompanying RFA 63/2016.

4. In connection with the said appeal, the petitioners herein had earlier filed I.A.(C) No. 1632/2016 under Order XXXIX Rules 1 and 2 CPC, and had prayed for ad-interim injunction to restrain the respondents herein from disturbing the petitioners from land described in Schedule 2 to 5 as mentioned in the plaint and not to alienate the land described in Schedule-1 of the plaint, pending disposal of the appeal. This Court by order dated 04.10.2016, passed an ad-interim order that the petitioner should not be dispossessed from the suit land described in Schedule 2 to 5 of the plaint.

5. Aggrieved by the said ad-interim injunction dated 04.10.2016 passed by this Court in I.A.(C) 1632/2016, the respondent Nos. 1 to 13 herein, namely, (i) Mustt. Rustana Begum wife of late Abdul Kuddus Borbhuiya, (2) Md. Nurul Islam Borbhuiya, son of late Illias Ali Borbhuiya, (3) Jalal Uddin Borbhuiya, son of Abdul Sattar Borbhuiya, (4) Md. Suleman Haque Borbhuiya, son of late Adbul Sattar Borbhuiya, (5) Mustt. Khudeja Bibi, wife of late Rafique Uddin Barbhuiya, (6) Md. Nurul Hassan Borbhuiya, son of late Rafique Uddin Borbhuiya, (7) Mustt. Jahera Begum Borbhuiya, daughter of late Rafique Uddin Borbhuiya, (8) Mustt. Kulsuma Begum Borbhuiya, daughter of late Rafique Uddin Borbhuiya, (9) Mustt. Tohera Begum Borbhuiya, daughter of late Rafique Uddin Borbhuiya, (10) Md. Toijul Haque Borbhuiya, son of late Chandu Mia Borbhuiya, (11) Mustt. Nasben Nehar Borbhuiya, daughter of late Haji Basart Ali Borbhuiya, (12) Mustt. Piyarn Neassa Borbhuiya, wife of late Chandu Mia Borbhuiya, and (13) Md. Saleh Ahmed Borbhuiya, son of late Haji Moin Uddin Borbhuiya, had filed an application for alteration, modification, cancellation and or vacating the order dated 04.10.2016 passed in I.A.(C) 1632/2016, which was registered as I.A.(C) 1345/2017. This Court upon hearing the learned counsel appearing for both parties, by a common order dated 15.09.2017 in I.A.(C) 1345/2017 and I.A.(C) 1632/2016, allowed I.A.(C) 1345/2017. Consequently, by setting aside the order dated 04.10.2016, I.A.(C) 1632/2016 was dismissed, inter-alia, on the ground that the petitioners herein were not found to be in exclusive possession over any specific part of the suit land and on a further finding that there was no prayer for permanent injunction in the plaint. Hence, this Court did not find a prima-facie case for grant of injunction. The balance of convenience was also not found in favour of grant of injunction, as an injunction would have the affect of pre-judging the undetermined rights of all the co-sharers. It was also held that there was no way that the petitioners shall suffer any irreparable loss and injury as because after the determination of their shares, they can be put to possession of their respective shares.

6. By filing Review Petition No. 187/2017, the petitioners have prayed for review of the said order dated 15.09.2017. In the review application, the petitioners have stated that they are in actual possession of the land described in Schedule 2 to 5 of the plaint and it is projected that after dismissal of the suit, the contesting respondents were threatening to dispossess the petitioners from the suit land and, as such, the petitioners apprehend that the petitioners may either be dispossessed from the suit property during the pendency of the connected appeal, or that suit land may be disposed of.

7. In the grounds of review, it is projected that the petitioners are in actual physical possession of land measuring 7 Bigha-18 Katha-11 Chatak land of Schedule-2, 1 Bigha-5 Chatak land covered by Schedule-3, 2 Katha land covered by Schedule-4, 4 Bigha-10 Katha-14 chatak land in Schedule-5. It was stated that they are in joint possession of the remaining land measuring 18 Bigha-14 Katha-9 Gunda-13 Kora-1 kranti in the entire suit land. It was stated that the petitioners had cultivated paddy in the said land which is required to be harvested. It is projected that if the order dated 19.09.2017 is not reviewed, there would be a possibility of prejudicing as the petitioners, who are in possession of the said land may be forcefully dispossessed by the respondent from the aforesaid land. It is submitted that since this Court by an interim order dated 04.10.2016 passed in I.A.(C) 1632/2016 had directed to maintain the status-quo in respect of the suit property, the petitioners are admittedly in possession of the land described in Schedule-2 to 5 of the plaint, for which the order dated 19.09.2017 was required to be reviewed. It was further submitted that there was no specific averment in I.A.(C) 1345/2017 that the respondents were in possession of the suit land and the order dated 19.09.2017 was required to be reviewed.

8. By referring to the evidence of DW-1 and DW-3, the learned Senior Counsel for the petitioners submit that the land described in Schedule-2, 4 and 5 was in possession of the petitioners and the land in Schedule-3 was of the Masjid and that the DW-3 had admitted the title of the predecessor-in-interest of the petitioners vide sale deed of 1926. By referring to the photocopy of the plaint in Bengali, it is submitted that by order dated 21.02.2018, this Court had permitted the petitioners to file true copy of the plaint along with affidavit and therefore, by way of additional affidavit filed on 07.03.2018, the true copy of the plaint in vernacular as well as in its English translation have been filed. The learned Senior Counsel for the petitioners submit that in paragraph 15, 16 and 17, the case of the petitioners was that they were holding "joint title" in respect of the suit land, which was incorrectly translated and typed out as "joint possession" in the type copy of the plaint filed in connection with the connected appeal. It is submitted that because of the incorrect translation, this Court had arrived at a finding that the petitioners herein were not in exclusive possession over any part of the suit land. By referring to the statements made in paragraphs 15, 16 and 17 of the plaint, it is further submitted that the prayer as per the true copy of the plaint was for entitlement to the possession of the partitioned share of land to the plaintiffs i.e. the petitioners through court in respect of land measuring 32 Bigha-14 Chatak-9 Gundas-3 Kora-1 Kranti, but as per the typed copy of plaint submitted with the connected appeal, it was incorrectly mentioned "for passing a final decree for recovery of actual possession of the said land." Hence, it is submitted that because of the incorrect typing, there was error apparent on the face of record and the said error was discovered only after the order dated 19.09.2017 was passed by this Court in I.A.(C) 1345/2017 and I.A.(C) 1632/2016, which despite exercise of due diligence was not within the knowledge of the petitioners. Hence, the petitioners have filed this review application.

9. By referring to the case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, MANU/SC/0056/1961 : AIR 1962 SC 527, it is submitted that the Constitution Bench of the Hon'ble Apex Court had held that where the provisions of Order XXXIX Rule 1 and 2 CPC do not apply and even assuming that the provisions of Section 94(c) CPC was not available, yet the Civil Court had the power and jurisdiction to grant injunction under Section 151 CPC for doing complete justice even when circumstances covered by the provisions of Order XXXIX Rule 1 and 2 were not found. It is submitted that in view of the correct facts presented before this Court, the petitioners have filed I.A.(C) 4221/2017 under Section 94(c) CPC for grant of ad-interim injunction to restrain the respondents herein from disturbing the possession of the petitioners over land described in Schedule-2 to 5 of the plaint and in this regard, the learned Senior Counsel for the petitioners has referred to the golden of principles of injunction i.e. prima facie case, balance of convenience and irreparable loss and injury.

10. Per-contra, the learned counsel for the respondents submit that the petitioners have refer to nine grounds on which the review application was filed and in none of the grounds, the petitioners have made any mention that there was any error apparent on the face of record. It is submitted that nowhere in the review application or in I.A.(C) 4221/2017, the petitioners have made any statement on oath that the incorrectly translated and typed English version of the plaint was presented along with the connected appeal. Moreover, in the additional affidavit filed on 07.03.2018, the petitioners have merely mentioned that as per order of this Court, the vernacular copy of the plaint of T.S. No. 13/1997 along with translated typed copy of the plaint was filed for the perusal of this Court and that there was no categorical statement even in the said additional affidavit filed on 07.03.2018 that the English translated copy of the plaint, as presented in the connected memo of appeal, was wrongly typed and that the copy of plaint now produced was accurately translated English translated version of the plaint from the Bengali vernacular. It is submitted that in the order dated 21.02.2018 and 12.03.2018 passed by this Court in Review Petition No. 187/2017, this Court had merely recorded the submissions made by the learned Senior Counsel for the petitioners to the effect that Bengali vernacular was incorrectly translated and typed, but as no such ground was taken in the said review petition to the effect that the Bengali vernacular was incorrectly typed when the plaint was filed as enclosure in the connected appeal, as such, as on today, this Court has no material to take cognizance of the purported translated copy, which was subsequently filed vide additional affidavit dated 07.03.2018.

11. It is further submitted that unless this Court is satisfied that any ground was made out for reviewing the order dated 19.09.2017 by holding that there was error apparent on the face of record, the petitioners were not entitled to any ad-interim injunction because their suit was dismissed for non-joinder of necessary parties. Moreover, it is submitted that there was no prayer in the suit for permanent injunction and therefore, the petitioners did not enjoyed any temporary injunction till the suit was dismissed by the judgment and decree passed by the trial court and, as such, this Court out not to change the status of the suit land by passing order of ad-interim injunction under Section 94(c) CPC, when the prayer for injunction under Order XXXIX Rules 1 and 2, made vide I.A.(C) 1632/2016 was dismissed. It is submitted that an injunction at this stage was not only amount to prejudging the appeal, but an order of injunction ought not to be granted under Section 94(c) CPC as such a similar prayer for injunction was already refused under Order XXXIX Rules 1 and 2 CPC. By referring to the case of Manoharlal (supra), it is submitted that the nature of injunction which was prayed for was contemplated under Order XXXIX Rule 1 CPC and, as such, this was not a case where circumstances covered by Order XXXIX Rule 1 was not available, as such, the provisions of Section 151 CPC could not be invoked in the absence of prayer for permanent injunction in the plaint. In respect of his submission, the learned counsel for the respondents has referred to the case of Haridas Das Vs. Usha Rani Banik (Smt.) & Ors., MANU/SC/8039/2006 : (2006) 4 SCC 78 and Ramji Gupta Vs. Gopi Krishan Agarwal, MANU/SC/0365/2013 : (2013) 9 SCC 438. It is submitted that the counsel for the petitioners had to make elaborate argument in his attempt to show that there was error apparent on the face of record, but as no specific grounds have urged to show that the order dated 19.09.2017 was liable to be interfered as there was an error apparent on the face of record. Therefore, it is submitted that the said order was not liable to be reviewed at a mere asking of the petitioners.

12. It is seen that in Annexure-1 to the review application, the petitioners have filed the replica of the same copy of plaint that was filed together with memo of appeal in RFA 63/2016. In the review application, there is no statement that the English translated copy of the plaint as presented in the review petition or as enclosed to the memo of appeal was incorrectly translated and typed which contained incorrect facts. It is by way of an additional affidavit filed on 07.03.2018 that another English version of the plaint has been filed and it is been projected that the previously filed copy of the plaint was incorrect. Under the circumstances, this Court is inclined to accept the submissions made by the learned counsel for the respondents that in the absence of any statement by the petitioner that there any error in translating and filing the copy of the plaint filed in the connected RFA 63/2016, the existence of mistake cannot be accepted on a mere oral submissions made by the learned Senior Counsel for the petitioners. In the grounds of appeal, it is not stated in any of the grounds that erroneous translation was present in English typed copy of the plaint. Moreover, there is no statement in any of the 9(nine) grounds of review that despite exercise of due diligence, the wrong translation was not within the knowledge of the petitioners. There is also no statement that there was any error apparent on the face of record.

13. The provisions of Order XLVII Rule 3 CPC provides for the form of review and it is prescribed that the provisions as to the form of preferring appeals shall mutatis mutandis apply to an application for review. Therefore, it is envisaged that the application for review should be based on the grounds on which such review is preferred in terms of Order XLI Rule 1(2) CPC, which provides for contents of memorandum of appeal. The provisions of Order XLI Rule 2 provides for the grounds which may be taken in appeal and it is prescribed that the appellant shall not, except by leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal and it is further circumscribed by proviso of Rule 2 of Order XLI CPC to the effect that court shall not rest its decision on any other ground unless the party may be effected thereof has had a sufficient opportunity of contesting the case on that ground.

14. Therefore, notwithstanding that this Court in order 21.02.2018 and 12.03.2018 passed in Review Petition No. 187/2017 had recorded the statement made by the learned Senior Counsel for the petitioners that the typed English translated copy of the plaint which was presented in the connected appeal contained typing error due to incorrect translation of the plaint from Bengali to English, the petitioners have not made any statement in the grounds for review in terms of the said submissions made by the learned Senior Counsel for the petitioners. Hence, this Court is constrained to hold that there is no mention in this review petition that the copy of plaint enclosed to the memo of appeal contain error while translating the plaint from Bengali to English in absence of any grounds and in absence of any affidavit by the petitioners to that effect because it is seen that while filing the review petition, the same copy of the plaint was annexed which purportedly contained typing errors. Hence, in the absence of any ground that there was any error apparent on the face of record or that the English translated copy of plaint annexed to the memo of appeal as well as that annexed with the Review Petition contained typing errors in translation. Hence, this revision petition stands dismissed.

15. Consequently, on dismissal of the review petition, this Court is further constrained to hold that the petitioners not been able to make out any case for grant of injunction under Section 94(c) CPC in view of the fact that the prayer for ad-interim injunction made under Order XXXIX Rules 1 and 2 CPC, as made in I.A.(C) 1632/2016 was dismissed by order dated 19.09.2017, which is the subject matter of the review, as such, the prayer for decree for permanent injunction is also refused.

16. It would not be out of place to mention herein that the learned Senior Counsel for the petitioners had relied on the case of Manohar Lal Chopra (supra), to project that ad-interim injunction can be granted under Section 151 CPC if such situation is not covered by the provisions of Order XXXIX Rules 1 and 2 CPC. In this context, it is seen that previous application for injunction vide I.A.(C) 1632/2016 was under Order XXXIX Rules 1 and 2 CPC, as such, it cannot be accepted that in the subsequent prayer for ad-interim injunction, there was any situation not covered by the provisions of Order XXXIX Rules 1 and 2 CPC in this regard, it is required to be mentioned that this Court in the case of Gadadhar Barman Vs. Ranendra Mohan Paul, MANU/GH/0110/1997 : (1998) 1 GLJ 22 : (1998) 1 GLR 383 : 1998 (1) GLT 137, had held that without making a prayer for permanent injunction in the plaint, no temporary injunction can be granted. In view of the said trite law, this Court is constrained to hold that the principles laid down by the Hon'ble Supreme Court in the case of Manoharlal (supra) is not found to apply in the present case in hand as there was no prayer for a decree for permanent injunction in the plaint.

17. In view of the discussion above, this Court does not find this to be fit case for grant of ad-interim injunction more so, in view of the fact that by the order dated 19.09.2017 under review, not only this Court had dismissed the prayer for ad-interim injunction made by I.A.(C) 1632/2016, but the ad-interim injunction passed earlier was set aside in connection with I.A.(C) 1345/2017.

18. Therefore, the Review Petition No. 187/2017 as well as I.A.(C) 4221/2017 stands dismissed.

19. The parties are left to bear their own cost.

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