- (1.) D. K. Seth, J. On the prayer of the learned Counsel for the petitioners leave is granted to convert the application into one under Article 227 of the Constitution of India.
(2.) THE petitioner's case inter alia, was that one Naseer Uddin purchased Haveli by Registered sale deed dated 17th May 1917 excecuted by Babu Fakhrullah Khan. Naseer Uddin sold the Haveli in three lots by three registered sale deeds. THE first lot comprising of eastern portion of the Haveli was sold in 1922 to Mohammad Asghar. He sold the second lot comprising of western portion in 1963 to Chhajju. THE lot comprising of the middle portion was occupied by the daughters of Inayat Hussain, namely, Bashiran and Serajan. This middle portion is the disputed property which was sold by Naseer Uddin in favour of petitioner No. 1 and husband of petitioner No. 2 who were real brothers by Registered sale-deed dated 28th May, 1970. THE petitioners filed Original Suit No. 13 of 1978 for eviction of the tenants in respect of the said suit property. THE said suit was decreed. Execution Case No. 17 of 1982 was levied upon the said decree for eviction of Mohammad Hussain, tenant. THE said decree was confirmed in Civil Appeal No. 408 of 1982 by the learned 2nd Additional District Judge, Bijnor, by a Judgment and decree dated 6th May, 1986. One Shahzadi filed Original Suit No. 178 of 1986 for injunction restraining the petitioners from interferring with the possession of the said Shahzadi in respect of the suit property on the allegation that the said Shahzadi acquired, title to the suit property by virtue of a sale deed dated 16th November, 1985 executed by the sisters of Naseer Uddin alleging that Inayat Hussain, father of Naseer Uddin, was the owner of the suit property. In connection with the said suit, upon an application for injunction, by an order dated 24th March, 1987, temporary injunction was granted. THE said temporary injunction was confirmed on 10th December, 1987. THE said suit having been dismissed for 10th December, 1987. THE said suit having been dismissed for default, Misc. Case No. 45 of 1988 was registered upon an application under IX, Rule 9, C. P. C. In connection with the said Miscellaneous Case, an interim injunction was issued restraining the petitioners from interfering with the possession of the said Shahzadi. THE said interim order was extended till 10th May, 1990. In the meantime, the said Shahzadi purported to transfer the suit property in favour of opposite party No. 1 by virtue of the sale deed dated 30th of July, 1987. THE present opposite parties thereupon filed Original Suit. No. 6 of 1990 on 1st January, 1990 against the petitioner for injunction restraining them from interferring with their posses sion. In connection with the said suit, the opposite parties obtained an ex parte, ad interim injunction which was made returnable on 14th of March, 1990. THE said ex parte order of injunction was vacated on 19th February, 1990 suo mom by the learned Munsif. After the said injunction was vacated in Execution case No. 17 of 1982 arising out of Original Suit No. 13 of 1978, possession of the suit property was delivered through Court to the petitioners. Against the said order dated 19th February, 1990, the opposite parties preferred Misc. Appeal No. 23 of 1990. THE said appeal was allowed by judg ment and order dated 7th December, 1994 whereby the order dated 19th February, 1990 was set aside and the respondents were declared to be entitled to take possession in accordance with law. On the other hand, the said Shah zadi made an application for withdrawal of Original Suit No. 178 of 1986 on 28th February 1994 which was allowed by the Court. In this background, the petitioners have impugned the order dated 7th December, 1994 passed by the Additional District Judge, Vth Court, Bijnor in Misc. Appeal No. 23 of 1990 reversing the order dated 19. 2. 1990 passed by the learned Munsif, Najibabad in Original Suit No. 6 of 1990. Sri Dhruva Narayana, Counsel for the petitioners contended that the impugned order cannot be sustained since there cannot be any order for res toration of possession in the facts and circumstances of the case. He con tended that the order of injunction dated 1st January, 1990 passed in Original Suit No. 6 of 1990 was void and non est in view of U. P. Amendment of Order XXXIX, Rule 2 of the Code of Civil Procedure. Inasmuch as according to him, the order of injunction dated 1st January, 1990 having been passed in violation of Section 41 of the Specific Relief Act and, as such, in view of U. P. Amendment of Order XXXIX, Rule 2, the said order is void and non est. Therefore, the said order was rightly vacated by the learned Munsif by his order dated 19th February, 1990. According to him, even if the said order was not vacated, the same would not have affected the execution. A void order is non est and cannot have any effect. His further contention was that in the facts and circumstances of the case, the restoration of possession obtained through execution in another suit cannot be directed to be restored. He also contended that the opposite parties could not have filed Original Suit No. 6 of 1990 when they claimed title through Shahzadi who had already instituted a suit and it was then pending. Therefore, suit No. 6 of 1990 could not be maintained. The opposite party having not come with clean hands is not en titled to any relief. Even then the statement made in the suit does not dis close any title in favour of the opposite parties. Even on equity, they are not entitled to any relief. As such, the order dated 7th February, 1994 should be set aside. The learned Counsel appearing for the opposite parties Mr. Deo Raj does not dispute the facts as stated above. On the admitted facts, he contends that though the interim order was passed ex parte, the same could not have been vacated suo motu without any application for vacating filed by the other side on 19th February, 1990 when the suit was neither fixed nor had been put up and particularly when the injunction was made returnable on 14th March 1990. Therefore, the said order dated 19th February, 1990 was illegal and was rightly set aside by order dated 7th December, 1994. Even if the order dated 1st January, 1990 passed in Original Suit No. 6 of 1990 stood vacated, still then the injunction granted in Misc. Case No. 45 of the 1988 was still con tinuing restraining the petitioners from obtaining possession. Therefore, by no means, the possession could be obtained by them on 3rd March, 1990 when the injunction granted in Misc. Case No. 45 of 1988 was also subsisting till 10th May, 1990. The mistake and wrong was committed by the Court in res toring possession on 3rd January 1990. It is for the Court to correct it and, therefore, the learned Additional District Judge had rightly directed the res toration of possession.
(3.) ORDER XXXIX, Rule 2 of the Code of Civil Procedure, as applicable to U. P. , was amended by U. P. Act 57 of 1976 which came into force with effect from 1st January, 1977 by which a proviso was added to Rule 2 (2) of ORDER XXXIX, which runs as follows: "provided that no such injunction shall be granted - (a) where no perpetual injunction could be granted in view of the provisions of Section 38 and Section 41 of the Specific Relief Act, 1963 (Act 47 of 1963) ; or (b) to stay the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge from, any employee including any employee of the Government ; or (c) to stay, any disciplinary proceeding pending, or intended or, the effect of any adverse entry, against any employee of the Government ; or (d) to affect the internal management or affairs of, any educational institution including a University, or a society ; or (e) to restrain any election or (f) to restrain, any auction intended to be made or, the effect of any auction made, by the Government ; or (g) to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished ; or (h) in any matter where a reference can be made to the Chancellor of a University under any enactment for the time being in force; and any order for injunction granted in contravention of these provisions shall be void. " It appears that by reason of the proviso, an injunction granted in contraventon of clauses (a) to (h) shall be void. In the present case, we are con cerned with clause (a) as has been submitted by Mr. Dhruva Narayana, namely, where no perpetual injunction could be granted in view of the provisions of Section 38 and Section 41 of the Specific Relief Act, 1963. According to him under Section 41 of the Specific Relief Act, injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in Court not subordinate to that from which injunction is sought.;