- (1.) THIS is a second appeal against the judgment and decree of the Addl. Commissioner II Jaipur dated 23. 2. 60, whereby he has reversed the judgment and decree of the S. D. O. Mandalgarh dated 28. 8. 59 and rejected the plaintiff's suit for permanent injunction. We have heard the learned counsel for the parties and examined the record also. The appellant filed a suit for permanent injunction with the averments that he had been cultivating the suit land bearing khasra Nos. 1048, 1053, 1055 and 1057 alongwith well No. 1052 situated in village Joraka-khera Tehsil Kotri District Bhilwara for 20 years and paying rent to the respondents, that the respondent wants to eject him from that land and have been attempting the same for 5 years, that they have given a contract for the felling and rebuilding of the Dhena of the well to one Shri Ramsukh Mali and prevented the appellant from going to the field and cultivating it and thereby want to deprive him of irrigating and tending his standing crops of wheat, sugarcane and cotton seed, and that they have also burnt the fencing made by him. THIS was denied by the respondents. They denied the possession of the appellant for the last 20 years. Their contention is that the land had been let out to the appellant only for a year on Theka the term of which having expired they refused to release it to the appellant who forcibly continued to be in possession thereof and damaged the well with the result that it fell into disrepairs apprehending a great injury to the respondents and necessitating the removal of the fallen 'dhena' and repairing it, and that, that was why they had burnt the fencing round about the well and got removed the Mulba. It was also alleged by them that the appellant had himself handed over the possession of the well and the land through the Panchayat Board.
(2.) THE learned trial court after framing a number of issues and making an enquiry into the matter came to the conclusion that the appellant had been in possession of the land for the last 20 years and paying rent first at the rate of 1/3 share and then at Rs. 125/- per annum in cash and that the respondents had been wrongfully trying to evict the appellant therefrom, that they had tried to dispossess the appellant accusing him of doing detrimental acts on the land but had failed, that they had prevented the appellant from irrigating the sugarcane crop and dug out the Dhena of the well, that the appellant had not agreed to the decision of the Panchayat, Board to hand over the land and well back to the respondents, but had been continuing to be in possession thereof, that notwithstanding the same the respondents had burnt the fencing put by the appellant and dug the Dhena of the well and that they were wrongfully trying to dis-possesess the appellant therefrom. It was also found that the respondents had notwithstanding a temporary injunction having been served on and existing against them wrongfully dispossessed the appellant from the suit land and well during the pendency of the suit. An injunction restraining the respondents from interfering with the possession and the cultivation of the appellant and from digging out the Dhena of the well and thereby preventing the appellant from doing irrigation therefrom was accordingly granted. An appeal was preferred to the learned Additional Commissioner, Jaipur, who set aside this decree only on the ground that it was an admitted position between the parties that the appellant had been dispossessed from the suit land during the pendency of the suit and that an injunction under sec. 188 of the Act can be granted "only when" " (to use the words of the learned Additional Commissioner himself)" the right of a tenant to a holding is invaded or threat end to be invaded and not when he has actually been dispossessed. After the actual dispossession the only remedy is to file a suit for recovery of possession". THE suit was thus held to be no longer maintainable because of the appellant having been dispossessed after the institution and during the pendency of the suit. The learned counsel for the appellant, Shri Ridhnarain Sharma has argued the case very ably and contended that under sec. 151 C. P. C. the court is always competent in the interests of justice under its inherent powers to restore the parties to the position in which they were at the commencement of the suit. His submission is that the learned Additional Commissioner should, therefore, instead of dismissing the suit as he has done, have not only confirmed the decree awarded by the learned trial court but also ordered restoration of possession of the suit land to the appellant; and that these orders should be passed by us to serve the ends of justice. As against it the learned counsel for the respondents, Shri Munnilal Dhariwal, has argued that the appellant was neither on the date of the institution of the suit nor anytime thereafter in possession of the suit land, nor was dispossessed thereof during the pendency of the suit, but that he voluntarily gave up possession of the land in accordance with the judgment of the Panchas, It has also been submitted that the remedy of the appellant lay in proceeding under sec. 186 Rajasthan Tenancy Act for his re-instatement and that he could not sue for an injunction. Taking the last plea first there is nothing in the language of sec. 188 to bar a direct suit thereunder without first seeking a re-instatement under sec. 186. Even a man out of possession can sue for an injunction and possession together. But in the present case this question does not arise. The respondents have pleaded in their written statement by way of further pleas that they burnt the fencing round the well and removed the Mulba to repair the Dhena of the well when the appellant did not leave possession of the land even after the expiry of term of the lease. They also acquisced in the grant of temporary injunction dated 19. 4. 58 against them in favour of the appellant restraining from them interfering with his possession, etc. How could they so acquiesce in it and not challenge the same by way of appeal etc. had they and not the appellant been in possession of the suit land at the date of the institution of the suit? This is also a clear finding of the trial court and not only not reversed but also confirmed by the appellate court, with a further support by the admission made on behalf of the respondents as is evident from the remark of the learned Addl. Commissioner that it is admitted by the parties that the appellant was dispossessed during the pendency of the suit. It is too late in the day as such to be contended on behalf of the respondents that they and not the appellants were in possession of the suit land when the suit was instituted. That they were put in possession of the suit land as a result of Panch Faisla between the parties is also clearly unbelievable. The judgment produced by them is not a Panch Faisla but an order of the village Panchayat on an application of the respondents for the appraisement of the crops, clearly ultra vires of the jurisdiction of the village Panchayat. Yet again it goes contrary to the pleading of the respondents raised in their written statement by way of further plea. If they had been put in possession of the suit land by it in December, 1957, there could have arisen no occasion for their burning the fencing of the appellant in March, 1958 as admitted by themselves therein. The arguments of the learned counsel are thus nothing but unsuccessful attempts to make improvement on the position in which they are unfortunately placed due to their own pleadings and subsequent actions. Both the learned lower courts have concurrently found that the appellant has been dispossessed during the pendency of the suit by the respondents, and they cannot be allowed to take a different position now, in which attempt too they fail as above. The contentions of the respondents are thus rejected. Now about the Contentions of the appellant. Shri Sharma has cited a number of rulings in support thereof, in no way repelled by Shri Dhariwal. Materially relevant for the purposes of the present appeal some of them are : - (1) 1958 RLW 90, Azim Khan Vs. Sate; In this case a point, by way of preliminary objection, came before Modi J. for decision whether a plaintiff in possession of a land when filing the suit for declaration if dispossessed subsequently during the pendency thereof should amend the plaint and seek relief for possession also or whether such relief can be granted to him even without an amendment of the plaint keeping in view the subsequent developments in the case. It was observed : - "before proceeding further, it may be mentioned that the plaintiffs had filed a suit for declaration and injunction only in the present case because they were in possession of land at the time the suit was brought. They continued in such possession till about the end of 1933 by which time the appeal had already been filed in this Court. But before an injunction could be served on the State restraining it from interfering with the plaintiff appellants' possession, it appears that the State had already dispossessed the appellants from the land. In view of this dispossession, the learned Government Advocate raised the contention in the court that the plaintiffs should amend their plaint so as to incorporate therein a prayer for possession of the land in dispute. Consequently, on the 10th August, 1955 learned counsel made an application for amendment of the plaint under O. 6, R. 17 C. P. C. in which he sought the permission of this Court to amend the plaint. When this matter came before me for decision during the course of argument, in this appeal I formed the opinion that a prayer for the amendment of the plaint was scarcely necessary in as much as the plaintiff has been dispossessed of the suit land during the course of the litigation and that if this Court as a result of the hearing of the appeal came to the conclusion that the order of 1947 passed by the State was illegal, it should be perfectly possible for the Court to order restoration of possess on to the appellants without any amendment of the plaint in that contention. Neelkanth's case, which I have referred to above seems to me to be a clear authority for the restoration of such possession in case it is called for and I may also cite Ramdayal Vs. Maji Devdiji (1954 RLW 157) as an authority for the principle that it is open to this court in exceptional cases to award suitable relief which might be necessary on account of developments occurring subsequent to the institution of the suit. I am, therefore, clearly of opinion that it would be an entirely unnecessary protraction of this litigation to insist on an amendment of the plaint in connection with the relief which it was not necessary for the plaintiffs to ask for at the date of the suit and which can be granted to them without a prayer for amendment owing to subsequent developments if such relief is called for". (2) AIR 1956 Patna 455, The State of Bihar Vs. Ushadevi: In this case a question arose whether a possession of plot taken inspite of order for injunction and in disobedience of the same, a delivery of possession can be directed under sec. 151 C. P. C. or not. This was a suit for injunction restraining the opposite party from doing certain act over the disputed plot. It was held: - "if a court comes to the conclusion that an order passed under O. 39, R. 1 or 2 has been disobeyed and by a contravention of that order the other party in the suit has done something for its own advantage to the prejudice of the other party, it is open to the court under inherent jurisdiction to bring back the party to a position where it originally stood as if the order passed by the court has not been contravened. The exercise of this inherent power vested in the court is based on the principle that no party can be allowed to take advantage of his own wrong inspite of the order to the contrary passed by the court". In the present suit alongwith the institution of the suit an application was made for the grant of temporary injunction as well and a temporary injunction was granted on 19. 4. 58 about 16 months before the disposal of the suit finally. An application was submitted on 23. 6. 58 by the appellant complaining that he had been prevented by the respondents alongwith others on 20. 6. 58 from going to his field, which shows that he had been dispossessed from the land during the pendency of the suit notwithstanding a grant of injunction in his favour and against the respondent by the Board. This has also been held concurrently by the learned lower courts as stated above. This is, therefore, a clear case where a temporary injunction of the court has been disobeyed and thereby the respondents have taken the land in their own advantage. It was under these circumstances that the inherent powers under sec. 151 C. P. C. were exercised by the court in the Patna case cited above on behalf of the appellant. The Rajasthan High Court has also, as referred to above, laid down that there was no necessity of amendment of plaint to cover subsequent events and it lay in the power of the court to grant relief of possession too if called for in a suit for declaration and injunction if the plaintiff was dispossessed during the course of litigation. Neelkanth's case (1957 RLW 20) was also a suit for declaration and injunction and the plaintiff admittedly in possession of the suit land on the date of the institution of the suit was disposed during the pendency thereof. He was ordered to be put back in possession alongwith the grant of declaration and injunction by Wanchoo C. J. as he then was. Sec. 151 C. P. C. clearly purports to grant inherent powers to the courts to make necessary orders for the ends of justice. There can be causes and circumstances which may not be covered by the express provisions of law but wherein justice has to be cone. Mahmood J. observed in Narsingh Vs. Mangal Dube (835) Allahabad 153 (P. B.); "courts are not to act upon the principles that every procedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibitions cannot be presumed. The courts are therefore to pass orders in the interests of substantial justice unless specifically prohited by law to do so. In AIR 1954 Andhra 40 also it has been held, that it if in the ends of justice that an injury should be remedied and needless expense and inconvethe general rule, therefore, is that the rights of the parties to a suit must be regulated nience to parties avoided. The general rule, therefore, is that the rights of the parties to a suit must be regulated with reference to their state on the date of the institution of the suit and a suit must be tried and decided in all the stages on the cause of action as it existed on the date of the commencement thereof. Subsequent events occurring after the filing of the suit can be very well taken notice of and overcome under the inherent powers of the court it need be. An appropriate relief can be granted which could have been granted to a plaintiff on the circumstances proved to be existing on the date of the institution of a suit and not refused specially when such events have been growth not out of the action of the plaintiff himself but of the defendant by taking law into his own hands and completely disregarding and flouting the clear orders of the courts. This should always be done if it is necessary to shorten unnecessary litigation between the parties or tend to subserve the substantial ends of justice. Such a power can be exercised even by an appellate court as has been done by their Lordships of the Rajasthan High Court in the above referred cases.
(3.) OBVIOUSLY, therefore, the learned Addl. Commissioner has erred in law and failed to exercise the jurisdiction vested in him by dismissing the suit only because the appellant had been dispossessed from the suit land during the pendency of the suit. When it was so clear to him that the respondents had dispossessed the appellants notwithstanding the temporary injunction having been granted by the learned trial court against them and flouted the authority thereof, he should have, even if he did not like to exercise his inherent powers under sec. 151 C. P. C. , asked the appellant to amend his plaint so as to seek a relief for possession also and given him an opportunity of doing the same and not dismissed the suit summarily as he has been pleased to do. The appellant could do no more than file a suit for injunction and seek and obtain a temporary injunction as soon as he found his possession invaded or threatened. If the respondents even then acted in a way to flout and disregard the authority of the court and law, it was for the court to deal with them and not let them reap the benefit of their unlawful action. The learned trial court did take note of this and acted quite correctly. the learned Addl. Commissioner, however, failed to make a proper appreciation of these circumstances. He too should have given serious consideration to these circumstances and acted in a way to subserve the ends of justice and not to let them be defeated, by mere technicalities of law. To conclude then we find that the learned trial court had rightly found the appellant to be in posession of the land on the date of the institution of the suit and dispossessed since during the pendency thereof notwithstanding the grant and existence of a temporary injunction in favour of the appellant and against the respondents by them, and he rightly granted an injunction restraining the respondents from interfering with the possession and cultivation of the appellant as will as with his enjoyment of the well under the pretext of repairing the Dhena thereof. The learned lower appellate court has wrongly set aside the same without taking into consideration the intentionally making the appellant suffer for the same. This deserves to be set aside land the appellant deserves not only to be aimed with injunction but also to be placed dack in possession We, therefore, accept this appeal set aside the judgment and decree of the learned appellate court and directing also that the appellant shall be restored the possession of the suit land and well, restore those of the learned S. D. O. Mandalgarh dated 28. 8. 59. Per Shri Khemchand : I have read the decision which my learned colleague proposes to make in this case with due respect. I regret to say that I am unable to concur with him in his finding. The suit giving rise to this second appeal was brought by the plaintiff Tulsa against the defendants Suratran and Shivdayal on 20. 3. 58 under sec. 188 of the Rajasthan Tenancy Act seeking a permanent injunction. The plaintiffs' case is that he held the land in dispute from the defendants as their tenant. But the defendants were attempting to dispossess him by force and in an unauthorised manner. Two overt steps taken by the defendants in furtherance of their intention to dispossess the plaintiff were mentioned. In the first instance it was stated that the defendants brought a suit under sec. 177 read with sec. 201 of the Rajasthan Tenancy Act. And secondly the defendants were attempting to pull down the Dhana of the well which was being used by the plaintiff to irrigate his crops standing on the land in dispute. The Dhana was being pulled down on the pretext of carrying out certain repairs to it. A contract to dismantle the Dhana had already been let out and the scrub grass and bushes, standing on the land surrounding the Dhana had been set fire to to clear the land. It was therefore prayed that the defendants be injuncted to restrain from interference with his possession as also from carrying out the so called repairs to the Dhana of the well. ;