Mohd.Raza Khan vs Anis Ahmad Khan and Another

The appeal is taken up and summarily disposed of.

It is an appeal from an order passed by an Hon''ble single Judge on the 25th of April, 2005 in aid of an application filed under Article 226 of the Constitution of India by the respondent before us, who is the plaintiff in the Lower Court at Pratapgarh. We hereafter call him simply (plaintiff). The appellant before us is the uncle of the plaintiff. He is Mohd. Raza, who is defendant in the Lower Court suit; hereafter we call the ''Uncle'' simply (defendant).

By the impugned order dated 25.4.2005, his Lordship has ordered as follows:

�The contention is that (the plaintiff) has taken crop of grove of (the defendant) for three years i.e., from 20032006 for a sum of Rs.2 lakhsIn the meanwhile, (the defendant) would not interfere in the right and possession of (the plaintiff) on the grove in question.�

We have inserted the bracketed words for simplicity in the above quoted order, but such insertion does not change the nature or the character of the order appealed from.

This type of order, quite clearly is passed either in aid of a Suit, or in aid of a First appeal, where the courts are permitted to go into every matter including the facts. This type of order in an Article 226 jurisdiction relating to orders passed in Suits in the Lower Court is incomprehensible. We shall, however, for the benefit of the plaintiff, treat his application as being an application under Article 227 i.e., invoking the High Court''s power of superintendence.

If the facts of this case are taken a good grip of, then the order to be passed by us can be seen and predicted immediately, and in our opinion there are no two ways of thinking about it.

Allegedly, the plaintiff took the Mango grove of the defendant''s Mango orchard for four years i.e., 2003, 2004, 2005 and 2006 for a sum of Rs.2 lakhs, out of which he paid a down sum of Rs.1.50 lakhs on the date of agreement, which is significantly the 1st of April, 2002.

The photocopy of the receipt of Rs.1.50 lakhs, as produced on instructions by the learned counsel for the respondents (defendants), we have had kept on the records of this appeal, and we passed a short order in that regard:

�The alleged photocopy of the receipt of Rs.1.50 lakhs allegedly signed by the appellantMohd. Raza is handed up by the learned counsel for the opposite parties. It be kept on the records (counter signed by the Court Officer). Learned Counsel has himself taken the liberty of marking Mohd. Raza''s signature with yellow marking pen. The signature is hardly visible, if at all, the marking pen makes matters worse.�

This order is not separately recorded then herein.

The receipt is an impossible one to sustain; although we say this is in an appeal from an interim order passed in a 227 matter, we must say this as it is a business of the Court to discourage frivolous litigation. In the Court below the plaintiff got a favourable interim order allowing him to spray pesticides on the Mango crop on 22.4.2003. That was an exparte order. The defendant took two steps in regard thereto. He filed an appeal in the Lower Court and he also filed an application for withdrawal of the said order, by the first Court which had itself passed the order.

The appeal of the defendant was dismissed by the Lower Court on 5.4.2004, service the withdrawal application was then pending. However, the withdrawal application succeeded and on 29.5.2004, the learned Civil Judge (Senior Division), Pratapgarh withdrew the order dated 22.4.2003 passed in favour of the plaintiff. On 1.2.2005, the learned 7th Additional District Judge, Pratapgarh dismissed the plaintiff''s appeal in this regard.

In the impugned order before us, these orders, which had left the plaintiff without any protective order at all in aid of his Suit, are not mentioned. On the other hand, the older Lower Court''s order dated 22.4.2003 and the older Lower Court''s appellate order dated 5.4.2004 are mentioned.

It is not necessary to mention about another 226 application, which had earlier been made in the High Court, as that did not result in any favourable order being passed for plaintiff.

Thus, the order under appeal before us, dated 25.4.2005, was passed on the basis of incomplete facts; but the blame therefore wholly lies on the side of the defendant, who did not make the submissions as clearly before the first Court as those were made before us.

These facts are enough to say that in the Court of appeal, we must interfere and we should not allow the plaintiff to drag on a frivolous litigation or create any situation of turmoil or unrest in regard to a Mango orchard in the possession by on behalf of the defendant. The defendant has stated that for the years 20032004 the fruit plucking rights were given to him by one yadav for a consideration of Rs.1.67 lakhs. There is nothing to show that the plaintiff ever plucked a single fruit from the orchard; there is nothing to show that he came in possession at any time, there is nothing to show that there was any disturbance or reentrance into possession. No complaint to the police authority is on record. The whole thing is by way of mere paper allegations; the receipt for Rs.1.50 lakhs is not worth the paper it is written upon.

A point was taken about maintainability of the appeal before us. No doubt, if the order under appeal is substantially an order passed in the superintending jurisdiction, an appeal would not be maintainable. But the order under appeal seeks to be an order passed in aid substantially of an appeal from a Lower Court''s appellate order. There is no jurisdiction by way of Second appeal in this matter. Nothing is mentioned in the impugned order as to why the High Court should seek to exercise its jurisdiction of superintendence, which is to be done only in rare cases where the cause of justice has been perverted, or there is some problem about the jurisdiction of there has been taking into consideration of extraneous matter. The appeal is, thus, maintainable as an order passed without jurisdiction is ordinarily appealable. We are fully aware that we have worded our order in such a manner, that we leave almost nothing in the suit to be tried, if what we say here to be blindly accepted by the trial court. We have done so consciously. There might be very good legal arguments about money compensation, profits, acuta prendre and calculation of damages etc., but these are all the first, second and third floor etc. of the building. There is no ground floor in the plaintiff''s case.

The appeal is therefore allowed. The order under appeal is set aside.

We have absolutely no doubt that when the facts are brought before Hon''ble the Single Judge when his Lordship will dispose of 226 matter filed by the plaintiff, his Lordship will, on that writ, reach an identical conclusion as we have done. However, this being an appeal from an interim order, we cannot, in any manner, fetter of his Lordship''s discretion; his Lordship will exercise such discretion in accordance with law.

Although we have purported to say things which will go perhaps against the plaintiff''s case, yet it is said in disposal of an appeal from an interim order only and therefore, legally the Suit Court will be equally free to deal with the suit and applications made therein.

(Appeal allowed)