Nand Singh and others vs Hazoor Singh

Usha Mehra, J.—The material question for consideration in this appeal is with regard to the power of the Trial Court in directing the continuation of interim injunction even after having finally disposed of the petitioner.

In order to determine this question, we must have a quick glance to the relevant facts of the case. Shri Hazoor Singh, respondent alleged to have entered into an agreement to sell certain properties to the appellant on 10th March, 1989. It has been alleged that pursuance to the said Agreement of sale, possession of these properties was delivered to the appellants on their making the payments. However, the said Hazoor Singh, during his life time did not execute the Sale Deed in terms of the Agreement. The appellants accordingly as per Clauses 5 and 6 of the agreement moved an application for appointment of an arbitrator. The arbitrator was appointed. Since no one on behalf of the respondent appeared before the arbitrator hence the arbitrator made and published the ex parte award on 15th September 1989. The said award was filed in the court. In court also no one appeared nor filed any objections hence the Award was made rule of the court on 19th December, 1989. It is an admitted case of the parties that Shri Hazoor Singh died on 17th May, 1992. Late Hazoor Singh during his life time did not challenge the award of the Arbitrator nor decree passed by the Court. However, on 25th September, 1993 Shri Khazan Singh, son of late Shri Hazoor Singh sought for the setting aside of the decree passed by the court of Additional District Judge thereby making the award rule of court. Along with that application Shri Khazan Singh moved an application for condensation of delay. The learned Additional District Judge condoned the delay and allowed Shri Khazan Singh as Legal heir of deceased Hazoor Singh to challenge the award. On 16th April, 1994, Shri Khazan Singh moved an application u/s 41 read with Schedule 11 of the Arbitration Act. Order 26 Rule 9, Order 40 Rule 1 read with Order 39 Rules 1 & 2 CPC seeking an interim order against the operation of the judgment and decree passed by the court on 19th December, 1989 and also for interim arrangement with regard to the standing crop. On 27th April, 1994 the Additional District Judge passed interim order making interim arrangement with regard to cultivation of the crop on these Khasras and deposit of amounts. Review sought by the appellant that interim order was dismissed by the trial court.

On the application of Shri Kazan Singh ex parte decree was set aside. Shri Khazan Singh respondent was permitted to raise objections against the award dated 15th September, 1989. After hearing the counsel for the parties the, Trial Court set aside the award vide its orders dated 11th January, 1996. However, by the impugned order the Trial Court not only set aside the award made and published by the arbitrator but gave directions that till the disposal of question of title by the Revenue Authority the interim arrangements directed by the court in April, 1995 would continue. In order to ensure that the interim arrangements made by the court during the pendency of the suit to continue direction was also issued to the S.H.O. Police Station Alipur to ensure that parties adhere to the interim arrangements made by the court till such time the Revenue Authority decides the question of ownership inter se the parties.

It is the direction given by the Trial Court in the impugned order which is under challenge. Counsel for the respondent contended that since the award was set aside by the impugned order but proceedings being still pending, hence the Court below had the jurisdiction to pass interim order made u/s 41(b) of the Arbitration Act. Mr. S. K. Chaudhary, appearing for the respondent further contended that the order passed by Shri R. C. Jain, Additional District Judge dated 7th April, 1995 thereby making the arrangement of allowing the harvesting on deposit of amount, which arrangement was made keeping the interest of both the parties and also that land could be cultivated. Hence, such an arrangement being permanent in nature had to continue till the decision of the revenue proceedings. For the implementation of this arrangement, the parties were directed to deposit the amounts in the court. Moreover, by the said order dated 7th April, 1995 arrangement was made with the consent of parties. If it was not acceptable to the appellant then the respondent was entitled to cultivate the land on the same condition subject deposit of Rs. 30,000/- per annum in the court. With this background the arrangement for the cultivation of land were made which attain finality. Hence there was no question of that arrangement not being continuing even after the disposal of the suit. I am afraid this argument his no force. The Additional District Judge vide order dated 7th April, 1995 only made tentative arrangements and that was without prejudice to the rights, pleas and contentions of the parties. This arrangement was to continue till the disposal of the suit. Mr. H. G. Jain Additional District Judge specifically mentioned that this interim arrangement was made with a view to resolve the controversy with regard to the standing crop. This was not a permanent arrangement nor made on the merits of the case. Therefore, it was not proper on the part of the Trial Court to perpetuate that tentative arrangement even after the disposal of the suit nor could the Trial Court by the impugned order dated 11th January, 1996 given direction that this tentative arrangement would continue till the decision by the Revenue Authority. This observation, certainly was beyond his jurisdiction and scope. In fact when the said orders of 7th and 17th April, 1995 were passed, proceeding under the Arbitration Act were pending before the Trial Court regarding setting aside the ex parte award. During the pendency of those proceedings this interim arrangement with regard to the standing crop of further cultivation of the land subject to deposit of amount was made. That arrangement was ordered by the Trial Court while exercising its power u/s 41(b) read with Schedule II of the Arbitration Act. So long the proceedings under Arbitration Act continued such an order could be passed. There was nothing illegal about the same, nor the appellant has challenged the same. This court is called upon to consider whether after having disposed of the suit, could such an interim arrangement made vide the order dated 7th and 17th April, 1995 be allowed be continue ? The answer is definitely no.

Section 41(b) of the Arbitration Act which is reproduced as under clearly states that the court has power to issue interim injunction, but such interim injunction can only be "for the purpose of and in relation to arbitration proceedings." Once the arbitration proceedings comes to an end i.e., after setting aside the award there was nothing before the court to adjudicate nor could the court order the interim order to continue even after disposal of the petition. Thus, the observation made in para 19 of the impugned order is definitely beyond the scope of Section 41(b) read with Schedule II of the Arbitration Act.

"41. Procedure and powers of Court :

Subject to the provisions of this Act and of rules made there under :

(a) ................................................................

(b) the court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to any proceedings before the court."

While dealing with the scope and power of Court u/s 41(b) the Supreme Court in the case of H.M. Kamaluddin Ansari and Co. Vs. Union of India (UOI) and Others, , held that u/s 41(b) Court has power to grant interim injunction, but this power cannot be exercised after the proceedings are finally disposed of. Moreover, the question of cultivation of land was not the subject matter of the proceedings pending before the Trial Court. The suit was for making the award rule of the Court and respondent seeking the said award to be set aside. The arbitration was with regard to an agreement pertaining to the sale of the properties. The grievance of the appellant was that the sale deed not been executed. The dispute was referred to the arbitrator in terms of the agreement. The ex parte award was challenged and the Trial Court set it aside. The question was not who could cultivate the land or who was in possession. That was the subject matter of adjudication before the Revenue Authority. That was not the subject matter of arbitration proceedings. Hence the Trial Court obviously could not travel over the jurisdiction of the Revenue Authority. An interim order which, though sensibly in form an order of interim injunction, in substance amounted to a direction to the parties to cultivate the land despite the fact that this was a subject matter of the Revenue Authority. Such an interim order would ultimately not be for the purpose of or in relation to arbitration proceedings as required by Section 41(b) read with Schedule II of the Arbitration Act. Even under Order 39, Rules 1 & 2, C.P.C. no injunction could have been granted in this case because the court was concerned whether the ex parte award could be sustained or not ? Having set aside the award and dismissing the application u/s 14 of the Arbitration Act, nothing survived before the Trial Court to allow the continuation of the interim arrangement made during the pendency of those proceedings. Therefore, respondent was not entitled to invoke Order 39 of the Code to seek an injunction order if the condition of Clause (b) of Section 41 of the Arbitration Act was not satisfied. Hence borrowing the language of the Supreme Court in the case of M/s. H. M. Kamaluddin Ansari (supra), I find that the observation of the learned Trial Court made in para 19 of the impugned order and as reproduced under is incongruous with the proposition of law laid down by the Supreme Court. This observation of the trial court cannot be sustained as it is contrary to the provisions of the Arbitration Act itself and the settled law of the land Para 19 of the impugned judgment reads as under :

In the meanwhile till the matter is decided by the Revenue Authorities the parties shall continue to cultivate the land in terms of the orders passed by this court dated 7th April, 1995 and 17th April, 1995. The S.H.O., Alipur shall give necessary police assistance to the respondent Khazan Singh as petitioner has not complied with the rights as per the orders of the court dated 7th April, 1995 and 17th April, 1995. The aforesaid orders becomes necessary to pass keeping in view of the change of possession by the parties during the pendency of these proceedings and by virtue of the powers vested in this court u/s 41 of the Arbitration Act read with II Schedule. This fact however, may clear that the orders passed by this court on 7th April, 1995 and 17th April, 1995 shall remain in force only till the question of ownership of the land in question is decided by the Revenue Assistant.

It is well settled that an injunction granted pendente lite until the disposal of the suit or further order will end in any case on the disposal of the suit or any earlier date on which further order comes to an end. Existence of a temporary injunction or temporary arrangement cannot continue after the disposal of the suit or the proceedings. It comes to an end with the passing off the decree. In this regard reference can be had to the decision of Allahabad High Court in the case of Sukhdeo Rai and Others Vs. Ram Narain Rai and Another , Khushi Ram v. Mukal Behari Lal Tejpal AIR 1925 Lah 718, Shivaraya v. Sharuappa AIR 1968 Mys 283, Mysore High Court held that :

"the interim order passed by High Court during the pendency of the revision, petition could not operate after the disposal of the said petition."

I am in respectful agreement with the observations of the courts referred to above. In the facts and circumstances of this case, I am of the considered view that the observations or directions given in para 19 of the impugned judgment and as quoted above, could not have been passed as it was beyond the scope of Section 41(b) read with Schedule II of the Arbitration Act. Cultivation was not the dispute before the arbitrator hence directions were not in connection with arbitration proceedings. Nor such a direction could be ordered to be executed after the final order was passed by the Trial Court on 11th January, 1996. After the main petition having been disposed of by the court by the impugned order of 11th January, 1996, the interim order came to an end. These could not continue to operate as these automatically came to an end after the disposal of the main petition. The Additional District Judge in fact fell in grave error in directing to enforce that interim order passed on 7th and 17th April, 1995 respectively. He exceeded his jurisdiction when he gave direction to the S.H.O. to enforce that interim arrangement. This was definitely not the scope of Section 41(b) of the Arbitration Act. I accordingly set aside the directions given by the learned Additional District Judge in his impugned judgment and in particular to those mentioned in paras No. 19 and 21 of the Judgment dated 11th January, 1996. Order accordingly.

Order accordingly.