Senior Section Engineer Works vs Seema Sharma

Sharad Kumar Sharma, J

The petitioner in the present writ petition, is a defendant in a Suit filed for grant of a decree of permanent injunction, which was filed by the plaintiff (respondent herein) on 28.02.2009 being Suit No. 49 of 2009 'Smt. Seema Sharma vs. Senior Section Engineer Works, Northern Railway Station, Hardiwar, District Haridwar.

In the suit in question, which was preferred by the plaintiff/respondents has sought a decree of permanent injunction in relation to the property, which was more particularly described in the details of the properties as given at the foot of the plaint, which was defined and described by its chauhaddi. The details of the property as given therein is quoted hereunder:

"विवरण सम्पत्ति

एक किता मकान पुख्ता दक्षिण मुहाना, जो भूतल पर स्थित है जिसकी नाप उत्तर की भुजा 24 फुट दक्षिण को भुजा 24 फुट पूरब की भुजा 20 फुट पश्चिम की भुजा 20 फुट जिसका कुल क्षेत्रमफल 480 वर्ग फुट जिसमें दो कमरे, एक रसोई व एक जीना, लेटरीन, बाथरूम बने हैं जिसके पूरब में सम्पत्ति मकान नौटियाल, पश्चिम में मकान राजेश व उत्तर में मकान अमोला व दक्षिण में रास्ता/गली स्थित विवेक विहार, आवास विकास कालोनी, अन्दर सीमा नगर पालिका हरिद्वार, परगना ज्वालापुर, तहसील व जिला हरिद्वार है।"

The suit in question, which was instituted on 28.02.2009, it accompanied with it an application for the grant of temporary injunction by invoking the provisions as contained under Order 39 Rule 1 & 2 of CPC, wherein, the temporary injunction, which was sought for by the plaintiff (respondent herein) was in the nature of an order of restraint as against the defendant of the Suit from interfering in their exclusive possession of the property in dispute, which the plaintiff/respondent contends to have purchased the same by virtue of the registered sale deed executed in her favour, which has been detailed in paragraph 2 of the plaint, i.e. the sale deed dated 03.05.2007, by virtue of which she contends that a title and a right over the disputed property was conveyed to her in relation to the property in dispute.

The application thus preferred by the plaintiff/respondent under Order 39 Rule 1 & 2 for the grant of temporary injunction, the same was opposed by the defendant/petitioner by filing an objection under Order 39 Rule 4, on considering the rival case, the Court of Civil Judge, S.D. Haridwar, by an order dated 06.03.2009 had granted a temporary injunction of the nature of an order of restraint from interference over the property in question. The said order allowing Order 39 Rule 1 & 2 of plaintiff/respondent application by an order dated 06.03.2009, the defendant/petitioner (petitioner herein) had preferred a miscellaneous civil appeal, under Order 43 Rule (i) (r) of the Code of Civil Procedure, which was registered as Miscellaneous Civil Appeal no. 39 of 2009 'Senior Section Engineers, Northern Railway, Railway Station, Haridwar vs. Smt. Seema Sharma'. The Miscellaneous Civil Appeal, which was preferred on 23/24.03.2009 came up for consideration before the Court of 6th A.D.J., Haridwar. The Court of 6th A.D.J., Haridwar, by the impugned judgment dated 18.01.2011 has dismissed the appeal and as a consequence thereto had affirmed the order of grant of temporary injunction as granted on 6.03.2009 by the Trial Court. Questioning the propriety of both the orders granting temporary injunction concurrently, the petitioner had preferred the present writ petition before this Court on 21.06.2011 and this Court too while entertaining writ petition, while issuing notices to the respondent had passed an interim order to the effect that till the next date of listing the plaintiff/respondent would not be evicted from the property in question.

The pleadings of the present writ petition has been exchanged. After exchange of the pleading, the matter is taken up for final disposal and the learned counsel for the petitioner has raised and harped upon two basic grounds of challenge to the impugned orders, these are (1) that the suit itself was not tenable for the reason that in view of the embargo created by Article 300 of the Constitution of India to be read with Section 79 of the Code of Civil Procedure, in any case in which an injunction was to be sought against the Government or its agency then Union of India ought to have been impleaded because the officials of the department cannot be made as a defendant of a suit for the grant of decree of the permanent injunction. Article 300 of the Constitution of India and Section 79 of the Code of Civil Procedure is quoted hereunder:

"300. Suits and proceedings

(1) The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted

(2) If at the commencement of this Constitution

(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings CHAPTER IV RIGHT TO PROPERTY.

In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-

(a) in the case of a suit by or against the Central Government, the Union of India, and

(b) in the case of a suit by or against a State Government, the State."

Secondly, he submits that the suit for injunction as filed by plaintiff/respondent was itself bad because in the description of the property, which was given in the schedule of the property of the plaint, which was not described or bearing any khasra number or municipal number and, hence, there is a disputed question with regards to the identifiability of the property. Hence, too no temporary injunction can be granted until and unless there is a definite assertion in the plaint with regards to the extent of the property in relation to which an injunction has been claimed for by the plaintiff/respondent. Admittedly, what is reflected on perusal of impugned orders is that by the impugned orders under challenge dated 06.03.2009 as rendered by the Trial Court and affirmed by the Appellate Court on 18.01.2011, whereby, both the courts below have concurrently exercised their powers by granting the temporary injunction application of the plaintiff/respondent and as such in view of the judgment rendered by the Allahabad High Court in Full Bench judgment as reported in AIR 1991 Allahabad 114 'Gangasaran vs. Civil Judge', the writ petition for scrutinizing a concurrent orders passed by the court granting the injunction in favour of the plaintiff/respondent could not be made as a subject matter of scrutiny by the writ courts in the exercise of its supervisory jurisdiction under Article 227 of the Constitution of India and it has been held in paragraph 12 of the said judgment that once it is an interlocutory order maintaining a status quo qua disputed property during the pendency of the main proceedings of the Suit, the same could not be made as a subject matter of the judicial scrutiny by invoking the provisions contained under Article 227 of the Constitution of India. Hence, the writ would not lie. Paragraph 12 of the aforesaid judgment is quoted hereunder:

"12. Our answer to the two questions framed by us are these :

Answer to Question No. I :

In the negative.

Answer to Question No. II :

In the affirmative only to this extent that where it is found from the order impugned that fundamental principle of law has been violated and further such an order causes substantial injustice to the party aggrieved, the principle that ordinarily interlocutory order passed in the civil suit is not amenable to extra-ordinary jurisdiction of the High Court, will not preclude such a writ petition being issued by the High Court under Art. 226 of the Constitution within the ambit of well-established and recognised principles laid down by the Supreme Court."

There is another prospective from which this controversy could be dealt with. There is a judgment rendered by the Hon'ble Apex Court as reported in 2004(8) SCC 488 'Maharawl Khewaji Trust (Regd.), Faridkot vs. Baldev Dass', wherein, a reference to paragraph 10 of the said judgment necessarily comes for consideration before this Court. In those circumstances, where an interference is being sought to be restrained for in relation to the property, which admittedly is being claimed by the plaintiff to have acquired his rights on the basis of a document of title, which remain unassailed. Paragraph 10 of the aforesaid judgment of the Hon'ble Apex Court has laid down that in a suit for permanent injunction filed by a recorded owner of the property in whom the title is recorded and conferred by a registered document, which falls to be within the ambit of Section 17 of the Registration Act, the Court should endeavour that the status of the property during the pendency of the lis has to be maintained. In the instant case as per the plaint averments, the plaintiffs/respondents has claimed her title of disputed property by a title vested in her by sale deed dated 03.05.2007, which finds place on record of the writ petition also as annexure-2. Even in the written statement filed by petitioner on 28.03.2009 a very vague reply has been given in the written statement regarding the sale deed of the plaintiffs/respondents. Paragraph 10 of the said judgment is quoted hereunder:

"10. Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored."

In that view of the matter, this Court is of the view that for the aforesaid two reasons, which have been assigned by the orders granting the injunction in favour of the plaintiff it cannot not be faulted with. Now the question, which comes for consideration is the ground, which has been raised by the learned counsel for the petitioner with regards to the wrongful description of the property of the Suit, against which the injunction was being sought. As far as the said plea/objection, which has been taken in the light of the provisions contained under Article 300 of the Constitution of India and Section 79 of the Code of Civil Procedure, it could be a ground of determination after framing of an issue in that regard as to whether the suit itself principally can proceed on the ground of non-joinder of necessary parties or on account of a wrongful description of a property or non-identifiability of the property in the suit, but that in itself will not create a ground where a consideration of temporary injunction application could be rejected on the ground that there was a wrongful description of the defendant in the cause title of the suit in question.

Even otherwise also, this objection, which is being taken by the learned counsel for the petitioner, being supported by the judgment 'State of Madhya Pradesh & Another vs. Jiwanlal Chikotiya & Another' reported in AIR 2005 Madhya Pradesh 76, wherein, it has been held that in view of the provisions contained under Section 79 there has had to be a proper description of the party in the proceedings to make the proceedings itself tenable. There cannot be any dispute pertaining to the aforesaid ratio as propounded by the Madhya Pradesh High Court so far it relates to an appropriate description of the defendant in a suit to make the proceedings itself tenable, but has no effect at the stage when the application under Order 39 Rule 1 & 2 itself is being considered because determination of an issue of appropriate description of the party in the cause title of the Suit would be an issue, which is to be decided after framing the issues and letting parties to the Suit to establish their respective case as it is a mixed question, which entails determination of fact and law both. Paragraph 11 of the judgment is quoted hereunder:

"11. Though the prayer is for declaring that this is a public property but no permission was sought for bringing the suit in the representative capacity. It is apparent that when notice was served upon the plaintiff to remove the encroachment, they have filed this suit. No document of the title has been filed. Patiram (P.W. 4) in Para 8 of the deposition has stated that temple was constructed about 8-9 years back, i.e., somewhere in the year 1989 or 90. It appears that after the encroachments were made by the plaintiffs and they were served with the notice then they have filed a suit. Even notice under Section 80, CPC is also not proved. Ex. P-2 filed by the plaintiffs itself demonstrates that notice was sent to the Collector, District Gwalior and Commissioner, Gwalior Division and Sub Divisional Officer, Public Works Department. It may be mentioned that for filing a suit against the Government the authority be named as plaintiff or defendant as provided under Section 79 of the CPC. When a suit is to be filed against the State Government or State then notice should be sent to the State Government through the Secretary or the Collector of the District. Section 80 specifically provides that notice must be addressed to the State Government through the Secretary to that Government or the Collector of the District. However, there is no provision for sending notice to the Collector or any other officer. Such notices can not be termed as notice under Section 80, CPC. Since the notice is not addressed properly and it has not been addressed to the State Government, there was no notice under Section 80 of the Code of Civil Procedure and in the absence of notice under Section 80, CPC also the suit was not maintainable. Even otherwise from the evidence on record, it is apparent that the land belongs to the State Government and they have rightly issued notice for removal of the encroachment. We further find that plaintiff himself has valued the suit for Rs. 1,00,200/- and for the purpose of injunction has arbitrarily valued the suit as Rs. 200/-. He has filed the suit for declaration with injunction as a consequential relief, therefore, he was bound to pay ad valorem Court fees as per valuation of the suit for the relief of injunction. We find that ad valorem Court fee has not been paid. However, the amount of deficit Court fees, if not paid by the plaintiff, shall be recovered from him by issuing a certificate in accordance with law."

Another authority on which the learned counsel for the petitioner has relied is that reported in AIR 2003 SC 1805 'Chief Conservator of Forests vs. Collector & Others', wherein, yet again the Hon'ble Apex Court while drawing implications of Article 300 to be read with Section 79 of the Code of Civil Procedure as well as Order 1 Rule 9 has held that the suit itself would not be tenable in an event if there is a wrongful description of the party or there is a non-joinder of the necessary party in their proceedings pending before the Civil Court. Order 1 Rule 9 of C.P.C. is quoted hereunder:

"9. Misjoinder and non-joinder- No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

[Provided that nothing in this rule shall apply to non-joinder of a necessary party.]"

A reference may be had to paragraph 13 of the said judgment, wherein, implication of Section 79 as well as the Article 300 of the Constitution of India was taken into consideration by the Hon'ble Apex Court. Paragraph 7, 9, 11 & 13 of the said judgment is quoted hereunder:

"7. To appreciate the contention of the learned senior counsel, it will be useful to refer to the relevant provisions of the Constitution of India [for short, 'the Constitution'] and the Code of Civil Procedure, 1908 [for short, 'the C.P.C.']. Article 300 of the Constitution falls in Chapter III, which deals with property, contract, rights liabilities, obligations and suits. Article 300 reads as follows:

"300. Suits and proceedings.-(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

(2) If at the commencement of this Constitution-

(a) any legal proceedings are pending to which Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings."

Section 79 of the C.P.C. deals with suits by or against the Government. It reads thus:

"79 Suits by or against Government.-In a suit be or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-

(a) in the case of a suit by or against the Central Government, the Union of India; and

(b) in the case of a suit by or against a State Government, the State."

A plaint reading of Section 79 shows that in a suit by or against the Government, the authority to be names as plaintiff or defendant, as the case may be, in the case of the Central Government, the Union of India and in the case of the State Government, the State, which is suing or is being sued.

It needs to be noted here that a legal entity - a natural person or an artificial person - can sue or be sued in his/its own name in a court of law or a Tribunal. It is not merely a procedural formality but is essentially a matter of substance and considerable significance. That is why there are special provisions in the Constitution and the Code of Civil Procedure as to how the Central Government or the Government of a State may sue or be sued. So also there are special provisions in regard to other juristic persons specifying as to how they can sue or be sued. In giving description of a party it will be useful to remember the distinction between misdescription or misnomer of a party and misjoinder or non-joinder of a party suing or being sued. In the case of misdescription of a party, the court may at any stage of the suit/proceedings permit correction of the cause title so that the party before the court is correctly described; however a misdescription of a party will not be fatal to the maintainability of the suit/proceedings. Though Rule 9 of Order I of C.P.C. mandates that no suit shall be defeated by reason of the misjoinder or non- joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order I C.P.C. provides remedy when a suit is filed in the name of wrong plaintiff and empowers the court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings.

Under the scheme of the Constitution, Article 131 confers original jurisdiction on the Supreme Court in regard to a dispute between two States of the Union of India or between one or more States and the Union of India. It was not contemplated by the framers of the Constitution or the C.P.C. that two departments of a State or the Union of India will fight a litigation in a court of law. It is neither appropriate nor permissible for two departments of a State or the Union of India to fight litigation in a court of law. Indeed, such a course cannot but be detrimental to the public interest as it also entails avoidable wastage of public money and time. Various departments of the Government are its limbs and, therefore, they must act in coordination and not in confrontation. Filing of a writ petition by one department against the other by invoking the extraordinary jurisdiction of the High Court is not only against the propriety and polity as it smacks of indiscipline but is also contrary to the basic concept of taw which requires that for suing or being sued, there must be either a natural or a juristic person. The States/Union of India must evolve a mechanism to set at rest all inter-departmental controversies at the level of the Government and such matters should not be carried to a court of law for resolution of the controversy. In the case of disputes between public sector undertakings and Union of India, this Court in Oil and Natural Gas Commission v. Collector of Central Excise, [1992] Suppl. 2 SCC 432 called upon the Cabinet Secretary to handle such matters. In Oil and Natural Gas Commission and Anr. v. Collector of Central Excise, (1995) Suppl. 4 SCC 541, this Court directed the Central Government to set up a Committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of the Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings in between themselves, to ensure that no litigation comes to court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation. The Government may include a representative of the Ministry concerned in a specific case and one from the Ministry of Finance in the Committee. Senior officers only should be nominated so that the Committee would function with status, control and discipline."

The ratio of the judgment will not apply in the instant case because it was case where two wings of State Government or two agencies were contesting amongst themselves, wherein, it was held based on judgment reported in 1995 Supp (4) SCC 541 'ONGC vs. Collector of Central Excise' that such circumstances where the two wings of State are contesting against one another, in such an eventuality, the dispute to be resolved by a committee to set up by Government in order to resolve the inter-departmental controversies, which is not the case at hand. Thus, the ratio of AIR 2003 SC 1805 'Chief Conservator vs. Collector (supra)' will not apply in the instant case.

After having considered the ratios as provided therein in the aforesaid two judgments relied by the learned counsel for the defendant/petitioner, this Court is in absolute agreement with the ratio laid down therein, but the preposition could only be attracted so far it relates to the maintainability of the principal proceedings of the Suit itself is concerned because these judgments do not deal with the circumstances where these factors were to be considered at the stage when the court is seized with considering the application under Order 39 Rule 1 & 2 and to whether the consideration of the rightful description of the defendant, becomes mandatory to be resolved for the purposes of grant of temporary injunction under Order 39 Rule 1 & 2. Hence, a distinction can be carved out in the instant case from the aforesaid ratio because the law does not contemplate by the language used in it under Order 39 Rule 1 & 2, that a grant of temporary injunction can be denied on the pretext of wrongful impleadment or description of a defendant in a suit because that is a consideration, which this Court is of the opinion, which is to be made by the civil court after framing of an issue and after giving the parties a sufficient opportunity to raise their rival contention regarding wrong joinder or non-joinder of appropriate party to the Suit.

There is another aspect of the matter that the objection pertaining to the wrongful description of the defendant or non-joinder of appropriate party in the Suit stands eradicated because the said error or mistake it was a rectifiable mistake, which in the present has been subsequently rectified by the plaintiff/respondent by filing an appropriate amendment application and the said amendment application was allowed by the learned Trial Court by an order dated 28.03.2012, as of now when the writ petition is being argued, the defendant, which has been described in the suit is now only through Union of India. Even on this ground itself the first ground, which has been raised by the learned counsel for the petitioner is not tenable and hence, this Court does not agree with the ratio as sought to be pressed by the learned counsel for the defendant/petitioner The second ground, which has been agitated pertaining to the identifiability of the property for the purposes of granting of a temporary injunction. This Court is of the view that once again even if it is taken for granted the plaintiff has not described the property by assigning a specific municipal number or khasra number in order to establish its identifiability, that will not have any effect for the reason that as per the description of the property, which has been given at the foot of the plaint the property has been specifically denied by giving its "chauhaddi" and that chauhaddi thus given is corresponding that the chauhaddi of the property, which has been described in the sale deed dated 03.05.2007 by virtue of which a title stood vested with the plaintiff. It is not the case of the defendant/petitioner that there is a distinction between the description of the chauhaddi given in the plaint as that of the chauhaddi given in the suit and, hence, the plea of non-identifiability of the property for the purposes of creating a restraint from considering the application under Order 39 Rule 1/2 is not sustainable because the law otherwise postulates to the contrary. It provides that in those circumstances where the property is not identifiable on account of lack of supplying of khasra number or municipal number, that will not have no bearing in case if the property and has been described by its chauhaddi, that in itself, makes a property as to be identifiable because chauhaddi in sale deed or description of property in the plaint will have superseding effect and would prevail. Hence, this plea too raised by the learned counsel for the defendant/petitioner is not tenable. This Court does not find any mistake or apparent error, which has been created or committed by the Courts below in recording the finding of facts concurrently with regards to the prima-facie case by balance of convenience and irreparable injury as assigned by both in favour of the plaintiff/respondent.

Consequently, this Court is of the view that the writ petition lacks merit and is, accordingly, dismissed.

After the conclusion of the argument, learned counsel for the petitioner prays for that an appropriate direction may be issued to the learned Trial Court to conclude the suit itself, which is pending consideration since 2009. The said prayer is acceded to and the learned Trial Court is requested to decide the Suit itself as expeditiously as possible, but not beyond the period of one year from the date of presentation of the certified copy of this order.