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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3937 OF 2013 (Arising out of SLP (C) No. 8987 of 2008)

Jehal Tanti and others …Appellants

versus

Nageshwar Singh (dead) through L.Rs.      …Respondents

J U D G M E N T G.S. SINGHVI, J.

1. This is an appeal for setting aside order dated 16.05.2007 passed by  

the learned Single Judge of the Patna High Court whereby she dismissed the  

second appeal filed by the appellants and upheld the decree passed by 1st  

Additional  District  Judge,  Jamui  (hereinafter  described  as  ‘the  lower  

appellate Court’) in Title Appeal No. 20 of 1989/07 of 1999.

2. The respondents filed suit for grant of a declaration that by virtue of  

the sale deed executed in their favour by Bhuneshwar Tanti, son of Dukhan  

Tanti, they have become owner of the suit property, but a cloud has been  

created on their rights by the judgment and decree passed in Title Suit No.  

13 of 1977 filed by Smt. Pariya Devi (predecessor of the appellants herein).

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3. Smt. Pariya Devi contested the suit on several grounds including the  

one that the sale deed was illegal and was not binding on her because the  

same had been executed in violation of the order of temporary injunction  

passed on 06.05.1971 in Suit No. 49 of 1970.   

4. On the pleadings of the parties, the trial Court framed the following  

issues:

“1. Whether the suit is legally maintainable.

2. Whether the suit  is barred by law of limitation, estoppels,  waiver and lispendens.

3. Whether the plaintiff has got valid cause of action to file the  suit.

4. Whether the decree passed in Title Suit No. 13 of 1977 is  fraudulent, collusive and not binding upon the plaintiff.

5. Whether the plaintiff has acquired title on the basis of sale  deed dated 9.11.1973.

6. Whether the plaintiff is entitled to any decree or relief.”

5. After considering the pleadings and evidence of the parties, the trial  

Court dismissed the suit by holding that in view of the order of injunction  

passed in Suit No.49 of 1970, Bhuneshwar Tanti was not entitled to execute  

the  sale  deed  in  favour  of  the  plaintiffs.   The  trial  Court  held  that  the  

plaintiffs were very much aware of the order of injunction passed in Title  

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Suit  No.49 of  1970 and said order dated 6.5.1971 passed by the learned  

Munsif was binding on the parties and their successors.   

6. The lower appellate Court adverted to the pleadings of the parties and  

the order of injunction passed by the learned Munsif in Title Suit No.49 of  

1970 and held that once the suit  was returned for being presented in the  

Court of competent jurisdiction, the order of injunction did not survive and  

the sale deed executed on 9.11.1973 cannot be castigated on the ground of  

violation of the injunction order.  The lower appellate Court further held that  

the preliminary and final decrees passed in Title Suit No.13 of 1977 were  

fraudulent and not binding on the plaintiffs.  Another finding recorded by the  

lower appellate Court was that sale deed dated 9.11.1973 was not hit by the  

doctrine of lis pendens.  In view of these findings, the lower appellate Court  

allowed the appeal of the respondents and decreed the suit filed by them.

7. The  second  appeal  filed  by  the  appellants  was  dismissed  by  the  

learned Single Judge of the High Court by relying upon the judgment of this  

Court in  Amar Chand Inani  v. Union of India  (1973) 1 SCC 115.  She held  

that none of the questions raised in the second appeal could be termed as a  

substantial question of law.

8. We have heard learned counsel for the parties and carefully perused  

the record.

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9. There cannot be any quarrel with the proposition of law laid down in  

Amar Chand Inani’s case that a suit is deemed to have been filed on the date  

of presentation of plaint before the competent Court but the same does not  

have  any bearing on the  question  relating  to  legality  of  sale  deed dated  

9.11.1973 executed by Bhuneshwar Tanti during the currency of an order of  

injunction passed by the learned Munsif on 6.5.1971.  It is not in dispute that  

as on 9.11.1973, i.e., the date on which the sale deed was executed, the order  

of injunction passed by the trial Court in Suit No. 49 of 1970 was operative.  

It is also not in dispute that the order of injunction remained effective till  

1976 when the plaint was returned for presentation before the competent  

Court.  In other words, till the refiling of the plaint, the order of injunction  

passed  by  the  learned  Munsif  in  Suit  No.49  of  1970  restraining  the  

defendants from alienating the suit property was in force and Bhuneshwar  

Tanti could not have executed the sale deed in favour of the respondents  

herein.

10. The nature and effect of an alienation made in violation of an order of  

injunction was considered in Tayabbhai M.  Bagasarwalla and another v.  

Hind Rubber  Industries  Pvt.  Ltd.  and others  (1997)  3  SCC 443 and the  

following propositions were laid down:

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“According  to  this  section,  if  an  objection  is  raised  to  the  jurisdiction of the court at the hearing of an application for grant  of, or for vacating, interim relief, the court should determine that  issue in the first instance as a preliminary issue before granting or  setting  aside  the  relief  already  granted.  An  application  raising  objection to the jurisdiction to the court is directed to be heard with  all  expedition. Sub-rule (2),  however, says that the command in  sub-rule (1) does not preclude the court from granting such interim  relief  as  it  may consider  necessary  pending the decision on the  question of jurisdiction. In our opinion, the provision merely states  the obvious. It makes explicit what is implicit in law. Just because  an objection to the jurisdiction is raised, the court does not become  helpless forthwith — nor does it become incompetent to grant the  interim relief. It can. At the same time, it should also decide the  objection to jurisdiction at the earliest possible moment. This is the  general principle and this is what Section 9-A reiterates. Take this  very  case.  The  plaintiff  asked  for  temporary  injunction.  An ad  interim injunction was granted. Then the defendants came forward  objecting to the grant of injunction and also raising an objection to  the jurisdiction of the court. The court overruled the objection as to  jurisdiction  and  made  the  interim  injunction  absolute.  The  defendants filed an appeal against the decision on the question of  jurisdiction. While that appeal was pending, several other interim  orders were passed both by the Civil Court as well as by the High  Court.  Ultimately,  no doubt,  the High Court  has found that  the  Civil Court had no jurisdiction to entertain the suit but all this took  about six years. Can it be said that orders passed by the Civil Court  and the High Court during this period of six years were all non est  and that it is open to the defendants to flout them merrily, without  fear of any consequence. Admittedly, this could not be done until  the  High  Court's  decision  on  the  question  of  jurisdiction.  The  question is whether the said decision of the High Court means that  no  person  can  be  punished  for  flouting  or  disobeying  the  interim/interlocutory  orders  while  they  were  in  force,  i.e.,  for  violations and disobedience committed prior to the decision of the  High Court on the question of jurisdiction. Holding that by virtue  of  the  said  decision  of  the  High  Court  (on  the  question  of  jurisdiction), no one can be punished thereafter for disobedience or  violation of the interim orders committed prior to the said decision  of the High Court, would indeed be subversive of the Rule of Law  

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and  would  seriously  erode  the  dignity  and  the  authority  of  the  courts. We must repeat that this is not even a case where a suit was  filed in the wrong court knowingly or only with a view to snatch  an interim order. As pointed out hereinabove, the suit was filed in  the Civil Court bona fide. We are of the opinion that in such a case  the  defendants  cannot  escape  the  consequences  of  their  disobedience and violation of the interim injunction committed by  them  prior  to  the  High  Court's  decision  on  the  question  of  jurisdiction.

The learned counsel for Defendants 1 and 2 submitted that this is  not a proceeding for contempt but a proceeding under Rule 2-A of  Order  39  of  the  Civil  Procedure  Code.  The  learned  counsel  submitted that proceedings under Order 39 Rule 2-A are a part of  the coercive process to secure obedience to its injunction and that  once  it  is  found that  the  Court  has  no jurisdiction,  question  of  securing obedience to its  orders any further  does not arise.  The  learned  counsel  also  submitted  that  enforcing  the  interim order  after it is found that the Court had no jurisdiction to try the said  suit  would not only be unjust and illegal  but would also reflect  adversely upon the dignity and authority of the Court. It is also  suggested  that  the plaintiff  had instituted the present  suit  in the  Civil Court knowing fully well that it had no jurisdiction to try it.  It is not possible to agree with any of these submissions not only  on principle but also in the light of the specific provision contained  in  Section  9-A  of  the  Code  of  Civil  Procedure  (Maharashtra  Amendment).  In the light of the said provision, it would not be  right to say that the Civil Court had no jurisdiction to pass interim  orders or interim injunction, as the case may be, pending decision  on the question of jurisdiction. The orders made were within the  jurisdiction of the Court and once this is so, they have to be obeyed  and implemented. It is not as if the defendants are being sought to  be punished for violations committed after the decision of the High  Court on the question of jurisdiction of the Civil Court. Here the  defendants  are  sought  to  be  punished  for  the  disobedience  and  violation of the order of injunction committed before the decision  of the High Court in Special Land Acquisition Officer vs. Vishanji  Virji Mepani (AIR 1996 Bom. 366). According to Section 9-A, the  Civil Court and the High Court did have the power to pass interim  orders until that decision. If they had that power they must also  

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have the power to enforce them. In the light of the said provision,  it cannot also be held that those orders could be enforced only till  the said decision  but  not  thereafter.  The said decision  does  not  render them (the interim orders passed meanwhile) either non est  or without jurisdiction. Punishing the defendants for violation of  the said orders committed before the said decision (Vishanji Virji  Mepani) does not amount, in any event, to enforcing them after the  said  decision.  Only  the  orders  are  being  passed  now.  The  violations are those committed before the said decision.

The  correct  principle,  therefore,  is  the  one  recognised  and  reiterated  in  Section  9-A  —  to  wit,  where  an  objection  to  jurisdiction of a civil court is raised to entertain a suit and to pass  any interim orders therein, the Court should decide the question of  jurisdiction  in  the  first  instance  but  that  does  not  mean  that  pending the decision on the question of jurisdiction, the Court has  no jurisdiction to pass interim orders as may be called for in the  facts  and  circumstances  of  the  case.  A  mere  objection  to  jurisdiction does not instantly disable the court from passing any  interim orders. It can yet pass appropriate orders. At the same time,  it  should  also  decide  the  question  of  jurisdiction  at  the  earliest  possible  time.  The  interim  orders  so  passed  are  orders  within  jurisdiction when passed and effective till the court decides that it  has  no  jurisdiction  to  entertain  the  suit. These  interim  orders  undoubtedly come to an end with the decision that this Court had  no jurisdiction. It is open to the court to modify these orders while  holding that it has no jurisdiction to try the suit. Indeed, in certain  situations,  it  would  be  its  duty  to  modify  such orders  or  make  appropriate directions. For example, take a case, where a party has  been dispossessed from the suit property by appointing a receiver  or otherwise; in such a case, the Court should, while holding that it  has no jurisdiction to entertain the suit, put back the party in the  position he was on the date of suit. But this power or obligation  has nothing to do with the proposition that while in force, these  orders have to be obeyed and their violation can be punished even  after  the question of  jurisdiction  is  decided against  the plaintiff  provided the  violation  is  committed  before  the  decision  of  the  Court on the question of jurisdiction.”

(emphasis supplied)

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11. The same issue was considered in Vidur  Impex and Traders (P) Ltd.  

and others  v. Tosh Apartments (P) Ltd. and others (2012) 8 SCC 384, and it  

was held :

“At the cost of repetition, we consider it necessary to mention that  Respondent 1 had filed suit for specific performance of agreement  dated 13.9.1988 executed by Respondent 2.  The appellants and  Bhagwati Developers are total strangers to that agreement.  They  came into  the  picture  only  when  Respondent  2  entered  into  a  clandestine  transaction  with  the  appellants  for  sale  of  the  suit  property  and  executed  the  agreements  for  sale,  which  were  followed  by  registered  sale  deeds  and  the  appellants  executed  agreement  for  sale  in  favour  of  Bhagwati  Developers.   These  transactions  were  in  clear  violation  of  the  order  of  injunction  passed by the Delhi High Court which had restrained Respondent  2 from alienating the suit property or creating third-party interest.  To put it differently, the agreements for sale and the sale deeds  executed by Respondent 2 in favour of the appellants did not have  any legal sanctity.”

(emphasis supplied)

12. In view of the aforesaid judgments, it must be held that one of the  

questions of law raised in the second appeal filed by the appellants was a  

substantial question of law within the meaning of Section 100(1) CPC and  

the learned Single Judge committed serious error by summarily dismissing  

the second appeal.

13. We may also notice Section 23 of  the Indian Contract  Act,  1872,  

which lays down that the consideration or object of an agreement is lawful,  

unless it is forbidden by law; or is of such a nature that,  if  permitted, it  

would defeat  the provisions  of  any law;  or  is  fraudulent;  or  involves or  

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implies injury to the person or property of another; or the Court regards it as  

immoral,  or  opposed  to  public  policy.   In  each  of  these  cases,  the  

consideration or object of an agreement is unlawful and every agreement  

executed with such an object or consideration which is unlawful is void.  

Since the sale deed was executed in favour of respondent No.1 in the teeth  

of the order of injunction passed by the trial Court, the same appears to be  

unlawful.   

14. As  a  sequel  to  the  above  conclusion,  the  appeal  is  allowed,  the  

impugned order is set aside and the second appeal is remitted to the High  

Court for fresh disposal.  The High Court shall frame appropriate substantial  

question of law in the light of the observations made in this order and decide  

the appeal after giving opportunity of hearing to the parties with reference to  

the substantial question of law.  If, during the course of hearing, the High  

Court  finds  that  any  other  substantial  question  of  law  arises  for  its  

consideration then it shall be free to frame that question and decide the same  

after hearing the parties.

................………………………….J. (G.S. SINGHVI)

...............…………………………J. (SHARAD ARVIND BOBDE)

New Delhi; April 18, 2013.

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