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Court No. - 27

Case :- MISC. SINGLE No. - 1191 of 2010

Petitioner :- Mohd. Hamja

Respondent :- Additional Civil Judge (S.D.) Lko.And Ors.
Petitioner Counsel :- Yogesh Kesarwani
Respondent Counsel :- C.S.C.

Hon'ble Devi Prasad Singh,J.

1. Learned Chief Standing counsel has accepted notice on

behalf of opposite parties no. 1 and 2.

2. Issue notice to opposite party no. 3 returnable at an

early date.

3. Petitioner had filed a regular suit no. 356 of 2004,

Mohd. Hamja Vs. Zia-u-deen pending in the Court of Civil

Judge, Senior Division (Court No. 24) Lucknow. Temporary

injunction was granted by the trial court on 15.10.2004 and

17.12.2005 directing the parties to maintain status quo.

4. It has been alleged that the defendant respondent in

violation of order passed by the Court is raising construction

and also removing the trees standing over the land in

question. Feeling aggrieved with the non-compliance of

order passed by the Trial court, petitioner has moved an

application with the prayer that defendant respondent may

be restrained from changing the nature of land, cutting the

trees and raising construction over the land in question.

Additional Civil Judge, Senior Division had rejected the

plaintiff petitioner's prayer stating that petitioner should

move an application under Order 39 Rule 2 A of the Code of

Civil Procedure. No order could be passed in pursuance to

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provision contained in Section 151 of the Code of Civil

Procedure. Prima facie, order passed by the Civil Judge, at

the face of record, seems to be not sustainable. Power to

proceed for contempt of Court under Order 39 Rule 2A is

deals with different subjects then the power of the court to

maintain status-quo and ensure of the compliance of its

order with the aid of police or authorities.

5. Hon'ble Supreme Court in a case reported in AIR 1966

SC 1899(V 53 C 384), M/s. Ram Chand and Sons Sugar

Mills Private Ltd. Barabanki (U.P.) Vs. Kanhayalal

Bhargava and others, held that the court is competent to

make suitable order under Section 151 of the CPC as may be

necessary for ends of justice or to prevent the abuse of

process of court. There is nothing in Order 29 of the Code of

Civil Procedure which expressly or by necessary implication

precludes the exercise of the inherent power of Court under

Section 151 of the Code of Civil Procedure.

6. In one another case reported in 2004 (4) SCC 468,

Vikas Aggarwal Vs. Anubha their Lordship of Hon'ble

Supreme Court held that inherent powers of the Court under

Section 151 of the code of civil procedure can always be

exercised to advance interests of justice and the

technicalities will have no place in such matters. Order 39 of

the Code does not expressly or by necessary implication

preclude the exercise of inherent power by the court under

Section 151 of the CPC. Court may pass appropriate

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suitable order to meet out the ends of justice.

7. In one another case reported in 2004 (6) SCC 378,

Vareed Jacob Vs. Sosamma Geevarghese and others

their Lordship of Hon'ble Supreme Court reiterated the

aforesaid principle and held that in appropriate matter court

may pass appropriate order to meet out the ends of justice.

It has been held that inherent power of the court is to do

justice in addition to and complementary to powers conferred

under CPC, expressly or by implication.

8. In a democratic and civilized society while dispensing

justice courts posses two folds of duty. For the purpose to

secure statutory and constitutional right delivery of judgment

or pass an order or direction to meet the ends of justice and

secondly to ensure that order passed by it while dispensing

justice is implemented in its letter and spirit by the parties or

authorities concerned. These are the basic tenets of rule of

law in a civilized society so far as courts are concerned.

Failure on the part of court to ensure the ends of justice may

result into destruction of rule of law creating chaos in the

society and breaking up social order. Accordingly, judicial

officers or judges should always be alert to ensure that their

orders are complied with by persons or authorities

concerned.

9. In view of above, the court has got ample power to

enforce its order. Local authorities or officers concerned may

be directed to ensure the compliance of injunction granted by

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the Court. The court has got ample power to direct the police

to ensure that no construction should be raised and parties

may not remove any structure standing over the disputed

land in terms of injunction granted by the Court. It should

be paramount consideration of court to ensure that rule of

law should be maintained and orders of the court must be

complied with in its letter and spirit. Power to punish under

the contempt procedure does not fulfill the requirement and

in case court remain moot spectator and permit the parties

or authorities to violate its order, damage may cause to

parties and may suffer from irreparable loss and injury.

Accordingly trial court should have issued appropriate

direction or order to the local authorities and administration

to ensure compliance of injunction granted by it in pursuance

to inherent power conferred by Section 151 of the CPC and it

shall be obligatory for the State authorities to comply with

such order.

10. Accordingly, as an interim measure, Senior

Superintendent of Police/DIG Lucknow as well as the

opposite party no. 2 are directed to ensure that in terms of

interim injunction granted by the Trial court, parties shall

maintain status quo and no construction shall be raised over

the disputed land and trees are not removed and nature of

land should also not be changed unless injunction order is

modified by the court itself.

Order Date :- 9.3.2010

Madhu
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