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KHALID NIZAMI @ SULLU versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Khalid Nizami @ Sullu v. State Of U.P. & Others - WRIT - C No. 25609 of 1999 [2005] RD-AH 5622 (11 November 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R

Court No.40.

Civil Misc. Writ Petition No.  25609  of  1999.

Khalid Nizami alias Sullu ........... Petitioner

Versus

State of U.P. and others ........... Respondents.

 :::::::::::::::

Hon'ble Ashok Bhushan, J.

Heard Sri B.N. Tiwari, learned counsel for the petitioner and Sri T.P. Singh and Sri Deo Prakash Singh appearing for  respondents No.2 and 3.

By this writ petition, the petitioner has prayed for quashing the order dated 21st May, 1999 passed by the appellate Court dismissing the misc. appeal filed by the appellant against the order dated 22nd March, 1999 passed by the trial Court in Original Suit No. 155of 1995 allowing the application filed by the contesting respondents under Order XXXIX Rule 4 of the Code of Civil Procedure. Another relief claimed in the writ petition is to issue a direction in the nature of mandamus declaring Clause 8 of the Bye-laws framed by the Zila Panchayat, Ballia published in the U.P. Gazette dated 23rd July, 1997 as invalid and ultra vires the parent statute or "Model Bye-laws".

The petitioner has also amended the writ petition by adding another relief praying for a writ, order or direction in the nature of certiorari quashing the order dated 26th April, 2003 (Annexure SA-2 to the supplementary affidavit filed in the writ petition).

Brief facts necessary for deciding the controversy raised in the writ petition are; the petitioner has been holding a cattle fair

in villages Bharauli Khas and Baghauna Khurd, Pargana Garaha, district Ballia since before 1990. The Zila Panchayat, Ballia claims that they have been holding their cattle fair in villages Bharauli Khas and Kumkum Patti since 1976. Some interference was claimed to be caused by Zila Panchayat in the holding of cattle fair by the petitioner in the year 1995, consequently the petitioner-plaintiff filed Original Suit No.155 of 1995 seeking an injunction against the Zila Panchayat who were defendant in the suit restraining them from causing interference in holding of cattle fair, which is held thrice in a year. Along with the suit, the plaintiff also filed an application under Order XXXIX Rule 1 of the Code of Civil Procedure claiming temporary injunction. The parties were heard and the trial Court vide its judgment and order dated 4th May, 1995 granted a temporary injunction in favour of the plaintiff with two conditions. The defendants were restrained by temporary injunction from interfering with the plaintiff's holding of cattle fair till according to the Government order the bye-laws are approved by the Divisional Commissioner, published in the Gazette and enforced and secondly till the application of the plaintiff given to the Zila Panchayat for grant of licence is not disposed of. Against the order dated 4th May, 1995 an appeal being Misc. Appeal No.107 of 1995 was filed by the Zila Panchayat. The said appeal was dismissed by the appellate Court vide order dated 30th May, 1995 and the temporary injunction granted by the trial Court was affirmed. Against the order of the trial Court as well as the appellate Court, a writ petition was filed by the Zila Panchayat being Writ Petition No. 23945 of 1995 which was dismissed on 31st  August, 1995. This Court, however, while dismissing the writ petition observed that, if so advised, the Zila Panchayat may apply for review of the order  of the lower appellate Court in view of the order of Zila Panchayat dated 24.5.1995 passed on the application for grant of licence. Subsequent to the order of this Court dated 31st August, 1995, review application was filed which review application was dismissed on 25th September, 1998. The learned counsel of the contesting respondents submitted that review application has been dismissed as barred by time. The defendant-respondents filed an application under Order XXXIX Rule 4 of the Code of Civil Procedure praying for vacating the interim injunction order dated 4th March, 1995. The defendant-respondent in the application submitted that the bye-laws have been published in the Gazette and have been enforced. The application filed by the defendant-respondents was objected by the plaintiff-petitioner. The petitioner objected to the maintainability of the application on the ground that it is barred by res-judicata.  It was further stated that even publication of bye-laws are not in accordance with the "Model Bye-laws". The trial Court after hearing both the parties by an order dated 22nd March, 1999 allowed the application filed by the defendant-respondents and cancelled the temporary injunction order dated 4th May, 1995. For vacating the temporary injunction order the trial Court held that bye-laws have been published in the Gazette on 23rd August, 1997 and the application of the plaintiff for grant of licence to hold cattle fair has also been rejected. Against the order of the trial Court an appeal was filed by the plaintiff-petitioner which too has been rejected on 21st May, 1999. Challenging the orders of the trial Court and the appellate Court, this writ petition has been filed.

Sri B.N. Tiwari, learned counsel for the petitioner, at the very out set submitted that this writ petition be permitted to be withdrawn with regard to Prayer (b) and amended Payer (a.a) with liberty to file fresh writ petition and this writ petition be confined only to Payer (a) claimed in the writ petition. Sri Deo Prakash Singh appearing for the respondents has no objection to the above prayer of the petitioner. It is also relevant to note that principal relief in the writ petition is to quash the order of the trial Court dated 22nd March, 1999 and the order of the appellate Court dated 21st May, 1999 arising out of Suit No.155 of 1995. The prayer (b) for quashing the bye-laws and another relief which has been permitted to be amended on 29th July, 2005 for quashing the order dated 26th April, 2003 are the relief for which writ petition is cognizable before a Division Bench. In view of the above, the petitioner is permitted to delete prayers (b) and (a.a) (as permitted to be amended on 29.7.2005) and writ petition is confined to prayer (a). The petitioner having been permitted to delete prayers (b) and (a.a), it is made clear that petitioner shall be at liberty to file fresh writ petition with regard to the aforesaid relief.

Learned counsel for the petitioner, challenging the orders of the trial Court and appellate Court dated 22nd March, 1999 and 21st May, 1999, contended that application under Order XXXIX Rule 4 of the Code of Civil Procedure was barred by res-judicata. The said issue having gone into in the earlier proceedings specially in Appeal No. 107 of 1997 and also the rejection of review, it was not open for the defendant-respondents to re-agitate the said issue by filing application under Order XXXIX Rule 4 of the Code of Civil Procedure. He contended that observation and findings recorded in Appeal No.107 of 1995 shall operate as res-judicata. He has placed reliance on a judgment of the Apex Court reported in A.I.R. 2005 All.L.J. 216; U.P. State Road Transport Corporation vs. State of U.P. And another and A.I.R. 1977 S.C. 392; Y.B. Patil and others Vs. Y.L. Patil.

Sri B.N. Tiwari further contended that the temporary injunction granted to the plaintiff was conditional and one of the conditions was that injunction shall operate till the application of the plaintiff for grant of licence is disposed of. He contended that application of the plaintiff for grant of licence has not been disposed of and the order dated 24th May, 1995 issued by the President, Zila Panchayat rejecting the application for grant of licence cannot be treated to be rejection of application of licence. He submitted that application of the plaintiff was for grant of licence with regard to village Bharauli Khas and Baghuana Khurd whereas the Zila Panchayat was holding cattle fair in Bharauli Khas and Kumkum Patti, hence rejection of the application on the ground that Zila Panchayat is holding cattle fair is not actually rejection of the petitioner's application for grant of licence. With regard to another order passed by Mukhya Nagar Adhikari, Zila Panchayat rejecting the application of the plaintiff for grant of licence dated 15th March, 1999 Sri Tiwari submitted that the said order was not on the record and the said order cannot be taken into notice. He contended that the trial Court committed error in allowing the application under Order XXXIX Rule 4 of the C.P.C.

Learned counsel appearing for the respondents, refuting the submissions of petitioner, contended that the temporary injunction granted by the trial Court was conditional and both the conditions having been fulfilled subsequent to passing of the temporary injunction order, i.e., publication of bye-laws in the Gazette and enforcement of the same with effect from 23rd May, 1997 and rejection of the application for grant of licence of the plaintiff, the injunction was no more operative and had automatically come to an end. He contended that application under Order XXXIX Rule 4 of the Code of Civil Procedure was fully maintainable because it was moved on fresh grounds and subsequent events which took place after passing of the temporary injunction order by the trial Court. It is contended that earlier order granting temporary injunction by trial Court on 4th May, 1995 and the dismissal of appeal No.107 of 1995 shall not operate as res-judicata. Reliance has been placed on Division Bench judgment of Punjab and Haryana High Court in AIR 1971 P & H 177; The Punjab University,Chandigarh and others Vs. Prem Chand Handa.

I have considered the submissions of both the parties and perused the record.

Admittedly the temporary injunction was granted to the plaintiff-petitioner by the trial Court on finding prima facie case that plaintiff has been running cattle fair for which facilities are being provided. With regard to "Model Bye-laws" on the basis of which the Zila Panchayat opposed the prayer for injunction, the trial Court held that fresh bye-laws have not been enforced, hence on that basis the plaintiff's right to hold cattle fair cannot be interfered with. The case of the plaintiff was that in spite of the application having been made for grant of licence to Zila Panchayat, no decision has yet been taken. The trial Court took the view that Zila Panchayat having not considered the application for grant of licence, the plaintiff has made out a case for grant of temporary injunction. The temporary injunction was granted by the trial Court, however, hedged by two conditions which were incorporated in the operative portion of the order. The temporary injunction granted by the trial Court was to the effect that defendant will not cause any interference in holding of cattle fair till the bye-laws are approved by the Divisional Commissioner, published in the Gazette and are enforced and secondly till the application of the plaintiff for grant of licence is disposed of.

The order of the trial Court granting temporary injunction was affirmed in the misc. appeal as well as up to the High Court. Thus the temporary injunction order passed by the trial Court was upheld. By affirmation of the order of the trial Court, it is clear that conditions, which were part of the order were also affirmed.

The first submission of counsel for the petitioner is that after dismissal of misc. appeal against the temporary injunction order and after dismissal of the writ petition and also rejection of the review application, application under Order XXXIX Rule 4 of the C.P.C. could not have been made and the same is barred by principle of res-judicata. It is relevant to note the provisions of Order XXXIX Rule 4 of C.P.C., which are extracted below:-

"4. Order for injunction may be discharged, varied or set-aside.- Any order for an injunction may be discharged, or varied, or set-aside by the Court, on application made thereto by any party dissatisfied with such order :

[Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice :

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.]"

The second proviso to Order XXXIX Rule 4 of the Code of Civil Procedure provides that injunction order which has been passed after hearing both the parties shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.

In the present case, the application filed by the defendant-respondents was on the basis of subsequent events, i.e., publication of bye-laws on 23rd August, 1997 and rejection of application of licence on 24.5.1995. The argument pressed by the petitioner's counsel is that application under Order XXXIX Rule 4 of the Code of Civil Procedure is not even maintainable since the issues having once decided the same will operate as res-judicata. The judgment of the Apex Court in U.P. State Road Transport Corporation's case (supra) do support the contention of the petitioner that principle of res-judicata applies between two stages in same litigation. There cannot be any dispute to the preposition as laid down by the Apex Court in the said judgment. Second proviso to Order XXXIX Rule 4 of the Code of Civil Procedure specifically gives a right to either of the party to pray for discharge, variation or setting aside of the temporary injunction granted after hearing both the parties. When the provisions itself permits variation of the injunction order on the ground of change in circumstances or on the ground of undue hardship, it cannot be said that the entertainment of the application is in any manner barred. The Statute itself gives right to claim for variation on the ground of changed circumstances. The present application of the defendant-respondent is based on the basis of second proviso to Order XXXIX Rule 4 of the Code of Civil Procedure and on the ground that there is change in the circumstances. The findings and observations in the order granting temporary injunction have already been affirmed up to the High Court and it is correct to say that if the trial Court or a higher Court having at an earlier stage decided a matter in one way, the same will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings but the said finding will not be attracted when an application is filed for varying the injunction according to second proviso of Order XXXIX Rule 4 of the Code of Civil Procedure. In application under Order XXXIX Rule 4 proviso the Court is not to re-agitate the issues which have been decided in interim relief application, rather the scope is confined to the change in the circumstances. The Court can exercise that power under Order XXXIX Rule 4 proviso on the basis of change in circumstances and Order XXXIX Rule 4 proviso application is not a review or re-agitation of the same issue. Thus the submission of the counsel for the petitioner that application under Order XXXIX Rule 4 proviso was not maintainable or it was barred by res-judicata cannot be accepted.

The bye-laws have been public in the Gazette on 23rd August, 1997 for which there is no dispute between the parties, although the counsel for the petitioner has tried to raise submitted that the said publication is not in accordance with the "Model Bye-laws". In the suit there was no challenge to the bye-laws and in view of the liberty granted to the petitioner to challenge the bye-laws by means of another writ petition, it is not necessary to express any opinion on the above submission. By publication of the bye-laws the first condition attached to the temporary injunction order was fulfilled. The dispute now is with regard to second condition as to whether the application of the plaintiff-petitioner for grant of licence has been rejected or not. The plaintiff's case before the trial Court was that he has made an application for grant of licence with regard to villages Bharauli Khas and Baghauna Khurd. Copy of the order dated 24th May, 1995 of Chairman, Zila Panchayat, Ballia addressed to the petitioner has been filed as Annexure-8 to the writ petition. In first paragraph of the order reference of the application dated 2.1.1995 of the plaintiff with regard to Mauza Bharauli Khas and Baghauna Khurd for holding a cattle fair has been noted. In second paragraph of the order reference to the bye-laws of Zila Panchayat published on 2nd July, 1977 has been made which reference put a prohibition for holding cattle fair within four kilometres. The last paragraph of the order states that in Mauza Ujiyar, Bharauli Khas and Kumkum Patti the Zila Panchayat is holding cattle fair since 1976, hence the application dated 2.1.1995 is rejected. The submission made by counsel for the petitioner is that application of the petitioner was for Mauza Bharauli Khas and Baghauna Khurd whereas the rejection has been made on the ground that Zila Panchayat holds cattle fair in Ujiyar, Bharauli Khas and Kumkum Patti. The order, however, unequivocally states that the application dated 2.1.1995 is rejected. The prayer for grant of permission to hold cattle fair with regard to Mauza Bharauli Khas is not even disputed and in any manner the rejection according to own submission of the petitioner is clearly with regard to holding of cattle fair in Mauza Bharauli Khas, moreso when application dated 2.1.1995 has been rejected unequivocally by the order dated 24.5.1995, it has to be accepted that the prayer of the plaintiff for giving permission to hold cattle fair has been rejected, may be the order rejecting the application had not properly considered two places for which cattle fair has been asked for or the effect of holding cattle fair by Zila Panchayat at Ujiyar, Bharauli Khas and Kumkum Patti but these are the matter which has to be examined when challenge is made to the said order.  The Zila Panchayat has been throughout contending that the prayer for grant of permission has been rejected and a subsequent order has also been relied which has been issued by Upper Mukhya Adhikari, Zila Panchayat dated 15.3.1996 by which Upper Mukhya Adhikari communicated that plaintiff's application for grant of licence has been rejected, although counsel for the petitioner submitted that the said order is not on the record but the appellate order refers to the said letter of the Upper Mukhya Adhikari and the submission cannot be accepted that the said order is not on the record. Even if it is assumed that earlier order issued on 24th May, 1995 be not treated  as rejection of the application, the subsequent order again reiterated the rejection. Hence the temporary injunction order which was hedged by aforesaid two conditions ceased to operate.

It is further relevant to note that when by fulfilment of those two conditions the order was automatically ceased to operate, the question remain is as to whether those two conditions were fulfilled or not. The trial Court has rightly gone into and decided in application under Order XXXIX Rule 4 about the aforesaid two conditions and has taken the view that these two contingencies have taken place making the temporary injunction order inoperative. The appellate Court has also gone into all the contentions raised by plaintiff-petitioner and affirmed the order of trial Court. No error is found in the orders passed by trial Court as well as the appellate Court warranting interference under Article 226 of the Constitution of India.

It is again necessary to observe that this Court has not examined the claim of the petitioner for grant of licence for running the cattle fair either under the old bye-laws or under the new bye-laws published on 23rd August, 1997 nor the action of the Zila Panchayat refusing to grant licence has been gone into or examined by this Court and in the appropriate proceedings the same can be gone into.

With the aforesaid observations, the writ petition is dismissed.

Parties shall bear their own costs.

Dated 11.11.2005.

Rakesh


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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