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Sections Form Substratum Of CPC, Orders & Rules Lay Further Ground Work For Adjudication: J&K&L High Court
Basit Amin Makhdoomi
18 Oct 2022 10:47 AM GMT
The Jammu and Kashmir and Ladakh High Court recently set aside a lower court's order which held that Section 94 of CPC is not a substantive provision of the Code.The Section titled "Supplemental proceedings" makes provision for issue a warrant, furnishing of security, etc. in specified circumstances. Sub-section (c) thereof empowers the civil court to grant temporary injunction and in case...
The Jammu and Kashmir and Ladakh High Court recently set aside a lower court's order which held that Section 94 of CPC is not a substantive provision of the Code.
The Section titled "Supplemental proceedings" makes provision for issue a warrant, furnishing of security, etc. in specified circumstances. Sub-section (c) thereof empowers the civil court to grant temporary injunction and in case of disobedience, commit the person to civil prison and order that his property be attached and sold.
The provision is read alongside Order 39 which pertains to Temporary Injunctions and Interlocutory Orders.
The Principal District Judge had held that Order 39 Rule 1 & 2 of the Code are independent provisions and that the relief envisaged under Section 94 is merely to supplement the relief under the said Order.
Holding thus, it had dismissed an appeal preferred against an order passed in exercise of power under Section 94(c). It had also said that an appeal against orders under Section 94 is not maintainable in terms of Order 43.
Finding fault with the above stance of the lower Court, the bench comprising Justice Rahul Bharti observed:
"Sections are substratum of the Code whereas the First Schedule bearing compartmentalization of the rules into Orders are the turf part of the Code at which processing and progression of stage wise adjudication/trial of a cause/suit/appeal before a civil court of law gets carried out and conducted to its finality."
The bench observed that CPC, in its very preamble, introduces its character as being a law relating to the procedure of the courts of civil judicature and it has sections enlisted 1 to 158 composing its organic structure and, in fact, are taken to form and constitute "the body of the Code" in contradistinction to "the Code".
Explaining the nature and scheme of CPC the bench observed that while the Code ranges from Sections and the Orders figuring in the First Schedule, on other hand the body of the code includes only the Sections 1 to 158.
Expounding further on the subject the bench recorded that Sections are the seed and stem part of CPC, whereas the Rules are the branching part of the same and that is why the High Courts, by operation of section 122, have been delegated with the power to annul, alter or add to all or any of the rules in the first schedule without having any liberty to touch the section part.
The bench explained that the entire body of Rules figuring in First Schedule, by reference to section 2(18), are generic in reference but Orders I to LI are brand names of the rules so composed and grouped.
"Order 39 is a brand name of the rules which deals with Procedure of Temporary Injunctions and Interlocutory Orders. Both expressions i.e., "Temporary Injunction" and "Interlocutory Orders" figuring in the very headline of Order 39 are, in fact, drawn from section 94 (c) & (e) and this is for very correct design as section 94 (c) & (e) of the Civil Procedure Code, 1908 provides the jurisdiction to a civil court to grant temporary injunction and pass interlocutory order leaving the details to be set out in the rules part of Order 39 rule 1 & 2. This is how section 94 is read with Order 39 rule 1 & 2 Civil Procedure Code 1908 and not the reverse way in which the Court of Principal District Judge Kupwara understood it to be", the bench maintained.
Facts of the Matter :
Respondent no.5–Mst. Amina Begum had filed a suit for declaration, partition, possession and injunction with respect to estate of the parties' predecessor-in-interest. In the suit, the trial court put in place an interim injunction direction, to not to create third party interest in the suit property in any form or manner.
Later, the respondent no. 5, filed another application under section 94 (c) and (e) of the Code alleging that the petitioners are causing interference and damaging fruit bearing trees thereupon by use of muscle power and for that need to be restrained from causing any type of interference. This application was disposed of by directing the parties to comply with the interim injunction in letter and spirit, and further directing the parties to the suit not to change the physical possession and cause any type of interference over the suit land.
Said order of the trial court was called in question by the petitioners herein in an appeal before the appellate court of the Principal District Judge, Kupwara which came to hold the said appeal of the petitioners as not maintainable. It was this order which was being impugned before the bench.
Verdict Of The Court :
The bench allowed the petition and held the appeal filed by the petitioners against order of trial court maintainable under Order 43 rule (1) (r) of the Code. The bench further directed the Principal District Judge, Kupwara to recall the appeal of the petitioners on file and adjudicate the same on merits within a period of 60 days.
Case Title : Bashir Ahmad Khan & Ors Vs UT of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 184
