IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.399 of 2010 Date of decision : June 22, 2011 Jyoti Parkash …Petitioner. Versus Kamal Kant …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Subhash Sharma, Advocate. For the Respondent : Mr. G.R. Palsara, Advocate. Deepak Gupta, Judge(Oral) The following interesting question of law arises for determination in this petition: Whether once a suit has abated, a Court is powerless to issue an injunction under Order 39 Rules 1 & 2 of the Code of Civil Procedure? 2. The facts necessary for decision of this case are that deceased Kishan Chand filed a suit, in January 2006, against Jyoti Parkash (the present petitioner), hereinafter referred to as the defendant. The suit was filed for declaration that the plaintiff is owner in possession of the land. During the pendency of the suit Kishan Chand died on 4th October, 2008. Thereafter, his son Kamal Kant filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure (for short ‘the Code’), Whether reporters of the local papers may be allowed to see the judgment? Yes. …2… praying that the defendant be restrained from raising any construction over the suit land. The defendant was proceeded ex-parte and an order was passed on 7th November, 2009, whereby he was directed to maintain status quo qua the suit land during the pendency of the suit. It appears that Kamal Kant had also filed an application under Order 22 Rules 3 & 9 of the Code for setting aside abatement and for bringing him and others on record as the legal representatives of Kishan Chand but this application had not been decided till the order of status quo was passed. 3. Thereafter, defendant Jyoti Parkash moved an application under Order 39 Rule 4 of the Code praying that the order of status quo be vacated since the same had been obtained by misstating the facts. It was also pleaded that the defendant had wrongly been proceeded ex-parte. However, the main ground raised was that since the suit had abated and the application for abatement had not been decided, there was no suit pending and as such no order could have been passed under Order 39 Rules 1 & 2 of the Code. 4. The learned trial Court dismissed the application. Appeal was filed by Jyoti Parkash before the learned Presiding Officer, Fast Track Court, Mandi, who …3… dismissed the same. Hence, the present petition under Article 227 of the Constitution of India. 5. I have heard Mr. Subhash Sharma, learned counsel for the defendant-petitioner and Mr. G.R. Palsara, learned counsel for the respondent-legal heirs of the plaintiff. 6. To understand the rival contentions of the parties and the issue in hand, it would be pertinent to refer to Order 22 of the Code, which deals with death, marriage and insolvency of parties. Where there are more than one plaintiff, the suit shall abate only qua the deceased plaintiff, though this may result in the suit abating in entirety also in some circumstances. Where, however, there is only one plaintiff, the suit as a whole abates. In the present case, there is only one plaintiff and the application to bring on record the legal representatives was not filed within time and, therefore, the suit stood abated. Reference may be made to Order 22 of the Code. Sub Rule (2) of Rule 3 of Order 22 of the Code reads as follows: “(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.” …4… 7. It is apparent from a reading of Order 22, sub- rule (2) of Rule 3 of the Code that where there is only one plaintiff and application contemplated under sub-rule (1) is not filed, within the period of limitation, the suit would abate as far as the deceased plaintiff is concerned. Since in the present case there is only one plaintiff, the suit will abate as a whole. There can be no quarrel with this proposition of law. The suit in the present case stood abated and, therefore, Kamal Kant and other legal representatives filed an application that abatement be set aside, delay in filing the application be condoned and the legal representatives be brought on record. 8. The other important provision of law, which has to be taken into consideration, is Order 39 Rule 1 of the Code. Order 39 Rule 1 of the Code states as follows: “1. Cases in which temporary injunction may be granted.- Where in any suit it is proved by affidavit or otherwise-” It is, therefore, obvious that the power under Order 39 Rule 1 of the Code can only be exercised in a suit. 9. Order 39 Rule 2 of the Code, which is also relevant for the purpose, reads as follows: 2. Injunction to restrain repetition or continuance of breach.- (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a …5… temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.” 10. A bare perusal of Rule 2 of Order 39 of the Code shows that in any suit the plaintiff may, at any time after commencement of the suit, either before or after judgment, apply to the Court for temporary injunction. Therefore, the suit should have commenced and even if a suit ended in judgment the plaintiff can still ask for a temporary injunction. 11. In the present case, the moot question, which arises for consideration, is whether there is any suit pending or not. In one sense, there was no suit pending since the suit had abated. On the other hand, an application had been filed for revival of the suit by setting aside the abatement. This application had not been decided. On behalf of the petitioner, it is urged that till an order was passed setting aside the abatement, no suit can be said to be pending and, therefore, no interim injunction can be granted. On the other hand, it is contended on behalf of the legal heirs of the plaintiff that the application itself is an application in suit filed for …6… revival of the suit and, therefore, the Court would have the jurisdiction to protect the property, which is the subject matter of the suit. 12. When interpreting provisions of law, it is best to give an interpretation, which is purposive and which advances the cause of justice. No doubt, the Court cannot import words into the Section but when two views are possible, the Court can give a purposive interpretation, which helps and aids the cause of justice. 13. It is by now well settled that “rules of procedure” are the handmaiden of justice. Rules are enacted not to thwart justice but to ensure that the Court is assisted in its search for truth and justice is done to the parties. 14. In the present case, if the interpretation given by the petitioner is accepted, it would virtually mean that even in a suit where stay order was granted, when the sole plaintiff was alive, if the sole plaintiff dies and the suit abates, the stay order comes to an end, if the application for setting aside abatement is not filed within time. Such an interpretation would lead to chaotic situation and unscrupulous litigants can use this provision to totally nullify interim injunctions granted by the Courts. Another important aspect is that the purpose of granting interim injunction, within the meaning of Order 39 of the …7… Code, is to ensure that during the pendency of the suit the property, which is the subject matter of the suit, is protected. This purpose has to be kept in mind, while interpreting these two provisions of law. 15. The Code of Civil Procedure also contemplates the filing of suits by indigent persons under Order 33 of the Code. In such suits though the plaint is filed the suit is not registered till the person is accepted to be an indigent person by the Court. The Court has to first give a finding that the person, who has initiated the action, is an indigent person or not. If the finding is in favour of such person then the suit is registered, otherwise the said person is directed to file the Court fees and then the suit is registered. Suit “per se” is not in existence till the application under Order 33 of the Code is decided. 16. The Courts have taken a view that even if the application for declaring a person an indigent person is not decided, the trial Court is not powerless to protect the property. This in fact serves the cause of justice. In a fight where a poor person is pitted against a rich adversary and such person cannot even pay the Court fee, he can always move the Court for permission to sue as an indigent person and at the same time make an application praying that till his application is decided the property, which is the subject matter of the suit, be …8… protected. While taking this view, I am supported by the decision of the Allahabad High Court in Dhaneshwar Nath Tewari versus Ghanshyam Dhar Misra, AIR 1940 Allahabad 185, wherein it was held that apart from Order 39 of the Code, the Civil Court has ample jurisdiction to pass an order providing for the protection and security of the property, which is the subject matter of the litigation. 17. The Calcutta High Court in Manorama Dasi versus Sabita Dasi, AIR (38) 1951 Calcutta 357 again held that pending decision of a pauper application, the Court has no jurisdiction to grant an injunction, as there is not pending suit at that time but the Court has inherent power to pass an order of such a nature, under Section 151 of the Code. 18. A Full Bench of the Kerala High Court in Gautami Devi Sitamony versus Madhavan Sivarajan, AIR 1977 Kerala 83 held that under Order 22 Rule 10 of the Code, the right of the assignee to seek to continue with the suit is not absolute and it is for the Court to consider whether such leave is to be granted or not. It went on to hold that in a case where the suit had abated the assignee cannot seek to be added as a party to the action. In my view, this decision is not applicable to the facts of the present case. All that is decided in this case is that once a suit has abated there is no suit in the eyes …9… of law and, therefore, an assignee cannot move an application to continue with the suit. 19. Another judgment, which has been cited before me, is of the Gauhati High Court in Hareswar Roy versus Mustt. Monowara Begum & Ors., AIR 2010 Gauhati 22. The question before the Gauhati High Court was whether an application under Order 39 Rules 1 & 2 of the Code is to be treated as ‘proceedings’ within the meaning of Section 141 of the Code and can be adjourned by invoking the provision of Order 17 Rule 1 of the Code or not. Gauhati High Court held that since an application made under Order 39 Rules 1 & 2 of the Code lies only during the pendency of the suit or appeal, it logically follows that though an application for temporary injunction is registered as miscellaneous proceedings, such applications for temporary injunctions are not ‘proceedings’ within the meaning of Section 141 of the Code. Relying upon these observations, it is contended that application under Order 39 Rules 1 & 2 of the Code only lies during the pendency of the suit and since the suit had abated no application under Order 39 Rules 1 & 2 of the Code could have been filed. 20. I have considered the aforesaid authorities and in view of what I had already held above while interpreting Rules 1 & 2 of Order 39 of the Code, there …10… can be no doubt that a suit should have commenced before the provisions of Order 39 Rules 1 & 2 can be invoked. In the proceedings filed by indigent persons, as held by the Allahabad and Calcutta High Courts, the trial Court is not powerless to grant stay orders protecting the property but that power is the inherent power vested in the Court and not the power under Order 39 Rules 1 & 2 of the Code. 21. In the present case, the suit had abated. An application had also been filed to revive the suit. It has been contended on behalf of the petitioner that the suit had not actually been revived and, therefore, technically speaking, it can be said that it was not pending. On the other hand, the suit had definitely commenced. The application under Order 22 of the Code filed by the legal heirs was an application filed in the suit itself. True it may be that no order had been passed on the application for setting aside the abatement but this does not mean that the powers of the Court under Order 39 Rules 1 & 2 of the Code could not have been invoked. A suit abates on the expiry of ninety days. The law permits another sixty days time for setting aside the abatement. Even if the application is not filed within 150 days, an application can again be filed alongwith an application for condonation of delay for setting aside the abatement. …11… There may be cases where a defendant dies and the plaintiff is totally unaware about the death of the defendant. Would that mean that there is no suit in existence? In my view, the abatement of the suit would not mean that the Court is powerless to grant an interim injunction. While taking this view, I am also taking into consideration the provisions of the Code, which specifically provide that even after judgment had been rendered the Court can grant a temporary injunction. If a Court has the power to grant temporary injunction even after it has decided the suit on merits, there is no reason that such a Court cannot grant temporary injunction where the suit had abated and an application for setting aside abatement had been filed. 22. In view of the above discussion, I am of the considered view that the learned trial Court did have the power to grant a temporary injunction. Having held so, I am also clearly of the view that in these exceptional cases where after abatement a party files an application for being brought on record as a legal representative and also files an application for grant of interim injunction, the Court should endeavour to decide both the applications simultaneously. The Court should not have disposed of the application under Order 39 Rules 1 & 2 of the Code, without deciding the application under Order 22 of the …12… Code. The reason for this is that if the Court comes to the conclusion that the abatement cannot be set aside it should reject the application for grant of stay. However, in the present case, the trial Court had no option but to confirm the stay order because the defendant-petitioner was proceeded ex-parte. In view of the above discussion, there is no merit in the petition. The same is, therefore, dismissed. Pending application, if any, also stands disposed of. June 22, 2011(sd) ( Deepak Gupta ), J