Civil Revision No. 1394 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1394 of 2008 (O&M) Date of decision: 23.10.2009 Suresh Saggar ....Petitioner Versus Vijay Saggar ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. B.R. Mahajan, Advocate, for the petitioner. Mr. K.S. Dadwal, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) This order shall dispose of Civil Revision No. 1394 of 2008 titled Suresh Saggar Vs. Vijay Saggar and Civil Revision No. 2006 of 2008 titled Vijay Saggar Vs. Suresh Saggar and another, as the impugned order is the same. For brevity sake, facts are being taken from Civil Revision No. 1394 of 2008 titled Suresh Saggar Vs. Vijay Saggar. The plaintiff/petitioner filed a suit under Section 6 of the Specific Relief Act to recover portion of two rooms, bathroom comprising part of property bearing No. 27, Model Town, Amritsar, from which plaintiff claimed to have been forcibly and illegally dispossessed by the defendants. Along with the suit, the petitioner filed application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for grant of ad interim injunction, restraining the respondent/defendants Civil Revision No. 1394 of 2008 (O&M) -2- from demolishing/changing the nature of the suit property or to part with possession of the suit property in favour of any third party, during the pendency of the suit. The application moved under Order 39 Rules 1 and 2 of the Code of Civil Procedure was accepted by the learned Additional Civil Judge (Senior Division), Amritsar, on 2.8.2006 and the respondent/defendants were restrained from demolishing/changing the nature of the property in question or parting with possession of the same in favour of any third party, during the pendency of the suit. The defendant/respondent preferred an appeal against the order passed by the learned trial Court. The learned Additional District Judge (Adhoc) Fast Track Court, Amritsar, partly allowed the appeal, and modified the injunction order to the effect that the alienation, if any, made by the respondent/defendants, shall be subject to law of lis pendens, and further directed the defendants/respondent to file undertaking before the Court, that he would remove the construction raised by him in the event of suit being decreed. Defendant/respondent, who is petitioner in Civil Revision No. 2006 of 2008, has challenged the impugned part of the order passed by the learned Additional District Judge (Adhoc) Fast Track Court, Amritsar. Mr. B.R. Mahajan, learned counsel, appearing on behalf of the petitioner has challenged the impugned order primarily on the ground, that the order is without jurisdiction, as no appeal was competent against the order passed by the learned trial Court in a suit filed under Section 6 Civil Revision No. 1394 of 2008 (O&M) -3- of the Specific Relief Act. Section 6 of the Specific Relief Act reads as under: - “6. Suit by person dispossessed of immovable property.- (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought- (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.” The contention of the learned counsel for the petitioner is that, the appeal filed by the defendant/respondent was barred under Section 6 (3) of the Specific Relief Act, therefore, the impugned order deserved to be set aside. In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Allahabad High Court in Jamaludin and others Vs. Asimullah and others, AIR 1974 Allahabad 69, wherein the Hon'ble Allahabad High Court was pleased to lay down as under: - “4. It was, however, argued by the learned counsel for the appellants that the appellants would be without a remedy in view of the provisions contained in sub-section Civil Revision No. 1394 of 2008 (O&M) -4- (1) of S. 47, if they are not allowed to challenge the correctness of the order passed by the execution Court in appeal. Sub-section (1) of S. 47 lays down that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. In our opinion the words “not by a separate suit” refer to a suit of the nature in which the decree under execution itself has been passed. They do not refer to a suit of a different nature which is permitted by sub-section (4) of S. 6 of the Specific Relief Act 1963 itself. This sub-section lays down that nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. If the decree that is passed under Section 6 is itself open to challenge by a regular suit permitted by sub-section (4), there is no reason to think that an order passed in connection with that decree on the execution side under Section 47, Civil P.C. would be a final order and not open to challenge by a similar regular suit. Of course, a suit under Section 6 of the Specific Relief Act cannot be filed to challenge an order passed under Section 47(1) of the Code of Civil Procedure. But a regular suit to challenge that order or for that matter to challenge the decree itself passed under Section 6 of the Specific Relief Act, would not be barred. To that extent the provisions of the general law contained in Section 47(1) shall be deemed to have been overridden by the special law contained in sub-section (4) of S. 6 of the Specific Relief Act. So it is not correct to say that the appellants would be without any remedy if their appeal against the order passed by the execution Court under Section 47(1) is not entertained.” 5. The appeal is accordingly dismissed on the Civil Revision No. 1394 of 2008 (O&M) -5- preliminary point. In the circumstances of the case we make no order as to costs.” Mr. K.S. Dadwal, learned counsel, appearing on behalf of the respondent, controverted the contentions raised by the learned counsel for the petitioner by contending that the application moved by the petitioner was under Order 39 Rules 1 and 2 of the Code of Civil Procedure, which was allowed by the learned trial Court, therefore, the appeal was competent under Order 43 Rule 1(r) of the Code of Civil Procedure. The appeal, therefore, was rightly entertained and decided. Learned counsel for the respondent also contended, that the judgment relied upon by the petitioner can be of no help, as the Hon'ble Allahabad High Court in Jamaludin and others Vs. Asimullah and others (supra) had interpreted the provisions of Section 47 of the Code of Civil Procedure, to hold that the execution would be continuation of the suit, therefore, the said judgment would have no application to an order passed under Order 39 Rules 1 and 2 of the Code of Civil Procedure. It was also the contention of the learned counsel for the respondent, that the petitioner was estopped to raise objection qua the jurisdiction of the appellate Court, as no such objection was taken by the petitioner in appeal, which was decided on merits. On consideration, I find force in the contentions raised by the learned counsel for the petitioner. It is well settled law that what cannot be granted finally cannot be granted by way of interim relief also. Once the order passed under Section 6 of the Specific Relief Act is not appealable, any interim order passed in the said suit, though under Order Civil Revision No. 1394 of 2008 (O&M) -6- 39 Rules 1 and 2 of the Code of Civil Procedure, would also not be appealable. The plea of estoppel raised by the learned counsel for the respondent also deserves to be rejected, as appeal is the creation of a statute. In absence of a provision for appeal in statute, no jurisdiction can be vested in Court to hear an appeal, merely by invoking principle of estoppel, as parties by consent cannot confer jurisdiction on Court. It is also well settled that there can be no estoppel against law. For the reasons stated above, this revision is allowed, the impugned order is set aside, whereas Civil Revision No. 2006 of 2008 is rendered infructuous in view of the order passed in Civil Revision No. 1394 of 2008. (Vinod K. Sharma) Judge October 23, 2009 R.S.