Heard learned counsel for the petitioners as well as learned counsel for the opposite party no.1 and perused the records.
By means of this writ petition, petitioners have sought for a writ in the nature of mandamus, directing learned Civil Judge Hawali, (Junior Division), Faizabad to decide the application for interim relief moved in Regular Suit No.281 of 2012 (Surendra Bahadur Singh & Ors. v. Narendra Pratap Singh & Ors.), which was moved on 26.04.2012 when the suit was instituted.
A perusal of order sheet dated 26.04.2012 shows that the learned Trial Court has observed, on that date, that there is no basis of granting ex-parte injunction and, as such, notices were issued to the defendants. This observation by the learned Trial Court is unwarranted and against the basic norms of justice delivery system. There is no compulsion of the Court to decide an ex-parte injunction, the day suit is filed but when the ex-parte injunction is not issued and an observation to this effect is made by the learned Trial Court, an order becomes revisable under Section 115 of the Code of Civil Procedure. The law laid down by this Court in Cantonment Board Lucknow and another Vs. District Judge (Incharge) Lucknow, reported in 2006 (4) AWC 3281, is the leading case and latest decision on this score which has been circulated throughout the State, through circular letter, but it appears that the learned Trial Court is unaware of this legal fiction.
Learned counsel for the petitioners submits that service upon the defendants has not yet been affected, as one of the defendants, is Member of Legislative Assembly of the ruling party and one of the defendants is wife of Superintendent of Police, who is daughter in law of the sitting Member of Legislative Assembly. The dispute relate to agricultural land, regarding which, litigation before the Revenue Authorities, has taken place. Interestingly, the learned Civil Judge Hawali, (Junior Division), Faizabad did not take care that when Revenue Authorities have adjudicated upon the dispute in favour of the plaintiff, in spite of the fact that the defendants are in position to dominate the will of the Executive Officers, the learned Trial Court should have exhibited activism to observe that the litigant do not come to the Courts for the sake of litigation. Every litigant does not knock the door of the Court, unless he is really aggrieved, except under exceptional circumstances, which the Court can easily point out.
This is the sad experience of this Court that the Subordinate Judge is very often reluctant to give immediate relief to an aggrieved person, which is eroding the majesty of justice, on one hand, and on the other hand, it is degenerating the society at large. Public has resorted to settle scores by applying their muscle power or by engaging unscrupulous elements of the society who have muscle power. This perverse and passive approach of the Courts is causing injury to the Constitutional spirit. The Hon'ble Apex Court in Civil Appeal No.5703 of 2012 (Dr. Mehmood Nayyar Azam v. State of Chattisgarh and ors.) has held:-
"There are some megalomaniac officers who conceive the perverse notion that they are the 'Law' forgetting that law is the science of what is good and just and, in very nature of things, protective of a civilized society. Reverence for the nobility of a human being has to be the corner stone of a body polity that believes in orderly progress."
The Subordinate Courts must develop a realistic approach in this direction so as to prevent the society to be converted into a criminal society. The Subordinate Courts must keep in mind that District Courts are easier of access for litigants and the High Court, specially in the large State, like Uttar Pradesh, are 'untouchable' and 'un-approachable' for agrestic population and even urban middle class.
There is no ground for this Court to distrust a Subordinate Judge but there is a growing tendency to avoid, scape or skip, in promptly attracting towards remedial measures, keeping in mind that the Courts are meant to deliver prompt justice. A Subordinate Judge has to imagine as to what would happen to a patient if the Doctor says that emergency treatment cannot be advised to the patient, unless directions are sought from the higher authorities. The Court is answerable to the society at large. It is the judicial system alone and alone which can keep the Constitutional spirit intact.
Recently in Gurdev Kaur & others V. Kaki & others, AIR 2006 SC 1975, the Hon'ble Apex Court has given a note of caution to such orders which are stigmatic on the justice delivery system in the mind of the public at large and has held; "Judges must administer law according to the provisions of law. It is the bounden duty of judges to discern legislative intention in the process of adjudication. Justice administered according to individual's whim, desire, inclination and notion of justice would lead to confusion, disorder and chaos."
The learned Trial Court has not decided the interim injunction application, which is pending for the last five months. Service or no service upon the defendants, justice is paramount, if any mischievous litigant obtains interim injunction, it can well be vacated any moment, but due to that mischievous litigant, the battery of litigants should not be allowed to suffer. This is the mandate of the Constitution of India.
It is reminded to the Subordinate Courts that the people of India have solemnly resolved to constitute India into a republic in order to secure to all its citizens 'justice'. This is mentioned in the preamble of the Constitution of India, in which the word, 'justice' figures at the top because of the obvious reason that a nation is formed for maintenance of justice, law and order. What will happen to this pious nation, if the Subordinate Courts determines not to deliver quick justice, as required?. The word 'quick' is being used to redress genuine grievances, without delay, it does not mean ruthlessly, or in violation of any law for the time being in force, without any exhibition of 'fear', 'risk', 'pessimism' or lethargy by applying short-term immunity acquired artificially. The Courts in India are expected to follow absolute submission to the ruling power i.e. the Constitution of India. Every Judge is a subject of obedience to the 'divine rights of kings'. The application of passive resistance is a deliberate refusal to what law or regulation orders. The legislature (Parliament in this case) has enacted Rules 1, 2, 3, 3-A and 4 of Order 39 of the Code of Civil Procedure to enable Trial Courts to order granting a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff, in relation to any property in dispute in the suit, as the Court thinks fit, until the disposal of the suit or until further orders. Ignoring this power shall amount to challenge the wisdom of legislature.
It is true that frivolous litigation has increased and multiplied in recent year, but it should be taken by the Courts to be a pleasant challenge by depicting divine powers lying in Courts of law and, by applying 'judicial tact' and, not by refusing to grant ex-parte injunction / ad-interim injunction, in all the cases. The rights of really aggrieved litigant must be protected. Here lies the dignity of the Court, which justifies the very incarnation of the the machinery of justice. A Judge is expected to initiate the process of healing; his verdict deserves to be a visible embodiment. Due to this reason, it is being said that judicial sense is of divine nature and judicial sense of a Judge should be so high and esteemed that when both the parties are apparently correct, the Judge could say who is more correct. The Judges are bound to maintain political order and law.
Thomas Hobbes famously said that in a "state of nature" human life would be "solitary, poor, nasty, brutish, and short". In the absence of political order and law, everyone would have unlimited nature freedoms, including the "right to all things" and thus the freedom to plunder, rape, and murder; there would be an endless "war of all against all" (bellum omnium contra omnes). Law and political order are not natural, but are instead human creations.
People have rights as human beings. Everyone has to accept that natural justice is a pledge of reciprocal benefit, to prevent one man from harming or being harmed by another. Those animals which are incapable of making binding agreements with one another not to inflict nor suffer harm are without either justice or injustice; and likewise for those peoples who either could not or would not form binding agreements not to inflict nor suffer harm. There never was such a thing as absolute justice, but only agreements made in mutual dealings among men in whatever places at various times providing against the infliction or suffering of harm. Any breach of these rights must be taken care by the Courts, without delay. The Courts, thus act as impartial, objective agent and living god. What Rousseau has observed that law is a civilizing force. Courts are bound to impose that force in a pragmatic and expedient manner which must reflect the realistic approach and such type of Judges are called activist, which does not mean proactive or over-active but means and includes a conscious citizen who is not dormant, sleeping or hibernating, lethargic or in a sleeping posture.
Each of the case has to be dealt with, by the facts, the plaintiff has alleged and, if no mischief appears to a Trial Judge, there should not be any hesitation or awe or fear to redress grievance by granting ex-parte injunction in an impressive manner, which may not astonish, surprise, wonder, amaze or, shock a law abiding citizen, a downtrodden and aggrieved litigant.
Underneath there is a current in the society that the Subordinate Courts are not granting ex-parte injunction, in civil matters as a matter of determination. This impression is suicidal to the justice delivery system. The Courts are expected to ensure that this impression is vanished before it bite the Constitutional machinery. The interim relief should be denied or delayed only if mischief is apparent or the Trial Court is convinced that the matter is not of urgent nature or there is no emergent situation.
What has been mentioned above is the outcome, outburst and exposition due to experience of this Court that a bulk of writ petitions are filed in this Court everyday (without any exception), not against any orders passed by the Trial Courts but due to inaction of the Subordinate Courts to deal effectively with the litigation pending before them, which is eroding majesty and dignity of the Subordinate Courts in the estimation of the public at large.
With these observations, writ petition is disposed of with a direction to the learned Trial Court to dispose of the interim injunction application within thirty days from the date of production of a certified copy of this order.
Order Date :- 18.9.2012 Ram.