Page No.# 1/7 GAHC030000242024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/2/2024 Tlanthangpuii W/o H.Thankhuma (L), Vaivakawn Zohnuai, Aizawl, Mizoram VERSUS State of Mizoram R/b the Chief Secretary and 7 Ors. Govt. of Mizoram, Aizawl 2:The Secretary to the Govt. of Mizoram 3:The Competent Authority for Land Acquisition (CALA) / Deputy Commissioner 4:The Asst. Settlement Officer 5:Sh L.Khumtira 6:Sh Lalrinmawia 7:The Branch Manager 8:The Branch Manage Advocate for the Petitioner : Mr A.R. Malhotra Advocate for the Respondent : Mrs. H Lalmalsawmi for R1, R2 & R4 Page No.# 2/7 B E F O R E HON’BLE MR. JUSTICE NELSON SAILO ORDER 23.01.2025 Heard Mr. C Tlanthianghlima, learned counsel for the petitioner and Mr. B Lalramenga, learned counsel for the respondent Nos. 5 & 6. Also heard Mr. Samuel Vanlalhriata Chhangte, learned Addl. Advocate General, Mizoram for the respondent Nos. 1, 2 & 4. [2.] By filing this Civil Revision Petition under Article 227 of the Constitution of India, the petitioner seeks revision of the impugned Order dated 13.11.2023 passed by the Civil Judge (Senior Division), Kolasib in CMA No. 63/2023 arising out of Money Suit No. 15/2023 whereby, the application filed by the instant petitioner under Order 38 Rule 5 & 6 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) was rejected. By filing the said application, the petitioner had sought for a direction to the respondent Nos. 5 & 6 to furnish security and/or a direction of the Trial Court for attachment of the property of the said respondents so that in the event of a decree being issued in favour of the petitioner, there would be no issue regarding the means to satisfy the decree on the part of the respondent Nos. 5 & 6. However, the learned Court below was of the view that since the Suit was at the stage of filing written statement to the Page No.# 3/7 counter claim filed by the respondent Nos. 5 & 6 and that the maintainability of the suit was yet to be considered, reject the application filed by the instant petitioner. [3.] Mr. C Tlanthianghlima, learned counsel submits that the learned Court below proceeded with the application filed by the petitioner as if it was the application filed under Order 39 CPC, which is for grant of temporary injunction or an interlocutory order. He submits that in fact, the application of the petitioner was under Order 38 Rule 5 & 6 CPC, praying for security or attachment of the property of the respondent Nos. 5 & 6 pending disposal of the Money Suit. He, therefore, submits that the impugned Order dated 13.11.2023 passed by the learned Court below should be set aside and the respondent Nos. 5 & 6 be directed to deposit appropriate security or to furnish adequate security in lieu of the deposit equal to the value of the amount claimed by the petitioner in the Money Suit. [4.] Mr. B Lalramenga, learned counsel for the respondent Nos. 5 & 6 submits that there is nothing wrong with the order passed by the learned Court below in view of the fact that the petitioner failed to prima facie show that there is a cause of action against the respondent Nos. 5 & 6 and moreover, the very maintainability of the Money Suit having not been considered, the petitioner Page No.# 4/7 cannot pray for a direction to the respondent Nos. 5 & 6 to furnish security in a mechanical manner. He, therefore, submits that the instant revision petition has no merit and the same should be dismissed. [5.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. [6.] From the impugned Order dated 13.11.2023, it appears that the learned Court below has proceeded with the matter as if it was an application under Order 39 of the CPC for grant of temporary injunction in favour of the petitioner. However, the submissions made by the counsel for the opposite party on the maintainability of the application filed under Order 38 Rule 5 & 6 CPC has also been recorded wherein it was submitted that the petitioner as plaintiff should first satisfy the Court that there was a prima facie case in his favour and against the defendants. [7.] After having regard to the submissions made and importantly taking into account of the fact that the suit was at the preliminary stage, wherein written statement was yet to be filed against the counter claim made by the defendant concerned in the Money Suit, the learned Trial Court was of the view that pending a hearing on the maintainability of the suit, the application filed by the petitioner/plaintiff was pre-mature. The learned Trial Court also was of the view Page No.# 5/7 that the prayer made by the petitioner at that stage did not satisfy the parameters and conditions for granting injunction under Order 39 CPC. [8.] It is therefore seen that the learned Trial Court considered and disposed of the application filed by the petitioner under Order 38 Rule 5 & 6 by keeping in mind the pre-requisites for granting injunction under Order 39 CPC. In fact, the nature and scope of an application under Order 38 Rule 5 & 6 has already been taken note of from the submissions made by the parties before the Court below which has been recorded in paragraph Nos. 8, 9 & 10 of the impugned Order dated 13.11.2023 and which is not repeated for brevity. An application under Order 38 Rule 5 & 6 is an application made by the plaintiff concerned before the Court for a direction that the defendant should furnish security for production of property or for an order attached the property of the defendant where security could not be furnished. [9.] It may be noted herein that the claim of the petitioner is that the amount of compensation that is due to him amounting to Rs. 1,02,87,711.68 has been wrongly disbursed to the respondent Nos. 5 & 6 although their lands have not been acquired while it was the land of the petitioner which was actually acquired. Apparently, the petitioner having the apprehension that the amount of compensation wrongly given to the respondent Nos. 5 & 6 would be spent even Page No.# 6/7 before the Money Suit is disposed of had filed the application under Order 38 Rule 5 & 6 CPC. It may also be noted that according to the learned Court below since the maintainability of the suit was yet to be taken up, it was pre-mature to entertain the application filed under Order 38 Rule 5 & 6 CPC. [10.] It is submitted at the bar that after the impugned Order dated 13.11.2023 was passed in the application filed by the petitioner, the petitioner has already filed his written statement against the counter claim filed by the respondent Nos. 5 & 6. Likewise, the respondent Nos. 5 & 6 had already submitted written statement against the Money Suit filed by the petitioner apart from the counter claim. [11.] Having regard to what has been noticed above, this Court is of the considered view that the learned Court below should re-consider the application filed by the petitioner under Order 36 Rule 5 & 6 CPC in accordance with law. As the main parties have already submitted their respective pleadings before the Court below, it would also be open to the learned Court to consider their maintainability of the suit itself. [12] The impugned Order dated 13.11.2023 is therefore set aside and the matter remanded back to the learned Court below for fresh consideration. Since all the parties are represented before this Court, they are directed to appear Page No.# 7/7 before the Court of Civil Judge (Senior Division), Kolasib on 4th February, 2025 whereafter, the learned Court below shall proceed with the matter in accordance with law and take a decision in CMA No. 63/2023 as expeditiously as possible and preferably within a period of 1 (one) month from the date of appearance of the parties. The interim order passed earlier shall stand merged with this order. JUDGE Comparing Assistant