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Mariyam Hakim MomIn Vs. the Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 16 of 1925
Judge
Reported in(1927)29BOMLR1427
AppellantMariyam Hakim Momin
RespondentThe Secretary of State for India
DispositionAppeal dismissed
Excerpt:
.....80. those decisions however have been clearly overruled by their lordships of privy council in the very same case on appeal, viz. having done so, they clearly held that the view of the high courts of calcutta, madras and allahabad was the right one and should......in which their lordships closely examined the grounds for the different views taken by the high courts in india, viz., the view taken by the bombay high court on the one hand and that taken by the high courts of calcutta, madras and allahabad on the other. having done so, they clearly held that the view of the high courts of calcutta, madras and allahabad was the right one and should.prevail. consequently, they held that section 80 in that case afforded a complete answer to the suit, and that therefore it was unsustainable in limine.2. the learned pleader for the appellant has had the courage to argue that their lordships decided that case on its own particular facts : that there were no sufficient grounds in that case for granting an injunction : that the converse is the case.....
Judgment:

Amberson Marten, Kt., C.J.

1. This suit was one against inter alia the Secretary of State praying for declaration and for cancellation of a certain sale deed passed by defendant No. 1 in favour of defendants Nos. 2 and 3, and for an injunction restraining delivery of the property to defendants Nos. 2 and 3. It is common ground that two months' notice under Section 80 of the Civil Procedure Code was not given before the suit was brought. The learned trial Judge, in reliance on Bhagchand v. Secretary of State (1923) 26 Bom. L.R. 1 and other decisions of the Bombay High Court, held that the case being one for an injunction, the suit was not barred under Section 80. Those decisions however have been clearly overruled by their Lordships of Privy Council in the very same case on appeal, viz., Bhagchand v. Secretary of State : (1927)29BOMLR1227 . That also was a case for a declaration and injunction, in which their Lordships closely examined the grounds for the different views taken by the High Courts in India, viz., the view taken by the Bombay High Court on the one hand and that taken by the High Courts of Calcutta, Madras and Allahabad on the other. Having done so, they clearly held that the view of the High Courts of Calcutta, Madras and Allahabad was the right one and should.prevail. Consequently, they held that Section 80 in that case afforded a complete answer to the suit, and that therefore it was unsustainable in limine.

2. The learned pleader for the appellant has had the courage to argue that their Lordships decided that case on its own particular facts : that there were no sufficient grounds in that case for granting an injunction : that the converse is the case here: and that accordingly what their Lordships described as the Bombay view ought still to prevail. It is sufficient to say that in our judgment this argument is a hopeless one. Their Lordships of the Privy-Council have pointed out that if the section is to be amended in this manner that is for the legislature to do.

3. I may add that should a case arise where in a normal suit interlocutory relief by immediate injunction would be given, but which owing to Section 80 it may in future be impracticable to obtain, yet there is a principle which has sometimes been applied in the Chancery Courts, viz, that where an intended defendant proceeds to act in such a way as to anticipate a hostile order of the Court in an intended suit-the intention to bring which he has been given express notice of-then the Court on an interlocutory application before the trial may direct the defendant to pull down or otherwise put the property, the subject of the suit, in the same condition as it was before he began to anticipate the orders of the Court. I refer in particular to light and air cases where the defendant proceeds to put on men to work day and night in order to run up a building so as to anticipate an interim injunction. Within my own knowledge in certain cases the Court has subsequently ordered the builder to pull down that building so as to restore matters to the status quo before he got the notice warning him that an injunction would be asked for in the Courts, How far that doctrine would be applicable if at all in any particular case in India I say nothing. I only bring it to the attention of practitioners in case there should be any case of real injustice where the hands of the Court may be tied for a period of two months under Section 80. The present appeal will be dismissed with costs.

Crump, J.

4. I agree. I do not think it would be possible for their Lordships of the Privy Council to have expressed in clearer terms the conclusion that Section 80, if applicable, governs any kind of suit whatever be the relief sought. They begin the discussion of the matter by setting out the two conflicting views. As to the view of the other High Courts they say these Courts are now agreed in deciding that the section ought to be strictly complied with and is applicable to all forms of action and to all kinds of relief. They then proceed to set out the Bombay view that in suits to restrain by injunction the commission of some official act prejudicial to the plaintiff, if the immediate result of the act would be to inflict irremediable harm, Section 80 does not compel the plaintiff to wait two months before bringing his suit. Those are the two conflicting views before their Lordships of. the Privy Council, and they have unambiguously pronounced in favour of the former view. They say (p. 1242): 'A suit in which inter alia an injunction is prayed is still ' a suit',' and that 'Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions.' Had the point not been urged before us, I should not have found it necessary to make these remarks, but as an attempt has been made to argue that the decision of their Lordships of the Privy Council means something else than what appears on the face of it, I thought it well to express my concurrence with the learned Chief Justice,


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