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Mrs. Asha Arun Naik Vs. Damodhar S/O. Wasudeo Naik - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case Number Civil Revision Appln. Nos. 112 and 229 of 1982
Judge
Reported in(1983)85BOMLR300
AppellantMrs. Asha Arun Naik
RespondentDamodhar S/O. Wasudeo Naik
Excerpt:
.....of ownership--granting decree for injunction in such suit whether permissible--granting warrant of possession of suit property when decree only for declaration and injunction whether permissible.;ordinarily the decree follows judgment and the judgment is restricted to the relief prayed in the plaint. it is in extra-ordinary circumstances that some additional equitable relief is granted by the. court in the circumstances of a case, but strictly within the ambit, of the substantial relief claimed in the suit.;in a suit only for a declaration of ownership of the suit-properly and for a declaration that certain sale deed executed by a defendant in. favour of a third party was void, the granting of a decree for injunction is exceeding its jurisdiction by the lower court and issuing..........dispose of both the above civil revision applications, inasmuch as they arise out of the same suit and decree.2. the non-applicant no. 1, damodhar, had filed a suit bearing no. 281 of 1980 on the file of joint civil judge, junior division, nagpur, against the applicant and other non-applicants 2 to 4 for declaration and perpetual injunction as regard to the suit plot. this suit was titled as a suit for declaration and perpetual injunction, but in the prayer clause no relief of perpetual injunction was asked for. the non-applicant no. 1 plaintiff prayed in the suit as follows:(1) hold that petitioner is the absolute owner of the portion demarcated as dca and kfgh etc. to the exclusion of all respondents.(2) that this hon'ble court may further be pleased to declare that the sale deed.....
Judgment:

Puranik, J.

1. This Order shall dispose of both the above civil revision applications, inasmuch as they arise out of the same suit and decree.

2. The non-applicant No. 1, Damodhar, had filed a suit bearing No. 281 of 1980 on the file of Joint Civil Judge, Junior Division, Nagpur, against the applicant and other non-applicants 2 to 4 for declaration and perpetual injunction as regard to the suit plot. This suit was titled as a suit for declaration and perpetual injunction, but in the prayer clause no relief of perpetual injunction was asked for. The non-applicant No. 1 plaintiff prayed in the suit as follows:

(1) Hold that petitioner is the absolute owner of the portion demarcated as DCA and KFGH etc. to the exclusion of all respondents.

(2) That this Hon'ble Court may further be pleased to declare that the sale deed executed by respondent No. 2 in favour of respondent No. 3 is void,

(3) That any other relief to which this petitioner is entitled to under the said facts and circumstances.

In the plaint pleadings the non-applicant No. 1 has alleged that he was in possession of the suit land. The present applicant contested the suit, but during the pendency of the suit, she remained absent as she was not informed of the date and progress of the suit and the case was proceeded ex-parte against the applicant. The ex-parte decree came to be passed in the suit of the non-applicant No. 1 on November 25, 1981.

3. As already noted above, the prayer was not for perpetual injunction or possession. However, the trial Court, by its ex-parte judgment, ordered as follows:

It is declared that the sale deed executed by defendant No. 2 in favour of defendant No. ii on April 9, 1969 is void.

It is ordered that the defendants shall not disturb the possession of the plaintiff over the suit plot and. house marked by letters-CAID and EFGH-in the plaint map.

The defendants shall bear their own costs and that of the plaintiff...

Immediately thereafter, the non-applicant No. 1 plaintiff, as the decree holder, filed regular darkhast No. 55/1981 before the trial Court and the trial Court, without applying its mind to the main relief claimed or the decree awarded, issued a warrant of possession of the suit premises initially against the applicant Mrs. Asha and subsequently against the occupier of the premises, namely, M/s, National Rerolling Mills. The said warrant of possession was objected by M/s. National Rerolling Mills on the ground that they were the tenant of Mrs. Asha. The warrant was returned unexecuted and the trial Court issued a fresh warrant of possession against M/s, National Rerolling Mills.

4. It appears that one Shri Kawale, in his capacity as manager of the said National Rerolling Mills filed an application before the trial Court for stay of the warrant of possession on February 18, 1982 on the ground that he was in possession of the suit property and he had no notice of the civil suit even though he was a necessary party. The present applicant Mrs. Asha, against whom the ex-parte decree was passed, also filed an application for setting aside the decree on various grounds.

5. The trial Court rejected the application filed by National Rerolling Mills for stay of warrant of possession saying that the ex-parte decree passed in civil suit No. 281 of 1980 is still in force, and that the applicant - National Rerolling Mills being a tenant of the judgment-debtor No. 3, he is bound to land over the possession as ordered in the decree. The trial Court, thus, rejected the said application.

6. In the mean time, in the proceedings for setting aside the ex-parte decree preferred by the present applicant, she also applied for stay of execution proceedings on February 19, 1982. She had pointed out therein to the trial Court that what was prayed by the plaintiff in the impugned suit was only a relief of declaration that the sale deed in favour of non-applicant No. 1 was void and that the plaintiff be declared as owner of the suit land. She, further, pointed out that there was no prayer for any injunction restraining the defendants from disturbing the alleged possession of the plaintiff. It was also pointed that in these circumstances, the warrant of possession could not have been issued even if the decree was in force. The trial Court rejected the application for stay of warrant of possession and observed that the ex-parte decree is still in force and if, in case, the applicant succeeds in getting the ex-parte decree set aside, she could also succeed in getting the restoration of the possession of the suit property.

7. It is against this order that the applicant-judgment-debtor has preferred this revision requesting that the warrant of possession issued against the applicant and her tenant, namely, National Rerolling Mills, be declared as void and illegal and for restitution of possession of the suit property in her favour, and for interim injunction against non-applicant No. 1 from transferring in any manner or encumbering the said property in question.

8. In this revision rule was issued on April 26, 1982 and was made returnable on June 30, 1982, It was also directed to be placed with civil revision application No. 112 of 1982.

9. The civil revision application No. 112 of 1982 is preferred by M/s. National Rerolling Mills, who were threatened with dispossession of the suit property owing to the warrant of possession issued in favour of non-applicant No. 1. As already noted, the warrant of possession was issued against Smt. Asha in pursuance of the ex-parte decree passed against her. It was objected by the occupier of the suit property, namely, National Rerolling Mills, and a fresh warrant of possession was issued by the trial Court against M/s. National Rerolling Mills. The applicant, namely, National Rerolling Mills, filed an application before the trial Court for stay of the warrant of possession on the ground that it was neither a party to the proceedings nor it was noticed of the same even though it was in physical possession as tenant of Mrs. Asha. The applicant had also pointed out to the trial Court that Smt, Asha, against whom ex-parte decree had been passed, has also moved for setting aside the ex-parte decree. The trial Court rejected the said application on the ground that the ex-parte decree is still in force and the applicant - M/s. National Rerolling Mills, being a tenant of the judgment debtor, is bound to hand over the possession as ordered in the decree. By this revision M/s. National Rerolling Mills are also challenging the refusal of stay of possession as per the order of the trial Court dated February 18, 1982.

10. Both these revision applications were heard together. Shri A.K. Khanna, advocate, appeared for the applicant in both the revisions, while Shri A.K. Trivedi, advocate, appeared for non-applicant No. 3 in C.R.A. No. 229/1982, and in C.R.A. No. 112/82 Shri K.A. Ghatpande, advocate, appeared for non-applicant No. 1, while the other respondents are served.

11. My learned predecessor had asked for the original records to be produced. With the assistance of the counsel, I have gone through the impugned orders as well as the original records. At the outset, I must say that this is a blatant case of non-application of mind by the trial Court. The non-applicant No. 1, Damodhar, had filed the suit only for declaration of his ownership to the suit property and declaration that the sale deed executed by Mrs. Asha in favour of the other respondents is void, He had not prayed for any injunction, nor had he prayed for any possession. A perusal of para. 9 of the plaint shows that he had valued the suit for purposes of jurisdiction and Court fee at Rs. 300 and had paid Court fee of Rs. 30 only. It may be pointed out that the title of the suit showed that it was a suit for declaration only without any additional relief.

12. The non-application of mind by the trial Judge is seen from the ex-parte judgment dated November 25, 1981, whereby he orders that -

It is declared that the Sale deed executed by defendant No. 2 in favour of defendant No. 3 on April 9, 1909 is void.

It is ordered that the defendants shall not (disturb) the possession of the plaintiff over Hie suit plot and house....

I do not have enough words to criticise such a judgment, but I can certainly classify it as a travesty of justice. Furthermore, what is peculiar in the present proceedings is that in pursuance of the decree erroneously granted for declaration and injunction, the trial Court entertained a regular darkhast for execution of the said decree, and in that, without looking to the purport and the ambit of the decree itself the trial Court directed warrant of possession to be issued in respect of the suit property. It is surprising that when there is no prayer for injunction, the same was granted, and when there was no decree for possession, even a warrant of possession came to be issued by the trial Judge. It is difficult to understand whether it was merely a case of non-application of mind or whether the trial Judge was pressurised in doing something which was beyond his capacity to do. Another doubt arises in my mind is whether something else other than legal consideration weighed with the trial Judge in issuing such a warrant of possession. In any event, the trial Court initially exceeded its jurisdiction when it passed a decree for injunction which was beyond the relief claimed, and it further exceeded its jurisdiction in issuing a warrant of possession when the decree itself was only for declaration and injunction. Ordinarily the decree follows judgment and the judgment is restricted to the relief prayed in the plaint. It is in extraordinary circumstances that some additional equitable relief is granted by the Court in the circumstances of a case, but strictly within the ambit of the substantial relief claimed in the suit. The perusal of the trial Court's record clearly show that a void illegal warrant of possession was issued and it appears that even though an interim stay of warrant of possession was granted by this Court, the same was flouted and the applicant - M/s. National Rerolling Mills were dispossessed of their lawful possession. The very fact that Mrs. Asha, the judgment-debtor, had applied for setting aside the ex-parte decree should have been enough consideration for the Court to stay the warrant of possession. That prayer was refused. Even the application from the actual occupier of the suit premises, namely, M/s. National Rerolling Mills, was rejected on the ground that they are tenants of the original judgment debtor and are bound to obey the decree. When the Court is aware that some one is in lawful possession of a property and when there is no prayer for possession in the plaint, a warrant of possession and eviction could not have been issued by the trial Court.

13. Considering the mode of working of the trial Judge in view of the discussion given above, I have no hesitation to hold that the impugned warrant of possession issued by the trial Court is void, illegal and inoperative, and has to be quashed and set aside. The original judgment debtor Smt. Asha and through her the occupier M/s. National Rerolling Mills, are entitled to restoration of the possession of the suit property forthwith.

14. In the result, the revision application No. 229 of 1982 succeeds and the impugned warrant of possession in Regular Darkhast No. 55/82 is recalled and quashed. It is further directed that the trial Court should restore the possession of the applicant Smt, Asha and M/s. National Re-rolling Mills forthwith. Rule made absolute. The trial Court is also directed to expeditiously dispose of the application filed by Smt. Asha for settling aside the ex-parte decree.

15. As regards the civil revision application No. 112 of 1982, the advocate for the applicant had filed a pursis stating that in view of the order passed in civil revision application No. 229 of 1982, their application has become infructuous and prayed for its withdrawal. The prayer is granted.

16. Costs of civil revision application No. 229 of 1982 are saddled on non-applicant No. 1 - Damodhar, while there shall be no order as to costs in civil revision application No. 112 of 1982.


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