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Khawaz Bux Vs. Mirza Mohammad Ismail - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 100 of 1977
Judge
Reported inAIR1984All83
ActsMotor Vehicles Act, 1939 - Sections 59, 59(1) and 61; Contract Act, 1872 - Sections 23; Specific Relief Act, 1963 - Sections 38 and 39
AppellantKhawaz Bux
RespondentMirza Mohammad Ismail
Appellant AdvocateS.K. Dhaon and ;A.D. Surinder, Advs.
Respondent AdvocateL.P. Naithani, Adv.
Excerpt:
.....hence became the exclusive owner of the permit as well as the vehicle. after hearing counsel the bench permitted the plaint as well as the written statement to be amended. 14. in view of the findings of fact mentioned above the plaintiff was clearly entitled to relief no. 1116. 16. learned counsel for the plaintiff-appellant submitted that since the plaintiff was the owner of the vehicle as well as the permit he was entitled to run the vehicle on that permit. 18. to us it is evident that enforcing an agreement whereby the permit as well as the vehicle covered by it are transferred without the requisite permission under section 59, by issuance of an injunction restraining the defendant from interfering with the plaintiff using the vehicle in the manner authorised by the permit, will be..........the full bench, the plaintiff applied for amendment of the plaint. after hearing counsel the bench permitted the plaint as well as the written statement to be amended. as a result of the amendment the plaintiff claimed the following reliefs:'1. it may be declared that the vehicle no. upg-4091 covered by the stage carriage permit no. 1116 belongs to him (the plaintiff); 2. a mandatory injunction may be issued directing the defendant mirza mohammad ismail to execute necessary documents required to effectuate the transfer of permit no. 1116 in favour of the plaintiff: 3. a mandatory injunction may be issued directing the defendant mirza mohammad ismail not to operate any stage carriage vehicle under the permit no. 1116'. 7. on the basis of the amendment of the pleadings the court on.....
Judgment:

Satish Chandra, C.J.

1. Being of the opinion that a Division Bench decision of this Court, in Kartar Singh v. Shambhu Dayal Lakhsar (F.A.F.O. No. 288 of 1976 decided on October 20, 1976) requires reconsideration a Division Bench has referred this appeal for decision by a larger Bench.

2. This is a plaintiff's appeal. It arises out of a suit for an injunction. The trial court dismissed the suit.

3. The plaintiff-appellant alleged that the defendant-respondent held a stage carriage USL-6100 which was covered by permit No. 1116. This permit was valid for Meerut-Gulaothi-Dho-lana Route. In virtue of two agreements dated August 14, 1961 and June 4, 1962 the defendant transferred the permit No. 1116 as well as the vehicle No. USL-6100 to the plaintiff on being paid the sale consideration of Rs. 50,000/-. The plaintiff hence became the exclusive owner of the permit as well as the vehicle. Subsequently the plaintiff replaced the vehicle by another one (UPG-4091). The plaintiff applied for permission for transfer of the aforesaid permit. Initially the defendant gave his consent but subsequently he filed an objection and withdrew his consent. Thereafter the application for transfer was not pressed before the Regional Transport Authority. The defendant tried to take forcible possession of the vehicle. The plaintiff hence came to Court and prayed for an injunction restraining the defendant from interfering with the plaintiff's plying of the bus No. UPG-4091 on permit No. 1116 on Meerut-Gulaothi-Dholana Route.

4. The defendant contested the suit. He denied that he ever executed the agreement to transfer permit or the vehicle. He also denied receiving Rs. 50,000/-. He alleged his, signatures had been obtained on blank stamped and unstamped papers. On the pleadings, the learned Civil Judge framed issues and recorded his findings as follows:--

Issues

Findings

1.

Whether the defendanttransferred the bus and the permit to the plaintiff as alleged by him in theplaint ?.

1. Yes

2.

Whether the alleged transfer isillegal as alleged by the defendant?

2. Yes

3.

Whether the plaintiff is inpossession of the disputed vehicle and the permit?.If so, its effect?

3. The defendant was in possession of the bus UPG-4091 tillMay 1975. The plaintiff got possession over this vehicle on December 3, 1976 and wasin possession since then.

4.

To what relief, if any, is theplaintiff entitled?.

4. Since the transfer of the vehicle and the permitin favour of the plaintiff was illegal, the plaintiff is not entitled to thereliefs. On these findings the suit was dismissed.

5. The appeal came up for hearing before a Division Bench. For the plaintiff-appellant, reliance was placed upon an unreported decision of a Division Bench of this Court in Kartar Singh mentioned above. The Bench felt that the aforesaid decision requires reconsideration. The matter was referred to a larger Bench.

6. When the appeal came up for hearing before the Full Bench, the plaintiff applied for amendment of the plaint. After hearing counsel the Bench permitted the plaint as well as the written statement to be amended. As a result of the amendment the plaintiff claimed the following reliefs:

'1. It may be declared that the vehicle No. UPG-4091 covered by the stage carriage permit No. 1116 belongs to him (the plaintiff);

2. A mandatory injunction may be issued directing the defendant Mirza Mohammad Ismail to execute necessary documents required to effectuate the transfer of permit No. 1116 in favour of the plaintiff:

3. A mandatory injunction may be issued directing the defendant Mirza Mohammad Ismail not to operate any stage carriage vehicle under the permit No. 1116'.

7. On the basis of the amendment of the pleadings the Court on September 3, 1980 framed the following additional issues:

1. Whether the plaintiff is entitled to declaration as prayed for in paragraph 15 (a) of the plaint as amended ?

2. Whether the plaintiff is entitled to mandatory injunction against the defendant as prayed for in paragraph 15 (b) and (c) of the plaint as amended

8. The Court then recorded 'no other issue has been pressed, counsel for the parties have stated that they do not wish to lead any further evidence as a consequence of the amended pleadings and in respect of the additional issues.'

9. The appeal was heard and judgment was reserved, but unfortunately one of the members of the Full Bench died. The Full Bench had to be dissolved and reconstituted.

10. The matter came up before the reconstituted Full Bench on February 12, 1982. The Full Bench felt that the appeal may be heard by the Division Bench which may give its findings on various questions of fact arising in it and then, if necessary, refer the questions of law to a larger Bench.

11. The matter was then heard by a Division Bench on September 8, 1983. Before the Bench learned counsel for both the parties stated that the findings of fact recorded by the court below are not challenged. In this situation the Court was of the view that on the recorded findings the decision in Kartar Singh's case was applicable. They felt that the question whether an agreement to transfer a permit without the requisite sanction under Section 59 of the Motor Vehicles Act is enforceable in a court of law and whether the court should in such circumstances grant an injunction in favour of the plaintiff, are questions of law which frequently arise and that these questions may be decided by a larger Bench. They accordingly referred the appeal to a larger Bench. That is how the matter has come up before this Bench.

12. In the present case the findings of fact are:

1. In virtue of the agreements of 1961 and 1962 the defendant transferred the bus and the permit to the plaintiff.

2. The plaintiff was in possession of the permit and the vehicle No. UPG-4091 since December 3, 1976 and was plying the aforesaid vehicles since then.

13. It is also not disputed that the plaintiff applied to the Regional Transport Authority for transfer of the permit to his name but since the defendant filed an objection the plaintiff did not press the application. The permit No. 1116 hence continues to remain in the name of the defendant. Thus though the plaintiff is the owner of the permit, the defendant continues to be the holder of the permit.

14. In view of the findings of fact mentioned above the plaintiff was clearly entitled to relief No. 1, namely, a declaration that vehicle No. UPG-4091 covered by the stage carriage permit No. 1116 belongs to the plaintiff.

15. Having cleared the deck of these subsidiary matters we now come to the principal question to be considered raised in the plaint originally. The question is whether in the admitted circumstances the plaintiff is entitled to an injunction restraining the defendant from interfering with the plaintiff's plying of the bus No. UPG-4091 on permit No. 1116.

16. Learned counsel for the plaintiff-appellant submitted that since the plaintiff was the owner of the vehicle as well as the permit he was entitled to run the vehicle on that permit. Learned counsel for the respondent submitted that Section 59 (1) of the Motor Vehicles Act debarred a person from operating a vehicle unless the permit covering that vehicle is permitted to be transferred- Without the requisite permission the plaintiff cannot legally ply the bus and it was not permissible to the court to enforce the agreement to transfer in a manner which may contravene Section 59 of the Motor Vehicles Act.

16A. Section 59 of the Motor Vehicles Act provides:

'59. General conditions attaching to all permits-

(1) Save as provided in Section 61, a permit shall not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not without such permission operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit.

(2) The holder of a permit may, with the permission of the authority by which the permit was granted, replace any vehicle covered by the permit by any other vehicle of the same nature.'

17. Section 61 deals with transfer of permit on death of the holder. Section, 59 (1) is in positive terms. It makes a permit non-transferable except with the permission of the transport authority. Even where the title in a vehicle has been transferred, this section prohibits the use of the vehicle in the manner authorised by the permit, unless the transport authority grants the permission. The section negatively makes a permit non-transferable without permission and positively provides that the transfer of the vehicle without the permission does not confer the right to use it.

18. To us it is evident that enforcing an agreement whereby the permit as well as the vehicle covered by it are transferred without the requisite permission under Section 59, by issuance of an injunction restraining the defendant from interfering with the plaintiff using the vehicle in the manner authorised by the permit, will be violative of Section 59. Section 23 Contract Act forbids enforcement of a contract which will defeat the provisions of any law.

19. Learned counsel for the plaintiff-appellant invited our attention to Kartar Singh (supra). In that case the finding was that the plaintiff has established that the defendant had transferred the vehicle along with the permit to the plaintiff. A joint application for transfer of permit had been filed before the Regional Transport Authority. During the pendency of that application the defendant did not allow the plaintiff to ply the vehicle. The plaintiff then filed a suit for an injunction. The trial court dismissed the application for an ad interim injunction. The plaintiff came up to this Court in appeal. Though the permit and the bus had been transferred to the plaintiff but the Regional Transport Authority had not granted permission for the transfer. The Bench held:

'Sri S.N. Kacker, however, argued that the plaintiff appellants are Benamidars and they can exercise the same right as could be exercised by the defendant-respondent. If the defendant-respondent could ply the bus on the basis of the permit issued to him, the same power can be exercised by the plaintiff. In support of his contention he placed reliance on K.M. Vishwanatha Pillai v. K.M.S. Pillai : [1969]2SCR896 '.

20. The Bench held that in view of the aforesaid decision of the Supreme Court the plaintiffs can ply the vehicles as Benamidars of the defendant respondents and there can be a Benami transaction even if the Motor Vehicles Act does not provide for a Benami transaction. The Bench went on to observe :--

'According to the Civil Judge, the grant of injunction in this case would virtually amount to giving licence to the plaintiff appellants in the teeth of the provisions of Section 59 (1) of the Motor Vehicles Act. We, however, do not see any such difficulty. In view of the principles laid down by the Supreme Court, referred to above, the plaintiff-appellants can ply the vehicle as a Benamidar of the defendant-respondent.'

21. It appears that in the opinion of the Division Bench, Pillai's case : [1969]2SCR896 (supra) was an authority for the proposition that if the defendant could ply the bus on the basis of the permit issued to him the same power can be exercised by the plaintiffs as Benamidars. Let us now examine Pillai's case. In that case the plaintiff claimed that the defendant was carrying on business on his behalf as a Benamidar. He prayed for a declaration that the bus along with the stage carriage permit belonged to him and that he was entitled to run the same. The plaintiff alleged that the defendant had joined with the plaintiff earlier in filing a joint application for transfer of the permit before the Regional Transport Authority. The defendant, however, withdrew his consent and the application was rejected. The plaintiff sought a mandatory injunction directing the defendant to execute the necessary documents required to effectuate the transfer of the permits. The trial court decreed the suit. On appeal the decree was confirmed. The matter was taken up to the High Court. The High Court reversed the decree and dismissed the suit. It held that the Benamidar falsely representing himself to be the owner obtained the permit in his name and thus practised fraud upon the transport authorities. The Court should not compel the defendant to co-operate in any further application for the transfer. The Supreme Court did not. accept the High Court's view. It held that Benami transactions are not unlawful. The Motor Vehicles Act does not bar Benami transactions. The agreements between the parties are not unlawful. They restored the decree of the District Judge.

22. To recapitulate, the reliefs claimed were a declaration that the buses belonged to the plaintiff and that he was entitled to run the same. The second relief claimed was for a mandatory injunction directing the defendant to execute the necessary documents required to effectuate the transfer of the permits. Both these reliefs were granted.

23. In this decision the Supreme Court did not anywhere even observe that a Benamidar can exercise the same rights as the true owner or that if the true owner can ply the bus on the permit issued to him, the Benamidar can also run the bus on the same permit, without the permission. On the other hand, the Court recognized that it was necessary for the plaintiff who was owner of the bus and the permit to apply for permission for the transfer and the only in-juction granted in favour of the plaintiff was to direct the defendant to execute the necessary documents required to effectuate the transfer of the permits. The transfer was to be under Section 59 of the Motor Vehicles Act.

24. In view of this decision, the plaintiff on proving that he was the owner of the vehicle and the permit could ask for a declaration of title and an injunction directing the defendant to execute the necessary documents required to effectuate the transfer of the permits in favour of the plaintiff. This decision does not go beyond that.

25. It is true that in that case a declaration was sought for and granted that the plaintiff was the owner of the busalong with the permits and that he was entitled to run the same. But in spite of such a declaration no injunction was granted restraining the defendant not to interfere with the plaintiffs right to run the same under the permit. This was be-cause till then the transport authorities had not granted the requisite permission under Section 59. In our view this decision leads to the conclusion that a person who has become the owner of the vehicle as well as the permit can legally ply or run the vehicle under that permit only after the requisite permission has been granted by the transport authorities. In other words, the plaintiff has not only to be the owner of the permit but also its holder. In our opinion, Kartar Singh did not draw the correct inference from Pillai's decision : [1969]2SCR896 and the view taken by it does not appeal to us.

26. We may now consider the reliefs of injunction claimed by the plaintiff after amendment of the plaint. In this connection, the contents of the agreement between the parties may be noticed :

1. That the first party has been issued a regular stage carriage permit No. 1116 for the route of Meerut-Hapur-Gulaothi-Dhaulana.

2. That the second party put on their vehicle. No. USL-6100 to ply the same with.

3. Later the first party agreed with the second party to transfer the said permit No. 1116 mentioned above to the name of the second party jointly whenever the second party desired to get it transferred to self.

4. That the first party shall be ready and willing at all reasonable times to make and sign any joint application for the transfer of the above permit to the sole names jointly of the above second party without any kind of hindrance or Objection.

5. That in case the first party does not sign the joint transfer application the second party will be entitled to have the above permit transferred to his name and this agreement will be consent of the first party and will be legal and lawful for all purposes under Section 59 (1) Motor Vehicles Act and the Rules framed thereunder.

6. In short the first party will never have any objection or hesitation to transfer the above permit to the second party or to any other third person at the consent and choice of the second party.

7. In witness whereof we the above parties have hereto set out hand and signatures to this agreement this 4th day of June, 1962.'

27. The agreement between the parties has been held by the court below to be genuine and valid. This finding has not been challenged. Clause 4 of the agreement specifically provides that the defendant shall make and sign any application for transfer of the above permit to the plaintiff without any objection and that if he does not do so this agreement shall be evidence of his consent for transfer under Section 59 (1) of the Motor Vehicles Act. The agreement represented a completed contract between the parties. The mention of the fact that permission under Section 59 Motor Vehicles Act was required, did not make an incomplete or contingent contract. A similar position arose before the Supreme Court in Mrs. Chandnee Vidya Vati Madden v. Dr. C.L. Katial : [1964]2SCR495 . There with reference to the Privy Council decision in Motilal v. Nanhelal , the Supreme Court upheld the view that an agreement which provides that the seller will apply for permission to the relevant authority was not an incomplete or contingent contract and that the condition that he will apply for permission could be enforced. In that case the seller had made the requisite application but had subsequently-withdrawn it. The Supreme Court directed the defendant to make the necessary application within a month. Such an injunction could property be granted to the plaintiff-appellant.

28. Learned counsel for the defendant-respondent submitted that under the agreement the defendant had transferred stage carriage No. USL-6100. There was no agreement to transfer vehicle No. UPG-4091. The suit hence cannot be decreed in respect of that vehicle. The submission has no substance. The finding of the court below is that the plaintiff purchased and was in possession of vehicle No. UPG-4091. The defendant in his objection filed before the Regional Transport Authority stated in paragraph 1 that the applicant objector is theholder of the said permit which is covered by vehicle No. UPG-4091. From this statement it is apparent that the vehicle No. UPG-4091 had already been permitted to be replaced under permit No. 1116. Even if that be not so Section 59 (2) provides for permission to replace the vehicle covered by a vehicle by any other vehicle of the same nature. The plaintiff can very well apply for replacement of the vehicle.

29. The plaintiff has also claimed an injunction directing the defendant not to operate any stage carriage permit under permit No. 1116. In our opinion this relief is premature. If the transport authority grants the permission for the transfer of the permit the defendant will lose the permit and hence cannot operate any stage carriage under that permit. In that event the grant of the injunction will be superfluous. But if the transport authority does not grant the permission under S. 59 then there will be no valid reason to restrain the defendant from using the permit of which he will remain the holder. In either event the grant of such an injunction does not seem to be appropriate at this stage.

30. In the result, the appeal is allow ed. The decree of the trial court is set aside. The suit is decreed for a declaration that vehicle UPG-4091 covered by stage carriage permit No. 1116 belongs to the plaintiff-appellant. A mandatory injunction is issued directing the defendant-respondent to forthwith execute the necessary documents required to effectuate the transfer of permit No. 1116 in favour of the plaintiff-appellant.

31. The plaintiff-appellant will be entitled to costs throughout.

32. Under interim orders passed during the pendency of the appeal the plaintiff-appellant was permitted to ply the bus on his depositing Rs. 5,000/- per year in the court. The amounts so deposited shall forthwith be refunded to the plaintiff-appellant.


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