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Om Prakash and anr. Vs. Anar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 737 of 1972
Judge
Reported inAIR1973All555
ActsCode of Civil Procedure (CPC) , 1908 - Sections 16
AppellantOm Prakash and anr.
RespondentAnar Singh and ors.
Appellant AdvocateB.D. Tripathi and ;R.D. Gupta, Advs.
Respondent AdvocateS.P. Gupta, Adv.
DispositionRevision dismissed
Excerpt:
civil - property held by defendant or some one on his behalf - suit for injunction - section 16 (d) of code of civil procedure, 1908 -- suit for injunction in respect of immovable property - to be instituted in court having territorial jurisdiction - determination of right or interest in immovable property - essential for grant of relief in the nature of injunction. - - the defendants be permanently injuncted not to interfere with the said tube-well (any machinery remaining, ought to be set up or with the electric connection etc. the court cannot grant the relief of injunction unless the court makes a determination of the plaintiff's right to hold and enjoy the property without being disturbed by the defendant. 7. the right to get the relief of injunction to restrain the defendant from..........of court reach the property without necessitating the intervention of any other court. in a suit for injunction to restrain the defendant from interfering with an immovable property occasion can arise where the court may be required to extend its hand to the property directly. such an occasion will arise if the injunction is not obeyed. order 21. rule 32 provides for various processes which the court may take where the defendant does not obey the injunction. clause (5) of rule 32 of order 21 provides that in lieu of or in addition to the processes indicated in clauses fl) to (4). the court may direct that the act required to be done by the judgment-debtor may be done so far as practicable by the decree-holder or some other person appointed by the court at the cost of the.....
Judgment:
ORDER

Hari Swarup, J.

1. This is plaintiffs revision against the appellate order dismissing his appeal against the trial Court's order refusing to issue a temporary injunction during pendency of the suit. Plaintiff instituted the suit with the following relief:

'The defendants be permanently injuncted not to interfere with the said tube-well (any machinery remaining, ought to be set up or with the electric connection etc. etc.) themselves or through other's direction or indirectly or under any appearances or claims or orders.'

During the pendency of the suit an application was moved by the plaintiff for the grant of an interim injunction in the following terms:

'It is therefore respectfully prayed that the defendants be restrained notto interfere with the possession of the plainiff and, further, not to prevent the plaintiffs in operating the tubewell in suit.'

The trial Court dismissed the application on the finding that there was no machinery in existence and hence the question of operating the tubewell did not arise. Another ground given for rejecting the application was that the plaintiff was co-sharer of the defendant. Against this order plaintiff went UP in appeal and the appeal was dismissed on the ground that there was no prima facie case made out by the plaintiff inasmuch as the suit was instituted in a court which had no jurisdiction to try it. The appellate Court applying Section 16, C.P.C. held that the suit could be instituted only in a court in district Meerut where the tubewell was situate and could not be instituted at Bulandshahr.

2. Learned counsel for the applicants challenges the correctness of the view taken by the appellate Court on the ground that Section 16(d) was not applicable to the suit and in the alternative that the proviso to the section was applicable and the suit was maintainable at Bulandshahr. The reason given in the plaint for instituting the suit at Bulandshahr was the residence of the defendants within the jurisdiction of the Bulandshahr court Hence the question to be determined in this revision is about the prima facie finding given by the appellate Court about the non-maintainability of the suit at Bulandshahr.

3. Plaintiff filed the suit on the following allegations: that the plaintiffs were the owners of the tubewell and machinery attached thereto, including the electric connection, subsequently they sold away the tubewell connection, including the machinery to the defendants. On 29-12-61 they repurchased 13/16 share from defendants 1, 6 and 7. Later on the defendants removed the machinery on the ground that it belonged to their share and hence what was left belonged exclusively to the plaintiffs. As the defendants threatened to interfere with the plaintiffs' right to peaceful use of the property the present suit was filed for a permanent injunction.

4. Admittedly the tubewell is situate in district Meerut. The machinery had already been removed from the tubewell. Therefore what remained and what would be the subject-matter of the dispute was only the tubewell. A tubewell is an immovable property and this was not disputed by the plaintiffs either before the appellate Court or inthis Court. The contention of learned counsel is that as the plaint is also in respect of the machinery that 'ought to be set up' or 'the electric connection to be installed' the suit must be deemed also to relate to movable property. But in the plaint no relief has been claimed about the return of the movable property, nor is there any allegation that the plaintiffs had set up machinery or installed electric connection on the date of the suit. The suit therefore must be treated as a suit purely in respect of immovable property. The relief of temporary injunction claimed by the plaintiff, which has given rise to this revision, was also confined, as already mentioned, to the tubewell.

5. Section 16 of the Code of Civil Procedure reads as under:

'Suits to be instituted where subject-matter situate-- subject to the pecuniary or other limitations prescribed by any law, suits--

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property.

fc) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property.

(d) for the determination 'of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property.

(f) for the recovery of movable property actually under restraint or attachment, shall be instituted in the court within the local limits of whose jurisdiction the property is situate:

'Provided that a suit to obtain relief respecting, or compenatsion for wrong to, immovable property, held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on business, or personally works for gain.'

6. Section 16(d). C. P. C. provides that suits for the determination of any right other than the right or interest in immovable property contemplated by Clauses (a), (b) and (c) shall be filed in courts within the local limits of whose jurisdiction the property is situate. Clauses (a), (b) and (c) refer to the reliefs, while Clause (d) refers to the determination of the right, Clause (d) does not refer to the relief claimed. Hence Clause (d) must relate to such suits inwhich the determination of any right to or interest in immovable property not covered by Clauses (a), (b) and (c) is involved. As Clause (d) refers to determination of rights and not to relief to be awarded, and every suit must be for some relief it would be legitimate to hold that the suits contemplated by Clause (d) are suits for declaration simpliciter and suits where the declaration is to be followed by some consequential relief. A relief for injunction flows from and depends upon the existence of rights in property. The right may arise from the title resting on an interest in the property or from title based on possession of the plaintiff. Relief of injunction is of the nature of a consequential relief depending either on title or possession. Where possession is to be protected, the relief will depend normally on the possessory right or title of the plaintiff to hold the property. In the present case, the relief of injunction depends upon the right of the plaintiff to hold the property undisturbed by the defendants. The court cannot grant the relief of injunction unless the court makes a determination of the plaintiff's right to hold and enjoy the property without being disturbed by the defendant.

7. The right to get the relief of injunction to restrain the defendant from interfering with the plaintiff's right to hold and enjoy the property is not covered by any of the rights or reliefs contemplated by Clauses (a), (b) and (c) of Section 16, and hence would fall within the ambit of 'some other right to or interest in the immovable property' mentioned in Clause (d) of Section 16 C. P. C.

8. Learned counsel for the petitioner urged that the determination of the right or interest in the immovable property in the present case, and generally in the case of all injunctions, is only an incidental matter and not a matter essential for the grant of relief and accordingly Section 16(d) will not be attracted. The contention is not correct. Section 38 of the Specific Relief Act speaks about the grant of perpetual injunctions. Sub-section fiii) of Section 38 says that when the defendant invades or threatens to invade the plaintiff's right to or enjoyment of the property the court may grant a perpetual injunction in the circumstances detailed in the section. Thus a court can grant a perpetual injunction only after it determines that the plaintiff has a right to enjoy the property. As it is a matter essential for granting the injunction, the determination of the right of the plaintiff cannot be held to be a matter only incidental and not essential for granting the relief of injunction. And. as suchdetermination is a necessary prerequisite for the grant of the relief of injunction. Section 16(d) must apply to a suit for a permanent injunction.

9. The purpose of Section 16 appears to be to give jurisdiction regarding a suit in respect of immovable property to a court whose limbs might not be able to reach the property, as this would not only facilitate inspection of property but make the processes of Court reach the property without necessitating the intervention of any other court. In a suit for injunction to restrain the defendant from interfering with an immovable property occasion can arise where the Court may be required to extend its hand to the property directly. Such an occasion will arise if the injunction is not obeyed. Order 21. Rule 32 provides for various processes which the court may take where the defendant does not obey the injunction. Clause (5) of Rule 32 of Order 21 provides that in lieu of or in addition to the processes indicated in Clauses fl) to (4). the Court may direct that the act required to be done by the judgment-debtor may be done so far as practicable by the decree-holder or some other person appointed by the Court at the cost of the judgment-debtor. The illustration given to Clause (5) states that where A erects a building which renders uninhabitable a property belonging to B and A declines to obey a decree directing him to remove the building, the injunction may be executed by removal of the building itself. Similarly, the court may have to deal with the property in matters of interim injunctions. The Court within. whose territorial jurisdiction the property lies will be in the best position to deal with the matter. A suit for injunction in respect of an immovable property. can therefore be no exception for the applicability of Section 16(d), C.P.C, and has to be instituted in the court in whose territorial jurisdiction the property lies.

10. Learned counsel for the petitioner relied on certain cases for the proposition that a suit for injunction will not be covered by Section 16. None of the cases cited, however, is e case in which the relief for injunction waa sought. The cases nearest to the point were those reported in 'Hardayal Singh v. Ram Ujagar' (AIR 1955 All 416) and Hem Chandra v. Dhirendra Chandra, AIR 1960 Cal 691. In the first case, the suit had been filed for recovery of rent. There was an agreement between the parties that the rent will be paid at the place where the landlord may be posted. He therefore filed the suit at the place where he was posted. An objection was raised regarding the maintainability of the suit. It was held that the suit for recovery of rent from the lessee of the immovable property could not be said to be a suit covered by Clause (d) of Section 16. The suit in that case was based on an agreement and the defendant was not to be required by the decree to be ultimately passed to do or omit to do anything concerning the immovable property. As the relief claimed in the suit was not for an injunction concerning any immovable property it is clearly inapplicable to the facts of the present ease. Similarly, the case of Hem-chandra (supra) is a case where the suit was not one of injunction. The plaintiff had filed the suit alleging that the defendants-executors had committed a breach of their duty in administering the estate and sought to obtain a decree for administration of the estate of the deceased person by and under the direction of the court and for other reliefs. It was held that the suit was not a suit for determination of a right or interest in immovable property and hence Section 16(d) was not attracted. The immovable property in the case was involved only incidentally as the suit was for administration of the property. The other cases were cases based on contract.

11. The next contention of learned counsel that if Section 16(d) was applicable, the case will be covered by the proviso, too, has no merits. The proviso can be applicable only if the two conditions exist, viz. (1) that the property is held by the defendant himself or by someone on his behalf; and (2) that the relief sought can be entirely obtained through his personal obedience. The court below has found that it was not the plaintiff's case that the property was held by any one on behalf of the defendants. Learned counsel for the petitioner contended that the property was held not by the defendants but by the plaintiff on behalf of the defendants. There is however, no allegation in the plaint from which it may be possible to hold that the plaintiff was holding the property on behalf of the defendants. The plaintiff's were claiming the property as their own and laid their claim on the basis of exclusive possession. Further, it is not possible to interpret the proviso in a manner suggested by the learned counsel. The proviso refers to cases where the property is held by the defendant or someone on his behalf. That someone cannot be the plaintiff himself. The observation of the court below that it was not the plaintiffs case that the property was not held by or on behalf of the defendants cannot be held to be erroneous. The proviso, therefore, cannot apply to the present case and confer jurisdiction on the Bulandshehr court.

12. On the finding of the court below, reached for purposes of the issue of temporary injunction, that the suit was not maintainable in Bulandshahr. it was right in holding that the plaintiff had no prima facie case to get the ad interim injunction. The court cannot be held to have committed any error of jurisdiction in arriving at that finding and dismissing the plaintiff's appeal.

13. The revision is accordingly dismissed with costs.


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