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Hari Shankar and ors. Vs. Satya Prakash and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 92 of 1979
Judge
Reported inAIR1982Raj183; 1981()WLN610
ActsSpecific Relief Act, 1963 - Sections 9 and 37; Code of Civil Procedure (CPC) , 1908 - Order 39, Rules 1 and 2
AppellantHari Shankar and ors.
RespondentSatya Prakash and anr.
Appellant Advocate P.D. Mathur, Adv.
Respondent Advocate S.K. Keshote, Adv.
DispositionAppeal allowed
Cases ReferredDelhi v. Rajputana Hotels
Excerpt:
.....injunction.;a civil court seized of the jurisdiction of a civil dispute under section 9 of the specific relief act has got ample powers under order 39, rules 1 and 2, c.p.c read with section 37 of the specific relief act to pass appropriate orders to ensure that the property in dispute is not alienated, altered, demolished, changed, removed, and destroyed during the pendency of suit. this is implied and no express provision is required.;it would be futile exercise, if the court is held to be powerless for making any arrangements or granting any injunction or direction to ensure preservation of the property, and then at the time of passing the decree when the stage of execution comes it is found out that either the entire property, has been wasted destroyed, altered, removed,..........of the district judge, jaipur city, dated 29-4-78, in an application for temporary injunction in a civil suit.2. it is common ground between the parties that this is a civil suit u/s. 9 of the specific relief act based on the allegation of unlawful dispossession within six months from the filing of the suit.3. the property in dispute was of kalyan bux. plaintiff (1) krishna devi is the daughter of kalyan bux and satya prakash is alleged to be the adopted son of kalyan bux. satya prakash is the real son of krishna devi.4. the defendants are relatives of kalyan bux and out of them hari shankef claims to be the adopted son of kalyan bux.5. kalyan bux expired on 28-4-73 leaving behind his widow gendi bai, who expired on 10-11-1976. according to the plaintiff, from 10-11-1976 to 17-4-1977,.....
Judgment:

G.M. Lodha, J.

1. This is a Civil Misc. Appeal against the order of the District Judge, Jaipur City, dated 29-4-78, in an application for temporary injunction in a Civil Suit.

2. It is common ground between the parties that this is a Civil Suit u/s. 9 of the Specific Relief Act based on the allegation of unlawful dispossession within six months from the filing of the suit.

3. The property in dispute was of Kalyan Bux. Plaintiff (1) Krishna Devi is the daughter of Kalyan Bux and Satya Prakash is alleged to be the adopted son of Kalyan Bux. Satya Prakash is the real son of Krishna Devi.

4. The defendants are relatives of Kalyan Bux and out of them Hari Shankef claims to be the adopted son of Kalyan Bux.

5. Kalyan Bux expired on 28-4-73 leaving behind his widow Gendi Bai, who expired on 10-11-1976. According to the plaintiff, from 10-11-1976 to 17-4-1977, the defendants took unlawful possession of the property of Kalyan Bux and made certain demolitions, alterations and constructions. According to the plaintiffs, the property was in possession of Krishna Devi and Satya Prakash either physically or by rent deeds, as in some portions tenants were living.

6. An application for grant of temporary injunction under Order 39, Rules 1 and 2, Civil P. C. was also filed by the plaintiffs, and contested by the defendants. The prayer in the application was that the defendants should be restrained by an injunction that they should not make any addition, alteration or constructions in the property mentioned in para 12 of the application. During the pendency of the suit, it was prayed, that they should maintain status quo. It was also prayed that they should be restrained from mortgaging or alienating the property or transferring its possession or giving it on rent. It was further prayed that in addition to the above property, the defendants should be restrained from evicting the plaintiffs from the property shown in yellow colour in the plaint, and they should further be restrained from making any alterations and constructions in the property.

7. Mr. Mathur, learned counsel for the appellant has challenged the impugned order on various grounds. Firstly, it was argued that the finding of prima facie case is based on the discussion regarding the title of the parties, and there is not a single word about the possession. Secondly, it was pointed out that in a suit for possession under Section 9 of the Specific Relief Act, the only decree which can be given is for possession, and no other relief can be granted. Thirdly, it was pointed out that the property from which there is no allegation of dispossession so far, and on which the plaintiff asserts that they are still in possession, have also been made subject matter of the injunction order, which could not have been done. It was then argued that the injunction has been granted restraining the defendants from realising the rent, and the application for injunction contains no such prayer. Lastly, it was pointed out that the order nowhere mentions as to what would, happen to the rent, because no directions have been given that if the defendants have been restrained from realising the rent, who would realise the rent or where it would be deposited.

8. Mr. Keshote, the learned counsel for the plaintiff submitted that in the lower Court all the arguments proceeded on basis of title, and, therefore, the Court was justified in considering the question of prima facie case on the basis of title. He also asserted that his possession was not in dispute, and, therefore, there was no occasion for giving any finding of prima facie case on the basis of possession at the time of filing of the suit. Mr. Keshote argued that it is permissible for a Civil Court to grant any relief in the matter of a temporary injunction, even though the suit is under Section 9 of the Specific Relief Act. He also pointed out that in the grounds of appeal, no such ground has been taken and general grounds cannot cover the above points. Mr. Keshote then submitted that grant or refusal of injunction is a matter of equitable jurisdiction and normally no interference should be made in appeal. He relied upon the judgment of this Court in Smt. Vimla Devi v. Jang Bahadur, 1977 Raj LW 326 : (ATR 1977 Raj 196) and Apsara Hotels (P.) Ltd., Delhi v. Rajputana Hotels (P.) Ltd., Jaipur, AIR 1981 NOC 201 (Raj).

9. Mr. Keshote also pointed out that equity is against the defendants, because the plaintiff (1) is the daughter of the deceased and No. 2 is the son of the daughter, who is adopted son. According to Mr. Keshote, adoption deed produced by the defendants has been found to be forged, a contention which was controverted by Mr. Mathur.

10. I have carefully considered the submissions of the learned counsel for the parties and have also examined the record of the case including the judgment of the District Judge.

11. Since, both the parties agree that the present suit is a suit under Section 9 of the Specific Relief Act, based on the ground of dispossession within six months, I am not examining the plaint allegations in order to adjudicate this point. The question, which calls for consideration is, whether in a suit for possession under Section 9 of the Specific Relief Act, is the Court competent to grant temporary injunction and while doing so restrain the defendants from alienating the property, taking the rent, ejecting the tenants, making alterations, etc., as has been shown in this case.

12. None of the parties has been able to assist this Court by showing any precedents. Mr. Mathur submitted some decisions which only go to show that in a suit under Section 9 of the Specific Relief Act based on unlawful dispossession within six months, and claiming possession on that ground, no other relief can be granted by the Civil Court. This proposition of law prima facie appears to be correct, but from that it would be a long jump to make a deduction that a court is powerless and has got no jurisdiction to ensure that during the pendency of the suit the property in dispute is maintained in the same condition. I am of the opinion that a Civil Court seized of the jurisdiction of a civil dispute under Section 9 of the Specific Relief Act has got ample powers under Order 39, Rules 1 and 2, Civil P. C. read with Section 37 of the Specific Relief Act to pass appropriate orders to ensure that the property in dispute, is not alienated, altered, demolished, changed, removed and destroyed during the pendency of the suit. This is implied and no express provision is required. If any express provision is required. Order 39, Rules 1 and 2, Civil P. C. makes it explicit. Order 39, Rules 1 and 2, reads as under:--

'39. Rule 1. Cases in which temporary injunction may be granted.-- Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.

2. Injunction to restrain repetition or continuance of breach-- (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.'

13. It is not the contention of Mr. Mathur that Order 39, Rules 1 and 2, Civil P. C. are not applicable in the present case, nor such a tall proposition may be made, more so when Section 37 of the Specific Relief Act expressly empowers a Civil Court adjudicating the civil dispute under the Specific Relief Act to exercise all the powers regarding injunctions under the Civil P. C.

14. It is correct that finally with the relief for granting the decree, the limitation of Section 9 of the Specific Relief Act would apply, but that also implies that the Civil Court should preserve the property in dispute, if necessary, in the same condition, so that an effective decree for possession can be given in favour of the plaintiff. It would be futile exercise, if the Court is held to be powerless for making any arrangements or granting any injunction or directions to ensure preservation of the property, and then at the time of passing the decree when the stage of execution comes, it is found out that either the entire property has been wasted, destroyed, altered, removed, dilapidaled, and alienated. This would result in making a futile decree. I am, therefore, of the view that even though under Section 9 of the Specific Relief Act finally the court may not be competent to grant injunction or make any arrangements for the tenants or other purpose, but the Court can certainly grant a temporary injunction to ensure preservation of status quo and to restrain the defendants from wasting, removing, alienating, demolishing, altering, transferring and changing the same at the property in dispute. That being so, I am not inclined to accept the contention of Mr. Mathur that the injunction order granted by the District Judge was beyond jurisdiction, although when I come to deal with other points, I would consider whether some parts of the relief granting injunction can be sustained or not, which relate to the realisation of the rent or concerning the property, which is not the subject matter of the dispute in the suit and for which no relief of possession has been prayed for in the suit.

14-A. This brings me to the next point raised by Mr. Mathur, that the Court has gone into the question of title and has not considered the question of possession at all. Closely connected with this is the third point that unless a finding of a prima facie case is based on the consideration of question of possession, the injunction could not have been granted. A good deal of debate and discussion ensued between the counsel for the parties in this case before this Court on the ground, whether the question of possession of the plaintiffs was admitted one or not. Various paras were shown to me by both the learned counsel. Mr. Keshote relied upon para 10 and the relevant paras thereafter, and their reply in order to assert that the defendants never pleaded that they were in possession and the plaintiffs were not in possession on the crucial dates when they have been said to have been dispossessed. Mr. Mathur, on the contrary, pointed out para 1 of the additional extra pleas in which a specific allegation has been made that the defendants were in possession of the property since last four years, and the plaintiffs were out of possession during the same period of four years. The contention of Mr. Keshote is that what the defendants wanted to say was that they were in possession by legal fiction, because of the alleged adoption and not in physical possession. This contention of Mr. Keshote was strongly controverted by Mr. Mathur, who submitted that at no point of time and in no part of pleadings they have admitted possession of the plaintiffs within six months of the filing of the suit.

15. Before I express my opinion on this part of the controversy, I would like to analyse the decision regarding prima facie case given by the District Judge. A bare reading of the judgment would show that the learned District Judge has considered the question of prima facie case solely on the basis of alleged title of the parties. He has discussed the allegation of the plaint that plaintiff No. 1 is the daughter and plaintiff No. 2 is the alleged adopted son. Then he has discussed about the Will and certain statements given by deceased Kalyan Bux and his wife before their death. In contrast to it, he has pointed out that the defendant has not given any date, place or year of the alleged adoption, and the allegations arc too vague, which can be struck off from the pleadings, unless better and further particulars are supplied. On a comprehensive consideration of the allegations of the parties in respect of the title, he came to the conclusion that the plaintiffs have got a prima facie case in their favour. It may be that the learned counsel for the parties, who appeared before the District Judge, argued only the question of title, and the question of possession escaped their notice, but the fact remains that throughout the impugned order nowhere there is any finding that prima facie case regarding possession is in favour of the plaintiff either on the basis of admission made in the statements, as alleged by Mr. Keshote, though controverted by Mr. Mathur, or on account of any other reasons based on the affidavits or documents in relation to possession and possession only. It may be that the learned District Judge who decided this injunction application was not made conscious of the fact that he was dealing with the suit under Section 9 of the Specific Relief Act only, and the question of title was foreign to it. Whatever the reason may be, it is obvious that at the time of passing of the impugned order, neither the learned counsel, who appeared before the learned District Judge, nor the learned

District Judge at all considered that the question involved in the case which would require final adjudication would be, whether the plaintiffs were dispossessed within six months of the filing of the suit. It is really surprising how the question of possession escaped the notice of all concerned, specially when the very first sentence of the order mentions that the present suit is under Section 9 of the Specific Relief Act.

16. I am not inclined to discuss in details and adjudicate the question of possession for the purpose of finding out prima facie case, because it would involve the consideration of the pleadings and the affidavits of the parties, which should be done by the trial Court. All that can be said is that whatever the reasons might have been which can be from ignorance of the legal position to misunderstanding the law or proceeding on some assumed position of law, on which I would not like to express any opinion, the basic fact remains that while considering the question of prima facie case, the question of possession, which is the most important factor, circumstance or issue in a suit for possession under Section 9 of the Specific Relief Act, has not at all been considered by the lower court, which vitiates the judgment as a whole.

17. The submission of Mr. Mathur that the injunction order travels beyond the pleadings of the parties, inasmuch as relief has been granted for the property which is not in dispute in this case would also require a critical examination of the pleadings and, therefore, since the case is being remanded for the consideration of the entire matter afresh, I would not like to express any opinion on that aspect of the matter.

18. The resultant position is that while holding that a civil Court while considering a case under Section 9 of the Specific Relief Act is competent to grant an injunction under Order 39, Rules 1 and 2, Civil P C. for maintenance of status quo or for prohibiting alienation or transfer of the property, and for ensuring that the property in the present form is preserved, I hold that the Civil Court in such a case while deciding the application of injunction should consider the question of prima facie case primarily on the basis of issue of possession, though incidently the documents or affidavits for proving or disproving possesion can also relate to the title, so far as it proves or disproves the possession. The other objections raised by Mr. Mathur relating to the legality of issuing directions for not realising rent and not filing the suit for ejectment etc., are left open and undecided because of the remand of the case.

19. The impugned order is, therefore, set aside. It would be open to the court below to consider all the objections and submissions of both the parties afresh and decide the question of injunction afresh. There would be no order as to costs Both the parties would be at liberty to file fresh pleadings and evidence in the case, before the case for injunction is decided. For this purpose, they would appear before the lower Court on 24-11-81. The appeal is accepted.


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