Bombay High Court
Manoj vs Chandrakishore on 28 November, 2013
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.1077 of 2012
1. Manoj s/o Ratilalbhai Chouhan,
Aged about 46 years,
Occupation - Business.
2. Smt. Rajashri w/o Manoj Chouhan,
Aged about 41 years,
Occupation - Business.
Both R/o Shivaji Nagar,
Tumsar, Tah. Tumsar, Dist. Bhandara. ... Petitioners
Versus
1. Chandrakishore s/o Late Shalikram
Chaurasia,
Aged 53 years,
Occupation - Medical Practitioner.
2. Smt. Kirti w/o Chandrakishore Chaurasia,
Aged about 47 years,
Occupation - Housewife.
3. Bhushankumar s/o Late Shalikram
Chaurasia,
Aged about 34 years,
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Occupation - Service.
4. Ku. Vinita d/o Shalikram Chaurasia,
Aged about 41 years,
Occupation - LIC Agent.
All resident of Vivekanand Nagar,
Tumsar, Tah. Tumsar, Dist. Bhandara.
(However, whereabouts of respondent
nos.3 & 4 are not known and therefore
they were not joined as respondents in
the Misc. Civil Appeal. In the
Trial Court, service to them was dispensed
with for hearing on exh.5)
5. Municipal Council, Tumsar,
Tah. Tumsar, Dist. Bhandara. ... Respondents
Shri M.G. Bhangde, Senior Advocate, assisted by
Shri R.M. Bhangde, Advocate for Petitioners.
Shri V.D. Muley, Advocate for Respondent Nos.1 and 2.
CORAM : R.K. DESHPANDE, J.
Date of Reserving the Judgment : 20-11-2013
Date of Pronouncing the Judgment : 28-11-2013
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JUDGMENT :
1. Rule, made returnable forthwith. Heard finally by consent of
the learned counsels appearing for the parties.
2.
The petitioners are the original plaintiffs, who have filed a
suit for declaration that they are the owners of Shop No.169/1,
admeasuring 220 sq.ft. in Survey No.18/1, Nazul Sheet No.7D of
Tumsar, District Bhandara, and the defendants have no right to the
said property. A decree for permanent injunction has also been
claimed, restraining the defendants from disturbing the possession of
the plaintiffs over the suit property. The plaintiffs have also filed an
application Exhibit 5 for grant of temporary injunction restraining the
defendants from disturbing their possession over the suit property. A
further order of temporary injunction is also claimed restraining the
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defendants from executing the decree passed in Regular Civil Suit
No.2 of 1996.
3. The respondents are the original defendant Nos.1 to 5. One
Smt. Nandrani Devi, widow of Shalikram Chaurasia, along with the
respondent No.1 Chandrakishore, the respondent No.3
Bhushankumar, the sons of said Shalikram and the respondent
No.4 Ku. Vinita, a daughter of said Shalikram, were the owners of the
suit property. The respondent No.1 Chandrakishore along with his
daughter Smt. Kirti, the respondent No.2, filed Regular Civil Suit
No.2 of 1996 under Section 6 of the Specific Relief Act, 1963 for
restoration of possession of the suit property in which Smt. Nandrani
Devi, the respondent No.3 Bhushankumar, the respondent No.4 Ku.
Vinita were joined as the defendants. During the pendency of the said
suit, the respondent No.3 Bhushankumar sold the suit property to the
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petitioners/plaintiffs by a registered sale-deed dated 29-5-1998.
Hence, the petitioners/plaintiffs were also joined in Regular Civil Suit
No.2 of 1996 as the party-defendant Nos.3-A and 4 respectively.
4. Regular Civil Suit No.2 of 1996 was decreed for restoration
of possession by the Trial Court on 20-3-2002. Civil Revision
Application Stamp No.28336 of 2004 filed by the present petitioners
challenging the decree passed by the Trial Court regarding restoration
of possession, was dismissed by this Court by the judgment dated
22-11-2011. In the last para of the said judgment, it was observed by
this Court that needless to say that if any of the parties file a suit on
the basis of the title, none of the observations made by this Court or
by the Trial Court shall come in his/her way.
5. Immediately thereafter on 3-12-2011, the present petitioners
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filed Regular Civil Suit No.43 of 2011 for declaration and permanent
injunction, as pointed out in para 1 of this judgment. The application
Exhibit 5 claiming an order of temporary injunction, as stated in
para 2 above, filed in the said suit was dismissed by the Trial Court
by its order dated 7-1-2012. The Appellate Court has dismissed
Misc. Civil Appeal No.2 of 2012 filed by the present petitioners, by
its judgment and order on 9-2-2012. Hence, both these judgments
and orders are subject-matter of challenge in this petition. The
petitioners are claiming an order of temporary injunction against the
respondents, as is stated in para 1 above.
6. While rejecting the application for temporary injunction, the
Trial Court recorded the finding that the petitioners/plaintiffs are in
possession of the suit property on the basis of a registered sale-deed
dated 29-5-1998. Referring to the decision of this Court in the case of
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Mari Doddatamma Karkundi v. Santaya Ramkrishna Pai, reported in
(1922) 24 Bom LR 768, and the decision of Gujarat High Court in the
case of Mohammad Husain Suleman Shaikh and another v.
Batukbhai Waljibhai and others, reported in AIR 1984 Gujarat 66, the
Trial Court held that the judgment-debtor/owner of the property is not
debarred from institution of a suit and claiming an injunction
restraining the decree-holder from execution of a decree for
possession passed under Section 6 of the Specific Relief Act.
However, a claim for temporary injunction was rejected, holding that
the question of title over the suit property is not material, and what is
material is the fact that the predecessors-in-title of the
plaintiffs/petitioners have wrongly/illegally dispossessed the
defendants/respondent Nos.1 and 2 and have sold the property to the
petitioners/plaintiffs. It has been held that the petitioners/plaintiffs
were having very well knowledge of the dispute, but have purchased
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the property and have taken the possession thereof. According to the
Trial Court, such a conduct on the part of the petitioners and the
respondent No.3 and 4 disentitle them to claim a equitable relief of
injunction.
7. The Appellate Court has confirmed the findings recorded by
the Trial Court, holding that such a suit based on the title seeking
injunction on execution of decree for possession under Section 6 of
the Specific Relief Act, is maintainable. Relying upon the decision of
the Apex Court in the case of Sanjay Kumar Pandey and others v.
Gulbahar Sheikh and others, reported in (2004) 4 SCC 664, it has
been held that the remedy of a person unsuccessful in a suit under
Section 6 of the Specific Relief Act is to file a regular civil suit
establishing his title over the suit property and to recover the
possession, notwithstanding the adverse decision in a suit under
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Section 6 of the said Act. It has also been held that the
petitioners/plaintiffs were parties to Regular Civil Suit No.2 of 1996,
and knowing fully well, they have purchased the suit property during
the pendency of the suit. The Appellate Court has also noted the
additional fact that the property was purchased by the
petitioners/plaintiffs in violation of the order of status quo, which was
operating in Regular Civil Suit No.2 of 1996. Thus, with all these
findings, the appeal has been dismissed.
8. After going through the judgments of both the courts below, I
am of the view that though a reference is made to the well-settled
principles for grant of injunction, viz. (i) prima facie case; (ii) balance
of convenience; and (iii) irreparable loss, the Courts below have in
fact not applied the said principles, but on the contrary, it has been
held that the question of title is not material. Basically, the Court
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below have denied the relief of temporary injunction on the ground
that there exists a decree for restoration of possession under Section 6
of the Specific Relief Act, 1963, and the defendants in the suit in
question cannot be deprived of the fruits of such a decree.
9. Shri Muley, the learned counsel for the respondents, has
invited my attention to Section 41(b) of the Specific Relief Act and
has submitted that it is this provision, which the Courts below have
invoked to reject the relief of temporary injunction. Hence, the
question is whether the Courts below were right in refusing to protect
the possession of the plaintiffs, by an order of temporary injunction,
as claimed, merely because a decree for restoration of possession
under sub-section (1) of Section 6 of the Specific Relief Act needs to
be executed, and there is a bar under Section 41(b) of the said Act to
grant an injunction. The claim for an order of injunction needs to be
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rejected in view of Section 41(b) of the said Act. Before answering
this question, the position of law needs to be seen in the light of the
decisions cited before this Court.
10. In the case of Mari Doddatamma Markundi v. Santaya
Ramkrishna Pai, reported in (1922) 24 Bom.L.R. 768, a suit was
instituted to seek an injunction restraining the appellant therein from
dispossessing him by enforcing the decree passed in Suit No.293 of
1917. There was a decree passed by the Court of Mamlatdar in
possessory suit filed under Section 9 of the Specific Relief Act, 1877
for restoration of possession. The said decree could not be executed,
because the respondent therein instituted the suit to establish his title
to the land and to obtain an order of injunction. It was held that the
respondent therein had established his title to the said land and the
defendant was permanently restrained from obstructing the plaintiff's
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possession over the suit land on the strength of a decree passed in a
suit under Section 9 of the Specific Relief Act, 1877. Thus, the said
decree was rendered inoperative and incapable of execution. The
question was dealt with in para 4 of the said judgment, which is
reproduced below :
"4.
It has been Urged in this second appeal that this
decree offends against the provisions of section 56, Clause
(b), of the Specific Relief Act. Now the decree passed in
Suit No.293 of 1917 was clearly one contemplated by
Section 9 of that Act, The ob-ject of that section is to
discourage people from taking the law into their own
hands, however good their title may be. (Krishnarav
Yashwant v. Vasudev Apaji Ghotikar (1884) I.L.R. 8 Bom.
371, 375). It provides "a summary and speedy remedy
through the medium of the Civil Court for the restoration
of possession to a party dispossessed by another, leaving
them to fight out the question of their respective titles if
they are so advised": Wali Ahmad Khan v. Ajudhia Kandu
(1891) I.L.R. 13 All. 537, 562. An order or decree passed
under that section is not open to appeal or to review at the
instance of the defeated party; and the section expressly
provides that nothing contained therein shall bar any
person from suing to establish his title to such property
and to recover possession thereof. It was therefore
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competent to the respondent to institute this suit to
establish his title to the lands in dispute; and being in
possession thereof, the only further relief which he could
seek was an injunction to restrain the appellant from
disturbing his possession. The terms of the decree passed
by the lower Court are, in my opinion, unob-jectionable."
11. In order to find out whether the law laid down in the
aforesaid decision can be made applicable to the facts of this case, the
provisions of Sections 9 and 56(b) of the Specific Relief Act, 1877
(hereinafter referred to as "the SR Act of 1877) need to be compared
with the provisions of Sections 6 and 41(b) of the Specific Relief Act,
1963 (hereinafter referred to as "the SR Act of 1963). Hence, the
comparative provisions are reproduced below :
Section 9 of the Specific Relief Section 6 of the Specific Relief
Act, 1877 : Act, 1963 :
Suit by person dispossessed of Suit by person dispossessed of
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immovable property.-- If any immovable property.--(1) If any
person is dispossessed without his person is dispossessed without his
consent of consent of immovable property
immovable property otherwise than otherwise than in due course of
in due course of law, he or any law, he or any person claiming
person claiming through him may, through him may, by suit, recover
by suit, recover possession thereof possession thereof,notwithstanding
notwithstanding any other title that any other title that may be set up in
may be set up in such suit. such suit.
Nothing in this section shall bar any (2) No suit under this section
person from issuing to establish his shall be brought--
title to such property and to recovery
possession thereof. (a) after the expiry of six
months from the date of
No suit under this section shall be dispossession; or
brought against the Central
Government or any State (b) against the Government.
Government.
(3) No appeal shall lie from any
No appeal shall lie from any order order or decree passed in any suit
or decree passed in any suit instituted under this section, nor
instituted under this section, nor shall any review of any such order
shall any review of any such order or decree be allowed.
or decree be allowed.
(4) Nothing in this section shall
bar any person from suing to
establish his title to such property
and to recovery possession thereof.
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Section 56(b) of the Specific Relief Section 41(b) of the Specific Relief
Act, 1877 : Act, 1963 :
Injunction when refused.--An
ig Injunction when refused.--An
injunction cannot be granted-- injunction cannot be granted--
(b) to stay proceedings in a Court (b) to restrain any person from
not subordinate to that from which instituting or prosecuting any
the injunction is sought. proceeding in a Court not
subordinate to that from which the
injunction is sought.
Bare perusal of the comparative provisions reveals that the suit under
Section 9 of the SR Act of 1877 can be treated as a suit under
Section 6 of the SR Act of 1963. There is no difference in the
substance of the language of both these provisions.
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12. In view of the aforesaid decision, it has to be held that the
object of sub-section (1) of Section 6 of the SR Act of 1963 is to
discourage people from taking the law into their own hands, however
good their title may be. It provides a summary and speedy remedy
through the medium of the Civil Court for the restoration of
possession to a party dispossessed by another, leaving them to fight
out the question of their respective titles, if they are so advised. An
order or decree passed under sub-section (1) of Section 6 of the SR
Act of 1963 is not open to an appeal or review at the instance of a
defeated party. Sub-section (4) of Section 6 of the said Act expressly
provides that nothing contained therein shall bar any person from
suing to establish his title to such property and to recover possession
thereof. It thus saves a right of a person unsuccessful in a suit under
sub-section (1) of Section 6 of the said Act to establish his title to
such property and to recover the possession thereof. The plaintiffs
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were, therefore, competent to institute the suit in question as
contemplated under sub-section (4) of Section 6 of the said Act to
establish their title to the property, irrespective of the fact that there
was a decree passed against them under sub-section (1) of Section 6
of the said Act.
13. In the decision of the Apex Court in the case of Cotton
Corporation of India Limited v. United Industrial Bank Limited and
others, reported in AIR 1983 SC 1272, the provision of Section 56(b)
of the SR Act of 1877 was compared with the provision of
Section 41(b) of the SR Act of 1963. It has been held that keeping in
view the judicial interpretation placed by the Courts on Section 56(b),
the Legislature has materially altered the language of the succeeding
provision enacted in Section 41(b) of the SR Act of 1963. It has
further been held that the language has made it clear that an
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injunction cannot be granted to restrain any person and it takes care
of injunction acting in personum from instituting or prosecuting any
proceeding in a Court not subordinate to that from which injunction is
sought.
14. Shri Muley, the learned counsel for the respondents, has
invited my attention to the following portion in para 7 of the said
decision, which is reproduced below :
"7. ... Section 41(b) denies to the Court the jurisdiction
to grant an injunction restraining any person from
instituting or prosecuting any proceeding in a Court which is
not subordinate to the Court from which the injunction is
sought. In other words, the Court can still grant an
injunction restraining a person from instituting or
prosecuting any proceeding in a Court which is subordinate
to the Court from which the injunction is sought. As a
necessary corollary, it would follow that the Court is
precluded from granting an injunction restraining any
person from instituting or prosecuting any proceeding in a
Court of co-ordinate or superior jurisdiction. This change
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in language deliberately adopted by the Legislature after
taking note of judicial vacillation has to be given full effect."
It is urged on the basis of the above observations that the plaintiffs are
not entitled to an order of injunction in terms of Section 41(b) of the
SR Act, 1963 and granting of such injunction would amount to
restraining a person from instituting or prosecuting the execution
proceedings in a Court of a co-ordinate jurisdiction.
15. No doubt that under Section 41(b) of the SR Act of 1963, an
order of injunction cannot be granted to restrain any person from
instituting or prosecuting any proceeding in a Court not subordinate
to that from which the injunction is sought. The principles laid down
by the Apex Court in the aforesaid decision cannot be disputed. It
was a case where the Division Bench of this Court had allowed the
appeal and issued interim injunction restraining the Corporation from
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presenting a winding-up petition. The question was whether the
Corporation can be restrained by an injunction of a Court from
presenting a winding-up petition against the Bank. The High Court
had taken a view that it has such powers in view of the provisions
contained in Order XXXIX of the Civil Procedure Code read with
Section 37 of the SR Act of 1963, or in exercise of the inherent
powers of the Court under Section 151 of the Civil Procedure Code.
The Apex Court set aside the decision of the High Court and allowed
the appeal. The Court, in the said judgment, was, however, not
dealing with the question of granting an injunction in a suit based
upon title to restrain the defendants from enforcing a decree passed
under sub-section (1) of Section 6 of the SR Act of 1963 for
restoration of possession. The ratio laid down in the said decision
cannot, therefore, be applied to the facts and circumstances of the
present case.
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16. The decision of this Court in the case of Mari Doddatamma
Markundi, cited supra, has been followed by the Gujarat High Court
(Shri M.B. Shah, J., as he then was) in the case of Mohammad
Hussain Suleman Shaikh and another v. Batukbhai Valjibhai and
others, reported in AIR 1984 Gujarat 66, with approval. Para 4 of the
said decision, which considered the decision of this Court, being
relevant, is reproduced below :
"4. In the case of Mari Doddatamma Markundi v.
Santaya Ram Krishna Pai Kolle, AIR 1922 Bom 216, the
Court has held that the order or decree which is passed
under S.9 of the Specific Relief Act (now S.6 of the Specific
Relief Act, 1963) is not open to appeal or to review at the
instance of the defeated party and the section expressly
provides that nothing contained therein shall bar any person
from going to establish his title to such property and to
recover possession thereof. There the appellant had brought
Suit No.293/17 in the Court of the Subordinate Judge for
restoration of possession under S.9 of the Specific Relief Act
and a decree was passed in his favour. But before he could
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execute the said decree, the respondent of that case
instituted a suit to establish his title to the lands in dispute
and to obtain an injunction to restrain the appellant from
dispossessing him by enforcing the decree passed in Suit
No.293/17. Rejecting the contention of the appellant the
Court held as under :--
"It was therefore competent to the respondent to
institute this suit to establish his title to the lands in
dispute; and being in possession thereof, the only
further relief which he could seek was an injunction
to restrain the appellant from disturbing his
possession. The terms of the decree passed by the
lower Court are, in my opinion, unobjectionable."
The Court further held that the sole object and purpose of
the suit would be to obtain a reversal of the judgment and
decree which is passed in Suit No.293/17 treating it as of a
summary nature."
It has been held in the said decision that the sole object and purpose
of the suit would be to obtain a reversal of a judgment and decree,
which is passed in Suit No.293/17, treating it as of a summary nature.
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17. In para 6 of the said decision, it is held as under :
"6. In view of this settled legal position it is clear that
the plaintiffs' suit for declaration of their title to the suit
property and consequential relief of injunction is
maintainable. However, while granting interim injunction
the Court is required to consider all the relevant facts i.e.
prima face case, balance of convenience and irreparable
injury to either party. The learned Judge has not decided the
appellants' case on merits. He has held that the appellants
were not having prima facie case because the decree was
passed in summary suit. He further held that there cannot be
any balance of convenience in favour of the appellants
because the decree was passed in favour of respondents Nos.
1 and 2. The learned Judge has not decided the prima facie
case on the documents which were produced before him and
also the interim injunction application on its merits. The
question whether on facts the appellants were entitled to an
interim injunction of the kind prayed for is entirely a
different matter. The Court would be required to consider by
applying its mind whether the appellants have a prima facie
case and whether balance of convenience is in their favour
and also may consider the judgment and decree passed
against the appellants as a most relevant piece of document,
but at the same time the Court is required to decide it on
merits after considering the documentary evidence produced
and affidavits produced by the parties. As the trial Court
has not applied its mind to the facts of the case, it would be
necessary to send back this case to the trial Court for
determining it on merits."
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It is thus apparent that merely because there is a decree passed under
sub-section (1) of Section 6 of the SR Act of 1963, that would not
prevent the Court from passing an order of temporary injunction
restraining the defendants from executing the decree in a suit based
upon the title. Irrespective of the fact that there is a decree passed
under sub-section (1) of Section 6 of the SR Act of 1963 for
restoration of possession, the Court is required to consider all the
relevant facts, viz. (i) prima facie case, (ii) balance of convenience;
and (iii) irreparable loss. While considering the cumulative effect of
the facts on record, the Court may consider the judgment and decree
passed against the petitioners as a relevant piece of document, but at
the same time, the Court is required to decide it on merits after
considering the documentary evidence produced and the affidavits
filed.
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18. The Division Bench of this Court in the case of Syndicate
Bank v. East India Hotels Ltd., reported in 2005(1) Bom.C.R. 514, the
earlier decision of this Court in the case of Mari Doddatamma
Markundi's case, cited supra, has been followed. Para 46 of the said
decision is relevant and it is reproduced below :
"46. It was contended that the right of the defendant to
have possession of the premises was recognised by the
decree passed by this Court in the suit filed under section 6
of the Specific Relief Act and, therefore, the present suit
which in effect seeks to recover legal possession of the suit
premises from the defendant can be filed only in the Court of
Small Causes. There is no merit in this contention. As
stated earlier, in section 6(1) suit the decree is passed in a,
summary manner without going into the legal rights of the
parties and as a matter of fact that was not gone into. That
the decree passed in summary manner under section 6(1)
can be defeated by establishing the legal right of possession
based on title over the said property by filing the suit under
section 6(4) seems to be the settled legal position. If any
decision is needed on this point, we may refer to the decision
of this Court in the case of M.D. Markundi (supra).
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Therefore, the entitlement of the defendant under the decree
passed in section 6(1) does not necessarily mean that the
defendant has legal right to the property. On the other hand
the plaintiff being owner in possession of the property and
entitled to remain in possession can maintain the suit under
section 6(4) of the Specific Relief Act and seek declaration of
his title and injunction for restraining the defendant from
executing his decree. Such suit obviously is not covered by
section 41 of the Presidency Small Cause Courts Act triable
by the Small Causes Court. Rather that suit is maintainable
in this Court." ig
It has thus been held that in a suit under sub-section (1) of Section 6
of the SR Act of 1963, the decree is passed in a summary manner
without going into the legal rights of the parties and as a matter of
fact that was not gone into. It has further been held that the decree
passed in a summary manner under sub-section (1) of Section 6 can
be defeated by establishing the legal right of possession based on title
over the suit property by filing the suit under sub-section (4) of
Section 6 of the said Act seems to be the settled legal position. It has
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been held that the plaintiff being the owner and in possession of the
property, is entitled to remain in possession and can maintain a suit
under sub-section (4) of Section 6 of the said Act seeking declaration
of his title and injunction for restraining the defendant from executing
his decree.
19. In the decision the case of Sanjay Kumar Pandey and others
v. Gulbahar Sheikh and others, reported in (2004) 4 SCC 664, the
Apex Court was dealing with a suit under Section 6 of the SR Act of
1963, wherein a decree was passed. In a revision filed under
Section 115 of the Civil Procedure Code, the High Court set aside the
decree passed by the Trial Court and dismissed the suit; against
which, the matter was before the Apex Court. In the light of these
facts, the Apex Court has held in para 4 of its decision as under :
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"4. A suit under Section 6 of the Act is often called a
summary suit inasmuch as the enquiry in the suit under
Section 6 is confined to finding out the possession and
dispossession within a period of six months from the date of
the institution of the suit ignoring the question of title.
Sub-section (3) of Section 6 provides that no appeal shall lie
from any order or decree passed in any suit instituted under
this section. No review of any such order or decree is
permitted. The remedy of a person unsuccessful in a suit
under Section 6 of the Act is to file a regular suit
establishing his title to the suit property and in the event of
his succeeding he will be entitled to recover possession of
the property notwithstanding the adverse decision under
Section 6 of the Act. Thus, as against a decision under
Section 6 of the Act, the remedy of unsuccessful party is to
file a suit based on title. The remedy of filing a revision is
available but that is only by way of an exception; for the
High Court would not interfere with a decree or order under
Section 6 of the Act except on a case for interference being
made out within the well-settled parameters of the exercise
of revisional jurisdiction under Section 115 of the Code."
Thus, it has been held that the remedy of a person unsuccessful in the
suit under Section 6 of the SR Act of 1963 is to file a regular suit
establishing his title to the suit property and in the event of his
succeeding, he will be entitled to recover the possession of the
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property, notwithstanding the adverse decision under Section 6 of the
said Act. It was not a case where an order of injunction was passed
or refused restraining the defendants either from disturbing the
possession of the plaintiffs over the suit property, or from executing
the decree passed under Section 6 of the said Act in a suit claiming
title to the suit property. The aforesaid observations are made in a
case arising out of a suit filed under sub-section (1) of Section 6 of
the said Act, whereas, in the present case, it is a suit based on title to
the suit property. The ratio of the said decision cannot be invoked in
the facts of this case.
20. Keeping in view the law laid down in the aforesaid decisions,
it has to be held as under :
(i) The suit under sub-section (1) of the SR Act of 1963
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is of a summary nature claiming the restoration of possession
based upon previous possession and subsequent
dispossession without consent and otherwise than in due
course of law and ignoring the question of title.
(ii) A decree passed in a summary manner under
sub-section (1) of Section 6 of the SR Act of 1963 can be
defeated by establish the legal right of possession based upon
title over the property by filing a suit under sub-section (4)
of Section 6 of the said Act, and the plaintiff, upon
establishing a prima facie case that he is the owner and in
possession of the property, shall be entitled to protect his
possession in a suit filed under sub-section (4) of Section 6
by claiming an injunction restraining the defendant from
executing such a decree passed under sub-section (1) of
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Section 6 of the said Act.
(iii) The sole object and purpose of the suit under
sub-section (4) of Section 6 would be to obtain a reversal of
the judgment and decree passed in a summary suit under
sub-section (1) of Section 6 of the said Act, and the
provision of Section 41(b) of the said Act would not be
applicable even if a Court from which an injunction is sought
is a Court of co-ordinate jurisdiction to one which has passed
a decree under sub-section (1) of Section 6 of the said Act.
(iv) The Court empowered to grant a decree for
possession of the suit property and a permanent injunction
restraining the defendant from interfering with his
possession over the suit property on the basis of title, is
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competent to grant an order of temporary injunction
restraining the defendant from interfering with the
possession of the plaintiff over the suit property upon
establishing prima facie case, balance of convenience, and
irreparable loss.
(v) If on the date of filing of the suit based upon title,
the plaintiff claims to be in possession of the suit, and an
order of permanent injunction restraining the defendant from
disturbing his possession is claimed, then there would be no
question of claiming a decree for possession of the suit, but
an order of temporary injunction can be claimed in such a
suit to restrain the defendant from interfering with his
possession on the basis of a decree passed under
sub-section (1) of Section 6 of the SR Act of 1963.
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21. The Appellate Court has held that the property was
purchased by the petitioners/plaintiffs in violation of the order of
status quo, which was operating in Regular Civil Suit No.2 of 1996.
This was not the finding recorded by the Trial Court. With the
assistance of the learned counsels for the parties, I have gone through
the documents placed on record. Exhibit 42 was the application for
grant of time to file reply filed by the original defendant No.3
Bhushankumar. The Court granted time subject to maintenance of
status quo as on that date till filing of the reply on Exhibit 28. Again
on 29-9-1997, the application was filed for grant of time to file reply
at Exhibit 43, filed by the defendant No.2, and the Court passed an
order granting time subject to maintenance of status quo as on that
date till filing of the reply on Exhibit 28. The reply was filed by the
defendant No.2 on 30-12-1997, and thereafter there is no order passed
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by the Trial Court either granting fresh order of status quo. The
property was purchased by the petitioners/plaintiffs by a registered
sale-deed dated 29-5-1998, and on that date, the order of status quo
was not operating. It stood vacated on the date of filing of reply on
30-12-1997 as per the order dated 29-9-1997 passed by the Trial
Court. The defendants did not bother either to get the said order of
status quo extended from 30-12-1997 till the date of executing the
registered sale-deed on 29-5-1998. In view of this, the Appellate
Court has committed an error of fact apparent on the face of the
record in holding that the petitioners/plaintiffs purchased the property
in violation of the order of status quo.
22. For the reasons stated above, the judgments and orders
passed by the Courts below cannot be sustained. The same will have
to be quashed and set aside and the matter will have to be remitted
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back to the Trial Court to decide the application at Exhibit 5 for grant
of temporary injunction afresh by applying the well-settled principles
of law, viz. (i) prima facie case, (ii) balance of convenience, and
(iii) irreparable loss.
23. In the result, the petition is allowed. The judgment and order
dated 7-1-2012 passed by the learned Civil Judge, Junior Division,
Tumsar, below Exhibit 5 in Regular Civil Suit No.43 of 2011 along
with the judgment and order dated 9-2-2012 passed by the learned
District Judge-1, Bhandara, in Misc. Civil Appeal No.2 of 2012, are
hereby quashed and set aside. The matter is remitted back to the Trial
Court to decide the application at Exhibit 5 afresh, keeping in view
the observations made by this Court.
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24. Rule is made absolute in above terms. No order as to costs.
JUDGE.
pdl
