Davender Lal Mehta vs Sh. Dharmender Mehta & Anr.
2009 Latest Caselaw 2027 Del

*      HIGH COURT OF DELHI : NEW DELHI

    RFA App. No.789/2006 & CM No.17561/2008

     %           Judgment reserved on: 30th April, 2009

                 Judgment delivered on:14th May, 2009

1. Davender Lal Mehta,
   S/o. Late Shri Satyapal Mehta
   R/o. A-100, Anand Vihar
   New Delhi                            ....Appellant
                     Through: Mr. G.L. Rawal, Sr. Adv.
                              with Mr. Ankur Sethi,
                              Adv.

                   Versus

1. Sh. Dharmender Mehta,
   S/o. Shri Davender Lal Mehta
   R/o. D-135, Anand Vihar
   New Delhi

2. Smt. Saroj Mehta,
   w/o. Shri Davender Lal Mehta
   R/o. D-135, Anand Vihar,
   New Delhi
   (Deleted vide order dt. 27/05/2008)       Respondents.

                          Through: Mr. H.S. Arora, Adv. for
                                   respondent No.1.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        Yes

2. To be referred to Reporter or not?                     Yes




RFA No.789-06 & CM No.17561/2008                 Page 1 of 17
 3. Whether the judgment should be reported
   in the Digest?                                            Yes

      V.B.Gupta, J.

The appellant has filed this appeal against decree

and judgment dated 25th September, 2006, passed by

Sh. M.K. Gupta, Additional District Judge, Delhi, who

vide impugned judgment, dismissed the suit of the

appellant.

2. The brief facts of this case are that appellant is

the father of respondent No.1 and husband of

respondent No.2. He filed the present suit for

permanent injunction on 24th September, 1999, on the

allegations that, he is owner in possession of property

No. D-135, Anand Vihar, New Delhi and this property

has been acquired by him from his previous owner.

Respondent No.2 has been cruel towards him.

Sometimes on account of torture committed upon him,

he goes and sleeps in the house of his other son, Sh.

Bhupinder Mehta at A-144, Anand Vihar, New Delhi,

though appellant permanently resides in the property

in question and all his goods and belongings are lying

there.

3. It has been further alleged that respondent No.1

is not permitting the appellant to enter the house,

though the appellant is owner in possession of the

property. Respondent No.1 is living in this property

illegally and without any authority of law and appellant

is thus entitled to damages for use and occupation of

the property by respondent No.1.

4. Appellant thus sought a decree for permanent

injunction in his favour, and against respondent No.1,

restraining him from entering upon, living or otherwise

keeping any of his goods in property in question. It

was also prayed that respondents be restrained from

causing any interference in the peaceful enjoyment of

the property by the appellant and his family members

and respondents be restrained from causing any

hindrance/interference in the egress and ingress of

appellant and his other son and his family, from

entering upon the said property and from removing or

bringing in any goods and belongings of the appellant

and his other son.

5. In the written statement filed by the respondents,

it was stated that property in question was purchased

from the sale of golden jewellery belonging to

respondent No.2 and out of her savings. The appellant

under the garb of the present suit is claiming the

recoveries of the goods which are not permissible

under the law. As a matter of fact, the appellant is

residing with his elder son, Bhupender at A-144, Anand

Vihar, Delhi, while respondent No.2 is residing with

respondent No.1 in the property in question. It has

been denied by the respondents that appellant is in

possession of the suit property. Respondent No.1 is

living in the suit property in order to look after his

aged and willing mother namely respondent No.2. The

appellant has no right over the suit property as the

same belongs to respondent No.2.

6. The trial court framed following issues;

"1. Whether the suit is not maintainable as mentioned in Preliminary Objection No.1 of the written statement?(OPD)

2. Whether the suit is not property valued for the purpose of court fees and jurisdiction? OPD

3. Whether the suit is barred U/s 41(h) of Specific Relief Act? OPD

4. Whether the property in question was purchased from the sale proceedings of bulk of Golden Ornaments belonging to defendant no.2? If so to what effect? (OPD)

5. Whether Plaintiff is entitled to decree of permanent injunction as prayed?

6. Relief."

7. After framing of issues, appellant led evidence.

Thereafter, an application under Order 23 Rule 3 CPC

dated 27th October, 2005 for compromise was filed and

matter between appellant and respondent No.2 was

compromised.

8. Trial court thereafter, held that though the case

has reached at the stage of recording of the evidence

of respondent but it heard the counsel for the parties

at length on the point of maintainability of the suit,

considering the prayers made by the appellant in the

suit.

9. As regard the first prayer of the appellant, it held

that the present suit is only for permanent injunction

on which court fee has been paid accordingly.

Appellant and the contesting respondent, are the

father and son and considering the status of the

parties, title is not going to be decided in the present

suit. It further held, that the appellant under the guise

of injunction is seeking possession from respondent

No.1 and thus the same relief cannot be granted to the

appellant and proper remedy for appellant is to file a

suit for possession against respondent.

10. The court further held that as another equally

efficacious remedy available to the appellant is to file a

suit for possession, the suit for permanent injunction is

not maintainable and consequently, it dismissed the

suit of the appellant.

11. It has been contended by learned counsel for the

appellant that no doubt under Order 14 Code of Civil

Procedure, it is open for the Court to frame

preliminary issue but only those issues which pertains

to question of law. The trial court thus mislead itself

while dismissing the present suit on the premise of

impugned order, without appreciating that there was

no preliminary issue between the parties.

12. Learned counsel further contended that the suit

cannot be decided suo moto at the instance of the

court, much less when the issues relate to mixed

question of law and fact.

13. Another contention is that the trial court failed to

appreciate the pleadings set out in the plaint and the

stand taken and that too specifically set out in details

that appellant has been and continued to be in actual

and physical possession of the subject property and so

highlighted from the record of the Local Commissioner

and otherwise, there was no occasion for appellant to

file suit for possession.

14. Learned counsel for the appellant also contended

that appellant has already moved an application for

amendment and appellant wants to amend his

pleadings and convert his present suit, to a suit for

recovery of the possession.

15. On the other hand, it has been argued by learned

counsel for respondent that no ambiguity or infirmity

can be found with the judgment of the trial court, since

appellant, admittedly, filed a suit for permanent

injunction against respondent No.1, though as per

averments made in the plaint, respondent No.1 is in

possession of the suit property. When respondent No.1

is in possession of the suit property, the suit for

permanent injunction simpliciter is not maintainable.

16. As far as amendment of the plaint is concerned, it

is contended by learned counsel for the respondent

that when appellant had got equally efficacious remedy

available under the law, he cannot be permitted to

amend his suit for permanent injunction to a suit for

recovery of possession and moreover, proviso to Order

6 Rule 17 CPC as amended in 2002, prohibits allowing

of amendment of pleadings, after commencement of

the trial.

17. As regards framing of a preliminary issue is

concerned, it is admitted by the appellant that the

defendant no.1 is in occupation of the suit premises

and when a fact is admitted by a party to the suit, the

same need not be proved or evidence be adduced for

the same fact, as per Section 58 of the Indian Evidence

Act, 1872. This section reads as under:

"Section 58 - Facts admitted need not be proved:-

No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the

hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admission."

18. Even if some evidence has been adduced, still the

court can decide the issue as preliminary issue, as to

maintainability of suit. See Madras High Court in S.G.

Badrinath v. V. Jagannathan and another, AIR

2004 Mad 161, where it was held that;

"Issue at jurisdiction of a Court could not be said to be purely an issue of law, some cases issue involved mixed questions of fact and law. Merely because some evidence was required to be taken an issue could not be refused to be tried as preliminary issue such as an issue regarding jurisdiction or maintainability of suit or Court-fee. However, Courts could try issue as preliminary issue only if the facts are independent and self- contained and do not have any

bearing on the facts which may arise for consideration of the suit."

19. Thus, the trial court was justified in deciding as to

whether a suit for injunction or possession is

maintainable or not.

20. Now the question arises as to whether in a suit

for injunction, possession can be claimed or not.

Supreme Court in Anathula Sudhakar v. P.Buchi

Reddy (dead) by LR's and others, AIR 2008 SC

2033 held;

"To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful

possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar v. Alagammal (AIR 2005 SC 4004)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated

questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

21. Section 41 of Specific Relief Act, 1963, lays down

the condition when an injunction can be refused. The

relevant provision of this Section for the purpose of the

present case is S.41 (h) which reads as under;

"S. 41. Injunction when refused.- An injunction cannot be granted-

(a) to (g) xxx xxx xxx xxx xxx

(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(i) & (j) xxx xxx xxx xxx xxx"

22. Admittedly, respondent No.1 is in possession as

per appellant's own case. Therefore, proper remedy

for appellant was to file suit for possession with

injunction. The present suit simpliciter for injunction,

is not maintainable and as such, I do not find any

infirmity in the impugned judgment of the trial court

and the present appeal is not maintainable and is liable

to be dismissed.

+CM No.17561/2008 *

23. By way of present application, the appellant seeks

to amend his plaint. He wants to convert the present

suit of injunction into a suit for recovery of possession,

with consequential relief of injunction.

24. The present suit was filed on 23rd September,

1999. During pendency of the suit, appellant filed an

application under Order 39 Rules 1 & 2 CPC. On 19th

July, 2002, while disposing of the application, it was

observed by B.N. Chaturvedi, J. that;

"Since the defendant No.1 has, admittedly, been in occupation of the suit premises, even if he is an unauthorized occupant, the plaintiff cannot seek to recover possession from him simply by seeking a permanent restraint order against him from entering upon the suit property or living therein or keeping any of his goods there. The proper remedy would be to bring a suit for recovery of possession from him."

25. In spite of this finding given by this Court, the

appellant continued with his suit for permanent

injunction. Trial court ultimately dismissed the suit of

the appellant on 25th September, 2006. Thereafter

appellant filed the present appeal and now in the year

2008 only, during the pendency of the present appeal,

appellant filed the present application.

26. As per averments made in the suit for injunction,

cause of action arose on or about 30th August, 1999.

The present application for amendment has been filed

after more than nine years, after filing of the suit for

injunction. In spite of order dated 19th July, 2002,

passed by this Court making observation "that the

proper remedy would be to bring the suit for recovery

of possession", the appellant, even thereafter did not

amend his plaint.

27. Under these circumstances, I hold that present

application for amendment of the plaint is hopelessly

time barred and there is considerable delay and

latches in filing of this application. Accordingly,

application for amendment is also not maintainable.

28. In view of the above discussion, I hold that the

present appeal as well as application for amendment

are not maintainable and the same are hereby

dismissed with costs of Rs.20,000/-.

29. Costs be paid by the appellant to respondent

No.1, within one month from today, failing which the

trial court shall recover the same, in accordance with

law.

30. Trial court record be sent back.

14th May, 2009                         V.B. GUPTA,
J.
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