Kerala High Court
Raseena vs Sameer on 14 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
RP NO. 458 OF 2022
AGAINST THE JUDGMENT DATED 25.10.2021 IN RSA 644/2021 OF
HIGH COURT OF KERALA
REVIEW PETITIONERS/APPELLANTS 1 TO 4 & 6:
1 RASEENA
AGED 49 YEARS
D/O. KUTTYKAMMUVENTEPURAKKALLMBICHIBAVA,
RAYIRIMANGALAMAMSOM, TANURNAGARAMDESOM, TIRUR,
MALAPPURAM DISTRICT, PIN CODE-676302.
2 RAJEESH
AGED 34 YEARS
S/O. RASEENA, KUTTYKAMMUVENTEPURAKKAL,
RAYIRIMANGALAMAMSOM, TANURNAGARAMDESOM, TIRUR,
MALAPPURAM, PIN CODE - 676302.
3 RAMSEENA
AGED 33 YEARS
D/O. RASEENA, KUTTYKAMMUVENTEPURAKKAL,
RAYIRIMANGALAMAMSOM, TANURNAGARAMDESOM, TIRUR,
MALAPPURAM DISTRICT, PIN CODE-676302.
4 RAMEES
AGED 31 YEARS
S/O. RASEENA, KUTTYKAMMUVENTEPURAKKAL,
RAYIRIMANGALAMAMSOM, TANURNAGARAMDESOM, TIRUR,
MALAPPURAM DISTRICT, PIN CODE-676302.
5 KUPPENTEPURAKKALUSMAN
H/O.RASEENA, RAYIRIMANGALAMAMSOM,
TANURNAGARAMDESOM, TIRUR, MALAPPURAM DISTRICT-
676302.
BY ADVS.
P.VISWANATHAN (SR.)
SHIBU JOSEPH
AJITH VISWANATHAN
SAYED MANSOOR BAFAKHY THANGAL
JEFFIN JOHN
M.SRIRAM
R.P.No.458/2022
in
R.S.A.No.644/2021 2
RESPONDENTS/RESPONDENTS & 5TH APPELLANT:
1 SAMEER
AGED 48 YEARS
S/O. THIRUTHIYILMUHAMMED, THIRUTHIYIL HOUSE,
OMACHAPUZHAAMSOM-DESOM, THROUGH HIS POWER OF
ATTORNEY HOLDER T. P. ABDUL NAZER, S/O.
KUNHIMUHAMMED, THEKKEPEEDIYEKKAL, OTTUMBURAM,
RAYIRIMANGALAMAMSOM-DESOM, TIRUR, MALAPPURAM
DISTRICT, PIN CODE-676 302.
2 HAMZABAVA
AGED 58 YEARS
S/O. KUTTYKAMMUVENTEPURAKKALLMBICHIBAVA, NEAR
MOONNUPALLI, EDAKKADAPURAM, RAYIRIMANGALAMAMSOM,
TANURNAGARAMDESOM, TIRUR, MALAPPURAM DISTRICT,
PIN CODE-676 302.
3 YOOSUF
AGED 44 YEARS
S/O. KUTTYKAMMUVENTEPURAKKAL, IMBICHIBAVA,
PARIYAPURAMAMSOM-DESOM, TIRUR, MALAPPURAM
DISTRICT, PIN CODE - 676 302.
4 FASILA
AGED 31 YEARS
W/O. YOOSUF, PARIYAPURAMAMSOM-DESOM, TIRUR,
MALAPPURAMDISTRICT, PIN CODE-676 302.
5 SULAIKHA
AGED 54 YEARS
D/O. IMBICHI BAVA,W/O. PITHAPPERIABOOBACKER,
MAPPATTIL HOUSE, PARAPPANANGADIAMSOM-DESOM,
MALAPPURAM
DISTRICT, PIN CODE-676 302.
6 SAINABA
AGED 34 YEARS
D/O.IMBICHIBAVA, W/O. ANDIKADAVATHLATHEEF,
PARAPPANANGADIAMSOM-DESOM, MALAPPURAM DISTRICT,
PIN CODE-676319.
R.P.No.458/2022
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R.S.A.No.644/2021 3
7 SAFIYA
AGED 35 YEARS
D/O. IMBICHIBAVA, W/O. PATTATHMUHAMMEDKUTTY,
PACHATTITIAMSOM-DESOM, TIRUR, MALAPPURAM
DISTRICT, PIN CODE-676 302.
8 RAMLA
AGED 49 YEARS
D/O. IMBICHIBAVA, W/O.KUPPANTEPURAKKALUSMAN,
MANGALAMAMSOM, KOOTAYI P. O., TIRUR, MALAPPURAM
DISTRICT, PIN - 676562.
9 KATHEEJA
AGED 59 YEARS
D/O. IMBICHIBAVA, AIDUVINTEPURAKKALABOOBACKER,
MANGALAMAMSOM, KOOTAYI P. O., TIRUR, MALAPPURAM
DISTRICT, PIN CODE-676562.
10 RAFEES
AGED 29 YEARS
S/O. RASEENA, KUTTYKAMMUVENTEPURAKKAL,
RAYIRIMANGALAMAMSOM, TANURNAGARAMDESOM, TIRUR,
MALAPPURAM
DISTRICT, PIN CODE-676 302.
BY ADVS.
BABU KARUKAPADATH
M.A.VAHEEDA BABU
P.U.VINOD KUMAR
MOHAMED HISHAM P
P.LAKSHMI
ARYA RAGHUNATH
T.M.MUHAMMED MUSTHAQ
KARUKAPADATH WAZIM BABU
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
02.06.2022, THE COURT ON 14.06.2022 DELIVERED THE
FOLLOWING:
R.P.No.458/2022
in
R.S.A.No.644/2021 4
M.R.ANITHA, J
**************
R.P.No.458 of 2022
in
R.S.A.No.644 of 2021
----------------------------------------
Dated this the 14th day of June, 2022
ORDER
This review petition has been filed against the judgment in
R.S.A.No.644 of 2021 dated 25.10.2021 dismissing the R.S.A
filed by the review petitioners/appellants 1 to 6/defendants 1 to
6. Since the 5th appellant is abroad he has been made as 10th
respondent in the review petition.
2. R.S.A has been filed against the judgment and decree
in A.S.No.51/2014 on the file of Subordinate Judge's Court, Tirur
which arise out of judgment and decree in O.S.No.256/2011
dated 11.04.2011 on the file of Munsiff's Court, Parappanangadi.
The parties would hereinafter be referred as per their rank in
O.S.No.256/2011. O.S.No.256/2011 has been filed by the
R.P.No.458/2022
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plaintiff against the defendants 1 to 6, 7, 8, 9 and 10 seeking for
eviction of defendants 1 to 6 from the plaint schedule property.
The case of the plaintiff is that he purchased the plaint schedule
property from defendants 9 and 10 as per document
Nos.1684/2010 and 1683/2010 of Thanoor Sub Registry. But, at
the time of purchase, defendants 9 and 10 as well as defendants
1 to 6 were residing in the house in item No.2 of plaint schedule
property. Defendants 9 and 10 requested the plaintiff to reside in
the house till the 8th defendant comes from abroad. Plaintiff
agreed for the same and later 8 th defendant came and defendants
8 and 10 shifted their residence on 31.08.10. But defendant
Nos.1 to 6 (appellants in R.S.A) continued to reside in the plaint
schedule property. 1st defendant is none other than the daughter
of 10th defendant and defendants 2 to 5 are her children and 6 th
defendant is her husband. 8th defendant is the husband of the 9th
defendant. Plaintiff is the brother of the 9 th defendant. It is
further alleged that defendants 1 to 5 filed O.S.No.145/2011
against the 10th defendant for injunction against forceful eviction
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and 10th defendant filed O.S.No.41/2010 against the 1st
defendant for injunction from forcefully dispossessing him. In
O.S.No.41/2010 decree was passed in favour of the 10 th
defendant on 14.10.2011. The specific case of the plaintiff is that
at the time of purchase of the plaint schedule property 10 th
defendant did not disclose the litigation pending between the
parties. It is also alleged that the suits were filed in collusion
between defendants 1 to 6 and 10. According to the plaintiff, the
plaint schedule property and the house therein are in his
ownership and possession and defendants 1 to 6 have no right in
the property and the house situated therein, and they are liable
to pay Rs.5,000/- per month towards compensation and also
prayed for a mandatory injunction against defendants 1 to 6
directing them to vacate the house and for a consequential
permanent prohibitory injunction. Defendants 8 to 10 remained
ex parte.
3. Defendants 1 to 6 filed written statement contending
that plaintiff and defendants 9 and 10 colluded together in filing
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the suit. Plaintiff has no ownership and possession over the plaint
schedule property. It is, during the pendency of O.S.No.41/2010,
the documents were created. So, the transfer is hit by lis
pendens. At that time, plaintiffs 1 to 6 were residing in the
house. The suit was filed at the instance of the 10 th defendant.
The documents in favour of the plaintiff were not acted upon. In
O.S.No.41/2010, 10th defendant contended that he was in
possession of the plaint schedule property including the
residential house and defendants 1 to 6 are not residing in the
house. The 1st defendant being the daughter of 10th defendant
was residing in the house in the capacity as his daughter before
and after marriage and she is residing in the house with her
children. She is not residing in the house with the consent of the
plaintiff. The plaintiff has not obtained the possession as per the
document relied on by him. In O.S.No.145/2011 filed by
defendants 1 to 5 against the 10 th defendant, his contention was
that the property is not in his possession but was already
transferred.
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4. Power of attorney holder of plaintiff was examined as
PW1 and Exts.A1 to A12 were marked from the plaintiff's side.
DW1 was examined from the side of defendants 1 to 6 and
Ext.B1 to B5 were marked on their side.
5. The trial court on evaluating the facts and
circumstances and evidence adduced found that plaintiff proved
ownership and possession of the properties and defendants 8 to
10 already vacated the house on 31.08.2010. It is also found
that the occupation of defendants 1 to 6 in the house is only a
permissive occupation and it is only an oral permission given by
the plaintiff and that they have not acquired any interest in the
house and the property. Hence the learned Munsiff directed
defendants 1 to 6 to vacate from the plaint schedule property
and to give vacant possession of the house to the plaintiff and
they are also restrained by a perpetual injunction from interfering
with the possession of the plaint schedule property. The matter
was taken up before the appellate court.
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6. A.S.No.51/2014 was filed by defendants 1 to 6. The
first appellate court also found that defendants 1 to 6 are
residing in the house as children and grand children of the
assignor and it is also found that on a thorough scanning of the
pleadings and evidence there is nothing on record to show that
defendants 1 to 6 have any case of having any title over the
property or having any valid possession under any colour of title.
Apart from living in the house as daughter of 10 th defendant they
have no independent right over the property. It is further found
that they have lived in the house gratuitously as relatives of the
assignor. Hence it has been found that the case of the plaintiff is
that he permitted the defendants to continue to reside in the
house after the assignment, is believable. It is also found that
defendants 1 to 6 have no case that they occupied the house
hostile to the interest of the 10th defendant or the plaintiff. They
also did not claim any particular right over the property and their
residence in the house is nothing but as relatives of the assignor.
Hence it was ultimately found that the possession of defendants
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1 to 6 is much less than a licensee and it cannot be protected
and hence the decree for mandatory injunction granted by the
trial court was affirmed.
7. At the time of hearing of R.S.A, it has been contended
by the learned counsel for the appellants that in the absence of
any claim of entrustment by way of licence, the suit instituted by
the plaintiff for mandatory injunction is not maintainable. It is
also contended that in the absence of a suit for title for recovery
of possession both the courts below were not justified in granting
decree of mandatory injunction. On the other hand, the counsel
for the plaintiff/1st respondent contended that the defendants
were allowed to occupy the house gratuitously and they would
not acquire any right or interest in the property and their
occupation is permissive without any right or interest in the
property and hence suit for recovery of possession is not at all
necessary. So, this Court found that the defendants are neither
trespassers nor tenants of the plaint schedule property and
cannot claim any right over it and hence it was concluded that
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they are permissive occupants and such residence in the plaint
schedule property is gratuitous.
8. So the only question for consideration is, whether any
interference is called for in this review petition
9. The scope of review is no more res integra. In
Kamlesh Verma v. Mayawati and Others (2013) 8 SCC 320,
it was held as follows:
"14. Review of the earlier order cannot be done
unless the court is satisfied that material error,
manifest on the face of the order, undermines its
soundness or results in miscarriage of justice."
Paragraphs 17 to 19 is relavant in this context to be
extracted which reads thus:
"17. In a review petition, it is not open to the Court
to reappreciate the evidence and reach a different
conclusion, even if that is possible. Conclusion
arrived at on appreciation of evidence cannot be
assailed in a review petition unless it is shown that
there is an error apparent on the face of the record
or for some reason akin thereto.
18. Review is not rehearing of an original matter.
The power of review cannot be confused with
appellate power which enables a superior court to
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correct all errors committed by a subordinate
court.........
19. Review proceedings are not by way of an appeal
and have to be strictly confined to the scope and
ambit of Order 47 Rule 1 CPC. In review jurisdiction,
mere disagreement with the view of the judgment
cannot be the ground for invoking the
same............."
10. In Smt.Meera Bhanga v. Smt.Nirmala Kumari
Choudhary : (1995) 1 SCC 170 : AIR 1995 SC 455 : 1995
KHC 737 a two Judge Bench of Apex Court held that review
proceedings are not by way of an appeal and have to be strictly
confined to the scope and ambit of Order XLVII Rule 1 of Code of
Civil Procedure.
11. In Chandra Kanta v. Sheik Habib : 1975 (1) SCC
674 : AIR 1975 SC 1500 : 1975 KHC 905 it has been held
that a mere repetition through different counsel of old and
overruled arguments, a second trip is eventually a covered
ground or minor mistakes of inconsequential import are obviously
insufficient in order to maintain an order of review of dismissal.
R.P.No.458/2022
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12. In M/s. Thungabhadra Industries Ltd. v. The
Government of Andhra Pradesh represented by the Deputy
Commissioner of Commercial Taxes, [AIR 1964 (SC
1372)], it was observed as follows:
"11. ....... A review is by no means an appeal in
disguise whereby an erroneous decision is reheard
and corrected, but lies only for patent error. We do
not consider that this furnishes a suitable occasion
for dealing with this difference exhaustively or in any
great detail, but it would suffice for us to say that
where without any elaborate argument one could
point to the error and say here is a substantial point
of law which stares one in the face, and there could
reasonably be no two opinions entertained about it, a
clear case of error apparent on the face of the record
would be made out."
13. Same view was taken in Parsion Devi and others v.
Sumitri Devi and others [((1997) 8 SCCC 715] as under :
''9. Under Order 47 Rule 1 CPC a judgment may be
open to review inter alia if there is a mistake or an
error apparent on the face of the record. An error
which is not self-evident and has to be detected by a
process of reasoning, can hardly be said to be an
R.P.No.458/2022
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error apparent on the face of the record justifying the
court to exercise its power of review under Order 47
Rule 1 CPC. In exercise of the jurisdiction under
Order 47 Rule 1 CPC it is not permissible for an
erroneous decision to be "reheard and corrected". A
review petition, it must be remembered has a limited
purpose and cannot be allowed to be "an appeal in
disguise".
14. So there would not be any dispute on the position that
in order to entertain an application for review there should be an
apparent error on the face of record and it cannot be allowed to
be an appeal in disguise.
15. The main contention of the learned counsel for the
review petitioners/defendants 1 to 6 is that a suit for mandatory
injunction is not maintainable and the plaintiff ought to have filed
a proper suit for recovery of possession based on title. It is their
contention that there is no permissive occupation of the house by
defendants 1 to 6 and the pleadings in the plaint also does not
refer to any licence agreement between defendants 1 to 6 and
plaintiff and hence simple suit for mandatory injunction is not
legally sustainable.
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16. Yet another contention advanced by the review
petitioners is that there is nothing in the judgment of this Court,
that of the appellate court or the trial court to find that the court
has exercised discretion to grant mandatory injunction and there
is no discussion with regard to the exercise of the discretion of
the court in granting the mandatory injunction.
17. This Court, after hearing both sides, confirmed the
judgment and decree passed by the trial court as well as the first
appellate court finding that there is no substantial question of law
arise for consideration to entertain this second appeal. It has
been found by the two fact finding bodies, i.e., trial court as well
as the first appellate court that defendants 1 to 6 are in
permissive occupation of the premises and their claim is not
either of a trespasser, the lessee or that of a licensee.
18. While disposing the matter Maria Margarida
Sequeria Fernandes v. Erasmo Jack de Sequeria (Dead)
Thr.L.Rs. : 2012 KHC 4181 and Behram Tejani and Others
v. Azeem Jagani : AIR 2017 SC 273 have been quoted by this
R.P.No.458/2022
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Court wherein it has been held that no one acquires title to the
property if she or he is allowed to stay in the premises
gratuitously. The protection of the court can only be granted or
extended to the person, who has valid subsisting rent agreement,
lease agreement or licence agreement in his favour. In the
present case, the defendants 1 to 6 have no valid subsisting
lease agreement or rent agreement or licence agreement in their
favour. Hence it was found that both the courts below rightly
held that the suit for mandatory injunction directing the
defendants to vacate is clearly maintainable.
19. Paragraphs 7 and 8 of the decision in Sant Lal Jain v.
Avtar Singh : 1985 KLT 1296 : (1985) 2 SCC 332 : AIR
1985 SC 857 have been quoted and that has been extracted
below:
"7. In the present case it has not been shown
to us that the appellant had come to the court with the
suit for mandatory injunction after any considerable
delay which will disentitle him to the discretionary
relief. Even if there was some delay, we think that in a
case of this kind attempt should be made to avoid
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multiplicity of suits and the licensor should not be
driven to file another round of suit with all the
attendant delay, trouble and expense. The suit is in
effect one for possession though couched in the form of
a suit for mandatory injunction as what would be given
to the plaintiff in case he succeeds is possession of the
property to which he may be found to be entitled.
Therefore, we are of the opinion that the appellant
should not be denied relief merely because he had
couched the plaint in the form of a suit for mandatory
injunction.
8. The respondent was a licensee, and he
must be deemed to be always a licensee. It is not open
to him? During the subsistence of the licence or in the
suit for recovery of possession of the property
instituted after the revocation of the licence to set up
title to the property in himself or anyone else. It is his
plain duty to surrender possession of the property as a
licence and seek his remedy separately in case he has
acquired title to property subsequently through some
other person. He need not do so if he has acquired title
to the property from the licensor or from some one
else lawfully claiming under him, in which case there
would be clear merger. The respondent has not
surrendered possession of property to the appellant
even after the termination of the licence and the
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institution Or the suit. The appellant is, therefore,
entitled to recover possession of the property. We
accordingly allow the appeal with costs throughout and
direct the respondent to deliver possession of the
property to the appellant forthwith failing which it will
be open to the appellant to execute the decree and
obtain possession."
20. So, the Court found that the case on hand in effect is
one for possession though couched in the form of a suit for
mandatory injunction as what would be given to the plaintiff in
case he succeeds, is possession of the property to which he may
be found to be entitled. It is further found that if the plaintiff is
driven to file another round of suit with all the attendant delay,
trouble and expense, this Court is of the view that an attempt
should be made to avoid multiplicity of suits. The second appeal
cannot be entertained based on a technical contention that the
suit for mandatory injunction is not maintainable for the reason
that the plaintiff has not filed a suit for recovery of possession on
title. It is further found that the trial court and the first appellate
court considered the rights of the contesting defendants and
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entered a finding that they have no right over the property
except the fact that they were permitted to reside therein under
the 10th defendant. So, ultimately it was found that no substantial
question of law arise and accordingly second appeal was
dismissed.
21. Admittedly, the first defendant is the daughter of the
10th defendant and defendants 2 to 5 are her children and 6 th
defendant is her husband. It is also not in dispute that the 10 th
defendant from whom the plaintiff purchased the property has
already vacated the premises. It is his specific allegation in the
plaint that at the time of purchase, 10 th defendant requested for
time to vacate the premises till the 8 th defendant returns from
Gulf and it has been pleaded by him that when the 8 th defendant
returned from Gulf, defendants 8 and 10 vacated the premises on
31.08.2010 itself. But defendants 1 to 6 continued to reside in
the house. 1st defendant being the daughter of 10 th defendant
have been occupying the house along with the original owner 10 th
defendant in her capacity as his daughter. Reasoning of the fact
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finding bodies on appreciating the evidence adduced from both
sides that her possession of the premises is permissive is sound
and reasonable and cannot be said as perverse and hence that
finding of fact by the trial court as well as the first appellate court
is not at all to be interfered while sitting in second appeal by this
Court.
22. So, the next question would be whether a suit for
mandatory injunction would be maintainable in such cases for
evicting the defendants 1 to 6 who are in occupation of the
premises under the 10th defendant, the vendor who has already
vacated the premises within the time as permitted by the plaintiff
or whether a suit for recovery possession is necessary. In that
context, this Court quoted Maria Margarida Sequeria
Fernandes and Behram Tejani and Others and found that a
person who occupied the premises gratuitously will not acquire
any title to the property.
23. In Behram Tejani and Others it has been held that
while holding the premises gratuitously or in the capacity as a
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caretaker or servant would not acquire any right or interest in the
property.
24. Madhu Gupta v. K.T.Hassan Koya : 2019 (5) KHC
42 seem to have been quoted by the defendants at the time of
hearing this appeal. In that case, a suit for mandatory injunction
to vacate the defendants from the plaint schedule building was
dismissed by both courts below finding that Ext.A2 agreement is
not a licence but a lease and against which the plaintiff came up
in appeal before this Court. In that decision it has been found
that the question whether Ext.A2 agreement is a lease or licence
is certainly a substantial question of law for the purpose of
appeal and it has been found by this Court that the intention of
the parties is well evident from the various clauses especially
Clause 7 wherein there is an assertion regarding the relationship
created under that document and it is not at all safe or advisable
to take away any of the clauses in Ext.A2 so as to arrive at a
different conclusion than the one intended by the parties and the
finding that the duty casts on trial court and first appellate court
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to construe Ext.A2 document in its correct perspective was not
properly discharged. This Court set aside the judgment and the
case was remanded to the trial court for fresh disposal. So, that
was the case in which there was a deed and the question arose
was whether it was a lease or licence and hence the principles
laid down therein has no application in the present case because
admittedly by the defendants, there is no such lease or licence
agreement between them and the plaintiff. In Ayissa Umma v.
Ami : 1990(1) KLT 98 relying on Rajappan v. Veeraraghava
Iyer : 1969 KLT 811 this court found that when the owner of a
removable property terminates a licence he can sue for
mandatory injunction directing the licensee to vacate the
property without claim for possession since the licensee's
possession cannot, in the eye of law, excludes the owner's
possession. It is also relevant in this context to quote Gowri v.
Shanthi : AIR 2014 SC 2863 : (2004) 11 SCC 664, that is
also a case in which plaintiff purchased the suit property and
became its absolute owner and the respondents claimed 2/3
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share in the suit property on the ground that transfer of property
by their father to the plaintiff is sham and they did not also claim
to be tenants in the property. In the said context, it was held
that plaintiff being the absolute owner in possession and the
respondents' possession being permissive, a suit for mandatory
injunction to evict the respondents is perfectly maintainable.
25. So, coming to the fact situation of this case, first
defendant is the daughter of the 10th defendant, the father of the
plaintiff and she has been in occupation of the premises under
her father and she could not establish any right either of a
purchaser, licensee, lessee or as an owner or sharer and as found
earlier, it has been concurrently found by the trial court as well as
the first appellate court that the possession of defendants 1 to 6
over the plaint schedule premises is only permissive. So, the
necessity of filing a suit for recovery possession for eviction of
the defendants 1 to 6 does not arise and the suit for mandatory
injunction filed by the plaintiff is perfectly maintainable. So also,
the contentions advanced by the review petitioner/defendants 1
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to 6 have been considered by this Court while disposing the
R.S.A. So, there is no error apparent on the face of record in
that regard.
26. Yet another contention advanced by the learned
counsel is with regard to the absence of discussion in the
judgment of the trial court, first appellate court and also of this
Court with regard to the exercise of discretion. According to him,
mandatory injunction being a discretionary relief as per Section
39 of the Specific Relief Act while granting the relief, the court
ought to have discussed about the exercise of discretion. Section
39 of Specific Relief At, 1963 deals with mandatory injunction
and provides that, when, to prevent the breach of an obligation,
it is necessary to compel the performance of certain acts which
the Court is capable of enforcing, the Court may in its discretion
grant an injunction to prevent the breach complained of, and also
to compel performance of the requisite acts.
27. So, what the Section provides is whenever the court
finds that there is breach of an obligation and it has to be
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prevented by compelling the opposite party by doing certain acts,
the court may in its discretion, grant injunction to prevent the
breach complained of. As soon as the court finds a breach of
obligation, the Court can grant relief by exercising its discretion
to prevent breach.
28. In the present case, when the court found a breach of
obligation on the part of defendants 1 to 6 to vacate the
premises on the request of the plaintiff who has purchased the
property from the father of the first defendant, a duty is cast
upon the court to exercise its discretion to prevent the breach of
obligation on the part of the defendants to vacate the premises.
So, both courts below while granting the relief of mandatory
injunction has exercised their discretionary power under Section
39. In other words, exercise of the discretion by the court is not
to be specifically stated and that is a factum which could be
deduced from the relief granted to a party. So, the contention of
the counsel for the defendants that there is no specific reference
with regard to exercise of discretion by any of the courts much
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in
less this Court is of no avail. No such argument also seen raised
at the time of hearing the R.S.A.
29. On a close scrutiny of the entire judgment passed by
this Court, I am of the considered view that there is no error
apparent on the face of the record justifying this court to exercise
the power of review under Order XLVII Rule 1 C.P.C.
In the result, review petition stands dismissed.
(sd/-) M.R.ANITHA, JUDGE
jsr/13/06/2022
True Copy
P.S to Judge
