MANU/KA/0393/2000

Equivalent Citation: AIR2000Kant298, ILR 2000 KARNATAKA 2341,

2000(5)KarLJ477, 2000(3)KCCR1818

IN THE HIGH COURT OF KARNATAKA AT BANGALORE (DIVISION BENCH)

Civil Revision Petition No. 1956 of 1994

Decided On: 25.05.2000

Appellants: Ramachandra

Vs. Respondent: Laxmana Rao

Hon'ble Judges/Coram: G.C. Bharuka and Mohamed Anwar, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Sri Ashok B. Hinchigeri, Adv.

For Respondents/Defendant: Sri S.B. Pavin, Adv.

Subject: Property

Catch Words

Mentioned IN

Acts/Rules/Orders:

Easements Act, 1882 - Section 4; Transfer of Property Act, 1882 - Sections 8, 11

and 19; Specific Relief Act, 1963 - Section 38(3); Civil ProProcedure Code, 1908 - Sections 11, 47, 50, 53, 146 and 244 - Order 21, Rules 11 and 32 - Order 22;

Cases Referred:

Basavant Dundappa v. Shidalingappa Sidaraddi MANU/KA/0292/1986 : 1987(1) Kar.

L.J. 56: ILR 1986 Kar. 1959; D'Souza v. A. Joseph MANU/KA/0425/1992 : 1992(4)

Kar. L.J. 16: ILR 1992 Kar. 2972: AIR 1993 Kant. 63; Muthukaruppa Pillai and

Another v. Ganesan MANU/SC/1117/1995 : 1995 Supp. (3) SCC 69; Jugalkishore

Saraf v. Raw Cotton Company Limited AIR 1955 SC 376; Kailash Chandra Tarafdar v.

Gopal Chanbra Paddar MANU/WB/0352/1926 : AIR 1926 Cal. 798; Bhiku Mal v. Firm

Ram Chandar Babu Lal and Another AIR 1946 Lah. 134; Radheshyam Modi v.

Jadunath Mohapatra MANU/OR/0027/1991 : AIR 1991 Ori. 88; Ishar Das v. Parma

Nand, AIR 1926 Lah. 134, ILR Lah. 544; Dayabai v. Bapalal ILR (1902) 26 Bom. 140;

Vithal v. Sakharam (1899)1 Bom. LR 854; Jamshetji Manekji Kotval v. Hari Dayal ILR

(1908)32 Bom. 181; Amritlal Vadilal v. Kantilal Lalbhai AIR 1931 Bom. 280; Chunilal

Harilal v. Bai Mani MANU/MH/0046/1918 : AIR 1918 Bom. 165: (1918)42 Bom. 504; Kanhaiyalal v. Babu Ram MANU/SC/1046/1999 : (1999)8 SCC 529

Case Note:

Property – transferee's liabilities – Sections 11 and 146 of Code of Civil

ProProcedure, 1860 – whether transferee of property can be said to be

person claiming under judgment debtor and held to be subject to all liabilities

and encumbrances to which original transferor and judgment debtor had

been for purpose of Section 146 – registered sale deed in question contained

covenant about existence of decree in question against vendors – transferee

purchased property with full knowledge of property being servient tenement

on account of petitioner's easementary right of way through and over it

under decree – such fact was not disputed by transferee or transferor in

question – second part of Section 11 permits creation of such restriction on

enjoyment of property transferred if enjoyment is for purpose of beneficial

enjoyment of another adjoining property of transferor – held, transferee subject to all liabilities – question answered in affirmative.

ORDER

Mohamed Anwar, J.

By this reference, we are called upon to decide the following questions:

"(1) Whether a transferee of a property purchasing the property by registered sale deed from the judgjudgment debtor can be said to be a

person claiming under judgjudgment debtor and be held to be subject to all those liabilities and encumbrances to which the original transferor and judgjudgment debtor had been for the purpose of Section 146?

(2) Whether the decree passed by the Court directing the original

owner of the property i.e., judgjudgment debtor not to cause interference or obstruction in the plaintiff's user of that land (which has been later transferred to the respondent) and putting a rider on the

right of the judgment debtor to the user of that land by him as well is binding on the subsequent transferee i.e., Purchaser thereof?

(3) Whether the decree-holder was entitled to seek execution of that

decree, in the above suit which was passed and granted permanent injunction with reference to the land against the judg- judgment debtor of that property, as being against him? If yes, did the Court below

illegally refused to exercise the jurisdiction vested by dismissing execution application?

(4) Whether the decisions in the cases of Basavant Dundappa v

Shidalingappa Sidaraddi and D'Souza v A. Joseph, do lay the correct law on this subject particularly in view of Section 146 of the CPC and the principle laid down in the case of Muthukaruppa Pillai and Another v Ganesan?

(4-A) Whether in such cases the remedy of the decree-holder is only to file a fresh suit against the transferee and not to apply for execution of the original decree passed against original owner (i.e., Transferor-judgment-debtor) against subsequent purchaser?"

2. The relevant undisputed facts leading to this reference may be stated as under:

The petitioner herein was the plaintiff in Civil Suit No. 307 of 1906 which was filed by

him in the Trial Court, viz., the then Court of Sub-Judge at Haven, against one

Subbannacharya and his son Sheshacharya for the relief of declaration that he

acquired by prescription the easementary right of way passing through the backyard

of adjoining defendants' house from his (plaintiff's) house; and for permanent

injunction restraining them from obstructing the plaintiff's use and enjoyment of that

right of way, and also to restrain them from discharging the water from their

bathroom into front yard of plaintiff's house. On contest, that suit was decreed as

prayed, by the Trial Court by its judgment dated 21-12-1907. The said decree was

taken in appeal by defendants in Appeal No. 48 of 1908. That appeal was dismissed

by the Appellate Court. Though the certified copy of the said decree is not produced

on the record of this revision proceeding, yet, the aforestated position of the litigation

between the parties in Civil Suit No. 307 of 1906 is not in dispute and the same is

sufficiently borne out by the photocopies of the certified copy of the Trial Court's

judgment dated 21-12-1907 and of Appellate Court's judgment dated 21-1-1908,

which are produced along with a memo by the learned Counsel for petitioner. The petitioner is hereinafter referred to as the decree-holder (D.Hr.)'.

Long after the said decree for declaration and permanent injunction dated 21-12-1907

was obtained by the D.Hr., the said judgment-debtors sold their said house premises

to the respondent herein, together with its vacant space including its backyard, by a

registered sale deed dated 27-4-1955. Therefore, respondent is hereinafter referred to

as 'the transferee-judgment-debtor'.

Subsequently, on 4-9-1981, the execution application under Order 21, Rule 11 of the

CPC was filed by the decree-holder in the Court below against respondent-purchaser

seeking execution of the said decree by his arrest and detention in civil prison to

compel him to keep the said suit passage free for plaintiff's enjoyment, by removing

the obstacles put up by him thereon, in obedience to the said decree. Notice to him

was then ordered by the Court below on the D.Hr.'s said application. On its service,

the former put in his appearance and filed his statement of objections through his

Counsel opposing the execution application on the ground that it was not maintainable

in law as against him. His objection against non-maintainability of the application was

that the decree in question being a decree for permanent injunction, it cannot be

enforced as against him as he was a purchaser of the property from the judgment-

debtors and since, in law, a decree for permanent injunction does not run with the

land. That contention was accepted by the Court below in view of the Single Bench

decision of this Court in Basavant Dun-dappa's case, supra, which was referred in a

later decision of another Single Bench in the case of D'Souza, supra. Accordingly, the

impugned order dismissing the said execution application of D.Hr. has been passed by it.

3. When the revision came up for hearing before his Lordship Justice H.N. Tilhari, it

was argued before him on behalf of the decree-bolder that the law laid down in the

case of Basavant Dundappa, supra, that a decree for injunction cannot be enforced

against the purchaser-judgjudgment debtor since injunction does not run with the

land, is not the correct statement of law when examined in the light of Section 146 of

the CPC, and that this material provision was not looked into and considered by the

learned Judge who decided the case of Basavant, supra. In other words, his

contention was that, by force of Section 146 of the CPC, the decree in question was

enforceable against the transferee-judgment-debtor also, since he acquired ownership

of the land in question through the original judgment-debtors, who were the rightful

owners thereof. Apparently, this plea of D.Hr.'s Counsel was found by Tilhari, J., as

carrying sufficient force. Therefore, his Lordship reached his opinion that the law

stated in the case of Basavant Dundappa, supra, and reiterated in the subsequent

Single Bench decision of this Court in the case of D'Souza, supra, required

reconsideration by a Larger Bench in view of Section 146 of the CPC and also in the

light of the principle laid down by the Supreme Court in the case of Muthukaruppa

Pillai, supra. So, the aforementioned questions for decision by a Larger Bench were

framed and reference order dated 27-8-1998 was passed by him pursuant to which this matter has been placed before our Bench for resolution of the controversy.

4. Keeping in view the material facts of the case in hand, we are of the considered

opinion that the aforestated five questions under reference could be recast suitably

and condensed into the following two questions for effective disposal of this revision:

1. Whether a purchaser-transferee of an immovable property from the

judgment-debtor, which is the subject of a decree, is a person claiming through him within the meaning of Section 146 of the CPC and an

application for execution of the decree against such a transferee could be maintained by the decree-holder?

2. Whether or not, in law, the respondent-purchaser of the said house premises -- together with its backyard in question, from the original

judgment-debtor, is bound by the terms and directions of the decree for permanent injunction passed in Civil Suit No. 307 of 1906, in view

of the law laid down by this Court in the case of Basavant Dundappa, supra, and in the light of the decision of the Supreme Court in Muthukaruppa Pillai's case, supra?

5. Before dealing with these questions, it seems proper to advert to the facts of

Basavant Dundappa's case, supra, and keep ourselves informed of the context in

which the said statement of law was spelt out - that the decree for permanent

injunction cannot be enforced against a purchaser of the land from the judgment-

debtor, for an injunction does not run with the land. In Basavant's case, supra, the

revision before this Court was filed by the judgjudgment debtor against the order of

the execution Court passed in Ex. Case No. 45 of 1984 allowing an interim application

of the decree-holder, which was filed requesting to auction the tamarind fruits from

three trees in the land in dispute or to call upon the judgment debtor to deposit Rs.

400/- as security. That order of the executing Court was challenged by the judgment

debtor on the ground that an earlier interim application of decree-holder filed in the

said Execution Case No. 45 of 1984 for the same relief was already rejected by it

observing that the execution petition itself was not maintainable. Admittedly, the

decree-holder therein was a transferee from the heir of the original decree-holder, and

the judgment debtor was also a transferee from the heirs of the original judgment-

debtors. The contention canvassed for judgment debtor in the said revision that when

decree-holder's earlier interim application for the same relief was rejected by the

execution Court, its order impugned passed allowing the latter's subsequent interim

application for the same relief was per se illegal and unsustainable, was accepted by

the learned Judge. That apart, the learned Judge, in that case of Basavant, supra,

further proceeded to consider the point of enforceability or otherwise of the said

decree as against the petitioner therein who was a transferee from the heirs of the

original judgment-debtor. A passage appearing at page 359 in Mulla's Code of Civil

ProProcedure, 14th Edition, Volume I (occurring in page 441 of 15th Edition), under

the caption "Decree for Injunction"; and another passage under the same caption

from AIR Commentaries on the Code of Civil ProProcedure, 9th Edition, Volume I,

page 559 (occurring at Item 18 in page 671 of 10th Edition), were quoted by the

learned Judge, wherein the aforementioned statement of law was contained. Following

the same, the revision in Basavant Dundappa's case, supra, was allowed and the

executing Court's said order impugned therein was set aside. From the body of the

order pronounced in that case, the nature of the decree for permanent injunction and

the terms thereof were not discernible except that the prayer made in the said interim

application was to auction the tamarind fruits of the said three trees or to direct the petitioner-judgment debtor to deposit Rs. 400/- as security.

6. However, in the case of D'Souza, supra, the facts of the dispute between the

parties were materially different from those obtainable in Basavant's case, supra. In

D'Souza's case, supra, the appellant before this Court was defendant, and the

respondent therein was the plaintiff in O.S. No. 2243 of 1980. That suit was filed for

the relief of permanent injunction against defendant. It was decreed restraining him

from interfering with the plaintiff's peaceful possession of the suit schedule property.

The Trial Court's said decree was challenged by defendant D'Souza in appeal before

this Court. During pendency of that appeal, respondent (plaintiff) therein died. Instead

of bringing his legal representatives on record in time, learned Counsel for appellant

passed a memo praying to dispose of the appeal as not surviving for consideration as

the decree for permanent injunction impugned therein ceased to be enforceable, and

the relief of permanent injunction granted by it to the plaintiff stood extinguished

along with his death. That memo was filed relying on this Court's ruling in Basavant's

case, supra. The contention canvassed by appellant's Counsel in support of the prayer

in the said memo was that, with the death of the plaintiff, the decree for injunction in

his favour lost its force in the eye of law since it was a personal decree in plaintiffs

favour and the injunction does not run with the land. On facts, the learned Judge

found, that the point for consideration in the appeal was: whether on the death of

respondent-plaintiff, the appeal abated or the said suit itself abated. This question,

when differently worded, as indicated in the decision was: "the question for

consideration is, as to what should happen to the decree obtained by the plaintiff after plaintiffs death?"

7. In the case of D'Souza, supra, at paragraphs 5 and 6 of his order, the learned

Judge has culled out the said passages in Mulla's Code of Civil Procedure and AIR

Commentaries on the Code of Civil Procedure, which were quoted in the case of

Basavant, supra. The said passage from Mulla's CPC is reproduced below, which

serves our purpose:

". . . . An injunction obtained against a defendant restraining him from

obstructing plaintiff's ancient rights may on the death of the defendant, be enforced under this section against his son as his legal representative by

Procedure under Order 21, Rule 32 (Code of 1882, Section 260). Similarly, a decree for an injunction against a manager and representative of a joint Hindu

family can be enforced after his death against a son who represents the joint family. But such an injunction cannot be enforced under this section against a purchaser of the property from the defendant, for an injunction does not run with the land.....".

Elucidating the legal position, the learned Judge in the case of D'Souza, supra, held:

"4. ..... However in a case of heirship, the question of transfer of property does

not arise. The question of injunction running with the land would not arise in a case where the heirs of the deceased steps into the shoes of the person who has

obtained the decree. .. . As pointed out earlier, the observation made in Mulla's Civil Pro- cedure Code on the basis of which the judgment has been delivered by this Court in Basavant Dundappa's case, supra, mutatis mutandis holds good

here also and in that context, I am of the view that there should not be any difficulty for the legal heirs of the deceased plaintiff to enforce the decree for injunction against the judgment-debtor".

So holding, the appeal in D'Souza's case, supra, was dismissed as having abated.

Re. Question No. 1

8. As indicated above, the present reference has been made by H.N. Tilhari, J.,

observing that the aforesaid statement of the law was made in the case of Basavant

Dundappa, supra, simply on the basis of the said passages from Mulla's Code of Civil

Procedure and AIR Commentaries on Code of Civil Procedure, but without taking

notice of and considering the effect of the relevant provision in Section 146 of the CPC. This provision reads:

"146. Proceedings by or against representatives.--Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may

be taken or the application may be made by or against any person claiming under him".

9. On an analytical reading of Section 146, one legal position which clearly emerges

is that where any legal proceeding may be taken or an application for a legal

proceeding may be made by or against any person, then, that proceeding may also be

taken or application for the same may be made by or against any persons claiming

under him. This provision deals with legal proceedings by or against representatives of

the parties to a dispute or to a decree or final order of any competent Court. Its

operation is general in nature, except that it is circumscribed by the beginning saving

clause "save as otherwise provided by this Code or any law for the time being in

force". The Supreme Court in the case of Jugalkishore Saraf v Raw Cotton Company

Limited, has, in regard to the curtailing effect of this saving clause on the scope of Section 146, said:

"The effect of the expression "save as otherwise provided in this Code" contained in Section 146 is that a person cannot make an application under Section 146 if other provisions of the Code are applicable to it".

In interpretation of Section 146, the moot point for our consideration is whether the

transferee of the property of judgment debtor by a private sale could be stated as the

judgment-debtor's "representative" within the meaning of Section 146 of the CPC as

well. The words "by or against any person claiming under him" occurring at the end of

the text of Section 146 makes it clear that any person who has lawfully acquired any

right or interest in the property which was the subject of legal proceeding and was

belonging to any party thereto, would be the person claiming under that party and is

thus his representative. The same is the import of the word "representative" occurring

in first part of Section 47 of the CPC which runs:

"47. Questions to be determined by the Court executing decree.--(1) All

questions arising between the parties to the suit in which the decree was passed, or their representatives,.....".

The sweep of this term "representative" was the subject of consideration by a Full

Bench of Calcutta High Court in the case of Kailash Chandra Tarafdar v Gopal Chandra

Paddar, at page 808, where it has held:

"The Legislature in Section 47 has placed the representatives of the parties in

the same position as the parties themselves, and the term "representatives" in Section 47 must, in my opinion, be held to include persons who by assignment

from a party or by operation of law have succeeded to the interest of that party in decree, and quoad that interest are bound by the decree".

A Full Bench of Lahore High Court, in the case of Bhiku Mal v Firm Ram Chandar Babu

Lal and Another, on a reference made by the learned Single Judge, was also seized of

the import of the term "representative" in Section 47 where the decision of Calcutta

High Court in the case of Kailash, supra, was also referred. Harries, C.J., speaking for

the Bench, proceeded to further elucidate the meaning of the term "representative" in the context of Section 47 and said:

"..... The meaning to be given to the word "representative" in Section 47 of the Civil Procedure Code has been the subject of a number of

cases in the various High Courts in India. The leading case is a Full Bench decision of five Judges of the Calcutta High Court in 24 Cal. 62.

In that case it was held that the term "representative" as used in Section 244 (now Section 47) of the Civil Procedure Code, when taken with reference to the judgment debtor does not mean only his legal

representative, that is, his heir, executor or administrator, but it means his representative-in-interest, and includes a purchaser of his interest, who so far as such interest is concerned, is bound by the decree.....".

(emphasis supplied)

10. Dealing with the similar question, a Single Bench of Orissa High Court in

Radheshyam Modi v Jadunath Mohapatra, at paragraph 11 of its order has said:

"11. In the event of the death of a judgment-debtor, the question that may arise for consideration as to against whom the execution proceeding shall be continued if the provisions of Order 22 of the Code are not applicable to an

execution proceeding. The provision contained in Section 146 of the Code is a complete answer to the aforesaid question. It provides that where any

proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. In a case where the sole judgment debtor dies, the

proceeding may be continued against such person who claims under the deceased judgment-debtor..... ".

11. For the purpose of this case, suffice it to state that admittedly, the transferee-

judgment debtor claims his right of ownership and interest in and over the land of

servient tenement in question under the original judgment-debtors, on having

acquired the same by the said sale deed dated 27-4-1955. Therefore, he squarely falls

within the term "representative" as the one claiming under the said judgment-debtors,

as envisaged in Section 146. In that view of the legal position vis-a-vis, the said

decree passed with respect to the land in question, it becomes clear that the decree-

holder herein is entitled under Section 146 of the CPC to make the application for

execution of the said decree against the transferee-judgment debtor (see

Muthukaruppa Pillai's case, supra); although the question of its enforceability or

otherwise against the transferee is a question which falls within the domain of

Section 47 of the CPC for decision by the execution Court. Hence, we hold that the

transferee-judgment debtor is a person claiming under the original judgment-debtors

as their successor-in-interest within the meaning of Section 146 of the CPC and, as

such, the decree-holder can maintain an application for execution of the decree in

question against him, there being no other specific provision in CPC or in any law for

the time being in force enabling him to proceed against the former in execution of the

decree. The negative finding on this point of the Court below is, therefore, unsustainable in law. Accordingly we answer Question No. 1 in the affirmative.

Re. Question No. 2

12. This question relates to the material point of the enforceability or otherwise of the

said decree of permanent injunction against the respondent-transferee-judgment-

debtor. Following the decision of the Single Bench of this Court in the case of

Basavant, supra, the petitioner-decree-holder's application for execution of the decree

against him has been dismissed by the executing Court by its impugned order on the

ground that injunction does not run with the land. Respondent being the purchaser of

the property from the original judgment debtor has stepped into their shoes as their

representative-in-interest. The general principle of law is that the assignee or

transferee of the judgment-debtor's property would also be bound by the rights and

liabilities declared by a decree passed against the judgment-debtor. This principle is

succinctly enunciated by Division Bench of Lahore High Court in Ishar Das v Parma

Nand, which exposition of law is quoted, with approval by it in its subsequent Full Bench decision in Bhiku Mal's case, supra. The same is reproduced below:

"Now, it has been repeatedly held that the expression 'representative'

in Section 47 has a more extended meaning than a 'legal representative' and includes also a representative-in-interest. An assignee from a judgment debtor of property belonging to him and

affected by the decree is a representative of the judgment debtor within the meaning of the section. Such an assignee stands in the shoes of

the judgment debtor and is bound by the decree so far as the property assigned to him is concerned. He is subject to the same liabilities and is entitled to exercise the same rights as his assignor, the judgment-debtor.....

There can be no doubt that a purchaser from the judgment debtor of his property which is neither under attachment nor otherwise affected

by the terms of the decree, cannot be held to be a representative of the judgment-debtor,.... ".

(emphasis supplied)

To this general principle, the precedent that a decree for injunction cannot be

executed against the purchaser of property from the judgment debtor as injunction

does not run with the land would be an exception. It is here which we are precisely

concerned with the nature, width and scope of this precedent which lays down in bald terms the said exception to the general principle.

13. As noticed above, the decision of this Court in Basavant's case, supra, was

pronounced on the basis of the statement of law that an injunction does not run with

land, as contained in the passages to be found under the caption "Decree for

Injunction" in Mulla's Code of Civil Procedure and in the AIR Commentaries on the

Code of Civil Procedure. These passages occur therein in the synopsis of Section 50

of the CPC. The said statement of law that an injunction does not run with the land

and, therefore, it cannot be enforced against a purchaser of the property from

defendant judgment-debtor, is shown to have been digested in those passages from

the decisions of Bombay High Court in the cases of (1) Dayabai v Bapalal; (2) Vithal v

Sakharam; (3) Jamshetji Manekji Kotval v Hari Dayal; (4) Amritlal Vadilal v Kantilal

Lalbhai; and (5) Chunilal Harilal v Bai Mani. It has to be noted here at once that the

case of Chunilal Harilal, supra, is of no relevance to this case, since in that case, their

Lordships of Bombay High Court, while dealing with the scope of Section 53 of the

CPC held that a decree for injunction obtained by the plaintiff against two brothers

who, together with their sons of one of them, formed a joint Hindu family, cannot be

executed against the sons of said brother inasmuch as they were neither parties to

the suit nor were they the legal representatives of judgment-debtors, in any sense of this term.

14. In its latter decision in Amritlal's case, supra, a Division Bench of Bombay High

Court, reviewing the case law on the point as was laid down in its above stated earlier

decisions, has pointed out the restrictive nature of the statement of law that

"injunction does not run with the land and cannot be enforced under Section 50

against a purchaser of the property from the defendant" by further expounding the

proposition as follows:

"It would therefore follow from the decided cases that the decree for injunction does not run with the land, and in the absence of any

statutory provision, such a decree cannot be executed against the surviving members of the joint family or against the purchaser from the judgment-debtor".

(emphasis supplied)

Elucidating this legal position, the Court further said:

"The principle that an injunction does not run with the land has been deviated from in the case of legal representatives on the death of the

judgment debtor on the ground of the express provision made by Section 50 of the CPC and in the case of transferees in virtue of Section 52 of the Transfer of Property Act. ....".

(emphasis supplied)

Thus, the operation of the case law that a decree for injunction cannot be enforced

against a purchaser judgment debtor since injunction does not run with the land for it

is a remedy in personam is saddled with a rider that it could be done so if saved by

any statutory provision. Therefore, the law reiterated by this Court in Basavant's case,

supra, is not and cannot be the absolute statement of law. It is a qualified one. Its

validity and the limit of operation depends upon the nature and character of the

injunctive relief granted under a decree for injunction. No doubt, injunction is a

remedy in personam. Yet, the enforcement of the decree for injunction against a legal

representative of the deceased or against the purchaser of the suit property pendente

life is saved by Section 50 of the CPC and Section 52 of the Transfer of Property Act respectively.

15. Likewise, in the instant case, the decision whether the decree for permanent

injunction in question is binding on the transferee-judgment debtor and whether it

could be enforced against him by the decree-holder is dependent on the nature of the

injunctive relief and the right in protection of which the same is granted thereunder. It

is an undisputed fact that the said decree obtained by the decree-holder was a decree

granting him the reliefs of declaration and permanent injunction against the original

judgment-debtors. The declaratory relief was to the effect that the decree-holder

being the owner of the dominant heritage he acquired by prescription the

easementary right of way through and over the backyard of the judgment-debtors'

said premises i.e., servient heritage, from the front yard of his house; and the

injunctive relief granted to him under the decree was by restraining the judgment-

debtors from preventing or disturbing him from the use and enjoyment of the said

right of way over the land of judgment-debtors by any manner whatsoever. We,

therefore, proceed with our further discussion on the footing of this undisputed premise as regards the decree in question.

16. The said easementary right of the decree-holder is a right created by Section 4 of

the Indian Easements Act, 1882 ('the Act of 1882' for short). Thus, it is a statutory

right. It is a right in rem vesting with the plaintiff. Under the decree, the decree-

holder was entitled to utilize the said servient tenement of the judgment debtor as a

means of access to or egress from his dominant tenement. Once that right was

created by a decree of the Court, a corresponding burden or encumbrance gets

automatically imposed on or annexed to the servient tenement of the judgment-

debtors thereby creating a legal obligation against them to keep the said passage

through their land in question i.e., servient heritage, always open and free for the use

of the decree-holder for the beneficial enjoyment of his dominant tenement. Easement

is an incorporeal right of the dominant owner over the corporeal property of the

servient owner, and, it is a valuable property as far as dominant heritage is

concerned. Therefore, an easementary right runs, in law, with the dominant heritage

for its beneficial enjoyment by its owner. This rule is enacted by Section 19 of the Act of 1882, which reads:

"19. Transfer of dominant heritage passes easement.-- Where the dominant

heritage is transferred or devolves, by act of parties or by operation of law, the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer or devolution takes place".

So, in law, an easement is a transferable and heritable right along with the dominant

heritage to which it is appurtenant. As a fortiori, therefore, unless modified, altered or

extinguished by operation of law or by agreement of parties or by reason of change in

material circumstances, it logically follows that when a servient heritage is also

transferred by act of parties or by operation of law, corresponding burden of

easementary right annexed to it also passes with it with its transfer to every

subsequent owner or occupier thereof, since easementary right in favour of dominant

heritage does not exist without there being a servient heritage. So, coming to any

easementary right of way, normally every servient owner, including the transferee

from judgment debtor of a servient tenement or its occupier is under a legal obligation

to protect or preserve it in its original condition for its beneficial enjoyment by the

dominant owner. Nonetheless in breach of this obligation if the former creates any

disturbance of such easementary right appurtenant to the dominant tenement he is

liable to be prevented from so acting by a decree of permanent or perpetual

injunction. It is exactly to meet such a situation which the legal remedy of perpetual

injunction is provided by sub- clauses (c) and (d) of Section 38(3) of the Specific Relief Act, 1963, which run:

"38. Perpetual injunction when granted.-

(1) XXX XXX XXX.

(2) xxx xxx xxx.

(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property the Court may grant a perpetual injunction in the following cases, namely.-

(a) xxx xxx xxx;

(b) xxx xxx xxx;

(c) where the invasion is such that compensation in money would not afford adequate relief;

(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings".

17. Therefore, having due regard to the nature of easementary right of way declared

by the decree in favour of plaintiff-decree-holder and the injunctive relief with respect

thereto, we are of the considered opinion that the decree-holder's right being the

statutory right of way passing through the backyard of the judgment-debtors' servient

premises, the latter cannot pass or transfer any right or interest therein in favour of

any other person better than what themselves had. As a result, any transferee of the

property from them would acquire the same right or interest therein and the liability

or the burden with which it was encumbered which the judgment-debtors had at the

time of the transfer and, as such, the transferee would be under an obligation to

subject the servient tenement to the said easementary right of the decree-holder in

terms and directions of the decree in question- In other words, the transferee-

judgment debtor is also bound by the decree respecting the decree-holder's

easementary right of way and is liable thereunder in relation to the said servient

tenement to the same extent as his predecessors in title were bound by that decree.

In that view of the legal position, we find without any hesitation that the said decree

for permanent injunction respecting the said right of way is executable against the

respondent-transferee judgment-debtor. Thus, this is a case of one more instance of

an exception to the precedent that the decree for permanent injunction is not

enforceable against the purchaser of property from the judgment debtor since

injunction does not run with land.

18. Moreover we find our above conclusion in complete accord with the legal effect of

the 'transfer' of property spelt out by Section 8 of the Transfer of Property Act, 1882. The material portion thereof is reproduced below:

"8. Operation of Transfer.--Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the

transferee all the interest which the transferred is then capable of passing in the property, and in the legal incidents thereof.

Such incidents include, where the property is land, the easements annexed thereto.....;

and, .....;

and, where the property is a house, the easements annexed thereto,.....".

This provision of the Transfer of Property Act makes it clear that any easementary

obligation or burden annexed to the servient heritage will also pass therewith to the

transferee thereof on its valid transfer by its vendor, as a legal incident of the

transfer. This legal position finds ample support from the proposition enunciated by

the Supreme Court in its recent decision in Muthukaruppa Pillai's case, supra. In that

case, the contention of defendant-appellant before Supreme Court was that the

decree for permanent injunction obtained against him by the deceased plaintiff with

respect to his heritable and partible rights, cannot be executed by a legal

representative of the plaintiff on his death. Repelling this contention, the Supreme Court held:

"2..... It is claimed that the decree being personal, it could not have been executed by the respondent who claimed to be successor-in-interest of the plaintiff in the suit. The submission appears to be devoid of any merit. In the

main suit, out of which these execution proceedings have arisen, it was clearly held by the High Court that the rights were heritable and partible. In view of this

finding, it is not clear as to how can the appellant raise the argument of decree being personal in nature. Apart from that, the decree passed by the Trial Court, copy of which has been produced by the learned Counsel for the respondent, the

authenticity of which is not disputed by the appellant, and which has been extracted earlier, clearly indicates that the injunction granted did not impose any

such restriction expressly nor could it be impliedly held that it lapsed with the death of the plaintiff".

What follows from this ruling of Supreme Court is that if the remedy of injunction

granted by a decree is in respect of any heritable and partible right, it does not get

extinguished with the death of a party thereto, but it enures to the benefit of the legal

heirs of the decree-holder, as also such a decree could be executed against the

successor-in-interest of the deceased judgment debtor as well. The law so laid down is

fortified by another recent decision of the Supreme Court in Kanhaiyalal v Babu Ram.

For these reasons the said decree for permanent injunction cannot be said a decree in

personam since the easementary right of way in respect of which the remedy of

injunction is granted under it runs with both the dominant heritage and the servient heritage as well.

19. Besides the above, another pertinent fact which is pleaded by decree-holder

(petitioner) in Court below and not disputed by respondent-transferee either before it

or before us is that a covenant was also incorporated in the sale deed dated 27-4-

1955 as a term of the conveyance of their property by the judgment-debtors to

respondent, clearly mentioning the existence of the decree in question against the

vendors. Respondent thus purchased the property from them with the full knowledge

of its being the servient tenement on account of petitioner's easements right of way

through and over it under the decree. In this regard it is noteworthy that any

restriction on the enjoyment by the transferee of the property transferred absolutely

is declared void by first part of Section 11 of Transfer of Property Act. But second

part of Section 11 thereof provides an exception to this general rule. It permits

creation of such restriction on the enjoyment of the property transferred if it is for the

purpose of the beneficial enjoyment of another adjoining property of the transferor.

Keeping in view the peculiar facts of this case, on the analogy of this exception

embodied in second paragraph of Section 11 of Transfer of Property Act it can be

stated that respondent-transferee is bound by the said covenant of the sale deed in

the enjoyment of the property purchased by him thereunder.

20. Therefore, on consideration of the aforementioned decisions and the legal effect of

a transfer of servient heritage by the original judgment-debtors (to the transferee-

judgment-debtor), flowing from the above stated and discussed relevant provisions of

the law, we find that the statement of law stated in the case of Basavant Dundappa,

supra, by a Single Bench of this Court does not lay down an absolute legal principle of

universal application, but the same is a qualified one and restrictive in its application.

It operates subject to various relevant statutory provisions as also the nature of the

relief of injunction granted by a decree to plaintiff. In the case in hand, the decree for

permanent injunction being the one granted for protection of the decree-holder's

statutory easementary right of way appurtenant to his dominant heritage and

annexed with the servient tenement of the judgment-debtors, it is enforceable in law

against the transferee-judgment-debtor, he being the successor-in-interest of the

original judgment-debtors. In other words, the transferee-judgment debtor is bound

by the terms and directions of the decree in question and, therefore, the decree is

executable against him. In this view of the matter, the contrary finding of the

execution Court is legally not correct. Hence, Question No. 2 stands answered by us accordingly.

21. In view of our affirmative findings on Question Nos. 1 and 2, the revision is entitled to succeed.

22. Hence, the revision is allowed and the impugned order is set aside. The parties to bear their own costs.

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IN THE HIGH COURT OF ORISSA

Decided On: 06.03.2009

Appellants: Chhatia Palei and Anr.

Vs. Respondent: Additional District Judge-cum-Sessions Judge and Ors.

Hon'ble Judges/Coram: I. Mahanty, J.

Subject: Property

Subject: Civil

Catch Words

Mentioned IN

Acts/Rules/Orders:

CODE OF CIVIL PROCEDURE, 1908 - Section 47, CODE OF CIVIL PROCEDURE, 1908

- Section 49; SPECIFIC RELIEF ACT 1963 - Section 38

Disposition: Application dismissed

Case Note :

Civil – Interpretation of decree – Section 47 and Order 21, Rule 3, 32 and 35 of Code of

Civil Procedure, 1908(CPC) – Opposite party no.3 filed suit for injunction against

petitioner no.1 and opposite party no.4 – Trial Court passed decree of injunction in

favour of opposite party no.3 – Opposite party no.3 filed execution petition – In said

execution petition opposite party no.3 sought relief of recovery of possession – Petitioner

no.1 filed objection under Section 47 of CPC against such relief – Execution Court

allowed objections of petitioner no.1 – Thereafter opposite party no.3 filed revision

against order of Execution Court – Revisional Court allowed revision and held that

Execution Court while executing decree of injunction can extend it to recovery of

possession – Petitioner no.1 aggrieved by said order of Revisional court – Hence,

present petition assailing order Revisional Court - Whether execution could be made on

recovery of possession by decree holder where decree of permanent injunction had been

granted? – Held, as per judicial principle where decree is not inconsistent with

additional relief sought to be executed and in fact is in furtherance of same it would

remain within competence and domain of Executing Court for interpreting such decree

– In instant case originally decree of permanent injunction was passed in favour of

opposite party no.3 – During execution petitioners tried to disturb possession of

opposite party no.3 – Therefore opposite party no.1 prayed for recovery of possession –

As opposite party no.3 was not being in possession so decree envisaged recovery of

possession – Thus Executing Court while extending meaning of decree granted by Civil

Court was trying to remove obstruction and enforcing perpetual injunction passed by

that Civil Court – Hence, order of Revisional Court deserves to be upheld – Petition

accordingly dismissed

JUDGMENT

I. Mahanty, J.

1. The petitioner in the present writ application has sought to challenge the Order dated

31.3.1998 passed by the District and Sessions Judge, Nayagarh in C.R. No. 36/11 of 1997

allowing the said revision and reversing the order dated 23.12.1996 passed in M.J.C. and No.

30/1996 under Section 47 of the Code of Civil Procedure arising out of Execution Proceeding

No. 3 of 1994 by the Court of Civil Judge (Junior Division), Nayagarh who had allowed the

objection of the petitioner under Section 47 C.P.C. and hold that the decree passed in O.S.

No. 24 of 77, was in executable.

2. Learned Counsel for the petitioners has challenged the impugned order passed by the Addl.

Dist. and Sessions Judge, Nayagarh on the following grounds:

(A) That the Execution Case is barred by limitation as envisaged under Article 136 of the

Limitation Act.

(B) That the decree sought to be executed being purely for injunction, the relief of recovery

of possession is beyond the scope of the executing Court.

(C) That the decree for permanent injunction is to be executed in the manner contemplated

under Order 21 Rule 32 C.P.C. and delivery of possession cannot be given as provided under

Order 21 Rule 35 C.P.C.

3. It is averred in the writ application that the property described in Schedule 'A' of the

petition were sold by registered sale deed dated 9.2.1972 by one Hadibandhu Palei in favour

of O.P. No. 3, namely, Dayanidhi Dash and in the sale deed it was stipulated that

consideration would be paid at the time of endorsement of registration ticket in favour of the

purchaser-O.P. No. 3 and from the date of payment, title will pass to the purchaser. It is

alleged that payment of consideration was not made to the vendor and consequently,

registration ticket was not endorsed in favour of the purchaser and it is claimed that as a

consequence thereof, title to ttie Schedule 'A' property did not pass on to the purchaser

Dayanidhi Dash (O.P. No. 3). Subsequently, the said sale deed dated 9.5.1972 was cancelled

by the registered deed of cancellation dated 6.11.1974. It is fu.ther contended that as the sale

deed in favour of Dayanidhi Dash was cancelled, the original owner and his successors in

interest, continued to remain in possession of the 'A' Schedule land and converted those land

to homestead land and raised residential houses thereon and lived there along with their

family members. It is further contended that the petitioners continued to pay rent and have

been obtaining necessary rent receipts in their names. The petitioners alleged that Sri

Dayanidhi Dash (O.P. No. 3) taking advantage of the locality of the petitioners filed a suit for

injunction against the petitioner No. 1 and opposite party No. 4 and others. The said suit, i.e.

T.S. No. 24/77 was decreed on 31.3.1981. It is contended that it is this decree dated

31.3.1981 which is now sought to be executed. Therefore, Execution Case No. 3/1994 was

filed on 13.9.1994. In the said Execution Case, opposite party No. 3 (petitioner therein)

sought to relief under Order 21 Rule 3 C.P.C. and also a delivery of possession under Order

21 Rule 35 C.P.C. and alleging that the judgment-debtors have re-entered possession of the

dispute property on 16.8.1994. The present petitioners upon entering in the suit proceeding,

filed objection contending, inter alia, that the Execution Case is not maintainable in law and

the Executing Court allowed the said objection petition filed by the petitioners by executing

the ground stated therein and come to hold that the decree was in executable. It is this order

by the Executing Court which came to be reversed by the revisional Court under impugned

Annexure-1 which is the subject matter of challenge in the present writ application on the

ground noted hereinabove.

4. Mr. Mohapatra, learned Counsel for opposite party No. 3, on the other hand, submitted that

the writ petitioners 1 and 2 and opposite party No. 4 (brother of petitioner No. 1) are

judgment-debtors in decree dated 31.3.1981 passed in T.S. 24/77-1 wherein the present

opposite party No. 3 Dayanidhi Dash was the plaintiff-decree holder. It is submitted that T.S.

No. 24/77-l was filed with the prayer for issue of perpetual injunction against the defendants

and restraining them from going over the suit land and creating disturbance in his possession

of the plaintiff with respect to the said suit land. In the 4th paragraph of the decree dated

31.3.1981 in favour of the opposite party No. 3 has been held as follows:

In this suit, a Civil Court Commissioner was deputed on the petition of the plaintiff for local

inspection of the suit land after giving due notice to the parties. The Commissioner inspected

the land and submitted his report. In support of the suit, the said Commissioner has been

examined as P.W.2 and his report dated 14.8.1978 marked as Ext.-8, clearly reveals that the

plaintiff is the peaceful owner and possessor over the suit land. And therefore, the Civil Court

in the judgment directed that the defendants are hereby permanently injuncted from going

over the suit land and from creating any disturbance in the possession of the plaintiff.

Mr. Mohapatra submitted that opposite party No. 3 while being temporarily absence from his

village, enabled the petitioners and opposite party No. 4 to trespass into the suit house and to

forcibly take possession of the same on 16.8.1994. The opposite party No. 3, on his return to

his village and on realizing the mischief created by the petitioners, opposite party No. 4 was

compelled to file Execution Case No. 3/94 on 13.9.1994. Sri Mohapatra submitted that the

petitioners and opposite party No. 4 did not appear in the suit proceeding inspite of the valid

notice for which, a notice for delivery of possession was issued. But the process server could

not serve the notice of delivery of possession since the petitioners and opposite party No. 4

threatened the process server with dire consequence and being armed with deadly weapon.

His further allegation is that opposite party No. 3- Dayanidhi Dash filed MJC No. 11/1996

for sending police force along with the process server and while the said applicant was

pending consideration, MJC No. 30/1996 was filed by the present petitioners and opposite

parity No. 4, before the executing Court claiming that the decree was inexecutable. The

M.J.C. No. 30 of 1996 came to be allowed by an order dated 23,12.1996 on a finding that in

the absence of a decree for delivery of possession, the possession cannot be delivered. The

opposite party No. 3 challenged the aforesaid order before the Addl.District and Sessions

Judge in C.R. No. 36/ 11 of 1997 and the same has came to be allowed by an order dated

31.3.1998 with direction to the executing Court to proceed with the execution proceeding. It

is this revisional order which is now come to be challenged in the present writ application and

it is alleged that the writ application contains wrong genealogy as well as incorrect facts.

5. So far as the grounds raised by the learned Counsel for the petitioners is concerned, Sri

Mohapatra, learned Counsel appearing for the opposite party No. 3- Dayanadhi Dash,

submitted that the proviso to Article 136 of the Limitation Act prescribes that "an application

for the enforcement or execution of a decree granting a perpetual injunction shall not be

subject matter to any period of limitation." It is further averred that the decree of injunction

by a Civil Court of competent jurisdiction against the judgment and order of a Court

restraining commission or wrongful omission and injunction is a judicial process, whereby a

person is required to do or refer from bring a particular thing and injunction, may be a final

remedy in a suit or premanentory and interlocutory while the suit is pending. A perpetual

injunction as prescribed under Section 38(3) of the Specific Relief Act, 1963 having been

granted in favour of the opposite party No. 3-Dayanidhi Dash by a Court of competent

jurisdiction remains final and binding on all parties. It is further contended that a decree of

permanent/perpetual injunction can be executed if the judgment-debtor disturbs his

possession and in the instant case, the petitioners and opposite party No. 4 have trespassed

into the cuit property and continued with their illegal possession and since the decree passed

by the civil Court has became final, the same was required to be obeyed and the obstruction

created by the petitioners and opposite party No. 4 along with others was liable to be

removed under Order 21 Rule 32 CPC. In this respect, learned Counsel for the opposite

parties placed reliance on the judgment of this Court in the case of Gopal Barik v. Bhima

Barik and another, MANU/OR/0171/1992 : 1993(I)OLR139 and the next judgment of the

Hon'ble Supreme Court in the case of Jai Dayal and Ors. v. Krishan Lal Garg and Anr.,

MANU/SC/0933/1997 : AIR1997SC3765 . In conclusion, learned Counsel submitted that on

a consideration of the aforesaid facts and law, opposite party No. 3 being a decree holder of

enforceable decree passed by the competent civil Court, which has become final, cannot be

ignored in law and must be enforced. In conclusidn, it is submitted that the magnanimity of

law and the decree of a Court cannot be permitted to be throttled by the violators who

continue their illegal possession even after the revisional order passed by the learned

Additional District and Sessions Judge and impugned in the present writ application.

6. In so far as the main ground of challenge is concerned i.e. as to whether the execution

could be made on recovery of possession by a decree holder where a decree of permanent

injunction has been granted, is no longer res integra and has been settled by this Court in the

case of Gopal Barik {supra). In the said case, the plaintiff apart from seeking other relief

prayed for permanently restraining defendant from interfering with the possession. The suit

was decreed in favour of the plaintiff and consequently, the defendant was permanently

restrained.

Thereafter, the plaintiff-decree holder filed an execution petition seeking recovery of

possession. Objection was raised by the defendant claiming that in view of the nature of the

decree, i.e. decree of permanent injunction there was no scope for filing an execution petition

and seeking recovery of possession. It was further contended that the Executing Court cannot

go behind the decree and does not have the authority to effect recovery of possession. On the

aforesaid pleading, it was held that where the plaintiff asserts that the defendant was

disturbing possession and prayed for recovery of possession and if it is found that he had

been dispossessed, an Executing Court can interpret the decree to come to conclusion that the

plaintiff not being in possession, the decree envisaged recovery of possession. Therefore, the

question of recovery of possession by an Executing Court, does not amount to going behind

the decree, but amounts to interpretation of the decree itself. It was further held that in order

to avoid any technical difficulties and to protect a decree holder after obtaining the decree

from enjoying the fruits of the decree, Code of Civil Procedure has been amended. It is only

where the execution seeks some relief which was specifically refused or is inconsistent with

the relief granted by the Civil Court, the Executing Court cannot go behind such a decree to

execute the same.

Where the decree is not inconsistent with the relief sought to be executed and in fact, is in

furtherance of the same, it would remain within the competence and domain of the Executing

Court for interpreting such a decree. His Lordship of the Orissa High Court Mr. S.C.

Mohapatra (as he the then was) further held that a judgment-debtor who is vanquished in the

legal battle cannot be allowed to enjoy the property which Court on trial held that he was not

entitled to. Therefore, it was concluded that, even a decree for permanent injunction can be

executed where there was no necessity to interpret the decree and if the plaintiff on getting

possession from the Court is either dispossessed or disturbed by the.judgment debtor, a

Decree Holder in a decree for permanent injunction can seek execution of such a decree and

to that extent the Executing Court is within its competence to direct recovery of possession

for a decree holder who has been dispossessed after a decree of permanent injunction has

been passed.

The Hon'ble Supreme Court in the case of Jai Dayal and Ors. (supra) has came to hold that

under Order 21 Rule 32 C.P.C. where a decree for perpetual injunction and mandatory

injunction has been passed in a mandatory execution thereto, the Executing Court is

competent to direct the removal of the obstruction and enforcing the perpetual injunction

passed by the civil Court. In this case, the defendants took a defence under Section 22 of the

Easements Act but this plea was turned down by the Hon'ble Supreme Court by holding that,

they have allowed the perpetual injunction and mandatory injunction granted by the trial

Court to become final, it would be no defence for the respondent to plead that he had not

obstructed the passage etc. or that as passed by the High Court, a part of the property in

which the original shop was constructed, was not part of the property in the original suit. In

other words, if a judgment-debtor had suffered the decree, no attempt to circumvent the

perpetual injunction and mandatory injunction can be permitted. Non-compliance is a

continuing disobedience entailing penal consequences and separate fresh suit, is barred under

Section 49 of CPC and, therefore, the Hon'ble Supreme Court came to hold that it was

competent for the Executing Court to effect recovery of the property in question even in a suit

where mandatory injunction/perpetuity injunction have been granted.

7. In the light of the aforesaid discussion, I have no hesitation in holding that the writ

application deserves to be dismissed and am of the view that none of the contentions raised in

the application, are worthy of any further consideration and, therefore, the writ application

stands dismissed. All interim orders stand vacated and Executing Court is directed to

implement the direction of the Revisional Court forthwith preferably, within a period of three

months from the date of receipt of copy of this judgment and for such purpose, if necessary, it

shall be open for the trial Court to consider the necessity for issue notice to the local police

administration to assist in effecting implementation of the directions of the Executing Court.

IN THE HIGH COURT OF DELHI

Suit No. 712 of 1982

Decided On: 19.05.1987

Appellants: Usha Sales Ltd. and Ors.

Vs. Respondent: Aruna Gupta and Anr.

Hon'ble Judges/Coram: Jagdish Chandra, J.

Counsels: S.B. Ghosh, T.K. Ganju and P.K. Agarwal, Advs

Subject: Property

Catch Words

Mentioned IN

Acts/Rules/Orders:

Indian Companies Act; Delhi Rent Control Act, 1958 - Section 14, Delhi Rent Control Act,

1958 - Section 15; Specific Relief Act, 1963 - Section 14, Specific Relief Act, 1963 -

Section 16, Specific Relief Act, 1963 - Section 38, Specific Relief Act, 1963 - Section

38(3), Specific Relief Act, 1963 - Section 41; Bombay Rents, Hotel and Lodging House

Rates Control Act, 1947 - Section 12, Bombay Rents, Hotel and Lodging House Rates

Control Act, 1947 - Section 13, Bombay Rents, Hotel and Lodging House Rates Control Act,

1947 - Section 28; Transfer of Property Act; Court Fees Act - Section 11; Code of Civil

Procedure, 1908 - Section 2(12), Code of Civil Procedure, 1908 - Order 8 Rule 5 , Code of

Civil Procedure, 1908 - Order 20 Rule 12

Citing Reference:

Discussed

7

Case Note:

Civil - Court-fees - Land-lady and Defendant No. 2 resisted entry of Plaintiff no. 2 in

premises in question on ground that lease deed in respect of tenancy premises was only

for residence of Company's previous General Manager and for no other officer of

Company and that lease had come to end after said Manager had left services of

Company and handed over possession of same - Hence, this Petition - Whether, suit was

properly valued for purposes of court-fees - Held, Plaintiffs did not know at time of

filing of suit as to when they would be allowed to use peacefully demised premises and

thus, could not possibly state valuation for purposes of court-fees in plaint in respect of

future damages from date of institution of suit till date they were allowed to use

peacefully premises in question - However, valuation of future damages from date of

institution of suit till date Plaintiffs were allowed to use peacefully tenanted premises,

could not be included in "valuation for purposes of court-fees nor were Plaintiffs

required to pay any court fees in respect of same - Therefore, plaint was properly

valued for purposes of court-fees and that correct court-fees was paid thereon and issue

was decided partly in favor of Plaintiffs and partly against them.

Tenancy - Maintainability - Whether, suit was maintainable and barred in view of

provisions of Sections 14, 16, 38 and 41 of the Specific Relief Act, 1963 - Held, even

though with exit of previous General Manager of Plaintiff-company, contractual

tenancy came to end, Company became statutory tenant in respect of demised premises

- However, statutory tenant enforced his right under statute and not under contract -

Sections 14 and 16 of the Specific Relief Act, 1963 pertained to specific enforceability of

contract and not statutory right - Section 41(e) of the Act talked of contract and there

was no bar with regard to enforcement of such right to property and particularly such

right flowing from a statute - Hence, said issues were decided in favor of Plaintiffs and

against Defendants.

Tenancy - Interpretation - Whether, Plaintiff-company or previous General Manager of

Plaintiff-company was tenant of demised premises - Held, Ext.DWI/X-4 stated that

Company and not previous manager was tenant of property in question - However,

plaint was dated only week prior to filing of suit and lease deed was executed by

Company in favor of land-lady and not manager of Company - Even though Ext. PW1/6

was filled up by previous manager in favor of Company, same could not make him

tenant in respect thereof under land-lady and it was Company which was really

intended to be tenant - Further, assertions in two letters Ext. P2 appeared to have been

made by Defendants for their own benefit as they apprehended that Company, after

resignation of manager from company, could put in possession of tenanted premises

some other officer of its own - Thus, Plaintiff-company was tenant of premises in

question and this issue was decided in favor of Plaintiffs.

Tenancy - Statutory tenant - Whether, suit premises were taken for use and occupation

of previous manager of company and Plaintiff No. 2 had any right to enter premises in

suit and use and occupy same without consent of Defendant No. I - Held, in view of

mandatory provision of Section 14 of the Delhi Rent Control Act, 1958, insertion of

clause that premises in question be used only by previous manager, in contract of lease,

could be of no avail to landlady for dispossessing Company from said premises unless

and until landlady brought her case on any of grounds of eviction set out in Section 15

of the Act - However, Plaintiff-company had become statutory tenant under landlady

after resignation of said manager from Company - Hence, Company had right to use

premises in question for residence of any other Officer of its own including Plaintiff

No.2 without obtaining consent of landlady until Company was evicted under Section 14

of the Act - So, these issues were decided in favor of Plaintiffs.

Tenancy - Surrender of tenancy - Whether, contract of lease was frustrated in view of

resignation of previous manager from Plaintiff-company and suit premises were

surrendered by him to Defendant No.1 - Held, as tenant in premises in question was

Company and not previous manager of company, said manager had no right to

surrender possession of premises in question to landlady and possession could be

surrendered only by tenant-Company - No effort was made by Plaintiffs to amend

plaint and replication regarding date on morning of which previous manager of

company had delivered possession of premises in question - Plaintiff No.3 verified

Company's furniture in premises in question in absence of manager - Para 7 of

replication made it clear that key of premises and furniture etc. were handed over to

official of Company on morning of date in question by manager himself in premises

itself - Thus, suit premises were surrendered by previous manager to landlady on behalf

of Company only and issue was decided accordingly partly in favor of Plaintiffs and

partly in favor of Defendants.

Property - Validity of lease agreement - Whether, lease agreement vitiated by coercion,

as alleged, or unjustified or illegal in any manner - Held, no writing by way of protest

was sent by Company to landlady for insertion of impugned clause of user of premises

in question only for residence of manager of Plaintiff-company and for no other officer

of Company, as having been result of any coercion on her part - Thus, issue was decided

against Plaintiffs.

Tenancy - Compensation - Whether, Plaintiffs 2 and 3 were illegally detained by

Defendants and were entitled to any compensation - Held, Ext. P2 showed that manager

of Plaintiff-company had informed landlady that he had resigned from Company and

would vacate house on relevant date and said letter was supported by plaint and

replication of Plaintiff, which in turn ran down version of Plaintiff no.2 and his

companions coming to premises in question on relevant date and being locked by

landlady - Thus, Plaintiffs 2 and 3 were not illegally detained by Defendants and no

compensation could be awarded to them and issue was decided against Plaintiffs.

Property - Injunction - Whether, Plaintiffs were entitled to injunction restraining

Defendants from disturbing their possession, in respect of premises given to Plaintiff

No. 1 on rent and damages - Held, even after lapse and termination of contractual

tenancy, Company became statutory tenant under landlady and was entitled to

statutory protection and could enforce right of irremovability from premises in question

through injunction - Clause in lease-deed that premises in question could be used for

residence of previous manager of Plaintiff-company alone had no adverse effect on

aforesaid statutory right of Company and that right of Company could be protected by

grant of injunction - Suit premises were surrendered by manager to landlady on behalf

of Company - Thus, Company remained in possession of premises in question upto said

surrender and no damages could be allowed to Company against Defendants for any

period up to filing of suit - However, Court could grant relief only as on date of suit and

not on subsequent cause of action as there was no other provision for decreeing any

amounts or compensation paid or received during pendency of suit or for payment of

court fees after passing of decree - Hence, Plaintiffs were entitled to injunction and not

to damages and issue was decided partly in favor of Plaintiffs and partly against them.

Ratio Decidendi:

"Statutory tenant shall be entitled to statutory protection in respect of its status of

irremovability unless evicted under enabling provisions of relevant statute."

JUDGMENT

Jagdish Chandra, J.

(1) In this suit the plaintiffs seek the following reliefs against the defendants in respect of the

itemizes in dispute comprising the first floor premises of* the house known as 99-Anand

Lok, New Delhi and the second floor in the annexe premises and the car parking space on the

ground floor, therein :

(a) restraining defendants from obstructing the plaintiffs their employees representatives,

and/or causing obstruction in any manner whatsoever, from going to and using the 1st floor

premises and the Car Park space at ground floor, of the house known as 99, Anand Lok, New

Delhi.

(B)restraining the defendants from disturbing the possession of the plaintiffs, in respect of the

premises, given to plaintiff No. 1 on rent, in house No. 99, Anand Lok, New Delhi.

(C)to pass a decree in the sum) of Rs. 1,04,000 as compensation for damages caused to the

plaintiff.

(D)a decree for further damages at the rate of Rs. 3100 per month and Rs. 500 per day from

5-5-1982 till the date the plaintiffs are allowed to use peacefully these premises.

(2) plaintiff No. 1 M/ s. Usha Sales Ltd., New Delhi (hereinafter to be referred to as the

Company) is a limited company duly registered under the Indian Companies Act, and

plaintiffs 2 and 3 are respectively its marketing manager and a senior officer. The premises in

question were taken on lease by the Company from the defendants at a monthly rental of Rs.

3100 out of which the rental of Rs. 2100 was towards the first floor of the main premises and

the remaining Rs. 1100 towards the second floor of the annexe premises and the car parking

space on the ground floor. The premises m question were allotted by the Company to its

previous General Manager L. L. Jain for his residence who subsequently tendered his

resignation from the service of the company on 6-2-1982 and whose resignation was accepted

and who was ultimately relieved by the Company from its service on 5-5-1982, and who also

handed over the possession of the said premises along with furniture etc. to the company on

that very day. The dispute between the parties arose in respect of these premises when

plaintiff no. 2 S. N. Sarma, the marketing manager of the Company who was transferred from

Hyderabad to Delhi, was sought to be put into possession of the premises in question and

who had brought with him a truck load of .his luggage to these premises and when his entry

in these premises was sought to be resisted by the land-lady Ms. Aruna Gupta and her

husband Bharat Kumar Gupta defendant No. 2 on the ground that the lease deed in respect of

the tenancy premises was only for the residence of the Company's previous General Manager

L. L. Jain and for no other officer of the Company and that the lease had come to an end after

L. L. Jain had left the services of the Company and handed over the possession of the

premises in question The allegations of the plaintiffs are that when S. N. Sarma. Saniay

Wndhawan co-plaintiff Ms. S. N. Sarma and Company's Chowkidar named Pancham went up

and got into the first floor of House No. 99, Anand Lok, New Delhi, the defendants, all of a

sudden, locked the door of the staircase on the ground floor which is the only access to the

premises in question en the first floor and a further intention of causing further harassment to

them, cut-off the electricity, telephone and water connections of the first floor premises as a

result of which the above-mentioned four persons were illegally and forcibly detained and

confined to the first floor of the premise against their wishes by the defendants for about four

hours and they were thus deprived of the aforesaid facilities of electricity, water and

telephone as also the meals during the aforesaid period of their wrongful confinement and

they were also unable to communicate with any person outside the said premises, not even

the office of the company. It is further alleged that these persons also suffered from agony-

mental as well as physical-accompanied by a severe shock to their nervous system. Sanjay

Wadhawan plaintiff No. 2 was able to inform the management of the Company about the

aforesaid wrongful detentions, through a slip written by him and thrown out of the first floor

premises to a peon of the Company who was standing outside near the truck carrying the

luggage of S. N. Sarma. When the other officers of the Company rushed to the premises in

question they demanded and persuaded the landlady defendant no. I to open the door to the

staircase whereupon plaintiffs S. N. Sarma and Sanjay Wadhawan together with Mrs. Sarma

and Chowkidar Panjan were in a position to come down. Both the parties then complained to

the police and on whose intervention the luggage of S. N. Sarma was kept in the tenanted

annexe on the second floor of the premises.

(3) It is also asserted that the defendants are not allowing the plaintiffs and the Company's

officers I representatives to so to the first floor premises in the main building and to use the

same for the residence of its officer S. N. Sarma plaintiff No. 2, and have threatened to cause

obstruction in future, in case any attempt was made by the plaintiff to go to the first floor or

park the car on the ground floor of the tenants premises and use the same for the residence of

its any other officers including plaintiff no. 2 S. N. Sarma and further that even the essential

.facilities like water, electricity and telephone connections which had been illegally cut-off by

the defendants, have lot been restored uptil now as a result of which the Company is unable

to use the first floor premises and the parking space on the ground floor any more and enjoy

the aforesaid essential amenities since 5-5-1982. The aforesaid telephone connection belongs

to the Company.

(4) It is also asserted that plaintiff No. 2 S. N. Sarma who had come from Hyderabad on

transfer bag and baggage had been allotted by the Company the premises in dispute turn his

residence but on account of the aforesaid obstructionist attitude and activity of the defendants

S. N. Sarma has been compelled to stay in Lodi Hotel with his family, against his will as a

result of which the Company is suffering unnecessary loss. The covenant in the lease-deed to

the effect that the premises in question shall not be used for the residence of any other officer

of the Company except L. L. Jain, unless otherwise agreed to by the landlady, has been

challenged by the plaintiffs as unenforceable in law and the landlady can evict the Company

which is now the statutory tenant, only under the provision of the Delhi Rent Control Act,

1958 but is not entitled to obstruct the Company in the fashion resorted to by her. The

aforesaid co nant in the lease-deed is also assailed by the plaintiffs as a result of the coercion

asserting that the Company was badly in need of a residential premises for the residence of its

officers as getting a suitable accommodation in Delhi and particularly in South Delhi, was a

difficult task, and the rents going up high every day, the general tendency of the landlords

was to get the maximum rents of their property with an expectation of increase thereof every

six months and thin putting the tenants to accept their terms and the defendants being no

exception, the Company was, thus, coerced to accept this term in the lease deed. It is further

asserted that the Company would not .agree to the demand of the landlady for the

enhancement of the install from Rs. 3.100 to Rs. 4,000 per month for the induction of another

officer of the Company.

(5) For the above-mentioned conduct on the part of the defendants the aforesaid reliefs have

been claimed in this suit.

(6) The suit has been resisted by the. defendants who while conceding the tenancy in respect

of the premises in question Have raised certain preliminary objections to the effect that the

suit" not maintainable and is even otherwise barred by Ss. 14, 16. 38 and 41 of the Specific

Relief Act. 1963 and does not disclosed any cause of action against them and also that the

suit is not properly valued for .purposes of court fees and jurisdiction. It is asserted that in

view of the clear term provided in the lease-deed that the premises in question were let out to

the Company only for the residence of one specified and particular officer of the Company

named L L. Jain and for the occupation of no other officer of the Company, and L. L. Jain

having resigned from the Company, the Company is barred from using or allowing the use of

the premises in question by its am other officer or employee. The defendants have also

pleaded that in fact it was L. L. Jain who was the tenant of the defendants in the premises in

question but as he was not to pay rent himself out of his own pocket but was to be paid by the

Company, it was in those circumstances that in the lease-deed the Company was shown as a

lessee, while in substance and reality the premises were let out only to L. L. Jain and the fact

remained that for all intents and purposes L L, Jain was the tenant. It was further pleaded that

even if assuming though not admitting that the Company was a tenant, the lease was meant

only for the benefit of L. L. Jain and it was clearly understood that in case L. L. Jain ceased to

be in the employment of the Company for any reason whatsoever, the contract of lease would

stand discharged and would cease io be enforceable and the Company would no longer be the

tenant in the premises in question and the possession thereof would be immediately handed

over to the defendants and the Company being bound by the aforesaid expressed and implied

terms of the contract of lease was bound by the same and cons quaintly the suit was wholly

untenable, misconceived, mala fide and fraudulent. It is also asserted that L. L. Jain had

already delivered possession of the premises in question to defendant No. 1 on 14-5-1982,

either for himself and\or on behalf of the Company, denying the assertion of the Company

that lie possession was delivered by L. T.. Jain to it, with the result that the suit for injunction

was not maintainable.

(7) The defendants have also asserted that it was L, L. Jain who was quite well known to the

defendants as he himself was a Chartered Accountant and defendant No. 2 was also a

Chartered Accountant and had assured and represented to the defendants that he was to take

the premises on lease but as the rent was to be paid by the Company the lease deed would be

executed by the Company in favor of the land lady defendant No. I, that he would himself

reside in the premises and that the lease would be only for his benefit and residence and for

no other, officer or employee of t:ic Company and that in Case he was transferred out of

Delhi or ceased to be in the employment of the Company the lease would stand discharged

and would be unenforceable and that he would hand over the possession of the premises to

them and the Company would then have no right, title or interest therein and that it was on

those representation and assurance of L. L. Jain that the said premises were given on lease to

him through the rent-notes were executed and handed over in the name of the Company.

(8) The allegations of the plaintiffs regarding the illegal or wrongful confinement and

detention of plaintiffs 2 and 3, Mrs. Sarma and Company's Chowkidar named Pancham are

specifically denied by asserting to the contrary that the plaintiffs with a squad of 20 persons

tried to forcly occupy the first floor pleases which was objected to and resisted by the

defendants and other residents of the colony since their action was wholly wrongful, illegal,

violent and criminal in nature and content whereupon the Flying Squad was summoned and it

was on the intervention of and on the protection given by the police that the plaintiffs could

not force entry into the first floor premises but to avoid the occurrence of violence at the

hands of the plaintiffs, and at the instance of the police the Company was permitted to keep

the luggage of plaintiff No. 2 S. N. Sarma on the second floor of the annexe presses which

they had brought in a truck along with the squad more than 20 persons and then arrangement

was permitted subject to the determination of the dispute between the parties "elating to the

premises in question and, thus, the assertions of the plaintiffs in regard the their actual

physical possession of the first floor premises as also the annexe premises have been denied

by the defendants as absolutely baseless and false.

(9) The allegation regarding the cutting of the amenities such as electricity, water and

telephone connections of the first floor by the defendants on that date or any other date lias

also been denied Thus, the claim for any compensation damages has also been controverter. It

is also challenged that the defendants have no right to obstruct the unlawful act on the part of

the plaintiffs to make an forcible entry into these premises or that the aforesaid covenant in

the lease-deed that the premises in question were meant only for the residence of L. L. Jain

and for none else, was not binding upon the plaintiffs. The assertion that the landlady wanted

to increase .the rent and had got inserted the aforesaid covenant in the lease-deed for that

purpose, was also dented as wholly baseless. They have, thus, asserted their right to prevent

any trespass on the part of the plaintiffs -and to resist any forcible entry in the premises in

question as threatened and being threatened by them.

(10) The pleadings in the written statement were controverter by tile plaintiffs in their

replication and from the pleadings of the parties the following issues were framed:

1.Has the suit been properly valued for the purposes of court-fees; and has the correct court-

fee been paid thereon?

2.Is the suit maintainable in the present form?

3.Is the suit barred in view of the provisions of the Specific Relief Act, especially Sections

14, 16, 38 and 41?

4.Is the tenant of the premises the plaintiff-company or Mr. L. L. Jain?

5.What is the effect of the clauses in the lease, that the suit premises have been taken for the

use and occupation of Mr. L. L. Jain only?

6.Does the plaintiff No. 2 have any right to enter the premises in suit and use and occupy the

same without the consent of defendant No. I?

7.Has the contract of least been frustrated in view of the resignation of Mr. L. L. Jain from

the plaintiff-company?

8.Has the suit premises been surrendered by Mr. L. L. Jain to defendant No. 1?

9.Is the agreement dated 27th January 1981 vitiated by coercion ,as alleged, or unjustified or

illegal in any manner?

10.Have plaintiffs 2 and 3 been illegally detained by the defendants and are they entitled to

any compensation on this account?

11.Are the plaintiffs entitled to the injunction as sought for and for the damages as

demanded? If so. what is the amount?

12.Relief. Issue No. 1

(11) The perusal of the plaint shows that the plaintiffs claimed further damages against the

defendants at the rate of Rs. 3100 per month and Rs. 500 per day from 5-5-1982 till such date

the plaintiffs 'are allowed to use peacefully tenanted premises in question. No court-fees was

paid in respect of this relief of further damages nor the valuation thereof stated in the plaint

nor purposes of court-fees. The suit was filed in Court on 13-5-1982 and obviously there was

no justification for the plaintiffs in not paying the requisite court-fees and staling the

valuation for purposes of court-fees in respect of these damages at least from the period from

5-5-19-82 till the filing of the suit, i.e. 13-5-1982 and to that extent the objection of the

defendants under this issue is correct.

(12) Regarding the payment of court-fees and the statement of valuation for purposes of court

-fees in the plaint, in respect of the aforesaid further dam-ages from the date of the filing of

the suit till such date the plaintiffs are allowed to use peacefully the tenanted premises, the

objection raised by the defendants is not tenable. The learned counsel for the plaintiffs

contended, and in my opinion correctly, that the valuation of the suit is to be seen only as on

the date of the institution of the suit and not what it shall be on some unknown subsequent

date. In this case it was not known to the plaintiffs at the time when they filed this suit as to

when they would be allowed to use peacefully the demised premises and that was the matter

which rested with the decision of the approbate issue in the suit which decision would

normally be given at the time of the final disposal of the entire suit. With that ignorance the

plaintiffs could not possibly state the valuation for purposes of court-fees in the plaint in

respect of the future damages from the date of the institution of the suit till the date they are

allowed to use peacefully the premises in question. Girja Kuer v. Shiva Prasad Singh and

others MANU/BH/0172/1935 : Air 1935 Pat 160 (1) is the authority cited by the learned

counsel for the plaintiffs in support of this proposition and it was held therein as under :

The value of the suit is its value at the date of the institution of the suit and not what will

become its value on some subsequent date. Future mesne profits being uncertain cannot be

taken into account for the purpose of payment of court-fee and for the purpose of determining

the value of a suit. Applying the analogy of future mesne profits to future damages it is clear

that no court-fee is payable in respect of the damages pendente lite. It follows Therefore that

it cannot be taken into account for determining the value of the suit.

No authority to the contrary on this point was cited by the learned counsel for the defendants.

(13) Consequently, it is held that the suit has not been properly valued for purposes of court-

fee in so far as it omits to put the valuation in respect of the claim for damages at the rate of

Rs. 3100 per month and Rs. 500 per day for the period from 5-5-1982 till 13-5-1982 the date

of the institution of the suit, and further that court-fees has not been paid by the plaint's for

the claimed damages on those rates for the said period. But retarding the rest of the. claim for

future damages from that date of the institution of the Suit till the date the plaintiffs are

allowed to use peacefully the tenanted premises, the objection of the defendants is not tenable

and any such valuation could not be included in the "valuation for purposes of court-fees nor

were the plaintiffs required to pay any court fees in respect of the same and, thus to that

extent the plaint is held to be properly valued for purposes of court-fees and further that

correct court-fees has been paid thereon. This issue i" decided accordingly partly in favor of

the plaintiffs and partly against them to the extent indicated above. Is gave NOS. 2 & 3

(14) The suit is for the grant of permanent injunction as also for the recovery of damages. The

injunction sought is that the defendants should not obstruct the plaintiffs/their employees

representatives, and/or causing obstruction in any manner whatsoever, from going to and

using the first floor premises and the car park space 'at ground floor of the house known as

99, Anand Lok, New Delhi and further should not disturb the possession of the plaintiffs in

respect thereof. According to the learned counsel for the defendants the contract of lease

stood frustrated as L. L. Jain had left the premises of the company and was no longer in

possession of the demised premises and under the lease-deed the premises in question had

been taken on lease only for the residence of L. L. Jain, an officer of the Company and the

Company was debarred under the lease from using the demised premises for any other

purpose or for the residence of its any other officer, and, thus, there was left no right with the'

Company to enforce against the defendants. This contention " lands repelled for the reason

that even though with the exit of L L. Jam the contractual tenancy came to an end, the

Company became statutory tenant in respect of the demised premises and there is no gain-

saying the fact that statutory tenant is entitled to remain in possession of the tenanted

premises until evicted under the relevant provisions of the Delhi Rent Control Act, 1958 (in

short the Act). The suit is based not on the contract of lease but has been brought for

protecting the Company's statutory estate in the demised premises by protecting against

trespass and interference by the defendants. These plea's find mention in sub-paras (v) to

(viii) of Para 16 of the plaint. For reaming the n foresaid statutory protection the Company

has a right of injunction 'and can also claim damages if such a right has been sought to be

disturbed or interfered with by the defendants.

(15) The Supreme Court has in Biswabani Pvt. Ltd. v. Santosh Kumar Dutta and others

MANU/SC/0486/1979 : [1980]1SCR650 held that a statutory tenant can always file a suit to

ask for an injunction restraining the landlord from interfering with his possession or user of

the premises. In that case the Supreme Court while setting aside the judgment of the High

Court and while holding that the tenant company was a statutory tenant observed that the

statutory tenant would enjoy the protection of the statute and the status of irrevocability

unless he was evicted from the premises under the enabling provisions of the statute and that

such tenant could enforce such right through an injunction. When the statutory tenant asks for

an injunction restraining the landlord from interfering with his possession of the demised

premises ,then he is asserting a property right. Such injunction is permissible under Section

38(3) of the Specific Relief Act, 1963 which reads as under :

Perpetual injunction when granted (1)..............,.............. (2) ............................. (3) When the

defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property the

court may grant a perceptual injunction in the following cases, namely- (a) where the

defendant is trustee of the property for the plaintiff; (b) where there exists no standard for

ascertaining the actual damages caused, or likely to be caused, by the invasion; (e) where the

invasion is such that compensation in money would not afford adequate relief ; (d) where the

injunction is necessary to prevent a multiplicity of judicial proceedings.

The right of the statutory tenant flows not fro a contract but from a statute. The question is

not whether an injunction can be granted to specifically perform a term of a contractor not

and the provisions of Sections 14, 16 and 41 of the Specific Relief Act have Therefore no

relevance or application. The statutory tenant enforces his right under the statute and not

under the contract. Ss. 14 and 16 of the Specific Relief Aet, 1963 pertain to the specific

enforceability of a contract and not a statutory right. S. 41(e) on which reliance has been

placed by the defendants also talks of a contract. There is no bar with regard to the

enforcement of such right to property and, particularly, such right flowing from a statute. It is

for this reason that in MANU/SC/0486/1979 : [1980]1SCR650 (supra) the Supreme Court

granted such injunction to a statutory tenant with the following observations:-

In such circumstances the appellant as tenant would be entitled to protect its possession

unless evicted in due course of law and in order to protect its possession it can legitimately

sue, .there being no bar in law, for a declaration of its status as tenant and for an injunction

either prohibitory or mandatory, -as the case maybe.........

So, these Issues are decided in favor of the plaintiffs and against the defendants.

(16) Issue NO. 4 The most important piece of evidence which clinches this issue is

Ext.DWI{X-4 which is the certified copy of the plaint of Suit No. 542 of 1982 filed by the

land-lady /defendant No. 1 Smt. Aruna Gupta against the Company defendant No. 1 and L.L.

Jain as defendant No. 2 in the court of Shri Sat Pal, Sub Judge, Delhi. This plaint is dated 6-

5-1982 and it contains clear and unequivocal admissions on the part of the land-lady

regarding the Company M/s. Usha Sales Limited being the tenant of the property in question

under that plaintiffs and it would be advisable to setout the relevant positions from this plaint

and the same are reproduced below :--

1.That the plaintiff is the owner landlord of property No. 99, Anami Lok, New Delhi since

the time it was purchased /built. 2. That with effect from 1-1-1981, the plaintiff let out two

portions of the said property to the defendant No. 1 for use as residence for the defendant No.

2 who is a senior Employee of the defendant No. 1. 3. That the terms and conditions relating

to the tenancy of the defendant No. 2 were reduced into writing by the defendant No. I vide

its communication No. HD/ADG/H.2 dated 27-1-1981, according to which the tenanted

premises No. 2(a) cannot be used for any purpose other than the residence of the defendant

No. 2. 5. ..........keeping with the terms and conditions of the 'tenancy the tenanted premises

cannot be used for any purpose other than the residence of the defendant No. 2. 7. That the

threatened action of the defendants is an explicit breach of the obligations existing in favor of

the plaintiff by virtue of writing dated 27th January, 1981 addressed to the plaintiff by the

defendant No. I in which the terms and conditions relating to the tenancy in respect of the

tenanted premises in question are embodied and the defendant are bound by the same.

(17) So, from the plain reading of the aforesaid paras in the plaint of the suit filed by the land-

lady against M/s. Usha Sales Limited and Shri L. L. Jain, there is left no manner of doubt that

the Company and not L. L. Jain was the tenant of the property in question. One more very

significant, fact which emerges from this plaint is that the landlady unambiguously relies

upon the writing dated 27-1-1981 evidencing the lease in question and addressed by the

Company to the land-lady and further relying fully on the terms and conditions mentioned

therein relating to the tenancy in respect of the tenanted premises in question and which

according to her bound the Company as well as L. L. Jain. It would also be noted that this

plaint is dated 6-5-1982 only a week prior to the filing of the present suit on 13-5-1982

wherein , plaint is dated 12-5-1982. In the face of the aforesaid decisive and clinching

evidence in favor of the Company, no amount of any other evidence would be sufficient to

rebut the same. The lease deed relied upon by the land-lady herself in the above mentioned

plaint Ext. DW1/X-4 filed in the suit in the court of Shri Sat Pal Sub Judge was executed by

the Company in favor of the land-lady and not by L. L. Jain.

(18) The contention raised on behalf of the defendants that the premises let out were meant

only for the residence of L.L. Jam, an officer of the Company and for the residence of no

other officer of the Company except with the consent of the land-lady and, thus, the tenancy

had -been created only for the beneficial interest of L. L. Jain and of no other, and further that

the rent of the premises was also to come from L. L. Jam and not from the Company and,

thus, the tenancy in favor of the Company was only a benami and that the real tenant was L.

L. Jain, cannot be accepted. The defendants placed reliance upon a Performa Ext. (Public

Witness 1/6 which is a proforma of the letter of allotment which the Company is having for

the purpose of the same being filled up by its officers for the purpose of allotment of

residential premises to them. Shri Kameshwar Swarup (FW1) in his cross-examination Co

conceded as correct that the Company had a proforma of the letter of allotment and Ext.

PW1/6 was that proforma. This proforma reads as to flows :

You shall arrange to pay the rent directly to the Accounts Department. In case your

entitlement of house rent subsidy is less than the rental of the above premises, the short fall in

the rent amount shall have to be made good by your. You shall also be responsible for

payment of electricity /water charges or any other dues as per applicable rules in this regard.

Even if such a proforma was filled up by L. L. Jain in favor of the Company, and he was also

liable for the payment of the entire rental of the tenanted premises, the same does not and

cannot make him the tenant in respect thereof under the land-lady and it is the Company

which was really intended to be the tenant. The rent was not to be paid direct by L. L. Jam to

the land-lady but the same was to be paid first by the officer concerned in the accounts

department of the Company and it was then that the Company was pay the rent to the land-

lady. Such an arrangement with circumlocution is not for nothing and it is a matter of

common knowledge that such arrangements are frequently made with the land-lords by the

various companies though the premise are taken by the companies for the residence of their

officers, Such arrangement involves the direct responsibility of the Company for the payment

of rent to the land-lady who appears to have more faith in an organisation for the regular

payment of rent without default than in an individual tenant who is more prone -to making

defaults or is being irregular , the payment of rent. -This is very important and Significant

.aspect of the matter in the creation of tenancy.

(19) The learned counsel for the plaintiffs placed reliance on two letters Ext. P2 dated 30-4-

1982 and dated 8-5-1982 (Annexure I to the replication). The letter Ext. P2 was addressed by

the land-lady to the Executive Director of the Company whereas the letter dated 8-5-1982 is

from Bharat Kumar Gupta defendant No. 2, husband of the land-lady Shri Charat Ram. It was

argued on behalf of the plaintiffs that since both the letters were addressed to the Company

the lease must be held in favor of the Company itself, as it was the Company which was

requested in these letters to see that the vacant possession of the tenanted premises was

handed over by it/L. L. Jain when he vacated the premises in question on 5-5-1982 as he had

resigned from the Company. The learned counsel for the defendants submitted that the

reliance of the plaintiffs on these two letters for the aforesaid result was misconceived and

unwarranted Inasmuch as both these letters made the matter clear in favor of the defendants.

The letter Ext. P2 dated 30-4-1982 states as under:- Kindly refer to the lease agreement

entered by me with you in respect of the above premises let out to your L. L. Jain..........". In

the second letter dated 8-5-1982 it is stated as follows :- As I wanted to have some company

in house of my taste I agreed to let out its 1st floor to your Mr. L. L. Jain on 27th January,

1981. Mr. L, L Jain informed me that the rent shall be paid by Messrs Usha Sales Limited, a

Company of which he was then an employee...........". The aforesaid assertions appearing in

these two letters are without any basis and are, in fact, admissions of the defendants in their

own favor and are almost meaningless view of the unmistakable admission of the land-lady in

the plaint of the suit filed by her in the court of Shri Sat Pal, Sub Judge, Delhi. The reliance

on these two letters by the plaintiffs appears to be only in a limited sense as to why these

letters were written by the defendants to the Company when L. L. Jain was the tenant and not

the Company and that the necessity of writing these letters appeared to the defendant for the

reason that the Company was the tenant. The aforesaid assertions in these two letters by the

defendants that the premises had been let out to L. L. Jain appear to have been made by the

defendants for their own benefit as they apprehended that the Company, after resignation of

L. L. Jain from the company, would put in possession of the tenanted premises some other

officer of its own. So, these assertions having been made in imminent anticipation of the

aforesaid probable trouble emanating from the Company, can be given no importance in

favor of the defendants. Under these circumstances, it is held that it is the plaintiff-company

and not its officer L. L Jain who was the tenant of the premises in question and this issue is

found accordingly in favor of the plaintiffs. Issue Nos. 5 & 6

(20) The contention of the learned counsel for the defendants is that as provided in the

contract of lease the suit premises could be used only for the residence of L. L. Jain an

employee of the Company and for no other purpose. The learned counsel also made it clear

during the course of arguments that the defendants were not in any manner seeking the

eviction of the Company from the said premises but the Company would be bound, under the

lease agreement, to use the premises only for that particular purpose, i.e., for the residence of

L. L. Jain and for no other purpose. It is the admitted case of both the parties that the tenanted

premises in question have been used by L. L. Jain for his residence and further that L. L. Jain

has ceased to be in the employment of the Company and is not in occupation of the demised

premises. On the other hand, the contention of the learned counsel for the plaintiffs is that in

the face of the aforesaid clause in the lease-deed, the suit premises were used only by L. Jain

and by none-else and after the exit of L. L. Jain from the services of the Company and from

the premises in question, the contractual lease came to an end and even by the letter Ext. P2

dated 30-4-1982 the land lady had called upon the Company to hand over actual physical

possession of the premises to her as on account of the resignation of G. L. L. Jain from the

Company and his leaving the premises the Company was under an obligation to vacate the

same. and thereby the land lady had terminated the contractual tenancy. The learned counsel

has further urged that on the equating of the contractual tenancy the statutory tenancy in favor

of the Company would come into operation and the right of the statutory tenant to remain in

the premise cannot be interfered with except -through the order of eviction by the Rent

Controller under any one of the grounds of eviction set out in 14 of the Delhi Rent Control

Act. 1958 and that no such order of eviction has been passed against the Company nor has the

landlady instituted any eviction proceedings to obtain such an eviction order. The opening

word of S. 14 of the Act is non-obstante provision according to which notwithstanding

anything to the contrary contained in any other law or contract, no decree or order for the

recovery of possession of any premises shall be made by any court or Controller in favor of

the landlord against a tenant, except B that on an application made by the landlord, in the

prescribed manner, the Controller may pass an order for the recovery possession of the

promises on one or more of the grounds enumerated there under. So, in view of this

mandatory provision of law the insertion of the aforesaid clause of the premises in question to

be used only by L. L. Jain, in the contract of lease, can be of no avail to landlady for

dispossessing the Company/tenant from the said premises unless and until the landlady can

bring her case on any of grounds of eviction set out in S. 15 of the Act. Nagindas Ramdas v.

Dalpatram Is haram alias Brijram and others MANU/SC/0417/1973 : [1974]2SCR544 was

dialing with the case under Bombay Rents, Hotel and Lodging House Rates Control Act (57

of 1947) (at 475) observed as follows:--- Construing the provisions of Ss. 12, 13 and 28 of

the Bombay Rent Act in the light of the public policy which permeates the entire scheme and

structure of the Act, there is no escape from the conclusion that the Rent Court under this Act

is not competent to pass a decree for possession either in invite or with the consent of the

parties on a ground which is de hors the Act or ultra virus the Act. The existence of one of the

statutory grounds mentioned in Ss. 12, and is a sine qua non to the exercise of jurisdiction by

the Rent Court under those provisions. Even parties cannot by their consent confer such

jurisdiction on the Rent Court to do something which according to the legislative mandate, it

could not do". In Smt. Hai Bahu v. Lala Ramnarayan and others MANU/SC/0367/1977 :

[1978]1SCR723 it was held as follows :-- It is well-settled that where the Rent Control and

Restrictions Acts are in operation, a landlord cannot obtain 'eviction of the tenant unless he

can satisfy the requirements of the provisions in those Acts. The general law of landlord and

tenant to that extent will give way to the Special Act in that behalf. It is also well-settled that

if the court does not find the permissible grounds for eviction disclosed in the pleadings and

other materials on record, no consent or compromise will give jurisdiction to the court to pass

a valid decree of eviction". Then again in V. Dhanapal Chettiar v. Yesodai Ammal

MANU/SC/0505/1979 : [1980]1SCR334 7-Judges Bench of the Supreme Court in a

unanimous decision made the following observations :

It will bear repetition to say that under the Transfer of Property Act in order to entitle the

landlord to recover possession determination of the lease is necessary as during its

continuance he could not recover possession, while under the State Rent Act the landlord

becomes entitled to recover possession only on the fulfillment of the rigour of law provided

therein. Otherwise not. He cannot recover possession merely by determination of tenancy.

Then the same authority at page 1753 (para 16) made the following observations :

Even if the lease is determined by a forfeiture under the Transfer of Property Act the tenant

continues to be a tenant, that is to say, there is no forfeiture in the eye of law. The tenant

becomes liable to be evicted and forfeiture comes into play only if he has incurred the

liability to be evicted under the State Rent Act, uoi otherwise.

(21) In the case reported in Biswabani Pvt. Ltd. v. Santosh Kumar Dutta and others

MANU/SC/0486/1979 : [1980]1SCR650 there was a clause that after 5 years the tenant shall

deliver possession and that after the said period he would be treated as a trespasser. The

tenant did not deliver possession and the High Court passed an eviction decree saying that it

would lead to evil consequences, if a party who solemnly agreed to deliver possession was

allowed to resile from his promise. But the Supreme Court set aside the High Court judgment

saying that any 'agreement contrary to the provisions of the Rent Act is invalid and that if the

landlord could enforce such as agreement then it would make a mockery of the provisions of

the said Act. 122

(22) The Calcutta High Court relying on the agreement between the parties to deliver

possession had observed thus :

Here is a party who has solemnly entered into an agree- ment, has enjoyed the benefit of it,

has committed, a flagrant breach of it and now wishes the law to come to his aid and protect

him from evil consequences of the appellant succeeds it would be no unhappy state of affairs.

(23) But the Supreme Court while commenting on this observation of the High Court and

while setting aside, the High Court Judgment observed thus :

And this feeling of righteous indignation completely ignores the overriding provisions of the

relevant Rent Restriction Act which came to the aid of every tenant in its area of operation on

the determination of contractual tenancy. At its commencement every lease would have its

origin in a bilateral contract which except for lease for indefinite period of permanent lease

would be for some specified duration. On the expiry of the period the solemn implied

promise or assurance is to return possession. If such a promise is to be enforced overlooking

or ignoring Rent Restriction Act it would make a mockery of protection extended by Rent

Restriction Act.

(24) Dialing with a case under Delhi Rent Control Act, 1958 the Supreme Court in Smt.Gian

Devi Anand v. Jeevan Kumar and others MANU/SC/0381/1985 : AIR1985SC796 observed

as follows :

Keeping in view the main object of Rent Control Legislation, the position of a tenant whose

contractual tenancy has been determined has to be under- stood in the light of the provisions

of the Rent Acts. Though provisions of all the Rent Control Acts are not uniform, the

common feature of all the Rent Control Legislation is that a contractual tenant on the

termination of the contractual tenancy is by virtue of the provisions of the Rent Acts not

liable to be evicted as a matter of course under the ordinary law of the land and he is entitled

to remain in possession even after determination of the contractual tenancy and order or

decree for eviction will be passed against a tenant unless any ground which entities the

landlord to get an order or decree for possession specified in the Act is established. In other

swords, the common feature of every Rent (Control Act is that it affords protection to every

tenant 'against eviction despite termination of tenancy except on grounds recognised by the

Act and no order or .decree for eviction shall be passed against the tenant unless any such

ground is established to the satisfaction of the Court.

So, in view of these authorities of the Supreme Court the clause in question in the lease-deed

that the suit premises have been taken for the residence of L.L. Jain only, has no adverse

effect against the plaintiff Company which has become a statutory tenant under the landlady

defendant ; No. 1 after the resignation of L.L. Jain from the Company, and further that after

the exit of L. L. Jain, the Company has a right to use the premises in question for the

residence of any other Officer of its own including plaintiff No. 2 S. N. Sarma without

obtaining the consent of the landlady/deft. No. 1 until the Company is evicted under S. 14 of

the Act. So, both these issues are decided in favor of the plaintiffs. Issue NO. 7

(25) It has already been discussed and held under some earlier issues that the contract of lease

has been frustrated in view of the resignation of L.L. Jain from the Company but this does not

affect adversely the right of the Company to retain possession of the premises in question as a

statutory tenant and not to be dispossessed except by order of eviction passed under S. 14 of

the Act.

(26) In view of the finding under issue no. 4 that the tenant in the premises. in question is the

Company and not L.L. Jain this issue loses relevance because L.L. Jain not being a tenant had

no right to surrender possession of the premises in question to the landlady and the

possession could be surrendered only by the 'tenant-Company.

(27) Kameshwar Swarup (Public Witness 1), Secretary and Manager (Legal) of the Company

as also plaintiff No. 2 S. N. Sarma (PW2) and plaintiff No. 3 Sanjay Wadhawan (Public

Witness 3) have deposed that the keys of the first floor of House No. 99" Anand Lok, New

Delhi had been delivered by L.L. Jain to the Company on the morning of 4-5-1982 and the

same were given by the Company to S.N. Sarma (Public Witness 2) on the evening of 4-5-

1982 and that on his application Ext. PWI/5 for allotment of the premises in question, the

letter of allotment Ext. PWI{6 was issued by the Company in his favor on that very day, i.e.

4-5-1982 and that it was on the next day on 5-5-1982 at about 8.00 A.M., Mr. Sarma along

with his wife, Sanjay Wadhawan and one Chowkidar named Pancham entered the first floor

of the said house despite resistance by the landlady who locked them in the premises in

question by locking the door at the ground floor from where the stairs led to the first floor.

On the other hand, the position taken up by the defendants as also in the testimony of the

landlady Smt. Aruna Gupta defendant No. 1 as DW1 is that it was on 14-5-1982 that L.L.

Jain had delivered vacant possession of premises in question to her vide possession receipt

Ext. DW/1 which was proved by S.N. Gupta (DW2) who is one of the attesting witnesses of

the same by stating that it had been signed by L.L. Jain in his presence and that it was attested

by him as also by one Mr. Chhabra in the presence of L. L. Jain. He further stated that L.L.

Jain vacated the said premises on that very day, i.e. 14-5-1982.

(28) In para 5 of the plaint the plaintiffs asserted that L.L. Jain had vacated the premises and

handed over the possession of the same to the Company on 5-5-1982 and on the same day

itself S. N. Sarma had moved into the said premises with his personal belongings. In Para 5 of

the plaint is reproduced below :

c Shri L.L. Jain vacated the aforesaid premises and handed over the possession of the

premises under tenancy and other items like furniture. Cooler, and Air-Conditioner etc. to the

plaintiff-company on 5th May, 1982. The plaintiff's another Officer Shri S. N. Sarma

(plaintiff No. 2) Marketing Manager who had been transferred from Hyderabad to New

Delhi, moved into the aforesaid premises with his personal belongings on 5th May, 1982,

itself.

It was also stated in para 4 of the plaint that Mr. L. L. Jam was relieved from the service of

the Company on 5th May 1982.

(29) In para 7 of the preliminary objections of the written statement the defendants averred as

under :

THAT Shri L. L. Jain has already delivered possession of the premises in question namely

the first floor of house No. 99, Anand Lok, New Delhi to defendant " No. 1 either for himself

and/or on behalf of the plaintiff company to the defendant No. 1 on 14-5-1982......

In the corresponding para 7 of the replication the plaintiffs stated as follows :

IT is denied for want of knowledge that Mr. L. L. Jain has already delivered possession of the

premises in question namely the first floor of house No. 99 Anand Lok, New Delhi to the

Defendant No. 1, either for himself and/or on behalf of plaintiff company to the Defendant

No. 1 on 14-5-1982. As far as the plaintiff No. 1 knows that Mr. L.L. Jain has not given the

possession of the premises to the Defendant No. I on 14-5-1982. On 5-5-1982, as already

stated in the plaint, the keys of the premises and the furniture and/or other goods which were

given to Mr. L. L. Jain by the company were handed over to the official of the plaintiff

company on the morning of 5-5-1982 by Mr. L. L. Jain himself in the premises itself and on

that very date the plaintiff No. 2 went inside the premises for keeping his luggage.

So, the date 5-5-1982 is reiterated in the replication by the plaintiffs as the one on the

morning of which the keys of the premises and the furniture etc. given by the Company to L.

L. Jain, were handed over to the official of the plaintiff-company by L.L. Jain himself in the

premises itself and it was on that very date that S. N. Sarma went inside the premises for

keeping his luggage.

(30) It was contended that the denial of the plaintiffs for want of knowledge regarding

surrendering of possession of L. L. Jain to the landlady on 14-5-1982, is no denial in the eye

of law and the averment on that point in para 7 of the preliminary objections of the written

statement would be deemed to have been admitted by the plaintiff in view of the provision of

law contained in Order 8 Rule 5 of the Code of Civil Procedure, and further that the aforesaid

pleadings in the plaint as also" in the replication would' belie the story now put forth in the

testimony of plaintiffs' witnesses that L. L, Jain had surrendered the 'possession of the

premises in question along with keys on the morning 6f 4-5-1982. This contention of the

learned counsel' for the defendants has much force.

(31) Kameshwar Swarup (Public Witness 1) Secretary and Manager (Legal) of the Company

admitted in his cross-examination :

"The plaintiff company lost possession of the first floor 14th, 1982 because the defendants

produced in court a certificate of possession issued by Mr. L. L. Jain." It is also an admitted

case of the plaintiffs that they again got the possession of the premises in question from the

defendants on the morning of 28-5-82 vide possession receipt Ext. D3 of the even date issued

by the Company. The statement of Kameshwar Swarup (Public Witness I) recorded earlier on

this point is instructive :-

"ON14-5-1982 "we lost possession of the tenanted premises as the defendants removed

Company's belongings by breaking open the locks and stored the same in the garage on the

ground floor as well as on the car parking space. Thereafter by the order of 'this Court dated

27-5-1982 w.e (the plaintiff company) were declared as tenants of these premises and the

plaintiffs obtained possession back of the tenanted premises on 28-5-1982 and we gave a

possession receipt to the defendants. Ext. D3 is that possession receipt."

(32) No effort was made by the plaintiffs to amend the plaint and the replication regarding the

date 5-5-1982 on the morning of which L. L. Jain is alleged to have delivered possession of

the premises in question along with the Company's furniture therein and the keys to the

Company It was, however, in his cross-examination that Sanjay Wadhawan (Public Witness

3) who is also plaintiff No. 3 in this case, stated that - "Shri L. L. Jain handed over possession

of the premises in question to the company on the morning of 4th May, 1982 and there is

only a typing mistake in the plaint wherein the date is mentioned as 5th May, 1982 (latter

portion volunteered). I am not aware if there is a similar mistake even in the replication. I

signed the plaint as well as the replication." He further stated as under :

"L.L.Jain handed over to him the keys of the premises on 4th May, 1982 in the office. No

receipt w

So, from his aforesaid statement occurring in his crossexamination it would appear that he

verified the Company's furniture in the premises in question in the absence of L.L. Jain after

he had left. If his statement that there was only a typing mistake in the plaint wherein the date

is mentioned as 5th May, 1982, it would mean that thereby hs meant that the date mentioned

therein ought to have been 4th May, 1982 and not 5th May, 1982. But it would be seen that in

para 5 of the plaint and para 7 of the replication in reply to the preliminary objection no. 7 of

the written statement the date 5th May, 1982 has been asserted as the date both for handing

over the possession of the premises and other items like furniture etc. to the Company as also

to the moving of plaintiff No. 2 S. N. Sarma into the said premises with his personal

belongings and the use of the word 'itself in para 5 of the plaint and the use of the words 'on

that very date' in para 7 of the replication pertaining to that date are meaningful in that

context and the aforesaid para 7 of the replication further makes it clear that the key? of the

premises and furniture etc. were handed over by L.L. Jain to the official of the Company on

the morning of 5th May, 1982 by L. L. Jain himself in the premises itself thereby belying the

aforesaid Explanation given by Sanjay Wadhavan (Public Witness 3) that he verified the

furniture etc. in the premises in question on the morning of 5th May, 1982 in the absence of

L.L. Jain when he along With S.N. Sarma and others were locked inside the premises in

question by the landlady.

(33) So, from the above discussion it stands proved that the suit premises were surrendered

on 14-5-82 by L. L. Jain to the landlady defendant No. I, but as it is the Company which has

been found to be the tenant of these premises, the surrendering of possession by L.L. Jain to

the land lady was on behalf of the Company only and this issue is decided accordingly partly

in favor of the plaintiffs and partly in favor of the defendants. Issue No. 9

(34) The case of the plaintiffs in respect of this issue is that the Company was coerced into

executing the lease agreement in question inserting the impugned clause of the user of these

premises only for the residence of L.L. Jain and for no other officer of the Company, for the

reason that the Company had up high every day, the general tendency of the landlords was

"dictating, as the Company was badly in need of residential premises for the residence of its

officers, and to get a suitable accommodation in the Union Territory of Delhi and particularly

in South Delhi, was a difficult task and as the rents were going up high every day, the general

tendency of the landlords was to get maximum rent of the property in Delhi and they expect

increase of rent every six months from their tenants and they were always in search of some

trick for getting the tenant evicted from the premises and the landlady deft. no. I was no

exception to that tendency. This contention cannot be accepted as Constituting coercion on

the part of defendant no. 1. No writing by way of protest was sent by the Company to the

landlady alleging the insertion of this clause as having been the result of any coercion on her

part. This issue is decided against the plaintiffs. Issue No. 10

(35) Under issue no. 8 it has been seen that the version given by plaintiffs 2 and 3 S. N.

Sarma and Sanjay Wadhayan and the witness Kameshwar Swarup (Public Witness 1) about

the handing over of the keys of the premises in question by L.L. Jain to the Company on the

morning of 4th May, 1982 and the handing over of the same in the evening of that very day

by the Company to S. N. Sarma, has not been accepted as correct, and in the resultant the

going up to the first floor of S. N. Sarma, his wife, plaintiff no. 3 Sanjay Wadhawan and

Chowkidar Pancham by opening the locks of the house in question and their being locked

therein by the landlady, also fall " through.

(36) The plaintiffs' witnesses admitted that a person standing in the balcony of the first floor

could talk to the person standing on the road. Thus, it would look improbable that none of the

persons allegedly detained in the first floor told their peon Laxmi standing on the road, or the

truck driver or any other person from the crowd, to inform the Company or the police,

although they remained allegedly confined therein for more than 5 hours. The presence of

peon Laxmi on the road all through has been admitted in his cross-examination by S. N.

Sarma (Public Witness 2) and it would have been reasonable on his part and on the part of his

companions alleged to have been detained on the first floor to have asked him to inform the

Company or the police. The driver of the truck as also a number of persons were also in the

same position. On this point the statement of S. N. Sarma (Public Witness 2) in his cross-

examination is reproduced below :

We could not think of any after about 9 A.M. how to contact the office of the plaintiff

company and how to come out and this we could not think out uptil about 12.00 noon. Mr.

Lakshmi peon remained on the road all throughout outside the main gate of the house and we

could not see him from the balcony. But in that period we did not ask him to inform the

plaintiff company about our detention. The truck with the luggage was parked on the road

outside the main gate of the house and was not allowed to enter the compound and that truck

could be seen by us from the balcony of the first floor and there was commotion outside. The

driver of the truck was in fact asking me as to what he should do. There must be about 15120

persons in the commotion at that time. It did not strike me or my companions to ask the truck

driver, Lakshmi peon or anybody in the commotion to inform the plaintiff company about our

detention............. ............I approved the idea of Mr. Wadhawan to put the slip in the shoe of

the Chowkidar for onward transmission to the office of the plaintiff company. That chit was

thrown in the shoe at about 12.15 P.M. I cannot give any reason why I did not ask any person

including the truck driver, peon Lakshmi or anybody from the commotion to communicate

our detention in this house to the plaintiff company or to the police.

(37) In this back drop the version of the witnesses of the plaintiffs regarding a chit having

been placed in the shoe and the same having been thrown from the balcony of the first floor

to the peon Lakshmi standing on the road at about 12.30 P.M. after about 41 hours of their

alleged detention, suffers a great set-back. According to the witnesses of the plaintiffs the

landlady opened the lock of the door of the ground floor only after Kameshwar Swarup

(Public Witness 1) arrived at the premises in question at 2.00 P.M.

(38) The truck carrying the baggage of S. N. Sarma had admittedly arrived at the main gate of

the house in question at 12.00 noon as stated by the witnesses of the plaintiffs. According to

the version of' the defendants that truck was not allowed to enter inside the premises, and it

remained outside the main gate of this house, and that S. N. Sarma and Sanjay Wardhavan

etc. had not come to the premises in question in the morning as alleged and stated by them.

The version of the landlady appearing in her statement as DW1 is reproduced below :

It was in the middle of April 1982 that L.L. Jain told me that he had resigned from the

plaintiff company and that he would hand over vacant possession of the premises in question

to me on 5-5-1982. He also- told me that after 5-5-1982 he had to go to Bangkok. He also

told me that it would be desirable that a letter be written by me to the plaintiff-company as

well in this regard. I thereupon sent a registered letter to the plaintiff company on 30-4-1982.

Ext. P2 is that letter. On 4-5-1982 L.L. Jain came to me and told me that he would not be able

to give possession of the premises is question to me on 5-5-1982 as he was to go to Calcutta

and that from Calcutta he would be returning on 13-5-1982 and would deliver the vacant

possession of premises to me on the next 131 date, i.e., 14-5-1982. The same talk was

repeated between us even on the morning of 5-5-1982 at about 8.30 or 9.00 A.M. when my

husband defendant no. 2 was also present there at that time. L.L. Jain left at about 9.45 A.M.

My husband also left for Income Tax Department at about 10.00 A.M. On that day i.e., 5-5-

1982 I was a truck loaded with luggage at about 12.00 noon. I then came out to the main gate

outside the drive way and found that besides luggage in the truck there were about 20 or 25

persons in the truck and the cars. I enquired from them whom they wanted to meet. Two or

three persons out of them came forward and told me that they had come there to reside in the

first floor. I told them that L.L. Jain Was still in occupation of the first floor in question and

had not vacated the same but they told me that they had come from M/s. Usha Sales Ltd. and

that they would reside in the first floor. Thereupon I told them that as per the agreement the

premises in question had been let out only for the residence of L.L. Jain alone and Therefore

no other person could be put by the plaintiff in those premises. I got upset and frightened on

their demand .I was- inside that gate and they were outside that gate. I then locked the gate

from inside and came in and telephoned to my neighbours Mr. Balraj Chhabra and Mr. Inder

Sanon and other acquaintances. Their ladies and servants then came and I told them that I

was very pinch upset. There after I went in my car to the Income Tax Department to fetch my

husband at about 12.30 or 12.45 P.M. I then came out of the main gate and locked it again

from inside by putting my band inside and handed over the key to my neighbours who had

arrived there and were inside the drive way. None of the persons who came with the truck or

in cars entered inside the building. I returned along with husband from the Income Tax Office

at about 1.20 or 1:25 P.M.

(39) The perusal of the letter Ext. P2 dated 30-4-1982 referred to above in the testimony of

the landlady shows that L.L. Jain had informed her that he had resigned from the Company

and was leaving for Bangkok and had stated that he would be vacating the house on 5th May,

1982. In this letter she requested the Company to see that the vacant possession was handed

over to her by Company/L.L. Jain, when he vacated the premises on 5th May, 1982.

(40) There is no independent witness examined by either " side on these two contradictory

versions of the parties but the letter Ext. P2 and the landlady's statement that L.L. Jain had

told her that he would be vacating the house on 5th May, 1982, finds support from the plaint

and replication of the plaintiff and that in turn supports the testimony of the landlady on the

point that on the morning of 5th May, 1982 at about 8.30 or 9.00 A.M. L.L. Jain came to her

when her husband defendant No. 2 was also present there and that L.L. Jain left at about 9.45

A.M. and her husband also left for Income Tax Department at about 10.00 A.M., which in

turn would go to run down the version of S. N. Sarma and his companions coming to the

premises in question in the morning of 5th May, 1982 and going up-stairs in the first floor

and being locked in there by the landlady.

(41) According to all the plaintiffs' witnesses, the telephone of the premises was working at

the time when they reached there. It was also working at the time when they were allegedly

locked. According to Public Witness. 2, he reached the premises at 8.00 A.M. and soon

thereafter the landlady locked the premises. Alter discovering that he was locked in he rang

up the Transport Company to enquire as to when the luggage would arrive and was told that

the luggage would come to the said premises at about 10.00 A.M. It is submitted that it is

highly improbable that when a person finds himself detained or locked, he would first ring up

the Transport Company to find out the time of' the arrival of his luggage and would not ring

up the Police or the Company or any where else to seek help for his release from the alleged

detention. Thus, for the reasons aforesaid it is held that plaintiffs 2 and 3 were not illegally

detained by the defendants. In view of this finding the question of awarding any

compensation to the plaintiffs due to alleged detention does not arise. This issue is decided

against the plaintiffs. Issue No. 11

(42) It has already been found under issues 2 and 3 that even after the lapse and termination

of contractual tenancy the Company became the statutory tenant under the landlady I

defendant no. 1 and was, thus, entitled to the statutory protection in respect of its status of

removability in respect of the premises in question unless it was evicted there from under the

enabling provisions of the statute, i.e., the Delhi Rent Control Act, 1958 and that such a

statutory tenant can enforce such right through an injunction. In this view of the matter the

clause in the lease-deed that the premises in question would be used for the residence of L.L.

Jain alone and for no other officer/employee of the Company, had no adverse effect on the

aforesaid statutory right of the Company unless and until evicted under the statutory

provisions of the Delhi Rent Control Act, 1958, and that right of the Company, when sought

to be interfered with by the landlady, can be protected by the grant of an injection ,Biswabani

Pvt. Ltd. Vs. Santosh Kumar Dutta MANU/SC/0486/1979 : [1980]1SCR650 (supra) is an

authority on this proposition of law.

(43) Admittedly, the landlady/defendant no.1 did not permit S.N. Sarma an officer of the

Company and his trick load of luggage to enter the .building wherein the premises are situate

at about 12.00 noon on 5-5-1982.. Moreover, the position taken up by the landlady

throughout has been one of not allowing entry to any other officer of the Company except L.

L. Jain, and that his tantamount, to interfering with the aforesaid statutory tenancy rights of

the Company in the premises in question. Even the assertion of the landlady regarding her

right in that regard as also her determination on that point is manifest from her written

statement from which the relevant lines are reproduced below :

........IT is absolutely false that the defendants are not entitled to obstruct the unlawful act on

the part of the plaintiffs to make a forcible entry into the house............................. It may be,

however, submitted that the defendants have a right to prevent any trespass on the part of the

plaintiff and/or to resist the forcible entry which they threatened and/or threatening.................

The defendants have every right and justification to enforce the terms of lease and to resist

any unlawful act on the part of the plaintiff in allotting the premises in question to any other

officer and or to use the same for his or their residence.........'*.

In her statement as D.W. 1 she stated as follows :

........IT is correct that I was not prepared to allow anybody else except L.L. Jain to enter the

premises in question............... I was not agreeable to allow any other employee of the

plaintiff company to occupy the premises in question because the lease-deed was meant only

for the residence of L.L. Jain and for nobody else..... ". So, obviously in the face of this

unmistakable position taken up by the defendants, the Company is entitled to the relief of

injunction in exercise of its being the statutory tenant in the premises in question.

(44) The suit was filed by the plaintiffs on 13-5-1982. It has been found under issue no.8 that

the suit premises were surrendered by L.L. Jain to the landlady/defendant no.1 on 14-5-1982

and that surrender by him was on behalf of the Company. Thus, the Company remained in

possession of the premises in question uptil 14-5-1982 and, thus, there is no question of any

damages to be allowed to the Company against the defendants for any period up to the filing

of the .suit, i.e., 13-5-1982 and this is in respect of the damages claimed at the rate of Rs.

3,100 per month and Rs. 500 per day from 5-5-1892.

(45) Regarding the further damages at the rate of Rs. 3,100 per month and Rs. 500 per day

from the date of the institution of the suit till the date of' the plaintiffs were allowed to use

peacefully the tenanted premises the same cannot be decreed in this suit. The Court can grant

the relief only as on the date of the suit and not on subsequent cause of action. The only

exception to this Rule is recognised under Order 20 Rule 12. of the Code of Civil Procedure

which talks of a suit for the recovery of possession of moveable property and for rents or

mesne profit. Admittedly, the suit is neither for the recovery of rent nor for mesne profits.

"Mesne Profit" is defined in S. 2(12) of the Code of Civil Procedure as follows -

MESNEProfits' of property means those profits which the person in wrongful possession of

such property actually receives or might with ordinary diligence have received there from,

together with interest on such profits but shall not include profits due to improvements made

by the person in wrongful possession.

(46) Since this is an exception to the general rule, S. 11 of the Court Fees Act governs the

payment of the court fees in such suits. There is no other provision either in the Code of Civil

Procedure or in the Court Fees Act for decreeing any amounts or compensation paid or

received during the pendency of the suit or for the payment of the court fees after passing of

the decree.

(47) Even though it Was conceded by the learned counsel for the plaintiffs that he was not

claiming mesne profits in this suit, he, however, cited Girja Kuer v. Shiva Prasad Singh and

others MANU/BH/0172/1935 : Air 1935 Pat160. In the said case, the Court was only

concerned with the valuation of the suit and held that:

THEvalue of the suit is its value at the date of the institution of the suit and not what will

become its value on some subsequent date. Future mesne profits being uncertain cannot be

taken into account turn the purpose of' payment of court fee and for the purpose of

determining the value of the suit. Applying the analogy of mesne profits to future damages. it

is clear that no court fee .is payable in respect of damages pendente lite. It follows Therefore

that it cannot be taken into account for determining the value of the suit.

(48) The High Court of Ratna was only concerned with the valuation of the suit for the

purpose of the jurisdiction. It observed at page 161 that :--

THE value of a suit does not depend upon the competency of a Court to pass a decree for a

particular claim. The claim' may be absolutely untenable and the plaintiff may not be entitled

to it on the face of it, but nevertheless if the plaintiff claims it, he has to value it and that

value will determine the forum for the institution of the suit. Secondly, I do not think the.

question whether future damages can or cannot be decreed is free .from doubt. As the matter

will have to be determined in the suit itself on the result of the main issue, I do not wish to

express any opinion.

(49) There is, however a clear authority, reported as India Electric Works Ltd. vs. Mrs. B. S.

Mantosh and others MANU/WB/0048/1956 : AIR1956Cal148 , in which a suit was filed

being Suit No. 28 of 1948 for a decree for Rs. 13,164 as damages for wrongful use and

occupation @ Rs. J 2 per diem. The plaintiffs also prayed for a decree at 'the same rate from

the date of the suit to the date on which the Company would vacate the shed. The trial court

decreed the suit and also the future damages. The High Court of Calcutta observed as follows

:

The rest of the decree in Suit No. 28 of 1948 was not according to law and cannot be

maintained. The suit was a pure money suit and not a suit for recovery of possession of

immovable property and mesne profits under Order 20, Rule 12 Civil Procedure Code. In

such a suit, a preliminary decree may be passed for possession and for assessment, but in a

pure suit for recovery of money, no decree can be passed for recovery of compensation after

the date of the suit up to the date of the decree or after the date of the decree until recovery of

possession. This part of the decree should, Therefore, be set aside.

(50) Thus, further damages from the date of the suit onwards till the date the plaintiffs are

allowed to use peacefully the tenanted premises cannot be decreed in this suit.

(51) So, while the plaintiffs are entitled to the injunction as sought for in respect of the

premises in question, they are not entitled to damages claimed by them in para 'C' of the

prayer clause at the rates Rs. 3,100 per month and Rs. 500 per day with effect from 5-5-1982

onwards till the date they are allowed to use peacefully the tenanted premises and this issue is

decided accordingly partly in favor of the plaintiffs and partly against them to the extent

indicated above. Issue NO. 12 (Relief)

(52) In view of my findings under Issue No. I the plaintiffs shall pay court fees on the relief

of damages claimed at the rates of Rs. 31,00 per month and Rs. 500 per day for the period

from 5-5-1982 till 13-5-1982 within two weeks from today failing which the plaint in respect

of that relief shall stand rejected.

(53) In view of my above findings the plaintiffs are granted' a decree of injunction as prayed

for in para A (i) and (ii) of the prayer clause in the plaint, against the defendants; but their suit

for damages in the sum of Rs. 1,04,000 on the ground of alleged detention is dismissed. The

suit for further damages at the rates of Rs. 31,00 per month and Rs. 500 per day for the period

from 5-5-1982 till the date of the suit, is dismissed when the requisite court fees for that relief

is paid by the plaintiffs, while the plaint in respect of the further damages at the rates of Rs.

31,00 per month and Rs. 500 per day from the " date of the suit onwards till the date the

plaintiffs are allowed to use peacefully the tenanted premises, is rejected. Under the

circumstances, parties are left to bear their own costs.

© Manupatra Information Solutions Pvt. Ltd.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

R.F.A. No. 127 of 2001

Decided On: 02.11.2006

Appellants: Smt. Nirmala W/o C.S. Srinivasa Murthy

Vs. Respondent: Sri Naveen Chhaggar S/o Mangilal Chhaggar and Bangalore City

Chamarajpet Art Silk Handloom Weavers and Exporters Association

Hon'ble Judges/Coram: D.V. Shylendra Kumar, J.

Counsels: For Appellant/Petitioner/Plaintiff: H.N. Prakash, Adv.

For Respondents/Defendant: Paras Jain, Adv. for R 1

Subject: Civil

Subject: Property

Catch Words

Mentioned IN

Acts/Rules/Orders:

Specific Relief Act, 1963 - Section 38, Specific Relief Act, 1963 - Section 38(3)

Cases Referred:

Azeezulla Sheriff v. Bhabhutimul AIR 1973 SC 276; Jagannath Kashimath Patil v. Narayan

Balugaikar (1997) 2 SCC 212; Balwant Singh v. Daulat Singh (1997) 7 SCC 137

Disposition: Appeal allowed

Citing Reference:

Discussed

3

Case Note :

SPECIFIC RELIEF ACT, 1963 SECTION 38 - CODE OF CIVIL PROCEDURE, 1908

- Order 39, Rules 1 and 2 - In a suit for bare injunction the plaintiff must prove that he

is in factual durable possession of the suit schedule property. A mere fact that the

plaintiff might have good title to the property that by itself automatically does not

establish his possession of the property unless such possession is actually pleaded and

proved by evidence. In a suit for bare injunction, unless the possession of the plaintiff is

independently established, there is no way of the suit being decreed.

In the present case, the fact, that there being considerable interval of about seven years

from the date of execution of the document under which the plaintiff claims title and

possession to the property and the date of institution of the suit, i.e., between 1985 and

1992, and there being another intervening development, viz., execution of another

document in favour of the first defendant, under which also it is recited that the first

defendant was put in possession, coupled with the fact that the first defendant has

asserted that she was in possession all along and certain additional materials such as tax

paid receipt in respect of the very land, khata transfer in her favour etc., held, were all

indicator that possibly the first defendant was in possession and definitely not that the

plaintiff had continued to be in possession.

The plaintiff was not suing for injunction based on title. The suit, which was filed for

declaration, title and injunction, was confined to one for mere injunction. Held, if the

suit should have been one for declaration and for a consequential relief of possession,

the plaintiff could have succeeded. In a suit for bare injunction, unless the possession of

the plaintiff is independently established, there is no way of the suit being decreed.

The relief of injunction cannot be granted for the mere asking, but only when there is

necessary pleadings and supporting evidence. Reference to the provision of law does not

automatically fetch the relief sought for by the plaintiff unless the plaintiff makes good

his case.

The plaintiff though in fact pleaded that he is the owner of the suit schedule property

and he was in possession etc., on his pleadings, the plaintiff admits in his evidence that

the interference was much later and one of obstruction by the first defendant when the

plaintiff went to the site to put up fence. The suit itself being filed two years thereafter

and the first defendant having categorically denied the right of the plaintiff the plaintiff

if was seeking to support his possession of the property with reference to title, it was

necessary for him to have sought a declaration of his title. In a suit which had been filed

initially for declaration and consequential injunction, wherein the first defendant has

denied title of the plaintiff the suit fails unless the prayer for declaration is also made

good.

The suit in law is not maintainable, as unless declaration is made in favour of the

plaintiff the continued possession of the plaintiff particularly in the light of denial by the

first defendant cannot be recognized in law, more so when the first defendant has also

claimed to herself title in the property and had denied the title of the plaintiff. In fact,

when the plaintiff filed a memo for deletion of the prayer for declaration subsequent to

the trial Court framing issues on this aspect i.e., issue No 1, the plaintiffs suit should

have been dismissed then and there.

A plaintiff approaching the Court for mere injunction if he fails, it does not amount to a

positive decree in favour of the defendant, which the defendant can either execute or

take advantage for anything further, other than for retaining the existing state of

affairs. It is always open to the person who is in possession of a property to defend his

possession in a manner known to law and the dismissal of the suit of the plaintiff does

not give rise to a specific or positive right in favour of the first defendant. (Obiter).

Appeal was allowed, and the judgment and decree passed by the trial court was set

aside and the suit of the plaintiff w

JUDGMENT

D.V. Shylendra Kumar, J.

1. This is an appeal by the defendant in O.S. No. 7026/1992 on the file of the Court of VIII

Addl. City Civil Judge, Bangalore, directed against the judgment and decree dated 22.8.2000.

2. The suit for injunction having been decreed in favour of the plaintiff in terms of the

judgment and decree, the present appeal by the defendant.

3. The appellant had contended that the plaintiff had miserably failed to prove his possession

with regard to the suit schedule property either on the date of the sale deed dated 23.1.1985

based on which the plaintiff claimed right, title and possession to the property or on the date

of filing of the suit; that the Court below could the date of filing of the suit; that the Court

below could not have decreed the suit for injunction in the absence of any credible material

placed by the plaintiff to establish possession in respect of the suit property; that the plaintiff

was not entitled to claim that he was in possession on the date of filing of the suit even

assuming that he was in possession of the property in the year 1985; that the trial Court ought

to have dismissed the suit etc.

4. The brief facts leading to filing of the suit and the present appeal are as under:

Plaintiff who had filed the suit initially for a declaratory relief to prove that he is the absolute

owner in possession of the suit schedule property by virtue of a sale deed Ex.P-3 dated

23.1.1985 and also a declaration that the subsequent sale deed dated 27.12.1989 - Ex.D-7 to

be null and void and praying for the relief of permanent injunction etc., against the defendant

from interfering with the peaceful possession of the suit schedule property by the plaintiff and

the defendant being one claiming under the subsequent sale deed dated 27.12.1989 and the

Society from whom both the plaintiff and the 1st defendant claim title to the property be

added as the 2nd

defendant.

5. The 2nd

respondent had subsequently given up the relief of declaration and had confined

the suit to one as suit for injunction alone in terms of a memo filed during the pendency of

the suit for deletion of the declaratory relief. The plaint averments were that the 2nd

defendant

- Society had executed the sale deed dated 23.1.1985 in favour of the plaintiff in respect of

site bearing No. 160 a site formed by the 2nd

defendant in Sy. No. 333/1, 2, 3, 4 & 5, 334/1 &

2 and part of Sy. No. 335 of Kempapura Agrahara, Bangalore North Taluk, and that on the

very day possession of sites had been handed over. Notwithstanding, the lst defendant having

claimed right and title to the very sites in terms of a sale deed dated 17.12.1999 executed by

the 2nd

defendant through one P. Rangaswamappa, as the President of the 2nd

defendant -

Society and that being a collusive document between the 1st defendant and 2

nd defendant and

the plaintiff having made enquiry's about the factum of no person by the name

Rangaswamappa, being the President of the 2nd

defendant society and that the cause of action

for the suit arose as on 1.11.1990, when the 1st defendant based on his sale deed dated

27.12.1989 attempted to dispossess the plaintiff and as that the threat continued, within the

jurisdiction of the Court, it became necessary for the plaintiff to file the suit praying for an

order of injunction/restraint order.

6. While the cause of action is pleaded to be one arising on 1.11.1990, it is significant to

notice the suit itself was filed on 2.11.1992.

7. It is also pleaded that the authority of the said P. Rangaswamappa who had purported to act

as the President of the 2nd

defendant - Society had executed the sale deed dated 27.12.1989 in

favour of the 1st defendant came to be challenged and in the proceedings which originated

before the Registrar of Co-operative Societies and culminated in W.P. No. 15614/1992 and in

the suit O.S. No. 5235/1995 litigation fought as against the office bearers as to who was in

management and control of the Society, it had been authoritatively concluded that the said

Rangaswamappa was not a competent person to act as the President on behalf of the Society

and consequently the BDA having issued cancellation dated 20.4.1995, the declaratory relief

became unnecessary and therefore that was deleted. The 1st defendant contested the suit. In

the written statement the 1st defendant contended that the suit was frivolous and vexatious;

that the plaintiff had no right title or interest to the suit schedule property; that the document

based on which the plaintiff claimed title is fabricated and concocted; that the defendant

denies the existence of the document in favour of the plaintiff and at any rate does not admit

the same. The plaintiff was put to proof of the suit pleadings; that the 2nd

defendant - society

itself was not in possession or had acquired valid title to the lands in Sy. No. 333/1,2,3, 4 and

5, Sy. No. 333/1 and 2 and part of Sy. No. 335 as on the date of the sale deed based on which

the plaintiff claim i.e. as on 23.1.1985 that neither the 2nd

defendant nor the plaintiff were

ever in possession of the property in question on this day; that the survey numbers were put

by themselves and were in possession of the 2nd

defendant - society, subsequently that the

resolution of the Bangalore Development Authority to sanction 50 sites in favour of the

Society was the event subsequent to which the plaintiff claimed. The resolution in fact was

communicated to the society only as per the communication dated 24.11.1984 sent by the

Executive Engineer to the President of the Society; that the defendant having been put in

possession thereafter defendant has been in valid possession ever since 27.12.1989; that the

defendant had in fact paid property tax, that thereafter the Court had rightly refused to grant

temporary injunction in favour of the plaintiff, there is no cause of action for the suit, the

plaintiff was not entitled for the relief sought for and the suit be dismissed. It was also

pleaded that the plaintiff is neither entitled for declaration nor for consequential relief of

injunction.

8. The 1st defendant filed an additional statement, inter alia, contending that the alleged

cancellation dated 5.6.1995 was not a valid one; that the executants of the said document had

no legal right or legal authority to execute the same; that the site having been sold in favour

of the defendant on 28.12.1989 the 1st defendant had lost all its right title and interest and to

create any document in favour of the plaintiff thereafter that the so called possession

certificate dated 30.5.1994 said to have been issued in favour of the plaintiff was denied and

not admitted; that it had no consequence in law having come into existence during the

pendency of the suit; that the court fee paid is not proper: that the suit was not tenable and

liable to be dismissed.

9. In the light of the initial proceedings, the trial Court had framed the following 5 issues and

an additional issue as under:

1. Does plaintiff prove that he is the owner of the suit property under the sale deed dated

23.1.1985?

2. Does plaintiff prove his lawful possession of the suit property on the date of suit?

3. Does plaintiff prove the obstruction by the defendants as alleged?

4. Is plaintiff entitled to the declaration as prayed for?

5. Is he entitled to the injunction as sought for?

6. What decree or order?

ADDITIONAL ISSUE:

1. Whether the suit is liable to be dismissed as contended in para 7(a) of the written statement

in view of the orders of the Registrar of Societies in Case No. 45/61-62 dated 31-3-1999?

10. Though the parties went to trial on these issues, subsequently the plaintiff having filed a

memo to the effect that the relief of declaration is not pressed for, the trial court confined the

examination of the case on issue Nos. 2, 3, 5 and additional issue and deleted issue Nos. 1

and 4 and passed order on issue No. 6.

11. On behalf of the plaintiff, the father of the plaintiff has been examined as PW1 and on

behalf of the defendants, the husband of the first defendant has been examined as DW1.

While plaintiff has got marked Ex Pl to 19, including ExP2 possession certificate, ExP3 sale

deed dated 20-4-1985, ExP4 cancellation deed dated 20-4-1995, ExP10 and 11, receipts

issued by the second defendant society in favour of the plaintiff, ExP12 encumbrance

certificate in respect of the suit schedule property for the period 1984 to 1995, which

indicates the execution of sale deed dated 23-1-1985 executed by the second defendant in

favour of plaintiff, execution of sale deed dated 28-12-1989 executed by the very second

defendant in favour of first defendant and execution of the cancellation deed dated 5-6-1995

executed by the second defendant in respect of the sale deed that had been executed in favour

of the first defendant; ExP14, certified copy of the order dated 19-5-1992 passed by this

Court in WP No 15614 of 1992, a petition which had been filed by one P. Rangaswamappa, a

person whom the first defendant claims to be the president of the second respondent society

at the time when the sale deed was executed in her favour, which came to be dismissed;

ExP15, judgment in OS No 5235 of 1995, on the file of XII Additional City Civil Judge,

Bangalore, a suit filed by one K.G. Srikantaiah against one A.S. Cheluvaiah, for permanent

injunction and declaration of his ownership and possession and enjoyment of the suit

schedule property, which had come to be decreed; ExP17. certified copy of the order passed

by this Court on 14-9-1995, disposing of WP No 6379 of 1990, a petition that has been filed

by the second defendant. Likewise, ExP18 and 19, orders passed by this Court in two other

writ petitions dismissing both the petitions.

12. On the side of defendants, ExD1 to 9 have been marked. Prominent being, ExP7 sale deed

dated 27-12-1989. ExD8 possession certificate dated 10-1-1990, ExD9 khata certificate

issued by the Bangalore Development Authority, ExD10 tax paid receipt upto the year 1994

issued in favour of first defendant and other related documents.

13. The trial court having answered issues 2, 3 and 5 in the affirmative as also additional

issue No 1, decreed the suit for permanent injunction in favour of the plaintiff and against the

defendants. Against such judgment and decree, the present appeal.

14. I have heard Sri H.N. Prakash, learned Counsel for the appellant and Sri Paras Jain,

learned Counsel for the first respondent.

15. Submission of Sri H.N. Prakash, learned Counsel for the appellant is that the trial court

has committed an error in decreeing the suit for bare injunction even when the plaintiff had

not established his possession as on the date of institution of the suit; that while the plaintiff

had miserably failed in proving his possession of suit schedule property and on the other hand

the materials on record indicated that the defendant No 1 was in fact in possession of the suit

schedule property; that the question of plaintiff establishing his title as against the first

defendant does not have any tearing or consequence particularly when the plaintiff having

rescinded from the prayer for declaration; that the trial court should have even on material

evidence on record dismissed the suit of the plaintiff; that the suit was even otherwise not

maintainable and should have been dismissed for the reason that even when the first

defendant had disputed the title of the plaintiff to the property in question, the plaintiff, who

had initially filed suit both for declaration and permanent injunction, having deleted the

prayer for declaration, the consequential prayer of injunction alone did not survive and the

suit was not tenable in the form it was filed and therefore sought for allowing the appeal and

set aside the decree passed by the trial court.

16. In this regard, learned Counsel for the appellant has taken me through the pleadings in the

plaint and the written statement as also the evidence of PW1 and DW1 and supporting

documents.

17. Sri Paras Jain, learned Counsel for the respondent-plaintiff vehemently submits that the

plaintiff has established his possession to the suit schedule property; that the sale deed of the

year 1985 has clearly recited that the plaintiff had been put in possession of the suit schedule

property; that the defendant would claim the very properly in terms of the sale deed of the

year 1989, that too a document executed by a person who has been declared to be not

competent or authorized to manage the affairs of the society, particularly in the light of the

decisions of this Court and the judgment and decree of the trial court as under ExP14, 15, 16;

that the trial court having found that the first defendant was unable to establish his possession

with reference to the document relied on and particularly the validity of the sale deed of the

year 1989 executed in favour of the first defendant, will fall to the ground with the

cancellation of the very deed in terms of ExP4 and therefore there was nothing in favour of

the defendant that could prevent the trial court decreeing the suit; that the plaintiff being

content with mere injunction only, had deleted the prayer for declaration, as the society itself

had by the subsequent cancellation deed cancelled the sale deed on which the first defendant

had claimed his right to the suit schedule property; that there is nothing in favour of the first

defendant based on which the first defendant could either assert his title or his possession;

that the trial court has rightly decreed the suit and the first defendant could not in law claim to

be in possession particularly as it had been established by orders of courts that all actions on

behalf of the second defendant society by the said Rangaswamappa, are all acts of fraud,

deceit and therefore nothing was required to be done on the part of the plaintiff to get over

such actions and deletion of the prayer for declaration cannot be of any consequence; that the

plaintiff had continued to be in possession ever since 1985 and the possession certificate

issued in the year 1994 though during the pendency of the suit before the trial court was only

in reiteration of the earlier position and by way of abundant caution to dispel the confusion

created by the sale deed in favour of the first defendant; that the plaintiff had continued to be

in possession all along and there is absolutely no need to disturb the judgment and decree

passed by the trial court.

18. It is the submission of learned Counsel for the first respondent-plaintiff that the claim of

the appellant [first defendant] has been characterized as one under the deed executed by

fraud, deceit and no right flows in favour of the first defendant under such a deed; that fraud

vitiates all actions and this Court has to take note of such developments and should not in this

appeal disturb the judgment and decree passed by the trial court, which if done, can only

amount to encouraging such fraudulent acts and therefore also prays for dismissal of the

appeal.

19. Sri Paras Jain, learned Counsel for the first respondent has also drawn my attention to the

evidence of DW1 and seeks to submit that the witness on behalf of the defendant having

admitted that some more documents are in possession of the first defendant, the suit had been

rightly decreed by the trial court and therefore does not warrant any interference in appeal.

20. In the light of the submissions made on behalf of both parties, the points that arise for

determination in this appeal are as under:

a) Whether the plaintiff-first respondent had established his factual physical possession of the

suit schedule property on the date of filing of the suit and interference on the part of first

defendant of such possession of the plaintiff prior to the filing of the suit?

b) Whether the suit in the modified form viz., for mere injunction as against the first

defendant was tenable when the plaintiff had laid the suit for declaration of only his title to

the property, and declaration against the first defendant under the sale deed of the year 1989

and the prayer for injunction was consequential but later confined the relief and the suit to

one of restraint order atone without the relief of declaration?

21. In so far as the first point is concerned, I find that the trial court has not recorded a

categorical finding in favour of the plaintiff to the effect that the plaintiff was in physical

possession of the suit schedule property either on the date of filing of the suit or immediately

prior to the filing of the suit. In fact even the assertion in the plaint was that the plaintiff was

put in possession of the property under the sale deed of the year 1985, But there is no positive

assertion that the plaintiff continued to be remain in possession thereafter. On the other hand,

the plaint pleading in para-5 indicates the cause of action to the following effect:

5. The cause of action for the suit arose on 1-11-90 when the 1st defendant attempted to

dispossess the plaintiff and the said threat is still continuing within the jurisdiction of this

Hon'ble Court.

This pleading coupled with the deposition of PW1, to the following effect:

During the period of Nov. 1992 myself, plff. Had been to the suit site to put up fence. At that

time the defendant No 1 and her followers obstructed our peaceful possession and enjoyment

of the suit schedule site.

Would only indicate that the suit itself, which was instituted on 2-11-1992, was about two

years after the cause of action arose and the evidence is to the effect that it was the first

defendant who was in possession and who obstructed the plaintiff's attempt to put up fence on

the suit site.

22. If such is the pleading and evidence, it is very obvious that the plaintiff was not in

possession of the suit schedule property on the date of institution of suit. That cannot lead to

an inference that the plaintiff was positively in possession of the suit schedule property on the

date of filing of the suit. In fact the learned judge of the trial court while does not give such a

positive finding, what is recorded in terms of para-16 of the judgment is that:

16. The list of office bearers of second defendant-society as certified by the Registrar of

Societies produced at the time of arguments on behalf of first defendant is not of any help to

the case of first defendant to show that Rangaswamappa and Ramachandra Reddy were the

office bearers of the society at the time of execution of sale deed in favour of first defendant.

So, I have no hesitation to hold that plaintiff has successfully shown that he is in lawful

possession of the suit schedule property on the date of suit and hence, I answer issue No 2 in

the affirmative. The way in which the first defendant contesting the suit is sufficient to hold

that first defendant has interfered into possession and enjoyment of the suit schedule property

by the plaintiff. Hence, I answer issue No 3 also in the affirmative. Since I have held that

plaintiff is in lawful possession of the suit schedule property and has continued to be in

possession of the suit schedule property by virtue of the temporary injunction order issued by

this Court, at the time of filing of the suit / have hesitation to hold that plaintiff is in

possession and enjoyment of the suit schedule property and is entitled for injunction order

and hence I answer issue No 5 also in the affirmative.

23. The above finding is not a positive finding in favour of the plaintiff, but an inference

drawn in favour lawful possession of the plaintiff on the inability of the defendant to prove

his lawful possession.

24. In a suit for bare injunction what is essential for the plaintiff is to prove that he is in

factual durable possession of the subject property, when the relief is for injunction in respect

of an immovable property. Therefore, the first point has to be answered in favour of the

appellant.

25. In so far as the second point is concerned, Sri Paras Jain, learned Counsel for the first

defendant-plaintiff has drawn my attention to the law laid down in the following decision:

1. Azeezulla Sheriff v. Bhabhutimul MANU/SC/0367/1972 : [1973]1SCR59

2. Jagannath Kashimath Patil v. Narayan Balugaikar MANU/SC/1036/1997 :

(1997)2SCC212

3. Balwant Singh v. Daulat Singh MANU/SC/0736/1997 : AIR1997SC2719

26. In the case of Azeezulla Sheriff what has been held is that the date on which registered

documents operates is the date on which the execution of the document is admitted and the

document operates from the time of the execution etc. This judgment is of no avail to the first

respondent on the facts and circumstances f the present case, as the question in the appeal and

the suit was not one of title but only one of possession. A mere fact that the plaintiff might

have good title to the property that by itself automatically does not establish his possession of

the property unless such possession is actually pleaded and proved by evidence. In fact there

being considerable interval of about seven years from the date of execution of the document

under which the plaintiff claims title and possession to the property and the date of institution

of the suit i.e. between 1985 and 1992 and there being another intervening development viz.,

execution of another document in favour of the first defendant under which also it is recited

that the first defendant was put in possession coupled with the fact that the first defendant has

asserted that she was in possession all along and certain additional materials such as tax paid

receipt in respect of the very land, khata transfer in her favour etc. are all if at all an indicator

that possibly the first defendant was in possession and definitely not that the plaintiff had

continued to be in possession.

27. One should bear in mind that the plaintiff was not claiming or suing for injunction based

on title but the suit which had been filed for declaration, title and injunction was confined to

one of mere injunction. If the suit should have been one for declaration and for a

consequential relief of possession, the plaintiff could have succeeded. In a suit for bare

injunction, unless the possession of the plaintiff is independently established, there is no way

of the suit being decreed.

28. In the case of Jagannath Kashimath Patil while dismissing the appeal of the defendant,

the Supreme Court had occasion to observe that actual possession of the plaintiff was further

reinforced with the plaintiff having acquired title also to the property through his maternal

grandmother, and already being in possession as mortgagee, the further acquisition or

improving his title has only improved the quality of factual possession and therefore the

appeal was required to be dismissed.

29. This decision again does not advance the case of the plaintiff, as the plaintiff's case in the

present suit was only one for mere injunction.

30. The other decision in the case of Balwant Singh is one holding that revenue entries by

themselves cannot confer title by itself. But unfortunately, the issue in the case is not one of

title, but only about of possession and therefore the decision does not help the case of the first

respondent.

31. Sri Paras Jain, learned Counsel for the first respondent has also by drawing attention to

the provisions of Section 38 of the Specific Relief Act. 1963 for short, the Act], particularly

Section 38(3) of the Act submits that when once the plaintiff had established that he was in

lawful owner of suit schedule property the trial court has rightly decreed the suit for

injunction: that the judgment and decree is to be sustained having regard to the provisions of

Section 38(3)(d) of the Act, particularly to avoid multiplicity of judicial proceedings; that the

plaintiff was definitely entitled to defend and protect his possession and seeking for a

restraint order against the first defendant and no need to wait till he is dispossessed to file a

suit for declaration and the suit for recovery of possession or mere suit for recovery of

possession etc.

32. Submission is not relevant to the facts of the present case. Section 38 of the Act is a

provision indicating the circumstances under which a perpetual injunction can be granted. It

is also subject to other provisions contained in the Act. The court is unable to grant an order

of perpetual injunction in the circumstances indicated in Sub-clauses (1), (2) and (3). Sub-

clause (3) deals with cases relating to immovable properties and Clause-(b) hereunder

provides for grant of an order of perpetual injunction to prevent multiplicity of judicial

proceedings.

33. The provision only enables the court to grant a relief of this nature if the plaintiff is able

to establish durable possession to the property on the date of filing the suit. Here the plaintiff

in fact has not established the possession in fact and cannot rely upon his mere title for

seeking the relief of injunction. The relief of injunction cannot be granted for the mere

asking, but only when there is necessary pleadings and supporting evidence. Reference to the

provision of law does not automatically fetch the relief sought for by the plaintiff unless the

plaintiff makes good his case.

34. The plaintiff though in fact pleaded that he is the owner of the suit schedule property and

he was in possession etc., on his pleadings, the plaintiff admits in his evidence that the

interference was much later and one of obstruction by the first defendant when the plaintiff

went to the site to put up fence. The suit itself being filed two years thereafter and the first

defendant having categorically denied the right of the plaintiff, the plaintiff if was seeking to

support his possession of the property with reference to title, it was necessary for him to have

sought a declaration of his title. In a suit which had been filed initially for declaration and

consequential injunction, wherein the first defendant has denied title of the plaintiff, the suit

fails unless the prayer for declaration is also made good. The suit in law is not maintainable,

as unless declaration is made in favour of the plaintiff, the continued possession of the

plaintiff particularly in the light of denial by the first defendant cannot be recognized in law,

more so when the first defendant has also claimed to herself title in the property and had

denied the title of the plaintiff. In fact, when the plaintiff filed a memo for deletion of the

prayer for declaration subsequent to the trial court framing issues on this aspect i.e. issue No

1, the plaintiffs suit should have been dismissed then and there.

35. I am of the view that the suit of the plaintiff for bare injunction without supporting

declaration was not maintainable in law. The suit should have been dismissed on this aspect

alone.

36. However, in the present case, the plaintiff having not made good his case on facts also

and the suit being not maintainable for the relief of injunction alone there was no way for the

trial court to decree the suit.

37. In the result, this appeal is allowed, and the judgment and decree passed by the trial court

is set aside and the suit of the plaintiff is dismissed.

38. Before parting with this appeal, it is necessary for me to make an observation about the

legal position. A plaintiff approaching the court for mere injunction if he fails, it does not

amount to a positive decree in favour of the defendant, which the defendant can either

execute or take advantage for anything further, other than for retaining the existing state of

affairs. It is always open to the person who is in possession [of a property] to defend his

possession in a manner known to law and the dismissal of the suit of the plaintiff does not

give rise to specific or positive right in favour of the first defendant.

39. In the circumstances, the parties to bear their respective costs.

IN THE HIGH COURT OF CALCUTTA

A.F.O.D. No. 131 of 1976

Decided On: 04.07.1979

Appellants: Sm. Nani Bala Saha and Anr.

Vs. Respondent: Sm. Charu Bala Saha and Anr.

Hon'ble Judges/Coram: M.M. Dutt and Ram Krishna Sharma, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Saktinath Mukherjee, Sourendran Prosad Ghosh and

Manoharan Saha, Advs.

For Respondents/Defendant: Ranjit Kumar Banerjee and Amiya Narayan Mukherjee, Advs.

Subject: Property

Catch Words

Mentioned IN

Acts/Rules/Orders:

Specific Relief Act, 1963 - Section 38(3)

Cases Referred:

Shelfer v. City of London Electric Lighting Co., (1895) 1 Ch. 287; Woollerton and Wilson

Ltd. v. Richard Costain Ltd., (1970) 1 All ER 483; Rochdale Canal Co. v. King, (1851) 2

Sim. N.S. 78; Goodson v. Richardson, (1874) 9 Ch. App. 221; Kelsen v. Imperial Tobacco

Co., (1957) 2 All ER 343; Shamnugger Jute Factory Co. v. Ram Naram Chatterjee, (1887)

ILR 14 Cal 189

Disposition: Appeal partly allowed

Case Note:

Property obstruction Specific Relief Act, 1963 injunction Orders granted by Court

below preventing defendants from creating obstructions in constructing partition wall

defining boundary allotted to plaintiffs and defendants appeal against this Order after

considering facts of present case and law on subject Court observed that by granting

such Order defendant were put to irreparable loss defendants could not enjoy their

portion freely held, Order of injunction bad in law and liable to set aside.

JUDGMENT

M.M. Dutt, J.

1. This appeal is at the instance of the defendants and it arises out of a suit for permanent and

mandatory injunction.

2. The plaintiff No. 1 is the wife and the plaintiff No. 2 Joykrishna Saha is her husband. The

defendants Nos. 1 and 2 are respectively the widow and the son of one Subal Krishna Saha,

since deceased, the elder brother of the plaintiff No. 2 Joykrishna Saha. There was an

amicable partition of joint properties among Subal Krishna Saha, Joykrishna Saha and one

Bibhuti Bhusan by a registered deed of partition dated June 2, 1954. The disputed house,

which is a five storied one, situate at P-98, B. K. Pal Avenue, Calcutta was allotted to Subal

Krishna Saha and Joykrishna Saha and the same was also partitioned between the said two

brothers in accordance with a plan annexed to the said deed of partition and on terms and

conditions mentioned therein. The house was divided into two portions.--Lot A and Lot B.

Lot A, being the front portion, abutting on the B. K. Pal Avenue, was allotted to Joykrishna

and Lot B, the rear portion, was allotted to Subal Krishna. A common passage, 10 ft. in

width, was created in the southwestern portion leading from B. K. Pal Avenue up to the

allotment of Subal Krishna and lying on the south of the allotment of Joykrishna. Lot A has

since been numbered as 16B, B. K. Pal Avenue and Lot B as 16A, B. K. Pal Avenue.

3. There was some trouble between the two brothers in effecting the partition by metes and

bounds by raising partition walls. The plaintiffs filed a suit being Suit No. 1778 of 1957 in

the Original Side of this Court. That suit was eventually settled between the parties. The

plaintiffs also filed another suit being Title Suit No. 19 of 1972 in the City Civil Court,

Calcutta which was transferred to the Original Side of this Court at the instance of Subal

Krishna. Thereafter, good feelings were restored between the parties. Subal Krishna died on

Feb. 15, 1968 leaving behind him the defendant No. 1, his widow, and the defendant No. 2,

his only son, as his heirs. Good feelings between the parties also continued even after the

death of Subal Krishna. Fresh quarrels and disputes between the parties again started. The

principal dispute between them centres round the construction of partition walls across the

roadside balconies allotted to the defendants. Further, it was alleged by the plaintiffs that on

Sept. 23 and 25, 1972 the defendants commenced building of an unauthorised structure on a

portion of the common passage and they also encroached upon the plaintiffs' land by making

a roof of an iron sheet and projecting the same against the roof of the plaintiffs' garage. It was

the plaintiffs' case that the defendants had been preventing them from constructing the

partition walls on the balconies. Accordingly, the plaintiffs prayed for a mandatory injunction

directing the defendants to remove and demolish the constructions raised by them in the

common passage and to remove the water pipes and other pipes and electric cables laid under

the common passage adjoining the plaintiffs' land. Further, it was prayed that the defendants

should be directed to remove the corrugated iron shed put up over the plaintiffs' garage on the

south eastern corner. The plaintiffs also prayed for a permanent injunction restraining the

defendants from preventing the plaintiffs from constructing the partition walls on the

balconies.

4. The suit was contested by the defendants. They denied the allegations made by the

plaintiffs about the unauthorised constructions constructed in a portion of the common

passage and the encroachment upon the plaintiffs' land by making a roof of iron sheet and

projecting the same over the plaintiffs' garage. The defendants also made certain allegations

against the plaintiffs. As to the claim for partition at the balconies, it was contended by the

defendants that the same was illegal and not maintainable in law. The case of the defendants

in this regard was that according to the intervention and mediation of one Upendra Kumar

Saha, the claim for partition of the balconies was abandoned by the plaintiffs on creation of

better feelings between the parties as good feelings between the parties, were restored, the

status quo was decided to be maintained so far as the water pipes, drain pipes, electric cables

and balconies were concerned.

5. The learned Judge, 4th Bench, City Civil Court, Calcutta decreed the suit and granted a

mandatory injunction as prayed for by the plaintiffs except that the plaintiffs' prayer for

partition of the common passage was disallowed. As to the erection of walls on the balconies,

the learned Judge granted a permanent injunction restraining the defendants from obstructing

the plaintiffs from constructing partition walls on the balconies. Hence this appeal by the

defendants.

6. At the outset, it may be stated that in this appeal we are only concerned with as to whether

the plaintiffs are entitled to a decree for permanent injunction restraining the defendants from

obstructing or preventing the plaintiffs from constructing partition walls on the balconies.

The finding of the learned Judge and the decree granted in that regard have only been

challenged before us. Accordingly, we are not concerned with the rest of the decree and other

findings of the learned Judge which stand affirmed.

7. It has been stated already that 16A, B. K. Pal Avenue which is the back portion of the

disputed house has been allotted to the defendants. It appears that even after the partition of

the house dividing the same into two Lots, namely, Lot A and Lot B, there were disputes

between Joykrishna and Subal Krishna which led the plaintiff No. 2 Joykrishna to institute

suits on two occasions. It, however, transpires from the written statement of the defendants

and it is also not disputed that the matter was once referred to a common relation and well

wisher of the parties, one Upendra Kumar Saha. It appears that the house has a corridor of the

width of 4f ft. in each Lot. Out of the width of 4f ft., 3f ft. was allotted to Subal Krishna and

the remaining strip of 1 foot was allotted to Joykrishna. Upendra Kumar Saha was of the

opinion that corridor with its entire width should go to Sutaal Krishna because the narrow

part of it allotted to Joykrishna would be useless to him. Accordingly, he decided that in lieu

of this I foot wide strip of corridor, Joykrishna should get 3 ft. wide land contiguous to his

allotment parallel to the site of the Common passage. It is not disputed that the parties

accepted the adjudication of Upendra Kumar Saha and it is the plaintiffs' case that Joykrishna

had given up his claim to the corridor in terms of the decision of Upendra Kumar Saha. It is

also not disputed that the partition wall was erected in each of the corridors, but no partition

wall was erected on the balconies. In this regard, it may be stated here, that the balcony in

each floor measures 88 inches in length of which the western 15 inches fell to the share of

Joykrishna. Joykrishna now wants to extend the partition wall across the balcony in each

floor so as to demarcate the 15-inch space allotted to his share. It is also not disputed that

after a wall is erected on the balcony only a 10-inch space would be left to the plaintiffs. The

most significant fact that may be noticed in this connection is that the plaintiffs have no

access to the balconies and they would never be able to use the small spaces on the balconies

for any purpose whatsoever. Even if the partition walls have to be erected on the balconies

that would have to be done from the portions allotted to the defendants. It has been stated

already that although a partition wall was erected on each floor, it was not extended across

the balconies. We have already noticed the case of the defendants that as good feelings were

restored between the parties, it was decided that status quo should be maintained. In other

words, the case of the defendants is that no wall should be raised on the balconies so as to

separate the 15-inch space allotted to the plaintiff Joykrishna in each balcony. It is not

disputed before us that for the non-construction of the partition walls on the balconies, the

plaintiffs will not suffer any loss or damage whatsoever.

8. The reasons why Joykrishna wants to erect walls on the balcony in each floor have been

stated in the plaint. In para. 5 of the plaint, it has been stated inter alia that after the second

suit which was filed by Joykrishna was transferred to the Original Side of this Court, good

feelings between the parties were restored and there was no further dispute between them and

the erection of walls on the balconies was deferred. In paragraph 7, it is stated that since Sept.

23, 1972 the defendants developed adverse attitude and the ladies also quarreled and so the

urgency for erecting the walls on the balconies in the different floors was felt. The defendants

resisted the erection of walls on the balconies by the plaintiffs. The statements in the plaint

support, to some extent, the defendants' case that the parties had decided that no wall should

be erected on the balconies. It is clear that as the ladies of the two families had fallen out, the

plaintiffs wanted to erect walls on the balconies although the same would not serve them any

purpose whatsoever. In this context, we are now to consider whether a permanent injunction

restraining the defendants from obstructing the plaintiffs from erecting the walls on the

balconies should be granted or not.

9. Section 38 of the Specific Relief Act relates to the grant of perpetual injunctions. The

circumstances enumerated under sub-sec. (3) of S. 38 are based on the rules acted upon by

courts of equity in England because they were in accordance with justice, equity and good

conscience. In the instant case, there can be no doubt that the plaintiff No. 2 Joykrishna has

acquired title to the fifteen-inch space in the balconies in the different floors of the house.

The defendants do not deny the title of the plaintiff No. 2. Their case, however, is that

erection of partition walls on the balconies for separating the said space of fifteen inches in

each balcony will not serve any purpose whatsoever to the plaintiffs; on the other hand, the

erection of such walls would be harmful to the defendants. The injuries that will be suffered

by the defendants as submitted by Mr. Sakti Nath Mukherjee, learned Advocate appearing on

their behalf are: (1) the entire load of the walls will rest on the balconies, (2) the ten-inch

space that would be left in the plaintiffs' portion on each balcony will be a source of nuisance

to the defendants inasmuch as that space which will be inaccessible to both parties will

remain unclean for ever, (3) the erection of the walls on the balconies will obstruct the entire

view of the defendants of the B. K. Pal Avenue, and (4) the walls will to some extent reduce

the light and air from the western side.

10. Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the plaintiffs

submits that as soon as the plaintiffs establish their right to the property and the violation of

that right by the defendants, the plaintiffs will be entitled to the grant of a perpetual

injunction. In support of that contention, Mr. Banerjee has placed reliance on Halsbury's

Laws of England, Vol. 13, Article 17, page 12 where it is stated that as a general rule, before

a perpetual injunction can be granted, the party applying must establish his right; but as soon

as he has established his right and shows that it has been violated, then, unless there is

something special in the case, he is entitled, as of course, to a perpetual injunction to prevent

the recurrence of the violation, and the injunction may be granted even though no damage has

been caused. At the end of Article 17 it has been stated that the Court shall have regard to all

surrounding circumstances in considering whether or not it should grant an injunction, and

does not confine itself to the dry strict rights of the plaintiff and the defendant. In this

connection, we may refer to the following observations from Kerr on Injunctions, 6th Ed.,

pages 31-32:--

"The Court will in general have regard not only to the dry strict rights of the plaintiff and

defendant, but also to the surrounding circumstances and the conduct of the parties. The

consideration of the balance of convenience and inconvenience in granting or withholding the

Injunction is not neglected by the Court. If granting the injunction would have the effect of

inflicting serious damage upon the defendant without restoring or tending to restore the

plaintiff to the position in which he originally stood, or doing him any real practical good; or

if the mischief complained of is trivial, or can be properly, fully and adequately compensated

by pecuniary sum, an injunction will not issue."

11. The above statement of law from Kerr on Injunction supports the contention of the

defendants that as the erection of the walls on the balconies will not do any real practical

good to the plaintiffs; on the contrary, they will do positive harm to the defendants, the

injunction should not be granted. The principles relating to the grant of injunction have been

enumerated by A. L. Smith LJ in Shelfer v. City of London Electric Lighting Co. (1895) 1

Ch. 287 as follows :

"(1) If the injury to the plaintiffs legal right is small,

(2) And is one which is capable of being estimated in money,

(3) And is one which can be adequately compensated by a small money payment,

(4) And the case is one in which it would be oppressive to the defendant to grant an

injunction :--

then damages in substitution for an injunction may be given."

Mr. Banerjee, however, points out that the principles of law laid down in Shel-fer's case

(supra) have not been followed in Woollerton and Wilson Ltd. v. Richard Costain, Ltd.

(1970) 1 All ER 483 where it has been observed by Stamp J. that the case which A. L. Smith

L. J. was considering was, however, a case of nuisance, and the above principles cannot be

regarded as applicable where the complaint is of a trespass in respect of which only nominal

damages can be recovered. In expressing that view Stamp J. has placed reliance on the

Rochdale Canal Co. v. King (1851) 2 S. N. S. 78 and Goodson v. Richardson (1874) 9 Ch.

App. 221. His Lordship has also referred to the judgment in Kelsen v. Imperial Tobacco Co.

(1957) 2 All ER 343 where it has been held that the classic remarks of A. L. Smith LJ in

Shelfer's case are applicable as well as to an action for trespass as to one for nuisance.

Woollerton's case (Supra) was one of trespass on land and air space. The facts of that case

were that the defendants, a company of building contractors, installed a high crane on a site to

assist them in the construction of a tall building. Working space on the site was exceptionally

limited and the operation of the defendants caused congestion in the street, which had been

the cause of complaint by the plaintiffs whose premises were opposite the site.

Approximately 50 feet of the jib of the crane sometimes extended over the plaintiffs'

premises but they were at no time in any apprehension of danger. Construction on the site

began in Oct. 1969 and was due for completion in Nov. 1970. The plaintiffs were offered

£250 for the right to continue the trespass, which the defendants admitted, but which they

found was entirely unavoidable if construction was to continue. On the above facts, Stamp J.

held that the plaintiffs were entitled to an order of injunction; but it is significant to be

noticed, that the operation of the injunction was postponed until the end of Nov., 1970 within

which the defendants were expected to complete the construction works.

12. There can be no doubt that if the principles in Woollerton's case (supra) have to be

followed in the instant case, the plaintiffs should be granted an injunction as prayed for by

them. But the preponderance of authorities lean in favour of the view that where the plaintiff

will not suffer in case the injunction is not granted, but the grant of injunction will put the

defendant to hardship and will be oppressive to him, the Court will refuse to grant injunction.

In Spry on Equitable Remedies (1971) Ed 363 it has been observed as follows:

"Thus, on the one hand, there are cases where the plaintiff is concerned merely to vindicate

his rights and is not expected to suffer substantial hardship or inconvenience even if a breach

takes place. Here if the defendant is able to show that to grant an injunction would cause him

very considerable hardship a court of equity will generally consider it unjust and

unreasonable to do so, and this will be the case even where the plaintiff is merely seeking to

enforce a negative covenant or undertaking which has been voluntarily assumed by the

defendant."

Again at page 429, the learned author has, after referring to the rule in Woollerton's case,

observed:

"The better view, however, is that the considerations of hardship on the part of the defendant

are never disregarded, although the weight which will be attributed to them will often be

found to be considerably reduced in view of other circumstances, such as the acts in question

are clearly wrongful or that he has been wantonly or recklessly acting in disregard of the

rights of the plaintiff."

13. In the instant case, it has been stated already that the defendants do not deny the plaintiffs'

title to the small spaces in the balconies. It is not disputed that the plaintiffs will not suffer in

the least, far less any substantial injury, if the injunction be not granted. It is the plaintiffs'

case that they would not have insisted on erecting walls on the balconies, had it not been for a

fresh quarrel among the ladies. On the other hand, the defendants would suffer hardship and

inconvenience in case the walls are allowed to be constructed. In the circumstances, in our

view, the Court will not be inclined to apply the rule in Wollerton's case (supra) upon

consideration of only the dry strict rights of the plaintiffs.

14. Mr. Banerjee has placed reliance on an observation from Woodroffe on 'The Law

Relating to Injunctions', 5th Ed., page 358. It has been observed by the learned author that it

is doubtful whether the English Courts have jurisdiction to award damages in lieu of an

injunction where the injury is not yet committed, but threatened only, but apparently the

inclination of the Court is in the direction of holding that it has not. The observation

contemplates that if the injunction be not granted an injury will be committed to the plaintiff.

In the case before us, there is no question of any injury to be suffered by the plaintiffs as

pointed out above and so we do not think that the observation is of any help to the plaintiffs.

The statement in Kerr on Injunctions, 6th Ed., page 477, that the mere fact that there has been

a breach of covenant is, as a general rule, sufficient ground for the interference of the Court

by injunction and the covenantee is entitled, as a general rule, to have his right enforced by

injunction without the necessity of showing damage, relied on by the plaintiffs, relates to

breach of covenants in a contract and is, therefore inapplicable to the present case.

15. Mr. Banerjee has also placed reliance on the doctrine "Preventive justice excellent

punishing justice" on which a 'quia timet' action is based. But that doctrine will not apply to

the instant case, for in a 'quia timet' action there shall be a sufficient degree of probability that

the injury will be substantial and will be continued, repeated, or committed at no remote

period (See Salmond on Torts 11th Ed. page 187); the plaintiff must prove that there is an

imminent danger of very substantial damage, e.g., by showing that the threatened act is

attended with extreme probability of irreparable injury to the property of the plaintiff,

including also danger to their existence (See Snell's Principles of Equity 26th Ed., page 700).

The doctrine has been stated in another form in Pomeroy's Equity Jurisprudence, 5th Ed.,

Article 1357, p. 967: "The ideal remedy in any perfect system of administering justice would

be that which absolutely precludes the commission of a wrong, not that which awards

punishment or satisfaction for a wrong after it is committed." At the same time it has been

observed in Article 1338 at pages 935-936 that equity will not interfere to restrain the breach

of a contract, or the commission of a tort, or the violation of any right, when the legal remedy

of compensatory damages would be complete and adequate.

16. It follows from the above principles laid down by different authorities that the grant of

injunction is discretionary with Court, the discretion has, however, to be exercised after due

consideration of all surrounding circumstances. It will not be correct to say that whenever

there is an invasion of a right, the Court should grant an injunction. "And the principle is well

settled that in granting or withholding an injunction the Courts exercise a judicial discretion,

and weigh the amount of substantial mischief done or threatened to the plaintiff, and compare

with that which the injunction, if granted, would inflict upon the defendant" (Shamnugger

Jute Factory Co. v. Ram Naram Chatterjee, (ILR (1887) Cal 189).

17. At the risk of repetition, it may, be stated that if the injunction be not granted, the

plaintiffs will not suffer any loss or injury whatsoever, but the grant of an injunction would

do definite harm to the defendants. After carefully considering the facts and circumstances of

the case and the above principles of law, we are of the view that it is not a fit case where an

injunction should be granted to the prejudice of the defendants. The learned Judge, in our

opinion, was not justified in granting the injunction solely on the consideration of the

plaintiffs' right to the fifteen inch spaces in the balconies. In our view, the learned Judge did

not exercise his discretion in accordance with the principles of law discussed above.

18. Before we part with this appeal, one fact may be noticed. In this appeal, the plaintiffs

were able to obtain an interim injunction in their favour and by virtue of such an injunction

erected brick walls on the balconies except on the balcony in the second floor where the

separation was made by an iron grill at the request of the defendants and as directed by the

Court. The order of interim injunction and the erection of walls and the grill were, however,

made subject to the result of the appeal.

19. In the circumstances, we set aside the judgment and decree of the learned Judge in so far

as they grant a permanent injunction against the defendants regarding the construction of

partition walls on the balconies in all the floors of the disputed house. The rest of the

judgment and decree of the learned Judge is affirmed. The plaintiffs will remove the walls

and the iron grill within six weeks from date. The defendants will give access to the plaintiffs

to their portion for the removal of the said walls and grill. If the plaintiffs do not remove the

walls and the grill within the time mentioned above, the defendants will be entitled to remove

the same at their own cost.

20. The appeal is allowed in part, but in view of the peculiar facts and circumstances of the

case, there will be no order for costs.

Sharma, J.

21. I agree.