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Or.39, rule 1 and 2 C.P.C. – Scope of sec. 53 of T.P. Act and Scope of Or.2 rule 2 can be decided at the time of the trial, admitted possession only is to be considered at interlocutory stage – In our considered opinion, the learned single judge has completely misconstrued the provisions of Order 39 Rule 1 and 2 CPC and has committed serious error in deciding the scope of Section 53A of Transfer of Property Act, 1882 and Order 2 Rule 2 of CPC. As noticed above the Civil Judge while granting ad-interim injunction very categorically observed in the order that respective rights of the parties shall be decided at the time of final disposal of the suit. The very fact that Plaintiff No.2 is in possession of the property as a tenant under Plaintiff No.1 and possession of Plaintiff No.2 was not denied, the interim protection was given to Plaintiff No.2 against the threatened action of the defendants to evict her without following the due process of law. In our considered opinion, the order passed by the learned single judge cannot be sustained in law. 8. For the aforesaid reasons, we allow this appeal and set aside the order passed by the High Court in the aforesaid appeal arising out of the order of injunction.

[REPORTABLE]

Appeal to the Great Spirit

Appeal to the Great Spirit (Photo credit: cliff1066™)

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1004 of 201 3
(Arising out of Special Leave Petition (C) No.1185 of 2006)

Lakshmi alias Bhagyalakshmi and Anr. … Appellant(s)

Vs.

E.Jayaram (D) by Lr. …Respondent(s)

J U D G M E N T

M.Y. EQBAL, J.

Leave granted.

2. This appeal is directed against the order dated 29.08.2005 passed by
a single Judge of the Karnataka High Court in M.F.A. No. 524 of 2003,
whereby the Learned Single Judge set aside the order passed by the VII
Addl. City Civil Judge, Bangalore and held that defendant-respondent is
entitled to initiate action for ejectment of the plaintiff-appellants from
the suit property.
3. The facts of the case lie in a narrow compass.
4. The plaintiffs who are the present appellants filed a suit for
permanent injunction restraining the defendant-respondents from interfering
with their peaceful possession and enjoyment of the suit property. The
plaintiff-appellants case was that Plaintiff No.1 is the absolute owner of
the suit property consisting of a building which was purchased from
Defendant No.1 on a consideration of Rs.6,000/- However, sale deed could
not be registered as the registration was suspended by the Government and
the defendant-respondents could not get clearance from the Urban Land
Ceiling Authority. The plaintiff-appellant’s further case was that
although the sale deed was not registered, the entire sale consideration
was paid to Defendant No.1 by the plaintiff who was put in possession of
the suit property. It was pleaded by the plaintiffs that Plaintiff No.1
leased out the suit property in favour of Defendant No.2 who is residing in
the same suit property for the last 17 years. Plaintiff-appellants further
case was that they approached the Bangalore Mahanagara Palike for change of
kattas and, on enquiry, they learnt that Defendant No.1 with an intention
to grab the property concocted a gift deed in favour of Defendant No.2, who
is his wife and on that basis moved an application for change of kattas.
Immediately, the plaintiffs caused a legal notice dated 09.09.2002 asking
him to execute a sale deed in favour of Plaintiff No.1. The plaintiffs
also caused a legal notice on Municipal authorities not to change the
kattas in favour of Defendant No.2 as Defendant No.1 has no right
whatsoever to gift the suit property. The plaintiffs alleged that
defendants along with their henchmen came to the suit property and
threatened the plaintiff-appellants of dire consequences if they do not
vacate the property within three days. On account of repeated threats from
the side of defendants, the plaintiffs were compelled to file a suit for
permanent injunction restraining the defendants from interfering with their
peaceful possession and enjoyment of the suit property. A separate
application under Order 39 Rule 1 and 2 CPC seeking an ad-interim relief
restraining the defendants from interfering with their peaceful possession
and enjoyment was filed.
5. The defendant-respondents filed a written statement and denied the
averments made in the plaint. The defendants denied the purchase of the
suit property by the plaintiff-appellants from Defendant-Respondent No.1.
The defendants pleaded about their family settlement whereby the suit
property was allotted to the defendants who put construction and let out
the same to Plaintiff No.2. According to the defendants, Plaintiff No.1 is
a stranger. In a nutshell the case of the defendants is that Defendant
No.1 is the owner of the property and Plaintiff No.2 is a tenant under him
and that she was paying rent per month.
6. The learned Additional City Civil Judge on consideration of the
pleadings made by the parties and the documents filed by them allowed the
application of the plaintiffs under Order 39 Rule 1 and 2 CPC and granted
ad-interim temporary injunction restraining the defendants from interfering
with the peaceful possession and enjoyment of the suit property by
Plaintiff No.2 till disposal of the suit. While granting temporary
injunction the Civil Judge recorded the following reasons :-
“From the allegations and counter allegations, it can be
crystallized that plaintiff no.2 is in possession of suit schedule
property and as such, the documents have been produced and even
defendants admit the possession of plaintiff no.2. As regards the
sale deed which is alleged to have been executed the same is
seriously disputed document. Hence it need not be considered at
this stage. The respective rights of the parties will have to be
decided at the final disposal of the suit. At this stage, it is
suffice to state that plaintiff no.2 is in possession of the
property who has filed an affidavit stating that she is a tenant
under plaintiff no.1 where as defendants have produced documents to
show that she is tenant under them.
In view of the above, I am of the considered opinion that
this controversy can be resolved at the final disposal of the suit
when parties lead their respective evidence. At this stage,
plaintiff no.2 is entitled for injunction. Hence the point for
consideration is answered in favour of plaintiff no.2 only and I
proceed to pass the following:
I.A. No.1 filed by the plaintiffs under Order 39 Rule 1 and 2
of CPC is allowed in part.
Defendants 1 and 2 are restrained by an order of ad-interim
temporary injunction from interfering with the peaceful possession
and enjoyment of the suit schedule property by plaintiff no.2 till
disposal of the suit.”
6. Aggrieved by the said order the defendants preferred an appeal before
the High Court being MFA No.524 of 2003. Ld. Single Judge instead of
considering the legality and propriety of the interim injunction granted by
the Civil Judge proceeded to decide the effect of Section 53A of the
Transfer of Property Act, 1882. The Ld. Single Judge is of the view that
though the plaintiff is ready and willing to perform her part of the
contract, the fact that suit for bare injunction is filed without seeking
leave under Order 2 rule 2 CPC reserving their right to sue for any other
relief. According to Ld. Single Judge in the light of this, if the
respondent is barred from claiming any relief of specific performance, the
incidental relief of injunction would be unavailable to the respondents.
7. We have heard learned counsel appearing for the parties. In our
considered opinion, the learned single judge has completely misconstrued
the provisions of Order 39 Rule 1 and 2 CPC and has committed serious error
in deciding the scope of Section 53A of Transfer of Property Act, 1882 and
Order 2 Rule 2 of CPC. As noticed above the Civil Judge while granting
ad-interim injunction very categorically observed in the order that
respective rights of the parties shall be decided at the time of final
disposal of the suit. The very fact that Plaintiff No.2 is in possession
of the property as a tenant under Plaintiff No.1 and possession of
Plaintiff No.2 was not denied, the interim protection was given to
Plaintiff No.2 against the threatened action of the defendants to evict her
without following the due process of law. In our considered opinion, the
order passed by the learned single judge cannot be sustained in law.
8. For the aforesaid reasons, we allow this appeal and set aside the
order passed by the High Court in the aforesaid appeal arising out of the
order of injunction.
9. However, before parting with the order we are of the view that since
the suit is pending for a long time the trial court shall hear and dispose
of the suit within a period of four months from the date of receipt of copy
of this order. It goes without saying that the trial court shall not be
influenced by any of the observation made in the order passed by the
appellate court as also by this court and the suit shall be decided on its
own merits.
………………………………J.
(SURINDER SINGH NIJJAR)

 
………………………………J.
(M.Y. EQBAL)
New Delhi
February 7, 2013
———————–
7

 

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