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Injunction

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Without filing a suit for specific performance suit and with out reserving rights under Or.2, rule 2 , bare injunction suit is not maintainable = Lakshmi alias Bhagyalakshmi and Anr. … Appellant(s) Vs. E.Jayaram (D) by Lr. …Respondent(s)= 2013 ( Feb.Part ) http://judis.nic.in/supremecourt/filename=40024

Without filing a suit for specific performance suit or with out reserving rights under Or.2, rule 2 , bare injunction suit is not maintainable =  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 … Continue reading

The Protection of Women from Domestic Violence Act, 2005 = whether acts committed prior to the coming into force of the Protection of Women from Domestic Violence Act, 2005 and which fall within the definition of the term ‘Domestic Violence’ as informed in the Act could form the basis of an action.” = SARASWATHY …. APPELLANT VERSUS BABU ….RESPONDENT = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40988

whether         acts committed prior to the coming  into force  of  the  Protection  of       Women from Domestic Violence  Act,  2005  and  which  fall  within  the       definition of the term ‘Domestic Violence’ as informed in the Act could       form the basis of an action.” … Continue reading

DECLARATION SUIT AND INJUNCTION – ARBITRATION ACT SEC. 8 = Or.39, Rule 1 & 2 C.P.C. PRIMA FAICE IS MAINTAINABLE = It is not in dispute that the plaintiffs are in possession and enjoyment of the property. As a matter of fact, the defendants wanted them to vacate the premises. Till the question raised in the suit is decided, they are entitled to be in possession, subject however to payment of rents.As a result, the applications filed under Order 39 Rules 1 and 2 C.P.C. in the respective suits are allowed and the respective defendants are restrained from interfering with the possession of the plaintiffs or evicting them from the suit schedule premises, subject, however, to the condition that the rent shall be paid with enhancement at 10% over and above what is provided for under the lease deeds from January 2013 onwards. The difference of rent, if any in, this behalf, shall be paid within four (4) weeks from today. The payment of extra amount shall be subject to the outcome of the suits. ;WHEN REFERRING ARBITRATION AROSE & WHEN SUIT IS MAINTAINABLE = Law is also fairly well settled to the effect that if the agreement governing relationship of the parties contains a clause providing for arbitration, a suit for seeking redressal in relation to any dispute covered by the agreement cannot be maintained and it stands barred by Section 8 of the Act. However, a keen observation of the clause extracted above reveals that it is only when the dispute or question of difference arises out of, or in respect of, those presents or as to the construction, meaning or the subject matter of the lease presents or as to any act done or omitted to be done under the lease or the rights, duties and liabilities of the respective parties, referable to the agreement, that the matter shall be referred to arbitration. – no application was filed by the defendants under Order 7 Rule 11 C.P.C. for rejection of the plaint. They did not make any counter claim in the suit nor did they file any suit for reference of the matter to arbitration. Therefore, the order passed by the trial Court, referring the matter to arbitration cannot be sustained in law. The termination of the suit does not accord with the procedure prescribed under C.P.C. A decree could not have been passed outside the prayer in the suits.; ORDERS WHICH ARE dependant’ in nature and the challenge thereto cannot be rejected, on the ground that the suit itself stood terminated. That was a case, in which the delay in filing of appeal was condoned and the effected party challenged the order passed by the Court condoning the delay. Even while the proceedings, in which the order condoning delay was challenged, were pending, the appeal that came to be numbered was disposed of. An objection was raised to the effect that once the appeal has been disposed of, it is not at all open to the parties to challenge the order, through which the delay was condoned. This contention was negatived and the Hon’ble Supreme Court treated such appeals as ‘dependant’ upon the order, condoning the delay being sustained, whenever challenged. The same situation obtains in this case. REPORTED/PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9751

THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE K.G.SHANKAR C.M.A.Nos.126 of 2012 and Batch 03.04.2013 M/s. Ashok International rep., by its Managing Director. State of A.P. and others. Counsel for the Appellant: Sri V.L.N.G.K.Murthy Counsel for respondents: G.P. for Arbitration <GIST: >HEAD NOTE: ? Cases referred: 1. AIR 1988 SUPREME COURT … Continue reading

Suit for prohibitory injunction – Relating to vacant land –Claim for possession based on title – Title of plaintiff disputed – Various complicated questions arose for putting forth a case of title – Suit decreed by trial court – Reversed by first appellate court – High Court in second appeal after recording finding of facts restored the order of trial court – On appeal, held: In the facts and circumstances of the case, the questions which arose for consideration could be decided only in a suit for declaration and consequential reliefs and not in a suit for injunction simplicitor – In absence of prayer for declaration of title, issue regarding title, pleadings required for declaration of title, the parties cannot be said to have an opportunity to have full fledged adjudication regarding title – High Court exceeded its jurisdiction u/s 100 CPC in re-examining questions of fact, by going into the questions which were not pleaded and not in issue, and by formulating questions of law which did not arise in the second appeal – Code of Civil Procedure, 1908 – s.100. Suit for prohibitory injunction – Relating to immovable Property – Scope of – Held: The prayer for injunction will be decided with reference to the finding on possession – In cases of vacant land, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession – If the title is clear and simple, the court may decide the issue of title – But, if a cloud is raised over plaintiff’s title, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Respondent/plaintiffs 1 and 2 filed a suit for permanent injunction against the appellant-defendant. They pleaded that they were owners in possession of the suit properties (vacant land) under sale deeds from `R’ (their vendor). They alleged that the defendant interfered with their possession. Defendant in his Written Statement stated that the suit property was purchased by him from the brother of the plaintiffs’ vendor under a registered sale deed and was put in possession of the property by his vendor and it were the plaintiffs who tried to interfere with his possession. Plaintiffs led evidence to the effect that defendant’s vendor had gifted the suit property to his sister in the year 1961 by way of `Pasupu Kumkumam’. Defendant and his vendor denied the plea of gift. Trial Court decreed the suit. First Appellate Court allowed the appeal of the defendant holding that defendant was in possession of the property and the plaintiff had not made out either title or possession over it; that mere suit for injunction was not maintainable and the suit should have be amended to one for declaration and injunction. High Court in second appeal, examining the evidence in detail, recorded the findings of facts and restored the judgment and decree of trial court. It held that plaintiffs had established their title in respect of suit land and drew an inference that possession was presumed to be with them by applying the principle of possession follows title; and that it was not necessary for the plaintiffs to sue for declaration of title as the question of title could be examined incidental to the question of possession. Hence the present appeal. The questions which arose for consideration before this Court were regarding the scope of a suit for prohibitory injunction relating to immovable property; whether plaintiffs were required to file a suit for declaration of title and injunction; and whether the High Court, in a second appeal , could examine the factual question of title which was not the subject matter of any issue and based on a finding thereon, reverse the decision of the first appellate court. Citation: 2008 AIR 2033,2008(5 )SCR331 ,2008(4 )SCC594 ,2008(4 )SCALE718 ,= Allowing the appeal, the Court HELD: 1.1 Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. [Para 17] [349-G; 350-A] 1.2 A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff’s title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. [Para 12] [345-G; 346-A, B, C, D] 1.3 As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. In cases of vacant land, the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was in issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs. [Paras 14 and 17] [346-G; 347-A, B, C; 350-A, B] 1.4 However, a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. [Para 17] [350-C, D, E] 1.5 Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. [Para 17] [350-F, G, H; 351-A] Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple vs. Rajanga Asari – AIR 1965 Mad. 355; Sulochana Amma vs. Narayanan Nair – 1994 (2) SCC 14; Annaimuthu Thevar v. Alagammal – 2005 (6) SCC 202; Sajjadanashin Sayed Md. Vs. Musa Dadabhai Ummer – 2000 (3) SCC 350- referred to. Corpus Juris Secundum (Vol.50, para 735, p.229) – referred to. 2.1 In the present case, the suit sites were vacant plots. Both sides admitted that defendant’s vendor was the original owner and that entire property stood in his name. The defendant claims title through his vendor. The plaintiffs claim title through their vendor, who neither has any deed of title nor any document in support of title or possession. Admittedly, there was no mutation in her name. This means that plaintiffs claim title through someone who claimed to be owner in pursuance of an oral gift in the year 1961 without the property being mutated in her name, whereas the defendant claims title from the person who was admittedly the original owner who was registered as owner in the revenue records. Necessarily, therefore, prima facie it has to be held that defendant had made out possession following title. [Para 20] [352-B, C, D, E] 2.2 The plaintiffs and their witnesses gave evidence to the effect that defendant’s vendor represented that his sister (appellants’ vendor) was the owner of the plot and negotiated for sale of the several portions thereof in favour of plaintiffs and PW3, and that defendant’s vendor had attested the sale deeds in their favour and identified his sister as the vendor-executant before the Sub-Registrar, at the time of registration of the sale deeds. But defendant’s vendor in his evidence denied having made the oral gift or having attested the sale deeds in favour of plaintiffs. He also denied having identified his sister at the time of registration of the sale deeds. Whether evidence of appellants’ vendor and other plaintiffs’ witnesses should be believed or whether evidence of defendant’s vendor should be believed on the question of title, can be examined only when there are necessary pleadings and an issue regarding title. Further, where title of plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and section 41 of Transfer of Property Act, validity of a oral gift by way of `Pasupu Kumkum’ under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter. [Para 21] [352-E, F, G, H; 353-A, B, C] 3.1 High Court exceeded its jurisdiction under Section 100 CPC, firstly in re-examining questions of fact, secondly by going into the questions which were not pleaded and which were not the subject matter of any issue, thirdly by formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well reasoned judgment of the first appellate court which held that the plaintiffs ought to have filed a suit for declaration. [Para 27] [355-G; 356-A, B] 3.2 The High Court, in the absence of pleadings and issues, formulated in a second appeal arising from a suit for bare injunction, questions of law unrelated to the pleadings and issues, presumably because some evidence was led and some arguments were advanced on those aspects. The only averment in the plaint that plaintiffs were the owners of the suit property having purchased the same under sale deeds, did not enable the court, much less a High Court in second appeal, to hold a roving enquiry into an oral gift and its validity or validation of ostensible title under section 41 of Transfer of Property Act. No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues. [Para 25] [355-A, B, C] 3.3 The High Court while reversing the decision of the first appellate court, examined various aspects relating to title and recorded findings relating to title. It held that gifting a property to a daughter or sister by way of `Pasupu Kumkumam’, could be done orally and did not require a registered instrument. Even though there was no independence evidence of oral gift except the assertion to appellants’ vendor (which was denied by defendant’s vendor), the High Court, held that there was an oral gift in her favour. It also accepted the evidence of PW3 and PW5 and plaintiffs, that defendant’s vendor negotiated for the sale of the plots representing that they sbelonged to his sister; and that he attested the sale deeds as a witness and identified his sister as the executant before the Sub-Registrar and therefore, Section 41 of Transfer of Property Act came to the aid of plaintiffs and defendant’s vendor was estopped from denying the title of his sister. The High Court in a second appeal arising from a suit for an injunction, could not have recorded such findings, in the absence of pleadings and issue regarding title. [Para 26] [355-D, E, F, G] 3.4 Though driving the plaintiffs to a fresh round of litigation after three decades would cause hardship to them. But the scope of civil cases are circumscribed by the limitations placed by the rules of pleadings, nature of relief claimed and the court fee paid. The predicament of plaintiffs, was brought upon themselves, by failing to convert the suit to one for declaration even when the written statement was filed, and by not seeking amendment of issues to include an issue on the question of title. In the absence of a prayer of declaration of title and an issue regarding title, let alone the pleadings required for a declaration of title, the parties cannot be said to have an opportunity to have a full-fledged adjudication regarding title. [Para 28] [356-B, C, D] D. Mahesh Babu for the Appellant. K. Amareswari, P. Venkat Reddy and Guntur Prabhakar for the Respondents.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10 CASE NO.: Appeal (civil) 6191 of 2001 PETITIONER: Anathula Sudhakar RESPONDENT: P. Buchi Reddy (Dead) By LRs & Ors DATE OF JUDGMENT: 25/03/2008 BENCH: R. V. Raveendran & P. Sathasivam JUDGMENT: J U D G M E N T (Reportable) CIVIL APPEAL NO.6191 OF 2001 R.V. … Continue reading

MISTAKE OF FACT = The appellant challenged the order of punishment in Writ Petition No.2942 of 2010. He also filed an application for withdrawal of the suit which was allowed by the concerned Court on 23.02.2010. In paragraph 10 of the writ petition, the appellant disclosed the factum of pendency of the suit and averred that he had filed a writ petition questioning the order of punishment because the Civil Court had not granted injunction. However, the learned Single Judge dismissed the writ petition by assuming that the appellant had suppressed the fact relating to the suit filed in the Court of Civil Judge (Junior Division), Sonepat. The learned Single Judge relied upon the decision of this Court in Arunima Baruah vs. Union of India and others (2007) 6 SCC 120 and held that the appellant who was guilty of suppressing material facts was not entitled to relief under Article 226 of the Constitution.= Therefore, it must be held that the appellant had not suppressed the facts relating to the civil suit and dismissal of the application for temporary injunction and the learned Single Judge and the Division Bench of the High Court committed serious error by non-suiting him on the premise that he was guilty of not coming to the Court with clean hands. In the result, the appeal is allowed, the impugned order as also the one passed by the learned Single Judge are set aside and the writ petition filed by the appellant is restored to its original number. The High Court shall now decide the same on merits after giving opportunity of hearing to the parties. ‘

‘     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.4 OF 2013 (Arising out of SLP(C)No.32533 OF 2011) CHETAN DEV CHAWLA …….APPELLANT VERSUS STATE OF HARYANA & ORS. ……RESPONDENTS O R D E R Leave granted. The only question which requires consideration in this appeal is whether the learned Single … Continue reading

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] 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 … Continue reading

This general understanding of Section 53-A of the Act is not absolute. In a given case, the suit for perpetual injunction can be filed based upon the agreement of sale, even where no relief of specific performance of agreement of sale is claimed. In Yenugu Achayya v. Ernaki Venkata Subba Rao1, a Division Bench comprising of Chief Justice Subba Rao and Justice Viswanatha Sastri, the two giants, in the field of law, had aptly and succinctly expressed the purport of Section 53-A as under: “The section does not either expressly or by necessary implication indicate that the rights conferred on the transferee thereunder can only be invoked as a defendant and not as a plaintiff. Under the terms of the section the transferor is debarred from enforcing against the transferee only rights in respect of the property and this bar does not depend upon the array of the parties. The transferee can resist any attempt on the part of the transferor to enforce his rights in respect of the property whatever position he may occupy in the field of litigation. In one sense, it is a statutory recognition of the defensive equity. It enables the transferee to use it as a shield against any attempt on the part of the transferor to enforce his rights against the property. Whether the transferee occupies the position of a plaintiff or a defendant, he can resist the transferor’s claim against the property. Conversely, whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property against the transferee. The utility of the section or the rights conferred thereunder should not be made to depend on the maneuvering for positions in a Court of law, otherwise a powerful transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as plaintiff. Doubtless, the right conveyed under the section can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield.”

THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY C.R.P.Nos.820 of 2011 and bt 23-06-2011 Madala Kotaiah Ms Hamsa Minerals & Exports and another. Counsel for the petitioner: Sri T.Sreedhar Counsel for the Respondents: Sri Y.V.Ravi Prasad :COMMON ORDER: These two revisions arise out of an order, dated 24.03.2008 passed by the Court of I Additional Junior Civil … Continue reading

Tharigonda Vengamamba Mirasi Service =The relevant principles, touching upon the question posed by us supra, can be conveniently considered under three distinct heads, namely, (i) the power of the Court under Order VII Rule 7 of the CPC to grant the relief not asked for; (ii) the power of the Court under Order XX Rule 12 of the CPC to pass a decree for mesne profits; and (iii) under Order XLI Rule 33, and the impact of subsequent events.=It is a general practice that most of the plaints have a prayer in general terms ‘such other relief as the Court may deem fit and proper’ or ‘such further or other relief as the nature or case require’. Such general relief would be sufficient to empower the Court to grant a lesser relief which is incidental to the general relief.

THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI RAMESH RANGANATHAN LETTERS PATENT APPEAL No.77 OF 1997 27-07-2011 G.Subrahmanyam (died) per LRs G.Leela and others Counsel for Petitioners:Sri T.S.Anand Counsel for Respondents: Dr P.B.Vijay Kumar :JUDGMENT: (Per Hon’ble Sri Justice V.V.S.Rao) This plaintiff’s Letters Patent Appeal, under clause 15 of the Letters Patent, is against … Continue reading

ADMISSION IS THE CONCLUSIVE PROOF. -The 1960 deed describes status of the plaintiff as perpetual lessee and it further records that the question of nature of the Plaintiff’s right was reconsidered by the Defendant at the request of Laxman Das and after examining it they were satisfied that the Plaintiff held the land on lease in perpetuity. This is not only the admission on the part of the Defendant but the 1960 Deed also records that the Defendant had determined the status of the Plaintiff over the land after consideration. 79. This determination is admission of the Defendant. It is conclusive proof of the status of the Plaintiff as neither any explanation for the same has been offered, nor any action has been taken against Laxman Das.

HIGH COURT OF JUDICATURE AT ALLAHABAD  AFR  Reserved  Case :- FIRST APPEAL No. – 962 of 2004  Petitioner :- State Of U.P. Thru’ Collector, Mathura  Respondent :- Thakur Sri Radha Ramanji Maharaj  Petitioner Counsel :- S.C.  Respondent Counsel :- Shamim Ahmad,R.K.Jain,Vipin Sinha  Hon’ble Yatindra Singh, J  Hon’ble Dinesh Gupta, J  (Delivered by Hon’ble Yatindra Singh, … Continue reading

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