Lakhmi Chand vs Sarla Devi

The petitioner filed a suit under S. 6(1) of the Specific Relief Act. 1963(for short ''the Act'') for possession of the premises in dispute alleging that he was in occupation thereof as a tenant and the respondent took its possession illegally in his absence on April 21, 1982. The suit was decreed on Jan. 18, 1985 and the revision against the decree also failed. Thereafter, the respondent filed the present suit under S. 6(4) of the Act for a declaration that she was in lawful possession of the premises in dispute as owner and far perpetual injunction restraining the petitioner from dispossessing her. Along with the suit, she also filed an application under O. 39, Rr. 1 and 2 of Civil P.C. for the grant of an ad interim injunction restraining the petitioner from interfering with her possession during the pendency of the suit, which was accepted by the trial Court and status quo ordered to be maintained. Having failed in the appeal as well, the defendant has come up in this revision.

The lower appellate Court, for its view that an ad interim injunction restraining the defendant from executing the decree can he granted, has relied on two decisions; one of Allahabad High Court in Chunni v. Sullahar AIR 1972.A11 418 and another of Gujarat High Court in Mohammad Hussain Suleman Shaikh and Another Vs. Batukbhai Vaijibhai and Others, . For holding that a prima facie case exists in favour of the plaintiff, it observed that even according to the defendant the former was in possession when the suit under S. 6(4) of the Act was Filed. It possessory comprehension as to how any Court could hold that the plaintiff has a prima facie case on the reason stated when the decree itself is for the recovery of possession. The considerations, such as prima facie case and balance of convenience, have no meaning in a suit like the present one because no ad interim injunction restraining the defendant from executing the decree can legally be issued.

It was settled long back by the Supreme Court in Munshi Ram v. Delhi Administration AIR 1968 SC 702 that no one including the true owner has a right to dispossess. the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. The right given under S. 6 of the Act to a person dispossessed without his consent of immovable property otherwise than in due course of law to recover possession thereof, notwithstanding any other title that may be set up in such suit, is the statutory recognition of the same principle, If a suit for injunction restraining a person, who has been wrongfully dispossessed, from executing the decree passed under S. 6 for recovery of possession is held to be competent it would obviously result in violation of the above principle and render the provisions of S. 6 of the Act nugatory. Moreover, such a suit is expressly barred by the provisions of S. 41(a) of the Act which provides that an injunction cannot be granted to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings. A contrary view was taken in Chunni''s case (supra) by the Division Bench of the Allahabad High Court on the ground that, strictly speaking, such a suit is neither to restrain the defendant from prosecuting a judicial proceeding nor from instituting the execution application within the meaning of cls. (a) and (b) of S. 41 of the Act as the relief claimed is to restrain the defendant from interfering with the plaintiff''s possession are not for a direction to prevent him from instituting or prosecuting the execution proceedings. The Bench sought support for this view from a single Bench decision of the Bombay High Court in Mari Daddatamma Merkundi v: Santaya Ramkrishna Pai Kolle AIR 1922 Bom 216. With due respect to the learned Judges, I am unable to subscribe to this view. The defendant obviously seeks the recovery of the possession by executing. the decree and not by any wrongful act or by taking the law into his own hands. The injunction claimed though may be that the defendant be restrained from taking '' possession, but, in substance, it would mean and have the effect of restraining him from executing the decree lawfully passed in his favour; which would necessarily result in the violation of the provisions of Clause (a) of S. 41 of the Act.

Under the Specific Relief Act, 1877, Cls. (a) and (b) of S. 56 read as under:--

"An injunction cannot be granted--

(a) to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;

(b) to stay proceedings in a Court not subordinate to that from which the injunction is sought."

Interpreting these clauses, several Courts like the Bombay High Court in Mari''s case (supra) took the view that though an injunction could not be granted to stay judicial proceedings or proceedings in a Court not subordinate to that from which the injunction is sought; but an injunction could not be granted to the party restraining him from pursuing such proceedings. As the injunction restraining a party from pursuing judicial proceedings has. the effect of staying those proceedings the Legislature did not approve this view and the old clause e substituted with the following clauses in specific Relief Act of 1963:--

"Section 41. An injunction cannot be granted--

(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;

(c) to restrain any person from instituting. or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought."

The obvious intent and purpose of the introduction of the words "to restrain any person" in the beginning of the two causes was to make it clear that under the new clauses, no injunction can be issued even to a party restraining him from pursuing or prosecuting a judicial proceeding. The change in the law and phraseology of the present clauses it appears, was not brought to the notice of the learned Judges in Chunni and Another Vs. Sullahar and Another, .

Again, the phraseology used in S. 6(4) of the Act also makes it clear that the suit has to be for establishment of tide and recovery of possession. This phraseology was purposely used in view of the provisions of S. 41(b) of the Act. If a suit for injunction could be maintainable, then the Legislature would have used the words "for establishment of the title and the maintenance of possession" instead of the words "to recover possession thereof". I am, therefore, of the considered view that a suit for injunction restraining the defendant from executing the decree passed in his favour under S. 6 of the Act would not be competent.

Once it is held that no suit for permanent injunction would be competent, then the Court would have no jurisdiction even to grant an ad interim injunction to restrain the defendant from executing the decree as held by the Supreme Court in Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others, . Even if it may be accepted for the sake of argument that a suit for permanent injunction would be competent, then even it would not tie possible to grant any ad interim injunction. The grant of temporary injunction is regulated by O. 39 R. l of Civil P.C., but it can be granted ir exercise of the inherent powers also in matter not covered by the provisions of the said rule. However, as held in Ramkarandas Radhavallabh Vs. Bhagwandas Dwarkadas, , in so far as the matter ir., question in any particular case or topic, falls within the ambit of the express provisions of the statute, the inherent powers of the Court must to that extent be regarded as abrogated by the Legislature and the Court in such cases cannot have recourse to its inherent powers. A specific provision. has been made for the grant of temporary injunction preventing the dispossession of the plaintiff by clause (c) of O. 39; R. 1, Civil P.C., which provides that the Court may grant a temporary, injunction when the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property. It is only the first portion of the clause (c) which could possibly be invoked by the plaintiff, but that clause envisages a wrongful act on the part of the defendant. The use of the word "threatens" in this pert of the clause implies a wrongful act on the part of the defendant and the taking of the. law into his own hands. When a defendant seeks to recover possession through judicial process by way of execution of a decree lawfully passed in his favour, by no stretch of reasoning can it be said that he is threatening to dispossess the plaintiff or doing any wrongful act. The case, therefore, would not be covered by the said clause. Nor it would be possible to invoke the powers of the Court under S. 151 of Civil P.C. because of thc specific provision available in the shape of clause (c) of O. 39, R. 1. The Courts below, thus, acted illegally in granting the ad interim injunction in utter disregard and violation of the provisions of O. 39, R. 1 of Civil P.C.

For the reasons recorded above, this revision is allowed and the impugned order reversed. No costs.

Revision allowed.