1. Suit for perpetual injunction and temporary injunction under Order 39 Rule 1 CPC concerning land possession based on competing sale agreements. (Para 2 , 3 , 4 )
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1999 Supreme(SC) 296
1999(2) Supreme 436
Supreme Court of India
(From Gujarat High Court)
S. Saghir Ahmad and M. Jagannadha Rao, JJ.
Ashwinkumar K. Patel -Appellant
versus
Upendra J. Patel & Ors. -Respondents
Civil Appeal No. 1390 of 1999
(Arising out of SLP (C) No. 11811 of 1998)
Decided on 11-3-1999
Counsel for the Parties :
For the Appellant : D.A. Dave, Sr. Advocate and P.K. Manohar, Advocate.
For the Respondent : Ms. J.S. Wad, Advocate.
For the Respondent Nos. 6 - 9 : M.N. Shroff and Ms. Suvira, Advocates.
Important Points
Important Point
The High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. When material is available before the High Court, it should itself decide the appeal one way or other.
The High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. When material is available before the High Court, it should itself decide the appeal one way or other.
Subject
Civil Law - Temporary Injunction
Act Referred
Headnote
(i) Code of Civil Procedure, 1908-Order 41, Rule 23-Remand -High Court should not ordinarily remand a case under Order 41 Rule 23 merely because it considers that reasoning of lower court in some respect was wrong-When material available before High Court, it should itself decide appeal in one way or other.
Held : The High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima-facie case on the material available. (Para 8)
(ii) Code of Civil Procedure, 1908-Order 39, Rule 1-Temporary injunction-Plaintiff claiming to be in possession of property-Defendant’s also claiming to be in possession - Owner’s supporting case of plaintiff-Commissioner’s report saying that plaintiff in physical possession-Temporary injunction granted by trial Court justified-Status quo on spot to be maintained pending adjudication of rival claim as to ownership. (Paras 9 to 15)
Legal Category Hierarchy
Table of Contents
2. Plaintiff asserts possession via sale agreements; defendants claim possession through power of attorney and registered sale deeds. (Para 3 , 4 )
3. Remand under Order 41 Rule 23 CPC is unwarranted if material is available; possessory rights justify temporary injunction regardless of title validity. (Para 8 , 12 , 13 )
4. High Courts should not remand cases under Order 41 Rule 23 CPC merely due to erroneous reasoning if the record allows for a final decision. (Para 8 )
5. Appeal allowed; High Court order set aside; trial court's temporary injunction restored with a direction to maintain status quo. (Para 14 , 15 )
6. When is remand under Order 41 Rule 23 CPC inappropriate?
A High Court should not ordinarily remand a case to a lower court simply because the lower court's reasoning was wrong if the material necessary to decide the appeal is already available. (Para 8 )
7. Can a temporary injunction be granted based on possession if the underlying agreement is void?
Yes, a possessory right, such as permissive possession accepted by the owners, is sufficient to establish a prima facie case for a temporary injunction, irrespective of the validity of the title or agreements. (Para 12 , 13 )
8. What weight is given to a Court Commissioner's report in injunction proceedings?
A Court Commissioner's physical verification and panchnama confirming a party's possession are considered evidence of considerable importance in determining a prima facie case for a temporary injunction. (Para 11 )
Judgment
M. Jagannadha Rao, J.-Leave granted.
2. This is an appeal by the plaintiff in the suit and arises out of an application for grant of temporary injunction filed under Order 39 Rule 1 CPC by the plaintiff-appellant. The suit 337 of 1996 is now pending in the Court of the Civil Judge (S.D.), Baroda. The trial Court granted temporary injunction (wrongly described as permanent injunction) by order dated 2.8.1997 restraining interference with the appellant’s possession in respect of 8138 sq. meters in Survey No. 224 and 246 of Akota, Baroda District. On appeal by defendants 15 to 19, the High Court of Gujarat by orders dated 23.2.1998 in A.O. 409 of 1997, allowed the appeal and remitted the matter to the District Court and directed that meanwhile, the status quo on the spot be maintained. The defendants 1 to 14 support the plaintiff.
3. It appears that the defendants 1 to 14 are the legal heirs of the owner, one Gulam Husain Momin who died on 12.5.1971. The plaintiff claims that the said owners executed an (Unregistered) agreement of sale dated 14.10.1980 in his favour and received Rs. 25,000 on that day and later received various amounts on various days totalling Rs. 5,75,000 and the sale of the 8138 sq. meters was initially at the rate of Rs. 1.85 per sq. meter. Later by a subsequent agreement dated 6.4.1996, the rate according to the plaintiff was changed to Rs. 44.35 per sq. meter and a further sum of Rs. 1 lakh was paid. Plaintiff claimed to be in possession. The suit was filed on 15.6.1996 for perpetual injunction restraining the defendants 15 to 19 and 28 from entering into any sale transaction or agreement or transfer of the suit land and for not obstructing or interfering with plaintiff’s possession of suit land.
4. The defendants 15 to 19 and 28 contested the suit claiming that under a registered agreement of sale dated 16.7.1991 entered into by defendants 15 and 28, as power of attorney holders under a registered power of attorney dated 16.7.1991, the abovesaid vendors agreed to sell the same property to whomsoever defendants 15 and 28 would sell and possession was also given by a receipt dated 16.7.1991 to defendants 15 and 28. Thereafter, it is said that the said power of attorney holders sold this property to defendants 15 to 19 under five sale deeds dated 17.4.1996. Here it may be noted that it is the case of the owners that by a public notice dated 26.3.1996, the said owners (defendants 1 to 14) had cancelled the power of attorney dated 16.7.1991 and that even the agreement dated 16.7.1991 was not true. It is the case of the owners, defendants 1 to 14 that they had given possession to the plaintiff and even on date of suit, 15.6.1996, the plaintiff was in possession. These were broadly, the rival contentions.
5. In the interlocutory application filed by the plaintiff, the trial Court held that the land being new tenure land, the agreements entered into by the owners in favour of the plaintiff on 14.10.1980 and 6.4.1996, even if true, were void as the requisite permission of the competent authority was not obtained. For the same reason, the agreement dated 16.7.1991 by defendants 15 and 28 in favour of defendants 15 to 20, even if true, and sale-deeds dated 17.4.1996 by defendants 15 and 28 in favour of defendants 15 to 19 were also void. However, on the question of possession, the trial Court relied upon the case of the owners (defendants 1 to 14) to the effect that they had put the plaintiff in possession. Hence, irrespective of title, the plaintiff had, at any rate, “permissive possession” and the defendants 15 to 19 and 28 were not in possession and the latter could not interfere with plaintiff’s possession.
6. The High Court, while dealing with this appeal preferred by defendants 15 to 19, observed that the trial Court had mainly relied upon a compromise decree dated 14.8.1992 between the owners (defendants 1 to 14) and defendants 20 to 25 in an earlier suit, bearing Suit No. 1384/88 filed by defenda
