1. Eviction decree for sub-letting — Execution proceedings — Suit for declaration of occupancy and permanent injunction to restrain execution — Grant of temporary injunction in review. (Para 2 )
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1994 Supreme(SC) 1089
SUPREME COURT OF INDIA
J.S. VERMA AND K.S. PARIPOORNAN, JJ.
Bate Krishna Damani (dead) by his L.Rs., Appellant
Versus
Kailash Chand Srivastava and another, Respondents.
Civil appeal No.7191 of 1994 (arising out of S.L.P.(C) No.21238 of 1993)
Decided 8-11-1994.
Important Points
A temporary injunction cannot be granted to restrain the execution of a final eviction decree without a strong prima facie case. Granting such relief, especially after previous refusals and where the party previously denied tenancy, constitutes an abuse of the process of the court.
Subject
Civil Law - Property Disputes
Act Referred
Headnote
Civil Procedure Code ,1908 – Order,21 - Rule,108 - Claim by respondent - Temporary injunction - Application which as rejected- Respondent then filed an application for temporary injunction in suit filed by him which was rejected by Trial Court - Respondent filed an appeal against refusal of temporary injunction Division Bench of High Court dismissed appeal of Division Bench held that in suit respondent appeared as constituted attorney stating therein that he was a caretaker without assertion of any claim that he was a tenant in said premises- After dismissal of that appeal respondent filed a review application- This review application has been allowed Division Bench by impugned order and a temporary injunction has been granted resulting in stay of execution of decree for eviction- Hence this appeal by special leave –Held, Division Bench of High Court dismissed appeal filed by respondent against refusal temporary injunction- Indeed it extraordinary that thereafter temporary injunction was granted in a review petition on these admitted facts- Respondent participated suit contesting same on behalf their constituted attorney claiming to be a mere caretaker of and not a tenant directly from landlord- Moreover in execution proceedings wife respondent made an objection which too was rejected-In an application for temporary injunction made in suit of respondent thereafter there was no basis to grant equitable relief of temporary injunction in favour respondent Court have no doubt that this was sheer abuse of process court resulting in thwarting execution of a valid decree during its subsistence- In our opinion there was no ground for grant of temporary injunction in such a suit filed by respondent No-much less grant of same by an order made in review after a Division Bench of High Court had dismissed appeal of respondent against refusal of temporary injunction by Trial Court- Impugned order must therefore be set aside - Appeal allowed
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Advocates:
H.K.PURI, PRADIP ARORA, R.K.GUPTA, RAJASH P.BEHERE
H.K.PURI, PRADIP ARORA, R.K.GUPTA, RAJASH P.BEHERE
Table of Contents
2. Respondent sought temporary injunction to restrain execution of eviction decree based on a claim of entitlement to occupy the premises. (Para 2 )
3. Granting a temporary injunction to stay a final eviction decree without a strong prima facie case, especially after contradictory prior claims, constitutes an abuse of process. (Para 4 )
4. A temporary injunction restraining the execution of a final eviction decree requires a strong prima facie case and cannot be granted where it thwarts a valid decree. (Para 4 )
5. Appeal allowed — Order granting temporary injunction set aside — Costs awarded — Direction to execute the eviction decree forthwith. (Para 5 )
6. When can a temporary injunction be granted to restrain the execution of a final eviction decree?
A temporary injunction to restrain the execution of a final eviction decree can only be granted if a strong prima facie case is made out in favor of the party seeking the injunction. (Para 4 )
7. Does a party's prior contradictory claims in a related proceeding affect the grant of an equitable relief like a temporary injunction?
Yes. If a party previously appeared in an ejectment suit as a caretaker or attorney without asserting tenancy, they cannot later seek equitable relief like a temporary injunction based on a claim of entitlement to occupy. (Para 4 )
8. What is the court's view on granting a temporary injunction in a review petition after an appeal against the refusal of such injunction has been dismissed?
Granting a temporary injunction in a review petition after a Division Bench has already dismissed an appeal against the refusal of such injunction, based on the same admitted facts, is considered a sheer abuse of the process of court. (Para 4 )
JUDGMENT
VERMA, J :- Leave granted.
2. Bhagwan Das Damani predecessor-in-interest of the original petitioner Bate Krishna Damani, now dead and represented by his legal representatives, was the owner of the premises - Suit No. 5, 19-B, Bipin Behari Ganguli Street, Calcutta- and Mr. J. M. Solomon and his wife Ezy Solomon were his tenant in the said premises. A suit for eviction of the tenant was field, inter alia, on the ground of sub-letting of the premises to respondent No.1, Kailash Chand Srivastava. Respondent No.1 contested the suit (Ejectment Suit No. 102 of 1972) on behalf of the tenant as his constituted attorney, in the City Civil Court at Calcutta. A decree for ejectment was passed in favour of the landlord on 12-8-1984 by the Calcutta High Court in the appeal arising out of that suit; and the respondents were directed to furnish an undertaking to vacate the premises within the specified period. The decree was put in execution since the respondents neither gave the undertaking nor vacated the premises. Respondent No.1 instituted Title Suit No.547(sic) of 1985 in the City Civil Court at Calcutta for a declaration that he was entitled to occupy the said premises and a permanent injunction to restrain execution of the decree for ejectment. In the meantime, the appellant sought police aid in the execution proceeding for execution of the decree under O.21, R.97 of the Code of Civil Procedure. The wife of respondent No.1 Smt. Jamuna Srivastava filed an application under O.21, R.108, C.P.C., which as rejected. Respondent No.1 then filed an application for temporary injunction in the suit filed by him which was rejected by the Trial Court. Respondent No.1 filed an appeal against refusal of temporary injunction. On 14-6-1992, a Division Bench of the High Court dismissed the appeal of respondent No. 1 The Division Bench held that in the ejectment suit, respondent 1 had appeared as the constituted attorney of the Solomons stating therein that he was a caretaker without assertion of any claim that he was a tenant in the said premises. After dismissal of that appeal, respondent No.1 filed a review application. This review application has been allowed by the Division Bench by the impugned order dated 12-5-1993 and a temporary injunction has been granted resulting in stay of execution of the decree for eviction. Hence this appeal by special leave.
3. Having heard learned counsel for the parties, we are satisfied that this appeal must be allowed.
4. Narration of the undisputed facts stated earlier leaves no doubt that there is no ground for grant of temporary injunction to restrain execution of the decree for eviction at the instance of respondent No.1 Unless a strong prima facie case in favour of the plaintiff-respondent No.1 is made out, there is no occasion to grant the temporary injunction which has the result of restraining execution of a decree for eviction which has become final. The Trial Court refused the temporary injunction and a Division Bench of the High Court dismissed the appeal filed by respondent No.1 against refusal of the temporary injunction. Indeed, it is extraordinary that thereafter the temporary injunction was granted in a review petition on these admitted facts. Respondent No. 1 participated in the ejectment suit contesting the same on behalf of the Solomons as their constituted attorney claiming to be a mere caretaker of the Solomons and not a tenant directly from the landlord. Moreover, in the execution proceedings, the wife of respondent No.1 made an objection which too was rejected.In an application for temporary injunction made in the suit of respondent No.1 thereafter, there was no basis to grant the equitable relief of temporary injunction in favour of the respondent No.1. We have no doubt that this was sheer abuse of the process of court resulting in thwarting execution of a valid decree during its subsistence. In our opinion, there was no ground for grant of temporary injunction in such a suit filed by r
