1987 Supreme(Bom) 231

IN THE HIGH COURT OF BOMBAY
(Aurangabad Bench)
B.G. Deo V.P. Salve, JJ.
Bhagwanrao s/o Jijaba Auti .... Petitioner.
Versus
Ganpatrao s/o Mugaji Raut another .... Respondents.
Civil Revision Application No. 138 of 1983 with Civil Revision Application No. 24 of 1987, decided on 7-8-1987.
Advocates appeared :
D.B. Yewtekar, for petitioner in C.R.A. 138 and for respondent in C.R.A. 24.
S.C. Bora, for respondent No. 2 in C.R.A. 138 and for petitioner No. 2 in C.R.A. 24.

Headnote:Section 37-Code of Civil Procedure, 1908, while Order 39 Rule l-Injunction-Held that temporary injunction can be granted without referring the question of tenancy to the Tenancy Court, a relief of permanent injunction on merit cannot be granted in a suit simpliciter for permanent injunction unless an issue is raised referred and decided by Tenancy Court.

       A temporary injunction can be granted at any stage of the suit. It is regulated by the Code of Civil Procedure and it continues only up to a specified time. Unlike temporary injunction, a perpetual intimation is granted upon merits of suit, after hearing both the parties. A decree for perpetual injunction, as the Nomenclature shows, perpetually restrains the defendant from assertion of a right or from commission of an act. The difference between the two is real and substantial one is a temporary measure, the other is a perpetual restraint by a decree. A relief of perpetual injunction on merits can not be granted, unless relative rights are considered. What is required under Order 39 of the Code of Civil procedure in only a prima facie case, which means physical possession at the date of the suit which, if found proved, would Necessarily lead to the conclusion that the balance of inconvenience lies in favour of the plaintiff. The question of tenancy has neither to be dealt with nor arises while deciding the question of temporary injunction. Its proper place is the trial on merit. It is opined that while temporary injunction can be granted without referring the question of tenancy to the Tenancy Court, a relief of permanent injunction on merit cannot be granted in a suit simpliciter for permanent injunction, unless an issue is raised, referred and decided by the Tenancy Court in accordance with the provisions of the Tenancy Act.

       Sections 37- Code of civil Procedure, 1908, Order 39 Rule l-Injunction-Perpetual Injunction can be granted where right exists, or where right is created or where right Is cognizable by law-To grant relief only on basis of possessory title would cause injustice, may lead multiplicity of proceedings and In some cases deprive the rightful owner of enjoyment of the property.

       Section 37 of the specific Relief Act, provides that temporary injunction are such as are to continue until a specified time, or until the further order of the Court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, while a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or the commission of an act, which would be contrary to the rights of the plaintiff. Section 37 (2) is the key to the entire controversy. Even in a suit for a permanent injunction simpliciter, where rival contentions as regards possession are made, it has to be considered on merits as to who has better right for possession. Obviously, when a plaintiff claims to be a tenant and is in possession, and it is established that he is in possession on the date of the suit, perpetual injunction can be granted in his favour, only if the defendant has no better right than him (plaintiff). If the defendant is the owner of the property, the plaintiff as a tenant in the present state of tenancy legislation has certainly a better right than the owner for possession, provided he establishes tenancy rights. It is only in such a case that perpetual injunction can be issued in his favour. For deciding the issue of perpetual injunction, a question as regard the rights of either the plaintiff or the defendant as a tenant is necessarily involved and has to be decided first, and when such a question is to be dealt with only by the authority under the tenancy Act, Civil Courts jurisdiction to consider and decide such a question is barred and reference becomes absolutely necessary.

       The contention, that once possession is established, the plaintiff would be entitled to a permanent injunction ipso facto, cannot be accepted. The relief of perpetual injunction is discretionary. The law of perpetual injunction, although codified, only expresses in general terms the rules acted upon by Courts of equity, because they are in accordance with justice, equity and goon conscience. Sections 38, 39 and 42 of the Specific Relief Act mention the circumstances under which perpetual injunction can or cannot be granted. But these sections do not exhaust all the possibilities.

       Where there is a duty enforceable by law, whether express or implied, whether arising out of a contract or otherwise, the relief of injunction can be granted, unless considerations of expediency or convenience determine the discretion of the Court otherwise. Perpetual injunction can be granted where right exists, or where right is created, or where right is cognizable by law. It can be granted to prevent the infringement of that right. When a tenant comes to the Court contending, inter alia, that he is a tenant-in-possession and that there is a real threat to his possession from the defendant, who may either be a trespasser or a land-owner, an injunction to protect his possession can be granted, provided the tenant establishes the alleged right of tenancy, if it is disputed. He has to prove that he is not only in possession but that his possession is referable to his tenancy right. A corresponding obligation is cost on the defendants, if he is an original owner, not to disturb the right of the plaintiff in respect of possession. A decree can be passed only when the tenancy right of the plaintiff is established in such a situation. To grant relief only on the basis of possessory title would cause injustice, may lead to multiplicity of proceedings and in some cases deprive the rightful owner of enjoyment of the property.