1995 Supreme(Bom) 132

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Dr. E.S. Da Silva, J.
Smt. Khatijabi Aboobaker and others.... Appellants.
Versus
Karma Constructions and others.... Respondents.
Appeal from Order No. 5 of 1995, decided on 24-2-1995.
Advocates appeared :
J. Reis, M. Pereira and Miss T. Potekar, for the appellants.
J.E. Coelho Pereira, S.A. with J. Godinho, for the respondents.

Headnote:Order XXXIX. Rules 1 and 2-Prima Facie case of settled possession - Application for temporary injunction by the appellants.

       Appellants are entitled to an appropriate writ in order to secure whatever claim which might be eventually adjudicated in their favour in case they succeed in the suit. Looking at the things on this angle in Courts view it is not at all required that the respondents should be restrained from carrying on the construction which is being erected by them and it is suffice that the appellants should be placed in a position to eventually secure actual possession of an area to which in law they might be found entitled in competent proceedings in respect of the leased premises. Thus, and although the respondents are disputing the area in respect whereof they committed to give possession to the appellant Nos. 1to 5, as heirs and legal representatives of the deceased original lessee fraud, as per the terms of the agreement dated 17th July, 1971 the fact remains that once the appellants have purportedly repudiated the said agreement and are claiming that the area of the ground floor originally occupied by them was of about 210 sq. mts. an equivalent area should also be put under restraint so as to prevent the respondents from alienating or creating third party interests on such area till the final disposal of the suit.

       Order XXXIX. Rules 1 and 2-Specific Relief Act, 1963, Section 6 Scope of.

       Section 6 of the Specific Relief Act provides a summary and quick remedy for a person who is in possession and has been illegally dispossessed therefrom without his consent. It is remedy is meant to restore the status quo ante and thus all questions of title whether of the plaintiff or of the defendant are out of place in any suit filed under this provision and on that account nothing of that sort can be allowed to be raised or considered in such a suit. In a suit under Section 6 of the Act no questions of rights arise at all and the only aspect which has to be dealt with is whether the plaintiff was in possession prior to the filing of the suit and has been dispossessed otherwise than in accordance with law. Thus, the real scope of Section 6 of the Specific Relief Act is to find out whether the plaintiff has been dispossessed without his consent or in a manner otherwise than in due course of law and if these two ingredients are established the Court dealing with a suit under this section has no other discretion but to restore possession of the land from which the plaintiff has been dispossessed without due process of law.

       Apart from some irrelevant and unwarranted observations purported to be advanced as legal propositions, otherwise totally misplaced in the narrow context of the controversy subjudice, the most disturbing feature which in Courts view basically vitiates the entire exercise seems to be the total misconception in law under which the learned Judge has based his reasoning to dismiss the appellants applications for temporary injunction. To be noted that at no time the learned Judge has even considered the question of maintainability or the very suit filed by the plaintiffs/appellants under Section 6 of the Specific Relief Act and his only concern while negativating the prayers made by the appellants for interim relief appears to be the fact that the appellants were not in actual possession of the land on the date of the institution of the suit. In this regard it is needless to reiterate that such approach of the learned Judge is to be deemed as totally wrong and impermissible. Thus, the observations of the learned Judge that while deciding the application for temporary injunction, Court has to verify the affidavits of the parties along with the documentary evidence. If any, filed by them to come to a prima face conclusion as to who is in possession of the suit land on the date of institution of the suit and that "the deponents of the plaintiffs did not make a mention as to whether the plaintiffs are in possession of the suit land on the date of the institution of the suit" is, the least which can be said about it, entirely bad and uncalled for.

       Under the provisions of Section 6 of the Specific Relief Act the question of title is irrelevant and the only aspect which is required to be looked into is one regarding possession of the plaintiff prior to the filing of the suit and form which he is alleged to have been dispossessed without due recourse under the law provided such possession is a settled-possession being also an actual and physical possession over a sufficiently long period to the acknowledgment, either implied or express, of the owner and without any attempt to conceal such possession so as to project an implied element of animus possidendi. This being the position it is obvious that on this count alone the impugned judgment cannot be sustained and is bound to be unsettled.

       Articles 14, 16 and 226-Navy Order (special) 2/86, Clauses 8(a), 9 and 10-Scope of.

       It is apparent, in the present case that officers are considered for promotion to the post of Vice-Admiral solely on the basis of seniority because the select list of the batches itself reflect the seniority. First, as per Clause 8(b) officers are divided into half-yearly batches depending on their seniority. Thereafter grading is given as per Clause 10 and the seniority in the select list is determined on the basis of grading as per procedure prescribed under Clause 19. Sub-clause (b) of Clause 8, specifically provides that for promotion to the rank of Rear Admiral and below, officers are divided into half-yearly batches depending on their seniority, i.e. officers of 1st January to 30th December, seniority forming one batch and officers of 1st July to 31 December, seniority forming the other. Further, considering clause 8 along with Clause 9 of the Navy Order, it is apparent that the promotion Board is required to prepare a select list of officers on the basis of comparative merit. They are also required to give gradation as provided in clause 10. Therefore, an officer who is senior, in the select list on the basis of gradation would be required to be appointed first on the higher post and, therefore, he would automatically be senior to the officer who is appointed subsequently.

       For determining the inter se seniority of the officers in the select list, which is to be based on the grading given as per Clause 10, exhaustive procedure is prescribed in Clause 19. Clause 22 provides that substantive promotion in the Flag rank is to be made from the date of established vacancy becoming available or the date of picking up the higher appointment, whichever is later. Considering the aforesaid clauses, it cannot be said that the Promotion Board has unguided or untrammelled power of preparing the select list. There are sufficient guidelines laid down in the aforesaid clauses governing the preparation of the select list. Further, clause 9 specifically provides that an officer is required to be considered for promotion three times in each rank. This would mean that if an officer is not considered fit for being promoted in one year, he is required to be considered on the second and third occasion depending upon the vacancy arising on the higher post. Therefore, if an officer of the select list of, say, 1987, is not found to be fit for promotion in 1989, or 1990, then he is required to be again considered on in possession prior to the filing of the suit and has been dispossessed otherwise than in accordance with law. Thus, the real scope of Section 6 of the Specific Relief Act is to find out whether the plaintiff has been dispossessed without his consent or in a manner otherwise than in due course of law and if these two ingredients are established the Court dealing with a suit under this section has no other discretion but to restore possession of the land from which the plaintiff has been dispossessed without due process of law.

       Apart from some irrelevant and unwarranted observations purported to be advanced as legal propositions, otherwise totally misplaced in the narrow context of the controversy subjudice, the most disturbing feature which in Courts view basically vitiates the entire exercise seems to be the total misconception in law under which the learned Judge has based his reasoning to dismiss the appellants applications for temporary injunction. To be noted that at no time the learned Judge has even considered the question of maintainability or the very suit filed by the plaintiffs/appellants under Section 6 of the Specific Relief Act and his only concern while negativating the prayers made by the appellants for interim relief appears to be the fact that the appellants were not in actual possession of the land on the date of the institution of the suit. In this regard it is needless to reiterate that such approach of the learned Judge is to be deemed as totally wrong and impermissible. Thus, the observations of the learned Judge that while deciding the application for temporary injunction, Court has to verify the affidavits of the parties along with the documentary evidence. If any, filed by them to come to a prima face conclusion as to who is in possession of the suit land on the date of institution of the suit and that "the deponents of the plaintiffs did not make a mention as to whether the plaintiffs are in possession of the suit land on the date of the institution of the suit" is, the least which can be said about it, entirely bad and uncalled for.

       Under the provisions of Section 6 of the Specific Relief Act the question of title is irrelevant and the only aspect which is required to be looked into is one regarding possession of the plaintiff prior to the filing of the suit and form which he is alleged to have been dispossessed without due recourse under the law provided such possession is a settled-possession being also an actual and physical possession over a sufficiently long period to the acknowledgment, either implied or express, of the owner and without any attempt to conceal such possession so as to project an implied element of animus possidendi. This being the position it is obvious that on this count alone the impugned judgment cannot be sustained and is bound to be unsettled. Articles 14, 16 and 226-Navy Order (special) 2/86, Clauses 8(a), 9 and 10-Scope of.

       It is apparent, in the present case that officers are considered for promotion to the post of Vice-Admiral solely on the basis of seniority because the select list of the batches itself reflect the seniority. First, as per Clause 8(b) officers are divided into half-yearly batches depending on their seniority. Thereafter grading is given as per Clause 10 and the seniority in the select list is determined on the basis of grading as per procedure prescribed under Clause 19. Sub-clause (b) of Clause 8, specifically provides that for promotion to the rank of Rear Admiral and below, officers are divided into half-yearly batches depending on their seniority, i.e. officers of 1st January to 30th December, seniority forming one batch and officers of 1st July to 31 December, seniority forming the other. Further, considering clause 8 along with Clause 9 of the Navy Order, it is apparent that the promotion Board is required to prepare a select list of officers on the basis of comparative merit. They are also required to give gradation as provided in clause 10. Therefore, an officer who is senior, in the select list on the basis of gradation would be required to be appointed first on the higher post and, therefore, he would automatically be senior to the officer who is appointed subsequently.

       For determining the inter se seniority of the officers in the select list, which is to be based on the grading given as per Clause 10, exhaustive procedure is prescribed in Clause 19. Clause 22 provides that substantive promotion in the Flag rank is to be made from the date of established vacancy becoming available or the date of picking up the higher appointment, whichever is later. Considering the aforesaid clauses, it cannot be said that the Promotion Board has unguided or untrammelled power of preparing the select list. There are sufficient guidelines laid down in the aforesaid clauses governing the preparation of the select list. Further, clause 9 specifically provides that an officer is required to be considered for promotion three times in each rank. This would mean that if an officer is not considered fit for being promoted in one year, he is required to be considered on the second and third occasion depending upon the vacancy arising on the higher post. Therefore, if an officer of the select list of, say, 1987, is not found to be fit for promotion in 1989, or 1990, then he is required to be again considered on in possession prior to the filing of the suit and has been dispossessed otherwise than in accordance with law. Thus, the real scope of Section 6 of the Specific Relief Act is to find out whether the plaintiff has been dispossessed without his consent or in a manner otherwise than in due course of law and if these two ingredients are established the Court dealing with a suit under this section has no other discretion but to restore possession of the land from which the plaintiff has been dispossessed without due process of law.

       Apart from some irrelevant and unwarranted observations purported to be advanced as legal propositions, otherwise totally misplaced in the narrow context of the controversy subjudice, the most disturbing feature which in Courts view basically vitiates the entire exercise seems to be the total misconception in law under which the learned Judge has based his reasoning to dismiss the appellants applications for temporary injunction. To be noted that at no time the learned Judge has even considered the question of maintainability or the very suit filed by the plaintiffs/appellants under Section 6 of the Specific Relief Act and his only concern while negativating the prayers made by the appellants for interim relief appears to be the fact that the appellants were not in actual possession of the land on the date of the institution of the suit. In this regard it is needless to reiterate that such approach of the learned Judge is to be deemed as totally wrong and impermissible. Thus, the observations of the learned Judge that while deciding the application for temporary injunction, Court has to verify the affidavits of the parties along with the documentary evidence. If any, filed by them to come to a prima face conclusion as to who is in possession of the suit land on the date of institution of the suit and that "the deponents of the plaintiffs did not make a mention as to whether the plaintiffs are in possession of the suit land on the date of the institution of the suit" is, the least which can be said about it, entirely bad and uncalled for.

       Under the provisions of Section 6 of the Specific Relief Act the question of title is irrelevant and the only aspect which is required to be looked into is one regarding possession of the plaintiff prior to the filing of the suit and form which he is alleged to have been dispossessed without due recourse under the law provided such possession is a settled-possession being also an actual and physical possession over a sufficiently long period to the acknowledgment, either implied or express, of the owner and without any attempt to conceal such possession so as to project an implied element of animus possidendi. This being the position it is obvious that on this count alone the impugned judgment cannot be sustained and is bound to be unsettled.

       SPECIFIC RELIEF ACT, 1963

       Section 6-Civil Procedure Code, 1908, Section 151, Order XXXIX, Rules 1 and 2-Constilution of India, Articles 226 and 227-Courts-Inherent powers of-Scope of Section 6, S.R. Act, 1963 not so limited as to lake away Inherent powers of Court-It can grant interim orders.

       Section 6-Scope of.

       Real scope of Section 6 of the Specific Relief Act is to find out whether the plaintiff has been dispossessed without his consent or in a manner otherwise than in due course of law and if these two ingredients are established the Court dealing with a suit under this section has no other discretion but to restore possession of the land from which the plaintiff has been dispossessed without due process of law.