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2007 Supreme(Bom) 938
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(S. B. Deshmukh, J.)
SANJAY s/o SHRIKISHANJl SOMANI and another - Petitioners.
versus.
VISHNUP ANT s/o SHAN KARRAO SHAHANE - Respondent.
W.P. No 2053 of 2007
Decided on 12-7-2007
Advocate appeared
For petitioners: R. F. Totala
Headnote:Civil Procedure Code, 1908 - Order XLIII, Rule 1(r), Order XXXIX, Rules 1 and 2-Specific Relief Act, 1963 Sections 9 and 10-Application for interim injunction-Rejected by lower Court-A suit for specific performance of contract to sale land-It was in possession of plaintiff-Appeal against-Held, petition is allowed.-Rule 1 opens with wording "where in any suit it is proved by affidavit or otherwise..............", Court may grant or refuse temporary injunction in favour of the plaintiff. The scope of consideration of prayer clause for injunction is, therefore, being governed by proof of facts by affidavit or otherwise. It is not obligatory on the part of the party, at this stage, to prove the documents in accordance with rules of Indian Evidence Act. The party to the suit may file various documents, for the consideration of prayer of temporary injunction under Order XXXIX, Rules 1 and 2 of the Code of 1908. The Court, at the first instance, is required to consider such prayer in view of the provision laid down under Order XXXIX, Rules 1 and 2 of the Code of 1908. If fact alleged by the plaintiff is supported by an affidavit or otherwise, meaning thereby some documents, Court has to record a prima facie opinion in respect of the existence of prima facie case, balance of convenience and irreparable loss to the party concerned. It is not the stage at which Court can exercise power of impounding the document. Apart from Order XXXIX, Rules 1 and 2 of the Code of 1908, a look to provision under Section 34 of the Bombay Stamp Act would show that instrument not duly stamped are inadmissible in evidence. Instruments/documents are to be admitted in evidence, at the time of hearing of the suit, as noted in the foregoing paragraphs. Section 34 of the Bombay Stamp Act obligates the Court that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence. Thus, prohibition put by Section 34 of the Bombay Stamp Act is in relation to receiving any document or admitting any document in evidence. This stage has to be in relation to the hearing of the suit itself and not an application for temporary injunction.
Bare reading of Section 35 makes it clear that it becomes applicable only after an instrument is admitted in evidence. The stage of consideration of the application for temporary injunction has to be considered distinctly to that of stage of hearing/recording of the evidence in the suit itself.
Order XLIII, Rule 1(r), Order XXXIX, Rules 1 and 2 - Specific Relief Act, 1963 Sections 9 and 10 - Application for interim injunction - Rejected by lower Court - A suit for specific performance of contract to sale land - It was in possession of plaintiff - Appeal against - Held, petition is allowed. - Rule 1 opens with wording "where in any suit it is proved by affidavit or otherwise..............", Court may
grant or refuse temporary injunction in favour of the plaintiff. The scope of consideration of prayer clause for injunction is, therefore, being governed by proof of facts by affidavit or otherwise. It is not obligatory on the part of the party, at this stage, to prove the documents in accordance with rules of Indian Evidence Act. The party to the suit may file various documents, f or the consideration of prayer of temporary injunction under Order XXXIX, Rules 1 and 2 of the Code of 1908. The Court, at the first instance, is required to consider such prayer in view of the provision laid down under Order XXXIX, Rules 1 and 2 of the Code of 1908. If fact alleged by the plaintiff is supported by an affidavit or otherwise, meaning thereby some documents, Court has to record a prima facie opinion in respect of the existence of prima facie case, balance of convenience and irreparable loss to the party concerned. It is not the stage at which Court can exercise power of impounding the document. Apart from Order XXXIX, Rules 1 and 2 of the Code of 1908, a look to provision under Section 34 of the Bombay Stamp Act would show that instrument not duly stamped are inadmissible in evidence. Instruments/documents are to be admitted in evidence, at the time of hearing of the suit, as noted in the foregoing paragraphs. Section 34 of the Bombay Stamp Act obligates the Court that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence. Thus, prohibition put by Section 34 of the Bombay Stamp Act is in relation to receiving any document or admitting any document in evidence. This stage has to be in relation to the hearing of the suit itself and not an application for temporary injunction.
Bare reading of Section 35 makes it clear that it becomes applicable only after an instrument is admitted in evidence. The stage of consideration of the application for temporary injunction has to be considered distinctly to that of stage of hearing/ recording of the evidence in the suit itself.
Civil Procedure Code, 1908 - Order XXXIX, Rules 1 and 2 - Order XIII, Rule 8 - Bombay Stamp Act, Sections 34 and 35 - Power of impounding document. - The exercise of power of impounding document at stage of consideration of application for temporary injunction is without jurisdiction.
2. A question, to be decided in this writ petition, is the power and jurisdiction of learned Principal District Judge, while considering Miscellaneous Civil Appeal under Order XLIII, Rule 1(r) of the Code of 1908.
3. The Petitioners are plaintiffs and the respondent is defendant in Special Civil Suit No. 23 of 2005. Parties hereinafter are referred to their status as plaintiffs and defendant in Special Civil Suit No. 23 of 2005. The plaintiffs seek specific performance of contract, decree of mandatory injunction and perpetual injunction. The subject-matter of the suit is agricultural land bearing Gat No. 109, admeasuring 3 Hectares 45 Ares, situated at village Sailu, district Parbhani. It is pleaded by the plaintiffs that they are in actual and physical possession of the suit property since 11th April, 1996 pursuant to the contract of sale dated 11th April, 1996 and by way of part performance. Plaintiffs had filed an application below Exhibit-5 seeking temporary injunction restraining the defendant, his '(gent, servant or anybody claiming on his behalf, from obstruction or interfering in actual physical possession of the plaintiffs, in relation to suit property. This application Exhibit-5 seems to have been filed on 29th June, 2005. The trial Court, after hearing the parties, rejected the application Exhibit-5 by order passed on 29th July, 2006. This order, below Exhibit-5, rejecting the prayer for temporary injunction, in Special Civil Suit No. 23 of 2005, is challenged by the plaintiffs, by filing Misc. Civil Appeal No. 39 of 2006 in the Court of learned District Judge at Parbhani. The defendant entered appearance in the said miscellaneous appeal. Learned Principal District Judge, Parbhani, during the pendency of Misc. Civil Appeal No. 39 of 2006, passed an order below Exhibit-I on 16th March, 2007, calling the record and proceeding from the lower Court for impounding of the document in question i.e. the contract of sale (Isar Pawati) dated II th April, 1996. The learned District Judge, thereafter, after hearing the parties, passed an order below Exhibit-Ion 20th March, 2007 holding that the plaintiffs' claim for perpetual injunction is based off contract of sale (Isar Pawati) and, therefore, the said document needs to be impounded. Unless deficit stamp duty and penalty is paid, learned Judge postponed delivery of judgment since arguments were already heard. The learned District Judge, Parbhani, on the same date i.e. 20th March, 2007, also passed an order impounding the document and directing the plaintiffs to deposit stamp duty of Rs. 7,190/-, penalty amount of Rs. 14,380/-, totaling to amount of Rs. 21,570/-. These three orders, passed by the learned Principal District Judge, Parbhani are subject-matter of the present writ petition.
4. Mr. R. F. Totala, learned counsel for the Petitioner submitted that the orders impugned in this writ petition are per-se illegal. None appeared on behalf of the respondent/defendant, despite service.
5. Special Civil Suit No. 23 of 2005 is filed by the plaintiff on 29th June, 2005. It is not in dispute that the suit has been followed by an application for temporary injunction below Exhibit-5 which came to be rejected and the said order is carried in Misc. Civil Appeal under Order 43 of the Code of Civil Procedure before the learned Principal District Judge, Parbhani. The expression "plaint" is not defined under the provisions of Code of Civil Procedure. However, Order VII of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code of 1908) refers to particulars to be contained in plaint. Order 7, Rule 9 of the Code of 1908 refers to the procedure on admitting the plaint. Production of documents on which plaintiff sues or relies, has been provided under Order VII, Rule 14 of the Code of 1908. It
