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2013 Supreme(Bom) 2352
In the High Court of Bombay at Nagpur
R.K. DESHPANDE, J.
Manoj & Another
Versus
Chandrakishore & Others
Writ Petition No.1077 of 2012
Decided on : 28-11-2013
For the Petitioners:M.G. Bhangde, Senior Advocate, assisted by R.M. Bhangde, Advocate.
For the Respondents:R1 & R2, V.D. Muley, Advocate.
Headnote:Specific Relief Act, 1963 - Section 6(1) and 6(4) - Order of temporary injunction. - An order of temporary injunction under Section 6(4) against defendant can be claimed by plaintiff claiming to be in possession of suit property on basis of a decree passed under Section 6(1) of Act. - The suit under sub-section (1) of Section 6 of the SR Act of 1963 is of a summary nature claiming the restoration of possession based upon previous possession and subsequent dispossession without consent and otherwise than in due course of law and ignoring the question of title.
A decree passed in a summary manner under sub-section (1) of Section 6 of the SR Act of 1963 can be defeated by establishing the legal right of possession based upon title over the property by filing a suit under sub-section (4) of Section 6 of the said Act, and the plaintiff, upon establishing a prima facie case that he is the owner and in possession of the property, shall be entitled to protect his possession in a suit filed under sub-section (4) of Section 6 by claiming an injunction restraining the defendant from executing such a decree passed under sub-section (1) of Section 6 of the said Act.
The sole object and purpose of the suit under sub-section (4) of Section 6 would be to obtain a reversal of the judgment and decree passed in a summary suit under sub-section (1) of Section 6 of the said Act, and the provision of Section 41(b) of the said Act would not be applicable even if a Court from which an injunction is sought is a Court of co-ordinate jurisdiction to one which has passed a decree under sub-section (1) of Section 6 of the said Act.
The Court empowered to grant a decree for possession of the suit property and a permanent injunction restraining the defendant from interfering with his possession over the suit property on the basis of title, is competent to grant an order of temporary injunction restraining the defendant from interfering with the possession of the plaintiff over the suit property upon establishing prima facie case, balance of convenience, and irreparable loss.
If on the date of filing of the suit based upon title, the plaintiff claims to be in possession of the suit, and an order of permanent injunction restraining the defendant from disturbing his possession is claimed, then there would be no question of claiming a decree for possession of the suit, but an order of temporary injunction can be claimed in such a suit to restrain the defendant from interfering with his possession on the basis of a decree passed under sub-section (1) of Section 6 of the SR Act of 1963.
1. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.
2. The petitioners are the original plaintiffs, who have filed a suit for declaration that they are the owners of Shop No.169/1, admeasuring 220 sq. ft. in Survey No.18/1, Nazul Sheet No.7D of Tumsar, District Bhandara, and the defendants have no right to the said property. A decree for permanent injunction has also been claimed, restraining the defendants from disturbing the possession of the plaintiffs over the suit property. The plaintiffs have also filed an application Exhibit 5 for grant of temporary injunction restraining the defendants from disturbing their possession over the suit property. A further order of temporary injunction is also claimed restraining the defendants from executing the decree passed in Regular Civil Suit No.2 of 1996.
3. The respondents are the original defendant Nos.1 to 5. One Smt. Nandrani Devi, widow of Shalikram Chaurasia, along with the respondent No.1 Chandrakishore, the respondent No.3 Bhushankumar, the sons of said Shalikram and the respondent No.4 Ku. Vinita, a daughter of said Shalikram, were the owners of the suit property. The respondent No.1 Chandrakishore along with his daughter Smt. Kirti, the respondent No.2, filed Regular Civil Suit No.2 of 1996 under Section 6 of the Specific Relief Act, 1963 for restoration of possession of the suit property in which Smt. Nandrani Devi, the respondent No.3 Bhushankumar, the respondent No.4 Ku. Vinita were joined as the defendants. During the pendency of the said suit, the respondent No.3 Bhushankumar sold the suit property to the petitioners/plaintiffs by a registered sale-deed dated 29.5.1998. Hence, the petitioners/plaintiffs were also joined in Regular Civil Suit No.2 of 1996 as the party-defendant Nos.3A and 4 respectively.
4. Regular Civil Suit No.2 of 1996 was decreed for restoration of possession by the Trial Court on 20.3.2002. Civil Revision Application Stamp No.28336 of 2004 filed by the present petitioners challenging the decree passed by the Trial Court regarding restoration of possession, was dismissed by this Court by the judgment dated 22.11.2011. In the last para of the said judgment, it was observed by this Court that needless to say that if any of the parties file a suit on the basis of the title, none of the observations made by this Court or by the Trial Court shall come in his/her way.
5. Immediately thereafter on 3.12.2011, the present petitioners filed Regular Civil Suit No.43 of 2011 for declaration and permanent injunction, as pointed out in para 1 of this judgment. The application Exhibit 5 claiming an order of temporary injunction, as stated in para 2 above, filed in the said suit was dismissed by the Trial Court by its order dated 7.1.2012. The Appellate Court has dismissed Misc. Civil Appeal No.2 of 2012 filed by the present petitioners, by its judgment and order on 9.2.2012. Hence, both these judgments and orders are subject-matter of challenge in this petition. The petitioners are claiming an order of temporary injunction against the respondents, as is stated in para 1 above.
6. While rejecting the application for temporary injunction, the Trial Court recorded the finding that the petitioners/plaintiffs are in possession of the suit property on the basis of a registered sale-deed dated 2951998. Referring to the decision of this Court in the case of Mari Doddatamma Karkundi v. Santaya Ramkrishna Pai, reported in (1922) 24 Bom LR 768, and the decision of Gujarat High Court in the case of Mohammad Husain Suleman Shaikh and another v. Batukbhai Waljibhai and others, reported in AIR 1984 Gujarat 66, the Trial Court held that the judgment-debtor/ owner of the property is not debarred from institution of a suit and claiming an injunction restraining the decree-holder from execution of a decree for possession passed under Section 6 of the Specific Relief Act. However, a claim for temporary injunction w
