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HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA, J.
Smt. Rajeshree Pravin Sonawane & Others
Versus
Arvind Kumar Fatechand Manghiramalani
Appeal From Order No.850 of 2013 with Civil Application No.1059 of 2013
Decided on: 10-12-2013
Specific Relief Act - Restoration of Possession - Section 6 of Specific Relief Act, 1963 - [Section 6 of Specific Relief Act] - The court discussed the relevance of Section 6 of the Specific Relief Act and its applicability in the case. It emphasized that the remedy under the law to challenge the order passed under Order 39 Rule 1 and 2 of CPC is by invoking Order 43 Rule 1 of CPC. The court also highlighted that the impugned order, passed under Order 39 Rule 1 and 2 of CPC, cannot be equated with the final decision contemplated in such summary suit. It further emphasized that the delay in passing the mandatory order was unsustainable and that the court may pass an appropriate order after hearing the main suit itself as the matter was already ripe for trial.
Fact of the Case:
The Respondent-Original Plaintiff filed a suit under Section 6 of Specific Relief Act, 1963 for restoration of possession and for damages. The Plaintiff claimed to have been dispossessed of immovable property without consent and sought recovery of possession.
Finding of the Court:
The court found that the impugned order, passed under Order 39 Rule 1 and 2 of CPC, was unsustainable at that stage of the proceedings and quashed and set it aside. The court expedited the suit to be disposed of within three months and directed the parties to maintain the status quo with regard to the possession of the property.
Issues: The issues revolved around the restoration of possession under Section 6 of the Specific Relief Act, the maintainability of the appeal, and the delay in passing the mandatory order.
Ratio Decidendi: The court emphasized the relevance of Section 6 of the Specific Relief Act and the applicability of the remedy under the law to challenge the order passed under Order 39 Rule 1 and 2 of CPC. It also highlighted the unsustainable delay in passing the mandatory order and the need for an appropriate order after hearing the main suit.
Final Decision: The Appeal from Order was allowed, the impugned order was quashed and set aside, the suit was expedited and to be disposed of within three months, and the parties were directed to maintain the status quo with regard to the possession of the property.
1 The Appellants-Original Defendants have challenged order dated 28 March 2013 passed by the learned Civil Judge, Senior Division, Thane. The operative part of order is as under:
“1. Application is allowed.
2. Plaintiff is hereby appointed as a receiver in respect of suit property.
3. Defendant No.1 is directed to hand over peaceful and vacant possession of the suit flat to him within one month.
4. Appointed Court receiver is hereby directed to take possession of the suit property and maintain it property and preserve till the disposal of the suit. He is further directed not to create any third party interests in respect of suit property till disposal of the suit.
5. Plaintiff is hereby directed to act as agent of the Court receiver and preserve the property.
6. Cost in cause.”
2. The Respondent-Original Plaintiff has filed a suit under Section 6 of Specific Relief Act, 1963 for restoration of possession and for the damages on 2.8.2010. The Plaintiff-Respondent's case is that on 22.2.2010, someone broke open the lock and entered the flat and took away the Plaintiff's belongings and therefore the suit.
3. The Appellants appeared and filed a written statement-cum-counter claim. The Appellants contended that they are residing in the premises since 20.11.2005, hence the question of dispossession of the Plaintiff on 22.2.2010 did not arise. They also expressed their readiness and willingness to perform their part of the contract on the basis of Agreement dated 30.7.2005. There are other various issues need to be considered not only of possession.
4. The Respondent-Plaintiff filed an Application under Order 39 Rule 1 and 2 of Code of Civil Procedure (CPC) for an injunction and interim relief in July 2010. The same was resisted by a reply. The learned Judge, however, by impugned order dated 28 March 2013 granted the reliefs so prayed by practically after more than two and half years of filing of Application and though the suit is ready and ripen for final hearing/trial.
5. The learned Counsel appearing for the Respondent-Plaintiff raised an objection about the maintainability of this Appeal from Order itself. He relied upon some judgments and has filed a written submission also.
1) Kanai Lal Ghose Vs. Jatindra Nath Chandra'(AIR 1918 Calcutta 925 (DB))
2) Meghji Jetha Shah Vs. Kalyanji Nanji Shah (AIR 1987 Bombay 273)
3) Nazimuddin M. Sayed Vs. Sourabha Cooperative Housing Society Ltd (N/M 2520-1994 in Suit 4139/1994 dt.10.10.1994)
4) Hawabai Vs. Abdul Sattar Suleman Haji Ahmed Oomer & Anr.(1995 AI HC 3062)
5) Shammi R. Chanana Vs. Kishore T. Idnani & Ors (NM.../1997 in Suit 2809/1997 dt.14.8.1997.)
6) Chandra Kishore Jha Vs. Mahavir Prasad & Ors (1999) 8 SCC 266
7) Sanjay Kumar Pandey & Ors. Vs. Gulbahar Sheikh & Ors (AIR 2004 SC 3354)
8) Anwar Faramosh Khan Vs. Mahendrakumar Jugalkishore Gupta (2004 (3) Mh. L.J.)
9) Chetan Bhanuprasad Desai Vs. Rasiklal R. Zaveri (2004 (2) ALL MR 582)
10) Mr. Gaghunath S. Singate Vs. Jayant Gajanan Pathak & Ors. (2011 (6) ALL MR 756)
The judgments cited and relied upon by the other side are as under:
1) Super Candles & Anr Vs. Mahabir Candle Works & Anr (AIR 1997 Gau 57)
2) Vinita M. Khanolkar Vs. Pragna M. Pai & Ors.(1998) 1 SCC 500)
3) Jain Spinners Ltd. Vs. Collector of Central Excise (1998) 1 SCC 502)
4) Metro Marins & Anr. Vs. Bonus Watch Co(P) Ltd. & Ors.(2004) 7 SCC 478)
5) Mehul Mahendra Thakkar Vs. Meena Mehul Thakkar (2009) 14 SCC 48)
6. Admittedly, the application under Order 39 Rule 1 and 2 of CPC once filed and decided, the remedy under the law to challenge the same is by invoking Order 43 Rule 1 of CPC. The submission that, in view of Section 6 of the Specific Relief Act the Appeal is not maintainable, is unacceptable for simple reason that the suit is not yet finally decided nor there is decree and/or final order is passed.
7. Section 6 of the Specific Relief Act is relevant and thus reproduced it as under:
“6. Suit by person dispossessed of immovable property( 1) If any person is dispossessed without hi
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