Bishakhabai vs Sitabai - 1986 Supreme(MP) 730

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : Chaphekar
For the Respondent: S. R. Verma

Headnote:(1) Specific Relief Act, 1963 – S. 6 – scope and object of provision under – proceedings are not of final nature.
       (2) Specific Relief Act, 1963 – S. 6 – Civil Procedure Code, 1908 – S. 11 – decision of civil suit under section 6 – does not operate as res judicata.
       (3) Evidence Act, 1872 – S. 41, 42, 13, 40 and 43 – Specific Relief Act, 1963 – S. 6 – judgment in case under S. 6 – relevancy of.
       (4) Civil Procedure Code, 1908 – O. 39, R. 1, 2 and S. 151 – injunction against execution of decree – may be granted if prima facie case is made out.
        Short Note
       1. This miscellaneous appeal has been preferred by the plaintiff/appellants, as they are aggrieved by the order dated 20 – 2 – 1985, passed by Xth Additional Distt. Judge, Indore in Civil Suit No. 58 – A of 1980, partly allowing their application for ad – interim injunction restraining the respondent from transferring the suit house, by sale or any other manner till disposal of the suit. As the Trial Court has not restrained the defendant/respondent, from executing the decree passed in C.O.S. No. 156 – A of 1973, the plaintiffs have preferred this appeal.
       2. Held: The Trial Court has noted the admitted position that the plaintiffs were in possession of upper storey of suit house and it was for this reason, that the defendant had filed a summary suit under Section 6 of the Specific Relief Act, and obtained a decree against the plaintiff/appellants. The Trial Court placing reliance on Ganpat v. Shivram, 1962 JLJ S. N. 390, Jalamsingh v. Leelabai, 1967 MPLJ S.N. 111 and Hajarilal v. Nemichand, 1979 MPWN (II) 139, found that the defendant could not be restrained from executing the decree passed in her favour. Before proceeding to deal with the aforesaid decisions, it would be better to refer to the scope and object of Section 6 of tile Specific Relief Act.
       3. While, the New Act of 1963, was being enacted the Law Commission had recommended commission of Section 9 of the Specific Relief Act, 1877, but considering the fact that it had not given any rise to any difficulty in working so far, it was restored and re – introduced as Section 6, in the New Act (1). Section 15 of the Act XIV of 1859, corresponding of Section 9 of the Act of 1877, (Section 6 of 1963 Act) was not meant to abridge any right, possessed by the plaintiff but to give hi m the right, if dispossessed otherwise than by course of law, to have his possession restored, the plain object, being discourage calculated to lead to serious breach of peace and to provide against the person who had taken the law into his own hands, deriving any benefit from that proceS.
       4. True scope of Section 6 of 1963, Act is to see whether 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, Court dealing with a suit under Section 6 has no other discretion but to restore possession to plaintiff.
       5. The plaintiff/appellants are no stranger to the property, they have a title to the suit house and were admittedly in possession of part thereof prior to institution of the suit under Section 6 of the Specific Relief Act. A Division Bench of Madras High Court in 1922 held that. "Incase defendant shows equal right with plaintiff, he will he entitled to joint possession but on former's showing better title, latter would have no right to possession (1922) 15 MAD L.W. 430"'
       6. Judgment in former suit under Section 6 between the same parties will not act as res judicata, in a substantial title suit between them. It is settled law that a person against whom an order under Section 6 is made may sue for a declaration of title and for restraining the opposite party from interfering with his possession. The judgment in a case under Section 6, does not come under Section 41, nor under Section 42, Evidence Act and it is relevant only under Section 13 and Sections 40 and 43. The use to which the decree may be made in subsequent suit is only to show that a right to possession was asserted and it was denied and a suit was instituted and it failed. The legislature did not intend to give the proceedings under Section 6, the character of finality which is essential to invest the decision with such character which will make it operative as resjudicata.
       7. The Court is competent to grant an injunction to restrain the decree – holder from executing his decree either under Order 39, Rule 2, if the word 'injury' is widely construed or in any case under the inherent powers irrespective of whether plaintiff was a party to the decree or not. All that bas to be considered is the propriety of granting the temporary injunction in the particular case.
       8. The trial Court's order permitting the respondent to execute the decree, deserves to be set aside and is hereby set aside. The plaintiff – appellants have succeeded in making out a prima facie case in their favour for restraining the respondent from executing the decree for possession obtained by her against the appellant in Civil Suit No. 156 – A/73. (1922) 15 Mad. Law. 430, 1967 MPLJ SN 111, 1962 JLJ SN 390, 1979 MPWN (11) 139 distinguished, 1975 JLJ 140 and AIR 1962 SC 527 relied on. Appeal allowed.