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2007(6) Supreme 346
Supreme Court of india
(From Delhi High Court)
S.B. Sinha & Harjit Singh Bedi, JJ.
Shiv Kumar Sharma — Petitioner
versus
Santosh Kumari — Respondent
Appeal (civil) 4341 of 2007
[Arising out of SLP (Civil) No. 8275 of 2007]
Decided on : 18-09-2007
(b) Code of Civil Procedure, 1908 – Section 96 – Scope and ambit of jurisdiction of High Court u/s 96 of the Code and under Articles 226 and 227 of the Constitution of India are different – While under the Code, the court is bound to act within the four corners thereof – Of course the court may mould a relief in a civil suit but its jurisdiction in this behalf would be confined to Order VII, Rule 7 of the Code – On the other hand, in adjudicating a lis in exercise of its power of judicial review, the High Court exercises a wider jurisdiction. (Para 18)
2006 (10) SCALE 596; (2006) 1 SCC 479 – Relied upon.
1943 AC 32; (1948) 1 KB 339; 1946 (1) All ER 284 – Distinguished.
(c) Code of Civil Procedure, 1908 – Section 96 - The Courts in India exercise jurisdiction both in equity as well as law but exercise of equity jurisdiction is always subject to the provisions of law – Exercise of equity jurisdiction cannot violate the express provisions contained in law – Equity jurisdiction can be exercised only when no law operates in the field – A court of law cannot exercise its discretionary jurisdiction de’hors the statutory law – Its discretion must be exercised in terms of the existing statute. (Paras 21 and 22)
(2004) 8 SCC 569 – Relied upon.
(d) Code of Civil Procedure, 1908 – Order XLI, Rule 31 – High Court was bound to formulate points for its consideration in terms of Order XLI, Rule 31 – On the pleadings of the parties and in view of the submissions made, no such question arose for its consideration – Therefore, High Court was not correct in framing the additional issues of its own which did not arise for consideration in the suit or in the appeal. (Para 23)
(e) Code of Civil Procedure, 1908 – Order II, Rule 4 – In terms of Order II, Rule 4 of the Code, no leave is required to be granted for filing second suit – A civil court does not grant leave to file another suit – If law permits, plaintiff may file another suit but not on the basis of observations made by a superior court.(Para 23)
Facts of the case:
The parties had entered into an agreement to sell their respective properties situate at 598/1, Gali Kaitwali, Sangtrashan, Paharganj, Delhi and 1241, Sangtrashan, Paharganj, Delhi for a price which was subsequently determined at Rs. 4,75,000/- and Rs. 3,25,000/- respectively. Appellant’s title over the property which was owned and possessed by him appeared to be defective; although the said agreement was acted upon partially in terms whereof both the parties gave vacant possession of the property in their possession to the other.
However, no registered deed of sale could be executed. Respondent issued a notice on or about 21.03.1996 asking the appellant to hand over possession. Respondent thereafter filed a suit. The suit was decreed. The learned Trial Judge passed the decree for possession in respect of the shop premises bearing No. 1241, Gali Kaitwali, Bazar Sangtrashan, Paharganj, New Delhi. A decree for permanent injunction was also passed restraining the defendant from selling, alienating, letting or otherwise parting with the possession of the shop situated on ground floor or any part thereof.
Aggrieved thereby and dissatisfied therewith, the appellant preferred an appeal before the High Court. A Division Bench of the High Court, however, sought to explore the possibility of an amicable settlement between the parties. It referred the parties to the High Court Mediation Centre but it did not succeed.
Findings of the Court:
High Court erred in formulating additional issues and granting reliefs not included in the plaint.
Result: Appeal disposed of with observation.
Key Points: - The Court held that damages/mesne profits cannot be granted indirectly when not claimed in the suit and the plaintiff had full knowledge of rights (!) . - The High Court’s jurisdiction under Section 96 CPC (appellate) is different from its equity/judicial review power under Articles 226/227; equity cannot override statutory provisions (!) (!) (!) . - The High Court should have framed points for consideration under Order XLI, Rule 31 and could not grant relief outside the issues/pleadings; a second suit under Order II, Rule 4 may be possible but requires proper basis and court fees (!) (!) (!) . - If damages were not prayed for, the plaintiff cannot be permitted to claim them indirectly; the Court cannot grant such relief contrary to pleadings (!) (!) . - The appellate court limited its grant of costs and did not sustain the impugned directions regarding damages/mesne profits; the matter of damages was not disposed of on merits (!) . - The decision emphasizes that equity yields to law; discretionary relief must comply with statutory provisions (!) (!) (!) .
judgment
S.B. SINHA, J. —
1. Leave granted.
2. Propriety or otherwise of certain directions issued by a Division Bench of the Delhi High Court is in question in this appeal which arises out of a judgment and order dated 28.8.2006 passed by the said Court in RFA No. 229 of 2004.
3. The basic fact of the matter is not in dispute.
4. The parties had entered into an agreement to sell their respective properties situate at 598/1, Gali Kaitwali, Sangtrashan, Paharganj, Delhi and 1241, Sangtrashan, Paharganj, Delhi for a price which was subsequently determined at Rs. 4,75,000/- and Rs. 3,25,000/- respectively. Appellant’s title over the property which was owned and possessed by him appeared to be defective; although the said agreement was acted upon partially in terms whereof both the parties gave vacant possession of the property in their possession to the other.
5. However, no registered deed of sale could be executed. Respondent issued a notice on or about 21.03.1996 asking the appellant to hand over possession. Respondent thereafter filed a suit praying inter alia for the following reliefs:
“a)a decree for possession in favour of the Plaintiff and against the Defendant in respect of shop bearing No. 1241, situated on the ground floor duly shown in red colour in Annexure ‘A’ forming part of building bearing No. 1241, Bazar Sangtrashan, Paharganj, New Delhi.
(b)by means of a decree for permanent injunction in favour of the Plaintiff against the Defendant that the Defendant be restrained from selling, alienating, letting or otherwise parting with possession of the shop situated on ground floor or any part thereof shown in red colour in the Plan Annexure ‘A’ forming part of Building No. 1241, Bazar Sangtrashan, Paharganj, New Delhi.c) Costs of the suit by awarded.”
6. The defence raised by the appellant in his written statement was that he had all along been ready and willing to perform his part of the contract but the plaintiff became dishonest when the value of the property in the area increased and he started demanding more money from him on the plea that his business on the ground floor of the property had flourished in no time and the value of the property was more than the agreed sale consideration.
On the pleadings of the parties, the learned Trial Judge framed the following issues:
“i)Whether the suit is not maintainable in view of the provisions of Sections 38 and 41 of the Specific Relief Act?
ii)Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?
iii)Whether the agreement dated 30.5.95 as alleged is executed between the parties?
iv)Whether the agreement dated 30.5.95 is forged and fabricated? If so, to what effect.
v)Whether the defendant is the owner of property No. 598/1, Gali Kaitwali, Sangtrashan, Paharganj, New Delhi?
vi)Whether the Plaintiff is entitled to the possession and injunction prayed for?
vii)Relief.”
7. The suit was decreed. The learned Trial Judge passed the decree for possession in respect of the shop premises bearing No. 1241, Gali Kaitwali, Bazar Sangtrashan, Paharganj, New Delhi. A decree for permanent injunction was also passed restraining the defendant from selling, alienating, letting or otherwise parting with the possession of the shop situated on ground floor or any part thereof.
8. Aggrieved thereby and dissatisfied therewith, the appellant preferred an appeal before the High Court. During pendency of the appeal, the said decree was acted upon by the parties. Plaintiff got back possession of the premises in question.
A Division Bench of the High Court, however, sought to explore the possibility of an amicable settlement between the parties. It referred the parties to the High Court Mediation Centre but it did not succeed.
9.The short question which was posed and answered by the High Court was as to whether the defendant had any subsisting legal right to stay in occupation of the shop owned by the plaintiff and if he did not have any such right, as to whether restoration of
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