LAKSHMI @ BHAGYALAKSHMI Vs E. JAYARAM(D) BY LR.
Bench: SURINDER SINGH NIJJAR,M.Y. EQBAL
Case number: C.A. No.-001004-001004 / 2013
Diary number: 26204 / 2005
Page 1
[REPORTABLE]
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1004 of 201 3 (Arising out of Special Leave Petition (C) No.1185 of 2006)
Lakshmi alias Bhagyalakshmi and Anr. … Appellant(s)
Vs.
E.Jayaram (D) by Lr. …Respondent(s)
J U D G M E N T
M.Y. EQBAL, J.
Leave granted.
2. This appeal is directed against the order dated 29.08.2005
passed by a single Judge of the Karnataka High Court in M.F.A. No.
524 of 2003, whereby the Learned Single Judge set aside the order
passed by the VII Addl. City Civil Judge, Bangalore and held that
defendant-respondent is entitled to initiate action for ejectment of the
plaintiff-appellants from the suit property.
3. The facts of the case lie in a narrow compass.
4. The plaintiffs who are the present appellants filed a suit for
permanent injunction restraining the defendant-respondents from
interfering with their peaceful possession and enjoyment of the suit
property. The plaintiff-appellants case was that Plaintiff No.1 is the
1
Page 2
absolute owner of the suit property consisting of a building which was
purchased from Defendant No.1 on a consideration of Rs.6,000/-
However, sale deed could not be registered as the registration was
suspended by the Government and the defendant-respondents could
not get clearance from the Urban Land Ceiling Authority. The
plaintiff-appellant’s further case was that although the sale deed was
not registered, the entire sale consideration was paid to Defendant
No.1 by the plaintiff who was put in possession of the suit property. It
was pleaded by the plaintiffs that Plaintiff No.1 leased out the suit
property in favour of Defendant No.2 who is residing in the same suit
property for the last 17 years. Plaintiff-appellants further case was
that they approached the Bangalore Mahanagara Palike for change
of kattas and, on enquiry, they learnt that Defendant No.1 with an
intention to grab the property concocted a gift deed in favour of
Defendant No.2, who is his wife and on that basis moved an
application for change of kattas. Immediately, the plaintiffs caused a
legal notice dated 09.09.2002 asking him to execute a sale deed in
favour of Plaintiff No.1. The plaintiffs also caused a legal notice on
Municipal authorities not to change the kattas in favour of Defendant
No.2 as Defendant No.1 has no right whatsoever to gift the suit
property. The plaintiffs alleged that defendants along with their
2
Page 3
henchmen came to the suit property and threatened the plaintiff-
appellants of dire consequences if they do not vacate the property
within three days. On account of repeated threats from the side of
defendants, the plaintiffs were compelled to file a suit for permanent
injunction restraining the defendants from interfering with their
peaceful possession and enjoyment of the suit property. A separate
application under Order 39 Rule 1 and 2 CPC seeking an ad-interim
relief restraining the defendants from interfering with their peaceful
possession and enjoyment was filed.
5. The defendant-respondents filed a written statement and
denied the averments made in the plaint. The defendants denied the
purchase of the suit property by the plaintiff-appellants from
Defendant-Respondent No.1. The defendants pleaded about their
family settlement whereby the suit property was allotted to the
defendants who put construction and let out the same to Plaintiff
No.2. According to the defendants, Plaintiff No.1 is a stranger. In a
nutshell the case of the defendants is that Defendant No.1 is the
owner of the property and Plaintiff No.2 is a tenant under him and that
she was paying rent per month.
6. The learned Additional City Civil Judge on consideration of the
pleadings made by the parties and the documents filed by them
3
Page 4
allowed the application of the plaintiffs under Order 39 Rule 1 and 2
CPC and granted ad-interim temporary injunction restraining the
defendants from interfering with the peaceful possession and
enjoyment of the suit property by Plaintiff No.2 till disposal of the suit.
While granting temporary injunction the Civil Judge recorded the
following reasons :-
“From the allegations and counter allegations, it can be crystallized that plaintiff no.2 is in possession of suit schedule property and as such, the documents have been produced and even defendants admit the possession of plaintiff no.2. As regards the sale deed which is alleged to have been executed the same is seriously disputed document. Hence it need not be considered at this stage. The respective rights of the parties will have to be decided at the final disposal of the suit. At this stage, it is suffice to state that plaintiff no.2 is in possession of the property who has filed an affidavit stating that she is a tenant under plaintiff no.1 where as defendants have produced documents to show that she is tenant under them.
In view of the above, I am of the considered opinion that this controversy can be resolved at the final disposal
of the suit when parties lead their respective evidence. At this stage, plaintiff no.2 is entitled for injunction. Hence the point for consideration is answered in favour of plaintiff no.2 only and I proceed to pass the following:
I.A. No.1 filed by the plaintiffs under Order 39 Rule 1 and 2 of CPC is allowed in part.
Defendants 1 and 2 are restrained by an order of ad- interim temporary injunction from interfering with the peaceful possession and enjoyment of the suit schedule property by plaintiff no.2 till disposal of the suit.”
6. Aggrieved by the said order the defendants preferred an
appeal before the High Court being MFA No.524 of 2003. Ld.
Single Judge instead of considering the legality and propriety of the
4
Page 5
interim injunction granted by the Civil Judge proceeded to decide
the effect of Section 53A of the Transfer of Property Act, 1882. The
Ld. Single Judge is of the view that though the plaintiff is ready and
willing to perform her part of the contract, the fact that suit for bare
injunction is filed without seeking leave under Order 2 rule 2 CPC
reserving their right to sue for any other relief. According to Ld.
Single Judge in the light of this, if the respondent is barred from
claiming any relief of specific performance, the incidental relief of
injunction would be unavailable to the respondents.
7. We have heard learned counsel appearing for the parties. In
our considered opinion, the learned single judge has completely
misconstrued the provisions of Order 39 Rule 1 and 2 CPC and has
committed serious error in deciding the scope of Section 53A of
Transfer of Property Act, 1882 and Order 2 Rule 2 of CPC. As
noticed above the Civil Judge while granting ad-interim injunction
very categorically observed in the order that respective rights of the
parties shall be decided at the time of final disposal of the suit. The
very fact that Plaintiff No.2 is in possession of the property as a
tenant under Plaintiff No.1 and possession of Plaintiff No.2 was not
denied, the interim protection was given to Plaintiff No.2 against the
threatened action of the defendants to evict her without following the
5
Page 6
due process of law. In our considered opinion, the order passed by
the learned single judge cannot be sustained in law.
8. For the aforesaid reasons, we allow this appeal and set aside
the order passed by the High Court in the aforesaid appeal arising
out of the order of injunction.
9. However, before parting with the order we are of the view that
since the suit is pending for a long time the trial court shall hear and
dispose of the suit within a period of four months from the date of
receipt of copy of this order. It goes without saying that the trial
court shall not be influenced by any of the observation made in the
order passed by the appellate court as also by this court and the
suit shall be decided on its own merits.
………………………………J. (SURINDER SINGH NIJJAR)
………………………………J. (M.Y. EQBAL)
New Delhi February 7, 2013
6
Page 7
7