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                   [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  

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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  

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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  

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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  

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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  

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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

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