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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.  678 of 2013

(Arising out of SLP (Civil) 31559 of 2012)

Mohd. Mehtab Khan & Ors. ... Appellant(s) Versus

Khushnuma Ibrahim & Ors. ... Respondent(s)

J U D G M E N T

RANJAN GOGOI, J.

Leave granted.

2. Aggrieved by the grant of interim relief by an Appellate  

Bench of the Bombay High Court in a suit under Section 6 of the  

Specific Relief Act, 1963 (hereinafter for short the “SR Act”), the  

present appeal has been filed by the defendants 5, 10 and 11  

in  the suit.   More specifically,  by the impugned order  dated  

09.10.2012 the Receiver of the suit properties appointed by the  

learned Single Judge has been directed to remain in possession  

and  hand  over  the  same  to  the  respondent  Nos.1  and  2

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(plaintiffs)  who  are  to  be  in  possession  as  agents  of  the  

Receiver.

3. Before embarking upon the necessary discussion of the  

factual matrix of the case, an identification of the contesting  

parties in the manner indicated below would be necessary.

Name Relationship Status in the Trial Court Khunshnuma  Ibrahim  Khan

Wife  of  Deceased  Ibrahim Khan

Plaintiff No.1

Raghib Ibrahim Khan Son  of  Deceased  Ibrahim Khan

Plaintiff No.2

Shri  Asadullah  Khan  @ Sameer Khan

Younger  Brother  of  Deceased  Ibrahim  Khan

Defendant No. 1  

Shri  Najmuzzaman  Khan

Elder  Brother  of  Deceased  Ibrahim  Khan

Defendant No.2

Smt. Tara Begum Wife  of  Defendant  No.2

Defendant No.3

Shri Sheheryaar Khan Son-in-law  of  Defendant Nos. 2 & 3

Defendant No.4

Mohd.Mehtab Khan Son  from  1st wife  of  deceased

Defendant No.5

Mohd. Ilyas Khan Brother  of  Defendant  No.3

Defendant No.6

Mohd. Dayan Khan Unrelated Defendant No.7 Smt. Shehzadi Wife  of  Defendant  

No.12 Defendant No.8

Miss Rani Unrelated Defendant No.9 Tabish Ebrahim Khan Son  from  2nd wife  of  

Deceased  Defendant No.10

Kamran Khan Son  from  1st wife  of  Deceased

Defendant No.11

Zakarullah Khan Son  from  1st wife  of  Deceased

Defendant No.12

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4. The plaintiff No. 1 claims to be the 3rd wife of one Ibrahim  

Khan whereas the plaintiff No. 2 is the son of the first plaintiff  

and Ibrahim Khan.  According to the plaintiffs, Ibrahim Khan  

and the first plaintiff were married in the year 1993 and out of  

the said wedlock the plaintiff No. 2 was born some time in the  

year  1996.   The plaintiffs  claim that  they alongwith Ibrahim  

Khan were residing in  flat  No. A-505,  Noor-e-Jahan Complex,  

Pipe Road, Kurla (West),  Mumbai and that  they were also in  

occupation of an office being 201/202, 2nd floor in the Big 3  

Building, 88, Anandilal Poddar Marg, Marine Lines, Mumbai from  

where  the  first  plaintiff  was  carrying  on  her  profession  of  

advocate and solicitors in the name of M/s. K.K. Associates.  It is  

the case of the plaintiffs that both the aforesaid properties were  

the self-acquired properties of Ibrahim Khan and that the suit  

flat was gifted in favour of the first plaintiff whereas a general  

power of attorney was executed in favour of the first plaintiff  

insofar as the suit office is concerned.

5. The further case of the plaintiffs is that Ibrahim Khan had  

gone  to  Delhi  on  28.11.2011  to  attend  a  wedding.   On  

1.12.2011 the first plaintiff could come to know that Ibrahim

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Khan had suffered a brain hemorrhage and was admitted in the  

hospital.  According to the plaintiffs, they took an early morning  

flight  to  Delhi  on  the  very  next  day.   However,  at  about  

9.30/10.00  O’Clock  in  the  morning,  Ibrahim  Khan  died.  

Thereafter, at the insistence of the first defendant (brother of  

the  deceased)  the  body  of  the  deceased  was  taken  to  

Bhagalpur, Bihar which was the native place of Ibrahim Khan.  

The  plaintiffs  accompanied  the  body  of  the  deceased  to  

Bhagalpur and the last rites were performed at the said place in  

the afternoon of 4.12.2011.  On 5.12.2011 the plaintiff No. 1  

received a call from her next door neighbour, one Nadeem, that  

the lock of the suit flat was broken and a new lock had been  

placed by some unknown persons. According to the plaintiffs,  

the first plaintiff called her house help Niranjan who informed  

her  that  the  defendants  2,  3  and  4  had  forcibly  taken  

possession of the suit flat. It is also the case of the plaintiffs  

that when she had contacted her office she was informed that  

the  defendant  No.  4  had  gone  to  the  suit  office  and  had  

snatched the keys from the office staff and had locked up the  

premises.

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6. According  to  the  plaintiffs,  they  reached  Mumbai  on  

6.12.2011 and on going to the suit  flat they found that new  

locks  had  been  put  thereon.   They,  thereafter,  lodged  a  

complaint  to  the  police  on  6.12.2011  and  thereafter  on  

12.12.2011 instituted Suit No. 27 of 2012 under Section 6 of the  

SR Act.  On 14.12.2011, when the matter was taken up by the  

Court, the defendant Nos. 1 to 4 informed the Court that they  

are not in possession of the suit flat but it is the defendants 5,  

11 and 12 who are in possession.  The Court by order dated  

14.12.2011 appointed a Receiver and directed him to make an  

inspection of the suit flat and suit office and report back to the  

Court.   Such  inspection  was  made  by  the  Court  appointed  

Receiver on 16.12.2011. The report of inspection was submitted  

to the Court to the effect that the defendant Nos. 5 to 9 were  

found to be in possession of the suit  flat.  Formal possession  

thereof was taken over by the Court Receiver in terms of the  

order dated 14.12.2011.  In the report of the Court Receiver,  it  

was further mentioned that the defendant No. 10 had produced  

the keys of the suit office. However, the Court Receiver did not  

succeed in opening the doors of the office premises as there

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were further locks fixed thereon and inquiries did not indicate  

as to who was in possession of the keys.  Accordingly, the Court  

Receiver informed the Court that formal possession of the suit  

office could not be taken.  In the aforesaid circumstances, at  

the  instance  of  the  plaintiffs,  defendants  5  to  12  were  

impleaded in the suit.

7. At  this  stage  the  specific  case  of  the  defendants  as  

advanced before the learned Trial Judge, may be taken note of.  

The fact that the first plaintiff was the 3rd wife of Ibrahim Khan  

and  the  second  plaintiff  was  the  son  born  out  of  the  said  

marriage  is  not  disputed  by  the  defendants.   The  death  of  

Ibrahim Khan in the circumstances stated in the plaint is also  

not  in  dispute.   According to the  defendants,  the appellants  

were residing in the suit premises with the deceased Ibrahim  

Khan till  the middle of the year 2009 when the first plaintiff  

separated  from the  deceased.   Thereafter,  according  to  the  

defendants, the plaintiffs were not in possession of the suit flat  

and, instead, were staying in the house of the father of the first  

plaintiff at Mira Road.  The second plaintiff was studying in a  

school  located  on  Mira  Road.   It  is  the  specific  case  of  the

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defendants  that  the  deceased,  at  the  relevant  time,  was  

residing in the suit  flat  alongwith his son from the first  wife  

(defendant No. 5) and that the defendants had inherited the  

suit flat on the death of Ibrahim Khan. Insofar as the suit office  

is concerned, it is the specific case of the defendants that the  

plaintiff No. 1 was not in possession of the said premises and  

that the said plaintiff No. 1 had been functioning from an office  

located at another place, i.e., shop No. 32/33 Ashoka Centre,  

2nd floor, L.T. Marg, Mumbai.

8. Alongwith  the  respective  pleadings  of  the  parties  

elaborate  documents  had been  laid  before  the  learned  Trial  

Judge on the basis of which contentions were advanced by the  

respective parties each claiming to be in possession of the suit  

flat and suit office on the relevant date in order to justify the  

reliefs that the respective parties were seeking from the Court.  

As would be evident from the order of the Appellate Bench of  

the  High  Court,  insofar  as  the  suit  flat  is  concerned,  the  

plaintiffs  had produced as many as  50 documents details  of  

which has been catalogued in a chronological order in the order  

dated 9.10.2012.  Insofar as suit office is concerned, similarly,

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the plaintiffs had relied on as many as 31 documents to show  

their claim of possession.  Likewise, the defendants had also  

relied on an equally long and elaborate list of documents to  

show that the plaintiffs were not in possession of the suit flat  

and suit office at the relevant point of time, as claimed.  As the  

details of the said documents have been minutely taken note of  

by both the Benches of the High Court it is not necessary for  

this Court  to traverse the said aspect of the case once again.  

Instead, we may briefly notice the reasons which had weighed  

with  the  learned  Trial  Judge  to  refuse  interim  relief  to  the  

plaintiffs  and  those  that  had  prevailed  upon  the  Appellate  

Bench to reverse the said order of the learned Trial Judge.

9. Both the learned Trial Judge as well as the Appellate Court  

considered the very same documents brought on record by the  

contesting parties to arrive at their respective conclusions with  

regard  to  the  entitlement  of  the  plaintiffs.   Specifically,  the  

learned Trial Judge had discussed the narration of the events of  

dispossession pleaded by the plaintiffs and held the same to be  

somewhat unreliable and inconsistent in view of the fact that  

the defendant No. 1 (son of the deceased Ibrahim Khan) who is

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alleged  to  have  been  instrumental  in  dispossessing  the  

plaintiffs  was  at  the  relevant  point  of  time  in  Bhagalpur  in  

connection with the cremation of the deceased, Ibrahim Khan.  

In this regard the claim of defendants 2 to 4 that they were also  

in  Bhagalpur  at  the  relevant  time  was  considered  by  the  

learned Trial Judge.  The versions of the occurrence allegedly  

narrated  to  the  plaintiff  No.  1  by  her  neighbours  and  her  

domestic aid were also found to be somewhat contradictory.  

The  learned  Trial  Judge  took  into  account  the  fact  that  the  

plaintiffs’ version with regard to prosecution of studies by the  

second plaintiff in the school at Mira Road and his residing with  

the parents of the plaintiff No. 1 at Mira Road was brought on  

record in the rejoinder and did not constitute the part of the  

plaint  case.   In  coming to his  conclusions in  the matter  the  

learned  Trial  Judge  also  took  into  account  the  fact  that  the  

visiting card of the plaintiff No. 1 showed an address other than  

of  the  suit  office  and  also  the  fact  that  the  communication  

conveying the temporary membership of the plaintiff No. 1 in  

the Bombay Bar Association sent to the suit flat address was  

returned with the remarks “shifted”.  The fact that the visiting

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card  of  the  plaintiff  showing  the  office  address  at  Ashoka  

Centre contained the same telephone numbers of the plaintiff  

that  were mentioned in  certain  communications of the bank  

were duly taken note of by the learned Trial Judge. In the above  

context the claim of the plaintiff No.1 that the said visiting card  

is a forged and fabricated document was held to be an issue fit  

for decision in the trial of the suit.  The learned Trial Judge took  

into account the passports of both the plaintiffs issued in the  

year 2009 showing the address of the suit premises as well as  

the vouchers/memos showing payment by the plaintiff No.1 for  

the household and electronic goods which were found in the  

suit flat.  On an overall consideration of the aforesaid facts and  

the documents laid in support thereof,  the learned Trial Judge  

was  of  the  view  that  there  were   inconsistencies  and  

improbabilities in the case of the plaintiffs which needed to be  

established in  the  trial  of  the  suit.   Accordingly,  the  interim  

relief of direction to be put back in possession, as claimed by  

the plaintiffs, was declined.

10. The Appellate Court understood the very same documents  

considered  by  the  learned  Trial  Judge  in  a  wholly  different

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manner.  Specifically, it  was held that the various household  

and electronic goods found in the suit flat during  the inspection  

carried out by the Receiver on 16.12.2011 were proved to have  

been  purchased  by  the  plaintiffs  on  the  basis  of  a  

invoice/voucher dated 22.8.2008 and the said fact pointed to  

the  possession of  the  suit  flat  by the  plaintiffs  and,  in  fact,  

demolished the case of the defendants that the first plaintiff  

and the deceased had separated some time in the middle of  

the calendar year 2009.  The passports issued to the plaintiffs  

in 2009 recording the address of the suit flat; the HDFC bank  

statement  of  plaintiff  No.  1;  the  ICICI  bank  Credit  Card  

Statement  of  plaintiff  No.  1  during  the  relevant  time,  all  

indicating the address of the suit flat were duly relied upon by  

the Appellate Court in coming to its conclusion.  The Appellate  

Court also relied on an application form submitted (before the  

Appellate  Court)  by  the  second  plaintiff  on  11.8.2011  for  

admission in the 11th standard in H.R. College of Commerce and  

Economics  at  Dinshaw Vachcha  Road,  Church  Gate,  Mumbai  

which was signed by the deceased Ibrahim Khan himself giving  

the address of the suit office and the suit flat.  The version of

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the plaintiffs that the visiting  card showing her office at Ashoka  

Centre  was a  forged  document  and  also  the  claim that  the  

plaintiff  had  used  the  said  premises  temporarily  as  the  suit  

office  was  under  renovation  was  accepted  by  the  learned  

Appellate Court as sufficient explanation to counter the stand  

taken by the defendants.  On the aforesaid basis the order of  

the learned Trial Judge was found fit for reversal and refusal of  

interim  relief  to  the  plaintiffs  was  held  to  be  unjustified.  

Accordingly, interim relief(s) was  granted in the appeal.

11. We have heard Mr. V. Krishnamurthy, Senior Advocate for  

the  appellants  and  Mr.  Shyam  Divan,  Senior  Advocate  for  

respondents No. 1 and 2.  

12. A proceeding under Section 6 of the Specific Relief Act,  

1963 is intended to be a summary proceeding the object  of  

which is to afford an immediate remedy to an aggrieved party  

to  reclaim  possession  of  which  he  may  have  been  unjustly  

denied by an illegal act of dispossession.  Questions of title or  

better rights of possession does not  arise for adjudication in a  

suit  under  Section  6  where  the  only  issue  required  to  be  

decided is as to whether the plaintiff was in possession at any

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time six  months prior  to  the  date  of  filing of the  suit.   The  

legislative  concern  underlying  Section  6  of  the  SR  Act  is  to  

provide a quick remedy in cases of illegal dispossession so as to  

discourage litigants from seeking remedies outside the arena of  

law.  The same is evident from the provisions of Section 6(3)  

which bars the remedy of an appeal or even a review against a  

decree passed in such a suit.   

13. While the bar under Section 6(3) of the SR Act may not  

apply to the instant case in view of the initial forum in which the  

suit  was filed and the appeal  arising from the interim order  

being  under  the  Letters  Patent  issued  to  the  Bombay  High  

Court,  as  held  by  a  Constitution  Bench  of  this  Court  P.S.  

Sathappan (Dead) by Lrs. v. Andhra Bank Ltd. & Ors.1,  

what is ironical is that the correctness of the order passed in  

respect of the interim entitlement of the parties has reached  

this Court under Article 136 of the Constitution.  Ordinarily and  

in the normal course, by this time,  the suit itself should have  

been disposed of.  Tragically, the logical conclusion to the suit is  

no where in sight and it is on account of the proverbial delays  

that have plagued the system that interim matters are being  1 (2004) 11 SCC 672

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contested to the last court with the greatest of vehemence and  

fervour. Given the ground realities of the situation it is neither  

feasible  nor  practical  to  take  the  view that  interim matters,  

even  though  they  may  be  inextricably  connected  with  the  

merits  of  the  main  suit,  should  always  be  answered  by  

maintaining  a  strict  neutrality,  namely,  by  a  refusal  to  

adjudicate.  Such a stance by the courts is neither feasible nor  

practicable.  Courts,  therefore,  will  have to venture to decide  

interim matters on consideration of issues that are best left for  

adjudication in the full trial of the suit. In view of the inherent  

risk in performing such an exercise which is bound to become  

delicate in most cases the principles that the courts must follow  

in this regard are required to be stated in some detail though it  

must be made clear that such principles cannot be entrapped  

within any straitjacket formula or any precise laid down norms.  

Courts  must  endeavour  to  find  out  if  interim  relief  can  be  

granted on consideration of issues other than those involved in  

the  main  suit  and  also  whether  partial  interim  relief  would  

satisfy the ends of justice till final disposal of the matter. The  

consequences  of  grant  of  injunction on the  defendant  if  the

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plaintiff is to lose the suit alongwith the consequences on the  

plaintiff where injunction is refused but eventually the suit is  

decreed has to be carefully weighed and balanced by the Court  

in every given case. Interim reliefs which amount to pre-trial  

decrees  must  be  avoided   wherever  possible.   Though  

experience has shown that  observations and clarifications to  

the  effect  that  the  findings  recorded  are  prima  facie  and  

tentative,  meant  or  intended  only  for  deciding  the  interim  

entitlement  of the parties  have not  worked well  and interim  

findings on issues concerning the main suit has had a telling  

effect in the process of final adjudication it is here that strict  

exercise of judicial discipline will be of considerable help and  

assistance. The power of self-correction and comprehension of  

the orders of superior forums in the proper perspective will go a  

long  way  in  resolving  the  dangers  inherent  in  deciding  an  

interim matter on issues that may have a close connection with  

those arising in the main suit.

14. There is yet another dimension to the issues arising in the  

present appeal.  The interim relief granted to the plaintiffs by  

the Appellate Bench of the High Court in the present case is a

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mandatory direction to handover possession to the plaintiffs.  

Grant of mandatory interim relief requires the highest degree of  

satisfaction of the Court;  much higher  than a  case involving  

grant of prohibitory injunction. It is, indeed, a rare power, the  

governing principles whereof would hardly require a reiteration  

inasmuch as the same which had been evolved by this Court in  

Dorab  Cawasji  Warden  vs.  Coomi  Sorab  Warden  and  

Others2 has come to be firmly embedded in our jurisprudence.  

Paras 16 and 17 of the judgment in  Dorab Cawasji Warden  

(supra), extracted below, may be usefully remembered in this  

regard:

“16. The  relief  of  interlocutory  mandatory  injunctions are thus granted generally to preserve  or restore the status quo of the last non-contested  status  which  preceded  the  pending  controversy  until  the  final  hearing  when  full  relief  may  be  granted or to compel  the undoing of those acts  that have been illegally done or the restoration of  that  which was wrongfully taken from the party  complaining.  But  since  the  granting  of  such  an  injunction  to  a  party  who  fails  or  would  fail  to  establish  his  right  at  the  trial  may  cause  great  injustice or irreparable harm to the party against  whom it was granted or alternatively not granting  of it  to a party who succeeds or would succeed  may equally  cause great  injustice or irreparable  harm,  courts  have  evolved  certain  guidelines.  Generally stated these guidelines are:

2 (1990) 2 SCC 117

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(1) The plaintiff has a strong case for  trial.  That  is,  it  shall  be  of  a  higher  standard than a prima facie case that is  normally  required  for  a  prohibitory  injunction. (2) It  is  necessary  to  prevent  irreparable  or  serious  injury  which  normally cannot be compensated in terms  of money. (3) The  balance  of  convenience  is  in  favour of the one seeking such relief.

17. Being essentially an equitable relief the grant  or refusal of an interlocutory mandatory injunction  shall ultimately rest in the sound judicial discretion  of the court to be exercised in the light of the facts  and  circumstances  in  each  case.  Though  the  above  guidelines  are  neither  exhaustive  nor  complete  or  absolute  rules,  and  there  may  be  exceptional  circumstances  needing  action,  applying  them  as  prerequisite  for  the  grant  or  refusal  of  such  injunctions  would  be  a  sound  exercise of a judicial discretion.”

15. In  a  situation  where  the  learned  Trial  Court  on  a  

consideration of the  respective cases of the parties  and the  

documents laid before it was of the view that the entitlement of  

the plaintiffs to an order of interim mandatory injunction was in  

serious doubt,  the Appellate  Court  could not have interfered  

with the exercise of discretion by the learned Trial Judge unless  

such exercise was found to be palpably incorrect or untenable.

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The  reasons  that  weighed  with  the  learned  Trial  Judge,  as  

already noticed, according to us, do not indicate that the view  

taken is not a possible view. The Appellate Court,  therefore,  

should not have substituted its views in the matter merely on  

the ground that in its opinion the facts of the case call for a  

different  conclusion.  Such  an  exercise  is  not  the  correct  

parameter for exercise of jurisdiction while hearing an appeal  

against  a  discretionary  order.   While  we  must  not  be  

understood to have said that the Appellate Court was wrong in  

its conclusions what is sought to be emphasized is that as long  

as the view of the Trial Court was a possible view the Appellate  

Court should not have interfered with the same following the  

virtually settled principles of law in this regard as laid down by  

this Court in Wander Ltd. v. Antox India (P) Ltd.3  Para 14  

of  the  aforesaid  judgment  which  is  extracted  below  would  

amply sum up the situation:

“14. The appeals before the Division Bench were  against  the  exercise  of  discretion  by  the  Single  Judge. In such appeals, the appellate court will not  interfere with the exercise of discretion of the court  of first  instance and substitute its  own discretion  except  where  the  discretion  has  been  shown  to  

3 1990 (Supp) SCC 727

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have been exercised arbitrarily, or capriciously or  perversely  or  where  the  court  had  ignored  the  settled principles of law regulating grant or refusal  of  interlocutory  injunctions.  An  appeal  against  exercise of discretion is  said to be an appeal  on  principle.  Appellate  court  will  not  reassess  the  material and seek to reach a conclusion different  from the one reached by the court below if the one  reached by that court was reasonably possible on  the material.  The appellate  court  would normally  not be justified in interfering with the exercise of  discretion under appeal solely on the ground that if  it  had considered the matter  at the trial  stage it  would have come to a contrary conclusion. If the  discretion  has  been  exercised  by  the  trial  court  reasonably and in a judicial manner the fact that  the appellate  court  would have taken a  different  view  may  not  justify  interference  with  the  trial  court's  exercise  of  discretion.  After  referring  to  these  principles  Gajendragadkar,  J.  in  Printers  (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721)

“... These principles are well established, but as  has been observed by Viscount Simon in  Charles  Osenton & Co. v.  Jhanaton ‘...the law as  to  the  reversal by a court of appeal of an order made by  a judge below in the exercise of his discretion is  well established, and any difficulty that arises is  due  only  to  the  application  of  well  settled  principles in an individual case’.”

 The  appellate  judgment  does  not  seem  to  defer to   this principle.”

16. Though  the  above  discussions  would  lead  us  to  the  

conclusion that the learned Appellate Bench of the High Court

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was not  correct  in  interfering  with  the  order  passed  by  the  

learned Trial Judge we wish to make it clear that our aforesaid  

conclusion is not an expression of our opinion on the merits of  

the controversy between the parties.  Our  disagreement  with  

the view of the Division Bench is purely on the ground that the  

manner  of exercise of the  appellate  power is  not  consistent  

with the law laid down by this Court in the case of  Wander  

Ltd. (supra).   Accordingly,  we  set  aside  the  order  dated  

09.10.2012 passed by the Appellate Bench of the Bombay High  

Court and while restoring the order dated 13.04.2012 of the  

learned Trial Judge we request the learned Trial Judge, or such  

other  court to which the case may, in the mean time, have  

been transferred to dispose of the main suit as expeditiously as  

its calendar would permit with the expectation that the same  

will be possible within a period of six months from the date of  

receipt  of this  order.   The appeal  shall  stand disposed of in  

terms of the above.   

...…………………………J. [P. SATHASIVAM]

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.........……………………J. [RANJAN GOGOI]

New Delhi, January 24, 2013.