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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1416 OF 2019 (Arising out of SLP (C) No. 10850/2018)

TEK SINGH                                         Appellant(s)

VERSUS

SHASHI VERMA AND ANR.                             Respondent(s)

J U D G M E N T

R.F. Nariman, J.

1) Leave granted.

2) The Respondent No.1 filed a Civil Suit dated 05.03.2013

before the Civil Judge, Senior Division, Solan under Section 6

of the Specific Relief Act in which the following reliefs were

claimed:

“(a) Declaring  that  the  effect  the plaintiff was running business in Shop No. 3 in the name and style M/s Om Garments owned by proforma Defendant No. 2 in Anand Complex, The Mall Solan w.e.f. 28.01.2013 on  the  basis  of  partnership  deed  of  the said date with proforma Defendant No. 2 and the plaintiff has been wrongly dispossessed by the Defendant No. 1 from the Shop No. 3 in the intervening night of 03.03.2013 – 04.03.2013  illegally,  wrongfully,  without the consent of the plaintiff or proforma Defendant No. 2.

(b) Decree  for  permanent  prohibitory injunction restraining the Defendant No. 1 from  causing  any  interference  on  any portion  of  suit  premises/Shop  No.  3 mentioned above.”

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3) A written statement was filed by the appellant herein

denying the averments made in the Suit and stating that he has

been in possession since 2004 as a tenant of the landlady, who

is Respondent No.2 before us.

4) The  landlady  also  filed  a  written  statement  dated

05.07.2013 in which she stated that apart from the partnership

entered  into  with  Respondent  No.1,  the  petitioner  was  her

tenant w.e.f. 2004.  An Order 39 Rule 1 application was filed

which was dismissed by the learned Single Judge on 21.04.2015

saying that the relief asked for could not be granted at this

stage as it would amount to decreeing the Suit itself.  An

appeal filed before the Additional District Judge met with the

same fate.  By the judgment dated 19.12.2016, the appellate

Court held:

“However,  when  it  is  an  admitted  case  of Defendant No. 2 admittedly land lady of the suit shop that she has rented the suit shop to Defendant No. 1/Respondent and has set up counter defence that in fact Defendant No. 1 has sublet the suit shop to the plaintiff which  is  not  at  all  the  case  of  the plaintiff  primafacie it is clear on record that suit shop was rented by Defendant No. 2 to respondent/defendant No. 1 and Defendant No.  1  has  been  running  suit  shop  since 17.09.2004  when  both  the  Defendants  have also  reduced  rent  agreement  into  writing, copy of which is also available in the case file.  As per rent agreement, the tenancy had  commenced  w.e.f.  01.09.2004.   Nothing has  come  on  record,  if  Defendant  No. 1/respondent  had  ever  vacated/surrendered the  possession  of  the  shop  in  favour  of landlady nor it is the case of Defendant No. 2 that she ever sought eviction of Defendant No. 1 from the suit shop.  It appears from the  copy  of  partnership  deed  having  been relied  upon  by  the  applicant  that  both applicant and Defendant No. 2 had connived

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with each other in order to oust Respondent No. 1 who is tenant over the suit shop and filed the suit as well as application for temporary  and  mandatory  injunction  in  the Court.  Moreover, when the applicant herself has come with the plea that she is out of possession  of  the  suit  shop  and  she  has prayed  that  possession  in  her  favour  be restored  qua  the  suit  shop  by  way  of temporary  injunction  and  at  the  same  time the applicant has failed to prove on record that she has  primafacie case of balance of convenience lies in her favour or that she is  going  to  suffer  irreparable  loss  as discussed  above  hence  by  allowing  of  the application  as  prayed  by  applicant  would amount to decree of the suit in favour of the applicant without giving the parties to prove  their  respective  claims  by  leading evidence.  Even when it has come on record that  Respondent  No.  1  is  in  actual possession  of  the  suit  property  which  was rented  out  to  him  by  Defendant  No.  2 landlady in the year 2004 and nothing has come on record that the Defendant No. 1 had ever  been  evicted  from  the  suit  shop  in accordance with law or he ever surrendered the  possession  of  the  suit  property  in favour of defendant No. 2, it is clear on record that Respondent No. 1 has primafacie case and balance of convenience also lies in her favour.”

5) By  the  impugned  judgment  dated  10.04.2018,  a  learned

Single Judge of the High Court of Himachal Pradesh set aside

the  concurrent  findings  of  fact  and  allowed  a  revision

petition.   This  was  done  without  dealing  with  any  of  the

aspects set out by the first Appellate Court.  From what one is

able to gather, given the language used in the judgment, it

appears that the learned Judge was swayed by the fact that a

police  compliant  had  been  filed  on  03.02.2013  in  which

dispossession was acquiesced in.

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6) We are constrained to observe that every legal canon has

been thrown to the winds by the impugned judgment.  First and

foremost,  the  1999  amendment  to  the  CPC  added  a  proviso

Section 115 which reads as follows:

“115. Revision-(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- (a)  to  have  exercised  a  jurisdiction  not vested in it by law, or  (b) to have failed to exercise a jurisdiction so vested, or (c)  to  have  acted  in  the  exercise  of  its jurisdiction  illegally  or  with  material irregularity, the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally  disposed  of  the  suit  or  other proceedings.

Xxx xxx xxx  

(3) A revision shall not operate as a stay of suit  or  other  proceeding  before  the  Court except where such suit or other proceeding is stayed by the High Court.

A reading of this proviso will show that, after 1999, revision

petitions filed under Section 115 CPC are not maintainable

against interlocutory orders.

7) Even otherwise, it is well settled that the revisional

jurisdiction  under  Section  115  CPC  is  to  be  exercised  to

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correct jurisdictional errors only. This is well settled.  In

D.L.F. Housing & Construction Company Private Ltd., New Delhi

vs. Sarup Singh and Others(1970) 2 SCR 368 this Court held:

“The  position  thus  seems  to  be  firmly established  that  while  exercising  the jurisdiction  under  Section  115,   it  is  not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the  present  case.  It  was  not  contended,  as indeed it was not possible to contend, that the  learned  Additional  District  Judge  had either exercised a jurisdiction not vested in him  by  law  or  had  failed  to  exercise  a jurisdiction  so  vested  in  him,  in  recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance  of  the  agreement  in  question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but  merely  to  the  manner  in  which  it  is reached.  The  errors  contemplated  by  this clause  may,  in  our  view,  relate  either  to breach of some provision of law or to material defects  of  procedure  affecting  the  ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem  to  have  adverted  to  the  limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on  the  question  of  continuing  stay  of  the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there  was  no  illegality  or  material irregularity  committed  by  the  learned Additional  District  Judge  in  his  manner  of dealing  with  this  question.  It  seems  to  us that in this matter the High Court treated the

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revision virtually as if it was an appeal.” at Pg.373.

8) Learned  counsel  appearing  for  the  respondents  argued

before us and attempted to support the judgment.  He cited the

judgment of  Dorab Cawasji Wardenvs.  Coomi Sorab Warden and

Others (1990) 2 SCC 117.  Para 16 of this judgment is set out

hereinbelow:

“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:- (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.”

This  judgment  also  makes  it  clear  that  when  a  mandatory

injunction is granted at the interim stage much more than a

mere  prima  facie  case  has  to  be  made  out.  None  of  the

aforesaid statutory provisions or judgments have either been

adverted to or heeded by the impugned judgment.

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9) We, therefore, set aside the impugned  judgment  and

restore the judgment of the Courts below.

10) Since the suit filed is a Section 6 suit which is a

summary proceeding in itself, the trial Court should endeavour

to dispose of the Suit itself within a period of six months

from today.

11) The appeal is allowed in the aforesaid terms.

  .......................... J.    (ROHINTON FALI NARIMAN)

  .......................... J.              (VINEET SARAN)

New Delhi; February 04, 2019.