SRJ 1 wp-1306-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1306 OF 2010 Suneel K. Zende .. Petitioner. V/s. Rajab K. Sayani .. Respondent. Mr. S.S.Patwardhan, for Petitioner. Mr. Niranjan P. Shimpi, for Respondent. CORAM :A.S.OKA,J. DATE :12th APRIL,2010 P.C.:- 1] The submissions of the learned Counsel appearing for the Petitioner were heard on Friday, the 9 th April, 2010. The Petitioner is the original Plaintiff and the Respondent is the original Defendant. A suit for declaration and injunction was filed by the Petitioner in respect of the Flat No. A-4, admeasuring 790 square feet more particularly described in paragraph 1 of the said plaint. The prayer in the suit is for declaration of the ownership in respect of the suit flat. The second prayer in the SRJ 2 wp-1306-10.sxw suit is for permanent injunction restraining the Respondent from entering into the suit flat and from creating any third party interests. An application at Exhibit 5 for temporary injunction was made by the Petitioner. In the said application, a prayer was made for injunction restraining Respondent/Defendant from disturbing alleged possession of the Petitioner over the suit flat. The averment made in the Plaint is that one Mr. Liban A. Paul had entered into an agreement for sale in respect of the suit flat from the builder and developer after payment of entire consideration. It is alleged that the said Mr. Liban Paul was the owner of the suit flat. The case of the Petitioner is that after demise of the said Mr. Liban Paul, his legal representatives executed a registered Deed of Gift dated 4 th May 2007 in his favour in respect of the suit flat. The Petitioner claims to be the owner of the suit flat on the date of institution of the suit. On 4 th January, 2008, on the application for temporary injunction at Exhibit 5, the learned Trial Judge passed an ad-interim order directing the parties to maintain status-quo in respect of the suit flat. 2] The Respondent appeared in the suit and filed Written Statement and reply. In the Written Statement, SRJ 3 wp-1306-10.sxw it was contended that Mr. Liban Paul was never the owner of the suit flat and he was never in possession thereof. It is pointed out that the builder executed an agreement for sale in respect of the suit flat in favour of one Mr. Abbas Kothari on 30 th November, 1977 and the said agreement has been registered in the office of the Sub-Registrar of Assurances. Reliance is placed on the fact that the said Mr. Liban was an employee of the builder. It is pointed out that the said Mr.Liban was an attesting witness to the agreement executed between the builder and said Abbas Kothari. It is stated that on 13 th August, 1976, there was an agreement for sale in respect of the suit flat already executed by the builder in favour of the Respondent. Reliance is placed on various documents including a document executed by and between the builder , the said Abbas Kothari and the Respondent by which the said Abbas surrendered his rights in respect of the suit flat and handed over the original documents to the Respondent. The Respondent claimed to be the owner in possession on the date of institution of the suit. By judgment and order dated 25 th February, 2008, the Trial Court rejected the application for temporary injunction. An appeal was preferred by the Petitioner which was dismissed by the District Court. SRJ 4 wp-1306-10.sxw While dismissing the appeal, it was observed that on the basis of ad-interim order of status-quo passed on 4 th January, 2008 the Petitioner has illegally and unlawfully dispossessed the Respondent from the suit flat. 3] An application for mandatory injunction and for restitution under Section 144 of the Code of Civil Procedure, 1908 (herein after called as said Code) was made by the Respondent for the restoration of possession. The said application was made on the ground that on the date of institution of suit, the Petitioner was not in possession of the suit flat and that he dispossessed the Respondent on the basis of the ad-interim order of status-quo passed on 4 th January 2008. The said application was contested by the Petitioner. By the impugned Judgment and order dated 8 th January, 2010, the said application made by the Respondent at Exhibit 32 was allowed and the Petitioner was ordered to place the Respondent in possession of the suit flat. In July, 2009 the Petitioner made an application under Rule 15 of Order XI of the said Code seeking a direction against the Respondent to produce documents of title. However , by filing a reply the Respondent declined to produce the documents. The challenge in Writ Petition under SRJ 5 wp-1306-10.sxw Article 227 of the Constitution of India is to the said judgment and order dated 8 th January, 2010 by which the Petitioner has been directed to place the Respondent in possession of the suit flat. 4] The learned Counsel appearing for the Petitioner pointed out that while deciding the application at Exhibit 5, the Trial Court did not record any finding that the Respondent was dispossessed on the basis of the ad-interim order of status-quo. He pointed out that though there is no material on record, while dismissing an appeal preferred by the Petitioner against order passed below Exhibit 5, the Appellant Court has erroneously observed that Trial Court has recorded such finding. He submitted that the application on which the impugned order has been passed was essentially an application seeking interim mandatory injunction. Placing reliance on the decision of the Apex Court in the case of Dorab Cawasji Warden vs. Coomi Sorab Warden and Others [(1990)-2 SCC-117], he submitted that before an interim mandatory injunction is granted, the Court has to record a finding that the Plaintiff has a strong case for Trial. He submitted that the Apex Court has held that the strong case shall be of a higher standard than prima facie case SRJ 6 wp-1306-10.sxw required for a prohibitory injunction. He submitted that no finding has been recorded by the learned Trial Judge while passing impugned order that the Respondent has established a strong case for trial. He submitted that in absence of such finding, mandatory injunction could not have been granted by the Trial Court. He, therefore, submitted that the impugned order of delivery of possession is bad in law. The learned Counsel appearing for the Respondent supported the impugned judgment and order. 5] I have given careful consideration to the submissions. The suit filed by the Petitioner proceeds on the footing that he was in possession of the suit flat on the date of institution of suit. On the basis of the said contention, on 4 th August, 2008 the Trial Court passed ad-interim order on application at Exhibit 5, directing the parties to maintain status quo in respect of the suit flat. The application for temporary injunction was rejected by the Trial Court on recording a prima facie finding that the Petitioner has failed to prove his possession of the suit flat on the date of the institution of the suit. While rejecting the application for temporary injunction, Trial Court in paragraph 11 of the judgment held thus: SRJ 7 wp-1306-10.sxw ..... I, therefore, hold that, no prima facie case is made out for grant of temporary injunction as prayed by the plaintiff in his favour. The balance of convenience not lies in favour of the plaintiff but in favour of the defendant. Since the defendant, by virtue of the agreement of the year 1976, was put in possession of the suit flat and allegedly dispossessed during the pendency of the suit by the plaintiff by taking undue advantage of the status-quo order granted in favour of the plaintiff, therefore, the defendant would be put to an irreparable loss if the relief of temporary injunction is granted against him, as prayed by the plaintiff. The order of rejection of injunction was confirmed in Appeal by the District Court. A Categorical finding recorded by the District Court is that Mr. Liban Paul was never put in possession of the suit flat. After recording the said finding, in paragraph 13 of the judgment, the Appellate Court proceeded to hold that :- SRJ 8 wp-1306-10.sxw Moreover, even the order passed by the trial court reflects that on the basis of the status-quo order dated 4/1/08, the appellant has dispossessed respondent from the said flat. Therefore, the appellant on equitable grounds also, cannot be entitled to get any relief of interim injunction. As respondent has already filed separate application for restoration of the possession, that issue need not detain me for long. But so far as the present appeal is concerned, absolutely no case is made out by the appellant to show that the impugned order of the trial court suffers from any illegality. As on the date of the suit, respondent was not in possession, his application for interim injunction has to be dismissed. The aforesaid two orders have attained finality. Thus, the Courts below while rejecting the application for temporary injunction filed by the Petitioner found that the Petitioner was not in possession of the suit flat on the date of institution of the suit and that on the basis of the ad-interim order of status-quo passed in his favour, the Petitioner has dispossessed the Respondent. SRJ 9 wp-1306-10.sxw 6] Perusal of the averments in the application at Exhibit 32 made by the Respondent shows that apart from claiming mandatory injunction, the Respondent purported to invoke provision of 144 of the said Code. The contention in short was that as the Respondent was dispossessed on the basis of an ad-interim order passed by the Trial Court which was vacated subsequently, the principle of restitution must apply. This is a case where there are concurrent findings already recorded by the Courts below rejecting the case made out by the Petitioner/Plaintiff that he was in possession of the suit flat on the date of institution of suit. In fact, the finding of the Appellate Court which is unchallenged is that on the basis of the Order of status-quo passed by the Trial Court, the Respondent has been dispossessed by the Petitioner. In such situation, a Civil Court is not powerless and the Civil Court cannot be a silent spectator. In such a case, apart from provisions of Rule 1 and 2 of Order XXXIX of the said Code, there are sufficient powers vesting in the Civil Court under section 94 as well as section 151 of the said Code for placing such a party in the same position which existed on the date of SRJ 10 wp-1306-10.sxw passing of the ad-interim order. In the case of Harishchandra Narayan Maurya vs. Rajendraprasad Dargahi Varma [(1997)-3-MH.L.J.-437). This Court held thus:- 11. However, present case is not a case where the Defendant was seeking a temporary injunction against the Plaintiff under clauses (b) and (c) of Rule 1, Order 39 and Nanasahbe s case (supra) has no application wherein the Plaintiff on misstatement of facts or misrepresentation of facts obtain a order of temporary injunction from the court against the Defendant and in the guise and grab of that injunction order seeks to dispossesses the Defendant and in fact dispossess the Defendant. In such situation, and once it is found that in the grab of court s order; the Plaintiff has taken law in his own hand and by use of his muscle power dispossessed the Defendant, the Court in exercise of its inherent power could always pass an order of restoration of possession to the Defendant to meet the ends of justice. Such power of the Court could be traced in section 94 as well as section 151 of the Code of Civil Procedure. As observed by the Apex Court in Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527, that Order 39, Rules 1 and 2 is SRJ 11 wp-1306-10.sxw not exhaustive and the situations not covered by Order 39, Rules 1 and 2 of the Code of Civil Procedure could be met by passing suitable orders in fit cases under sections 94 and 151 of the Code of Civil Procedure. Of course, such power is sparingly used and cannot be claimed as a matter of right but in deserving cases and where it is imminently required, the court is not powerless and may pass appropriate order of temporary injunction at the instance of defendant in the interest of justice. The Court cannot be mute and silent spectator to the illegal act and exercise of force by the Plaintiff in dispossessing the Defendant in the grab of court s order of ad interim injunction and once the court finds that the Plaintiff has taken the law in his own hand and by abusing the process of court has sought to dispossess the defendant, the court may not only pass an appropriate order for restoration but also it becomes bounden duty of the court to ensure that the Defendant who has been dispossessed by force is restored back his possession. Such order by the court may be an exercise of its inherent powers under section 151 of the Code of Civil Procedure or under section 94 of Civil Procedure Code and need not be covered under clauses (b) and (c) of Rule 1, Order 39, of the Code of Civil SRJ 12 wp-1306-10.sxw Procedure. In this background and legal position, the order of the trial court in my view is expedient and meets the ends of justice. (emphasis added) 7] In the circumstances, the submission of the learned Counsel appearing for the Petitioner that before passing impugned order, the Trial Court ought to have recorded the finding of existence of a strong case for Trial deserves to be rejected. An undue advantage was taken by the Petitioner of the ad- interim order passed in his favour by dispossessing the Respondent. The Trial Court has exercised inherent powers by ordering the Petitioner that the Respondent shall be placed in possession. Even if the Respondent is placed in possession, it is obvious that his possession will be subject to final outcome of the suit. 8] Subject to what is observed above, no case for interference is made out. The Petition is rejected. 9] The learned Counsel appearing for the Petitioner seeks continuation of interim relief granted earlier. The said request is opposed by the Respondent. The ad-interim relief granted on 18 th February, 2010 is extended for a period of six weeks from today, subject to the condition on the Petitioner filing in this SRJ 13 wp-1306-10.sxw Court an undertaking stating that he will not create any third party interests in respect of the suit flat and he will not part with possession of the suit flat. If said undertaking is not filed within three weeks from today, the protection granted by this Court will come to an end and it will be open for the Respondent to execute the impugned order. (A.S.OKA,J.)