C.R. Nos.4762 & 6259 of 2002 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.4762 of 2002 (O&M) Date of Decision: 18.05.2009 2. C.R. No.6259 of 2002 (O&M) Shri Gurdev Singh .......Petitioner Versus Shri Satpal Sharma and others ....Respondents Present: Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate and Mr. Chetan Slathia, Advocate for the petitioner. Mr. Pawan Kumar, Senior Advocate with Mr. Saqib Ali Khan, Advocate for the respondent No.1. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ?Yes -.- K. KANNAN J. I. Facts leading to the disputes:- 1. The two civil revisions, though do not assail the same order, however, arise out of the same proceedings. Parties in both the civil revisions are the same. (a) The basis for plaintiffs' suit 2. The respondents had filed Civil Suit No.30 of 1999 on the file of the Civil Judge (Junior Division), Chandigarh for recovery of possession of property under Section 6 of the Specific Relief Act claiming that they were dispossessed unlawfully by the petitioner on C.R. Nos.4762 & 6259 of 2002 (O&M) -2- 05.08.1998, taking advantage of an interim order directing status quo to be maintained in relation to the property in a suit instituted by the revision petitioner in Court of Sh. A.K. Bishnoi, SJIC, Chandigarh on 03.08.1998. 3. The plaintiffs in the suit (respondents herein) had claimed that they had obtained the property measuring 8'x15' including three windows corner on rent next to Shimla Book House on one side and Fiesta on the other side by their landlord Sh. Kanwaljit Singh, Proprietor of M/s Sing Song. The lease commenced on 01.07.1998 through an instrument of lease in writing and since they had been dispossessed by the defendant unlawfully, they were entitled to be restored in possession. The suit had been instituted on 12.01.1999, that is, within a period of six months from the date of alleged dispossession. (b) The defence by defendant 4. The defendant, who is the revision petitioner before this Court contested the claim of the plaintiffs and stated that Kanwaljit Singh was himself a tenant under Baba Tirath Singh, who was the owner of the premises. He had sublet a portion of the premise to him with the concurrence of the owner Baba Tirath Singh and when he had been in possession of the property, the plaintiffs, who were previously the employees in business of Kanwaljit Singh had purported to have taken a lease of the property from Kanwaljit Singh in the premises, where he was carrying on a business and they attempted to take forcible possession of the property necessitating the defendant to file his own suit for injunction. The injunction suit was also decreed and C.R. Nos.4762 & 6259 of 2002 (O&M) -3- his possession was directed to be protected till vacated by due process of law. The suit instituted in spite of the decree granted in his favour was not maintainable, according to the defendant. The defendant's contention was also that there had been no trespass as alleged by the plaintiffs and the suit for recovery for possession was, therefore, not tenable. II. The disposition by trial Court and the reasons therefor: 5. The trial Court decreed the suit finding that (i) witnesses who had been examined on the side of the plaintiff PW-2 and PW-3 had spoken about the trespass made by the defendant; (ii) the lease deed by Kanwaljit Singh in favour of the plaintiffs had clearly shown that the property had been granted on lease in favour of the plaintiffs and therefore, the plaintiffs were entitled to be restored in their possession; (iii) the decree for injunction obtained by the defendant had protected his possession only till he was vacated by due process of law and the suit filed by the plaintiffs was not itself barred and the action of the plaintiffs was in conformity with the right as secured in the decree obtained by the defendant; (iv) the defendant had not established that he had been granted a lease in respect of the same property by Kanwaljit singh in that he had not examined his landlord Kanwaljit Singh nor had filed any document to show that he was in possession of the property even prior 05.08.1998. The suit was, therefore, decreed. III. The genesis of two sets of civil revisions: 6. The defendant had filed a revision to this Court in C.R. No.4762 of 2002 against the decree granted on 04.05.2002. The C.R. Nos.4762 & 6259 of 2002 (O&M) -4- revision had been filed on 02.08.2002 and no interim order had been passed on that date. He had filed simultaneously an appeal also before the Additional District Judge, Chandigarh numbered as Civil Appeal No.26 of 2002. The District Court dismissed the appeal finding that an appeal against a judgment of a Court under Section 6 of the Specific Relief Act was barred by virtue of Section 6 (4) of the Specific Relief Act and also went on to hold on merit that the appellant had not established his possession prior to 05.08.2008 and the decision by the Court below was unassailable. The judgment was rendered on 16.10.2002 and the defendant had filed the civil revison bearing No.6259 of 2002 and also moved an independent application for stay in the civil revision filed by him in C.R. No.4762 of 2002. The defendant had not dislcosed the fact of the disposition of the District Court and had independently obtained an order of stay. IV. The effect of appeal to District Court: 7. Even at the outset, the learned Senior Counsel, Sh. Arun Jain appearing on behalf of the revision petitioner contended that the appeal filed before the District Court was not competent but he would still attack the order of the District Judge by pointing out that if the appeal was not maintainable, the Court should have merely dismissed it as such and ought not to have gone on to decide on the merits of the case, since it had no competence or jurisdiction to enter into any finding of the trial Court that decided in a summary suit that the plaintiffs were entitled to the decree. The civil revision No.6259 of 2002 addresses, therefore, only a technical point that the decision of the Additional District Judge was not to come in the way of this Court C.R. Nos.4762 & 6259 of 2002 (O&M) -5- considering the merits of the case as dealt with by the trial Court for the decision of the Additional District Judge was itself incompetent in an incompetent appeal filed by the defendant. 8. The appeal filed by the defendant before the District Judge and also filing a revision before this Court independently in C.R. No.4762 of 2002 and later applying for interim order without disclosing the adverse decision of the District Court shall have relevance more on the conduct of the defendant than any bearing on merits of the case itself and that was the argument in response, among other contentions, raised by the plaintiffs in revision before me. V. The contentions by revision petitioner: 9. Sh. Arun Jain, learned Senior Counsel appearing on behalf of the revision petitioner has the following contentions to make:- (i) The plaintiffs, who sought for a disposition in a summary fashion for restoration of alleged possession cannot obtain a relief unless they showed that they were in exclusive possession of the property which they claimed that they were dispossessed on 05.08.2008. That finding has to be rendered independently of whether the defendant had established the lease in his favour, as contended by him; (ii) The defendant had already obtained a relief of injunction by a decree in RW-3/A and the judgment in RW-3/D and the possession of the defendant that was protected in a civil suit cannot be upset by a C.R. Nos.4762 & 6259 of 2002 (O&M) -6- summary suit filed under Section 6 of the Specific Relief Act; (iii) The so-called documents of lease produced by the plaintiffs to prove their alleged possession of the property had been fabricated for the purpose of the case and the Court had not properly considered the same; (iv) The alleged forcible dispossession of the plaintiffs had taken place on 05.08.1998 but the plaintiffs themselves had filed the suit only on 14.01.1999, which was most unnatural and they had not even given a police complaint, when the police post was in the immediate vicinity of the shop. The finding rendered by the trial Court was, therefore, perverse. VI. The response by respondents/plaintiffs: 10. Sh. Pawan Kumar, Senior Counsel appearing on behalf of the plaintiffs would support the judgment of the trial Court and point out at the outset the questionable conduct of the defendant in firing from both the ends of the barrel, by filing an appeal before the District Court and also filing a revision before this Court and finding that the appeal had been dismissed, approaching this Court for interim orders without disclosing the result of the appeal before the Additional District Court. He would also join issues on the contentions raised regarding the alleged trespass by the defendant by pointing out that the lease had been granted in favour of plaintiffs by Kanwaljit Singh and both original and the copy of the lease deed had been produced C.R. Nos.4762 & 6259 of 2002 (O&M) -7- and the trial Court had dealt with the genuineness of the lease deed. According to him, findings regarding possession of the plaintiffs by examining the quality of witnesses PW-2 and PW-3 were essentially questions of fact, which would not be susceptible for reconsideration in revision. Further, the defendant himself had not proved his alleged possession before 05.08.1998 by production of any lease deed or by examining Kanwaljit Singh and the trial Court's approach regarding the failure of the defendant to prove his possession before 05.08.1998 was on a due consideration of sifting of evidence on both sides and there had been no error committed by the trial Court in allegedly placing the burden of proof on the defendant, as wrongly contended by the senior counsel for the revision petitioner. VII. Scope of suit under Section 6 of the Specific Relief Act: 11. The action under Section 6 of the Specific Relief Act is a summary remedy that recognizes the principle that possession is nine points in law and a person who is in settled possession shall not be dispossessed except by due process of law. A person that seeks relief by resort to this provision proves no claim to proprietary title but places his own possessory title as a weapon to get back what he has lost through process of Court. To that extent, the law relieves a person, who applies to the Court under this Section from having to prove any right to possession as such, but only looks to the fact of possession in whatever manner obtained and directs a person, who had displaced him, if such a fact is proved, to restore such possession and file an appropriate civil action where issues of title and the lawful entitlement of the respective parties are to be adjudicated. C.R. Nos.4762 & 6259 of 2002 (O&M) -8- VIII. Poser: can a defendant who has a decree for injunction be said to have caused dispossession of plaintiff without his consent: 12. In this case, the resort to an action by the plaintiffs for recovery of possession is made on the ground that the plaintiffs were themselves in possession of the property under lawful lease created by one Kanwaljit Singh and the possession was wrested from them, not by their own landlord Kanwaljit Singh but was dispossessed by an utter trespasser, who had obtained an order of status quo through an interim order, which order was also vacated initially but, however, a decree was granted in favour of the defendant subsequently. The point which the trial Court dealt with was, that a decree for injunction obtained by the defendant that protected his possession otherwise than by due process of law did not exclude a right of recovery of possession through the instant suit filed by the plaintiffs. Since the relief under Section 6 itself is summary, the most crucial issue would be whether a decree obtained by the defendant through a Civil Court could be upset by summary for recovery of possession. 13. The decision of the Civil Court rendered in the earlier civil suit filed on 05.08.1998 in Civil Suit No.144 was admittedly in relation to the very same property by the defendant herein, who figured as plaintiffs in that suit. It should be remembered that the institution of the suit came to be prior to the suit instituted by the plaintiffs in this case. The final decision in Civil Suit No.144 of 1998 was also rendered on 25.09.2001, which was again earlier in point of time to the decree that was rendered in this case, which is the subject of revision before this Court. The impugned judgment was delivered C.R. Nos.4762 & 6259 of 2002 (O&M) -9- on 04.05.2002. In the suit filed in Civil Suit No.144 of 1998, one of the issues was whether the plaintiff (defendent herein) was entitled to relief of injunction. The relief sought for was for permanent injunction restraining the defendants from dispossessing the plaintiffs from the portion that is show window of Shop No.89-90-91, adjacent to the show window of Fiesta, Sector 17-D, Chandigarh where the plaintiff alleged was selling articles of day-to-day use like caps, belts, goggles etc. and also for relief of declaration that the plaintiff was tenant in the show window having approximately length 11', height 5.10' and approximately width of more than 2 ½' for the last more than 15 years. It is admitted on both sides that this suit was in relation to the very same property, which is the subject matter of revision and in respect of which the plaintiffs herein had sought the relief of recovery of possession. The Court, while disposing of the case, found after allowing the parties to adduce full evidence relating to the lease that the defendant would not dispossess the plaintiffs without due process of law. The Court had come to the conclusion while deciding the issue No.1 that since it was admitted that the plaintiff (defendant in the present suit) was in possession of the property and that the plaintiff claimed to be a tenant, the plaintiff could not be dispossessed, except by due process of law. The Court denied the relief of declaration on the ground that Kanwaljit Singh, who was purported to have inducted the plaintiff in possession had not been made a party and therefore, the relief of declaration was denied. IX. Answer to the question raised: 14. In my view, the suit suffers from a fundamental vice that it C.R. Nos.4762 & 6259 of 2002 (O&M) -10- treated the summary suit filed under Section 6 as a suit that was competent to decide the relief for recovery of possession in a case where party admittedly in possession had obtained a decree for injunction. The Civil Court's decree granted in a suit instituted earlier, although decided later, could not have been allowed to be subjected for reappraisal or the possession of the defendant in the present case could not have been upset in a summary suit under Section 6 of the Specific Relief Act. Even, as I had already held that the resort to this provision would be available only against a person, who had without consent dispossessed the plaintiffs otherwise than in due course of law. A person, who has in defence a civil court decree protecting his possession could not be said to have caused an unlawful entry into possession or unlawfully taken the plaintiffs' possession. There have been cases where the person who voluntarily delivers possession to another has been held to be not entitled to invoke this section. In Balan Vs. Abhiramashwaraswamy Temple rep. by Managing Trustee (2002) 2 MLJ P 675, the Madras High Court had held that the tenant who had surrendered possession to a purchaser from his landlord was held not entitled to resort to this section. In Shamsunder Rao Vs. Sri Saraswati Vidya Peetham (2002) 4 ALT 645, the Andhra Pradesh High Court held that the plaintiff who delivered possession voluntarily on a promise by defendant to re- deliver possession, cannot later sue for possession under this section, complaining of breach of promise by defendant to re-deliver possession. Similarly, the plaintiffs who have suffered a decree for injunction at the hands of the defendant cannot apply under this C.R. Nos.4762 & 6259 of 2002 (O&M) -11- section, for the defendant's act of dispossession could not be construed as an act otherwise than in due course of law. 15. The point, which was found by the trial Court that the civil court decree obtained by the defendant in Civil Suit No.144 of 1998 could be defeated by the plaintiffs' summary suit is, in my view, not a correct application of the provisions of Section 6 of the Specific Relief Act. The suit should have been dismissed on a preliminary point that the plaintiffs could not be said to be unlawfully dispossessed since the defandant had a lawful civil court decree to protect his possession. The decision of the trial Court requires an intervention only on this short ground. X. The plaintiffs' prior possession, a sine qua non to the summary suit- whether established? 16. However, I do not propose to rest the case on a preliminary point having regard to the extensive arguments made by the respective Senior Counsel appearing for the revision petitioner and the respondents. The most powerful plank that the revision petitioner was using to assail the judgment of the trial Court was its approach in trying to find out whether the defendant had proved his possession even prior to 05.08.1998 when it should have, on the other hand, seen whether the plaintiffs had established their possession prior to that date for, it is the unlawful ejectment by the defendant that would give the cause of action for the plaintiffs. Two factors stand out: The so- called dispossession was made on 05.08.1998 by allegedly taking advantage of an interim order passed by Civil Court and no action of the plaintiffs came to be taken for nearly five months till the time of institution of suit on 14.01.1999. There was not even a complaint to C.R. Nos.4762 & 6259 of 2002 (O&M) -12- the police nor any notice complaining of dispossession and no whimper of protest by the plaintiffs till the suit was instituted. This is all the more relevant, since even the interim order, which was granted in Civil Suit No.144 of 1998 was vacated immediately after the plaintiffs entered contest. I have not heard any justification from the learned Senior Counsel appearing for the respondents except to state that the law provided for a period of six months for institution of the suit and the suit was in time. The issue is not merely whether the suit was in time but whether the conduct of the plaintiffs established the case of unlawful ejectment alleged to have been caused by the defendant. I find that the conduct of the plaintiffs is incompatible with a true case of the plaintiffs being allegedly thrown out by the defendant by unlawful entry. Rather the conduct shows otherwise. The finding could not have been that the defendant had unlawfully thrown out the plaintiffs, when he had actually resorted to a civil action for injuction. The only remedy shall be to file a proper suit for recovery of possession on the right of entitlement under the so-called lease obtained in their favour from Kanwaljit Singh and not a short cut method of a summary remedy. It is difficult to support the conduct of the plaintiffs as espousing the cause of truth that this case demands. It is, on the contrary, a concealment of the truth by resorting to summary action for recovery of possession. XI. Documents of lease relied on by plaintiffs, suspicious: 17. The trial Court that was dealing with the issue of possession of plaintiffs only on the basis of the evidence of PWs 2 & 3 and that the defendant had not any document of lease from Kanwaljit Singh, C.R. Nos.4762 & 6259 of 2002 (O&M) -13- was riding on a wrong approach. The trial Court ought to have asked the question as to how the plaintiffs were trying to establish their possession before 05.08.1998 and whether the documents filed in support of such a contention was worthy of acceptance. The learned Senior Counsel appearing on behalf of the revision petitioner pointed out that even the lease deeds that had been produced in Court, which were copies in the first place, and on being subject to objections for reception of the said documents, came the production of the originals of the documents. These showed that the copies were not true copies of the originals and the originals themselves could not be true and there were intrinsic materials to show that they were fabricated for the purpose of the case. The copy of the rent deed dated 23.10.1996 under the terms of which the plaintiffs' lessor was said to have been granted possession contained signatures of Kanwaljit Singh and Baba Tirath Singh in the first page both alongside the recitals and beneath the recitals. The original that was produced subsequently, which was marked as Ex.P-1/A contained the signature of Kanwaljit Singh alongside the rent deed, which on a bare look seems different from the signature found in the copy. At the second page of the rent ded in the copy, Baba Tirath Singh is shown to have signed "for Gurmeet Singh" but in the original, Ex.P-1/A (at page 87), it is found beneath reference to "for Gurmeet Singh", the signature of Gurmeet Singh itself has been affixed. Evidently, the copy that was filed is not a true copy of the document filed and produced on 26.02.2001. Again a copy of the rent deed dated 10.07.1998 produced by the plaintiffs does not tally with the original Ex.P-2/1 produced on 26.02.2001. The C.R. Nos.4762 & 6259 of 2002 (O&M) -14- signatures as found alongside the recitals in the copy of the rent deed are not the same as found in the original. These differences, according to the learned Senior Counsel appearing for the revision petitioner, show that the plaintiff had a number of documents prepared and when they found that they could not establish the so-called tenancy by production of copies, produced documents puporting to be originals but they disclosed the plaintiffs' duplicity. XII. Patent discrepancies verifiable by ocular observation cannot be shut out on revision: 18. In revision, I would not have undertaken the task of perusing the documents for defects unless they were so patent for ocular observation that it becomes possible to infer that the trial Court had omitted to do what it was bound to have done in a case where the defence for the documents of lease produced by the plaintiffs was that they were fabricated for the purpose of the case. Section 73 of the Indian Evidence Act empowers the Court to compare the signatures in document to vouch for their genuineness. This power is available not only to the trial Court but also to the High Court in revision. The Bombay High Court had invoked the power, exercising its jurisdiction under Article 226 of the Constitution in Shurjunnisa Vs. Maruti Sakkaram reported in 2001 (4) Mh LJ 272. The Hon'ble Supreme Court itself undertook the exercise of comparison of signautres, making reference to the power under Section 73 of the Evidence Act in Ajit Savant Majagrai Vs. State of Karnataka reported in (1997)