Specific Relief Act, 1963 : Section 4l(j) Injunction-Grant of-Whether discretionary and equitable relief-Plaintiff must have personal interest-Right not in existence cannot be protected by injunction-Injunction cannot be is-sued against true owner or in favour of a tres-passer. Certain lands were acquired for the railways. The award given by the Collector became final and the possession of the land was also handed over to the railways. As a result of these acquisition proceedings the original land owners were divested of their title and had interest to alienate the land acquired. However the petitioners filed a suit for declaration that they were successors in title to certain lands of defendants Nos. 3 and 4 and for injunction not to interfere with their possession, Their case was that defendants No. 3 and 4 purchased the land from the original land owners under a sale-deed dated August 21,1966 and that on January 21, 1973 the said defendants entered into an agreement of sale with the petitioners and also handed over the possession of the land to them. The Trial Court held that the petitioners were in possession of land but a Single judge of the High Court dismissed the petitioners' suit The Division Bench of the High Court also dismissed the petitioner's appeal holding that possession was handed over to the railways and the railways had been in possession of the land. Against the decision of the High Court, Special Leave Petition was filed in this Court.
Code of Civil Procedure, 1908-Order 39-Injunction-Suit for injunction by plaintiff claiming ownership and possession of suit land-Court granted injunction on the basis of possession without considering whether plaintiff had title to the suit land-Cannot be granted without proof of title. Specific Relief Act, 1963-Section 6-Applicability of-Object of-Provides speedy remedy to a person ousted from possession without due process of law-Previous possession and dispossession must be pleaded-Not applicable to suit for injunction based on title and possession. Mutation Entry-Cannot be a source of title. The respondent filed a suit for injunction against the appellant claiming ownership and possession of the suit land. The respondent failed to produce any sale deed to establish his title over the suit land, but instead relied on certain revenue entries. The suit was dismissed by the trial court holding that the respondent had failed to prove that he was the owner of the suit land and was in possession thereof. On appeal, the first appellate court reversed the finding of the Trial court and decreed the suit holding that the material placed on record showed the possession of the respondent over the suit land. The appellate court did not examine whether the respondent had any title over the suit land or not, while allowing the appeal on the basis of its finding in respect of possession of the respondent over the suit land. The appellate court held that the respondent's title to the land had been admitted by the appellants. The second appeal of the appellant was dismissed by the High Court in limine. The review petition filed by the appellant was also dismissed by the High Court. Hence, the present appeal. Before, this Court, the respondent, apart from other arguments, urged that the suit filed by the respondent can be considered as a suit for possession and dispossession under Section 6 of the Specific Relief Act, 1963.
Specific Relief Act, 1963 : Section 38. Suit filed by appellant restraining respondent from interfering with his possession and enjoyment of land-Respondent pleaded that his predecessor in title had purchased the land and that no perpetual injunction could be granted against him, he being a true owner-Trial Court and Appellate Court found that appellant was in possession and enjoyment of disputed property and accordingly granted perpetual injunction-High Court set aside the decrees of Courts below-Appeal-
Suit: Suit for permanent injunction-Restraining the defendants from interfering in possession of suit property-Duty of Court-Held: Court has to merely decide whether plaintiff is in possession or not and not ownership of title to the suit property-Specific Relief Act, 1963-s.38. Appellants filed a suit for a permanent injunction restraining the respondents from interfering in the possession of the land in dispute as also from interfering in the construction of the boundary wall, on the ground that the disputed land was in their possession since long and utilized by them for different household purpose. Trial Court decreed the suit. Appellate Court set aside the decree holding that the appellants had failed to prove that disputed land was owned by him and that the boundary wall was constructed by them. High Court upheld the same. In appeal to this Court, appellants contended that the suit was only for permanent injunction and not for declaration of ownership and, therefore, lower appellate court had erred in holding that the appellants had failed to prove their title to the disputed land.
Arbitration and Conciliation Act, 1996-Section 9: Interim prohibitory/mandatory injunction-Grant of-Held-It is governed by Specific Relief Act, 1963 and well known concepts of balance of convenience, prima facie case, irreparable injury and interim measure appearing to court to be just and convenient-Section 9 was not de hors them-It was more so since a right to approach ordinary court was given without providing a special procedure in that behalf-Approach that at initial stage only existence of arbitration clause need be considered is not justified. One party obtaining mining lease from Government and contracting with another for raising ore on its behalf-Notice by former to latter purporting to terminate contract on ground that contract was violative of Rule 37 of Mineral Concession Rules, 1960 and there was danger of their losing rights as a lessee, and also asking latter to remove their workmen and equipment from site-The latter alleging that pursuant to contract it had mobilized huge resources for extraction of mineral and incurred losses, moved District Court under Section 9 for injunction restraining termination of contract and dispossession from site of mines-District Court refusing it but High Court granting it-Correctness of-Held-Whatever might be reasons for termination of contract, a notice had been issued regarding same and in terms of Order XXXIX Rule 2 of Code of Civil Procedure, 1908, an interim injunction could be granted restraining breach of contract-To that extent, there was a prima facie case-However, it was possible to assess compensation payable to latter if their claim was upheld by arbitrator-Though the former could not enter into a similar transaction with any other entity since that would also entail violation of Rule 37 there was no justification in preventing them from carrying on mining operations by themselves as that would not prejudice the latter who in case of success of their claim were entitled to get compensation for termination of contract-Question of application of Rule 37 left to be decided by arbitrator. Arbitration-Precedent-Other arbitral award-Held-Court is not concerned with what arbitrator who may be appointed will hold in impugned case and not what some other arbitrator held in some other arbitration and some other contract even if it be between same parties-Moreover, Court could not be bound by what an arbitrator might have held in an arbitration proceeding unless it be that the said award operates as a bar between the parties barring either of them from raising a plea in that behalf. O.M.M. obtained a mining lease from the Government and entered into a contract with AS for raising the ore on its behalf. However, a few months thereafter, O.M.M. issued a notice to AS purporting to terminate the contract and asking them to remove their workmen and equipment from the site. According to O.M.M., it had realized that its contract with AS was violative of Rule 37 of the Mineral Concession Rules, 1960 and since there was danger of itself losing its rights as a lessee, the contract had to be terminated. AS alleged that pursuant to contract it had mobilized huge resources for the extraction of the mineral and incurred losses, and moved the local District Court under Section 9 of the of the Arbitration and Conciliation Act, 1996 for an injunction restraining O.M.M. from terminating the contract and dispossessing it from the site of the mines. O.M.M. contested the application but the District Court allowed it. However, the High Court allowed the appeal of O.M.M holding that (i) in view of Section 14(3)(c) of the Specific Relief Act, 1963 the loss, if any, that may be sustained by AS, could be calculated in terms of money; (ii) the question of balance of convenience for grant of injunction was not required to be gone into as it was otherwise not a fit case for grant thereof. However, the High Court also held that prima facie neither Rule 37 ibid nor Section 14(1)(c) of the Act of 1963 were applicable to the facts of the case. Feeling aggrieved thereby, both AS and O.M.M. filed the present cross appeals. AS contended that (i) Section 9 of the Act of 1996 was independent of Order XXXIX of the Code of Civil Procedure and Act of 1963; (ii) by way of an interim measure, the court could pass mandatory or prohibitory order for the preservation of the subject matter of the arbitration agreement; (iii) until the arbitrator decided whether O.M.M. was entitled to terminate the contract and its consequences, the court had not only the power but the duty under Section 9 Act of 1996 to protect their contractual right to mine and lift the ore to the surface on behalf of O.M.M; (iv) if O.M.M. is permitted to enter into agreements with others for the same purpose, it would be unjust as it cancelled the agreement mainly because it was hit by Rule 37 ibid; (v) O.M.M. must be restrained from carrying on any mining operation in the mines concerned pending the arbitral proceedings. O.M.M. contended that (i) since neither Section 9 of the Act of 1996 nor any other of its provisions provided the conditions for grant of interim protection, the provisions of the Code of Civil Procedure and the Act of 1963 cannot be kept out while the court considers the question whether on the facts of a case, any interim protection should be granted; so, the court had necessarily to consider the well known restrictions on the grant of interim orders; (ii) grant of an injunction by way of interim measure to permit AS to carry on the mining operations pending the arbitration proceedings notwithstanding the termination of the contract by O.M.M. was not permissible in law. =2007 AIR 2563, 2007(8 )SCR213 , 2007(7 )SCC125 , 2007(9 )SCALE126 , 2007(9 )JT147 =Disposing of the appeals, the Court HELD 1.1. The grant of an interim prohibitory injunction or an interim mandatory injunction are governed by well known rules and it is difficult to imagine that the legislature while enacting Section 9 of the Act intended to make a provision which was de hors the accepted principles that governed the grant of an interim injunction. Same is the position regarding the appointment of a receiver since the Section itself brings in, the concept of 'just and convenient' while speaking of passing any interim measure of protection. The concluding words of the Section, "and the court shall have the same power for making orders as it has for the purpose and in relation to any proceedings before it" also suggest that the normal rules that govern the court in the grant of interim orders is not sought to be jettisoned by the provision. Moreover, when a party is given a right to approach an ordinary court of the country without providing a special procedure or a special set of rules in that behalf, the ordinary rules followed by that court would govern the exercise of power conferred by the Act. On that basis also, it is not possible to keep out the concept of balance of convenience, prima facie case, irreparable injury and the concept of just and convenient while passing interim measures under Section 9 of the Act. [Para 10] [224-E, F, G, H] American Jurisprudence, 2nd Edition referred to. 1.2. When the grant of relief by way of injunction is, in general, governed by the Specific Relief Act, and Section 9 of the Act provides for an approach to the court for an interim injunction, the relevant provisions of the Specific Relief Act cannot be kept out of consideration. For, the grant of that interim injunction has necessarily to be based on the principles governing its grant emanating out of the relevant provisions of the Specific Relief Act and the law bearing on the subject. Under Section 28 of the Act of 1996, even the arbitral tribunal is enjoined to decide the dispute submitted to it, in accordance with the substantive law for the time being in force in India, if it is not an international commercial arbitration. So, it cannot certainly be inferred that Section 9 keeps out the substantive law relating to interim reliefs. [Para 14] [227-F, G; 228-A] Nepa Limited v. Manoj Kumar Agrawal, AIR (1999) Madhya Pradesh 57 overruled. Coppee Levalin NV v. Ken-Ren Fertilisers and Chemicalsb, (1994) 2 Lloyd's Report 109 at 116) referred to. Dr. Banerjee in his Tagor Law Lectures on Specific Relief, referred to . Commentary on Interim and Conservatory Measures in ICC Arbitration Cases by Professor Lew; David Bean on Injunctions. , referred to. 1.3. It is true that the intention behind Section 9 of the Act is the issuance of an order for preservation of the subject matter of an arbitration agreement. It was open to the court to pass an order by way of an interim measure of protection that the existing arrangement under the contract should be continued pending the resolution of the dispute by the arbitrator. But, at the same time, whether an interim measure permitting Adhunik Steels to carry on the mining operations, an extraordinary measure in itself in the face of the attempted termination of the contract by O.M.M. Private Limited or the termination of the contract by O.M.M. Private Limited, could be granted or not, would again lead the court to a consideration of the classical rules for the grant of such an interim measure. Whether an interim mandatory injunction could be granted directing the continuance of the working of the contract, had to be considered in the light of the well-settled principles in that behalf. Similarly, whether the attempted termination could be restrained leaving the consequences thereof vague would also be a question that might have to be considered in the context of well settled principles for the grant of an injunction. Therefore, on the whole, it would not be correct to say that the power under Section 9 of the Act is totally independent of the well known principles governing the grant of an interim injunction that generally govern the courts in this connection. [Para 18] [229-B, C, D, E, F] 2. The approach that at the initial stage, only the existence of an arbitration clause need be considered is not justified. [Para 15] [228-A] The Siskina (1979) AC 210, Fourie v. Le Roux, (2007) 1 W.L.R. 320, referred to. 3.1. The question here is whether in the circumstances, an order of injunction could be granted restraining O.M.M. Private Limited from interfering with Adhunik Steels' working of the contract which O.M.M. Private Limited has sought to terminate. Whatever might be its reasons for termination, it is clear that a notice had been issued by the O.M.M. Private Limited terminating the arrangement entered into between itself and Adhunik Steels. In terms of Order XXXIX Rule 2 of the Code of Civil Procedure, an interim injunction could be granted restraining the breach of a contract and to that extent Adhunik Steels may claim that it has a prima facie case for restraining O.M.M. Private Limited from breaching the contract and from preventing it from carrying on its work in terms of the contract. [Para 20] [230-E, F] 3.2. The High Court has held that this was not a case where the damages that may be suffered by Adhunik Steels by the alleged breach of contract by O.M.M. Private Limited could be quantified at a future point of time in terms of money. There is only a mention of the minimum quantity of ore that Adhunik Steels is to lift and there is also uncertainty about the other minerals that may be available for being lifted on the mining operations being carried on. These are impoundables to some extent but at the same time it cannot be said that at the end of it, it will not be possible to assess the compensation that might be payable to Adhunik Steels in case the claim of Adhunik Steels is upheld by the arbitrator while passing the award. [Para 20] [230-F; 231-A] 4. O.M.M. Private Limited cannot enter into a similar transaction with any other entity since that would also entail the apprehended violation of Rule 37 of the Mineral Concession Rules, 1960, as put forward by it. It therefore appears to be just and proper to direct O.M.M. Private Limited not to enter into a contract for mining and lifting of minerals with any other entity until the conclusion of the arbitral proceedings. [Para 21] [231-B, C] 5. There is no justification in preventing O.M.M. Private Limited from carrying on the mining operations by itself. It has got a mining lease and subject to any award that may be passed by the arbitrator on the effect of the contract it had entered into with Adhunik Steels, it has the right to mine and lift the minerals therefrom. The carrying on of that activity by O.M.M. Private Limited cannot prejudice Adhunik Steels, since ultimately Adhunik Steels, if it succeeds, would be entitled to get, if not the main relief, compensation for the termination of the contract on the principles well settled in that behalf. Therefore, it is not possible to restrain O.M.M. Private Limited from carrying on any mining operation in the mines concerned pending the arbitral proceedings. [Para 22] [231-D, E] 6. There is considerable dispute as to whether Rule 37 of the Mineral Concession Rules, 1960 has application. The District Court and the High Court have prima facie come to the conclusion that the said Rule has no application. Whether the said Rule has application, is one of the aspects to be considered by the arbitrator or the Arbitral Tribunal that may be constituted in terms of the arbitration agreement between the parties. It is not proper for the Court at this stage to pronounce on the applicability or otherwise of Rule 37 of the Mineral Concession Rules, 1960 and its impact on the agreement entered into between the parties. Therefore, that question is left open for being decided by the arbitrator. [Para 19] [230-A, B, C] 7. The attempt made by O.M.M. Private Limited to rely upon some other arbitral award in support of its claim that Rule 37 of the Mineral Concession Rules, 1960 would apply, is neither here nor there. The Court is not concerned with what the arbitrator who may be appointed will hold in the present case and not what some other arbitrator held in some other arbitration and some other contract even if it be between the same parties. Moreover, the Court could not be bound by what an arbitrator might have held in an arbitration proceeding unless it be that the said award operates as a bar between the parties barring either of them from raising a plea in that behalf. [Para 19] [230-C, D] 8. The arbitration proceedings must be expedited. The application for appointment of an arbitrator made before the Chief Justice of the Orissa High Court under Section 11(6) of the Act is pending for over two years without orders. Normally, the Court would have requested the Chief Justice of the Orissa High Court or his nominee to take up and dispose of the application under Section 11(6) of the Act expeditiously. But the Court put it to the parties that it would be more expedient if we appoint an arbitrator in this proceeding itself, so that further delay can be avoided. The parties have agreed to that course. The Court, therefore, in the interests of justice appointed a sole arbitrator to adjudicate on the dispute between the parties. It was expected that the sole arbitrator would enter upon the reference and pronounce his award expeditiously. [Para 25] [232-B, C, D] Dushyant Dave and Shyam Divan, Sr. Adv., Smita Bankoti, Anirudh and Devendra Singh for the Appellant. C.A. Sundaram and Ranjit Kumar, Sr. Adv., Arvind Kumar, Laxmi Arvind, Mahesh Agarwal, Gopal Jain and Poonam Prasad for the Respondent.
Specific Relief Act, 1963 - s. 34 - Suit for declaration - Decreed by trial court and first appellate court - However, set aside by High Court on a finding that suit simpliciter for declaration is not maintainable u/s. 34 and the plaintiff should have filed a suit for possession - Held: Finding of the High Court that suit simpliciter for declaration is not maintainable u/s. 34, is not sustainable - In the suit, apart from a prayer for declaration there was a consequential prayer for a decree for permanent injunction as also an alternative prayer for decree for possession - Also, the issue relating to the maintainability of the suit in the present form was raised before the trial court and was not proved by the defendant and as such was decided against the defendant - Said issue was not raised before the first appellate court - The suit is not hit by s. 34 - Order of the High Court set aside and that of the first appellate court, restored. The trial court and the first appellate court decreed the suit for declaration filed by the appellant in respect of the land in question. In the Second Appeal, the High Court held that the suit simpliciter for declaration is not maintainable under Section 34 of the Specific Relief Act, 1963 and the appellant should have filed a suit for possession. Therefore, the appellant filed the instant appeal. =Allowing the appeal, the Court HELD: 1.1 From the plaint, it appears, prima facie, that apart from making a prayer for declaration there is also a consequential prayer for a decree for permanent injunction restraining the defendant from alienating the suit property or interfering in peaceful possession of the plaintiff. There is an alternative prayer for decree for possession also. From the prayers made in the plaint, it is clear that the consequential relief of permanent injunction was prayed, and before the trial court, the issue relating to the maintainability of the suit in the present form was raised but the same was not pressed by the defendant nor was any such question raised before the first appellate court. In that view of the matter, the finding of the High Court that the suit is merely for declaration and is not maintainable under Section 34 of the Specific Relief Act, cannot be sustained. Thus, the suit is not hit by Section 34 of the Specific Relief Act, 1963. [Paras 8, 9, 10, 11 and 13] [491-B-E-G] 1.2 The High Court set aside the concurrent finding of the courts below on an erroneous appreciation of the admitted facts of the case and also the legal question relating to Section 34 of the Specific Relief Act, 1963. Therefore, the order of the High Court is set aside and that of the first appellate court is restored. [Paras 14 and 15] [491-H; 492-A-B] Ram Saran and Anr. vs. Ganga Devi AIR 1972 SC 2685 - distinguished. Case Law Reference: AIR 1972 SC 2685 Distinguished Para 6 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1142 of 2003. From the Judgment & Order dated 26.08.2002 of the High Court of Punjab and Haryana at Chandigarh in R.S.A. No. 1806 of 2000. Devender Mohan Verma for the Appellant
so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner".
appointment of advocate - commissioner -when ?- Whenever there is a dispute regarding boundaries or physical features of the property or any allegation of encroachment as narrated by one party and disputed by another party, the facts have to be physically verified, because, the recitals of the documents may not reveal the true facts and measuring of land on the spot by a Surveyor may become necessary. It is always better if the parties are allowed to adduce evidence at the stage of trial for better appreciation of the facts which will help the Court in effectively deciding the main dispute between the parties. If there is some delay in filing the application to appoint an Advocate Commissioner and if there are some laches on the part of one party, the Court may impose reasonable costs, but it is not desirable to dismiss an application on the ground of mere delay in filing it. In the light of the above referred decisions, I am of the view that the impugned order does not sustain in the eyes of law.
supression of material facts - not entitled for any equitable reliefs?= In the instant case, the case of the plaintiffs is not specific as to the cause of intervention of the defendants over their possession in the suit land. The plaintiffs conveniently pleaded that the property is their ancestral property and that the respondents are interfering with their possession and enjoyment. It is very well established from the evidence adduced on either side that the suit land actually belongs to the Deity Sri Ramalingeshwara Swamy enshrined in Gumada village. It therefore seems to me that the plaintiffs purposefully suppressed the material fact viz., that the suit land belongs to the Deity. Having regard to the peculiar facts and circumstances of the present case, I would hold that the plaintiffs are not entitled for the equitable relief of injunction on account of the suppression of material fact as afore-stated and also that they cannot file a suit for bare injunction without the relief of declaration of title.
whether the deceased was in sound and disposing state of mind at the time of execution of the will. Admittedly, Late Sharadamba was admitted in hospital. Even according to P.W.1, he visited the hospital only on 22.12.1978. Subsequently, he did not visit the hospital. Admittedly, he did not direct any one of his family members to visit the hospital. Therefore, there is no direct oral evidence adduced on behalf of the plaintiff to show the health condition of Late Sharadamba. According to P.W.1, she was unconscious throughout his visit to the hospital. On behalf of P.W.1, P.W.2 has been examined. P.W.2 is working as Administrator in St.Anns Hospital, Vijayawada. According to him, Late Sharadamba was admitted in their hospital on 20.12.1978 and that the relevant entry is noted at Page 491 against Sl.No.17447 and the authenticated Xerox copy is marked as Ex.C.1. According to P.W.2, Late Sharadamba died on 01.01.1979 and the same is mentioned at page No.201 against Sl.No.4 of dead register and Ex.X.2 is the authenticated Xerox copy of that entry. After comparision with the originals, Exs.X.1 and X.2 were returned to the witnesses. According to P.W.2, as per the entries made in Ex.X.1 and X.2, Late Sharadamba was admitted in the hospital due to Cardio Vascular accident. According to him, Late Sharadamba was admitted in General ward. It is elicited in the cross-examination that the entries in the last column of the admission register were written with different ink from that of the entries noted in the other columns. The witness explained that the last column will be only filled at the time of discharge or death of the patient and, therefore, it may be with different ink. P.W.2 is not a medical professional. He is not a doctor who treated Late Sharadamba.
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