Appeal From Order No.850 of 2013,Civil Application No.1059 of 2013

10th December, 2013

Petitioner Counsel: Mr. SANDESH D. PATIL
Respondent Counsel: Mr. K.T. KUKREJA, i/b Mr. DEVANG H. SHAH

Cases Cited:
Kanai Lal Ghose Vs. Jatindra Nath Chandra, AIR 1918 Calcutta 925 (DB) [Para 5]
Meghji Jetha Shah Vs. Kalyanji Nanji Shah, AIR 1987 Bombay 273 [Para 5]
Nazimuddin M. Sayed Vs. Sourabha Cooperative Housing Society Ltd, N/M 2520/1994, Suit 4139/1994, Dt.10.10.1994 [Para 5]
Hawabai Vs. Abdul Sattar Suleman Haji Ahmed Oomer & Anr., 1995 AI HC 3062 [Para 5]
Shammi R. Chanana Vs. Kishore T. Idnani & Ors., NM.../1997, Suit 2809/1997, Dt.14.8.1997 [Para 5]
Chandra Kishore Jha Vs. Mahavir Prasad & Ors., (1999) 8 SCC 266 [Para 5]
Sanjay Kumar Pandey & Ors. Vs. Gulbahar Sheikh & Ors., 2004(5) ALL MR 542 (S.C.)=AIR 2004 SC 3354 [Para 5,10]
Anwar Faramosh Khan Vs. Mahendrakumar Jugalkishore Gupta, 2004(3) ALL MR 818=2004(3) Mh. L.J. 315 [Para 5]
Chetan Bhanuprasad Desai Vs. Rasiklal R. Zaveri, 2004(2) ALL MR 582 [Para 5]
Mr. Raghunath S. Singate Vs. Jayant Gajanan Pathak & Ors., 2011(6) ALL MR 756 [Para 5]
Super Candles & Anr Vs. Mahabir Candle Works & Anr., AIR 1997 Gau 57 [Para 5,10]
Vinita M. Khanolkar Vs. Pragna M. Pai & Ors., 1998(1) ALL MR 459 (S.C.)=(1998) 1 SCC 500 [Para 5,11]
Jain Spinners Ltd. Vs. Collector of Central Excise, 1998(4) ALL MR 75 (S.C.)=(1998) 1 SCC 502 [Para 5]
Metro Marins & Anr. Vs. Bonus Watch Co(P) Ltd. & Ors., (2004) 7 SCC 478 [Para 5,11]
Mehul Mahendra Thakkar Vs. Meena Mehul Thakkar, (2009) 14 SCC 48 [Para 5]

JUDGMENT

JUDGMENT :- The Appellants-Original Defendants have challenged order dated 28 March 2013 passed by the learned Civil Judge, Senior Division, Thane. The operative part of order is as under:

"1. Application is allowed.

2. Plaintiff is hereby appointed as a receiver in respect of suit property.

3. Defendant No.1 is directed to hand over peaceful and vacant possession of the suit flat to him within one month.

4. Appointed Court receiver is hereby directed to take possession of the suit property and maintain it property and preserve till the disposal of the suit. He is further directed not to create any third party interests in respect of suit property till disposal of the suit.

5. Plaintiff is hereby directed to act as agent of the Court receiver and preserve the property.

6. Cost in cause."

2. The RespondentOriginal Plaintiff has filed a suit under Section 6 of Specific Relief Act, 1963 for restoration of possession and for the damages on 2.8.2010. The Plaintiff-Respondent's case is that on 22.2.2010, someone broke open the lock and entered the flat and took away the Plaintiff's belongings and therefore the suit.

3. The Appellants appeared and filed a written statementcumcounter claim. The Appellants contended that they are residing in the premises since 20.11.2005, hence the question of dispossession of the Plaintiff on 22.2.2010 did not arise. They also expressed their readiness and willingness to perform their part of the contract on the basis of Agreement dated 30.7.2005. There are other various issues need to be considered not only of possession.

4. The RespondentPlaintiff filed an Application under Order 39 Rule 1 and 2 of Code of Civil Procedure (CPC) for an injunction and interim relief in July 2010. The same was resisted by a reply. The learned Judge, however, by impugned order dated 28 March 2013 granted the reliefs so prayed by practically after more than two and half years of filing of Application and though the suit is ready and ripen for final hearing/trial.

5. The learned Counsel appearing for the RespondentPlaintiff raised an objection about the maintainability of this Appeal from Order itself. He relied upon some judgments and has filed a written submission also.

1) Kanai Lal Ghose Vs. Jatindra Nath Chandra' AIR 1918 Calcutta 925 (DB)

2) Meghji Jetha Shah Vs. Kalyanji Nanji Shah AIR 1987 Bombay 273

3) Nazimuddin M. Sayed Vs. Sourabha Cooperative Housing Society Ltd, N/M 2520-1994 in Suit 4139/1994 dt.10.10.1994

4) Hawabai Vs. Abdul Sattar Suleman Haji Ahmed Oomer & Anr. 1995 AI HC 3062

5) Shammi R. Chanana Vs. Kishore T. Idnani & Ors NM.../1997 in Suit 2809/1997 dt.14.8.1997.

6) Chandra Kishore Jha Vs. Mahavir Prasad & Ors (1999) 8 SCC 266

7) Sanjay Kumar Pandey & Ors. Vs. Gulbahar Sheikh & Ors. AIR 2004 SC 3354 : [2004(5) ALL MR 542 (S.C.)]

8) Anwar Faramosh Khan Vs. Mahendrakumar Jugalkishore Gupta 2004(3) Mh. L.J. 315 : [2004(3) ALL MR 818]

9) Chetan Bhanuprasad Desai Vs. Rasiklal R. Zaveri, 2004(2) ALL MR 582

10) Mr. Raghunath S. Singate Vs. Jayant Gajanan Pathak & Ors. 2011 (6) ALL MR 756

The judgments cited and relied upon by the other side are as under:

1) Super Candles & Anr Vs. Mahabir Candle Works & Anr AIR 1997 Gau 57

2) Vinita M. Khanolkar Vs. Pragna M. Pai & Ors. (1998) 1 SCC 500 : [1998(1) ALL MR 459 (S.C.)]

3) Jain Spinners Ltd. Vs. Collector of Central Excise (1998) 1 SCC 502 : [1998(4) ALL MR 75 (S.C.)]

4) Metro Marins & Anr. Vs. Bonus Watch Co(P) Ltd. & Ors. (2004) 7 SCC 478

5) Mehul Mahendra Thakkar Vs. Meena Mehul Thakkar (2009) 14 SCC 48

6. Admittedly, the application under Order 39 Rule 1 and 2 of CPC once filed and decided, the remedy under the law to challenge the same is by invoking Order 43 Rule 1 of CPC. The submission that, in view of Section 6 of the Specific Relief Act the Appeal is not maintainable, is unacceptable for simple reason that the suit is not yet finally decided nor there is decree and/or final order is passed.

7. Section 6 of Specific Relief Act is relevant and thus reproduced it as under:

"6 Suit by person dispossessed of immovable property( 1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be bought( a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."

8. We are not concerned with the final decree and/or order passed under Section 6 of Specific Relief Act. We are concerned with the impugned order passed by the learned Judge under Order 39 Rule 1 and 2 of CPC. Therefore, the submission so made and citation so read and referred raising preliminary issue of maintainability of the Appeal from Order, in the present matter is rejected, as unsustainable. The present Appeal is maintainable.

9. The basic principle to pass a decree under Section 6 of Specific Relief Act and the maintainability of the Appeal thereafter, is settled position of law. After due trial in such suit, the Court if case is made out, requires to pass even mandatory order of restoring the possession through the Court Receiver and/or otherwise. The learned Judge is empowered to pass appropriate order in the background of facts and circumstances of the case. The judgments so cited are therefore distinguishable on facts itself. There was no such case and situation discussed and decided.

10. The summary enquiry in such summary suit and the bar of no review and/or appeal as specifically provided, which itself contemplates the final decision under Section 6 of the Act. The impugned order, as passed under Order 39 Rule 1 and 2 of CPC, after lapse of more than two and half months, pending Section 6 suit, therefore in my view, cannot be equated with the final decision contemplated in such summary suit. The court in a given case may entertain the revision under Section 115 of CPC and adjudicate the same (of Sanjay Kumar Pandey, [2004(5) ALL MR 542 (S.C.)] (supra). The impugned order, even if in Section 6 suit, still it is not final decree and/or decision in the suit. The provisions of CPC and the available remedy therefore cannot be overlooked and/or denied. (Super Candles - Supra).

11. The Apex Court in Vinita M. Khanolkar, [1998(1) ALL MR 459 (S.C.)] (supra) expressed, in spite of provision of Section 6(3) of the Specific Relief Act that an appeal before a Division Bench against an order passed by the Single Judge, is maintainable. In the present case, another factor is a grant of such interim mandatory injunction, pending the summary suit, after lapse of more than two and half years. Section 6 itself as recorded is a complete code and provides and deals with every aspect of restoration of possession. Having not passed any order within six months and/or at least earliest, such mandatory order therefore, is unsustainable as no case of urgency and/or case is made out unless the issues are resolved in the main suit itself. The delay in passing such mandatory order, itself a ground to interfere with the order, in view of above admitted position on record. No case of grant of such adinterim mandatory injunction after such lapse of time pending such Section 6 suit (Metro Marines-supra).

12. The reasons for delay, even if any, explained, but the fact of passing of such order even after framing the issues on 22.8.2012 and especially as the burden is upon the Plaintiff that he is in possession and the Defendants illegally dispossessed him because of cancellation of agreement dated 30.7.2005 on 25.12.2005. The issue is also with regard to the ready and willingness to perform part of the agreement. The impugned order so passed therefore is unsustainable at this stage of the proceedings. The Court may pass appropriate order after hearing the main suit itself as the matter is already ripen for the trial.

13. Resultantly, the following Order:

(a) Appeal from Order is allowed.

(b) Impugned order dated 28 March 2013 is quashed and set aside.

(c) The Suit is expedited and to be disposed of within three months.

(d) In the meanwhile, the parties to maintain statusquo with regard to the possession of the property.

14. Appeal from Order so also the Civil Application are disposed of. No costs.

Appeal allowed.