* HIGH COURT OF DELHI : NEW DELHI
RFA App. No.789/2006 & CM No.17561/2008
% Judgment reserved on: 30th April, 2009
Judgment delivered on:14th May, 2009
1. Davender Lal Mehta,
S/o. Late Shri Satyapal Mehta
R/o. A-100, Anand Vihar
New Delhi ....Appellant
Through: Mr. G.L. Rawal, Sr. Adv.
with Mr. Ankur Sethi,
Adv.
Versus
1. Sh. Dharmender Mehta,
S/o. Shri Davender Lal Mehta
R/o. D-135, Anand Vihar
New Delhi
2. Smt. Saroj Mehta,
w/o. Shri Davender Lal Mehta
R/o. D-135, Anand Vihar,
New Delhi
(Deleted vide order dt. 27/05/2008) Respondents.
Through: Mr. H.S. Arora, Adv. for
respondent No.1.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
RFA No.789-06 & CM No.17561/2008 Page 1 of 17
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
The appellant has filed this appeal against decree
and judgment dated 25th September, 2006, passed by
Sh. M.K. Gupta, Additional District Judge, Delhi, who
vide impugned judgment, dismissed the suit of the
appellant.
2. The brief facts of this case are that appellant is
the father of respondent No.1 and husband of
respondent No.2. He filed the present suit for
permanent injunction on 24th September, 1999, on the
allegations that, he is owner in possession of property
No. D-135, Anand Vihar, New Delhi and this property
has been acquired by him from his previous owner.
Respondent No.2 has been cruel towards him.
Sometimes on account of torture committed upon him,
he goes and sleeps in the house of his other son, Sh.
Bhupinder Mehta at A-144, Anand Vihar, New Delhi,
though appellant permanently resides in the property
RFA No.789-06 & CM No.17561/2008 Page 2 of 17
in question and all his goods and belongings are lying
there.
3. It has been further alleged that respondent No.1
is not permitting the appellant to enter the house,
though the appellant is owner in possession of the
property. Respondent No.1 is living in this property
illegally and without any authority of law and appellant
is thus entitled to damages for use and occupation of
the property by respondent No.1.
4. Appellant thus sought a decree for permanent
injunction in his favour, and against respondent No.1,
restraining him from entering upon, living or otherwise
keeping any of his goods in property in question. It
was also prayed that respondents be restrained from
causing any interference in the peaceful enjoyment of
the property by the appellant and his family members
and respondents be restrained from causing any
hindrance/interference in the egress and ingress of
appellant and his other son and his family, from
RFA No.789-06 & CM No.17561/2008 Page 3 of 17
entering upon the said property and from removing or
bringing in any goods and belongings of the appellant
and his other son.
5. In the written statement filed by the respondents,
it was stated that property in question was purchased
from the sale of golden jewellery belonging to
respondent No.2 and out of her savings. The appellant
under the garb of the present suit is claiming the
recoveries of the goods which are not permissible
under the law. As a matter of fact, the appellant is
residing with his elder son, Bhupender at A-144, Anand
Vihar, Delhi, while respondent No.2 is residing with
respondent No.1 in the property in question. It has
been denied by the respondents that appellant is in
possession of the suit property. Respondent No.1 is
living in the suit property in order to look after his
aged and willing mother namely respondent No.2. The
appellant has no right over the suit property as the
same belongs to respondent No.2.
RFA No.789-06 & CM No.17561/2008 Page 4 of 17
6. The trial court framed following issues;
“1. Whether the suit is not maintainable
as mentioned in Preliminary Objection
No.1 of the written statement?(OPD)
2. Whether the suit is not property valued
for the purpose of court fees and
jurisdiction? OPD
3. Whether the suit is barred U/s 41(h) of
Specific Relief Act? OPD
4. Whether the property in question was
purchased from the sale proceedings of
bulk of Golden Ornaments belonging to
defendant no.2? If so to what effect?
(OPD)
5. Whether Plaintiff is entitled to decree
of permanent injunction as prayed?
6. Relief.”
7. After framing of issues, appellant led evidence.
Thereafter, an application under Order 23 Rule 3 CPC
dated 27th October, 2005 for compromise was filed and
matter between appellant and respondent No.2 was
compromised.
RFA No.789-06 & CM No.17561/2008 Page 5 of 17
8. Trial court thereafter, held that though the case
has reached at the stage of recording of the evidence
of respondent but it heard the counsel for the parties
at length on the point of maintainability of the suit,
considering the prayers made by the appellant in the
suit.
9. As regard the first prayer of the appellant, it held
that the present suit is only for permanent injunction
on which court fee has been paid accordingly.
Appellant and the contesting respondent, are the
father and son and considering the status of the
parties, title is not going to be decided in the present
suit. It further held, that the appellant under the guise
of injunction is seeking possession from respondent
No.1 and thus the same relief cannot be granted to the
appellant and proper remedy for appellant is to file a
suit for possession against respondent.
10. The court further held that as another equally
efficacious remedy available to the appellant is to file a
RFA No.789-06 & CM No.17561/2008 Page 6 of 17
suit for possession, the suit for permanent injunction is
not maintainable and consequently, it dismissed the
suit of the appellant.
11. It has been contended by learned counsel for the
appellant that no doubt under Order 14 Code of Civil
Procedure, it is open for the Court to frame
preliminary issue but only those issues which pertains
to question of law. The trial court thus mislead itself
while dismissing the present suit on the premise of
impugned order, without appreciating that there was
no preliminary issue between the parties.
12. Learned counsel further contended that the suit
cannot be decided suo moto at the instance of the
court, much less when the issues relate to mixed
question of law and fact.
13. Another contention is that the trial court failed to
appreciate the pleadings set out in the plaint and the
stand taken and that too specifically set out in details
that appellant has been and continued to be in actual
RFA No.789-06 & CM No.17561/2008 Page 7 of 17
and physical possession of the subject property and so
highlighted from the record of the Local Commissioner
and otherwise, there was no occasion for appellant to
file suit for possession.
14. Learned counsel for the appellant also contended
that appellant has already moved an application for
amendment and appellant wants to amend his
pleadings and convert his present suit, to a suit for
recovery of the possession.
15. On the other hand, it has been argued by learned
counsel for respondent that no ambiguity or infirmity
can be found with the judgment of the trial court, since
appellant, admittedly, filed a suit for permanent
injunction against respondent No.1, though as per
averments made in the plaint, respondent No.1 is in
possession of the suit property. When respondent No.1
is in possession of the suit property, the suit for
permanent injunction simpliciter is not maintainable.
RFA No.789-06 & CM No.17561/2008 Page 8 of 17
16. As far as amendment of the plaint is concerned, it
is contended by learned counsel for the respondent
that when appellant had got equally efficacious remedy
available under the law, he cannot be permitted to
amend his suit for permanent injunction to a suit for
recovery of possession and moreover, proviso to Order
6 Rule 17 CPC as amended in 2002, prohibits allowing
of amendment of pleadings, after commencement of
the trial.
17. As regards framing of a preliminary issue is
concerned, it is admitted by the appellant that the
defendant no.1 is in occupation of the suit premises
and when a fact is admitted by a party to the suit, the
same need not be proved or evidence be adduced for
the same fact, as per Section 58 of the Indian Evidence
Act, 1872. This section reads as under:
“Section 58 – Facts admitted need
not be proved:-
No fact need to be proved in any
proceeding which the parties thereto
or their agents agree to admit at theRFA No.789-06 & CM No.17561/2008 Page 9 of 17
hearing, or which, before the
hearing, they agree to admit by any
writing under their hands, or which
by any rule of pleading in force at the
time they are deemed to have
admitted by their pleadings:
Provided that the court may, in its
discretion, require the facts admitted
to be proved otherwise than by such
admission.”
18. Even if some evidence has been adduced, still the
court can decide the issue as preliminary issue, as to
maintainability of suit. See Madras High Court in S.G.
Badrinath v. V. Jagannathan and another, AIR
2004 Mad 161, where it was held that;
“Issue at jurisdiction of a Court could
not be said to be purely an issue of
law, some cases issue involved mixed
questions of fact and law. Merely
because some evidence was required
to be taken an issue could not be
refused to be tried as preliminary
issue such as an issue regarding
jurisdiction or maintainability of suit
or Court-fee. However, Courts could
try issue as preliminary issue only if
the facts are independent and self-
contained and do not have anyRFA No.789-06 & CM No.17561/2008 Page 10 of 17
bearing on the facts which may arise
for consideration of the suit.”
19. Thus, the trial court was justified in deciding as to
whether a suit for injunction or possession is
maintainable or not.
20. Now the question arises as to whether in a suit
for injunction, possession can be claimed or not.
Supreme Court in Anathula Sudhakar v. P.Buchi
Reddy (dead) by LR’s and others, AIR 2008 SC
2033 held;
“To summarize, the position in
regard to suits for prohibitory
injunction relating to immovable
property, is as under:
(a) Where a cloud is raised over
plaintiff’s title and he does not have
possession, a suit for declaration and
possession, with or without a
consequential injunction, is the
remedy. Where the plaintiff’s title is
not in dispute or under a cloud, but
he is out of possession, he has to sue
for possession with a consequential
injunction. Where there is merely an
interference with plaintiff’s lawfulRFA No.789-06 & CM No.17561/2008 Page 11 of 17
possession or threat of dispossession,
it is sufficient to sue for an injunction
simpliciter.
(b) As a suit for injunction simpliciter
is concerned only with possession,
normally the issue of title will not be
directly and substantially in issue.
The prayer for injunction will be
decided with reference to the finding
on possession. But in cases where de
jure possession has to be established
on the basis of title to the property,
as in the case of vacant sites, the
issue of title may directly and
substantially arise for consideration,
as without a finding thereon, it will
not be possible to decide the issue of
possession.
(c) But a finding on title cannot be
recorded in a suit for injunction,
unless there are necessary pleadings
and appropriate issue regarding title
[either specific, or implied as noticed
in Annaimuthu Thevar v. Alagammal
(AIR 2005 SC 4004)]. Where the
averments regarding title are absent
in a plaint and where there is no
issue relating to title, the court will
not investigate or examine or render
a finding on a question of title, in a
suit for injunction. Even where there
are necessary pleadings and issue, if
the matter involves complicatedRFA No.789-06 & CM No.17561/2008 Page 12 of 17
questions of fact and law relating to
title, the court will relegate the
parties to the remedy by way of
comprehensive suit for declaration of
title, instead of deciding the issue in
a suit for mere injunction.
(d) Where there are necessary
pleadings regarding title, and
appropriate issue relating to title on
which parties lead evidence, if the
matter involved is simple and
straight-forward, the court may
decide upon the issue regarding title,
even in a suit for injunction. But such
cases, are the exception to the
normal rule that question of title will
not be decided in suits for injunction.
But persons having clear title and
possession suing for injunction,
should not be driven to the costlier
and more cumbersome remedy of a
suit for declaration, merely because
some meddler vexatiously or
wrongfully makes a claim or tries to
encroach upon his property. The
court should use its discretion
carefully to identify cases where it
will enquire into title and cases
where it will refer to plaintiff to a
more comprehensive declaratory
suit, depending upon the facts of the
case.”
RFA No.789-06 & CM No.17561/2008 Page 13 of 17
21. Section 41 of Specific Relief Act, 1963, lays down
the condition when an injunction can be refused. The
relevant provision of this Section for the purpose of the
present case is S.41 (h) which reads as under;
“S. 41. Injunction when refused.-
An injunction cannot be granted-
(a) to (g) xxx xxx xxx xxx xxx
(h) when equally efficacious relief
can certainly be obtained by any
other usual mode of proceeding
except in case of breach of trust;
(i) & (j) xxx xxx xxx xxx xxx”
22. Admittedly, respondent No.1 is in possession as
per appellant’s own case. Therefore, proper remedy
for appellant was to file suit for possession with
injunction. The present suit simpliciter for injunction,
is not maintainable and as such, I do not find any
infirmity in the impugned judgment of the trial court
and the present appeal is not maintainable and is liable
to be dismissed.
RFA No.789-06 & CM No.17561/2008 Page 14 of 17
+CM No.17561/2008
*
23. By way of present application, the appellant seeks
to amend his plaint. He wants to convert the present
suit of injunction into a suit for recovery of possession,
with consequential relief of injunction.
24. The present suit was filed on 23rd September,
1999. During pendency of the suit, appellant filed an
application under Order 39 Rules 1 & 2 CPC. On 19th
July, 2002, while disposing of the application, it was
observed by B.N. Chaturvedi, J. that;
“Since the defendant No.1 has,
admittedly, been in occupation of the
suit premises, even if he is an
unauthorized occupant, the plaintiff
cannot seek to recover possession
from him simply by seeking a
permanent restraint order against
him from entering upon the suit
property or living therein or keeping
any of his goods there. The proper
remedy would be to bring a suit for
recovery of possession from him.”
25. In spite of this finding given by this Court, the
appellant continued with his suit for permanent
RFA No.789-06 & CM No.17561/2008 Page 15 of 17
injunction. Trial court ultimately dismissed the suit of
the appellant on 25th September, 2006. Thereafter
appellant filed the present appeal and now in the year
2008 only, during the pendency of the present appeal,
appellant filed the present application.
26. As per averments made in the suit for injunction,
cause of action arose on or about 30th August, 1999.
The present application for amendment has been filed
after more than nine years, after filing of the suit for
injunction. In spite of order dated 19th July, 2002,
passed by this Court making observation “that the
proper remedy would be to bring the suit for recovery
of possession”, the appellant, even thereafter did not
amend his plaint.
27. Under these circumstances, I hold that present
application for amendment of the plaint is hopelessly
time barred and there is considerable delay and
latches in filing of this application. Accordingly,
application for amendment is also not maintainable.
RFA No.789-06 & CM No.17561/2008 Page 16 of 17
28. In view of the above discussion, I hold that the
present appeal as well as application for amendment
are not maintainable and the same are hereby
dismissed with costs of Rs.20,000/-.
29. Costs be paid by the appellant to respondent
No.1, within one month from today, failing which the
trial court shall recover the same, in accordance with
law.
30. Trial court record be sent back.
14th May, 2009 V.B. GUPTA,
J.
rb
RFA No.789-06 & CM No.17561/2008 Page 17 of 17