At the time of determination of an application for temporary
injunction, the factum of possession would only be the relevant factor. Whether
the possession is lawful possession or not would not be the subject matter of
enquiry. Whether the amount of consideration has been paid or not, whether the
plaintiff was ready and willing to perform his part of contract or not, would all be
the issues which can be decided only after the parties adduce evidence. It would
be premature at this stage to give findings on the said issues.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 31 OF 2010
Baban Anantrao Naik
V E R S U S
sau pramila uttamrao yenare
CORAM : S.V. GANGAPURWALA, J.
DATE : 12/10/2010
Citation; 2011(6) ALL M R 15 Bom
1.
This Court vide its Order dated 02/03/2010 had ordered issuance of
notice to the respondents with an indication that the Appeal would be finally
heard at the stage of admission. With the consent of the learned counsel for the
parties, the Appeal is heard finally at the stage of admission.
2.
Heard Mr. N.V
. Gaware, the learned counsel for the appellant and
Mr. V
.D. Hon, the learned counsel for the respondents.
3.
The present appellant has instituted Special Civil Suit No. 47 of
2009 for specific performance of contract and for declaration that the sale deed
dated 05/12/2008 executed by defendant no. 1 in favour of defendant no. 2 is
illegal, null and void and also for perpetual injunction. Along with the said Suit,
the present appellant also filed an application for temporary injunction ( Exh. 5)
restraining the respondents from interfering with the possession of the appellant
in the suit premises.
In pursuance to the suit summons and the notices, the present
4.
respondents appeared and contested the Suit and the application ( Exh. 5 ) by
filing Written Statement. The Civil Judge (Sr. Division), Ahmednagar vide Order
dated 11/01/2010, rejected the temporary injunction application. The appellant
has assailed the said order in the present Appeal from Order.
Mr. Gaware, the learned counsel for the appellant contended that at
5.
the stage of determination of an application for temporary injunction, only the
factum of possession is relevant. The Court has dilected itself on the validity of
the transactions about the payment of consideration amount. All these factors can
be proved only after adducing evidence and at the time of the final trial.
According to him, the trial Judge has not considered the factum of possession at
all. On the contrary, in para no. 5 of its order, the trial Court has accepted that the
plaintiff is doing the business of automobiles in the suit shop. But, on the premise
that the plaintiff has failed to prove his lawful possession, has negatived the relief
of injunction.
7.
Per contra, Mr. Hon, the learned counsel for the
respondents/original defendants contended that the trial Court has rightly
considered all the aspects. The plaintiff has not approached the Court with clean
hands and the party who has not approached the Court with clean hands is not
entitled for equitable relief of injunction. According to him, the plaintiff is not in
possession of the suit property and is not entitled for injunction. According to
him, respondent no. 2 is bonafide purchaser for the valuable consideration of the
With the assistance of the learned counsel, I have gone through the
8.
suit property and is legitimately in possession of the same.
Judgment and the pleadings of the parties and the documents on record.
9.
At the time of determination of an application for temporary
injunction, the factum of possession would only be the relevant factor. Whether
the possession is lawful possession or not would not be the subject matter of
enquiry. Whether the amount of consideration has been paid or not, whether the
plaintiff was ready and willing to perform his part of contract or not, would all be
the issues which can be decided only after the parties adduce evidence. It would
be premature at this stage to give findings on the said issues.
10.
From the perusal of the Judgment of the lower Court, it is manifest
that the trial Judge has referred to the photographs filed on record and has also
observed that the plaintiff runs business of automobiles therein. But, has further
observed that plaintiff has failed to prove that he is in lawful possession. Even a
trespasser in settled possession is entitled for injunction as has been held by the
Apex Court in the case of Rame Gowda (dead) by L.Rs. V/s M. Varadappa
Naidu (dead) by L.Rs. and another reported in 2004 (1) Supreme Court Cases
– 769. Further, even the defendants had come forward with the case that the
plaintiff was in possession of the suit property on the basis of Leave and Licence
agreement of 7 years. Once it is admitted that plaintiff was inducted in possession
of the suit property, then the presumption would be in favour of the continuity of
possession unless the defendants pleads and proves that the plaintiff was
dispossessed. In the present case, no such prima facie evidence appears on
record. More over, taking into account the observations of the Civil Judge
(Sr. Division), Ahmednagar, who has held that the plaintiff runs the
business of automobiles in the suit premises, then the necessary corollary would
be that he is in possession. Whether the possession is lawful or not would be
decided after the evidence is led. Prima facie, as such, it appears that the plaintiff
is in possession of the suit property.
11.
In light of the same, the impugned order is quashed and set aside
and the parties are directed to maintain statusquo as this Court vide its order
dated 02/03/2010 had directed the parties to maintain statusquo and said order
is in force till today. As such, the same order would continue till the disposal of
the Suit.
12.
The trial Court shall make an endavour to decide the Suit as early as
possible and preferably up to 30/09/2011.
13.
The present Appeal from Order is accordingly disposed off with no
order as to costs.
[ S.V
GANGAPURWALA ]
JUDGE
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