The abovementioned judgment reflects the correct position in law in the light of the provisions contained in Order XXXIX Rule 1 of the Code, though a specific reference to the same has not been made. That such is the legal position is also evident from the judgment of M. N. Chandurkar, Acting C.J. (as he then was) in Maruti Sambha v. Parshuram, 1983 Mah LJ 958. In paragraph 5 of the judgment it is stated as follows:-
"Now, in a suit for injunction simpliciter by a plaintiff who claims to be in possession, the plaintiff will be entitled to injunction only if he proves his possession on the date of the suit. It the plaintiff proves his possession on the date of the suit, the status of the defendant, who is alleged to be disturbing the possession of the plaintiff, is wholly irrelevant, because a tenant is not entitled to forcibly dispossess any person in possession against whom the tenant may have a right to claim possession."
8. The question is not ultimately what the other reliefs are claimed in the suit. If the plaintiff is alleging that he is in possession and therefore he wants his possession to be protected by an appropriate order made under O. XXXIX R. 1 of the Code, then the Court, considering whether he is prima facie in possession and other such factors as the balance of convenience, can give interim relief by way of injunction restraining the drefendant from disturbing the plaintiffs possession. If other issues which can be decided only by the authorities under the Tenancy Act arise, then those issues may be referred to the appropriate tenancy authorities, but it cannot be said that unless those issues are answered by the proper tenancy authorities no interim relief can be given by the Civil Courts under O. XXXIX R. 1 of the Code.
Bombay High Court
Laxmi And Ors. vs Savanta Bapu Mali on 31 January, 1985
Equivalent citations: AIR 1986 Bom 169, 1988 (4) BomCR 278, (1985) 87 BOMLR 159,1985 MHLJ 324
Bench: Jahagirdar
1. The respondent in this petition filed a suit, being Regular Civil Suit No. 1 of 1982, in the Court of the Civil Judge, Junior Division, at Tasgaon, praying, among other things, for a perpetual injunction restraining the petitioners, who were the defendants in that suit, from interferig with his peaceful possession of the suit lands as a tenant. Obviously the suit was abased upon the threatened interference with the right of the plaintiff to the possession of the suit lands. Some history of the litigation between the parties has been given to me. It is the allegation of the petitioners that though the respondent was originally a tenant of the suit loans, prior to the tillers day the possession of the same has been handed over to the petitioners under a valid order of surrender made by the Tahsildar. The case of the respondent, however, was that that surrender was a sham and bogus one, not to be acted upon. Despite that surrender, the respondent contended, he continued to be in possession of the suit lands.
2. in the suit the respondent filed an application under O. XXXIX, R. 1 of the Code of Civil Procedure for a temporary injunction restraining the petitioner from interfering with his possession of the suit lands. the trial Court granted the injunction as prayed for by its judgment and order dated 30th of October 1982 . The appeal Court, in Miscellaneous Civil Appeal No. 120 of 1982 preferred by the petitioner, has confirmed the said order by its judgment and order dated 8th of November 1983. Hence this petition by the original defendants.
3. Mr. Gokhale, the learned Advocate appearing for the petitioners, has contended that the prayers in the plaint could not be ganted at all be a Civil Court because it has been prayed by the respondent that the petitioners be restrained from denying the title of the respondent in the suit lands. There is some substance in this contention of Mr. Gokhale. However, there is no substance in the further contention that no relief by way of temporary injunction could be granted in favour of the respondent in a suit of this type. Mr. Gokhale has relied upon a judgment of D. B. Deshpande J. in Shrawan Bagaji v. Arun Manikrab, 1982 Mah LJ 777. It has been held in this judgment that unless the plaintiff s status as a tenant is adjudicated upon by the Tenancy Court, Civil Court will have no right to grant temporary injuction. According to this judgment, the trial Court should refer the tenancy issue to the Tenancy Court and if the issue is answered in the affirmative, then it should proceed to decide the question of temporary injunction. The learned Judge has in paragraph 3 of the judgment referred to an unreported (however reported in 1977) TLR 29) judgment of Tulzapurkar J. (as he then was) in Pandurang Appa Patil v. Ananda Bhau Ulpe, (Civil Revn. Appln. No. 42 of 1974 decided of 28th April 1976). another judgment of Kanade J. in Civil Revn. Appln. No. 5A of 1982 decided on 23rd February 1982 was also brought to the attention of the learned Judge, but the learned Judge held that the following to be found in the judgment of Kanade J. was only a general observation:-
"It is true that a Civil Court will have a jurisdiction to determine and record the finding as to the prima facie evidence of title at the stage of granting an injunction.............."
I have gone through the judgment of Tulzapurkar J. as reported in the Tenancy Law Reports and find that the facts in that case were totally different, even from the facts which were before Deshpande J. in Shrawasn Bagaji's case.
4. In Pandurang Appa Patil's case, the plaintiffs filed a suit for a declaration that they were in possession of certain lands which were being cultivated by them as tenants. The relief of injunction was also claimed. The learned trial Judge had framed an issue, being issue No. 3, in the following terms:-
"Do the plaintiffs prove their possession over 2A. 2G. of land out of original S. No. 390, which, according to them, is being cultivated by them as tenants at the date of the suit?"
The learned trial Judge had held that since the principal relief was only for injunction, no question of the plaintiffs' tenancy arose. Tulzapurkar J. found, and with great respect rightly, that in fact it was not so. The issue ought to have been in fact split up in two parts, one relating to the tenanchy and the other relating to the possession. Therefore Tulzapurkar J. held as follows:-
"It also appears to me further that Issue No. 3 could have been usefully split up into two sub issues as indicated by the petitioners before me in their application to the Civil Judge, which would have meant that only the specific issue regarding tenancy would be decided by the tenancy authorities and the question of possession and injunction could then have been considered by the Civil Court" (Emphasis provided) It was also held that further consideration of the plaintiffs' alleged claim of tenancy would become relevant for the purpose of considering whether or not the plaintiffs were entitled to injunction in respect of the land. Reading the judgment as a whole I cannot imagine that this could be an authority for the proposition that in a suit for injunction based upon possession as a tenant no interim relief can be granted to the plaintiff unless his status us a tenant is first decided. Unfortunately only the headnote made by the editors of the Tenancy Law Reports seems to have been brought to the notice of Deshpande J. If the entire judgment had been read out to him, I do not think that this would have been the ruling.
5. I am emboldened to say this because Order XXXIX, Rule 1 of the Code of Civil Procedure is clear and explicit on this question. It provides that " where in any suit it is proved by affidavit or otherwise....... (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act........" I do not see how in the light of the clear language contained in Order XXXIX Rule 1 of the Code it could be said that without the determination of the title of the plaintiff no interim relief could be given. Unfortunately the provisions of Order XXXIX Rule 1 of the Code also were not pointedly brought to the attention of Deshpande J. in Shrawan Bagaji's case (1982 Mah LJ 777). Mr. Gokhale's reliance upon the said judgment, therefore, is of no avail.
6. I will be justified in referring to Sujanbai v. Motiram, , which has been brought to my notice by Mr. Page, appearing for the respondent in this petition. The law, in my opinion, has been correctly laid down in this judgment. In paragraph 13 of this judgment it is stated as follows:-
"In granting temporary injunction for restraining one party to the suit from interfering with the possession of the other party, the Civil Court is primarily concerned not so much with the question as regards title of the property or the capacity in which the person claiming to be in possession is holding the property, as with the question as to who is in possession of the suit property at the time of the institution of the suit and this decision has to be arrived at on the basis of evidence which would be adduced in that connection."
Proceeding further it is stated:
"Now, in such an application the question whether the plaintiff or the person who applies for the temporary injunction and claims to be in possession of the suit property is in occupation thereof as a tenant or in his own rights is not material. What the Court has to consider is whether such a person is in actual possession of the suit property and having regard to the balance of convenience and other factors, it is necessary to protect his possession till the decision of the suit."
7. The abovementioned judgment reflects the correct position in law in the light of the provisions contained in Order XXXIX Rule 1 of the Code, though a specific reference to the same has not been made. That such is the legal position is also evident from the judgment of M. N. Chandurkar, Acting C.J. (as he then was) in Maruti Sambha v. Parshuram, 1983 Mah LJ 958. In paragraph 5 of the judgment it is stated as follows:-
"Now, in a suit for injunction simpliciter by a plaintiff who claims to be in possession, the plaintiff will be entitled to injunction only if he proves his possession on the date of the suit. It the plaintiff proves his possession on the date of the suit, the status of the defendant, who is alleged to be disturbing the possession of the plaintiff, is wholly irrelevant, because a tenant is not entitled to forcibly dispossess any person in possession against whom the tenant may have a right to claim possession."
8. The question is not ultimately what the other reliefs are claimed in the suit. If the plaintiff is alleging that he is in possession and therefore he wants his possession to be protected by an appropriate order made under O. XXXIX R. 1 of the Code, then the Court, considering whether he is prima facie in possession and other such factors as the balance of convenience, can give interim relief by way of injunction restraining the drefendant from disturbing the plaintiffs possession. If other issues which can be decided only by the authorities under the Tenancy Act arise, then those issues may be referred to the appropriate tenancy authorities, but it cannot be said that unless those issues are answered by the proper tenancy authorities no interim relief can be given by the Civil Courts under O. XXXIX R. 1 of the Code.
9. In the normal circumstances it would have been necessary for me to refer this matter to a Division Bench in view of the apparent conflict between the judgment of one single Judge and the judgments of other single Judges. But I have pointed but above how only the head note prepared by the editors of a law reporter, was brought to the attention of the learned single Judge in Shrawan Bagajis' case (1982 Mah LJ 777) and not the entire judgment. Also in view of the fact that the explicit provisions of Order XXXIX Rule 1 of the Code were not brought to the attention of the learned single Judge who decided Shrawan Bagaji's case. I have not thought it necessary to follow this course of action. In view of the authorities to which I have made a reference and in view of the clear-cut provisions contained in the Code of Civil Procedure it is sufficient to say that Shrawan Bagaji's case does not represent the correct position in law.
10. In the result, this petition must fail. Rule is discharged with costs. Petition dismissed.
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