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Laxmi And Others v. Savanta Bapu Mali .
Factual and Procedural Background
The respondent originally filed Regular Civil Suit No. 1 of 1982 in the Court of the Civil Judge, Junior Division, at Tasgaon seeking, among other reliefs, a perpetual injunction restraining the petitioners (defendants in that suit) from interfering with his peaceful possession of the suit lands as a tenant. The respondent alleged that although a Tahsildar had purportedly accepted a surrender and handed possession to the petitioners prior to tiller's day, that surrender was a sham and the respondent continued in possession.
The respondent applied under Order XXXIX, Rule 1 of the Code of Civil Procedure for a temporary injunction. The trial Court granted the injunction by order dated 30 October 1982. The petitioners appealed; the appellate Court (Miscellaneous Civil Appeal No. 120 of 1982) confirmed the injunction by its judgment and order dated 8 November 1983. The petition before this Court was filed by the original defendants challenging those orders.
Legal Issues Presented
- Whether a Civil Court may grant a temporary injunction under Order XXXIX, Rule 1 of the Code of Civil Procedure to protect possession alleged by a plaintiff who claims to be a tenant where the plaintiff's tenancy or title is disputed.
- Whether the question of the plaintiff's status as a tenant must first be adjudicated by the Tenancy Court before a Civil Court can grant interim relief by way of injunction.
Arguments of the Parties
Petitioners' Arguments (as presented in the opinion)
- Counsel for the petitioners (Mr. Gokhale) contended that the prayers in the plaint could not be granted by a Civil Court because the respondent sought to restrain the petitioners from denying the respondent's title in the suit lands.
- He further argued that no temporary injunction could be granted in a suit of this type unless the plaintiff's status as a tenant had first been adjudicated by the Tenancy Court. In support he relied on a judgment of D.B. Deshpande J. in Shrawan Bagaji v. Arun Manikrao (1982 Mah LJ 777).
Respondent's Arguments (as presented in the opinion)
- The respondent maintained that the surrender purportedly effected by the Tahsildar was a sham and that he continued to be in possession of the suit lands.
- Counsel for the respondent (Mr. Page) relied on the decision in Sujanbai v. Motiram (AIR 1980 Bom 188) to support the proposition that a Civil Court, when considering a temporary injunction to protect possession, should focus on who was in possession at the time of the suit and need not determine title or the capacity (tenant/owner) in which the person occupies the property.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shrawan Bagaji v. Arun Manikrao, 1982 Mah LJ 777 | Held that unless the plaintiff's status as tenant is adjudicated by the Tenancy Court, the Civil Court has no right to grant temporary injunction; the trial Court should refer tenancy issue to Tenancy Court before deciding injunction. | The Court reviewed this decision and found reliance on it to be misplaced because (a) only the headnote appears to have been relied upon, (b) the full judgment and provisions of Order XXXIX R.1 were not brought to the judge's attention. The Court concluded Shrawan Bagaji does not represent the correct position in law for the present purposes. |
| Pandurang Appa Patil v. Ananda Bhau Ulpe (Civil Revision Appln. No. 42 of 1974; decided 28 Apr 1976) (reported in (1977) TLR 29) | Held that an issue concerning possession should be split into two sub-issues — one on tenancy (for tenancy authorities) and one on possession (for Civil Court); possession and injunction could be considered by Civil Court while tenancy could be referred. | The Court relied on this judgment to show that the Tenancy issue may be referred without precluding the Civil Court from deciding possession and granting injunction; it used the reasoning to distinguish and counter the Shrawan Bagaji approach. |
| Kanade J., Civil Revision Appln. No. 5A of 1982 (decided 23 Feb 1982) | Contains the observation that a Civil Court has jurisdiction to determine and record a finding as to prima facie evidence of title at the stage of granting an injunction. | The Court noted that Deshpande J. treated this as a general observation; the present Court treated it as subsidiary and not determinative of the legal position against which the Code and other authorities were to be read. |
| Sujanbai v. Motiram, AIR 1980 Bom 188 | States that when granting temporary injunction restraining interference with possession, the Civil Court is primarily concerned with who is in possession at the time of institution of the suit; whether that person occupies as tenant or owner is not material—what matters is actual possession, balance of convenience and other interim factors. | The Court described this judgment as correctly laying down the law and relied on its paragraphs to support the proposition that possession, not adjudication of title, is the primary concern in injunction applications under O. XXXIX R.1. |
| Maruti Sambha v. Parshuram, 1983 Mah LJ 958 | States that in a suit for injunction by a plaintiff who claims to be in possession, the plaintiff is entitled to injunction if he proves possession on the date of the suit; the status of the defendant is irrelevant and a tenant cannot forcibly dispossess a person in possession. | The Court cited this decision to reinforce the principle that proof of possession at the suit's institution is the key criterion for interim injunctive relief under O. XXXIX R.1. |
Court's Reasoning and Analysis
The Court proceeded step-by-step as follows:
- It acknowledged the procedural history: trial Court granted the temporary injunction under Order XXXIX R.1 and the appellate Court confirmed that order; the petition sought to challenge those orders.
- The Court considered the petitioners' primary contention that a Civil Court could not grant the relief sought because the plaint purportedly asked to restrain the petitioners from denying the respondent's title. The Court found some substance in the contention that the relief prayed concerned title, but rejected the broader contention that no temporary injunction could be granted in such suits.
- The Court analyzed precedent relied upon by the petitioners — particularly Shrawan Bagaji (Deshpande J.) — which was said to hold that unless the plaintiff's tenancy status is decided by Tenancy Court, the Civil Court cannot grant interim injunction. The Court examined Pandurang Appa Patil and determined that the facts there showed the trial Court should have split the possession issue into tenancy and possession components, so that tenancy could be referred but possession and injunction could be dealt with by the Civil Court.
- The Court emphasized the clear language of Order XXXIX, Rule 1 of the Code of Civil Procedure, which permits a Court to grant a temporary injunction where it is proved by affidavit or otherwise that the defendant threatens to dispossess the plaintiff or otherwise cause injury in relation to property in dispute. The Court reasoned that this provision cannot be read to require prior adjudication of title or tenancy before an interim injunction can be granted.
- The Court found that in Shrawan Bagaji the full judgment (and the explicit provisions of Order XXXIX R.1) had not been drawn to the attention of the single Judge and that in that case reliance appeared to have been placed on an editor's headnote rather than the full reasons. Therefore the present Court refused to follow Shrawan Bagaji as representing the correct legal position.
- The Court relied upon and endorsed the reasoning in Sujanbai v. Motiram and Maruti Sambha v. Parshuram which emphasize that for interim injunctions protecting possession the key inquiry is who is in possession at the date of the suit and whether balance of convenience and other interim considerations favor protecting that possession; the occupier's status as tenant or owner is not decisive at the interim stage.
- The Court concluded that the Civil Court may, on a prima facie showing of possession and after considering balance of convenience and related factors, grant interim relief under Order XXXIX R.1. If issues arise that can only be determined by tenancy authorities, those specific issues may be referred, but such referral is not a precondition to granting interim relief.
- Although the Court recognized an apparent conflict among single-judge decisions (which might normally warrant referral to a Division Bench), it declined to do so because the Court discerned that the conflicting decision rested on an incomplete engagement with the authorities and the statutory provision. Accordingly the Court treated the decisions cited (other than Shrawan Bagaji) and the statutory text as dispositive.
Holding and Implications
DISPOSITION: The petition challenging the grant of the temporary injunction was dismissed. The rule was discharged with costs. The opinion concludes with the short order:
Petition dismissed.
Implications (limited to what the opinion states): The Court held that a Civil Court may grant interim relief by way of injunction under Order XXXIX, Rule 1 of the Code of Civil Procedure to protect a party's possession where the party proves prima facie possession on the date of the suit and other interim factors (such as the balance of convenience) favor protecting that possession. The Court stated that issues that fall exclusively within the jurisdiction of tenancy authorities may be referred to them, but the need to refer such issues does not operate as a bar to the Civil Court granting temporary injunctive relief. The opinion does not purport to create a novel precedent beyond applying and reconciling existing authorities and the statutory provision; its direct effect is the dismissal of the petition and maintenance of the interim relief previously granted to the respondent.
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 interfering with his peaceful possession of the suit lands as a tenant. Obviously the suit was based 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 lands, 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 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 petitioners 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 petitioners, 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 granted at all by 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 Manikrao, 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 injunction. 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 on 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 Shrawan 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 tenancy 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 as 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 Bagajis 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, AIR 1980 Bom 188, which has been brought to my notice by Mr. Page, appearing for the respondent in this petitioa. 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 there of 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. If 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 defendant 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 R1 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 out 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 Bagajis 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 Bagajis 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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