PAILY Vs. PHILIP

JUDGEMENT

(1.) The revision-petitioners are the plaintiffs in a suit for injunction. The dispute in this matter is in respect of 31.25 acres of rubber plantation. This forms part of 62.45 acres. This property was purchased by the revision petitioners in 1977. The plaintiffs and the defendant entered into an agreement on 30-3-1979 for the sale of the entire 62.45 acres for a consideration of Rs. 5 1/2 lakhs. The sale deed was to be executed on 31st March, 1980. Rupees 1 1/2 lakhs was paid as advance. Defendant was put in possession of the whole property in pursuance of the agreement. The agreement stipulated that the defendant would pay the balance amount with 12 per cent interest. Rupees 50,000/- was paid on 15-6-1979 and another Rs. 50,000/- was paid on 31-12-1979 by the defendant. According to the plaintiffs-petitioners the defendant could not perform his part of the contract till 31-3-1980. As the defendant had paid a consideration of Rs. 2 1/2 lakhs six sale deeds were executed in favour of the nominees of the plaintiffs. Ext, A9 is one of such documents. The total consideration for these six sale deeds was Rs. 2 lakhs 70 thousand. As the defendant failed to perform his part of the contract, the plaintiffs entered into possession of the disputed property by virtue of the clause stipulated in Ext. A2 agreement. Subsequent to the surrender by the defendant to the plaintiffs the rubber trees were slaughter tapped and the plaintiffs replanted the entire area for which licence was also obtained from the Rubber Board. Plaintiffs further contended that the defendant attempted to trespass into the property and therefore the suit was filed. Along with the suit an interim injunction application was filed.

(2.) The defendant filed counter affidavit denying the allegations in the plaint. According to the defendant he was put in possession of the property as per the provisions of Ext A2 agreement. According to him, the plaintiffs had not recovered possession of the property. He also contended that the entire consideration agreed to between the parties was paid by him and only a small sum of Rs. 21,000/- was due from him and when this amount was offered the plaintiffs refused to accept the same, It is also alleged that the plaintiffs refused to execute the sale deed. The Trial Court dismissed the interim injunction application and an appeal filed against that order ended in dismissal. Both the courts below found that the plaintiffs have not established prima facie case of possession and therefore not entitled to the interim injunction prayed for.

(3.) The scope of S.115 CPC, to interfere with the findings of the courts below in a matter like this is very limited. The counsel for the petitioners cited one of the earliest decisions in this regard. In Keshardeo v. Radha Kishun ( AIR 1953 SC 23 ) so many earlier decisions of the Privy Council as well as of various High Courts have been referred to. In Mohount Bhagwan Ramanuj Das v. Khetter Moni Dessi, 1 Cal. W.N. 617, the High Court of Calcutta expressed the opinion that sub clause (c) of S.115, CPC was intended to authorise the High Courts to interfere and correct gross and palpable errors of subordinate courts, so as to prevent grave injustice in non appealable cases. This decision was, however, dissented by the same High Court in Enat Mondul v. Baloram Dev, 3 Cal. W. N. 581. As early as in 1894 in Rajah Amir Hassen Khan v. Sheo Baksh Singh. 11 Ind. App. 237, the Privy Council made the following observations on S.622 of the former Code of Civil Procedure, which was replaced by S.115 of the Code of 1908.