LAKHMI CHAND Vs. SARLA DEVI

JUDGEMENT

(1.) The petitioner filed a suit under S.6(1) of the Specific Relief Act, 1963 (for short 'the Act') for possession of the premises in dispute alleging that he was in occupation thereof as a tenant and the respondent took its possession illegally in his absence on April 21, 1982. The suit was decreed on Jan. 18, 1985 and the revision against the decree also failed. Thereafter, the respondent filed the present suit under S.6(4) of the Act for a declaration that she was in lawful possession of the premises in dispute as owner and for perpetual injunction restraining the petitioner from dispossessing her. Alone with the suit, she also filed an application under O.39, Rr.1 and 2 of Civil P.C. for the grant of an ad interim injunction restraining the petitioner from interfering with her possession during the pendency of the suit, which was accepted by the trial Court and status quo ordered to be maintained. Having failed in the appeal as well, the defendant has come up in this revision.

(2.) The lower appellate Court, for its view that an ad interim injunction restraining the defendant from executing the decree can be granted, has relied on two decisions; one of Allahabad High Court in Chunni v. Sullahar, AIR 1972 All 418 and another of Gujarat High Court in Mahommad Hussain Suleman Shaikh v. Batukbhai Valjibhai, AIR 1984 Guj 66. For holding that a prima facie case exists in favour of the plaintiff, it observed that even according to the defendant the former was in possession when the suit under S.6(4) of the Act was filed. It passes my comprehension as to how any Court could hold that the plaintiff has a prima facie case on the reason stated when the decree itself is for the recovery of possession. The considerations, such as prima facie case and balance of convenience, have no meaning in a suit like the present one because no ad interim injunction restraining the defendant from executing the decree can legally be issued.

(3.) It was settled long back by the Supreme Court in Munshi Ram v. Delhi Administration, AIR 1968 SC 702 that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. The right given under S.6 of the Act to a person dispossessed without his consent of immovable property otherwise than in due course of law to recover possession thereof, notwithstanding any other title that may be set up in such suit, is the statutory recognition of the same principle. If a suit for injunction restraining a person, who has been wrongfully dispossessed, from executing the decree passed under S.6 for recovery of possession is held to be competent, it would obviously result in violation of the above principle and render the provisions of S.6 of the Act nugatory. Moreover, such a suit is expressly barred by the provisions of S.41(a) of the Act which provides that an injunction cannot be granted to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings. A contrary view was taken in Chunni's case (supra) by the Division Bench of the Allahabad High Court on the ground that, strictly speaking, such a suit is neither to restrain the defendant from prosecuting a judicial proceeding nor from instituting the execution application within the meaning of cls. (a) and (b) of S.41 of the Act as the relief claimed is to restrain the defendant from interfering with the plaintiff's possession and not for a direction to prevent him from instituting or prosecuting the execution proceedings. The Bench sought support for this view from a single Bench decision of the Bombay High Court in Mari Doddatamma Merkundi v. Santaya Ramkrishna Pai Kolle, AIR 1922 Bom 216. With due respect to the learned Judges, I am unable to subscribe to this view. The defendant obviously seeks the recovery of the possession by executing. the decree and not by any wrongful act or by taking the law into his own hands. The injunction claimed, though may be that the defendant be restrained from taking possession, but, in substance, it would mean and have the effect of restraining him from executing the decree lawfully passed in his favour, which would necessarily result in the violation of the provisions of Cl.(a) of S.41 of the Act.