Lakha Singh v. Som Nath — 1981 DIGILAW 363 (DEL)

Judgement JUDGEMENT : - This first appeal is directed against the judgement and order of the Additional District Judge dated 25th August 1981 restraining the appellant-defendant from taking possession of Plot No.65-A, Hansapuri, Rampur, Main Road, Tri Nagar, Delhi in execution of the decree passed in his favour against the respondent/plaintiff and another in suit No.450 of 1977 by Shri Shiv Charan, Sub-Judge, Delhi on 25th October 1979. Learned counsel for the appellant, submits that the impugned order could not have been issued against the appellant under O.39 Rr.1 and 2 of the Civil P.C. as the said provisions were not applicable and that even under inherent powers the trial court ought not to have exercised discretion in favour of the plaintiff. 2. Briefly the facts are that the appellant is the owner of the plot of land in suit. He let out the same to one Ravi Dutt in 1972 in terms of a rent note. Ravi Dutt, tenant sublet, assigned or otherwise parted with the possession of the plot to Som Nath, respondent. A notice of eviction was served upon the tenant terminating his tenancy. In 1977 the appellant filed a suit for possession against his tenant Ravi Dutt as well as sub-tenant Som Nath respondent. Tha suit was resisted but a decree for possession was passed by the trial court on 25th April 1979 which was confirmed by the Additional District Judge and this Court. 3. The appellant decree-holder on 2nd November 1979 took out execution for obtaining possession but he was resisted by the respondent. He applied for police aid for obtaining possession which was sanctioned on 23rd January 1981. Arrangement was being made to provide police aid but before it could be arranged the respondent on 28th March 1981 filed the suit for declaration, that the agreement to sell dated 9th March, 1981 between the appellant and the respondent way valid and binding and for an injunction restraining the appellant from executing the said decree for possession obtained by him. He also made an application for the grant of a temporary injunction out of which this first appeal has arisen. The appellant in the written statement took various objections including the objections that the suit for declaration and injunction was not maintainable. He also made an application for the grant of a temporary injunction out of which this first appeal has arisen. The appellant in the written statement took various objections including the objections that the suit for declaration and injunction was not maintainable. The plaintiff then sought leave to amend the plaint and prayed for the additional, relief of a decree for specific performance of the said agreement to sell. The amendment was allowed. 4. The plaintiff in the amended plaint alleges that he has been in actual physical possession of the suit plot that the appellant is the landlord who let out the same to him at a monthly rent of, Rs. 100/- in 1974, that in 1977 the appellant in collusion with Ravi Dutt Sharma filed a suit for ejectment wherein a decree for possession was passed by the trial court which was confirmed by the Additional District Judge and the High Court. He further alleges that during the pendency of the execution negotiation between the appellant and the respondent started through the intervention of some respectable person of the locality whereby the appellant showed his willingness to sell the plot in question to him. The respondent alleges that thus the appellant agreed to sell the plot of land in consideration of Rs. 65000/- in terms of the agreement to sell dated 9th March 1981, that a sum of Rs. 15000/-, Rs. 10000/- by cash and Rs. 5000/- by cheque was paid as earnest money and by way of part payment of the sale consideration, that the payment was acknowledged by means of a separate receipt dated 9th March, 1981, that the appellant also swore an affidavit deposing that he had entered into the agreement to sell with the respondent and had allowed him to continue to reside and use the aforesaid plot. 5. An ex parte injunction as mentioned above was granted on 28th March 1981 which was later on confirmed by the impugned order. The appellant submits that no agreement to sell was ever entered into or executed by him and no money was ever paid, that no cheque was delivered and he neither executed any receipt dated 9th March 1981 nor sworn any affidavit as alleged by the plaintiff. He submits that the plaintiff has fabricated all the documents with a view to delay his dispossession in execution of the decree. He submits that the plaintiff has fabricated all the documents with a view to delay his dispossession in execution of the decree. The trial Court while restraining the appellant, has observed that it was not possible for the plaintiff to have forged or manipulated so many documents bearing the signature of the appellant at various places, that on a comparison the disputed signatures appeared to be that of the appellant to a naked eye, that as the plaintiff had been in possession he could suffer irreparable injury and the defendant was not likely to suffer any injury, and the balance of convenience was also in favour of the plaintiff. 6. O.39, Rr.1 and 2 of the Civil P.C. as amended by Act 104 of 1976 read as under: - "1. Where in any suit it is proved by affidavit or otherwise - (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or............ (b) that the defendant threatens, or intends, to remove or dispose of his property with a view of defrauding his creditors. (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 or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit until the disposal of the suit or until further orders. 2. (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgement, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit." 7. Learned counsel for the appellant submits that execution of a decree for possession is not a threat to dispossess within the meaning of R.1(c) or O.39 of the Code. He submits that execution of the decree also does not amount to causing injury of the plaintiff in relation to suit property either under Rule 1 (c) or Rule 2 of Order 39 of the Code. In short his submission is that the execution of the decree for possession does not cause injury and therefore no injunction can be issued. 8. Clause (c) to R.1 was inserted by Act 104 of 1976. The question is: Whether execution of the decree for possession against the plaintiff is a threat to dispossess or cause injury within the meaning of Rule 1(c) of Order 39 of the Code? 'Threatens' means to utter 'threats against'. The word 'threat' according to Webster's Third New International Dictionary means "an expression of an intention to inflict loss or harm on another by illegal means and especially by means involving coercion or duress of the person threatened." In other words, the expression of an intention to take possession by lawful means does not amount to a threat to dispossess or cause injury. Thus I am of the view that the prayer of the plaintiff for the grant of a temporary injunction is not covered by Rule 1(c) of Order 39 of the Code. Moreover execution of the decree by lawful means does not amount to causing injury to the plaintiff. The word 'injury' as used in R.1(c) and Rule 1 of Order 39 of the Code means any act contrary to law". It has been held repeatedly that a person cannot be prevented from executing the decree obtained by him on the ground that it causes injury to the plaintiff (See : Abdul Hamid Khan v. Tridip Kumar Chanda, AIR 1953 Assam 104; Kripa Natha Chakravarty v. Rup Chand Lunawat, AIR 1955 Assam 156; Ramnarain v. Shrikrishna, AIR 1956 Madh Bha 75. It has been held repeatedly that a person cannot be prevented from executing the decree obtained by him on the ground that it causes injury to the plaintiff (See : Abdul Hamid Khan v. Tridip Kumar Chanda, AIR 1953 Assam 104; Kripa Natha Chakravarty v. Rup Chand Lunawat, AIR 1955 Assam 156; Ramnarain v. Shrikrishna, AIR 1956 Madh Bha 75. Hemant Kumar v. Ayodhya Prasad, AIR 1957 Mad Bha 95: Anisati Venkanna v. Rimalapudi Venkata Rao, AIR 1957 Andh Pra 453; Upendra Chandra Barman v. Nabin Chandra Sutradhar, AIR 1971 Assam 95; Mira Rani Das v. S. Forman Ali, AIR 1971 Assam 157. 9. In Gaument Kali Private Ltd. Co. v. Badri Prasad Jaiswal, AIR 1962 Pat 242 , a temporary injunction was not granted to restrain the decree/holder from executing even an ex parte decree in his favour merely because the plaintiff instituted the suit for declaration that the decree obtained was fraudulent. 10. Learned counsel for the plaintiff however submits that the word "threatens" appearing in R.1(c) of O.39 of the Code which rule was inserted by Act 104 of 1976 means both lawful and unlawful intention addressed to dispossess him. In view of the ordinary dictionary meaning of the word "threat" I am of the view that if there is lawful intention or expression to dispossess a person it would not amount to a threat to dispossess. A threat for dispossession of causing injury must be unlawful before an injunction can be granted. Thus execution of a decree lawfully obtained and subsisting cannot be restrained either under Rule 1(c) or Rule 2 of Order 39 of the Code. 11. The question however remains whether the Court should exercise its inherent power in restraining the appellant from executing the decree for possession. It is not disputed that the Courts have inherent power to issue temporary injunction where the circumstances are not covered cither by R.1 or R.2 of O.39 of the Code (See: Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 ). 12. I now examine the facts of the case and determine whether the injunction ought not to have been issued by the Court under its inherent power. The suit for possession of the plot of land was filed in 1977. 12. I now examine the facts of the case and determine whether the injunction ought not to have been issued by the Court under its inherent power. The suit for possession of the plot of land was filed in 1977. It was hotly contested by the plaintiff-respondent but the decree for possession was passed which was confirmed by the District Judge and this Court. The appellant took out execution proceedings and he was resisted with the result he sought police aid but when the police aid was sanctioned and he was arranging to take possession the plaintiff put forward the alleged story of the agreement to sell the plot of land in consideration of Rs. 65000/-. I cannot lose sight of the fact that it has almost been a practice to bring a suit no sooner a decree for eviction has been finalised in the Court of law and for injunction with a view to delay the execution of the decree. In the present case, the agreement to sell is dated 9th March, 1981, alleged to have been signed by the appellant. There is a receipt dated 9-8-1981 for Rs. 15,000/-, Rs. 10,000/- cash and Rupees 5,000/- by a cheque No.111281 on the Lakshmi Commercial Bank. The receipt and the counterfoil of the cheque are alleged to have been signed by the appellant. There is an affidavit again dated 9th March 1981 alleged to have been sworn by Lakha Singh, appellant and attested by a Notary Public. The deponent was not identified by anybody before the Notary Public. There is no endorsement on the affidavit showing the document number of the register of document maintained by the Notary Public. The signature of the Notary Public is also illegible. The signature of the agreement to sell, receipt, counter foil of the cheque and the affidavit appear to be of one and the same person. There are various signatures of the appellant on the file of the trial Court and it appears at this stage that the admitted signature and the disputed signature are not of the same person. I have given my careful consideration to this aspect of the matter as the trial Court has made an observation that to a naked eye the signatures appeared to be of the appellant. In my view it is not so. I have given my careful consideration to this aspect of the matter as the trial Court has made an observation that to a naked eye the signatures appeared to be of the appellant. In my view it is not so. Besides others the word 'Kha' in the signature of Lakha Singh on the disputed documents and the admitted signatures discloses a vast difference to the naked eye. The trial Court has also observed that it was just not possible for the plaintiff to have forged or manipulated so many documents bearing the signature of the defendant at various places. I do not agree. people who indulge in forgery are capable of fabricating various documents. Merely on the ground that a number of documents have been filed purporting to have been signed by the appellant, no injunction can be issued. Again the plaintiff no doubt is in possession but he is not entitled to retain possession in view of the decree passed by the trial Court and confirmed by the High Court. In other words it would mean that the plaintiff was not entitled to retain possession in view of the decree for possession. If a man continues in possession for a number of years and a decree for possession has been finally passed against him mere possession to the judgement-debtor-plaintiff should not be a ground for the issue of an injunction against the decree-holder restraining him to execute the decree. Restraining the decree-holder from executing the decree which he obtained after contest, is to cause injury to him and not to the judgement-debtor. The agreement to sell does not refer to the decree for possession obtained by the appellant against the respondent. In the affidavit however there is a reference that the appellant had obtained the decree on 25th October, 1979, and that he had agreed to allow the respondent to continue to reside and use the plot in suit. If there was any agreement express or implied, that the decree for possession stood adjusted or satisfied, the plaintiff ought to have approached the executing Court under Order 21 Rule 2 of the Code for recording adjustment of the decree. All questions relating to discharge or satisfaction of the decree are to be determined by the executing Court under Sec.47 of the Code and not by a separate suit. All questions relating to discharge or satisfaction of the decree are to be determined by the executing Court under Sec.47 of the Code and not by a separate suit. The plaintiff in the present suit has sought a permanent injunction restraining the decree-holder from executing the decree. In other words it means a decree of possession stood satisfied or adjusted. The remedy of the plaintiff was to approach the executing Court under S.47 and not by a separate suit. Sub-sec. (2) of S.47 of the Code was omitted by Act 104 of 1976. Under the repealed sub-sec. (2) of Section 47 of the Code, power rested with the Court to treat a suit as proceeding under the code but now no such power is available. Further the alleged agreement to sell is dated 9th March, 1981 and the plaintiff sent a notice dated 9th Mar., 1981, alleging the agreement to sell and asking the appellant to reach the office of the Sub-Registrar on 16th March, 1981, to receive the balance amount of sale consideration and get the sale deed registered. This letter was sent by registered post on 12th March, 1981. The appellant replied the same through his counsel on 14th March, 1981, denying all the allegations regarding the agreement to sell. Under these circumstances it is not a fit case where inherent power should have been exercised in favour of the plaintiff and against the defendant. The trial Court has not correctly appreciated the principles for the grant of temporary injunction. If the plaintiff is in possession and approaches the Court for the grant of injunction mere possession which he has to deliver under the decree of the Court, is not sufficient for the grant of an injunction to him restraining the decree-holder from executing the decree, especially when the decree for possession itself is not challenged. Moreover injury by the injunction would be caused to the decree-holder. The balance of convenience is also in favour of decree-holder who obtained the decree against the plaintiff after contest up to High Court. 13. I have also gone through the plaint and all the documents which are the basis of the suit. I would not like to discuss the various questions of fact and law, involved in a suit for specific performance. 13. I have also gone through the plaint and all the documents which are the basis of the suit. I would not like to discuss the various questions of fact and law, involved in a suit for specific performance. The appellant submits that the plaint praying for the decree for specific performance is not in accordance with law and the same is liable to be dismissed. I need not go into any other question as I am of the view that the discretion exercised by the trial Court was not according to well established principles of law. The appeal is accepted and the order of re-starting the appellant from executing his decree for possession is set aside. The application for the grant of temporary injunction is hereby dismissed. The appellant shall be entitled to costs. Counsel fee Rs. 300/-.