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2009 DIGILAW 1739 (PNJ)

Gurmukh Singh v. Balkar Singh

2009-10-08

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment and decree, dated 05.10.04 rendered by the Court of District Judge, Amritsar, which it accepted the appeal, against the judgment and decree dated 29.10.02, rendered by the Court of Additional Civil Judge (Senior Division), Baba Bakala, and decreed the suit of the plaintiff. 2. The facts, in brief, are that, -Gurmukh Singh, defendant/appellant, was the owner in possession of the shop, in dispute, in which Baikal- Singh Plaintiff/respondent, was inducted as a tenant and was running the business of readymade garments and general merchants-, at a monthly rentai of Rs. 200/- vv.e.f. 26.9.93. ft was stated thatthe defendant being an influential person in violation of the injunction order dated 9.3.2000 took forcible possession of the shop in dispute, dispossessed the plaintiff, therefrom, and took away the articles worth Rs. 60000/- laying therein. The defendant was many a time asked to desist from his nefarious designs but to no avail. Ultimately, a suit for permanent injunction and possession under Section 6 of the Specific Relief Act, 1963 . was filed. 3. The defendant, put in appearance and filed written statement wherein, he took up various objections, and contested the suit. It was denied that the plaintiff was ever inducted as a tenant in the shop in dispute. It was stated that the possession of the shop, in dispute was with the defendant at the time of filing the suit. It was further stated that the plaintiff concealed true and material facts from the Court. It was further stated that a compromise was arrived at, between them which was later on reduced into writing as a result whereof the keys of the shop in dispute, were handed over by the plaintiff to the defendant. It was further stated that the suit of the plaintiff was not maintainable. The remaining averments were denied being wrong. 4. On the pleadings of the parties the following issues were struck -- (i) Whether plaintiff is entitled to injunction as prayed for- OPP (ii) Whether the plaintiff has concealed the true and material facts from the notice of the Court- OPD (iii) Whether suit is not maintainable- OPD (iv)Relief. 5. After hearing the Counsel for the parties and on going through the evidence and record of the case the trial Court dismissed the suit of the plaintiff. 6. 5. After hearing the Counsel for the parties and on going through the evidence and record of the case the trial Court dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred by the plaintiff/respondent which was accepted, by the Court of District Judge, Amritsar, vide judgment and decree dated 05.10.04. 7. Feeling dissatisfied, the instant Regular Second Appeal has been filed by the defendant/appellant. 8. I have heard the Counsel for the parties and have gone through the evidence and record of the case carefully. 9. The following substantia question of law arises in this appeal, for the determination of this Court -- Whether the first Appellate Court acted in derogation to the provisions of Section 6(3) of the Specific Relief Act, 1963 , and contrary to the settled position of law, in entertaining and deciding the appeal against the judgment and decree of the trial Court and thus, the judgment and decree of the first Appellate Court being without jurisdiction is a nullity and void abinitio- 10. The counsel for the appellant submitted that according to Section 6 (3) of the Specific Relief Act. 1963 no appeal, was maintainable from any order or decree passed in any suit instituted under this Section nor review of any such order and decree could be allowed. He further submitted that the first Appellate Court did not take into consideration the provisions of Section 6 (3) of the Specific Relief Act, 1963 and committed a legal error in entertaining the appeal and deciding the same on merits. He further submitted that as such the judgment and decree of the first Appellate Court was liable to be set aside on this ground alone. 11. On the other hand the Counsel for the respondent submitted that the plaintiff/respondent filed a suit for possession under section 6 of the Specific Relief Act, 1963 and also claimed relief of injunction. He further submitted that the defendant/appellant forcibly took possession of the desised premises from the plaintiff/respondent and, as such, the suit for possession under the aforesaid provision had to be filed by him. He further submitted that the defendant/appellant forcibly took possession of the desised premises from the plaintiff/respondent and, as such, the suit for possession under the aforesaid provision had to be filed by him. He further submitted that since the relief of permanent injunction alongwith the relief for possession under Section 6 of the Specific Relief Act 1963 was also sought in the suit an appeal against the judgment and decree dated 05.10.04 of the trial Court was maintainable and was not barred under Section 6(3) of the Act ibid. He further submitted that the judgment and decree of the first Appellate Court being legal and valid were liable to be upheld. 12. After giving my thoughtful consideration to the rival contentions advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be accepted for the reasons to be recorded hereinafter. In Smt. Ganga Bai v. Vijay Kumar and others, AIR 1974 (SC) 1126, the principle of law laid down was to the effect that there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one-s peril, bring a suit of one-s choice. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore, an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. In Prem Singh & others v. Birhal & others, 2006(3) RCR (Civil) 381 (S.C.) the principle of law laid down was to the effect that where a Court passed a decree without having jurisdiction the decree would be honest and void abinitio. It was further held that a void decree can be challenged even in execution or a collateral proceeding in Bhagwant Rai & others v. State of Punjab and others, 1995(2) R.C.R.(Rent) 413 - 1995(3) R.R.R. 302 - 1996(1) CCC 1 (SC) the principle of law laid down was to the effect that there cannot any estoppel against a statute. It was further held that a void decree can be challenged even in execution or a collateral proceeding in Bhagwant Rai & others v. State of Punjab and others, 1995(2) R.C.R.(Rent) 413 - 1995(3) R.R.R. 302 - 1996(1) CCC 1 (SC) the principle of law laid down was to the effect that there cannot any estoppel against a statute. The main relief in the suit sought by the plaintiff/respondent was for possession under Section 6 of the Specific Relief Act, 1963 on the basis of his previous possession as according to him he was dispossessed during the pendency of the suit. No doubt, the relief of injunction restraining the defendant/appellant from dispossessing the plaintiff from the property in dispute, was also sought. That was only an ancillary relief. Even under Section 6 of the Specific Relief Act, 1963 , such a relief could be sought alongwith the main relief for possession. It may be stated here that no relief of injunction was even granted by the first Appellate Court. The first Appellate Court could only entertain and hear the appeal if a power had been conferred upon it under the statute to do so. As stated above appeal is a creature of the statute. Right to file an appeal, did not inhere in any party. The mere fact that the relief of permanent injunction was also sought by the plaintiff though the same was not granted, by the first Appellate Court, did not take the case out of the first Appellate Court did not take the case out of the purview of Section 6(3) of the Specific Relief Act, 1963 . Section 6(3) of the Specific Relief Act, 1963 clearly lays down that no appeal is maintainable from any order or decree passed in any suit instituted under Section 6 of the Act nor review of any such order or decree could be allowed. Section 6(3) of he Specific Relief Act, 1963 therefore, clearly bars the maintainability of an appeal against a decree or order passed in a suit under Section 6 of the Act. The principle of law laid down in the aforesaid cases relied upon by the Counselor the appellant is fully applicable to the facts of the instant case. The judgment and decree, thus, passed by the first Appellate Court, being without jurisdiction, are void abinitio and liable to be set aside. 13. The principle of law laid down in the aforesaid cases relied upon by the Counselor the appellant is fully applicable to the facts of the instant case. The judgment and decree, thus, passed by the first Appellate Court, being without jurisdiction, are void abinitio and liable to be set aside. 13. The Counsel for the respondent however placed reliance on Ramesh Devchand Pala v. Jayantkumar Gordhandas Madani and others, AIR 1998 Gujarat 120, in support of his contention that appeal against the order or decree passed under Section 6 of the Specific Relief Act. 1963, was maintainable. The perusal of the facts of Ramesh Devchand Pala-s case (supra) decided by a single Bench of the Gujarat High Court, goes to reveal that an application for restoration of possession in a suit under Section 6 of the Specific Relief Act, 1963 , was filed, which was dismissed by the trial Court. An appeal was filed against the same which was accepted and the order of the trial Court was set aside and the defendants were directed to hand over the vacant possession of the shop to the tenant. A revision- petition was filed against that order. In the revision- petition a plea was taken that no appeal against the order passed by the trial Court under Section 6 of the Specific Relief Act, 1963 , was maintainable. However in Ramesh Devchand Pala-s case (supra) it was held that a plea of non-maintainability of the appeal could not be allowed to be raised for the first time, in the revision-petition as it was not raised before the first Appellate Court and also because the plaintiff who had filed the suit for restoration of possession was illegally dispossessed by the defendant by taking law into his own hands. It may be stated here that such an observation made by the Gujarat High Court in Ramesh Devchand Pala-s case (supra) runs counter to Bhagwant Rai and other-s case (supra) decided by the Apex Court wherein it was held that there cannot be estoppel against the statute. Even if no such objection was -taken by the Counsel for the appellant during the course of appeal before the first Appellate Court the same (appeal) was not maintainable and on the other hand, was barred by the provisions of Section 6(3) of the Specific Relief Act 1963. Even if no such objection was -taken by the Counsel for the appellant during the course of appeal before the first Appellate Court the same (appeal) was not maintainable and on the other hand, was barred by the provisions of Section 6(3) of the Specific Relief Act 1963. He was thus not estopped, from taking such a plea in the present Regular Second Appeal in view of the settled position of law that there cannot be any estoppel. Against the statute. No help, therefore, can be drawn by the Counsel for the appellant from Ramesh Devchand Pala-s case (supra) as the principle of law laid down therein is contrary to the principle of law laid down in Smt. Ganga Bai-s Prem Singh and others and Bhagwant Rai and others cases (supra) decided by the Apex Court. The submission of the Counsel for the respondent being without merit must fail and the same stands rejected. 14. The counsel for the respondent also submitted that since the appellant took law into his own hands the Court in exercise of its inherent powers can also order the restoration of possession to him. There is no dispute with regard to such a proposition of law. However in the Regular Second Appeal, such a prayer cannot be entertained as the jurisdiction of this Court is only confined to the decision of substantial question of law. The respondent shall however at be at liberty to resort to any other remedy which may be available to him under the provisions of law for the purpose of restoration of possession of the property in dispute which he was allegedly illegally dispossessed. The submission of the Counsel for the respondent therefore being without merit must fail and the same stands rejected. 15. The judgment and decree of the first Appellant Court being without jurisdiction, is void abinitio and is liable to be set aside. The substantial question of law is answered in favour of the appellant. 16. For the reasons recorded above the appeal is accepted with costs. The judgment and decree of the first Appellant Court are set aside. However it is made clear that the plaintiff/respondent shall be at liberty to resort to any other remedy which may be available to him under the provisions of law for restoration of possession of the property in dispute from which he was allegedly illegally dispossessed.