Shew Vallab Bangur & Shree Ballabh Bangur v. Kedar Nath Sen
2019-08-21
SANJIB BANERJEE, SUVRA GHOSH
body2019
DigiLaw.ai
JUDGMENT : 1. The appeal is directed against an order dated June 11, 2019 passed on an injunction application in a suit relating to a small office space in a building across the street from this court which is teeming with lawyers. 2. The plaintiff-respondents are Advocates. 3. There is no dispute that the appellant herein is the owner of the property. There appears also to be little dispute that the appellant or the predecessor-in-interest of the appellant as landlord created a tenancy in favour of a person without any right to sublet or create any sub-tenancy and such tenancy has since been surrendered. The plaintiffs, claiming to have been inducted into the premises by the tenant who has since surrendered the tenancy, instituted the suit by asserting to be in possession of the spaces in question of a particular floor of the building. It does not appear, on a meaningful reading of the plaint, that any credible case of tenancy or sub-tenancy or lawful entry into possession by the plaintiffs is made out in the plaint. In particular, there does not appear to be any reference to any rent paid or attempted to be paid or even any agreement as to the rent or the other circumstances pertaining to the alleged possession of the plaintiffs at the suit premises. 4. Despite such position and despite it being apparent that the appellant herein was the true owner of the property, an order of injunction has been issued in favour of the plaintiffs on the reasoning that no person in possession of any immovable property can be dispossessed therefrom otherwise than in accordance with procedure established by law. 5. It is true that Section 6 of the Specific Relief Act, 1963 permits a person who has been unlawfully dispossessed from any immovable property in his occupation to approach the appropriate civil court within six months of the dispossession and seek repossession without establishing title. The cause of action in such situation is the dispossession of the plaintiffs otherwise than by procedure established by law.
The cause of action in such situation is the dispossession of the plaintiffs otherwise than by procedure established by law. However, such principle cannot be stretched to an absurdity to imply that a person who cannot establish any modicum of title or any legal basis as to how he entered into possession of the suit premises may file a quia timet action, not being a suit under Section 6 of the Specific Relief Act, and claim an injunction against the true owner of the property on the allegation that he was in possession of the relevant property. Since this is not a scenario covered by Section 6 of the said Act, the plaintiffs here had to establish some modicum of title before an injunction could be issued in their favour on a prima facie satisfaction as to their lawful possession. 6. In this case, even the alleged possession of the plaintiffs is in serious doubt. A counter-claim has been filed and the appellant herein has claimed to be in possession of the suit premises. The court took a prima facie view that the plaintiffs were in possession of the office-space or cubicles on some specious ground which is not acceptable. 7. The appellant relies on a judgment reported at (2004) 3 SCC 137 for the enunciation of the law, inter alia, at paragraph 25 of the report. The relevant passage is quoted: “25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963, can the trespasser seek injunction against the true owner? This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn. It was held, after referring to Woodroffe: Law Relating to Injunctions; Goyle, L.C.: Law of Injunctions; Bean, David: Injunctions; Joyee: Injunctions and other leading articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this Court quoted Shiv Kumar Chadha v. Municipal Corpn.
It was held, after referring to Woodroffe: Law Relating to Injunctions; Goyle, L.C.: Law of Injunctions; Bean, David: Injunctions; Joyee: Injunctions and other leading articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this Court quoted Shiv Kumar Chadha v. Municipal Corpn. of Delhi wherein it was observed that injunction is discretionary and that: “Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court.” 8. Apart from the facts and the applicable law there is an underlying stench to the order impugned herein. It would not augur well for the system to ignore the underlying message and to brush it under the carpet. It is evident from the order impugned that since it was a set of lawyer-plaintiffs, the discretion may have been exercised in their favour by the trial court. Such conduct and the exercise of discretion in such manner are wholly unacceptable. It should matter little to a court as to the status, the position, the caste, creed, colour or vocation of a litigant when exercising discretion. Discretion is not a slave of a judge, there are sound judicial principles on which discretion has to be exercised and rather than discretion being a slave to the judge, it is the judge who is a slave to established judicial principles while exercising discretion. 9. For the reasons aforesaid, the order impugned is set aside and the injunction issued in favour of the respondent-plaintiffs vacated with immediate effect. 10. FMA 943 of 2019 together with CAN 7303 of 2019 are allowed as above. 11. There will be no order as to costs. 12. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.