TEK SINGH versus SHASHI VERMA AND ANR.

[2019] 3 S.C.R. 697

TEK SINGH

SHASHI VERMA AND ANR.

(Civil Appeal No. 1416 of 2019)FEBRUARY 04, 2019

[R. F. NARIMAN AND VINEET SARAN, JJ.]

Code of Civil Procedure, 1908:

s. 115 proviso (As inserted by amendment in 1999) – Revisionaljurisdiction of High Court – Scope of – Held: In view of the provisorevisional jurisdiction is not maintainable against interlocutoryorders – Scope of jurisdiction u/s. 115 is limited to rectifyjurisdictional errors only.

Or. XXXIX, r. 1 – Interlocutory mandatory injunction – Grantof – Criteria – Held: When mandatory injunction is granted at interimstage, much more than prima facie case has to be made out.

Allowing the appeal, the Court

HELD: 1. The High Court set aside the concurrent findingsof fact and allowed revision petition, without dealing with any ofthe aspects set out by the first Appellate Court. The 1999amendment to the CPC added proviso Section 115 CPC. Areading of this proviso will show that, after 1999, revision petitionsfiled under Section 115 CPC are not maintainable againstinterlocutory orders. Even otherwise, the revisional jurisdictionunder Section 115 CPC is to be exercised to correct jurisdictionalerrors only. [Paras 5, 6 and 7][700-B, C, H]

D.L.F. Housing & Construction Company Private Ltd.,New Delhi v. Sarup Singh and Others [1970] 2 SCR368; Dorab Cawasji Warden v. Coomi Sorab Wardenand Others (1990) 2 SCC 117 : [1990] 1 SCR 332 –relied on.

2. When mandatory injunction is granted at the interimstage, much more than mere prima facie case has to be madeout. [Para 8][702-F]

[2019] 3 S.C.R.

ACase Law Reference

[1970] 2 SCR 368

relied on

Para 7Para 8

[1990] 1 SCR 332

relied on

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1416Bof 2019.

From the Judgment and Order dated 10.04.2018 of the High Courtof Himachal Pradesh at Shimla in CMPMO No. 154 of 2017.

E. C. Agrawala, Rajesh Kumar, Ms. Prashi Tyagi, Advs. for theAppellant.C

B. S. Banthia, Adv. for the Respondents.

The Judgment of the Court was delivered by

R. F. NARIMAN, J. 1. Leave granted.

2. The Respondent No.1 filed Civil Suit dated 05.03.2013 beforeDthe Civil Judge, Senior Division, Solan under Section 6 of the SpecificRelief Act in which the following reliefs were claimed:

“(a) Declaring that the effect the plaintiff was running business inShop No. 3 in the name and style M/s Om Garments owned byproforma Defendant No. 2 in Anand Complex, The Mall SolanEw.e.f. 28.01.2013 on the basis of partnership deed of the saiddate with proforma Defendant No. 2 and the plaintiff has beenwrongly dispossessed by the Defendant No. 1 from the Shop No.3 in the intervening night of 03.03.2013 – 04.03.2013 illegally,wrongfully, without the consent of the plaintiff or proformaDefendant No. 2.F(b) Decree for permanent prohibitory injunction restraining theDefendant No. 1 from causing any interference on any portion ofsuit premises/Shop No. 3 mentioned above.”

3. written statement was filed by the appellant herein denyingGthe averments made in the Suit and stating that he has been in possessionsince 2004 as tenant of the landlady, who is Respondent No.2 beforeus.

4. The landlady also filed written statement dated 05.07.2013 inwhich she stated that apart from the partnership entered into withHRespondent No.1, the petitioner was her tenant w.e.f. 2004. An Order

39 Rule 1 application was filed which was dismissed by the learnedSingle Judge on 21.04.2015 saying that the relief asked for could not begranted at this stage as it would amount to decreeing the Suit itself. Anappeal filed before the Additional District Judge met with the same fate.By the judgment dated 19.12.2016, the appellate Court held:

“However, when it is an admitted case of Defendant No. 2admittedly land lady of the suit shop that she has rented the suitshop to Defendant No. 1/Respondent and has set up counterdefence that in fact Defendant No. 1 has sublet the suit shop tothe plaintiff which is not at all the case of the plaintiff primafacieit is clear on record that suit shop was rented by Defendant No. 2to respondent/defendant No. 1 and Defendant No. 1 has beenrunning suit shop since 17.09.2004 when both the Defendantshave also reduced rent agreement into writing, copy of which isalso available in the case file. As per rent agreement, the tenancyhad commenced w.e.f. 01.09.2004. Nothing has come on record,if Defendant No. 1/respondent had ever vacated/surrendered thepossession of the shop in favour of landlady nor it is the case ofDefendant No. 2 that she ever sought eviction of Defendant No.1 from the suit shop. It appears from the copy of partnershipdeed having been relied upon by the applicant that both applicantand Defendant No. 2 had connived with each other in order tooust Respondent No. 1 who is tenant over the suit shop and filedthe suit as well as application for temporary and mandatoryinjunction in the Court. Moreover, when the applicant herself hascome with the plea that she is out of possession of the suit shopand she has prayed that possession in her favour be restored quathe suit shop by way of temporary injunction and at the same timethe applicant has failed to prove on record that she has primafaciecase of balance of convenience lies in her favour or that she isgoing to suffer irreparable loss as discussed above hence byallowing of the application as prayed by applicant would amountto decree of the suit in favour of the applicant without giving theparties to prove their respective claims by leading evidence. Evenwhen it has come on record that Respondent No. 1 is in actualpossession of the suit property which was rented out to him byDefendant No. 2 landlady in the year 2004 and nothing has comeon record that the Defendant No. 1 had ever been evicted fromthe suit shop in accordance with law or he ever surrendered the

DEFGH

Apossession of the suit property in favour of defendant No. 2, it isclear on record that Respondent No. 1 has primafacie case andbalance of convenience also lies in her favour.”

5. By the impugned judgment dated 10.04.2018, learned SingleJudge of the High Court of Himachal Pradesh set aside the concurrentBfindings of fact and allowed revision petition. This was done withoutdealing with any of the aspects set out by the first Appellate Court.From what one is able to gather, given the language used in the judgment,it appears that the learned Judge was swayed by the fact that policecompliant had been filed on 03.02.2013 in which dispossession wasacquiesced in.C

6. We are constrained to observe that every legal canon has beenthrown to the winds by the impugned judgment. First and foremost, the1999 amendment to the CPC added proviso Section 115 which readsas follows:

“115. Revision-(1) The High Court may call for the record of anyDcase which has been decided by any Court subordinate to suchHigh Court and in which no appeal lies thereto, and if suchsubordinate Court appears-

(a) to have exercised jurisdiction not vested in it by law, or

(b) to have failed to exercise jurisdiction so vested, or

E(c) to have acted in the exercise of its jurisdiction illegally or withmaterial irregularity,

the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this Section, vary orreverse any order made, or any order deciding an issue, in theFcourse of suit or other proceeding, except where the order, if ithad been made in favour of the party applying for revision, wouldhave finally disposed of the suit or other proceedings.

Xxx xxx xxx

(3) revision shall not operate as stay of suit or other proceedingbefore the Court except where such suit or other proceeding isstayed by the High Court.

reading of this proviso will show that, after 1999, revisionpetitions filed under Section 115 CPC are not maintainable againstinterlocutory orders.H

7. Even otherwise, it is well settled that the revisional jurisdictionunder Section 115 CPC is to be exercised to correct jurisdictional errorsonly. This is well settled. In D.L.F. Housing & Construction CompanyPrivate Ltd., New Delhivs. Sarup Singh and Others(1970) 2 SCR368 this Court held:

“The position thus seems to be firmly established that whileexercising the jurisdiction under Section 115, it is not competentto the High Court to correct errors of fact however gross or evenerrors of law unless the said errors have relation to the jurisdictionof the Court to try the dispute itself. Clauses (a) and (b) of thissection on their plain reading quite clearly do not cover the presentcase. It was not contended, as indeed it was not possible tocontend, that the learned Additional District Judge had eitherexercised jurisdiction not vested in him by law or had failed toexercise jurisdiction so vested in him, in recording the order thatthe proceedings under reference be stayed till the decision of theappeal by the High Court in the proceedings for specificperformance of the agreement in question. Clause (c) also doesnot seem to apply to the case in hand. The words “illegally” and“with material irregularity” as used in this clause do not covereither errors of fact or of law; they do not refer to the decisionarrived at but merely to the manner in which it is reached. Theerrors contemplated by this clause may, in our view, relate eitherto breach of some provision of law or to material defects ofprocedure affecting the ultimate decision, and not to errors eitherof fact or of law, after the prescribed formalities have beencomplied with. The High Court does not seem to have advertedto the limitation imposed on its power under Section 115 of theCode. Merely because the High Court would have felt inclined,had it dealt with the matter initially, to come to differentconclusion on the question of continuing stay of the referenceproceedings pending decision of the appeal, could hardly justifyinterference on revision under Section 115 of the Code when therewas no illegality or material irregularity committed by the learnedAdditional District Judge in his manner of dealing with this question.It seems to us that in this matter the High Court treated the revisionvirtually as if it was an appeal.” at Pg.373.

8. Learned counsel appearing for the respondents argued beforeus and attempted to support the judgment. He cited the judgment of

ADorab Cawasji Wardenvs. Coomi Sorab Warden and Others(1990)2 SCC 117. Para 16 of this judgment is set out hereinbelow:

“16. The relief of interlocutory mandatory injunctions are thusgranted generally to preserve or restore the status quo of the lastnon-contested status which preceded the pending controversy untilBthe final hearing when full relief may be granted or to compel theundoing of those acts that have been illegally done or the restorationof that which was wrongfully taken from the party complaining.But since the granting of such an injunction to party who fails orwould fail to establish his right at the trial may cause great injusticeor irreparable harm to the party against whom it was granted orCalternatively not granting of it to party who succeeds or wouldsucceed may equally cause great injustice or irreparable harm,courts have evolved certain guidelines. Generally stated theseguidelines are:-

(1) The plaintiff has strong case for trial. That is, it shall be ofDa higher standard than prima facie case that is normally requiredfor prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury whichnormally cannot be compensated in terms of money.

E(3) The balance of convenience is in favour of the one seekingsuch relief.”

This judgment also makes it clear that when mandatory injunctionis granted at the interim stage much more than mere prima facie casehas to be made out. None of the aforesaid statutory provisions orjudgments have either been adverted to or heeded by the impugnedFjudgment.

9. We, therefore, set aside the impugned judgment and restorethe judgment of the Courts below.

10. Since the suit filed is Section 6 suit which is summaryGproceeding in itself, the trial Court should endeavour to dispose of theSuit itself within period of six months from today.

11.,The appeal is allowed in the aforesaid terms.

Kalpana K. Tripathy