Saturday 21 March 2015

When suit for mandatory injunction is tenable?


 The learned Judge of the trial Court has proceeded to lay 
much   emphasis   on   prayer   clause   (d)   in   the   plaint   to   hold   that   the 
plaintiffs   were   seeking   possession   of   the   suit   property.     The   specific 
averments made in the plaint whereby the plaintiffs have asserted their 
possession even on the date of filing of the suit have been ignored.  It is, 
therefore, clear that the learned Judge of the trial Court committed a 
serious error while holding that the Court had no pecuniary jurisdiction 

to entertain the suit.  The impugned order if permitted to operate would 
be corrected in writ jurisdiction.
result in a jurisdictional error                                            
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.2595 OF 2013
PETITIONERS: 
 Ajay   S/o   Bhalchandra   Nandedkar, 
                                                               
­VERSUS­

 Mrunali   Prabhakar   Gadgil, 
CORAM: A.S. CHANDURKAR, J.
Citation; 2015(2)ALLMR134, 2014(5)ABR829, 2014(6)MhLj629
DATE OF PRONOUNCEMENT OF JUDGMENT: 10­-09-­2014 


By   this   petition,   the   petitioners   –   original   plaintiffs   have 


challenged the order dated 4­5­2013 passed below Exhibit­46 in Regular 
Civil Suit No.124 of 2013 whereby it has been held that the Court of the 
4th  Joint  Civil  Judge  (Jr. Dn.), Akola  had no  pecuniary  jurisdiction to 
entertain and try the said suit.
2.
On 10­5­2013, notice for final disposal of the writ petition 
was   issued   to   the   respondents.     Accordingly,   I   have   heard   Shri   S.   A. 
Mohta, the learned Counsel for  the petitioners, Smt. P.M. Chandekar, 
the learned Counsel for the respondent No.1 and Shri A. R. Deshpande, 
the learned Counsel for the respondent No.3. 
3. Rule. Heard finally with the consent of the parties.
4. The petitioners are the original plaintiffs. It is the case of 
the   petitioners   that   their   predecessor,   Bhalchandra   Nandedkar   had 
purchased   the   suit  property   from   defendant   No.1   vide  registered   sale 
deed dated 14­4­1977.  It is their case that they being the legal heirs of 
said Bhalchandra Nandedkar, were the owners and occupiers of said suit 

property.   The   plaintiffs   and   the   defendant   No.4   thereafter   settled   at 
Nagpur and the suit property was being looked after by their relatives at 
Akola. It is their further case that they were informed by their relatives 
that   certain   construction   work   was   being   undertaken   on   the   suit 
property   and   on   making   enquiries,   they   learnt   that   on   2­3­2012,   the 
defendant   No.1   had   sold   the   suit   property   to   defendant   No.2   and 
thereafter, on 4­10­2012, the defendant No.2 had sold the suit property 
to defendant  No.3.   As the request  made by the plaintiffs  to stop the 
construction work was not acceded to, a police report was lodged and 
thereafter   on   15­3­2013,   the   aforesaid   suit   for   permanent   injunction 
seeking to restrain the defendants from selling or transferring the suit 
property, from disturbing and interfering with their possession as well as 
from making any kind of construction thereon was filed.  Similarly, there 
was   a   prayer   for   grant   of   mandatory   injunction   for   removal   of   the 
construction   erected   thereon   and   to   restore   the   suit   property   to   its 
original position.
5.
Along   with   the   aforesaid   suit,   the   petitioners   moved   an 
application   for   grant   of   temporary   injunction.     The   defendant   No.3 
raised   an   objection   to   the   pecuniary   jurisdiction   of   the   Court   on   the 
ground that the plaintiffs were seeking possession of the suit property by 
making a prayer for mandatory injunction.  On 20­3­2013, a preliminary 
issue was framed as regards pecuniary jurisdiction of the Court to try the 
suit.   After hearing both sides, the learned Judge of the Trial Court on 
4­5­2013   held   that   the   Court   of   Civil   Judge,   Junior   Division   had   no 

pecuniary jurisdiction and the plaintiffs were directed to value the suit 
for   relief   of   possession   at   Rs.40,00,000/­   and   deposit   requisite   Court 
fees.  Said order has been assailed by the plaintiffs in this writ petition.
6.
Shri  S. A.  Mohta,  the learned Counsel  for  the  petitioners 
submitted that the plaintiffs  had not prayed for possession of the suit 
property.   The   suit   was,   in   fact,   a   simplicitor     suit   for   permanent 
injunction.   The   mandatory   injunction   sought   was   to   remove   the 
construction alleged to be illegally made by the respondent No.3 and to 
restore the suit property to its original  position.  He submitted that in 
absence of there being any prayer for possession, the trial Court erred in 
holding that the suit was, in fact, one for possession.  He further sought 
to   rely   upon   the   order   passed   by   the   trial   Court   vide   Exh.5   wherein 
temporary   injunction   was   granted   restraining   the   defendants   from 
carrying out any construction work or from alienating the suit property. 
He,   therefore,   submitted   that   the   impugned   order   deserves   to   be   set 
aside.
7.
On   the   other   hand,   Smt.   P.   M.   Chandekar,   the   learned 
Counsel appearing for the respondent No.1 and   Shri A. R. Deshpande, 
the   learned   Counsel   for   the   respondent   No.3   submitted   that   the   trial 
Court rightly found that the prayer for mandatory injunction was such 
that   under   its   garb,the   plaintiff   was   seeking   possession   of   the   suit 
property. It was submitted that the averments in the plaint revealed that 
it   was   the   case   of   the   plaintiffs   that   the   construction   was   being 
undertaken on the suit property and the same, therefore, made it clear 

that it was the defendant No.3 who was in possession and it was he who 
was   making   construction   thereon.   The   learned   Counsel   for   the 
respondents relied upon the judgment of learned Single Judge of this 
Court   in   the   case   of  Vijaya   wd/o   Vijay   Vitthalani   and   others   Vs  
Jagdish Kanjubhai Vitthalani, reported in 2010 (3) Mh.L.J., 624 and 
in the case of   Ram Gopal Gupta  vs. Rajesh  J. Kothari, reported  in 
1990(3) Bom. C. R. 569 in support of their contentions.
I   have   carefully   considered   the   aforesaid   submissions.     I 
8.
have also gone through the plaint in Regular Civil Suit No.124 of 2013. 
Before   considering   the   challenge   to  the   impugned   order,   it   would   be 
necessary  to refer   to the  settled position of law  that can be  gathered 
from the following decisions of the Supreme Court.
The   question   of   court­fees   must   be 
      considered in the light of the allegations 
            made in the plaint and its decision cannot 
                   be   influenced   either   by   the   pleas   in   the 
                          written statement or by the final decision 
                                of the suit on merits.   AIR 1958 SC 245,  
                                         Sathappa   Chettiar   v.   Ramanathan  
                                            Chettiar
(b) For the purposes of valuation of the suit 
           for   determination   of   the   court   fees 
                payable   thereon,   what   is   relevant   is   the 
                      plaint.   The   averments   made   and   relief 
                           sought   in   the   plaint   determines   the 
                                character  of the suit for  the purposes  of 
                                       the court fees payable thereon.   What is 
                                              stated   in   the   written   statement   is   not 
                                                    material   in   this   regard.  1994   (4)   SCC  
                                                          349,   Ram   Narain   Prasad   and   another  
                                                               Vs. Atul Chander Mitra and others 
(c) The court fee has to be paid on the plaint 
             as   framed   and   not   on   the   plaint   as   it 
                     ought   to   have   been   framed   unless   by 
(a) 

astuteness employed in drafting the plaint 
the   plaintiff   has   attempted   at   evading 
payment of court fee or unless there be a 
provision of law requiring the plaintiff to 
value the suit and pay the court fee in a 
manner   other   than   the   one   adopted   by 
the plaintiff. The court shall begin with an 
assumption,   for   the   purpose   of 
determining   the   court   fees   payable   on 
plaint,   that   the   averments   made   therein 
by the plaintiff are correct.
It   is   the   substance   of   the 
relief sought for and not the form which 
will be determinative of the valuation and 
payment of court fee.  The defence taken 
in   the   written   statement   may   not   be 
relevant   for   the   purpose   of   deciding   the 
payment of court fee by the plaintiff.   If 
the   plaintiff   is   ultimately   found   to   have 
omitted to seek an essential relief which 
he ought to have prayed for, and without 
which the relief sought for in the plaint as 
framed   and   filed   cannot   be   allowed   to 
him, the plaintiff shall have to suffer the 
dismissal of the suit.  2002 (1) SCC 304,  
Kamaleshwar   Kishore   Singh   vs.   Paras  
Nath Singh and others.
9.
It is, therefore, necessary in this background to consider the 
averments made in the plaint. In para 3 thereof, it has been stated thus:
“3. 
It   is   submitted   that   late   Bhalchandra 
Nandedkar has purchased the suit purchased the suit 
property,   from   defendant   no.1   by   a   registered   sale 
deed   dated   14­04­1977   (Fourteenth   day   of   April 
Nineteen   Seventy   Seven)   for   valuable   consideration 
and on the date of sale deed, the defendant no.1 has 
handed   over   actual   physical   possession   of   the   suit 
property   to   him.   In   this   way   since   14­04­1977 
(Fourteenth   day   of   April   Nineteen   Seventy   Seven) 
deceased   Bhalchandra   Nandedkar   was   owing   and 
possessing   the   suit   property,   as   its   absolute   owner 
and after his death, since from 15­07­1984 (Fifteenth 
day   of   July   Nineteen   Eighty   Four)   and   onwards 
continuously till today, the plaintiffs no.1 to 4 along 
with   defendant   no.4   are   owing   and   possessing   the 
suit property.”

Thereafter in para 9, it has been stated as under:
“9.
It   is   most   humbly   and   respectfully 
submitted   that   since   after   14­04­1977   (Fourteenth 
day   of   April   Nineteen   Seventy   Seven),   neither   the 
defendant no.1 was owner nor she was in possession 
of the suit property and therefore, the defendant no.1 
is having no right, power or authority to transfer the 
title and ownership or to hand over the possession of 
the suit property to any body else.
It is submitted that the defendant no.1 to 
3 cannot contend and cannot allege that on the basis 
of alleged sale deeds, the plaintiffs have been ousted 
from   the   possession   of   the   suit   property.   It   is 
submitted that as on today also the plaintiffs, along 
with   defendant   no.4,   are   in   possession   of   the   suit 
property as per the law. Therefore it is necessary to 
grant   injunction   against   the   defendant   no.1   to   3. 
Hence, this suit.”
Prayer clauses (b)(c) & (d) of the plaint are as under:
“(b)
The   defendant   no.1   to   3,   their   agents 
and   servants   and   any   person   claiming   through   the 
defendants,   be   kindly   permanently   restrained   from 
disturbing and from interfering with the possession of 
the plaintiffs over the suit property, in any mode or 
manner.
(c)
The   defendant   no.3,   his   agents   and 
servants   and   any   person   claiming   through   the 
defendant   no.3,   be   kindly   permanently   restrained 
from making any kind of development or construction 
work on the suit property in any mode or manner.
(d)
A   decree   for   mandatory   injunction   be 
passed   against   defendant   no.3   and   thereby   the 
defendant   no.3   be   directed   to   remove   the 
construction erected on the suit property and to refill 
pits   and   to   restore   back   the   suit   property   to   its 
original   position   by   removing   entire   articles   there­
from, at his cost and expenses and on failure of the 
defendant   no.3   to  do   same,  the   plaintiffs   be   kindly 
allowed   and   permitted   to   do   same   at   the   cost   and 
expenses of defendant no.3.”

10.
Under   provisions   of   Order   VI   Rule   2,   material   facts   are 

required to be pleaded on which the party pleading relies for his claim. 
The prayers made are for the purposes of seeking relief on the basis of 
such averments made in the plaint. The prayer clauses cannot be read in 
isolation, but they have to be read in conjunction with the pleadings in 
the   plaint.     In   fact,   the   prayers   would   have   to   be   understood   in   the 
context of the pleadings made in that regard.
11.
The pleadings in the plaint indicate that it is the specific 
case   of   the  plaintiffs   that   after   purchase   of   the   aforesaid   property   by 
Bhalchandra Nandedkar on 14­4­1977, he was put in actual possession. 
Said possession  continued  thereafter  without   any  interruption.    There 
are specific assertions in the plaint that even on the date of filing of the 
suit, it was the plaintiffs who were in possession. In this background, if 
the   prayers   as   made   are   examined,   it   would   be   clear   that   the   same 
proceed on the premise that the plaintiffs were in possession.  Therefore, 
reading prayer clause (d) in the plaint along with other averments in the 
plaint, it cannot be said that the plaintiffs were seeking possession of the 
suit property by virtue of making said prayer. When it is the consistent 
case   of   the   plaintiffs   that   they   were   always   in   possession   of   the   suit 
property till filing of the suit, then prayer clause (d) cannot be read in a 
manner that would negate the averments made in the plaint.  In fact, on 
a plain reading of said prayer clause, it cannot be said that the plaintiffs 
were seeking possession of the suit property. Moreover, the Court would 
have to proceed on the basis of assumption that the averments made in 
the plaint are correct.    On reading the plaint  as a whole,  the prayers 

made in that regard would have to be considered.  The valuation of the 
suit as arrived at would be on the basis of such prayers. It cannot be held 
to be a case of astute drafting of the plaint as sought to be urged by the 
learned Counsel for the respondent No.3, moreso when the plaint is read 
in its entirety.
12.
In   so   far   as   the   decisions   relied   upon   by   the   learned 
Counsel   for   the   respondents  are  concerned,  the  same  proceed   on  the 
basis of the facts noted therein. In Vijaya (supra), it was observed that to 
claim physical possession, a person should be in such a position that he 
can   deal   with   the   property   to   the   inclusion   of   others.   The   said 
observations have been made when this Court was considering a second 
appeal   on   merits.   Similarly,   in   Ram   Gopal   Gupta   (Supra),   it   was 
observed  that  if a  plaintiff  seeks  to evict   the  defendant  from  the  suit 
premises by an order of injunction, it would, in effect, be a case where 
he was seeking recovery of possession.  In view of the specific averments 
of the plaintiffs, the observations made in both the aforesaid judgments 
cannot be made applicable to the facts of the present case.
13.
 The learned Judge of the trial Court has proceeded to lay 
much   emphasis   on   prayer   clause   (d)   in   the   plaint   to   hold   that   the 
plaintiffs   were   seeking   possession   of   the   suit   property.     The   specific 
averments made in the plaint whereby the plaintiffs have asserted their 
possession even on the date of filing of the suit have been ignored.  It is, 
therefore, clear that the learned Judge of the trial Court committed a 
serious error while holding that the Court had no pecuniary jurisdiction 

to entertain the suit.  The impugned order if permitted to operate would 
be corrected in writ jurisdiction.
14.
result in a jurisdictional error and hence, the same will have required to 
In view of aforesaid, I pass the following order.
      ORDER
(i)
The order dated 4­5­2013 passed below Exh.46 is quashed 
and set aside.
It is held that the Court of Civil Judge, Junior Division has 
(ii)
pecuniary   jurisdiction   to   try   the   suit   on   the   basis   of   the 
valuation as made in para 12 of the plaint.
Rule is made absolute with no order as to costs.
(iii)
                                           JUDGE 
                     


Print Page

No comments:

Post a Comment