Whether suit for injunction simplicitor by landlord or tenant is maintainable in civil court?

Section 28 of the Bombay Rent Act, which has been off used and reproduced, grants exclusive jurisdiction only to the Court of Small Causes at Bombay (Rent Court) in respect of all suits and proceedings between the landlord and tenant for

(i) recovery of rent,

(ii) recovery of possession,

(iii) relating to recovery of rent or possession of any premises tenanted, and also

(iv) for any application made under the Act and

(v) to deal with any claim or question arising out of

(a) the Act or

(b) any of its provisions.

15. The suit filed by the Respondent is a suit for injunction simplicitor. The suit is neither for recovery of rent, nor for recovery of possession of any premises nor relating to the recovery of rent, nor relating to the recovery of possession of the premises. It is not shown under which provision of the Rent Act the issues in the suit could have been determined as an application or claim made under the Rent Act or under which provision of the Rent Act any question arising for determination in the Respondent's suit for injunctions simplicitor could be tried.

16. The Respondent's Advocate upon the Courts' query contended that an application for the reliefs sought in the suit if made in the Rent Court would have to be made under Section 12(1) of the Rent Act. Section 12(1) relates to the disentitlement of landlords for recovery of possession of the tenanted premises until the tenant pays or is ready and willing to pay the rent and observes and performs the conditions of tenancy which are consistent with the Rent Act. The disentitlement under Section 12 is only for recovery of rent or recovery the possession of the tenanted premises. There is no disentitlement under that Section for grant of any injunction.

17. It is contended on behalf of the Appellant that the suit seeks to enforce the negative covenant in the admitted agreement between the parties of 1972. It requires the Appellant not to obstruct other persons from using the open space which is meant for the purpose of access or to put up construction of any temporary or permanent nature in the open space. This, therefore, is one of the conditions of tenancy. The suit claims that those conditions are breached. The suit requires, enforcement of the observations and performance of those conditions and hence, the reliefs sought in the suit must be by way of an application or a claim arising under the Act and specifically under the provisions contained in Section 12(1) thereof. The argument is misconceived Section 12(1) only shows disentitlement of landlords to sue until a particular time. Neither the landlord nor the tenant can sue under that provision. When there is a breach of the terms and conditions of tenancy, the landlord's disentitlement to sue would come to an end. If the landlord seeks recovery of possession for non-observance and non-performance of certain conditions of tenancy, he would sue under Section 13 of the Bombay Rent Act. Neither the landlord nor the tenant who seeks only an injunction, either prohibitory or mandatory, can sue under Section 12 of the Act.

18. The Rent Act essentially seeks to protect tenants from actions for recovery of possession or those relating thereto. It does not go further. It specifically omits and does not protect landlords seeking injunction simplicitor. Consequently under Section 28 the inherent jurisdiction granted to the Special Court is only for matters relating to recovery of rent, and matters relating to recovery of possession. The Suit for injunction, therefore, must continue to remain only in the Civil Court.

IN THE HIGH COURT OF BOMBAY

First Appeal (ST) No. 13850 of 2007

Decided On: 28.06.2007

 Packing Paper Products  Vs.   Nicaf Private Ltd. and Ors.

Hon'ble Judges/Coram:

R.S. Dalvi, J.

Citation: 2007(5) MHLJ 34,AIR 2007(NOC)2407 Bom

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When civil suit for injunction simplicitor is maintainable?

Learned Counsel for the Defendants
made the following submissions in addition to their submissions on the
                                                                                                                           

constitutional provisions, which have been dealt with above, in support of their
case that interim relief should not be granted to the Plaintiffs :
(a) A suit for injunction simplicitor such as the present, unaccompanied by a
prayer for declaration, cannot lie; and
(b) Plaintiff Nos.2 to 5, not being in possession of the trust property, ought to
have claimed the relief of possession and without such relief being claimed and
considered, no interim relief in the form claimed by the Plaintiffs could be granted.
28. The arguments of the Defendants that a suit simplicitor for injunction
without a prayer for declaration or possession does not lie, is based on an
analysis of the relevant provisions of the Specific Relief Act and particularly the
judgment of the Supreme court in the case of Anathula Sudhakar vs. P. Buchi
Reddy (2008) 4 SCC 594
                                       
. Section 36 of the Specific Relief Act provides that preventive relief is
granted at the discretion of the court by injunction, temporary or perpetual. As
provided by Section 37 of that Act, whereas temporary injunctions are granted
under, and regulated by, the Code of Civil Procedure, a perpetual injunction can
only be granted by a decree made at the hearing and upon merits of the suit. By
such perpetual injunction, the defendant is perpetually enjoined from assertion of
a right, or from commission of an act, which would be contrary to the plaintiff's
rights. Section 38 provides for the circumstances in which a perpetual injunction
may be granted. In the first place, a perpetual injunction may be granted to
prevent the breach of an obligation, which exists in favour of the plaintiff.
Secondly, a perpetual injunction may be granted to prevent an invasion or threat
to invasion of the plaintiff's right to, or enjoyment of, property, in certain cases.
These cases are – (a) where the defendant is trustee of that property for the
plaintiff, (b) where there exists no standard for ascertaining the actual damage
caused, or likely to be caused, by the invasion, (c) where the invasion is such that
compensation in money would not afford adequate relief and (d) where the
injunction is necessary to prevent a multiplicity of judicial proceedings. This
completes the survey of the Specific Relief Act insofar as it relates to perpetual

injunction. This law, does not, in terms, require any declaration for claiming
perpetual injunction. The case of Anathula Sudhakar considered an altogether
different question, namely, where it is actually necessary to file a suit for
declaration and possession and where injunction is a mere consequential relief,
whether a mere suit for permanent injunction unaccompanied by prayers for
declaration and possession would lie. The Supreme Court considered four
cases : (A) where a plaintiff is in lawful possession of a property and such
possession is interfered with or threatened by the defendant, (B) where the title of
the plaintiff is not disputed, but he is not in possession, (C) where the plaintiff is in
possession, but his title is in dispute, or under a cloud, or where the defendant
asserts title thereto and there is also a threat of dispossession from the
defendant; and (D) where the plaintiff is neither in possession nor having a title
without cloud. The Court held that whereas in case A, a simplicitor injunction suit
would lie, in cases B, C and D it would not. In case B, the plaintiff will have to
seek a relief of possession, whereas in case C, the plaintiff will have to pray for a
declaration of his title and then a consequential relief of injunction and whereas,
in case D, he will have to sue for declaration, possession and title. What is to be
noted is that, in the first place, the whole discussion of the Supreme Court refers
to suits for possession – where the plaintiff either claims possession of property
or defends his possession of it. In such a suit, if the plaintiff has both title and
possession, he may simply sue for injunction; if he has title but not possession,
his real remedy lies in suing for possession and only consequentially for
injunction and not in merely asking for an injunction; and if there is a cloud on his
title, in the sense of there being some apparent defect in his title to the property
or when some prima facie right of a third party over it is made out or shown, the
remedy lies in seeking a declaration and a consequential relief of injunction.
There may even be a case where both want of possession and a clear title may
be apparent, in which case all three reliefs, namely, declaration, possession and
injunction, would have to be prayed for. These four cases are by no means
exhaustive of cases of perpetual injunction. There are myriad of cases, where we
may not be really concerned with title or possession directly, but where the
defendant invades or threatens to invade a right claimed by the plaintiff. These
cases countenance a suit for perpetual injunction simplicitor. A plaintiff may
                                                                                                                           

complain of a breach of an obligation existing in his favour or breach of his right
to do something, which amounts to a civil wrong or tort and claim an injunction to
prevent such breach. Our case really lies amongst these other cases. The
Plaintiffs here claim to be ordinary trustees who form the committee of
management of the Trust; their right to administer and manage the Trust is a civil
right; and if such right is invaded or breached, they have a cause of action to sue
for a perpetual injunction. They need not sue either for a declaration, since there
is no cloud on their right in the sense in which the Supreme Court has understood
it in Anathula Sudhakar, or for possession, since we are really concerned with
their right to administer and manage the Trust. The possession of the trust
property as such trustees or members of the managing committee is merely
incidental to this right. The objection of the Defendants on the ground of

maintenability of a simplicitor injunction suit is, thus, rejected.

   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 1022 OF 2014
IN
SUIT NO. 573 OF 2014
The Breach Candy Swimming Bath Trust & Ors. 
vs.
Dipesh Mehta & Ors. .

 CORAM : S.C. GUPTE, J.

 PRONOUNCED ON : 29 OCTOBER 2015
Citation; AIR2016(NOC)167 Bom

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Whether suit for injunction simplicitor is maintainable when declaration is not claimed?

The plaintiff has instituted present suit claiming for perpetual
injunction against the defendants restraining them from disturbing
his settled and peaceful possession over the suit land on the basis of
the alleged auction of 17.08.2004. The plaintiff has not sought any
declaration as regards the auction held on 17.08.2004. The learned
trial Judge observed that in view of Section 41(h) of the Specific
Relief Act, 1963, injunction cannot be granted when an equally
efficacious relief can certainly be obtained by any other usual mode
of proceeding. Since the plaintiff did not seek declaration, in view
of Section 41(h) of the Specific Relief Act, 1963, no injunction can
be granted. The courts below also held that the plaintiff did not
establish the ground of fraud raised in the suit.
 The learned
trial Judge rightly held that the plaintiff ought to have sought declaration as
regards actions taken by defendant No.1. In the present case, the plaintiff
has instituted suit for injunction simplicitor. In view of Section 41(h) of
the Specific Relief Act, 1963, no injunction can be granted in favour of the
plaintiff. 
IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.303 OF 2008
WITH
CIVIL APPLICATION NO.792 OF 2008

Yashwant Raghuram Jadhav Vs. Ratnagiri District Central Co-operative Bank Limited and others 

 CORAM : R. G. KETKAR, J.

Pronounced on: 6 TH MAY, 2014

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