Supreme Court: The family Court should not give final relief at interim stage

 By the impugned order, the court has directed the Court Receiver to take possession of the flat from the appellant and induct respondent-wife in the flat during the pendency of the appeal.

{Para 3}

4. In the appeal filed, the appellant has called in question the correctness or otherwise of the findings and the conclusion reached by the Family Court in Petition No. A-1072/2000 dated 6.2.2007, wherein the Family Court has reached the conclusion that both the husband and wife are joint owners of flat bearing No. 303, Rajesh Nagar Co-operative Housing Society Ltd., Borivali (West), Mumbai.

Even before giving a verdict on the findings and the conclusions reached by the Family Court, by way of interim relief, the court has granted the main relief itself. This, in our opinion is unsustainable. It is settled legal position, that by way of interim relief, final relief should not be granted till the matter is decided one way or the other.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1788 of 2009 

Decided On: 23.03.2009

 Mehul Mahendra Thakkar  Vs. Meena Mehul Thakkar

Hon'ble Judges/Coram:

Tarun Chatterjee and H.L. Dattu, JJ.

Citation: 2009 (14) SCC 48: MANU/SC/0425/2009

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Whether court should decide issue of res judicata at interim stage?

 In such situation, at this interim stage, it becomes difficult to accept that the Suit is barred by the principle of res judicata, under section 11 of Civil Procedure Code. Moreover, it has to be stated that, the plea raised that the present Suit is being barred by the principle of res judicata, can be considered only at the time of final hearing, on the basis of appreciation of pleadings and evidence led in both the Suits and also on the basis of the Judgment passed in the earlier Suit. This is too early a stage to decide this issue finally. At this stage, apparently, considering the two additional reliefs claimed by the Respondent in this Suit and that too, in the light of the Judgment passed in the earlier Suit, holding that the Applicants cannot disturb possession of the Respondent in respect of the suit premises, without following due process of law, the present Suit cannot be treated to be barred by the principle of res judicata.

IN THE HIGH COURT OF BOMBAY

Civil Rev. Appln. No. 40 of 2018

Decided On: 28.02.2018

Sultan Mubin Khan Vs. Vimmi Shaikh

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(4) MHLJ 390

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Whether court can grant final relief at interim stage?

Having heard the learned counsel on both the
sides, we are of the view that the High Court should
have refrained from passing a final order on the
issue at the interlocutory stage. All available
contentions are to be raised by the parties at the
stage of final disposal of the appeal.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11578-79 OF 2016

VISHNU BABU TAMBE 
 V
APURVA VISHNU TAMBE 
Dated:December 02, 2016. 
Citation:(2017) 2 SCC454, 2017(4) MHLJ 673

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Whether court can grant final relief at interim stage against non party to suit?

Upon hearing the learned Counsel, I find that admittedly defendant
no. 3 was not a party to the Appeal preferred before the Appellate Court. The relief
of cancellation of registration essentially affects the rights of the defendant no. 3. In
such circumstances, before directing the cancellation of the registration, the
learned Judge ought to have heard the defendant no. 3 in the matter. The findings
of the learned Judge that the Deed of Conveyance and the Tri-partite Lease Deed
was submitted for registration after the exparte Order was passed on 03.04.2004,
cannot be faulted. No doubt, there is a contention raised by the defendants to the
effect that the Deed of Conveyance was executed much before the service of the
Exparte Order. This aspect in any case would have to be examined by the learned
Judge while deciding the suit on merits. After examining the paramount
consideration of granting such injunctions, the Court also has to balance the
equities of the parties. No doubt, a contemptuous act cannot be condoned by a
Court of equity. But, in the present case, it is the contention of the defendants that
much prior to the exparte Order, there were documents executed between the
defendant inter se in connection with the shed, There are also allegations that
possession was also parted in favour of defendant no. 3 pursuant to documents
executed by the defendant nos. 1 and 2. In such circumstances, one will have to
examine whether in the peculiar facts and circumstances of this case and
considering that admittedly the defendant no. 3 and the Goa Industrial Corporation
were not parties to the suit, what could be a just and appropriate relief. The learned
Trial Judge on the basis of the findings in the impugned Order passed by the Lower
Appellate Court, has proceeded to dispose of the application under Order 39 Rule
2-A and 11 of the Civil Procedure Code by striking off the defence of the
defendants. No doubt, the rights of the Plaintiffs would have to be established in the
suit and ascertain whether the transactions intended to be executed were in fact
contrary to the provisions of the Companies Act, 1956 and the effects thereof. In
such circumstances, one will have to grant an appropriate relief in the facts of the
present case. By directing the cancellation of the registration of the deeds, the
learned Judge has in fact granted at this stage, a final relief when the rights of thePlaintiffs have not been established. No doubt, an act committed in contravention
of an Order of the Court is to be dealt with severely and ensure that the illegality
which has been committed is undone in the facts and circumstances of each case.
Admittedly, the transactions which are impugned were with the consent of the Goa
Industrial Corporation who are not parties to the suit and the registration would also
effect their rights. In the present case, the party who is affected is in fact the
defendant no. 3 and the Industrial Corporation who were admittedly not parties to
the suit.

IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NOS. 279, 362 AND 626 OF 2006
WRIT PETITION NO. 279 OF 2006
Sachin Y.Mense,

V 
 Shri Sunil Noronha,

 Coram :- F. M. REIS, J

 Dated  : 16th January, 2015.
Citation:2016(5) ALLMR 146

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Whether plaintiff can be directed to deposit entire consideration at ad interim stage in suit for specific performance of contract?

In the appeal filed by the plaintiff it has been submitted that the Learned Single Judge was in error in granting an injunction subject to the condition that the plaintiff deposits the entire balance of the consideration of Rs. 9.21 Crores. On behalf of the plaintiff it has been submitted that the Learned Single Judge arrived at a conclusion that it was the defendant who had committed prima facie a breach of the agreement of the Memorandum of Understanding dated 3rd April, 2006. In the circumstances, it would be wholly inequitable to direct the plaintiff to deposit the entire balance of the consideration of Rs. 9.21 Crores at the ad interim stage while not enforcing the obligations cast upon the defendant firstly, to obtain a deed of reconveyance of the property which was mortgaged, secondly, to put the plaintiff in possession with a right to construct and develop and thirdly, to complete, the entire transaction against the payment of the balance consideration.

9. We are of the view that there is merit in the submission urged on behalf of plaintiff and to that extent the Appeal of the plaintiff would have to be allowed. As we have already noted, Clause 4(b) of the agreement provided that the payment of the second instalment of Rs. 3.75 Crores was to be made subject to the defendant fulfilling his obligations viz. of obtaining a deed of reconveyance from the mortgagee; and placing the plaintiff in possession of the property with a right to develop and construct thereon. At the ad interim stage, it would in our view be inappropriate to direct the plaintiff to deposit the entire balance of the consideration amount of Rs. 9.21 Crores without the defendant being required to fulfil his part of the remaining obligations. The question of deposit, if any, should, in our view, be more appropriately considered at the hearing of the Notice of Motion. The order of the Learned Single Judge to the extent to which the grant of an ad interim injunction was made conditional on a deposit of Rs. 9.21 Crorog would to the extent of the condition imposed have to be quashpd and set aside.

Bombay High Court

Yusuf Mohamed Lakdawala vs Sudhakar Kashinath Bokade on 11 October, 2007

Equivalent citations: 2008 (2) MhLj 682

Bench: S Kumar, D Chandrachud

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Whether family court can pass residence order at interim stage?

There is no merit in the submission that the Family Court could not have made a residence order and that such an order can be made only at the stage of final disposal of the proceedings.Section 12 of the D.V. Act enables an aggrieved person or protection officer or any other person on behalf of the aggrieved person to present an application to the Magistrate to seek one or more reliefs under the D.V. Act. One of the reliefs contemplated is in the context of right to reside in a share household. To enforce such a right, an application under Section 12 can be made by the aggrieved person as also others referred to in Section 12 of the D.V. Act, to the Magistrate. It is in this context that Section 19 of the D.V. Act provides that while disposing of an application under sub section (1) of Section 12, the Magistrate may, on being satisfied that the domestic violence has taken place pass a residence order.

Bombay High Court

Mr. Amit Satish Shah vs Mrs. Archana Amit Shah And Anr on 14 October, 2014

Bench: M.S. Sonak

Citation; 2015(4) ALLMR11

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Whether court can consider documentary evidence at stage of temporary injunction without proof?

The claim of temporary injunction, made by plaintiff needs to be considered by Court in view of the provisions laid down under Order XXXIX, Rules 1 and 2 of Civil Procedure Code. Order XXXIX, Rule 1 of Civil Procedure Code opens with the wording, "Where in a suit, it is proved by affidavit or otherwise, temporary injunction may be granted by the Court." Prima facie case, balance of convenience and irreparable loss are the factors which require to be taken into consideration by the Court while considering the application for temporary injunction. So far material is concerned, the Court can resort to affidavit filed by the party or otherwise. The expression 'otherwise' refers to various other circumstances. In a given case there may be record of rights, various documents of title or transfer of the property or other circumstances. The consideration by the Court to such material at the stage of considering application for temporary injunction is one aspect of the matter and consideration of these circumstances, at the time of trial is different aspect of the matter. At the stage of temporary injunction, Court can refer to documents which are produced on record without formal proof. At that time of the trial Court has to take into consideration the documents which are established in accordance with the provisions of the Indian Evidence Act and proved on formal proof. In other words, formal proof of the documents, which otherwise is necessary at the time of deciding the suit in that strict sense is not necessary while considering the documents concerned at the time of consideration of the prayer for temporary injunction. Public documents can be considered at the time of temporary injunction as well as at the time of disposal of the suit without formal proof and in view of the provisions of the Indian Evidence Act.

Bombay High Court

Shamrao Ganpat Chintamani vs Kakasaheb Laxman Gorde on 19 October, 2007

Equivalent citations: 2008 (2) MhLj 819

 Citation: 2008(2)ALLMR118,

S.B. Deshmukh, J.

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