Whether the court can grant permanent injunction to husband restraining his wife from harassing him in any manner whatsoever?

 Then comes the challenge by the wife to that part of the decree by which the learned Judge of the Family Court has granted a permanent injunction restraining the wife from harassing the husband in any manner whatsoever. The word harassment is a subjective term. The judgment is silent on the scope and meaning of the word harassment. On plain reading of the said part of the decree, apart from the fact that there is a serious doubt whether such a decree could have been passed, the said decree is incapable of being enforced. The law on this aspect is very well settled. No Court or Tribunal can grant relief which is incapable of being enforced. One such decision in which the law is reiterated by a Division Bench of this Court in the case of MRF Ltd. Goa v. Goa MRF Employees Union, Goa and another, MANU/MH/0969/2003 : 2003 (4) LLN 1182. Relevant paragraph is paragraph 10 which reads thus:

"10...No Court or Tribunal will grant a relief if it is incapable of enforcing it either by execution or otherwise. We have earlier noted that the expression "incidental" would not include an interim relief by way of preventive injunction. No judgment of the Apex Court has been cited to show that the matter has been concluded by any judgment. On the contrary in Delhi Cloth and General Mills (MANU/SC/0188/1966 : AIR 1967 SC 469) (vide supra), the Apex Court has noted that the judgment of Management, Hotel Imperial the question was posed but not answered. Therefore, even if it was held that there was such a power to grant relief there is no power or mechanism for the relief to be enforced. If there be a power to grant relief there must also be power to enforce the relief. In that context it must be held that no power is conferred on the Tribunal or the other authorities under Chp. II to grant relief of injunction."

Therefore, the said part of the decree cannot be sustained.

{Para 35}

IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 95 of 2009

Decided On: 16.03.2017

 Wife  Vs. Husband

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Anuja Prabhudessai, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: Citation : AIR 2017 Bom 186,MANU/MH/2336/2017

Print Page

Whether the court can refuse to grant relief of permanent injunction if it is claimed on the basis of unregistered agreement of sell?

Having conscious of the fact that the plaintiff might not succeed in

getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance.

Therefore, the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court. The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could have been passed. The

plaintiff cannot get the relief by clever drafting.

7. In view of the above and for the reasons stated above, both, the

learned first appellate Court and the High Court have committed a grave error in passing a decree for permanent injunction in favour of the plaintiff as against the defendant and dismissing the counter-claim filed by the original defendant. {Para 6}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6733 OF 2022

Balram Singh  Vs Kelo Devi 

Author: M.R. SHAH, J.

Dated: SEPTEMBER 23, 2022.

Print Page

Whether the court can refuse to execute decree for permanent injunction by holding that DH should file suit for partition?

 A perusal of the judgement dated 24.08.2002 passed by the Trial

Court while decreeing the suit for permanent injunction filed by the petitioner shows that at no point was a defence raised by respondent no.1 that he is a cosharer in the suit land. Infact, no such plea having been raised by respondent no.1 is discernable from the said judgement and respondent no.1 only raised pleas on

behalf of Balwant Singh Goraya who was not even a party to the suit. The Trial Court while deciding issue no.1 categorically held that the petitioner was in possession of the suit property. This finding was upheld by the lower Appellate Court and this Court. The respondent no.1 withdrew his SLP and did not challenge this finding. That being the position, this Court is unable to accept the findings recorded by the Executing Court that the respondent no.1 is a co-sharer in the suit land. Further, once the suit for permanent injunction of the petitioner stood decreed the Executing Court could not render the said decree nugatory byholding that the petitioner ought to file a suit for partition. The impugned order passed by the Executing Court shows that it (the Executing Court) permitted the respondent no.1 to set-up a case beyond that pleaded by him in the suit itself.The Executing Court clearly traversed beyond the decree dated 24.08.2002 which it was called upon to execute and exceeded the jurisdiction vested in it.

The petitioner had filed the suit for permanent injunction against respondent no.1 which stands decreed in his favour and the said decree stands affirmed right upto the Supreme court. The suit for permanent injunction was filed on the basis, of the sale deed dated 02.02.2002 and the petitioner was held to be in possession of the suit land. Even if it was to be assumed and presumed that the land is unpartitioned, which was neither pleaded nor proved in the suit, even then the petitioner would have a right to enjoy the land in his possession to the extent of his share. Even before this Court the case of respondent no.1 is not that the petitioner is wanting to construct anything beyond the area sold to him but he apprehends that the petitioner would stake ownership in the adjoining land. 

The Executing Court has also relied upon certain revenue documents to non-suit the petitioner. However, these revenue documents were not part of any evidence and were merely produced by respondent no.1. Without any issues having been framed and evidence being led, the Executing Court could not accept any document merely produced by any party. The procedure adopted by the Executing Court cannot be accepted in our jurisprudence. The reasoning given by the Executing Court while allowing the objections filed by respondent no.1 is wholly unsustainable in law.

The Executing Court has further held that respondent no.1 is a cosharer in the suit property and, hence, the only remedy with the

petitioner/decree-holder would be to file for partition. Even if it was to be assumed for the sake of arguments that respondent no.1 is a co-sharer in the suit property, the petitioner having been held to being in possession of Plot Nos.7 and 8 right-up to the Supreme Court, he (the petitioner) would have every right to enjoy his property. It is well settled that a co-owner in exclusive possession of joint property or its portion can raise construction on the portion in his possession as long as it does not amount to ouster of the other co-owners. The construction, if any, would at best be subject to the outcome of the partition. However, in the present case the petitioner cannot be termed to be a co-owner since respondent no.1 neither pleaded nor proved this in the suit and neither did

he plead or prove his ownership over any part of the suit land.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CR-1719-2019 (O&M)

Yoginder Kumar Sud Vs Thakur Rajiv Singh and Another 

CORAM : HON’BLE MRS. JUSTICE ALKA SARIN

Date of decision : 18.04.2022

Print Page

Whether court can grant permanent injunction to restrain municipal corporation from demolishing suit house?

  Only question of law which involves is whether the relief of permanent injunction in the nature it is granted is sustainable in law. The learned trial court granted relief of permanent injunction as under:

"(iii) The defendant, its agents and servants are hereby restrained permanently from demolishing the suit house and to that effect permanent injunction is granted."

Ex-facie, in the facts and circumstances of the case, and particularly against the public authority, such relief cannot be granted. It should not have been in the nature of restraining the defendant permanently from taking steps of demolition in any circumstance. If such relief is allowed to operate, it would permanently restrain the defendant from taking steps despite the fact that the plaintiff carries out illegal alteration or construction against provisions of C.N.C. Act. In that view of the matter, the appeal will have to be allowed partly by modifying the Judgment and decree passed by the learned trial court and confirmed by the district judge as under:

Defendant, his agents, servants are permanently restrained from taking steps like demolition etc. of the suit house on the basis of the notice no.238/EPS/Z-10 dated 3.4.2002. {Para 8}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

M.N. GILANI, J.

The City Of Nagpur Municipal Corporation Vs. Shailendra Kumar

Second Appeal No.39 of 2011

15th June, 2012

Citation: 2013(1) ALL MR 850,

Print Page

Whether should the court appoint a court commissioner if there is no averment regarding encroachment?

 I find it rather difficult to accede to the broad submission on behalf of the respondents that the fact that the other side has an opportunity to object to the report of the Court Commissioner and may cross-examine the Court Commissioner would obviate the examination of the justifiability of the appointment of the Court Commissioner itself. It is pertinent to note that in the case of Kolhapuri Bandu Lakade (Supra), this Court had made it clear that the suit therein was instituted for declaration and restoration of possession after removing the encroachment by the respondent/defendant therein. A positive case of encroachment at the hands of the defendants was, apparently, made out in the said case.

18. In the case at hand, as observed earlier, the tenor of the plaint indicates that the suit was instituted to pre-empt the defendants from causing encroachment over the suit land. What tilts the scale is the fact that the area of the suit land bearing survey No. 70/6 was stated to be of 15 Are. According to the plaintiffs, the defendants attempted to commit encroachment over an area admeasuring 3 are from the southern and northern side. In the context of the total area of 15 Are, the encroachment to the tune of 3 Are each from southern and northern side can be neither said to be insignificant nor in-consequential. It is not the case that even subsequent to the institution of the suit, the plaintiffs made a positive assertion that the defendants have committed encroachment over a particular area of the suit land. Observations of the learned Civil Judge in the impugned order to the effect that the plaintiffs submitted that during the pendency of the suit, the defendants encroached upon the land to the extent of 3 Are, are not borne out by either the averments in the plaint or any other material on record.

19. The fact that in the application for appointment of the Court Commissioner (Exh. 100) also, there was no whisper about encroachment at the hands of the defendants could not have been ignored by the learned Civil Judge. As narrated above, a general assertion was made in the said application that the appointment of the Court Commissioner to measure the suit land would assist the Court in the determination of the controversy on merits. In this view of the matter, it would be rather hazardous to draw an inference that the plaintiffs had instituted the suit for removal of encroachment and recovery of the possession of the portion of the suit land. Thus, the justifiability of the appointment of the Court Commissioner on the premise that there was a dispute about the encroachment over the suit land becomes questionable.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4078 of 2018

Decided On: 28.08.2019

Arjun Rambhau Dhankude Vs. Bhanudas Ramchandra Murkute

Hon'ble Judges/Coram:

N.J. Jamadar, J.

Citation: 2020(2) MHLJ 145

Print Page

Whether tenant is entitled to get permanent injunction against landlord if he has not paid rent for more than fifteen years?

The conclusion of the trial court that the first
respondent-plaintiff vacated the suit property since the year
1991 is fortified by yet another circumstance viz., nonpayment
of rent by the respondent-plaintiff. Admittedly, ever
since withdrawal of earlier suit RCS No.1004/1988, the first
respondent-plaintiff has not paid any rent from the year 1991.
Be it noted, that the appellant-defendant had also not
initiated any proceedings claiming rent or arrears of rent from
the first respondent-plaintiff. After filing of the suit in 2004,
the first respondent-plaintiff has sent a cheque dated
14.05.2005 for Rs.10,395/- towards payment of rent for 189
months thereby admitting that he has not paid the rent for
more than fifteen years. The trial court also observed that the
first respondent-plaintiff has suppressed the material fact that
he has not paid the rent from 1991. The trial court observed
that the first respondent-plaintiff has not come to the court
with clean hands and that he cannot sustain his claim for the
equitable relief of permanent injunction.
15. The First Appellate Court did not keep in view that the
first respondent-plaintiff has not shown that he has paid any
rent after 1991 and that without paying rent, he cannot have
any legitimate right to be in possession of the suit premises.
The party seeking injunction based on the averment that he is
in possession of the property and seeking assistance of the
Court while praying for permanent injunction restraining other
party who is alleged to be disturbing the possession of the
plaintiff, must show his lawful possession of the property.
Having not paid rent for more than fifteen years, it cannot be
said that possession of the first respondent-plaintiff can be
said to lawful possession entitling him to grant of permanent
injunction.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1509 OF 2019

BALKRISHNA DATTATRAYA GALANDE  Vs  BALKRISHNA RAMBHAROSE GUPTA

Print Page

What is distinction between O 39 R 2A of CPC and O 21 R 32 of CPC?

 In KANWAR SINGH SAINI v. HIGH COURT OF

DELHI  the Supreme Court discussed categorically about the distinction between Order XXXIX Rule 2A and Order XXI Rule 32 CPC. It is held: "An application under Order XXXIX Rule 2A lies only where disobedience/breach of injunction granted or order complained of was one that is granted by the Court under Order XXXIX Rules 1 and 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order and if the case is ultimately dismissed, the interim order stands nullified automatically. On the other hand in case there is a grievance of non-compliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution Court under Order XXI Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. An application under Order XXXIX Rule 2-A CPC is not maintainable once the suit is decreed. Law does not permit to skip the remedies available under order XXI Rule 32 CPC and resort to the contempt proceedings for the reason that the Court has to exercise its discretion under the Contempt of Courts Act, 1971 when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order XXXIX Rule 2A CPC would also include the case of violation of breach of permanent injunction granted at the time of passing of the decree. It is also observed that in an undertaking given to the Court during the pendency of the suit on the basis of which the suit itself has been disposed of becomes a part of the decree and breach of such undertaking is to be dealt with in execution proceedings under Order XXI Rule 32 CPC and no by way of contempt proceedings."

Supreme Court of India

Kanwar Singh Saini vs High Court Of Delhi on 23 September, 2011

Print Page

Precaution to be taken by court while granting permanent injunction in partition suit

As observed earlier, the learned trial Court held the parties to be co-sharers, but then proceeded to pass a decree of permanent prohibitory injunction in favour of the plaintiffs which was impermissible in law, because such right would at best be available only till the time the share of the parties is not partitioned i.e. till the time they continued to be co-sharers.

4. Once there is severance of status in partition proceedings and the interest inter se the parties ceases to be joint, then obviously a party would only be entitled to seek protection of the rights over that portion of the land which is allotted to him during the partition proceedings and cannot seek right in anyone else land.

5. Thus, the learned first Appellate Court has committed no irregularity much less illegality by modifying the relief of injunction granted by the learned trial Court by limiting the same till the suit land was partitioned by metes and bounds.

6. The judgment and decree passed by learned first Appellate Court is strictly in accordance with law or else in case the judgment and decree of the learned trial Court is allowed to stand as it is, it would amount to the plaintiffs being permitted to use the land in perpetuity.

IN THE HIGH COURT OF HIMACHAL PRADESH

R.S.A. No. 89 of 2017

Decided On: 02.05.2017

Surat Ram and Ors. Vs. Ramesh Chand and Ors.

Hon'ble Judges/Coram:

Tarlok Singh Chauhan, J.

Citation: AIR 2017 HP125

Print Page

Basic Concept Of Perpetual Injunction

Written by Harshal Morwale  ( twitter : @harshalmorwale)

 Origin

The law of injunction in India has its origin in the Equity Jurisprudence of England from which we have inherited the present administration of law. England too in its turn borrowed it from the Roman Law wherein it was known as Interdict. The injunction as a chancery remedy developed at the time of Henry, the Vlth. The Chancellor set aside a certain bond by the plaintiff as one not binding on him. In India, the Specific Relief Act, 1963 provides a large number of remedial aspects of Law. This Act came in force in the replacement of earlier Act of 1877. Injunction is a judicial process by which one who has invaded or is threatening to invade the rights, legal or equitable, of another, is ordered to refrain from doing, or to do a particular act or thing.

Print Page

Whether court should not grant temporary Injunction when suit is for permanent injunction?

Further, the suit itself was for permanent injunction and in such suit temporary injunction must be granted in a cautious manner, because by granting temporary injunction relief in the suit is being granted. That should not be done by the court. No doubt, in specific cases temporary injunction may be granted. The procedure of granting temporary injunction should not be adopted as a general and normal course.

Gauhati High Court

State Of Assam And Anr. vs M.S. Associates on 2 May, 1994

Bench: J Sarma, S Neelam

Citation: AIR1994Gau105, (1994)2GLR104

Print Page

Whether suit for permanent injunction restraining opposite party from marrying any other person is maintainable?

 Suit for permanent injunction restraining opposite party from 

marrying any other person except petitioner would not maintainable U/s. 9 of CPC

because of impliedly bar by S.9 of CPC 

 The plaint of the suit which is Annexure-1 to the petition reveals that the 

petitioner, who is plaintiff in the suit, alleges that his marriage was agreed to be 

solemnized with respondent No. 2 but now it appears that she is likely to marry 

someone else and therefore, a decree of permanent injunction be passed 

restraining her from marrying any other person except the petitioner. 


 It is against the order of the court in the above suit directing notices to be 

issued to the other side before considering the matter for grant of interim 

injunction that the petitioner has invoked the writ jurisdiction of this court. 

 The Court quite astonished at the relief which has been claimed in the 

suit. The suit ex facie appears to be against public policy and as such is impliedly 

barred by Section 9, CPC. 

 Section 26 of the Indian Contract Act, 1872 provides that an agreement to 

restrain a marriage of any person is void. 

 A thing in respect of which no valid agreement can come into existence 

cannot be ordered to be done by the order of the court and therefore, the suit 

claiming such a relief would certainly be barred. 

 Right to marry is an integral part of right to life and liberty and is akin to 

a fundamental right. A fundamental right of a person cannot be taken away and 

therefore, also the suit as filed is clearly against the public policy. 

 The suit appears to have been instituted for harassing the respondent or to 

put some kind of pressure on her family members. It is not designed in good faith. 

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 62174 of 2012

Decided On: 04.12.2012

 Shrawan Kumar Vs. Nirmala Mauji Lal

Hon'ble Judges/Coram:Pankaj Mithal, J.

Citation: 2013(3) ALJ 651., 2013 6 AWC5728All

Print Page

Bombay HC: Whether a suit simplicitor for injunction which is filed seeking protection under Section 53-A of the Transfer of Property Act is maintainable?

It is thus clear that in such a situation where a suit for a decree for specific performance is barred by the Law of Limitation, the prospective purchaser in possession would not be in a position to institute a suit for decree of specific performance, but Section 53-A creates an equity in his favour, as a result of which he is entitled to continue in possession. If it is held that though his possession is protected, he cannot institute a suit in case he finds that his possession has been threatened would amount to denying a remedy for enforcing the equity which is created in his favour by Section 53-A. In a case where the prospective purchaser has a live cause of action for instituting a suit for specific performance, he omits to institute such a suit, and instead files a suit only for perpetual injunction for protection of his possession, in that situation it is for the Court to consider whether to grant him a decree of perpetual injunction or not But that will be in the realm of exercise of the jurisdiction. It will not be a case of absence of jurisdiction to entertain the suit. Therefore, we find that there is nothing in Specific Relief Act also which can be said to have barred the jurisdiction of the Civil Court to take cognizance of such a suit even by necessary implications.

Bombay High Court

Sadashiv Chander Bhamgare vs Eknath Pandharinath Nangude on 16 April, 2004

Equivalent citations: AIR 2004 Bom 378, 2004 (4) CTC 465, 2004 (3) MhLj 1131

Bench: R Lodha, D Deshmukh, J Devadhar

Print Page