Banka vs Watuli RSA 145/22 29/09/23 [ Rakesh JJ ] [ HIMACHAL PRADESH HIGH COURT ]

Specific Relief Act Section 34 – Limitation Act Articles 64 and 65 – Issue with regard to ownership and possession of the suit land, particularly whether the defendant acquired ownership through adverse possession – Plaintiff asserts that the suit land was allotted to her father in a family partition, and she inherited exclusive ownership – Defendant claims to have purchased the land from the plaintiff’s father, Mainee, for a consideration and asserts ownership by way of adverse possession – Plea of adverse possession will not be available to defendant in absence of pleadings and proof regarding denial of title of real owner – Adverse possession was asserted by defendant for first time in September, 2013 – Suit was filed in May 2014 – Statutory period for acquisition of title on adverse possession was not completed – Moreover, title of plaintiff was not in dispute – Plea of adverse possession, not tenable – Furthermore, defendant had claimed to be in possession by way of an agreement to sell – Agreement to sell was not proved – Even agreement does not show that possession was delivered to the defendant pursuant to said agreement – Defendant had no right to retain possession – Order of First Appellate Court in granting decree of possession in favour of plaintiff held, proper.

Relevant Paras 

14. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
15. Plaintiff Watuli Devi admitted in her cross- examination that an orchard exists over the suit land which has been yielding crops for the last ten years. This orchard was raised by the defendant. It was submitted that the existence of the orchard is not in dispute; therefore, the plaintiff should have valued the suit land on the market value of the orchard. This submission is not acceptable. It was laid down by this Court in Niram Dass vs. Hirda Ram ILR 1975 HP 659 that the raising of the orchard is immaterial to determine the court fee and jurisdiction in a suit for possession of the vacant land. It was observed:
“8. The real question is whether the value of the land alone is to be considered for determining the value of the suit or regard must also be had to the value of the orchard. There is no dispute that the plaint in the suit

refers to the land only and the relief also relates to the land only. The orchard was planted by the petitioner soon after the land was gifted to him. Learned counsel for the petitioner relies on Shanti Prasad vs. Mahabir Singh(A.I.R. 1957 All. 402.), where a Full Bench of the Allahabad High Court has held that although the plaintiff had not claimed any relief in respect of the buildings and the garden in a suit for possession of land, and he is found entitled to the relief he has claimed, the defendant must either remove the buildings and do away with the garden in question or leave them as they are to be taken by the plaintiff along with the land. In the circumstances, it was laid down that the buildings and garden must be held to be affected by the relief sought within the meaning of the term used in Section 3 of the Suits Valuation Act. It was pointed out that even if the suit was deemed to be a suit for possession of land alone, as it involved a building or garden standing on it the market value of the building and the garden standing on the land was bound to be added to the value of the land in order to determine the value of the land itself. Reliance was placed on Rule 3 of the U. P. Suits Valuation Act, 1942. Now, this provision expressly lays down that in suits for possession of land, the value of the land for purposes of jurisdiction shall be determined by aggregating the value of the land and the market value of buildings or gardens situated thereon. The decision turned on the particular language of Rule 3 (e). Such a provision is absent in the Act before me. My attention has been drawn to Divisional Forest Officer, Sarahan Forest Division of Simla Forest Circle, Himachal Pradesh vs. Daut and Ors (A.I.R. 1968-S.C. 612.), but in that case, the definition of land included orchards standing thereon.
9. In Kewal Kishore vs. Hamad Ahmad Khan (A.I.R. 1959 Pun. 181) a Division Bench of the Punjab High Court held that in a suit for possession of land, on a part of which some buildings had been erected, the court fee payable in such a suit would not depend on the defence which mightbe raised but would be measured by the value of the land alone. In Durga Das vs. Nihal Chand (A.I.R. 1928 Lah. 852.), Jai Lal, J. held that in a suit for declaration, the market value of the land alone should be taken into consideration for determining the jurisdiction of the court and the amount of the court fee to be paid. It further observed that the plaintiffs claimed possession of the land and not of the building on the land.
10. It is said that different considerations arise when it is a case of land with trees thereon. It is urged that the case is entirely different from one of land on which a building has been constructed. It is pointed out, on the terms of Section 8 of the Transfer of Property Act that the definition of property means land and all things attached to the land. In my opinion, having regard to the scheme of Section 7 of the Court Fees Act such an inference is not easily possible. Section 7 (v) speaks separately of land houses and gardens. When a garden or orchard is the object of the suit, the suit must be valued accordingly. Where, however, it is a suit for land only, it is the land alone which must be valued.
11. I am of the opinion that in a case such as this, the value of the land for the purposes of court fee and jurisdiction should be taken to be in stricto sensu and cannot include the value of an orchard planted thereon.”

19. Thus, the plea that the plaintiff is not the exclusive owner of the suit land and the suit was bad for the non-joinder of other co-owners is not acceptable.
20. The plaintiff was recorded to be the co-owner of the suit land. It was laid down by this Court in Dharam Singh Vs. Jagdish AIR 2005 Himachal Pradesh 10 = 2005(1) Civil Court Cases 823 (HP) that a co-owner can always file a suit for recovery of the possession and such a suit is not bad for non-joinder of other co-owners. It was observed:-
“5. The question whether a co-sharer can institute and maintain a suit for possession against a trespasser in respect of the entire property irrespective of his share therein without impleading the other co-sharers is maintainable or not, came up before a Full Bench of the Patna High Court in Ram Niranjan Das v. Loknath Mandal,AIR 1970 Patna 1 and it was held that such a suit by a co- sharer without impleading the other co-sharers was maintainable and that a co-sharer can recover the possession of the entire land from a trespasser irrespective of his share therein.
6. A similar question also arose before the Full Bench of the Punjab and Haryana High Court in Ajmer Singh (deceased by L.R.’s) v. Shamsher Singh, AIR 1984 Punj and Har 58. Following the ratio laid down by the Full Bench of the Patna High Court, it was held that a suit by a co- sharer for possession against a trespasser without impleading the other co-sharers is maintainable and a decree for possession can be passed. I am in full agreement with the ratio laid down by the Full Bench of the Patna High Court as well as the Full Bench of Punjab and Haryana High Court. In view of the said ratio, learned Additional District Judge rightly held the suit to be maintainable and granted a decree for possession in favour of the plaintiff.”

25. A similar view was taken by this court in Sarvi Devi v. Ran Singh, 2012 SCC OnLine HP 8003 : (2012) 114 AIC 460 wherein
“13.In the present case, the respondent came in possession of suit land on the basis of agreement Ex. PA which was executory in nature. On the basis of Ex. PA no suit for specific performance or independent sale-deed was executed in favour of the respondent. The possession of respondent remained permissive since his entry over the suit land was under agreement Ex. PA. The two Courts below have not appreciated this vital question of law which has a bearing on the ultimate result of the case. The respondent in his statement has not stated even a word that he is in adverse possession of the suit land. This clinches point on adverse possession against the respondent. The learned District Judge has noticed Achal Reddy (supra) in the impugned judgment from another Journal, but he has not applied the law laid down by the Supreme Court in Achal Reddy properly. The impugned judgment and decree are not sustainable. The substantial question of law No. 1 is decided in favour of the appellants.”
26. Therefore, the plea of adverse possession will not be available to the defendant in the absence of the pleadings and proof regarding the denial of the title of the real owner.

_*Banka vs Watuli RSA 145/22 29/09/23 [ Rakesh JJ ] [ HIMACHAL PRADESH HIGH COURT ]

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Banka Dei (since deceased) through her LRs Versus Watuli Devi  Court Judgment The Law Literates

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CALCUTTA HIGH COURT 

[DEBOBRATA MONDAL VERSUS PIJUSH BANERJEE ] JUSTICE BISWAROOP CHOWDARY 

*Section 151 and Order 39, Rules 1 and 2 and Order 6, Rule 17 CPC Amendment of written statement Suit for declaration of title, permanent injunction and cancellation of sale deed – Defendants filed an application to amend their written statement, which was rejected by the court – In original WS, defendants made mistake in stating that ‘who was benamder’ which they sought to be corrected by amendment – Contention is that proposed amendment was necessary to rectify an inadvertent admission made in the written statement regarding Anita Devi’s status as the benamdar of Suprova Banerjee – While admissions should not be allowed to be withdrawn casually, courts have discretion to permit amendments if the admission was made inadvertently and the party seeking amendment acted in good faith – Thus, Courts had gone wrong in holding that defendant were not allowed to take inconsistent pleas in their defence – If a mistake in pleadings is committed due to inadvertence, opportunity should be given to rectify same – Amendment would not cause serious prejudice to plaintiffs – Amendment allowed.

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Debobrata Mondal & Ors. Vs. Pijush Banerjee and Ors. Judgment The Law Literates🔁

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MONICA  GOGIA VERSUS M S RSS ESTATE LLP & ORS 202/24 09/03/24 [ HON’BLE NEENA KRISHNA BANSAL JUSTICE ] [ DELHI HIGH COURT ]

• Order 39 Rule 1 CPC Injunction Agreement to Sell Suit for Cancellation of an agreement and Injunction – The plaintiff has filed a suit seeking to cancel an agreement to sell and a sale deed related to agricultural land in Mehrauli, New Delhi, and to prevent the defendants from alienating or constructing on the property – Alleged Fraud by Defendants – The plaintiff claims that the defendants failed to pay the balance consideration for the land and fraudulently obtained her signature on a Sale Deed without payment, leading to unauthorized construction and blocking access to her property – Court’s Interim Orders – The High Court has ordered a status quo on the title and possession of the property, directed the removal of any obstruction to the plaintiff’s access, and appointed a Local Commissioner to inspect the site and report on the construction and possession Status.

3. The present Suit for Cancellation and Permanent Injunction has been filed on behalf of the plaintiff seeking following reliefs: –
“a. Pass a decree in favor of the Plaintiff and against the Defendants thereby cancelling the Agreement to Sell dated 22.01.2024 with respect to the Agricultural Land measuring 4 bighas i.e 4032 sq. yds, bearing Mustatil No. 33, Killa No. 17 min(4 – 0) situated in the revenue estate of Village Mehrauli,Tehsil Mehrauli, New Delhi;
b. Pass a decree in favor of the Plaintiff and against the Defendants thereby cancelling the purported Sale Deed executed for the Agricultural Land measuring 4 bighas i.e 4032 sq. yds, bearing Mustatil No. 33, Killa No. 17 min(4 – 0) situated in the revenue estate of Village Mehrauli, Tehsil Mehrauli, New Delhi;
c. Pass a Decree of Permanent Injunction in favor of the Plaintiff and against the Defendants thereby restraining the Defendants, their agents, attorneys, assignees from alienating, disposing, selling off or part with possession of Suit Property;
d. Pass a Decree of Permanent Injunction in favor of the Plaintiff and against the Defendants thereby restraining the Defendants, their agents, attorneys, assignees from entering into of Suit Property;
e. Pass a Decree awarding costs of the instant suit along with legal costs in favor of the Plaintiff and against the Defendants.” Allowed

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MONICA GOGIA VERSUS M S RSS ESTATE LLP & ORS THE LAW LITERATES JUDGMENT

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[HIGH COURT OF DELHI ]
NITIN KATARIA VERSUS VARUN JAIN

CORAM:
HON’BLE MS. JUSTICE SHALINDER KAUR

Order VIII Rule 1 CPC Written Statement – The petitioner filed a written statement in response to a suit filed by the respondent The petitioner claims that the trial court wrongly rejected the written statement – The trial court rejected the written statement because it was filed late and not accompanied by the required documents – The petitioner argues that they were misled by a wrong order uploaded by the court – The court found that the petitioner did not file an application to condone the delay or explain the missing documents – The court also found that the petitioner’s lawyer was present in court when the order rejecting the written statement was issued – In conclusion, the court dismissed the petition because the petitioner did not have a good reason for not filing the written statement on time*_

Relevant Paras

Analysis & Conclusion
16. Submissions heard, record perused along with the impugned order. It is relevant to note the provision under the Order VIII Rule 1 of the Code of Civil Procedure, 1908, which provides for 30 days from the date of service of summons as the time within which written statement may be filed in response to the suit. The proviso to Order VIII Rule 1 of the Code of Civil
Procedure, 1908 as substituted by the Commercial Courts Act reads as under:
“1. Written Statement.—The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.”
17. It is also pertinent to note that a new proviso was substituted to Order VIII Rule l of the CPC which reads as follows:

“Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which
shall not be later than one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.”

18. From the reading of the aforesaid provision, it is manifest that while the normal period for filing the written statement in response to a suit would expire 30 days from the date of service of the summons, the written statement may be filed within a further period of 90 days subject to the reasons to be recorded in writing by the Court. Necessarily, the reasons
explained by the defendant by seeking condonation of delay should be such that the Court is satisfied that there is a sufficient reason with the defendant
for not filing the written statement within 30 days. However, in commercial suits, no power vests in the Court to condone the delay beyond 120 days.
19. It is also well settled that the courts are bound to follow the timeframe defined for the purpose of limitation which is not subjected to any exception. The courts cannot extend in any manner the time frame no matter whether there is genuineness in the reasons for such a delay. To curb the prolonged delays in the lis, comprehensive amendments were
introduced in the Code of Civil Procedure, 1908 in view of long periods being taken up for completion of pleadings in a case, such as by modifying the maximum period for filing the written statement to 120 days.

20. In the present case, the written statement though filed belatedly by the petitioner on 18.07.2022, however the other relevant documents i.e. statement of truth and admission/denial were not filed along with it. Order VI Rule 15(A) of the CPC as amended under Commercial Courts Act requires that pleadings are to be supported by a duly attested affidavit by
way of verification failing which the said pleadings shall not be permitted to be read as evidence of any fact set out in the petition.
21. Evidently, the affidavit by way of statement of truth is required to be filed along with the petition and the written statement as per the mandate of
the Act.
22. It is relevant to note the Order VI Rule 15A of the Code of Civil Procedure, 1908 which reads as under:

―[15A. Verification of pleadings in a commercial dispute.— (1) Notwithstanding anything contained in Rule 15, every pleading in a commercial dispute shall be verified by an affidavit in the manner and form prescribed in the Appendix to this Schedule.
(2) An affidavit under sub-rule (1) above shall be signed by the party or by one of the parties to the proceedings, or by any other person on behalf of such party or parties who is proved to the satisfaction of the Court to be acquainted with the facts
of the case and who is duly authorised by such party or parties.
(3) Where a pleading is amended, the amendments must be verified in the form and manner referred to in sub-rule (1) unless the Court orders otherwise.
(4) Where a pleading is not verified in the manner provided under sub-rule (1), the party shall not be permitted to rely on such pleading as evidence or any of the matters set out therein.
(5) The Court may strike out a pleading which is not verified by a Statement of Truth, namely, the affidavit set out in the Appendix to this Schedule.]‖

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• NITIN KATARIA versus VARUN JAIN judgment the law literates

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Stages of Civil suit 

*CPC*

*Order 1 : PARTIES TO SUITS*

*(Rule 1)* Who may be joined as plaintiffs.
*(Rule 3)* Who may be joined as defendants.
*(Rule 9)* Mis-joinder and non-joinder.
*(Rule 10)* Suit in name of wrong plaintiff.
*(Rule 13)* Objections as to non-joinder or mis-joinder.

Order 2– FRAME OF SUIT

*(Rule 1)* Frame of suit.
*(Rule 3)* Joinder of causes of action.
*(Rule 7)* Objections as to mis-joinder.

*(Order 4) INSTITUTION OF SUITS*

*(Rule 1)* Suit to be commenced by plaint.
*(Rule 2)* Register of suits.

*(Order 5) ISSUE AND SERVICE OF SUMMONS*

*(Rule 1)* Summons.
*(Rule 3)* Court may order defendant or plaintiff to appear in person.
*(Rule 9)* Delivery or transmission of summons for service.
*(Rule 9A)* Summons given to the plaintiff for service.
*(Rule 15)* Where service may be on an adult member of defendant’s family.
*(Rule 17)* Procedure when defendant refuses to accept service, or cannot be found.
*(Rule 20)* Substituted service.
*(Rule 24)* Service on defendant in prison.
*(Rule 28)* Service on soldiers, sailors or airmen.
*(Rule 30)* Substitution of letter for summons.

*Order 6 – PLEADINGS GENERALLY*

*(Rule 1)* Pleading.
*(Rule 2)* Pleading to state material facts and not evidence.
*(Rule 3)* Forms of pleading.
*(Rule 16)* Striking out pleadings.
*(Rule 17)* Amendment of pleadings.
*(Rule 18)* Failure to amend after order.

*Order 7 – PLAINT*

*(Rule 1)* Particulars to be contained in plaint.
*(Rule 4)* When plaintiff sues as representative.
*(Rule 10)* Return of plaint.
*(Rule 11)* Rejection of plaint.
*(Rule 14)* Production of document on which plaintiff sues.

*Order 8 – WRITTEN STATEMENT, SET-OF AND COUNTER-CLAIM*

*(Rule 1*) Written statement.
*(Rule 1A)* Duty of defendant to produce documents upon which relief is claimed or relied upon by him.
*(Rule 6)* Particulars of set-off to be given in written statement.
*(Rule 6A)* Counter-claim by defendant.
*(Rule 6B)* Counter-claim to be stated.

*Order 9- APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE*

*(Rule 1)* Parties to appear on day fixed in summons for defendant to appear and answer.
*(Rule 3)* Where neither party appears, suit to be dismissed.
*(Rule 5)* Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh summons.
*(Rule 6)* Procedure when only plaintiff appears.
*(Rule 8)* Procedure where defendant only appears.
*(Rule 13)* Setting aside decree ex-parte against defendant.
*(Rule 14)* No decree to be set aside without notice to opposite party.

*Order 10- EXAMINATION OF PARTIES BY THE COURT*

*(Rule 1)* Ascertainment whether allegations in pleadings are admitted or denied.
*(Rule 1A)* Direction of the court to opt for any one mode of alternative dispute resolution.
*(Rule 3)* Substance of examination to be written.

*Order 14- SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON*

*(Rule 1)* Framing of issues.
*(Rule 3)* Materials from which issues may be framed.
*(Rule 5)* Power to amend and strike out issues.

*Order 15- DISPOSAL OF THE SUIT AT THE FIRST HEARING*

*(Rule 1)* Parties not at issue.
*(Rule 2)* One of several defendants not at issue.
*(Rule 3)* Parties at issue.
*(Rule 4)* Failure to produce evidence.

*Order 16- SUMMONING AND ATTENDANCE OF WITNESSES*

*(Rule 6)* Summons to produce document.
*(Rule 10)* Procedure whose witness fails to comply with summons.
*(Rule 12)* Procedure if witness fails to appear.

*Order 17- ADJOURNMENTS*

*(Rule 1)* Court may grant time and adjourn hearing.
*(Rule 2)* Procedure if parties fail to appear on day fixed.
*(Rule 3)* Court may proceed notwithstanding either party fails to produce evidence, etc.

*Order 20– JUDGMENT AND DECREE*

*(Rule 1)* Judgment when pronounced.
*(Rule 6)* Contents of decree.
*(Rule 6A)* Last paragraph of judgment to indicate in precise terms the reliefs granted.
(Rule 12)Decree for possession and mesne profits.

Order 20A- COSTS

(Rule 1) Provisions relating to certain items.
(Rule 2) Costs to be awarded in accordance with the rules made by High Court.

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SIMENTECH vs BHARAT OMPCOMM 348/22 12/01/24  [ DELHI HIGH COURT ]

CORAM: HON’BLE  JUSTICE SANJEEV NARULA

• Order 7 Rule 10 CPC Return of Plain Pecuniary Jurisdiction The court’s jurisdiction is based on the Specified Value of the dispute, which is determined by adding the value of the claim and the counterclaim In this case, the Petitioner claimed INR 2,22,83,947.3, but the Respondent successfully argued that the correct value is INR 1,79,08,623.63 – Because this is less than the INR 2 crore threshold, the court does not have jurisdiction to hear the case – The main arguments made by the Respondent were that the Petitioner had incorrectly calculated the interest on the claim and counterclaim – The Respondent argued that interest should only be calculated up to the date of arbitration, not the date the petition was filed – The court agreed with this argument, and found that when the correct interest is used, the Specified Value falls below the INR 2 crore threshold – The Petitioner also argued that the court did not have the jurisdiction to decide the issue of pecuniary jurisdiction – However, the court rejected this argument, finding that it has the power to decide its own jurisdiction – As a result of the court’s decision, the petition will be returned to the Petitioner – The Petitioner can then file the petition with a court that has jurisdiction to hear the case.

I.A. No. 15500/2022 (u/Order VII Rule 10 r/w Section 151 of the Code of Civil Procedure, 1908, for return of the petition)
1. Respondent (Claimant in the arbitration proceedings) invokes Order VII Rule 10 of the Code of Civil Procedure, 1908 (“CPC”) and seeks return of the petition on ground of lack of pecuniary jurisdiction of this Court entertain this Petition. On 13th February, 2023, this Court had referred the matter to the Joint Registrar (“JR”) for computation of Specified Value. Accordingly, vide order dated 19th July, 2023 (“JR Order”), the JR has ascertained the Specified Value to be INR 1,79,08,623.63. The Petitioner contests this valuation, asserting that the determination is erroneous as itfails to consider several crucial components, which, if accounted for, could significantly impact the calculated Specified Value. In light of these conflicting positions, this Order will address and decide upon the issue of the Specified Value and the Court’s pecuniary jurisdiction.

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SIMENTECH INDIA PRIVATE LIMITED versus BHARAT HEAVY ELECTRICALS LIMITED JJUDGMET DELHI HIGH COURT THE LAW LITERATES

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(REPORTABLE )SUPREME COURT OF INDIA
CIVIL APPEAL NOS. OF 2023 (ARISING OUT OF SLP (C) NOS.2373-2377 OF 2020)

M/S TRINITY INFRAVENTURES LTD. & ORS. ETC. VERSUS M.S. MURTHY & ORS. ETC. …

Order 20, Rule 18 , Section 54 CPC Appeals by non-parties to judgment, challenging only one portion of impugned judgment Preliminary decree in suit for partition merely declares shares that parties are entitled to in any of the properties included in plaint schedule and liable to partition – On basis of mere declaration of rights that take place under preliminary decree, parties cannot trade in, on specific items of properties or specific portions of suit schedule properties.

194. Therefore, in a case of partition and separate possession not covered by Section 54 of the Code, a preliminary decree is first passed in terms of Order XX Rule 18 (2) of the Code, a Commissioner is
appointed in a subsequent proceeding under Order XXVI Rule 13 and on the basis of his report, a final decree is passed under Order XXVI Rule 14 (3) of the Code. Thereafter, the possession of such property, if
it is an immovable property, is taken by executing such final decree in terms of Order XXI Rule 35 of the Code.
195. Therefore, the question of specific immovable properties or specifically identified portions of immovable properties getting allotted
to any person merely holding a preliminary decree with respect to an undivided share does not arise. A preliminary decree in a suit for partition merely declares the shares that the parties are entitled
to in any of the properties included in the plaint schedule and liable to partition. On the basis of a mere declaration of the rights that take place under the preliminary decree, the parties cannot trade in, on specific items of properties or specific portions of suit schedule properties. Since there are three stages in
a partition suit, namely (i) passing of a preliminary decree in terms of Order XX Rule 18(2); (ii) appointment of a Commissioner and passing
of a final decree in terms of Order XXVI Rule 14 (3); and (iii) taking possession in execution of such decree under Order XXI Rule 35, no party to a suit for partition, even by way of compromise, can acquire
any title to any specific item of property or any particular portion of a specific property, if such a compromise is struck only with a few parties to the suit.
196. In fact, Sameena Kausar and others stake claim to the land of the extent of acres 60.00 in Survey No.172 of Hydernagar, on the basis of a gift made by defendant No.52. Even admittedly, Sameena Kausar
and others have sold half of that land way back in 1997 to M/s Jayaho Estates. Yet Sameena Kausar and others have come up with appeals.
197. Be that as it may, a look at the Memorandum of Oral Gift dated 19.12.1978 executed by Ghousuddin Khan (defendant No.52) shows that the said document purports to be a record of the oral gift (hiba)already made on 10.10.1978. This Memorandum of Oral Gift declares that the donor have also delivered possession of the gifted property to the donee. Interestingly, this Memorandum of Oral Gift does not contain a Schedule of property, but contains very strangely, the boundaries alone. It will be useful to extract the last part of this
Memorandum of Oral Gift dated 19.12.1978. It reads as follows:-
“Today on 19th December 1978 I have confirmed the oral gift made on 10th October 1978 in favor of the Donee and executed this Memorandum of gift in presence of the following witnesses.
Hence these few words are written by me as a
MEMORANDUM OF GIFT so that it may remain as an authority and used at time of need.
Dated : 19th December 1978.
Boundaries:
North: Nizampet village
South: Bombay High way
East: Hydernagar village,
West: Survey No. 28 land of Jeelani Begum.
Sd/-Donor Ghouse Mohiuddin Khan.
Sd/- witness Sd/- witness”

198. It is true that in the body of the Memorandum, the donor claims to be the owner in possession of the land measuring acres 60 in Survey No.172 of Hydernagar. But Survey No.172 of Hydernagar has
land of a total extent of acres 196.20. The claim of defendant No.52 to acres 60 out of the total extent, is on the basis of an order purportedly passed first on 31.01.1976, in Application No.139 of 1971. But the
only order passed in this application is to the effect that the parties have not been able to agree upon the allotment of shares and that therefore, the matter had to be forwarded to the Collector under Section 54 CPC. But all of a sudden, a final report filed by one P.
Narasimha Rao Receiver/Commissioner, surfaces, allegedly on the basis of a compromise decree in Application No.185 of 1973. In the table contained in the said final report, Survey No.172 is shown to
have been sub-divided into 25 different parts bearing Survey Nos.172/1 to 172/25. What is shown therein to have been allotted to defendant No.52 were the following:
Survey No. Allotted to D-52 Out of
172/8 0.2 G 9 Acres 39 Guntas
172/9 10.02 G 10 Acres 02 Guntas
172/17 7.08 G 7 Acres 08 Guntas
172/18 10.00 G 10 Acres 00 Guntas
172/19 10.07 G 10 Acres 07 Guntas
172/20 9.34 G 9 Acres 34 Guntas
172/21 5.04 G 5 Acres 04 Guntas
172/22 5.38 G 5 Acres 38 Guntas
172/23 5.00 G 5 Acres 25 Guntas
62.13 G

199. Interestingly, the order passed in Application No.139 of 1971 is dated 21.01.1976. If pursuant to the said order, Survey No.172 had been sub-divided and different parcels of land in various sub-divisions
of Survey No.172 stood allotted to defendant No.52, the Memorandum of Gift dated 19.12.1978 should have contained all these sub-divisions of survey numbers and a proper description. Without giving the sub- division numbers of Survey No.172 and without describing different parcels of land as per the allotment allegedly made by the Advocate
Commissioner, the Memorandum of gift proceeds to mention mere boundaries. Interestingly, Northern boundary is stated to be Nizampet village, Southern boundary is stated to be Bombay Highway and Western boundary is stated to be Survey No.28 belonging to Jeelani Begum. Therefore, the entire claim made by persons claiming under defendant No.52, appears to be a hoax.

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M:S TRINITY INFRAVENTURES LTD. & ORS. ETC. …APPELLANT(S) VERSUS M.S. MURTHY & ORS. ETC. …RESPONDENT(S)_Judgement_15-Jun-2023 (1) The Law Literates

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CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

HIGH COURT OF DELHI CS(OS) 804/2022
DR AJIT ANNASAHEB SHINDE ….. Plaintiff
       versus
INDIAN ORTHOPAEDIC ASSOCIATION & ORS….. Defendants

• Specific Relief Act Section 39 Section 151 CPC Suit for declaration and permanent injunction with respect to Indian Olympic Association Election, 2022 Provision of Section 39 provides for mandatory injunction which may be granted by Court in case it is deemed necessary that to prevent breach o obligation, certain act is required be omitted or compelled to be done – Such injunction may be granted to aggrieved party when, first, there is obligation on part of defendant to perform certain acts but same breached and secondly, relief sought by aggrieved party is enforceable by court – Therefore, apparent that relief under section 39 of Specific Relief Act, 1963 is not one which may be granted in routine manner – Instead, stricter judicial scrutiny is to be exercised in cases where at the interim stage, mandatory injunction is sought – In present case, plaintiff has sought relief against defendants in form of directions from High Court to preserve data of Elections and to provide him with same – Plaintiff made several allegations against defendants to allege that IOA Elections, 2022 not conducted in transparent, legal and valid manner – Averments pertaining to illegalities in election process are subject matter of suit on merits which are not entered into at this stage for purposes of adjudicating instant application – Hence, dismissal of suit for mandatory injunction upheld.

Relevant Paras:

24. The provision provides for a mandatory injunction which may be granted by a Court in case it is deemed necessary that to prevent a breach of an obligation, a certain act is required be omitted or compelled to be done. Such injunction may be granted to an aggrieved party when, first, there is an obligation on part of the defendant to perform certain acts but the same has been breached and secondly, the relief sought by the aggrieved party is enforceable by the court.
25. The Hon’ble Supreme Court in the matter of Samir Narain Bhojwani vs. Aurora Properties & Investments, (2018) 17 SCC 203, elaborated upon the scope of Section 39 of the Specific Relief Act, 1963 and opined as under: M “24. …… The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As
regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This Court in Dorab Cawasji Warden v. Coomi Sorab Warden [Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117] , has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paras 16 & 17, after analysing the legal precedents on the point as noticed in paras 11-15, the Court went on to observe as follows : (SCC pp. 126-27)
“16. The relief of interlocutory mandatory injunctions
are thus granted generally to preserve or restore the
status quo of the last non-contested status which
preceded the pending controversy until the final
hearing when full relief may be granted or to compel
the undoing of those acts that have been illegally done
or the restoration of that which was wrongfully taken
from the party complaining. But since the granting of
such an injunction to a party who fails or would fail to
establish his right at the trial may cause great injustice
or irreparable harm to the party against whom it was
granted or alternatively not granting of it to a party
who succeeds or would succeed may equally cause
great injustice or irreparable harm, courts have
evolved certain guidelines. Generally stated these
guidelines are:
(1) The plaintiff has a strong case for trial. That is,
it shall be of a higher standard than a prima facie
case that is normally required for a prohibitory
injunction.
(2) It is necessary to prevent irreparable or serious
injury which normally cannot be compensated in
terms of money.
(3) The balance of convenience is in favour of the
one seeking such relief.
17. Being essentially an equitable relief the grant or
refusal of an interlocutory mandatory injunction shall
ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying
them as prerequisite for the grant or refusal of such
injunctions would be a sound exercise of a judicial
discretion.”
(emphasis supplied)
25. The Court, amongst others, rested its exposition on the dictum in Halsbury’s Laws of England, 4th Edn., Vol. 24,
“948. Mandatory injunctions on interlocutory
applications.—A mandatory injunction can be granted
on an interlocutory application as well as at the
hearing, but, in the absence of special circumstances,
it will not normally be granted. However, if the case is
clear and one which the court thinks ought to be
decided at once, or if the act done is a simple and
summary one which can be easily remedied, or if the
defendant attempts to steal a march on the plaintiff,
such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that
when he receives notice of an interim injunction it is
completed, a mandatory injunction will be granted on
an interlocutory application.”
26. The principle expounded in this decision has been
consistently followed by this Court. It is well established that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction.
[See Metro Marins v. Bonus Watch Co. (P) Ltd. [Metro Marins v. Bonus Watch Co. (P) Ltd., (2004) 7 SCC 478], Kishore Kumar Khaitan v. Praveen Kumar
Singh [Kishore Kumar Khaitan v. Praveen Kumar Singh, (2006) 3 SCC 312] and Purshottam Vishandas
Raheja v. Shrichand Vishandas Raheja [Purshottam
Vishandas Raheja v. Shrichand Vishandas Raheja, (2011) 6 SCC 73 : (2011) 3 SCC (Civ) 204] .]

26. Therefore, it is apparent that the relief under Section 39 of the Specific Relief Act, 1963 is not one which may be granted in a routine manner. Instead, stricter judicial scrutiny is to be exercised in cases where NEUTRAL CITATION No.2023:DHC:3492
CS(OS) 804/2022 Page 10 of 13 at the interim stage, mandatory injunction is sought. As reiterated by the
Hon’ble Supreme Court in the aforementioned judgment, while adjudicating upon an application for mandatory injunction, the important consideration is that such a relief may be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. It is only in cases where
the circumstances invite intervention of the court at an interim stage for the reason that there is a likelihood of alteration of the status quo that a
relief of mandatory injunction may be granted.

For read the Judgment click here

DR AJIT ANNASAHEB SHINDE versus INDIAN ORTHOPAEDIC ASSOCIATION & ORS. JUDGMENT DELHI HIGH COURT

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