Relevant paragraphs: 24. Judgment in THE TIBETIAN CHILDREN’S VILLAGE Vs. DEPUTY COMMISSIONER AND OTHERS in W.P.No.15802/2007 dated 07.04.2019 referred to as follows:
“5. It is essential for us to travel a little further arid determine the matters arising out of violation of Section 4 of the PTCL Act,, wherein, the original grantee repeatedly sells the grant land, and then seeksannulment of the sale. These are cases where the vendor successfully reaps the benefit of his own wrong. This case, like others dealt with by us, reveals the misuse of a legislative enactment for personal gains.We are satisfied, that repeated sales at the hands of the original grantee constitutes the offence of cheating under the Section 420 of the Indian Penal Code 1860. A person who cheats, is definitely not entitled to seekrestoration of the grant land and retain the consideration received by him by sale thereof.
29. If the facts obtaining in the judgment of the learned Division Bench are juxtaposed to the facts obtaining in the case at hand. It would become unmistakably clear that repeated sale by the original grantee or his legal heirs amounts to cheating.
Relevant paragraphs: 17 & 18. Immediately, after the condition of the non-alienation was over, the original grantee applies for conversion of the land from agricultural to non- agricultural purposes in the year 1994. The competent authority granted conversion of the land by his order dated 27.05.1994, thus, from 27.05.1994, character of the land being agriculture was changed to being non-agriculture and this act of getting the land converted is by the original grantee himself. The original grantee then sold the land to respondent No.10 – T. Suresh Gowda on 07.04.2004 to respondent No.10.
24. Judgment in THE TIBETIAN CHILDREN’S VILLAGE Vs. DEPUTY COMMISSIONER AND OTHERS in W.P.No.15802/2007 dated 07.04.2019 referred to as follows:
“3. Since the competent authorities under the Act have taken a divergent view of the matter, this Court will have to take note of both the orders and arrive at aconclusion as to the consideration as made therein. Insofar as the fact that the property in question was granted through Darkhast order dated 17.02.1978 is the undisputed position. The Saguvali Chit was issued on 31.05.1978 with a condition that the property shall not be alienated for a period of 15 years. The grantee himself after the non-alienation period of 15 years had filed an application seeking conversion of the land for residential purpose and the same was approved by the order dated 27.05.1994. It is subsequent thereto the sale has been made in favour of the vendor of the petitioner on 04.06.1994 and the petitioner has thereafter purchased on 25.06.1994. In the present circumstance what is necessary to be noticed is that the grant as made initially was for the agricultural purpose and at the point when the violation of the provisions of the Act would be alleged, the power provided under the Act is also to set aside such transaction, forfeit the land and restore itto the grantee. The object being that the purpose of the grant should be achieved inasmuch as the persons belonging to the lower strata of society who are granted such land to carry out the avocation, the protection should also be available so that the transactions which are made contrary to the provisions of the Act is to be set aside so that the purpose of the grant would be achieved in such manner.
4. If that aspect of the matter is kept in view and the instant facts are perused, the grantee himself had given up the use of land for agricultural purpose and had applied for grant of conversion of the land after the embargo on alienation for 15 years had lapsed. In the process of granting the conversion order, the competent authorities were required to take note of these aspects of the matter and in that light when the conversion of the land is granted, the permission of alienating the property is deemed to have been granted. In such circumstances,whereupon the converted land is alienated violation of the provision of the Act would not arise. Therefore the consideration as made by the Assistant Commissioner in the present facts and circumstance relating to the conversion order being granted on 27.05.1994 and the sale having taken place subsequent thereto on 04.06.1994 would indicate that the sale was after such period and the violation as contemplated under the Act had not occurred.
5. If the consideration as made by the Assistant Commissioner is kept in view and the reason assigned by the Deputy Commissioner is taken into consideration, the reason would not justify the action inasmuch as the land had been converted. Even though as observed by the Deputy Commissioner the provision contained in Sections 4 and 5 of the Act do not refer to these aspects of the matter, as already noticed the conversion was made after the embargo on alienation had ceased andthereafter the property had been sold and as such the fact situation is not the normal circumstance.
25. This order of the Co-ordinate Bench is approved by the Division Bench. Therefore, in the light of the finding of this Court that once the land was converted by an act of the original grantee himself, it was not open to the Deputy Commissioner to resume the land in favour of the original grantee.
Relevant paragraphs: 2. These appeals have been filed by co-operative societies who have been registered as ‘primary agricultural credit societies’, together with one ‘multi-State co-operative society’, and raise important questions as to deductions that can be claimed under section 80P(2)(a) (i) of the Income-Tax Act, 1961 (“IT Act”); and in particular, whether these assessees are entitled to such deductions after the introduction of section 80P(4) of the IT Act by section 19 of the Finance Act, 2006 (21 of 2006) with effect from 01.04.2007.
20. We now come to the judgment of this Court in Citizen Cooperative Society Ltd. (supra). This judgment was concerned with an assessee who was established initially as a mutually aided cooperative credit society, having been registered under section 5 of the Andhra Pradesh Mutually Aided Cooperative Societies Act, 1995. As operations of the assesseebegan to spread over States outside the State of Andhra Pradesh, the assessee got registered under the Multi38State Cooperative Societies Act, 2002 as well. The question that the Court posed to itself was as to whether the appellant was barred from claiming deduction in view of Section 80P(4) of the IT Act.
21. An analysis of this judgment would show that the question of law that was reflected in paragraph 5 of the judgment was answered in favour of the assessee. The following propositions may be culled out from the judgment: (I) That section 80P of the IT Act is a benevolent provision, which was enacted by Parliament in order to encourage and promote the growth of the co-operative sector generally in the economic life of the country and must, therefore, be read liberally and in favour of the assessee; (II) That once the assessee is entitled to avail of deduction, theentire amount of profits and gains of business that areattributable to any one or more activities mentioned in subsection (2) of section 80P must be given by way of deduction; (III) That this Court in Kerala State Cooperative Marketing Federation Ltd. and Ors. has construed section 80P widely and liberally, holding that if a society were to avail of several heads of deduction, and if it fell within any one head of deduction, it would be free from tax notwithstanding that the conditions of another head of deduction are not satisfied;
45. To sum up, therefore, the ratio decidendi of Citizen Cooperative Society Ltd. (supra), must be given effect to. Section 80P of the IT Act, being a benevolent provision enacted by Parliament to encourage and promote the credit of the co-operative sector in general must be read liberally and reasonably, and if there is ambiguity, in favour of the assessee. A deduction that is given without any reference to any restriction or limitation cannot be restricted or limited by implication, as is sought to be done by the Revenue in the present case by adding the word “agriculture” into Section 80P(2)(a)(i) when it is not there. Further, section 80P(4) is to be read as a proviso, which proviso now specifically excludes co-operative banks which are cooperative societies engaged in banking business i.e. engaged in lending money to members of the public, which have a licence in this behalf from the RBI. Judged by this touchstone, it is clear that the impugned Full Bench judgment is wholly incorrect in its reading of Citizen Cooperative Society Ltd. (supra). Clearly, therefore, once section 80P(4) is out of harm’s way, all the assessees in the present case are entitled to the benefit of the deduction contained in section 80P(2)(a)(i), notwithstanding that they may also be giving loans to their members which are not related to agriculture. Also, in case it is found that there are instances of loans being given to non-members, profits attributable to such loans obviously cannot be deducted.
Compiled by Sumana Chamarty, Advocate, Daksha Legal
M/s. Serve and Volley Outdoor Advertising Pvt Ltd. vs Bruhat Bengaluru Mahanagara Palike and another. Miscellaneous First Appeal 4502/2020 (AA) decided on 8 January 2021.
Relevant Paragraphs: 15….Hence, the question in the instant case is, whether Section 474 of the KMC Act, which is a special law prescribes a different period of limitation than as prescribed under the schedule to the Limitation Act, in terms of Section 3 of the Limitation Act?
Karnataka Municipal Corporations. Act. 474. Limitation for recovery of dues. – No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the corporation under this Act after the expiration of a period of six years from the date on which distraint might first have been made, a suit might first have been instituted or prosecution might first have been commenced, as the case may be, in respect of such sum.”
Thus, the limitation period for filing a suit to recover dues to the corporation (BBMP) is six years from when a suit might first have been instituted. The expression used in Section 474 of KMC Act is “suit”. Learned senior counsel for the appellant submitted that the said Section would not apply to an arbitration proceeding. However, we do not think, the said submission is right inasmuch as the Hon’ble Supreme Court in the case of Geo Miller & Co. Pvt. Ltd. (supra) has referred to Panchu Gopal Bose vs. Board of Trustees for Port of Calcutta [(1993) 4 SCC 338] (Panchu Gopal Bose) and extracted paragraph No.11 in the latter case as under: “11. Therefore, the period of limitation for the commencement of arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued. Just as in the case of civil actions the claim is not to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accrued.”
On a reading of the same, it is clear that the period of limitation, whether for a suit or an arbitration is the same under Section 474 of the KMC Act even though the word “arbitration” is not found in the said provision. The reason being, the judgment in Panchu Gopal Bose clearly states that the period of limitation for the commencement of arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued. Therefore, the period of limitation as prescribed for a suit in Section 474 of the KMC Act, i.e., to commence a civil action, would also be the same for commencement of an arbitration. Hence, the expression “suit” in Section 474 of the KMC Act would take within its scope and ambit the expression “arbitration” also. This is because arbitration is an alternative dispute resolution mechanism to a suit. In the circumstances, the period of limitation for making claims by respondent No.1/BBMP by way of a suit or arbitration is six years from the date when the cause of action arose.
Case laws in N.Balakrishnan v. M. Krishnamurthy, [(1998) 7 SCC 123], State of Orissa vs. Mamata Mohanti, [(2011) 3 SCC 436], Hukumdev Narain Yadav vs. Lalit Narian Mishra, [(1974) 2 SCC 133], Consolidated Engineering Enterprises vs.Prl. Secretary, Irrigation Department, [(2008) 7 SCC 169],State of Goa vs. Western Builders [(2006) 6 SCC 239]
8 Whether the fraudulent invocation of the Bank Guarantee is arbitrable? 8.11 Traditionally, disputes relating to rights in rem are required to be adjudicated by courts and / or statutory tribunals. A right in rem is a right exercisable against the world at large. Actions in rem refer to actions which create a legal status such as citizenship, divorce, testamentary and probate issues, etc. A lis in rem is not arbitrable by a private tribunal constituted by the consent of parties. Actions in personam determine the rights and interests of parties to the subject matter of the dispute, which are arbitrable.
The broad categories of disputes which are considered to be non arbitrable are penal offences which are visited with criminal sanction; offences pertaining to bribery / corruption; matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody and guardianship matters, which pertain to the status of a person; testamentary matters which pertain to disputes relating to the validity of a Will, grant of probate, letters of administration, succession, which pertain to the status of a person, and are adjudicated by civil courts. Certain categories of disputes such as consumer disputes; insolvency and bankruptcy proceedings; oppression and mismanagement, or winding up of a company; disputes relating to trusts, trustees and beneficiaries of a trust are governed by special enactments.
This Court in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd.43 has recognized some examples of disputes which are not arbitrable, and held that : “36. The well recognized examples of non-arbitrable disputes are : (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.”
8.12 The civil aspect of fraud is considered to be arbitrable in contemporary arbitration jurisprudence, with the only exception being where the allegation is that the arbitration agreement itself is vitiated by fraud or fraudulent inducement, or the fraud goes to the validity of the underlying contract, and impeaches the arbitration clause itself. Another category of cases is where the substantive contract is “expressly declared to be void” under Section 1044 of the Indian Contract Act, 1872 where the agreement is entered into by a minor (without following the procedure prescribed under the Guardian and Wards Act, 1890) or a lunatic, which would be with a party incompetent to enter into a contract.
In the case of voidable agreements, such disputes would be arbitrable, since the issue whether the consent was procured by coercion, fraud, or misrepresentation requires to be adjudicated upon by leading cogent evidence, which can very well be decided through arbitration. Until it so proved and upheld as per Sections 2(i) and (j) of the Indian Contract Act, 1872 such an agreement would remain enforceable, and is not void.
8.16 The ground on which fraud was held to be non arbitrable earlier was that it would entail voluminous and extensive evidence, and would be too complicated to be decided in arbitration. In contemporary arbitration practice, arbitral tribunals are required to traverse through volumes of material in various kinds of disputes such as oil, natural gas, construction industry, etc.
The ground that allegations of fraud are not arbitrable is a wholly archaic view, which has become obsolete, and deserves to be discarded. However, the criminal aspect of fraud, forgery, or fabrication, which would be visited with penal consequences and criminal sanctions can be adjudicated only by a court of law, since it may result in a conviction, which is in the realm of public law.
8.17 In the present case, the allegations of fraud with respect to the invocation of the Bank Guarantee are arbitrable, since it arises out of disputes between parties inter se, and is not in the realm of public law.
12. We are of the considered view that the finding in SMS Tea Estates and Garware that the non-payment of stamp duty on the commercial contract would invalidate even the arbitration agreement, and render it non-existent in law, and un-enforceable, is not the correct position in law. In view of the finding in paragraph 92 of the judgment in Vidya Drolia by a co-ordinate bench, which has affirmed the judgment in Garware, the aforesaid issue is required to be authoritatively settled by a Constitution bench of this Court.
We consider it appropriate to refer the following issue, to be authoritatively settled by a Constitution bench of five judges of this Court : “ Whether the statutory bar contained in Section 35 of the Indian Stamp Act, 1899 applicable to instruments chargeable to Stamp Duty under Section 3 read with the Schedule to the Act, would also render the arbitration agreement contained in such an instrument, which is not chargeable to payment of stamp duty, as being non-existent, unenforceable, or invalid, pending payment of stamp duty on the substantive contract / instrument ? ”
Held: 19.2 The aforesaid clauses reflect the wholly one-sided terms of the Apartment Buyer‘s Agreement, which are entirely loaded in favour of the Developer, and against the allottee at every step. The terms of the Apartment Buyer‘s Agreement are oppressive and wholly one-sided, and would constitute an unfair trade practice under the Consumer Protection Act, 1986.
19.7 We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer‘s Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An ―unfair contract‖ has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act. In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement.
Relevant paragraphs: 4-F. The unconscionable stand of the JDrs needs to be mentioned here; when there was no dispute as to the identity of the property either in the suit or in the RFA, the JDrs by their wily tactics are trying to generate one in the execution proceedings; in fact, their application filed under Order XLI Rule 27 seeking leave to produce additional documents in the RFA has been rejected by the Division Bench disbelieving the unregistered Settlement Deed dated 10.09.1968; the DB did not believe the version of the JDrs that they were in the possession of the suit property and not the DHr; strangely and unconscionably the JDrs are unjustibiably re-agitating the same issue before the Executing Court and before this Court as well; this virtually amounts to abuse of process of the court; this is yet another ground for the writ court to deny relief to the petitioner.
4-H Further added to the above, Sec.6 of the 1963 Act employs the expression ‘recover possession’; the so called possession of the JDrs cannot be termed to be possession in law which is a sine qua non for invoking this provision because: (i) Possession consists of two ingredients which Salmond on jurisprudence (7th ed.) page 297-308 mentions viz., (i) corpus possessionis and (ii) animus possidendi; the former, he says, comprises of both the power to use the thing possessed and the existence of grounds for the expectation that the possessor’s use will not be interfered with by others; the later consists of an intent to appropriate to oneself the exclusive use of the thing possessed; learned author P.J.Fitzgerald who edited ‘Salmond on Jurisprudence’ (12th edition) at page 272 adds: “(i) The distinction between animus and corpus was made in Roman law: Dig.41.2.3.1., and has been accepted by such jurists as Savigny, Thering, Pollock, Salmond and Holmes”. Apex Court too in the case of Poonaram Vs. Motiram AIR 2019 SC 813 at paragraph 9 has considered and approved this view; (ii) The great Lexicographer Mr.Ramnath Iyer in his magnum opus ‘The Law Lexicon’ 3rd Edn.- 2012 writes: “Possession and occupation: Bare occupation and possession are two different things. The concept of possession, at any rate as it is understood in legal terminology, is a complex one which need not include actual occupation. It comprises rather the right to possess, and the right and ability to exclude others from possession and control coupled with a mental element namely, the animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them if need be. The adverse possession of which the law speaks does not necessarily denote actual physical ouster from occupation but an ouster from all those rights which constitute possession in law. It is true that physical occupation is ordinarily the best and the most conclusive proof of possession in this sense but the two are not the same. It is also true that there must always be physical ouster from these rights but that does not necessarily import physical ouster from occupationespecially when this is of just a small room or two in a house and when this occupation is shared with others”
4-I Lastly, the JDrs resistance to the execution of the decree, that is structured on the provisions of Sec.6 of the 1963 Act, cannot be agreed to; a Division Bench of the Bombay High Court in AMIRUDDIN vs. MOHAMED JAMAL, ILR 15 BOM 685 decided way back in the year 1891, has held that Sec.9 of the old Act which was in pari material with Sec.6 of the new Act is not invocable by a person who has no juridical possession; the same view is taken by several other High Courts in the country viz., NEYVELI LIGNITE CORPORATION vs. K.S.NARAYANA IYER, AIR 1965 MADRAS 122; EMPEROR vs. BANDHU SINGH, AIR 1928 PATNA 124, NRITTO LALL MITTER vs. RAJENDRO NARAIN DEB, (1895) ILR 22 CALCUTTA 562 SOBHA vs. RAM PHAL, AIR 1957 ALLAHABAD 394; if the petitioner arguably has put up the structure in the suit property, it is only by high handedness and in gross disobedience of the injunctive decree granted by the trial Court and affirmed by the Division Bench of this Court; his usurpation of the suit property therefore cannot be termed as juridical possession; such a stand apart from being an after- thought is an affront to the judicial process, to say the least; such unscrupulous litigants who spoil the stream of justice do not deserve a discretionary remedy at the hands of the writ court, exercising a limited jurisdiction constitutionally vested in it.
In the above circumstances, this writ petition being thoroughly devoid of merits is liable to be rejected and accordingly it is, costs having been made easy.
In perhaps one of the biggest Lok Adalats, the E Lok Adalat held by the Karnataka State Legal Services Authority on 19 December 2020 disposed 16325 pre-litigation and 2,46,890 pending cases.The total settlement amount in pre-litigation cases is Rs. 56,25,04,956/- and in pending cases Rs. 645,91,19,971/- totaling Rs.702,16,24,927/-.
It is to be noted that 958 benches were constituted with zero expenditure incurred. Details of the event are given below.
FULL JUDGMENT: ROHINTON FALI NARIMAN, J.— Leave granted. Respondent 1 filed a civil suit dated 5-3-2013 before the Civil Judge, Senior Division, Solan under Section 6 of the Specific Relief Act in which the following reliefs were claimed: “(a) Declaring that the effect the plaintiff was running business in Shop No. 3 in the name and style M/s Om Garments owned by proforma Defendant 2 in Anand Complex, the Mall Solan w.e.f. 28-1-2013 on the basis of partnership deed of the said date with proforma Defendant 2 and the plaintiff has been wrongly dispossessed by Defendant 1 from Shop No. 3 in the intervening night of 3-3-2013 and 4-3-2013 illegally, wrongfully, without the consent of the plaintiff or proforma Defendant 2. (b) Decree for permanent prohibitory injunction restraining Defendant 1 from causing any interference on any portion of the suit premises/Shop No. 3 mentioned above.”
A written statement was filed by the appellant herein denying the averments made in the suit and stating that he has been in possession since 2004 as a tenant of the landlady, who is Respondent 2 before us. The landlady also filed a written statement dated 5-7-2013 in which she stated that apart from the partnership entered into with Respondent 1, the petitioner was her tenant w.e.f. 2004.
An Order 39 Rule 1 application was filed which was dismissed by the learned Single Judge on 21-4-2015 saying that the relief asked for could not be granted at this stage as it would amount to decreeing the suit itself. An appeal filed before the Additional District Judge met with the same fate. By the judgment dated 19-12-2016, the appellate court held: “However, when it is an admitted case of Defendant 2, admittedly landlady of the suit shop, that she has rented the suit shop to Defendant 1-respondent and has set up counter-defence that in fact Defendant 1 has sublet the suit shop to the plaintiff which is not at all the case of the plaintiff, prima facie it is clear on record that the suit shop was rented by Defendant 2 to respondent-Defendant 1 and Defendant 1 has been running the suit shop since 17-9-2004 when both the defendants have also reduced rent agreement into writing, copy of which is also available in the case file. As per the rent agreement, the tenancy had commenced w.e.f. 1-9-2004. Nothing has come on record, if Defendant 1-respondent had ever vacated-surrendered the possession of the shop in favour of landlady nor is it the case of Defendant 2 that she ever sought eviction of Defendant 1 from the suit shop. It appears from the copy of partnership deed having been relied upon by the applicant that both the applicant and Defendant 2 had connived with each other in order to oust Respondent 1 who is tenant over the suit shop and filed the suit as well as application for temporary and mandatory injunction in the court. Moreover, when the applicant herself has come with the plea that she is out of possession of the suit shop and she has prayed that possession in her favour be restored qua the suit shop by way of temporary injunction and at the same time the applicant has failed to prove on record that she has prima facie case of balance of convenience lies in her favour or that she is going to suffer irreparable loss as discussed above, hence, by allowing of the application as prayed by the applicant would amount to decree of the suit in favour of the applicant without giving the parties to prove their respective claims by leading evidence. Even when it has come on record that Respondent 1 is in actual possession of the suit property which was rented out to him by Defendant 2 landlady in the year 2004 and nothing has come on record that Defendant 1 had ever been evicted from the suit shop in accordance with law or he ever surrendered the possession of the suit property in favour of Defendant 2, it is clear on record that Respondent 1 has prima facie case and balance of convenience also lies in her favour.”
By the impugned judgment dated 10-4-20181, a learned Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition. This was done without dealing with any of the aspects set out by the first appellate court. From what one is able to gather, given the language used in the judgment, it appears that the learned Judge was swayed by the fact that a police complaint had been filed on 3-2-2013 in which dispossession was acquiesced in.
We are constrained to observe that every legal canon has been thrown to the winds by the impugned judgment1. First and foremost, the 1999 Amendment to CPC added a proviso to Section 115, which reads as follows: “115. Revision.—(1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears— (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
* * (3) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the High Court.” A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders.
Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In DLF Housing & Construction Co. (P) Ltd. v. Sarup Singh2 this Court held: (SCC pp. 811-12, para 5) “5. The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words “illegally” and “with material irregularity” as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.” (SCR at p. 373)
The learned counsel appearing for the respondents argued before us and attempted to support the judgment. He cited the judgment of Dorab Cawasji Warden v. Coomi Sorab Warden3. Para 16 of this judgment is set out hereinbelow: (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.” This judgment also makes it clear that when a mandatory injunction is granted at the interim stage, much more than a mere prima facie case has to be made out. None of the aforesaid statutory provisions or judgments have either been adverted to or heeded by the impugned judgment1.
We, therefore, set aside the impugned judgment1 and restore the judgment of the courts below.
Since the suit filed is a Section 6 suit which is a summary proceeding in itself, the trial court should endeavour to dispose of the suit itself within a period of six months from today.
The appeal is allowed in the aforesaid terms. ——— † Arising out of SLP (C) No. 10850 of 2018, Arising from the Judgment and Order in Sashi Verma v. Tek Singh, 2018 SCC OnLine HP 2151 (Himachal Pradesh, Shimla Bench, CMPMO No. 154 of 2017, dt. 10-4-2018) 1 Sashi Verma v. Tek Singh, 2018 SCC OnLine HP 2151 2 DLF Housing & Construction Co. (P) Ltd. v. Sarup Singh, (1969) 3 SCC 807 : (1970) 2 SCR 368 3 Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117
Daksha Legal 