In this post we will discuss about the recent judgment of The Supreme court in which it stated that a person being unable to prove that he had actual possession of the suit premises cannot seek a decree of permanent injunction.
CANNOT GRANT PERMANENT INJUCTION WITHOUT PROOF OF POSSESION: SUPREME COURT
Judgment Digest: Balkrishna Dattatraya Galande Vs Balkrishna Rambharose Gupta
This recent judgment of the Supreme Court examines the conditions of permanent injunction in the context of a landlord and a tenant. A decree of permanent injunction prohibits the defendants from committing a certain act or exercising a right, different from the rights of the plaintiffs, perpetually or permanently. The law provides certain conditions upon which the prayer for an injunction is considered, which will become apparent with the following discussion.
Judgment accessible at https://indiankanoon.org/doc/101569910/ [1]
Facts of the Case
This appeal arose out of the judgment dated 23rd June 2016 passed by the High Court of Judicature at Mumbai dismissing the Writ Petition No.6873 of 2016 and affirming the judgment of the First Appellate Court for a permanent injunction.
the respondent-plaintiff, who claimed to be a tenant, filed a suit in the year 2004 for a permanent injunction restraining the appellant-landlord from disturbing his peaceful possession in the suit premises. The case of the respondent, was that he was running an eating house, a pan shop, and was also doing fabrication work in the suit premises. According to him, he had been inducted in the suit premises as a tenant in the year 1977 on a monthly rent of Rs.55/-. The landlord had earlier instituted a suit against the tenant in RCS No.1004/1988 and it was dismissed as withdrawn. He averred that he repeatedly called upon the landlord to carry out the necessary repairs in the suit premises; however, he refused to carry out the repairs. He alleged that after obtaining permission from the Corporation for effecting the necessary repairs, when he was about to start the repair works, on 19th August 2004, the landlord came along with his men and obstructed him. Hence, he was constrained to file the suit for a permanent injunction.
The landlord filed a written statement contending that the tenant was in occupation of only one room until the year 1991. Earlier, he had instituted a suit against the tenant, and during the pendency of that suit, the parties had arrived at a settlement. In pursuance of this, he handed over the possession of the suit premises to the landlord. Accordingly, the landlord filed Purshis Ex.-41 on 23rd April 1991 seeking permission to withdraw the suit, which was disposed of on 26th April 1991. According to the appellant, the relationship between the parties as landlord-tenant ceased to exist. The appellant had executed a Development Agreement with the second respondent and when he was about to start the development of the suit premises, the tenant had filed the suit for permanent injunction and therefore, had prayed for the dismissal of the suit.
Upon consideration of oral and documentary evidence, the trial court had dismissed the suit holding that the tenant had not produced any licence or electricity connection to show that he was running the hotel, the pan shop and doing fabrication work- thus showing that he had been carrying on the business from the suit premises. The plea of the tenant that he had been in occupation of the suit premises was not acceptable. Referring to the settlement, the bench had pointed out that after disposal of the suit, he had not paid the rent and that he had failed to establish that he was the tenant in the suit premises. On these findings, the court had dismissed the suit.
On re-appeal, the First Appellate Court allowed the appeal filed by the tenant by holding that there is nothing on record to show that after the withdrawal of the earlier suit, the tenant had vacated the suit premises in the year 1991. It held that he had established his possession over the suit property and that the trial court erred in drawing presumption of possession based on withdrawal Purshis Ex.- 41 filed in 1988 suit. Challenging the judgment of the Appellate Court, the appellant filed the Writ Petition No.6873 of 2016 before the High Court which came to be dismissed by the impugned judgment.
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Issues of the case
- Whether the Appellate Court and the High Court were right in granting the permanent injunction to the respondent tenant when he had neither shown actual possession nor shown the rent paid since 1991.
Case Laws Cited
None
Findings of the Court
The Appellate Court and High Court had held that there was nothing that proved that the possession was voluntarily handed over by the respondent and the appellant had followed due process of law in taking back the premises. The major evidence here was Purshis Ex.-41, which was filed by the appellant on 23rd April 1991 to withdraw the 1988 suit on grounds of technical defects in the same. Based on this document, the courts had concluded that there was no settlement between the parties, and contrary to the contention of the appellant, it did not show that the respondent had handed over the possession to him. The Apex Court declared that this approach taken by the lower courts in presuming the respondent’s possession of the premises was incorrect.
Under section 38 of the Specific Relief Act, a decree of permanent injunction can be granted only to the person in actual possession of the property. The burden of proof was on the respondent to show that he was in actual and physical possession on the date of the suit. The Appellate Court had inferred his possession from Purshis Ex.-41 and from the fact that he had obtained permission from the Corporation to carry out repairs. However, an interlocutory application filed by the respondent seeking a temporary injunction was rejected by an order dated 17th October 2005. This order referred to the Commissioner’s Report dated 2nd November 1988 which showed the poor condition of the premises before filing the original suit in 2004. The report stated,
“…..The flooring was completely damaged… It was just of shift flooring, wooden stall was also closed at the time of commission work. According to plaintiff the premises was taken for conducting business i.e. eating house. Considering the condition of the premises on the date of commission work, it was impossible to carry such business in it. It is not case of the plaintiff that he carried repairs after commission work….”
The court agreed with the trial court that the premises were not fit for carrying on business and rejecting the contention of the respondent that he had carried out any repairs after the Commissioner’s inspection. He had failed to produce any documents such as a court order permitting the repairs, receipts for materials and labour, etc. The lower court also relied on the photographs submitted by the respondent to reach its conclusion that the premises were not fit for anything.
The 2004 suit had been instituted under Section 38 of the Act, to pray for a permanent injunction for he had actual possession of the premises. As per this provision, an injunction restraining the defendant from disturbing possession may not be granted in favour of the plaintiff unless he proves that he was in actual possession of the suit property on the date of filing of the suit. The Appellate Court had concluded that the appellant had failed to prove that the respondent had vacated the premises after the 1988 suit was withdrawn in 1991. The appellant contended that he had vacated the property after a settlement was reached. The respondent had not rebutted this with any evidence. His possession cannot be based on inferences but drawn from circumstances.
As per the respondent, he was running a pan shop, a hotel, and doing fabrication work from the premises. He admitted that two licenses were required for the pan shop and hotel business and he was not holding any such license. He also admitted, on cross-questioning, that he did not have the three-phase electricity connection required for the fabrication business. Without the license and requisite electricity connection, his plea of running the three ventures as dismissed by the trial court was reaffirmed.
The appellant’s contention that the tenant was not in possession was corroborated by the evidence of Sandeep Wagh. He stated that he knew both parties and that after meeting with an accident, the respondent did not carry out any business at the premises. The trial court had concluded based on this statement and other circumstances that in all probability, he had vacated the premises in 1991. The Supreme Court opined that the lower court should not have interfered with these findings based on the Purchis.
The above conclusion was further strengthened by the non-payment of rent by the respondent since 1991 when the suit was withdrawn. The appellant had also not initiated proceedings claiming rent or arrears. After he filed the suit in 2004, the respondent sent a cheque for Rs. 10,395/- dated 14th May 2005 towards rent, admitting that he had not paid the same for 189 months. He had suppressed this material fact. The trial court had observed that the respondent had not come to the court with clean hands and that he could not sustain his claim for the equitable relief of permanent injunction. The Appellate Court ignored this fact, for without paying rent, he could not have a legitimate right for possession. With the kind of plea made, he was required to show lawful possession. Non-payment of rent for 15 years cannot go to show lawful possession entitling permanent injunction.
The appellant had decided to develop his property through the second respondent. A public notice was given in this regard calling objections from anyone with interest in the property. The respondent had issued a notice dated 13th April 2000 claiming that he was a tenant of a portion of 1000 sq. ft. for the last twenty years. However, in the 1988 suit, the premises were claimed to be only a room. In the interlocutory application, it was described to be 356 sq. ft. It was not known how he had claimed tenancy over 1000 sq. ft. As pointed out by the trial court, the Corporation had rejected his objection and sanctioned the layout of the proposed building. Such conduct of the respondent also disentitled him from the equitable relief.
The respondent had failed to show that he had actual possession on the date of filing the suit, which is a must under Section 38. Thus, he was not found to be entitled to the decree of a permanent injunction. The finding of the trial court was based on oral and documentary evidence. The First Appellate Court and the High Court had erred in setting aside this judgment based on the inferences from Purshis Ex.-41. The Supreme Court, therefore, allowed the appeal of the appellant, setting aside the order in the Writ Petition dated 23rd June 2016 and dismissed the suit filed by the respondent in 2004, without costs.
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Conclusion
The decision was made in the favour of the landlord due to the tenant being unable to prove that he had actual possession of the suit premises, which is mandatory to seek a decree of permanent injunction. An injunction is a type of equitable relief, i.e. it is a judicial remedy developed to give relief where the remedy at law is insufficient. However, this has been included in our legislation by the virtue of Chapter VII of the Specific Relief Act, 1963. In addition to this, various legal principles have to be regarded before the grant of the decree. In case of perpetual injunction these are:
- Money is not enough compensation for relief.
- The prima facie case is in favour of the plaintiff.
- The balance of convenience is in favour of the plaintiff.
In the present appeal, the prima facie case could not be made for the respondent as from the Purchis Ex.-41, it could only be inferred that possession was not ceded, this is not a definitive conclusion as the lower courts made. The balance of convenience was also not conclusively leaning towards the respondent, for the plaintiff also sought to develop his property.
Another important aspect is the maxim of equitable principles, which states that “he who seeks equity must come with clean hands”. It bars affirmative recovery for those relief-seekers who have indulged in improper conduct. Here too, the respondent had not paid the rent, suppressed material facts, and distorted his claims. These, although ignored by the Appellate Court, were acknowledged by the Apex Court in determining the validity of his claim, which was ultimately rejected.
ALSO READ- TENANT’S RIGHTS DURING EVICTION
References
As given in footnotes
http://www.legalservicesindia.com/article/1177/The-Law-Relating-To-Injunctions.html
This post was written by Jigyasa Kharbanda
For case specific advice, please contact Injunction lawyers Advocate (Civil) in Chandigarh Panchkula Mohali Zirakpur Derabassi Kharar Mullanpur Baltana etc.
More on 99888-17966.
[1] CA 1059 of 2019
