Preventive Relief how Granted – Section 36 | Specific Relief Act



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2. Actio personalis moritur:

The maxim “actio personalis moritur” in a limited class of actions ex delicto such as actions for damages for defa­mation, assault or other personal injuries not causing the death of the party and in other actions, where after the death of the party, the relief granted could not be enjoyed or granting it would be nugatory.

3. Amendment:

It is no doubt true that the Courts would as a rule decline to allow amendment if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether the amend­ment should be ordered and does not affect the power of the Court to order it if that is required in the interest of justice.

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The Courts should be extremely liberal in granting prayer of amend­ment of pleading unless serious injustice or irreparable loss is caused to the other side and that the test for allowing the amendment is to find whether the proposed amendment works any serious injustice to the other side.

The principle governing Order VI, Rule 17, C.P.C. is that amendment taking away the right accrued to a party by lapse of time, the party will be allowed to amend the pleading if no injustice is caused to the opposite party and relief claimed thereby is within the period of limitation.

4. Appreciation of evidence:

As to the jurisdiction of the High Court to reappreciate evidence in a second appeal it is to be observed that where the findings by the Court of facts is initiated by non-consideration of rel­evant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper finding.

5. Averment of fraud:

If there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are in sufficient even to amount to aver­ment of fraud of which any Court ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order VI, Rule 4, C.P.C.

6. Burden of proof:

On aspects, of burden of proof of benami trans­actions the Supreme Court laid down as follows:

“The principle governing the determination of the question whether transfer is a benami transaction or not may be summed up thus, (1) the burden of showing that a transfer is a benami transaction lies on
the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary, (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the ques­tion as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct etc.”

7. Court and Tribunal:

While the powers of a Civil Court are plenary and unlimited unless expressly curtailed by statute, the powers of a Tribu­nal are the result of express grant and cannot exceed the bounds limited by the constituting statute.

8. Decree:

The merger takes effect irrespective of whether the Appel­late order is one of reversal, confirmation or modification.

9. Enforcement of:

On the express language of Section 4 (1) of Benami Transactions (Prohibition) Act, 1988 any right of hearing if the real owner in respect of any property held benami would be not enforceable once Sec­tion 4(1) operated even if such transaction had been entered into prior to 19.5.1988 and no suit could be filed on the basis of such plea after 19.5.1988.

10. English Law:

The section is similar to the provisions of the Law Reforms (Miscellaneous Provisions) Act, 1934 in England.

11. Equitable title:

No doubt, the provisions of Section 53-A of the Transfer of Property Act are intended to be an equitable shield for a party who has been placed in possession in part performance of an agreement for sale so as to protect that possession and it comes to be juridically recognised elevating mere possession to equitable title to property liable to be protected as such. However, before such equitable entitlement is avail­able, all of its conditions as set out in Section 53-A of the Transfer of Prop­erty Act, are required to be satisfied. One of them is that the person claim­ing its benefit must always be ready and willing to perform his part of the agreement. And if it is shown that he was not so ready and willing, he will not qualify for the protection by reason of the doctrine of part performance.

12. Findings of facts:

It is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding.

13. General reasons:

It is not the duty of the appellate Court when it agrees with the view of the Trial Court on evidence either to restate the effect of the evidence or to restate reasons given by the Trial Court. Expres­sion of general reasons given by the Court decision of which is under offi­cial would ordinarily suffice.

14. Inconsistency:

In the case of inconsistency between the provi­sions of the two enactments both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provision therein.

15. Injunction:

In case before Supreme Court, His Lordship Subba Rao, J. observed on aspects relating to grant of injunction to restrain con­struction on land of public street as follows:

“The law on the subject may be briefly stated thus: Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side lands are ordinarily included in the road, for they are necessary for the proper mainte­nance of the road. In the case of a pathway used for a long time by the public its topographical and permanent land marks and the manner and mode of its maintenance usually indicate the extent of the user.

In the present case it is not disputed that the metalled road was dedicated to public. As we have indicated earlier, the inference that the sidelands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public path­way vests in the Municipality but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespasser. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and therefore he can maintain an action for trespass against any member of the public who acts in excess of his rights.

If that is the legal position two results flow from it, namely (1) the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it as a path­way (2) it cannot be said that the putting up of the structures for installing the statute of Mahatma Gandhi or for Piyo or library are necessary for the maintenance or the user of the road as a public highway. The said acts are unauthorised acts of Municipality. The plaintiff who is the owner of the soil, would certainly be entitled to ask for an injunction restraining the Municipality from acting in ex­cess of its rights. But the plaintiff cannot ask for possession of any part of the public pathway, as it continues to vest in the Municipality”.

The Court was not justified in issuing the injunction in a transaction between bankers by prejudging the whole issue and restraining one banker from claiming refund from another Bank. The Appellate Court has to be equally cautious not to prejudice the whole issue. It cannot be said that the Trial Court prejudged the issue in the instant case.

The Supreme on aspects of injunction against true owner laid down as follows:

“It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a tres­passer or a person who gained unlawful possession, as against the owner.”

Where contract of supply of goods was entered into by State Trading Corporation with a foreign buyer with a contract of Bank guarantee by sup­plier on his failure for shipment of goods to foreign buyer and the supplier failed to perform the contract and the contract was cancelled between Cor­poration and foreign buyer, it was held that Court is not justified in issuing injunction against Corporation from invoking Bank guarantee.

16. Interim injunction:

It has been held by Supreme Court as follows:

“When an interim injunction is sought the Court may have to exam­ine whether the party seeking the assistance of the Court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed?”

The Supreme Court does not interfere with interim orders, but where legal principles of great importance affecting international trade are involved, if the orders granting temporary injunction are allowed to stand they are bound to have their repercussion on our international trade.

17. Interim orders:

A mere objection to jurisdiction does not instantly disable the Court from passing any interim orders.

18. Jurisdiction of High Court:

It has been on aspects of jurisdiction of High Court held that:

“In our opinion the High Court had no jurisdiction to interfere with the order of the first Appellate Court. It is not the conclusion of the High Court that the first Appellate Court had no jurisdiction to make the order that it made. The order of the first Appellate Court may be right or wrong, may be in accordance with law or may not be in accordance with law but one thing is clear that it had jurisdiction to make that order. It is not the case that the first Appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Code of Civil Procedure.”

19. Jurisdiction:

Even where the final order is made in exercise of revisional jurisdiction, the subordinate orders merge with order made in revisional jurisdiction. The reason is that the revisional jurisdiction is basi­cally and fundamentally the Appellate jurisdiction.

The Supreme Court on aspects of jurisdiction of High Court laid down as follows:

“In our opinion, the High Court had no jurisdiction to interfere with the order of the first Appellate Court. It is not the conclusion of the High Court that the first Appellate Court had no jurisdiction to make the order that it made. The order of the first Appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first Appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Code of Civil Procedure.”

20. Land under the lease deed:

The trial Court recorded a positive finding based on the revenue records and the oral evidence led by the plaintiff that he had come into possession of the land under the lease deed and continued to possess the same all along. The lower Appellate Court, which is the final Court of fact, confirmed the finding of the Trial Court regarding plaintiffs possession over the suit land and upheld the judgment of the Trial Court decreeing the suit. Before the High Court the contention that was raised related to the question of possession. There was hardly any scope for the High Court to interfere with the finding of possession concur­rently recorded by the Courts below.

21. Lease or licence:

The Hon’ble Supreme Court laid down the fol­lowing four principles for determining the question as to whether the docu­ment concerned is a lease or licence. The Supreme Court held at page 1263:

“The following propositions may therefore, be taken as well-established:

(1) To ascertain whether a document creates a licence or lease the substance of the document must be preferred to the firm.

(2) The real test is the intention of the parties—whether they in­tended to create lease or licence.

(3) If the document creates an interest in the property it is lease but if it only permits another to make use of the property of which the legal possession continues, with the owner it is a licence.

(4) If under the document a party gets exclusive possession of the property prima facie he is considered to be a tenant, but circum­stances may be established which negative the intention to cre­ate a lease.”

22. Legality or validity:

Ordinarily, the aggrieved party which is af­fected by any order has the right to seek redress by questioning the legality, validity or correctness of the order unless such party is a minor insane person or is ‘suffering from any other disability which the law recognises as sufficient to permit another person. If a guardian or a next friend initiates proceedings for and on behalf of such disabled aggrieved party it is in effect proceedings initiated by the party aggrieved and not by a total stranger who has no decree personal share in the outcome thereof.

23. Peaceful possession:

Even injunction suits purely based on pre­vious peaceful possession and subsequent threatened dispossession may stand on an entirely different footing and might not attract the sweep of Section 41(1) of the Small Causes Courts Act or for that matter Section 2 of the Bombay Rent Act. But the present suits are not of that type. They are suits clearly based on the allegation that the plaintiffs are licensees on monetary considerations and they apprehend to be dispossessed, not in accordance with law, at the hands of the defendant-licensors.

Such suits clearly attract the applicability of Section 41 of the Small Causes Courts Act as both the conditions for its applicability, namely, that these are suits be­tween licensees and licensors and relate to recovery of possession of im­movable properties situated in Greater Bombay are complied with. Conse­quently, the conclusion is inevitable that the aforesaid suits as filed by the appellants were not cognizable by the City Civil Court, Bombay and they could be entertained only by the Small Causes Court, Bombay, and fall within the exclusive jurisdiction of the latter Court.

24. Permission to reopen:

It is a well-settled law that under Section 100, C.P.C., it is not permissible to reopen the question of facts as such and interference is possible only when findings on question of facts are not supported by evidence as such or they are perverse in the sense that no evidence exists in support of such finding of fact. In fact, otherwise any erroneous finding of fact or inference drawn from the facts found by the Courts below cannot be disturbed.

25. Proof of:

An easement by prescription is an assertion of a hostile claim of certain rights over another man’s property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot estab­lish a prescriptive acquisition of the right and hence if the owner of the dominant tenement has during the period of prescription exercised rights on the footing that he is the owner but which he later on claims as an easement over a servant tenement, exercised as an easement.

26. Relief:

The High Court has stated in the order as if there is a concluded right between the parties. Order XXXIX, Rule 2, C.P.C. postu­lates that “in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

The High Court has committed not only manifest error of law, but crossed the limitations of Order XLIII, Rule 1 in granting the relief.

27. Replaces the judgment:

It is well-settled that the judgment or decree of the Appellate Court replaces the judgment of the Trial Court, thus constituting the judgment or decree of the Appellate Court, the only final judgment to be executed in accordance with law by the Court below.

28. Res judicata:

A Court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata.

29. Suit for declaration:

Where in a suit for declaration and injunc­tion, the Trial Court taking up application for temporary injunction not only dismissed the application but also dismissed the suit although neither is­sues were framed nor any evidence was laid, the order of the trial Court set aside remitting back the case for deciding the suit.

30. Suit for specific performance:

Appellant has helped the film pro­ducer in seeking the permission of Government for shooting films. On completion of the film during the pendency of suit proceedings, respon­dent film producer restrained from exhibiting the film save after displaying acknowledgement of the services rendered by the appellant.

31. The object behind:

The object behind granting interim relief is to maintain status quo ante so that the final relief can be appropriately moul­ded without the party’s position being altered during the pendency of the proceedings.

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