Mr. Hanumant Subhedar & Ors. v. Mrs. Farida Bi. Khalifa & Ors.

ShriJ.P. Mulgaonkar, Advocate for the Petitioners. Shri S.D. Padiyar, Advocate for Respondent No.1. Shri A.D. Bhobe, Advocate for Respondent No.2. CORAM : F.M. REIS, J. DATE : 24th AUGUST, 2012 ORAL JUDGMENT : 2 Heard Shri J.P. Mulgaonkar, learned Counsel appearing for the petitioners, Shri S.D. Padiyar, learned Counsel appearing for respondent no.1 and Shri A.D. Bhobe, learned Counsel appearing for respondent no.2.

The above petition challenges an order passed by the lower appellate Court dated 4/11/2011 passed in Misc. Civil Application No.143/2010 whereby an appeal challenging the order dated 30/04/2010 passed by the learned Civil Judge Junior Division, Mapusa was allowed and an application for temporary injunction filed by the respondent no.1 was allowed and the petitioner as well as the respondent no.2 were inter alia restrained from dispossessing the respondent no.1 from the suit flat.

During the course of the hearing of the above petition, Shri J.P. Mulgaonkar, learned Counsel appearing for the petitioners has assailed the impugned order essentially on the ground that the learned Judge had no jurisdiction to pass the said order as according to him the proceedings under the Securitisation and Reconstruction of 3 Financial Assets and Enforcement of Security Interest Act, 2002 have been initiated by the respondent no.2 and it is well settled that the Civil Court had no jurisdiction to decide or pass any injunction in such matters. The learned Counsel has taken me through the impugned order and pointed out that the relief sought by the petitioners is for permanent injunction and the question of granting such permanent injunction when no counter claim is filed by the respondent no.1 does not arise. The learned Counsel further pointed out that any application for temporary injunction by respondent no.1 is not maintainable in view of the judgment reported in 1992 Bombay 24 in the case of Nanasaheb V/s. Dattu & Ors. The learned Counsel further points out that as the application itself is not maintainable the question of granting any temporary injunction would not arise.

Shri A.D. Bhobe, learned Counsel appearing for respondent no.2 has pointed out that the action taken by respondent no.2 is in accordance with law.

Shri S.D. Padiyar, learned Counsel appearing for respondent no.1 has supported the impugned order and pointed out that the Civil Court had jurisdiction to decide matters which do not come within the 4 purview of the said Securitisation Ac of 2002. The learned Counsel further pointed out that as the matter which is sought to be adjudicated to dehors of Section 14 of the Securitisation Act, the Civil Court had jurisdiction. The learned Counsel further pointed out that the respondent no.1 had moved the Debt Recovery Tribunal and an order was passed calling upon the respondent no.1 to establish their claim of tenancy in proper Civil Court. The learned Counsel, as such, submits that there is no reason to interfere in the impugned order.

I have considered the submissions of the learned Counsel and I have also gone through the records as well as the impugned order. Without going into the rival contentions advanced by the learned Counsel with regard to the jurisdiction of the Civil Court, the learned Counsel appearing for respondent no.1 was asked to address how the application filed by the respondent no.1 in the suit filed by the petitioner was maintainable. The learned Counsel tried to point out that such application was maintainable as according to him the relief sought is under Order 39 Rule (a) of the Civil Procedure Code. The learned Counsel further pointed out that considering that grave injustice would occasion to respondent no.1 in case he is dispossessed from the suit property the lower appellate Court was justified to pass the impugned order. 5

Order 39 Rule 1 of the Civil Procedure Code reads thus:

Cases in which temporary injunction may be granted - Where in any suit it is proved by affidavit or otherwise- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, (c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.

This Court in the judgment reported in Nanasaheb V/s. Dattu & Ors. (supra) has held that the defendant can seek temporary injunction only in terms of Order 39 Rule 1(a) of the Civil Procedure Code, but however, relief sought by the respondent no.1 is in terms Order 39 Rule 1(c) of the Civil Procedure Code. Considering the said aspect and in view of the ratio laid down by this Court in the said judgment, I find that the application for temporary injunction filed by 6 the respondent no.1 is not maintainable in law. Considering the relief sought in the present case by the respondent no.1 in the application which is in the nature of temporary injunction to restrain the petitioners and respondent no.2 not to dispossess respondent no.1 from the suit flat till the disposal of the suit, I find that such relief cannot be granted without a counter claim being filed by the respondent no.1.

Apart from that, considering the overall facts of the case and considering the judgment passed by the Debt Recovery Tribunal which clearly provides that respondent no.1 has to file appropriate proceedings to establish his claim, I find that filing only an application for temporary injunction would not be enough. The respondent no.1 has to file appropriate proceedings to establish their right to the suit flat. The lower appellate Court whilst passing the impugned order has failed to consider the said aspect and as such the impugned order cannot be sustained and deserves to be quashed and set aside. The dismissal of the application for temporary injunction would not preclude the respondent no.1 to take appropriate remedy in law to get their right in the suit flat adjudicated in accordance with law. Subject to the above, rule is made absolute in terms of prayer (a). 7