Sukhdev Singh v. Kirpal Kaur & Anr.

CORAM: HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr. Munish Jolly, Advocate for the appellant. **** AJAY TEWARI, J. This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the plaintiffs-respondents with a direction to the appellant-defendant to hand over possession of the land in dispute. In view of an earlier judgment of this Court, learned Lower Courts below have returned a finding of fact that the appellant-defendant was in possession of more land than he was entitled and consequently the suit of plaintiff-respondent was decreed. Learned counsel for the appellant has argued before me that there is a discrepancy from the earlier decision of this Court as the possession of the land was altered as a consequence of mutual consent between the parties. I am afraid that the learned counsel has not been able to persuade me about the fact of mutual consent in view of the findings recorded by the Courts below. Learned counsel further argued that since the earlier decision of this Court was in a suit which was filed by the respondent for mandatory injunction, a fresh suit could not be filed by the RSA No.528 of 2007 -2- plaintiffs-respondents and they were to be relegated to file an appropriate application in that suit. He has relied upon a judgment of the Hon'ble Supreme Court in Jaidayal & others versus Krishan Lal Garg & another reported as (1996) 11 Supreme Court Cases 588 wherein an application for execution of a decree for mandatory injunction was rejected by the High Court on the ground that a fresh application under Section 22 of Easement Act should be filed by the party. The Hon'ble Supreme Court thus held as follows: “Having allowed the perpetual injunction and mandatory injunction granted by the trial court to become final, it would be no defence for the respondent to plead that he has not obstructed the passage etc. or that, as found by the High Court, a part of the property in which the present shop was constructed was not part of the property in the original suit. In other words, if a judgment-debtor has suffered the decree, no attempt to circumvent the perpetual injunction and mandatory injunction can be permitted. If the decree holder makes any construction clubbing the other adjacent property, property which is a part of the subject-matter in the earlier suit, a party cannot and should not, by his action, be permitted to drive the decree for another round of adjudication of the rights in the second suit to be settled afresh. Giving such a liberty will amount to encouraging persons to take the law into their own hands and drive the decree-holder to another suit. It can never be facilitated to circumvent the law and relegate the party for tardy process of the civil action. What is needed is an opportunity to RSA No.528 of 2007 -3- obey the injunction. Non-compliance is a continuing disobedience entailing penal consequences. A separate fresh suit is barred under Section 49 of the CPC. Once the decree of perpetual injunction and mandatory injunction has become final, the judgment-debtor is required to obey the decree. In whatever form he obstructs, it is liable to removal for violation and the natural consequence is the execution proceedings under Order 21 Rule 32 CPC. The question of Section 22 of Easements Act would arise only if the question arises for the first time.” In my opinion, the Hon'ble Supreme Court specifically held in the above cited case that a judgment-debtor could not be said to have a right to drive the decree-holder to file a separate suit and it was in those circumstances that the Hon'ble Supreme Court had set aside the order of the High Court rejecting the execution of the application and thus forcing the decree-holder to file a fresh application under Section 22 of the Easement Act. Here in this case, in fact the decree-holder has been driven to file a separate suit which has been decided by the Lower Courts below. In the cited case, the Hon'ble Supreme Court took the view that it did, so as to obviate the suffering of a decree-holder. These observations cannot be used completely out of context to further prolong the suffering of a decree-holder as is sought to be done in the present case. Learned counsel for the appellant has not been able to show me what prejudice has been caused to his client by defending the suit rather than, as he sought , in a consequential execution of the earlier decree. At this stage, learned counsel for the RSA No.528 of 2007 -4- appellant also brought my notice that his client has filed such an application before this Court bearing CM No.9161-C of 2001 in RSA No.1997 of 1998 but the said application was dismissed as withdrawn with the liberty to seek his remedy elsewhere which remedy has been availed by the appellant being the defendant in the suit from which the present appeal has arisen. In the circumstances, I find no merit in this case and dismiss the appeal. No costs. November 3, 2008 Sonia (Ajay Tewari) Judge