S- 6 Specific Relief ACt, S- 10 & 115 CPC:
Interplay and prohibitions
The
suit filed under Section 6 of Specific Relief Act (SRA) 1963, is quite
significant for seeking or reclaiming possession from the courts of law, if the
petitioner is indeed dispossessed wrongfully. The claim of possession may not
essentially relate to the title, as the issue of title, if any may, only be
raised, by way of separate suit. In essence, the Section 6 of SRA takes within
its compass the illegal dispossession. The element of possession has to be proved,
therefore, by the aggrieved party. The onus shall be on petitioner to prove it
beyond doubt and mere rhetorical assertions, shall be meaningless. In any case,
the element of dispossession, itself, shall entail the actual acts and manner
adopted for the dispossession and the resistance, if any shown by the person or
persons dispossessed with cogent evidence to that effect. The direct evidence
of possession and dispossession shall be the essential ingredient of a suit,
under Section 6 of Specific Relief Act. It is also significant, since a suit
for possession u/s 6 of Specific Relief Act shall have to be preferred within
Six(6) months in order to claim repossession, whereas, a suit for possession
simpliciter, when a party is not in possession and claim possession, a suit may
be preferred, even up to 12 years from the date of cause of action, that, being
the limitation period, contingent on the facts and circumstances.
As
a special provision in SRA, the suit under Section 6 of SRA shall essentially
be a summary procedure and that implies that wholesome trial may not be
necessary in such suits.
It
is also relevant to point out that whether section 10 of CPC shall be
maintainable or not in case a suit u/s 6 SRA is filed and another suit seeking
declaration with regards to forgery, fabrication or injunction is field
subsequently. Whether , in such an event the later suit shall be stayed as is
the ordinary course of law or else, whether Section 10 of CPC shall have no
applicability in case of suit under Section 6 SRA. This aspect shall also be
deliberated herein.
The
discussion shall also revolve around applicable of Commercial Courts Act (CCA)
2015 as amended in 2018, to the effect, if a suit under section 6 of Specific
Relief Act entailing summary procedure shall also fall within the ambit of
Commercial Courts Act or not and the remedy such as appeals, in such a situation
are circumscribed or not?
Before
dealing with the matter further, the contents of section 6 of SRA may be
perused. It reads as under:
“6.
Suit by person dispossessed of immovable property.—
(1)
If any person is dispossessed without his consent of immovable property
otherwise than in due course of law, he or any person through whom he has been
in possession or any person claiming through him may, by suit, recover
possession thereof, notwithstanding any other title that may be set up in such
suit.
(2)
No suit under this section shall be brought— (a) after the expiry of six months
from the date of dispossession; or (b) against the Government.
(3)
No appeal shall lie from any order or decree passed in any suit instituted
under this section, nor shall any review of any such order or decree be
allowed.
(4)
Nothing in this section shall bar any person from suit to establish his title
to such property and to recover possession thereof.”
Analysis
In
the teeth of the aforesaid provisions of section 6 SRA, if a judgment and
decree is passed, since, no appeal or review is provided for to the aggrieved
party, whether aggrieved party shall be remediless shall also be deliberated.
From
a bare perusal of aforesaid, it is evident that:
(i)
Suit
under section 6 of SRA , when a person is dispossessed without his consent;
(ii)
That dispossession is without due process of law;
(iii)
The aggrieved party may seek recovery of possession, even if conflicting claim
of title is made in the suit;
(iv)
No suit under this provision shall lie against government;
(v)
No
such suit shall otherwise lie after Six (6) months of the dispossession;
(vi)
No appeal shall lie against the judgment
or decree under this section;
(vii)
No review shall lie against the judgment;
(vii)
The issue of title shall not be relevant in section 6 SRA suit and a separate
suit, on the premise of title could be raised.
The
aforesaid provision on bare perusal shall make it explicitly evident that the
relief after the decision in the suit under this provision is vastly
circumscribed. No appeal could be filed by the aggrieved party. No review could
be filed either.
If that is so, whether the aggrieved party is
left remediless. The only option, thus available to the aggrieved party shall
be a revision petition, if grave prejudice is caused to the aggrieved party.
HistOrical perspective
In
SONIA CHHABRA & ANR versus SHANTA GROVER & ORS Neutral
Citation-2025: DHC 4013 (C.R.P. 259/2017), the Delhi High Court took note of
several judgments of the Hon’ble Apex
Court relating to scope of revision petition, while adjudicating upon revision
petition against the judgment in a suit u/s 6 of Specific Relief Act. The
principles of Revision is contained in Section 115 of Code of Civil Procedure.
It
is significant, since, the appellate remedy is not provided for in case of
judgment and decree under Section 6 of SRA. Therefore, if a party is aggrieved
to a judgment and decree passed, what remedy shall be available to such parties
and if a revision petition shall be maintainable.
In
the case of Keshardeo Chamria v. Radha Kissen Chamria : (1952) 2 SCC 329,
had discussed a catena of judgments in relation to the scope under Section 115
of the CPC. In Keshardeo Chamaria (Supra), the relevant portion
of the aforesaid judgment is as under:
“21.
A large number of cases have been collected in the fourth edition of Chaitaley
& Rao's Code of Civil Procedure (Vol. I), which only serve to show that the
High Courts have not always appreciated the limits of the jurisdiction
conferred by this section. In Mohunt Bhagwan Ramanuj Das v. Khetter Moni
Dassi [Mohunt Bhagwan Ramanuj Das v. Khetter Moni Dassi, (1896-97) 1 CWN 617
: 1896 SCC OnLine Cal 11] , the High Court of Calcutta expressed the
opinion that sub-clause (c) of Section 115 of the Civil Procedure Code, was
intended to authorise the High Courts to interfere and correct gross and
palpable errors of subordinate courts, so as to prevent grave injustice in
non-appealable cases. This decision was, however, dissented from by the same
High Court in Enat Mondul v. Baloram Dey [Enat Mondul v. Baloram Dey, (1899)
3 CWN 581] , but was cited with approval by Lort-Williams, J. in Gulabchand
Bangur v. Kabiruddin Ahmed [Gulabchand Bangur v. Kabiruddin Ahmed, ILR (1931)
58 Cal 111 : 1930 SCC OnLine Cal 52. In 1894, in Amir Hassan Khan v.
Sheo Baksh Singh [Amir Hassan Khan v. Sheo Baksh Singh, (1883-84) 11 IA 237 :
1884 SCC OnLine PC 13] , the Privy Council made the following observations
on Section 622 of the former Code of Civil Procedure, which was replaced by
Section 115 of the Code of 1908 : (IA p. 239)
“…
The question then is, did the Judges of the lower courts in this case, in the
exercise of their jurisdiction, act illegally or with material irregularity. It
appears that they had perfect jurisdiction to decide the question which was
before them, and they did decide it. Whether they decided it rightly or
wrongly, they had jurisdiction to decide the case; and even if they decided
wrongly, they did not exercise their jurisdiction illegally or with material
irregularity.”
“23.
In 1917 again in Balakrishna Udayar v. Vasudeva Aiyar [Balakrishna Udayar
v. Vasudeva Aiyar, (1916-17) 44 IA 261 : 1917 SCC OnLine PC 32] , the Board
observed : (IA p. 267) “It will be observed that the section applies to
jurisdiction alone, the irregular exercise or non-exercise of it, or the
illegal assumption of it. The section is not directed against conclusions of
law or fact in which the question of jurisdiction is not involved.”
24.
In 1949 in N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board
[N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, (1948-49)
76 IA 67 : 1949 SCC OnLine PC 8] , the Privy Council again examined the scope
of Section 115 and observed that they could see no justification for the view
that the section was intended to authorise the High Court to interfere and
correct gross and palpable errors of subordinate courts so as to prevent grave
injustice in non-appealable cases and that it would be difficult to formulate
any standard by which the degree of error of subordinate courts could be
measured. It was said : (IA p. 73)
“…
Section 115 applies only to cases in which no appeal lies, and, where the
legislature has provided no right of appeal, the manifest intention is that the
order of the trial court, right or wrong, shall be final. The section empowers
the High Court to satisfy itself on three matters, (a) that the order of the
subordinate court is within its jurisdiction; (b) that the case is one in which
the court ought to exercise jurisdiction; and (c) that in exercising
jurisdiction the court has not acted illegally, that is, in breach of some
provision of law, or with material irregularity, that is, by committing some
error of procedure in the course of the trial which is material in that it may
have affected the ultimate decision. If the High Court is satisfied on those
three matters, it has no power to interfere because it differs, however
profoundly, from the conclusions of the subordinate court on questions of fact
or law.”
25.
Later in the same year in Joy Chand Lal Babu v. Kamalaksha Chaudhury [Joy
Chand Lal Babu v. Kamalaksha Chaudhury, (1948-49) 76 IA 131 : 1949 SCC OnLine
PC 17] , their Lordships had again adverted to this matter and
reiterated what they had said in their earlier decision. They pointed out : (IA
p. 142) “…There have been a very large number of decisions of Indian High
Courts on Section 115 to many of which their Lordships have been referred. Some
of such decisions prompt the observation that High Courts have not always
appreciated that although error in a decision of a subordinate court does not
by itself involve that the subordinate court has acted illegally or with
material irregularity so as to justify interference in revision under
sub-section (c), nevertheless, if the erroneous decision results in the
subordinate court exercising a jurisdiction not vested in it by law, or failing
to exercise a jurisdiction so vested, a case for revision arises under
sub-section (a) or sub-section (b) and sub-section (c) can be ignored.”
26.
Reference may also be made to the observations of Bose, J. in his order of
reference in Narayan Sonaji Sagne v. Sheshrao Vithoba [Narayan Sonaji
Sagne v. Sheshrao Vithoba, AIR 1948 Nag 258 : 1947 SCC OnLine MP 21]
wherein it was said that the words “illegally” and “material irregularity” do
not cover either errors of fact or law. They do not refer to the decision
arrived at but to the manner in which it is reached. The errors contemplated
relate to material defects of procedure and not to errors of either law or fact
after the formalities which the law prescribes have been complied with.”
These
are principles of revision as is contained in CPC. The Specific Relief Act 1963
is however a later enactment. The discussion in Sonia Chhabra (Supra) is
therefore relevant.
In Ajay Medi vs
Hemant Mehta CM(M) 755/2022, the Delhi High Court had to deal with a matter,
wherein trial court had allowed the application filed by the respondent
under Section 10 of the Code of Civil Procedure, 1908 (hereinafter
referred to as "CPC ") seeking stay of the aforementioned suit. The
petitioner had challenged the aforesaid order by way of the petition filed
under Article 227 of the Constitution of India invoking the supervisory
jurisdiction vested of the High Court.
FACTUAL
MATRIX
In
order to appreciate the law on this aspect it may be worthwhile to refer to
facts of Sonia Chhabra (Supra) case:
a.
A suit was filed by the petitioners seeking possession under Section 6 of the
Specific Relief Act, 1963 (‘SRA’) and recovery of mesne profits in respect of a
Greater Kailash, New Delhi property (In short ‘subject property’). Petitioner
No. 1 is the daughter of Respondent No. 1 (since deceased) and Late Mr.
H.L.Grover. Respondent Nos. 2 and 3 are the brothers of Petitioner No.1 and
Petitioner No.2 is her husband.
b.
The petitionerno.1 claimed the ownership of the subject property and was in
possession of the same since the year 2002.
c.
The petitioner claimed wrongful dispossession from the subject property at the
hands of respondents and that the respondents had forcibly trespassed on the
subject property It is further alleged that Respondent Nos. 2 and 3 had sold
the goods worth lakhs of rupees, belonging to Petitioner No.2, that were stored
in the subject property.
d.
It is also claimed that the subject property was purchased by the father of
Petitioner No.1 and the funds for the same, as well as for meeting the needs of
Respondent Nos. 2 and 3, were taken from the petitioners, either directly or as
loan from his business contacts as loan.
e.
The parents of Petitioner No.1 expressed their inability to repay the loan and
required more money to support the needs of Respondent Nos. 2 and 3, who were
residing in Czechoslovakia, due to which, the original documents of the subject
property were allegedly handed over to the petitioners as security.
f.
The parents of Petitioner No.1 promised to clear the loan taken from Petitioner
No.2 and others on his guarantee within a specified time As the loan could not
be cleared, the subject property was sold by the father of Petitioner No.1 to
her by way of an Agreement to Sell, Registered GPA, Registered SPA and
Registered Will, etc. in favour of Petitioner No.1
g.
It was also agreed that as and when the subject property is to be sold by
Petitioner No.1, her father will execute any necessary documents in favour of
the intending purchaser. It is claimed that Respondent No.1 also executed an
affidavit confirming the sale and declaring her no objection. Since the sale
was part of an internal family matter, only some family members were in
knowledge of the same. It is further claimed that since the value of the
subject property was lower than the amount due, it was agreed that the balance
amount would be paid when the parents of Petitioner No.1 receive money from
Respondent Nos. 2 and 3.
h.
It is claimed that electricity bills and property tax was being paid by the
petitioners. It is further claimed that income tax of the father of Petitioner
No.1 was being paid from the joint account of Petitioner No.2 and the father of
Petitioner No.1.
i.
Part of the subject property was being used as a godown for storing electronic
spare parts of Petitioner No.2 and the subject property had also been let out
by the petitioners through Petitioner No.2 on rent. It is claimed that the
petitioners had also spent a lot of money on the renovation of the subject
property.
j.
There were multiple attempts made to sell the subject property even during the
lifetime of the father of Petitioner No.1, but it could not be sold as no
suitable buyer was found.
k.
The petitioners also repaid the amounts payable to the market sources,
including the interest on various loan amounts.
l.
It was alleged that a local property dealer was sent to the subject property
with keys by Petitioner No.1, and when he tried to open the lock, he found that
the key was not matching the lock. Also, some voices from inside the premises
were heard.
m.
Thus, Petitioner No.2 rushed to the premises and dialled the PCR. The
petitioners were asked to bring the original papers of the subject property.
When the PCR reached the spot around
Petitioner No.1 found out that the respondents had trespassed into the
subject property by breaking open the locks. A complaint was filed by
Petitioner No.2 on 04.09.2011 before the SHO, PS Greater Kailash. While the
police officers delayed registration of FIR, the respondents filed a suit for
permanent injunction.
To
buttress the issue further, in order to claim possession under Section 6 of the
SRA, the plaintiff is required to establish that he has been dispossessed from
the suit property wrongfully and without his consent, otherwise than in due
course of law. The limitation for preferring such a claim is six months from
the date of dispossession and the question of title or better right to
possession is immaterial in such proceedings. The issues could be framed in
line with the same and for indicative purposes, the issues could be as under:
(i) Whether the
plaintiffs were dispossessed from the suit property without due process of law?
(ii) Whether the
plaintiff is entitled to mesne profits and if so, at what rate and to what
amount.
(iii)
Relief is to be granted in the suit.
In
Sonia Chhabra (Supra) The very first issue was not decided in
favour of the plaintiffs, due to which, no adjudication of the latter two
issues was required. The petitioners were essentially aggrieved by the finding
of trial court that did not find them to be in possession of the suit property,
even though the said fact was mentioned in the possession letter and agreements
to sell that were executed in the year 2002 by Mr. H.L. Grover. It was also
claimed that the evidence of plaintiff witnesses had not been properly
appreciated. It was also claimed that the respondent No.1 as well as Mr. H.L.
Grover were residing in another locality, and that in itself proves that the
petitioners were in possession of the suit property.
The
trial court had dealt with all the issues raised while taking note of the evidence adduced by both parties and
passed a well reasoned order after categorically dealing with all the
contentions of the plaintiffs. The possession letter in itself does not prove
possession as whether keys were handed over and possession in effect were taken
shall have to be categorically shown. Even otherwise, whether the suit property
was left by Mr Grover could not be produced.
The exact date, when the belongings of Mr. H.L. Grover were allegedly removed
from the suit property was also not forthcoming. The attesting witnesses also have
not supported the case of the petitioners that the possession of suit property
was handed on the date of execution of the documents, therefore a shade of
doubt is cast on the plea of petitioner as regards their possession. It is no res
integra that the issue of title is irrelevant, while deciding a claim under
Section 6 of the SRA.
RESPONDENTS PLEA
a.
The written statement was filed and assertions
of the petitioners/plaintiffs were denied. It was pleaded that even on the
basis of the alleged documents relied upon by the petitioners, the petitioners
would not be entitled to maintain the suit.
b.
The petitioners took a contradictory
stand in their written statement filed in the suit initiated by the
respondents. It was contended that the documents relied upon the petitioners
are forged and fabricated.
c.
It was emphasised that the parents of
Petitioner No.1 were well off and highly qualified and had no cause to take any
loans. It was further averred that that the subject property was purchased by
Sh. H.L.Grover out of his own funds and after purchase of the same, he along
with Petitioner No.1 shifted there and Respondent Nos. 2 and 3 also resided in
the aforesaid property, whenever they were in Delhi.
d.
It was contended that the parents
shifted to Sadiq Nagar locality due to their health issues and the subject
property was kept locked with period visits.
e.
After demise of Sh. H.L.Grover,
Respondent Nos. 2 and 3 came to Delhi and the subject property was cleaned up
soon after their arrival.
f.
However, the defendants were accosted
by goons who came to the subject property to take possession of the same,
pursuant to which, a call was made to PCR.
The
ld trial court, after examining the evidence and the material on record, opined
that the plaintiffs/ petitioners had failed to discharge the burden that they
had been dispossessed from the subject property without due process of law
between 01.09.2011 to 04.09.2011.
In
the above backdrop, revision petition (Ref: Sonia Chhabra) was preferred
during the pendency of the suit, on the following grounds:
(i)
the impugned judgment was bad in law as ld ADJ had relied upon minor
inconsistencies to dismiss the suit erroneously.
(ii)
The written Agreement to Sell (Ex. PW1/7) and possession letter (Ex. PW1/14)
were not duly considered by the ld ADJ.
(iii)
the petitioners were also able to prove the affidavit of Respondent No.1 (Ex.
PW1/8) affirming the sale of the subject property and her no objection to the
same.
(iv)
The respondent No.1 did not step into the witness box to deny the execution of
the said affidavit.
(v)
The respondents did not lead any evidence to disprove the signatures of late
H.L. Grover on the title documents and failed to prove that the concerned
documents were never executed by him.
(vi)
The factum of transfer of possession of the suit property to the petitioners is
recorded in first Agreement to Sell dated 24.01.2002, second Agreement to Sell
dated 24.01.2002 and separate Possession Letter dated 24.01.2002.
(vii)
Separate Possession Letter dated 24.01.2002 has the signatures of late H.L.
Grover, beneath the word Possession Delivered and there is no reason to doubt
veracity of the statement that vendor has handed over physical and vacant
possession of the subject property.
(viii)
The Respondent Nos. 2 and 3 had migrated to Europe way back in the year 1989
and were not present at time of delivery of possession.
(ix)
Close family relatives of the parties i.e sister of Respondent No.1 and other
close relatives had appeared as
witnesses and deposed that the petitioners were in possession of the subject
property since the year 2002.
LAW
The
catena of law emerged in due course and could be referred to in the context for
clear elucidation in judicial precedents:
(i)
In the case of Sanjay Kumar Pandey v. Gulbahar Sheikh : (2004) 4 SCC 664,
the Hon’ble Apex Court had held as under:
“4.
A suit under Section 6 of the Act is often called a summary suit inasmuch as
the enquiry in the suit under Section 6 is confined to finding out the
possession and dispossession within a period of six months from the date of the
institution of the suit ignoring the question of title. Sub-section (3) of
Section 6 provides that no appeal shall lie from any order or decree passed in
any suit instituted under this section. No review of any such order or decree
is permitted. The remedy of a person unsuccessful in a suit under Section 6 of
the Act is to file a regular suit establishing his title to the suit property
and in the event of his succeeding he will be entitled to recover possession of
the property notwithstanding the adverse decision under Section 6 of the Act.
Thus, as against a decision under Section 6 of the Act, the remedy of
unsuccessful party is to file a suit based on title. The remedy of filing a
revision is available but that is only by way of an exception; for the High
Court would not interfere with a decree or order under Section 6 of the Act
except on a case for interference being made out within the well-settled
parameters of the exercise of revisional jurisdiction under Section 115 of the
Code.”
(ii)
The Hon’ble Apex Court, in the case of Mohd. Mehtab Khan v. Khushnuma
Ibrahim Khan : (2013) 9 SCC 221, it was held as under:
“16.
A proceeding under Section 6 of the Specific Relief Act, 1963 is intended to be
a summary proceeding the object of which is to afford an immediate remedy to an
aggrieved party to reclaim possession of which he may have been unjustly denied
by an illegal act of dispossession. Questions of title or better rights of
possession does not arise for adjudication in a suit under Section 6 where the
only issue required to be decided is as to whether the plaintiff was in
possession at any time six months' prior to the date of filing of the suit. The
legislative concern underlying Section 6 of the SR Act is to provide a quick
remedy in cases of illegal dispossession so as to discourage litigants from
seeking remedies outside the arena of law. The same is evident from the
provisions of Section 6(3) which bars the remedy of an appeal or even a review
against a decree passed in such a suit.”
The
basic principle that emerge , therefore is that, in order to succeed in a claim
of possession under Section 6 of the SRA, the plaintiff is required to
establish that he has been (i) dispossessed from the suit
property (ii) without his consent, (iii) otherwise than in due course
of law and (iv) the limitation for preferring such a claim is six (6) months
from the date of dispossession and (v) the question of title or better
right to possession is immaterial in such proceedings.
Generally,
the issues, in such a suit before trial court, shall be of a wrongful and
illegal dispossession and the consequence to that may be claim of mesne profits.
The “sale”, as defined under Section 54 of the Transfer of
Property Act, 1882, provides that delivery of tangible immovable property takes
place when the seller places the buyer in possession of the property and something
more than handing over of title document is required to prove handing
over of possession. The issue of title as referred to above, is irrelevant
while deciding a claim under Section 6 of the SRA.
Recently,
Delhi High Court in a matter captioned as SONIA CHHABRA (Supra) Neutral
Citation-2025: DHC 4013 (C.R.P. 259/2017) has comprehensively dealt with law
and precedents in this regard. The hon’ble Delhi High Court in the above case
had occasion to deal with the entire vista of law on the aspect including the
scope of revision petition in order passed in such suits. It is no gainsaying,
that, under Section 115 of the Code of Civil Procedure, 1908, the scope of
revision proceedings is limited to correction of errors of jurisdiction by
subordinate Courts and it may not be construed as appeal. The plaintiff u/s 6
of Specific Relief Act, irrespective of succeeding in it, shall have to
initiate fresh suit in case of seeking a claim on title. What follows, thus, is
that the quintessential requisite of the plaint, in section 6 of Specific
Relief Act, shall only be wrongful dispossession, and it implies that the
plaintiff was in possession, and have wrongly been dispossessed, but, the issue
of title can only be decided in a separate suit and not under a suit preferred
under section 6 of Specific Relief Act.
The
Delhi High Court in Sonia Chhabra (Supra) has held that ld Trial
Court succinctly took note of the evidence adduced by both parties before
passing a well- reasoned order, while dealing with all the contentions of the
plaintiffs. It was held that the sale, as defined under Section 54 of the
Transfer of Property Act, 1882, provides that delivery of tangible immovable
property takes place when the seller places the buyer in possession of the
property and something more than handing over of title document is required to
prove handing over of possession. The learned Trial Court took note of the
possession letter and observed that it does not speak about handing over of
keys of suit property. It was also noted that the attesting witnesses to the
Agreement to Sell and possession letter, being, PW4 and PW5, have categorically
deposed that they do not know if Mr. H.L. Grover had left the suit property on
24.01.2002. During cross examination, PW4 has categorically deposed that she
did not know if Mr. H.L. Grover had collected his furniture from the property
and PW5 has stated that he had not visited the suit property in January, 2002
and he did not know when the actual possession of the suit property was handed
over. PW5 has further deposed that he could not give the exact date when the
belongings of Mr. H.L. Grover were removed from the suit property. Since the
attesting witnesses have not supported the case of the petitioners, that, the
possession of suit property was handed on the date of execution of the
documents, being, 24.01.2002, the same casts a doubt over the petitioners’ plea
that they came into possession on 24.01.2002. The issue of title is irrelevant
while deciding a claim under Section 6 of the SRA and the said documents, in
view of the uncertainty shown by the attesting witnesses, does not prove that
the petitioners were in actual possession of the suit property. It is also
noted by the learned Trial Court, in the permanent injunction suit filed by the
respondents, that, although the petitioners claimed ownership of the suit
property, they did not disclose about the two agreements to sell and possession
letter dated 24.01.2002 there in that suit, still, in the present case, the entire
thrust of the petitioners is on the aforesaid documents without any plausible
reason for hiding them in the parallel proceedings.
Moreover,
the trial court had rightly rejected the arguments in relation to the Bills
being paid by the petitioners by taking note of the fact that Petitioner No.2,
during cross examination, had admitted that House Tax receipts were paid by
late Sh. H.L. Grover from his account. It was also noted that income tax
returns for the years 2010-2011 also show the rent received from suit property
and that house tax was paid by Mr. H.L. Grover.
According
to Delhi High Court, thus, in Sonia Chhabra (Supra) the plea of
possession on basis of depositing of electricity and house bills was negated by
certain payments having been made by Mr. H.L. Grover. No reasonable explanation
has been provided for this aspect. If the suit property had been in the
possession of the petitioners, it would make no sense for the allegedly
economically aggrieved Mr. H.L. Grover to foot further bills in relation to a
property that he no longer owned or was not in possession of. In relation to
transfer of electricity connection, no adverse inference ought to have been
drawn as the same remained in the name of the predecessor in interest of Mr.
H.L. Grover till the year 2006. The transfer happened in the year 2006, way
after the alleged transfer of suit property to Plaintiff No.1 in the year 2002.
The situation is thus distinguishable. It was thus held that the learned Trial
Court rightly noted that the explanation tendered for non -transfer of the
electricity connection is not satisfactory, especially since the transfer of
the connection to the name of Mr. H.L. Grover happened after alleged transfer of
the possession.
Even
the contentions of having continuous possession of the suit property was found
unconvincing. The ld Trial Court took note of the deposition of PW7 (property
dealer) and the complaint made by the petitioners. It was observed that the
complaint, which was made after inspection of premises, mentioned that a lot of
valuable goods were lying in the property but made no mention of missing goods.
No attempt was made to retrieve the goods either. It was noted that the list of
missing goods was given belatedly with the second complaint and the stock in
suit property and deposition of PWs were not consistent.
In
order to prove dispossession, plaintiff should have proved the PCR call made on
04.09.2011 which is not done, because, defendant has also deposed that PCR was
called by them. Plaintiff have also place on record the photocopy of
photographs obtaining from criminal case alongwith additional documents which
have not been proved by the photographer. Since defendants were residing in the
premises after 10 days from 14.07.2011 (date of death of late Sh. H.L. Grover),
there was no question of dispossession of plaintiff on or around 01.09.2011 to
04.09.2011 since defendants were already residing in the suit property.
In
the above backdrop, the high court was of the view that the plaintiff has not
only failed their alleged possession, but also the alleged dispossession that
ought to have been discharged by them. Hence, this issue is decided against the
plaintiffs and in favour of defendants.
The
inconsistency in the arguments in relation to the stocks that were kept in the
suit property or as to why the list of missing goods was not pointed at the
outset could not be explained. Even alleged loss of household items has not
been contested. It is also rightly noted that the PCR call as well as the
photographs were not properly proved.
The revision petition
on the basis of facts illustrated and law enunciated in this regard, as
discussed above was dismissed by the Delhi High Court in Sonia Chhabra
(Supra), though, it is held that the issue of title , in any case could be
raised by the petitioner, if it is aggrieved by way of a separate suit, given
the limited scope of section 6 of Specific Relief Act suit, and as narrated
above, in essence, the proceedings whereof, being summary in nature.
Whether
Section 10 of CPC application shall have applicability on a SUIT UNDER SECTION
6 OF SPECIFIC RELIEF ACT
In
Ajay Medi vs Hemant Mehta CM(M) 755/2022 the Delhi High Court had to
deal with a matter wherein trial court had allowed the application filed by the
respondent under Section 10 of the Code of Civil Procedure, 1908
(hereinafter referred to as "CPC ") seeking stay of the
aforementioned suit. The petitioner had challenged the aforesaid order by way
of the present petition filed under Article 227 of the Constitution of
India invoking the supervisory jurisdiction vested of the High Court.
Interestingly,
yet again, thereafter, the petitioner filed another suit against the respondent,
seeking a relief of declaration along with a relief of injunction based on the
assertion that the receipt cum possession letter was forged and fabricated. The
respondent had then filed an application under Section 10 of CPC for the
stay of the proceedings of earlier suit.
The
trial court vide impugned order dated 15.04.2021, had stayed the proceedings in
the said suit and held that the petitioner has already filed a suit for
possession which is pending adjudication before the learned ADJ, Dwarka Courts,
Southwest, Delhi. It was held by the trial court, that, the petitioner should
have prayed for the relief of injunction in the said suit itself, but has
omitted to do so. The said order formed the subject matter of challenge in the
petition in Ajay Medi (Supra).
The
challenge to the impugned order was made on account of the following:
(i)
The previously instituted suit bearing CS/ADJ/749/2018 seeking possession
under Section 6 of the SRA has a different cause of action from the
cause of action in the subsequent suit filed by the petitioner;
(ii)
the reasons and findings of the learned Trial Court are illegal and erroneous
and therefore the impugned order dated 15.04.2021 is liable to be set aside
as Section 6 of SRA deals with special categories of cases where a person
is dispossessed without due process of law and cannot be clubbed with
any other relief.
(iii)
The reliance placed upon Hoshiari Devi & Ors Vs Jagat Singh
& Anr 2006 SCC ONLINE DEL 1364.
(iv)
The reliance was also placed on Qayamuddin & Ors Vs Jamid-Ud-Din
& Ors (2013) 201 DLT 758 while submitting that law has been settled
that the remedy under Section 6 of the SRA is a summary remedy
against dispossession. In such cases, the only matter to be adjudicated is the
dispossession itself, without delving into any title-related questions, which
typically require more time for adjudication.
Whether
section 10 of CPC application shall lie before the Trial Court, while overlooking
the well- established legal principle that a suit filed under Section 6 of
SRA pertains to a suit of specific nature? Subsection (3) of Section 6 of
SRA clearly states that no appeal lies from any order or decree passed in any
suit instituted under this section nor shall any review of any such order of
the decree be allowed. Hence, it was contended that the relief of declaration
of the forged and fabricated document could not have been pressed along
with Section 6 of SRA, as it is barred by law.
The
Section 10 of CPC contains principles of res subjudice. The purpose
is to deter conflicting judgments on a similar set of issues. It
prevents duplication of legal processes involving same parties from facing
parallel suits before Courts of concurrent jurisdiction. Needless to say, the
provision can be invoked when the whole subject matter in both the suits is
identical.
For
ready reference, Section 10 of CPC is reproduced herein below:
"10.
Stay of suit.—
No
Court shall proceed with the trial of any suit in which the matter in issue is
also directly and substantially in issue in a previously instituted suit
between the same parties, or between parties under whom they or any of them
claim litigating under the same title where such suit is pending in the same or
any other Court in India have jurisdiction to grant the relief claimed, or in
any Court beyond the limits of India established or continued by the Central
Government and having like jurisdiction, or before the Supreme Court.
Explanation.--The
pendency of a suit in a foreign Court does not preclude the Courts in India
from trying a suit founded on the same cause of action."
In East
India Hotels Vs Syndicate Bank 1992 Supp (2) SCC 29, the Hon‟ble
Supreme Court observed that the purpose behind Section 6 of Specific
Relief Act is to restrain a person from using force to dispossess the other
without his consent, otherwise than in due course of law.
In
Ajay Medi (Supra) it is thus held:
19.It
is to be appreciated that the scope of inquiry in a suit under Section 6 of
SRA is limited as suit under Section 6 of SRA is of a special nature.
It has to be considered whether the plaintiff was formally in possession and
whether he was dispossessed without his consent, otherwise than the due process
of law within six months immediately preceding the date of institution of the
suit. Be it noted, in such a suit, the Court is not to try the question of
title. It is further relevant to note that sub-section 3 of Section 6
of the SRA provides that the case of dissatisfaction with the judgment on
conclusion of the trial, the remedy of appeal is barred and the only remedy
available is by way of a revision petition. Against the decree of declaration
and permanent injunction, the remedy available to impugn the judgment is
that of appeal. In the case titled as Jaswant Singh Vs Punjab
Agricultural University & Ors vide SLP (C) diary no.24044/2018 decided
on 27.08.2018, the Hon‟ble
Supreme Court held that Section
6 of
the Specific Relief Act is a summary procedure and that no appeal lies against
it”.
20.
Therefore, if along with the relief under Section 6 of SRA, other reliefs
are clubbed, in case of challenge to such a decree, separate remedies of
revision against the decree insofar as under Section 6 and of appeal as
with respect to the other reliefs will have to be availed. In fact, such a
situation may lead to conflicting decisions which is impermissible in law.
Thus, making it more logical that other reliefs could not be clubbed in the
suit under Section 6 of SRA”.
21.
The legal position was considered by the Andhra Pradesh High Court in the case
of Adapa Tatarao Vs Chamantula Mahalakshmi AIR 2007 AP 44
wherein it was held as under:
"(i)
that the proceedings in a suit under Section 6 are summary in nature; (ii)
that the Trial Court in that case had not addressed this basic
requirement of Section 6 and had framed issues totally unrelated to
adjudication to be undertaken in a Section 6 suit;
(iii)
that the suit also suffered from the infirmity of the plaintiff having
incorporated the relief of perpetual injunction in respect of another item, in
a suit filed under Section 6 of the Act and which is totally
impermissible;
(iv)
that the parameters for adjudication of claim under Section 6 on the
one hand and for perpetual injunction under Section 38 of the
Specific Relief Act on the other hand, are totally different;
(v)
while for adjudication of a Section 6 suit, the trial is summary in
nature and the decree is not appealable, in contrast, a detailed trial has to
be conducted in a suit for perpetual injunction and a first appeal and
second appeal is provided against a decree therein;
(vi)
it is impossible and impermissible to mix up such divergent types of
adjudication; and, (vii) that the judgment and decree of the Trial Court was
liable to be set aside on that ground alone and the matter needed to be
adjudicated afresh on proper lines."
22. In
the case titled as Qayamuddin Vs Jamil-ud- Din (2013) 201 DLT 758
the learned Single Judge of Delhi High Court while dealing with first appeal
against the order of rejection, held that "first appeal against an order
of rejection of plaint in a suit for declaration, possession under Section
6 of the Specific Relief Act, damages and injunction on the ground of the other
reliefs being not entitled to be clubbed with the relief under Section 6.
It was held that the appeal, qua the rejection of plaint with relief
under Section 6 was not maintainable. It was further held that the appeal,
qua rejection of plaint for other reliefs also was not maintainable because the
reliefs of declaration, damages and injunction were closely intertwined to the
relief of possession and rather incidental or consequential to the main relief
claimed of possession under Section 6 of the Act. It was further held
that the suit for the said reliefs, without the relief of possession, would not
even be maintainable."
On
the basis of the above discussion in Ajay Medi (Supra) , the Delhi High
Court has held that in the previous suit, the petitioner was seeking possession
of the property under Section 6 of SRA as he has been allegedly
dispossessed forcibly. In the subsequent civil suit, he was seeking relief of
declaration that the receipt- cum-possession letter was forged and fabricated.
In addition, injunction was also prayed
for. The aforementioned reliefs
could not have been included in the previous suit filed by him under Section
6 of SRA and stay of suit in the context of suit u/s section 6 SRA, being on
different footings with implicit embargo could not have been enlarged. The
impugned order of staying the later suit was, therefore set aside, in view of
clear stipulations of law.
CommerciAl Suit u/s 6 of SRA- Maintainability
To
take the matter further, another dimension worth mentioning is as regards
maintainability of a commercial suit and whether a commercial suit could be preferred under
section 6 of SRA. It is no res integra that if as per section 2 (1) (c)(vii) of
the Commercial Courts Act (CCA) , any dispute in relation to immoveable
property, if it is commercial in nature, a commercial suit shall be
maintainable. The other aspect of maintainability shall be that the sums
claimed in the commercial suit or value of such suit should be more than the specified
value fixed in this regard under section 6 of CCA. In the amendments carried
out in CCA 2015, in the year 2018, the minimum specified value is fixed as Rs 3
Lakhs and above. The specified value is reduced from Rs 1 Crore with a view to
accord leverage to smaller value suits so as to bring that within the ambit of
CCA and in the hierarchy of commercial courts, the courts of District Judges
are included and appellate divisions are created. If these twin requirements are satisfied,
then, probably, no fetter could be attached to maintainability of a commercial
suit u/s 6 of SRA.
It
may be noted that, in any case, section 6 SRA entails summary proceedings and no
appeal is provided for against the judgment and decree in a suit u/s 6 of SRA,
whereas CCA 2015 provides for appellate remedy. No doubt, the object of The Commercial
Courts Act 2015, is also speedy decision, hence, probably, there cannot be any
conflict on that premise as well. It may thus be understood that if these
requisites are met, commercial suit may be maintainable. In the teeth of
Section 6(3) of SRA where no appeal is provided for, the conflict is needed to
be resolved and clarified, though. However, assuming that under section 6 SRA,
if it is filed under CCA 2015, and The CCA 2015 applies, then, the aggrieved
party to a judgment and decree if it is commercial
suit, the remedy shall be that of under Article 227 of Constitution of India if
it is interlocutory order or intermediate order and in case of appeal against
judgment and decree, the appeal shall lie under Section 13 of CCA only, within
Sixty (60) days from the date of decree, since, revisional remedy is barred as
per the CCA. It is also worth mentioning that any appeal under Order LXIII of
CPC, if stipulated under the provision of XLIII of CPC shall be available even in
commercial suits and orders passed therein. Similarly, the appeal u/s 37 opf
Arbitration & Conciliation Act 1996 ( as amended and up to date) shall also
be maintainable.
What
is significant in this context is if CCA is applicable to a suit under Section
6 of SRA, then, appellate tier as per section 13 of CCA 2015 shall be available,
whereas Section 6 (3) of SRA prohibits any appeal to judgment and decree under
Section 6 SRA. It is to be seen, how this conflict is resolved.
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Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
