Case title: 

Asma Lateef & Anr v. Shabbir Ahmad & Ors

Date of Order: 

12th January 2024

Bench: 

Hon’ble Mr. Justice B.R. Gavai

Hon’ble Mr. Justice Dipankar Datta

Hon’ble Mr. Justice Aravind Kumar

Parties: 

Appellant(s): Asma Lateef & Anr

Respondent(s): Shabbir Ahmad & Ors

SUBJECT:

In its verdict, the Hon’ble Supreme Court (hereinafter referred to as ‘the Supreme Court’ or ‘the Court’) highlighted the crucial importance of establishing initial satisfaction regarding the maintainability of civil suits before making decisions on interim relief. The apex court took a firm stance on the relationship between challenges to maintainability and the grant of interim relief. The Court underscored that when the viability of a civil suit is contested, and opposition to interim relief is grounded on this challenge, the court must establish a preliminary satisfaction regarding the suit's maintainability.

IMPORTANT PROVISIONS:

The Code of Civil Procedure, 1908 (CPC):

• Section 47
• Section 2(9)
• Section 2(2)
• Section 9
• Rule 4(2) of Order XX
• Rule 5 of Order VIII
• Rule 10 of Order VIII
• Rule 1 of Order VIII
• Rule 11 of Order IX
• Rule 3(5) of Order XLIX

The Specific Relief Act, 1963 (Specific Relief Act):

• Section 38
• Section 41(h)

The Uttar Pradesh Zamindari and Land Reforms Act, 1950 (UPZA & LR Act):

• Section 229B
• Section 331

The Transfer of Property Act, 1882 (ToP Act):

• Section 52

The Indian Evidence Act, 1872 (Evidence Act):

• Section 58

OVERVIEW:

• Khatoon Jannat Bibi (Great-grandmother of the appellant) orally gifted a property to the appellants on 16^th August, 1988. A memorandum recording the gift was executed before the relevant Tehsildar.
• The appellants/Plaintiffs filed a suit under section 38 of the Specific Relief Act, seeking a permanent injunction against interference with the appellant’s peaceful possession of property.
• Asad Ullah Kazmi (son of Khatoon Jannat Bibi)/ defendant, initiated proceedings for the declaration of rights under UPZA & LR Act in 1990, which was dismissed in 1999.
• The defendants were directed to maintain status quo regarding the suit property as per the interim injunction granted in May 1990.
• A written statement was filed by Kazmi (defendant) contending that the civil suit filed by the plaintiff was barred by UPZA & LR Act and Specific Relief Act.
• The validity of the oral gift was denied by the Kazmi (defendant), asserting that he had the exclusive right to the property, post Khatoon Jannat Bibi’s demise.
• No written statements were filed by the other 2 defendants.
• Kazmi passed away in 1995, and his sons transferred the suit property to respondents 1 to 3 in 1997.
•  The appellants, as decree holders, filed an execution application in 1997, seeking punishment for violating the order of 1991 and declaring the 1997 sale deed invalid.
• Interference with the property suit was restrained by the Executing Court in 1998.
• The Purchasers (respondants) file objections under Section 47, CPC, arguing that the 1991 order is not a judgment or decree.
• Appellants filed a contempt petition in 2004.
• High Court set aside the revisional order in 2009, allowing the writ petition.
• The High Court’s order is now being challenged in court.

ISSUES RAISED

• Whether the order on 5th August 1991 have a significant jurisdictional flaw, rendering the subsequent decree unenforceable by the Executing Court, and could respondents 1 to 3 validly object under section 47 of the CPC due to its executability?

ARGUMENTS ADVANCED BY THE APPELLANT:

• The High Court had erred by not recognizing that the Executing Court overstepped its jurisdiction by questioning the order dated August 5, 1991, and the subsequent decree, deeming them non-executable.
• Samiullah had ample opportunities to file a written statement, and the order dated 5th August 1991, had not been legally challenged, achieving finality.
• The Trial Court had specifically directed Kazmi and Samiullah through its interim order in 1990 to maintain the status quo, and the High Court's assertion that this order did not impose restrictions on alienation was deemed erroneous.
• The buyers acquired the property during the litigation period and were not entitled to obtain the suit property without obtaining permission from the Trial Court. Legal examples were referenced to emphasize that transferring property during ongoing legal proceedings and in defiance of an interim injunction was deemed impermissible.
• The Purchasers were accused of forcibly dispossessing the appellants of the suit property on October 10, 2004, in blatant violation of the Executing Court's injunction order dated January 16, 1998.
• The reliance placed by the High Court on Balraj Taneja v. Sunil Madan was challenged as misplaced, asserting that the present case involved a declaration of the decree's executability in execution proceedings, which differs from the context in Balraj Taneja.

ARGUMENTS ADVANCED BY THE RESPONDENT:

• The Trial Court's order dated 5th August 1991, does not qualify as a judgment under section 2(9) of the Civil Procedure Code (CPC), and the application of the legal principle from Balraj Taneja was appropriately done by the High Court.
• Granting all parties, the liberty to have the title to the suit property determined by the appropriate forum was a justified decision by the High Court, ensuring no prejudice to the appellants. Any concerns about the title and the validity of the sale deed could be addressed in the relevant forum.
• During the purchase, the names of Kazmi’s sons (respondents 4 and 5) were already present in the land revenue records related to the suit property, and the Purchasers' names were subsequently added through mutation.
• By referring to legal precedents like Hukam Chand v. Om Chand and Nagubai Ammal v. B. Shama Rao, the contention was made that the transfer of the suit property did not contravene section 52 of the Transfer of Property Act. This argument was based on the assertion that the statute did not impose a complete prohibition on the transfer of such property during legal proceedings.

JUDGEMENT ANALYSIS:

• The Supreme Court emphasized that when interim relief is sought in a civil suit, and if any party raises objections to maintainability or asserts that it is barred by law, the court should precede the grant of relief by forming and recording at least a prima facie satisfaction regarding the maintainability of the suit.
• The Court made it clear that before granting any form of interim relief, the court should ensure that it is prima facie satisfied that the suit is maintainable and not barred by law. This involves a preliminary determination on the question of maintainability.
• The Supreme Court cautioned against an improper exercise of power by courts. Specifically, it warned against abstaining from recording prima facie satisfaction on the maintainability issue while simultaneously assuming that the question of maintainability would be decided as a preliminary issue under Rule 2 of Order XIV of the Code of Civil Procedure.
• It recognized that in extraordinary situations where the decision on maintainability might take time and the non-grant of interim protection could result in irreversible consequences, the court may proceed to make an appropriate order.
• Acknowledging exceptional circumstances wherein the determination of the suit's maintainability may be time-consuming, and the denial of interim protection might lead to irreversible consequences, the court has the discretion to issue a suitable order.
• In such instances, the court should provide a rationale for its chosen course of action, especially when there is apparent irreparable harm, injury, or undue hardship to the party seeking relief.
• The Court’s goal is to prevent the legal proceedings from turning futile due to the court's non-interference.

CONCLUSION

The Supreme Court opined that the Trial Court lacked the authority to decree the suit against Samiullah under Rule 10 of Order VIII of CPC. It was held that a decision rendered by a court on the merits of an issue without first adjudicating on its competence to decide such an issue amounts to a decision being rendered on an illegal and erroneous assumption of jurisdiction. The Court cautioned against basing relief on the assumption that the maintainability issue would be decided as a preliminary matter, especially in extraordinary situations where delay might result in irreversible consequences. The impugned order of the High Court was set aside determination of the title to the suit property was ruled in favour of the purchasers. Directives were laid down for any unpaid remuneration to be paid by the appellants.