Tag: CPC

-Report by Sanju Agarwal

The Delhi High Court has stated in the case of GHULAM SARWAR vs SMT. NILOFAR KHAN & ORS. that the High Court should respect the exercise of discretionary powers by the District judiciary and not act in a manner that conveys an impression that the court is playing the role of a headmaster.

The parties to the suit occupy different areas of the same property. The respondents (originally the plaintiff) had complained that the petitioner had installed a locked iron on the terrace of the fourth floor which restrained the access of the respondents. A decree of mandatory and permanent injunction had been sought in the suit by the respondents restraining the petitioner from interfering with the right of access to the terrace of the respondents. It was also accompanied by an application under Order 39, rules 1 and 2 of the CPC, seeking an ad interim injunction that would restrain the petitioners from fixing iron grills on the passage to the rooftop. The learned SCJ upheld the respondents’ rights to access the terrace only for common amenities such as installing an antenna, water connection, etc., between 9 am to 5 pm. The respondents had to ask for the keys an hour in advance.

An appeal was preferred before the learned ADJ wherein it was held that since the parties were locked in litigation, providing limited access after recognizing the respondents’ rights was unreasonable. The learned ADJ modified the decision of the SCJ and directed the petitioners to give a set of keys to the locked terrace gate to the respondents to give them independent access at all times during the pendency of the suit.

The petitioner aggrieved by the above decisions had filed the petitioner under Article 227 of the Constitution. The Court held that this was not a case that invoked the jurisdiction of the court under Article 227 of the Indian Constitution. It was stated that it was a discretionary order and free from any perversity, therefore immune from any challenge under Article 227. Such a challenge to order can only be justified when the exercise of such discretionary power is perverse in nature.

It was also observed:

“I am constrained to observe that, if the High Court were to start interfering with such orders under Article 227 of the Constitution of India, it is bound to shake the confidence of the district judiciary and seriously impede the dispassionate exercise, by them, of the discretion that the law vests in them. In my considered opinion, it is only as a matter of chance hierarchal circumstance that this Court is “above” the district judiciary. Else, the district judiciary, and the learned Courts of which it is comprised, exercise jurisdiction which, subjectively, is co-equal to the jurisdiction exercised by this Court.”

The court held that the order passed is well reasoned, however, the access has been granted to the respondents for a limited purpose and availing of the facility shall not be abused.

While allowing an appeal for a partition suit, the Supreme Court said that there is a trend of delay in initiating final decree proceedings.

The plaintiffs, in this case, had filed for a partition, claiming half a share in the property. The property belonged to Kattukandi Edathil Kanaran Vaidyar. He had four sons, Damodaran, Achuthan, Sekharan and Narayanan. Achuthan had one son Karunakaran. Sekharan and Narayan did not have any sons. Damodar had married Chiruthakutty and they both had a son out of wedlock. The son of Damodar is the first plaintiff in this case. It was contended by the defendants that Damodar did not marry and therefore, the plaintiffs should not get any share in the property.

The Trial Court had framed issues and upon examination of the evidence, it had concluded that Damodar had married Chiruthakutty and the first plaintiff is their son. The trial court had accordingly passed a preliminary decree in the favour of the plaintiffs.

The defendants filed an appeal before the High Court where it was held that the first plaintiff is the son of Damodaram, however, he is an illegitimate child. The appeal had been filed before the Supreme Court challenging this order. A lot of evidence was examined by the Hon’ble Court and on the basis of which the court said:

“The documents produced by the plaintiffs were in existence long before the controversy arose between the parties.
These documents, coupled with the evidence of PW­2, would show the long duration of cohabitation between Damodaran and Chiruthakutty as husband and wife……..27. We have also perused the evidence of the defendants. We are of the view that the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co­habitation.”

The Supreme Court relied on a number of judgments and observed that when a man and woman have been living for a long time, it is usually presumed that they are married. Though the presumption is rebuttable, the burden lies on those who want to rebut this presumption. In the present case, the defendants have failed to rebut the presumption that no marriage took place between Damodaran and Chiruthakutty. On the other the documents produced by the plaintiffs proved it. In light of the above, Supreme Court allowed the appeal and restored the order of the Trial Court.

The Hon’ble court then went on to observe that, the litigants take a lot of time in moving an application for preparation of a final decree after a preliminary decree has been passed. The court relied on the observations it had made in the case of Shub Karan Bubna and said that this practice should be discouraged as it delays the realization of the fruits of the decree. It was observed:

” We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceeding. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state
that the suit comes to an end only when a final decree is drawn.”

It further directed the Trial Court to suo-moto start the proceedings for possession of the property without any separate proceedings and a copy of this judgment has to be sent to all registrar generals of the High Court, who then have to circulate it further to the trial courts.

case: KATTUKANDI EDATHIL KRISHNAN & ANR. vs. KATTUKANDI EDATHIL VALSAN & ORS.

https://main.sci.gov.in/supremecourt/2009/15653/15653_2009_2_1501_36142_Judgement_13-Jun-2022.pdf