TEK SINGHversusSHASHI VERMA AND ANR.

                         [2019] 3 S.C.R. 697                             697


                            TEK SINGH                                    A
                                  v.
                   SHASHI VERMA AND ANR.
                   (Civil Appeal No. 1416 of 2019)
                       FEBRUARY 04, 2019                                 B
         [R. F. NARIMAN AND VINEET SARAN, JJ.]
      Code of Civil Procedure, 1908:
       s. 115 proviso (As inserted by amendment in 1999) – Revisional
jurisdiction of High Court – Scope of – Held: In view of the proviso     C
revisional jurisdiction is not maintainable against interlocutory
orders – Scope of jurisdiction u/s. 115 is limited to rectify
jurisdictional errors only.
       Or. XXXIX, r. 1 – Interlocutory mandatory injunction – Grant
of – Criteria – Held: When mandatory injunction is granted at interim    D
stage, much more than a prima facie case has to be made out.
        Allowing the appeal, the Court
       HELD: 1. The High Court set aside the concurrent findings
of fact and allowed a revision petition, without dealing with any of
the aspects set out by the first Appellate Court. The 1999               E
amendment to the CPC added a proviso Section 115 CPC. A
reading of this proviso will show that, after 1999, revision petitions
filed under Section 115 CPC are not maintainable against
interlocutory orders. Even otherwise, the revisional jurisdiction
under Section 115 CPC is to be exercised to correct jurisdictional       F
errors only. [Paras 5, 6 and 7][700-B, C, H]
      D.L.F. Housing & Construction Company Private Ltd.,
      New Delhi v. Sarup Singh and Others [1970] 2 SCR
      368; Dorab Cawasji Warden v. Coomi Sorab Warden
      and Others (1990) 2 SCC 117 : [1990] 1 SCR 332 –                   G
      relied on.
      2. When a mandatory injunction is granted at the interim
stage, much more than a mere prima facie case has to be made
out. [Para 8][702-F]
                                                                         H
                                 697
698            SUPREME COURT REPORTS                          [2019] 3 S.C.R.


A                              Case Law Reference
            [1970] 2 SCR 368           relied on                 Para 7
            [1990] 1 SCR 332           relied on                 Para 8
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1416
B     of 2019.
           From the Judgment and Order dated 10.04.2018 of the High Court
      of Himachal Pradesh at Shimla in CMPMO No. 154 of 2017.
            E. C. Agrawala, Rajesh Kumar, Ms. Prashi Tyagi, Advs. for the
      Appellant.
C
            B. S. Banthia, Adv. for the Respondents.
            The Judgment of the Court was delivered by
            R. F. NARIMAN, J. 1. Leave granted.
             2. The Respondent No.1 filed a Civil Suit dated 05.03.2013 before
D     the Civil Judge, Senior Division, Solan under Section 6 of the Specific
      Relief Act in which the following reliefs were claimed:
            “(a) Declaring that the effect the plaintiff was running business in
            Shop No. 3 in the name and style M/s Om Garments owned by
            proforma Defendant No. 2 in Anand Complex, The Mall Solan
E           w.e.f. 28.01.2013 on the basis of partnership deed of the said
            date with proforma Defendant No. 2 and the plaintiff has been
            wrongly dispossessed by the Defendant No. 1 from the Shop No.
            3 in the intervening night of 03.03.2013 – 04.03.2013 illegally,
            wrongfully, without the consent of the plaintiff or proforma
F           Defendant No. 2.
            (b) Decree for permanent prohibitory injunction restraining the
            Defendant No. 1 from causing any interference on any portion of
            suit premises/Shop No. 3 mentioned above.”
             3. A written statement was filed by the appellant herein denying
G     the averments made in the Suit and stating that he has been in possession
      since 2004 as a tenant of the landlady, who is Respondent No.2 before
      us.
           4. The landlady also filed a written statement dated 05.07.2013 in
      which she stated that apart from the partnership entered into with
H     Respondent No.1, the petitioner was her tenant w.e.f. 2004. An Order
                  TEK SINGH v. SHASHI VERMA                                    699
                       [R. F. NARIMAN, J.]

39 Rule 1 application was filed which was dismissed by the learned             A
Single Judge on 21.04.2015 saying that the relief asked for could not be
granted at this stage as it would amount to decreeing the Suit itself. An
appeal filed before the Additional District Judge met with the same fate.
By the judgment dated 19.12.2016, the appellate Court held:
      “However, when it is an admitted case of Defendant No. 2                 B
      admittedly land lady of the suit shop that she has rented the suit
      shop to Defendant No. 1/Respondent and has set up counter
      defence that in fact Defendant No. 1 has sublet the suit shop to
      the plaintiff which is not at all the case of the plaintiff primafacie
      it is clear on record that suit shop was rented by Defendant No. 2
      to respondent/defendant No. 1 and Defendant No. 1 has been               C
      running suit shop since 17.09.2004 when both the Defendants
      have also reduced rent agreement into writing, copy of which is
      also available in the case file. As per rent agreement, the tenancy
      had commenced w.e.f. 01.09.2004. Nothing has come on record,
      if Defendant No. 1/respondent had ever vacated/surrendered the           D
      possession of the shop in favour of landlady nor it is the case of
      Defendant No. 2 that she ever sought eviction of Defendant No.
      1 from the suit shop. It appears from the copy of partnership
      deed having been relied upon by the applicant that both applicant
      and Defendant No. 2 had connived with each other in order to
      oust Respondent No. 1 who is tenant over the suit shop and filed         E
      the suit as well as application for temporary and mandatory
      injunction in the Court. Moreover, when the applicant herself has
      come with the plea that she is out of possession of the suit shop
      and she has prayed that possession in her favour be restored qua
      the suit shop by way of temporary injunction and at the same time        F
      the applicant has failed to prove on record that she has primafacie
      case of balance of convenience lies in her favour or that she is
      going to suffer irreparable loss as discussed above hence by
      allowing of the application as prayed by applicant would amount
      to decree of the suit in favour of the applicant without giving the
      parties to prove their respective claims by leading evidence. Even       G
      when it has come on record that Respondent No. 1 is in actual
      possession of the suit property which was rented out to him by
      Defendant No. 2 landlady in the year 2004 and nothing has come
      on record that the Defendant No. 1 had ever been evicted from
      the suit shop in accordance with law or he ever surrendered the          H
700            SUPREME COURT REPORTS                            [2019] 3 S.C.R.


A           possession of the suit property in favour of defendant No. 2, it is
            clear on record that Respondent No. 1 has primafacie case and
            balance of convenience also lies in her favour.”
            5. By the impugned judgment dated 10.04.2018, a learned Single
      Judge of the High Court of Himachal Pradesh set aside the concurrent
B     findings of fact and allowed a revision petition. This was done without
      dealing with any of the aspects set out by the first Appellate Court.
      From what one is able to gather, given the language used in the judgment,
      it appears that the learned Judge was swayed by the fact that a police
      compliant had been filed on 03.02.2013 in which dispossession was
      acquiesced in.
C
             6. We are constrained to observe that every legal canon has been
      thrown to the winds by the impugned judgment. First and foremost, the
      1999 amendment to the CPC added a proviso Section 115 which reads
      as follows:
             “115. Revision-(1) The High Court may call for the record of any
D            case which has been decided by any Court subordinate to such
             High Court and in which no appeal lies thereto, and if such
             subordinate Court appears-
             (a) to have exercised a jurisdiction not vested in it by law, or
            (b) to have failed to exercise a jurisdiction so vested, or
E
            (c) to have acted in the exercise of its jurisdiction illegally or with
            material irregularity,
            the High Court may make such order in the case as it thinks fit:
            Provided that the High Court shall not, under this Section, vary or
            reverse any order made, or any order deciding an issue, in the
F
            course of a suit or other proceeding, except where the order, if it
            had been made in favour of the party applying for revision, would
            have finally disposed of the suit or other proceedings.
            Xxx xxx xxx
            (3) A revision shall not operate as a stay of suit or other proceeding
G
            before the Court except where such suit or other proceeding is
            stayed by the High Court.
             A reading of this proviso will show that, after 1999, revision
      petitions filed under Section 115 CPC are not maintainable against
      interlocutory orders.
H
                   TEK SINGH v. SHASHI VERMA                                    701
                        [R. F. NARIMAN, J.]

       7. Even otherwise, it is well settled that the revisional jurisdiction   A
under Section 115 CPC is to be exercised to correct jurisdictional errors
only. This is well settled. In D.L.F. Housing & Construction Company
Private Ltd., New Delhi vs. Sarup Singh and Others(1970) 2 SCR
368 this Court held:
      “The position thus seems to be firmly established that while              B
      exercising the jurisdiction under Section 115, it is not competent
      to the High Court to correct errors of fact however gross or even
      errors of law unless the said errors have relation to the jurisdiction
      of the Court to try the dispute itself. Clauses (a) and (b) of this
      section on their plain reading quite clearly do not cover the present
      case. It was not contended, as indeed it was not possible to              C
      contend, that the learned Additional District Judge had either
      exercised a jurisdiction not vested in him by law or had failed to
      exercise a jurisdiction so vested in him, in recording the order that
      the proceedings under reference be stayed till the decision of the
      appeal by the High Court in the proceedings for specific                  D
      performance of the agreement in question. Clause (c) also does
      not seem to apply to the case in hand. The words “illegally” and
      “with material irregularity” as used in this clause do not cover
      either errors of fact or of law; they do not refer to the decision
      arrived at but merely to the manner in which it is reached. The
      errors contemplated by this clause may, in our view, relate either        E
      to breach of some provision of law or to material defects of
      procedure affecting the ultimate decision, and not to errors either
      of fact or of law, after the prescribed formalities have been
      complied with. The High Court does not seem to have adverted
      to the limitation imposed on its power under Section 115 of the           F
      Code. Merely because the High Court would have felt inclined,
      had it dealt with the matter initially, to come to a different
      conclusion on the question of continuing stay of the reference
      proceedings pending decision of the appeal, could hardly justify
      interference on revision under Section 115 of the Code when there
      was no illegality or material irregularity committed by the learned       G
      Additional District Judge in his manner of dealing with this question.
      It seems to us that in this matter the High Court treated the revision
      virtually as if it was an appeal.” at Pg.373.
      8. Learned counsel appearing for the respondents argued before
us and attempted to support the judgment. He cited the judgment of              H
702             SUPREME COURT REPORTS                             [2019] 3 S.C.R.


A     Dorab Cawasji Wardenvs. Coomi Sorab Warden and Others (1990)
      2 SCC 117. Para 16 of this judgment is set out hereinbelow:
             “16. The relief of interlocutory mandatory injunctions are thus
             granted generally to preserve or restore the status quo of the last
             non-contested status which preceded the pending controversy until
B            the final hearing when full relief may be granted or to compel the
             undoing of those acts that have been illegally done or the restoration
             of that which was wrongfully taken from the party complaining.
             But since the granting of such an injunction to a party who fails or
             would fail to establish his right at the trial may cause great injustice
             or irreparable harm to the party against whom it was granted or
C            alternatively not granting of it to a party who succeeds or would
             succeed may equally cause great injustice or irreparable harm,
             courts have evolved certain guidelines. Generally stated these
             guidelines are:-
             (1) The plaintiff has a strong case for trial. That is, it shall be of
D            a higher standard than a prima facie case that is normally required
             for a prohibitory injunction.
             (2) It is necessary to prevent irreparable or serious injury which
             normally cannot be compensated in terms of money.

E            (3) The balance of convenience is in favour of the one seeking
             such relief.”
             This judgment also makes it clear that when a mandatory injunction
      is granted at the interim stage much more than a mere prima facie case
      has to be made out. None of the aforesaid statutory provisions or
F     judgments have either been adverted to or heeded by the impugned
      judgment.
             9. We, therefore, set aside the impugned judgment and restore
      the judgment of the Courts below.
             10. Since the suit filed is a Section 6 suit which is a summary
G     proceeding in itself, the trial Court should endeavour to dispose of the
      Suit itself within a period of six months from today.
             11.,The appeal is allowed in the aforesaid terms.


      Kalpana K. Tripathy                                              Appeal allowed.
H