The Practical Lawyer

Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira, (2012) 5 SCC 370

Property Law Possession Classes of possession: (1) Possession in consequence of proprietary interest; (2) Possession in consequence of licensory or contractual right; (3) Gratuitous or purely permissive possession; and (4) Trespassory possession Distinguished, (2012) 5 SCC 370-A

Contract and Specific Relief Specific Relief Act, 1963 Ss. 6, 5, 38 and 39 - Gratuitous possessees - Rights, if any - Person in gratuitous possession seeking injunction to retain or continue possession, or if dispossessed, seeking recovery of possession - Maintainability - Caretaker's suit (caretaker being a gratuitous possessee) for injunction against owner title-holder of property not maintainable - Caretaker holds property only on behalf of principal - Position of caretaker, watchman or servant who is allowed to stay in premises gratuitously i.e. all of them being gratuitous possessees - Principles regarding, stated - In present case LRs of respondent caretaker directed to hand over possession to appellant owner/title-holder and granted time of three months to vacate premises, but only on payment of Rs 1 lakh per month as mesne profits - If respondents unwilling to pay mesne profits, to be evicted with aid of police force within two weeks of this judgment, (2012) 5 SCC 370-B

Contract and Specific Relief Specific Relief Act, 1963 Ss. 6, 5, 38, 39 and 41 - Suit for injunction by person claiming right to continue in possession of immovable property or to recover possession - Involves adjudication of title and adjudication of possession - If title of defendant to property is established, possession of plaintiff would be presumed to be permissive in nature - Plaintiff with such permissive possession must give detailed particularised and specific pleadings along with documents to support his claim and details of subsequent conduct which establish his right to continue possession - Details which must be pleaded, enumerated (though not exhaustively) - Court should frequently use power under S. 30 CPC - It must carefully and critically examine pleadings and documents before framing issues - Vague pleadings would not raise any issue, (2012) 5 SCC 370-C

Civil Procedure Code, 1908

Or. 6 R. 2 - Pleadings - Importance of - Detailed particularised and specific pleadings needed - Pleadings must raise sufficient cause of action - Detailed pleadings which a person claiming possession of property must give, stated, (2012) 5 SCC 370-D

Civil Procedure Code, 1908

S. 30 and Or. 11 - Power to order discovery and the like - Courts should have frequent recourse to power under S. 30 to ascertain truth, (2012) 5 SCC 370-E

Courts, Tribunals and Judiciary Generally Courts - Duty - Basic duty is to ascertain truth - For this, court should play active role - It should give greater emphasis to veracity of pleadings and documents - It should frequently use power under S. 30 CPC in civil litigations - Lawyers should also play equal role in ascertainment of truth, (2012) 5 SCC 370-F
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The Practical Lawyer

Contract and Specific Relief Specific Relief Act, 1963 Ss. 6, 5 and 39 - Suit for mandatory injunction seeking possession - Duty of court - Market rent - While granting ex parte ad interim injunction in extraordinary cases, court can direct plaintiff to furnish undertaking that in event of dismissal of suit he would be required to pay market rent of property - Court should dispose of suit expeditiously, (2012) 5 SCC 370G

Contract and Specific Relief Specific Relief Act, 1963 S. 6 - Possession - Meaning, (2012) 5 SCC 370-H

Contract and Specific Relief Specific Relief Act, 1963 Ss. 38, 39, 6 and 5 - Injunction - Due process of law - Meaning - Requirement of, stands satisfied as soon as rights of parties are adjudicated upon by court - It does not matter whether action was brought by owner of property for recovery of possession or by person sought to be ejected, for injunction against dispossession, (2012) 5 SCC 370-I

Civil Suit Abuse of Process of Court False claims and false defences - Remedies laid down in Ramrameshwari Devi, (2011) 8 SCC 249, reiterated - LRs of respondent directed to pay exemplary costs of Rs 50,000 to appellant, (2012) 5 SCC 370-J

Property Law Property Litigations Practices adopted by unscrupulous litigants in - Judicial determination, to unmask those who have inherent interest in dragging on frivolous litigations, and to frustrate their attempts and impose adequate punishment and/or to afford relief to the bona fide opposite party, stressed, (2012) 5 SCC 370-K

Civil Procedure Code, 1908

Or. 39 Rr. 1, 2, 3, 3-A, Or. 20 R. 12 and S. 144 - Ad interim ex parte injunction - Can be granted for a short period such as two weeks only in grave urgency - Court should record in its order that in event of dismissal of suit, plaintiff undertakes to pay restitution, actual or realistic costs - It should also pass order for mesne profits, (2012) 5 SCC 370-L

Contract and Specific Relief Specific Relief Act, 1963 Ss. 38, 39, 6 and 5 - Injunction - Grant or refusal of - Principles - Court should carefully examine entire pleadings and documents - It should give short notice on injunction application and after hearing parties pass appropriate order - Only in grave urgency should it grant ad interim ex parte order for a specified period such as two weeks - Court should record in its order that in event of dismissal of suit, plaintiff undertakes to pay restitution, actual or realistic costs - It should also pass order for mesne profits, (2012) 5 SCC 370-M

Contract and Specific Relief

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The Practical Lawyer

Specific Relief Act, 1963 Ss. 6, 5, 38 and 39 - Injunction granting possession - Mesne profits - Court while granting injunction should fix ad hoc amount on basis of prevailing market rentals in locality for similar premises, payable by person continuing in possession Court can also direct payment of a particular amount and for differential, direct furnishing of a security by person who wishes to continue in possession - In case of non-payment of amount, court may evict that person and appoint a receiver of property or strike out claim or defence - In present case LRs of respondent caretaker directed to hand over possession to appellant owner/title-holder and granted time of three months to vacate premises, but only on payment of Rs 1 lakh per month as mesne profits - If respondents unwilling to pay mesne profits, to be evicted with aid of police within two weeks of this judgment, (2012) 5 SCC 370-N

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Generated: Sunday, February 24, 2013