Case Note & Summary
The appellant, original plaintiff, filed a suit in the City Civil Court seeking protection of possession of property bearing Survey No.49, 49/1 to 49/6, area 3838.46 sq. ft., known as Fojdar Compound, situated at L.B.S. Marg, Opposite Kurla Bus Depot, Kurla (West), Mumbai-400 070. The suit sought an injunction restraining the defendants and their servants from dispossessing the plaintiff except by due process of law, and also sought appointment of a commissioner to visit the property and submit a report. The plaintiff filed a Notice of Motion for interim relief. The trial court dismissed the Notice of Motion by order dated 2 May 2013. The appellant challenged this order in the High Court. The High Court observed that the learned trial judge had decided and adjudicated the issue of ownership instead of the issue of actual possession. The court noted that in a suit where leave is sought to file a substantive suit but the main prayers are for injunction to protect property, the relevant aspect is actual possession, not ownership. The concepts of ownership and possession are distinct and distinguishable. The court held that the principle of grant of injunction revolves around actual and physical possession irrespective of ownership. The trial court's approach of rejecting the application for injunction or protection of possession was undesirable. The High Court set aside the impugned order and allowed the appeal, directing the trial court to decide the Notice of Motion afresh, considering the actual possession aspect and the commissioner's report if necessary.
Headnote
A) Civil Procedure - Interim Injunction - Possession vs Ownership - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - The trial court dismissed the notice of motion seeking interim protection of possession by deciding ownership instead of actual possession. The High Court held that for grant of injunction, actual and physical possession is paramount, irrespective of ownership. The court must focus on possession, not title, at the prima facie stage. (Paras 2-3) B) Civil Procedure - Appointment of Commissioner - Possession Report - Order 26 Rule 9, Code of Civil Procedure, 1908 - The trial court refused to appoint a commissioner to report on possession. The High Court held that such refusal was improper as the commissioner's report would assist in determining actual possession, which is crucial for interim relief. (Para 2)
Issue of Consideration
Whether the trial court erred in dismissing the notice of motion for interim relief by deciding the issue of ownership instead of focusing on actual possession of the suit property.
Final Decision
Appeal allowed. Impugned order dated 2 May 2013 set aside. Trial court directed to decide Notice of Motion afresh, considering actual possession aspect and commissioner's report if necessary.
Law Points
- actual possession is paramount over ownership for interim injunction
- ownership and possession are distinct concepts
- trial court should not decide ownership at prima facie stage
- commissioner appointment for possession report is relevant
