Case Note & Summary
The appellant, original plaintiff, filed a suit in the City Civil Court seeking protection of possession of property known as Fojdar Compound, Survey No.49, 49/1 to 49/6, admeasuring about 3838.46 sq. ft., situated at L.B.S. Marg, Opposite Kurla Bus Depot, Kurla (West), Mumbai. The suit included a prayer for leave to file a substantive suit under Order 2 Rule 2 of the Code of Civil Procedure, 1908 (CPC), and for appointment of a Commissioner to visit the property and submit a report. The appellant also sought an injunction restraining the defendants from dispossessing him except by due process of law. The trial court dismissed the notice of motion, adjudicating the issue of ownership rather than actual possession. The appellant challenged this order in the High Court. The High Court observed that the learned Judge had decided the issue of ownership instead of actual possession, which was the relevant aspect for an injunction to protect possession. The court emphasized that ownership and possession are distinct concepts, and a person in possession may not be the owner. The High Court held that the rejection of the application for injunction or protection of possession was an undesirable approach. The court set aside the impugned order and directed the trial court to appoint a Commissioner to ascertain the actual possession of the property and to decide the notice of motion afresh, considering only the aspect of possession. The trial court was also directed to consider the application for leave to file a substantive suit afresh after the Commissioner's report, without being influenced by the earlier order. The appeal was allowed, and the civil application was disposed of.
Headnote
A) Civil Procedure - Injunction - Possession vs Ownership - Order 2 Rule 2, Code of Civil Procedure, 1908 - The trial court dismissed the notice of motion for injunction by adjudicating ownership rather than actual possession. The High Court held that in a suit for protection of possession, the relevant aspect is actual possession, not ownership. The concepts of ownership and possession are distinct and distinguishable. The court directed the trial court to appoint a Commissioner to ascertain possession and to decide the notice of motion afresh, considering only the aspect of possession. (Paras 2-4) B) Civil Procedure - Leave to File Substantive Suit - Order 2 Rule 2, Code of Civil Procedure, 1908 - The appellant sought leave to file a substantive suit under Order 2 Rule 2 CPC. The High Court held that the trial court should consider the application for leave afresh after the Commissioner's report, without being influenced by the earlier order. (Para 4)
Issue of Consideration
Whether the trial court erred in dismissing the notice of motion for injunction by deciding the issue of ownership instead of actual possession, and whether the appellant should be granted leave to file a substantive suit under Order 2 Rule 2 CPC.
Final Decision
The appeal is allowed. The impugned order dated 2 May 2013 is set aside. The trial court is directed to appoint a Commissioner to ascertain the actual possession of the suit property and to decide the notice of motion afresh, considering only the aspect of possession. The trial court shall also consider the application for leave to file a substantive suit afresh after the Commissioner's report, without being influenced by the earlier order. The civil application is disposed of.
Law Points
- Distinction between ownership and possession
- Prima facie case for injunction based on possession
- Order 2 Rule 2 CPC leave to file substantive suit
- Appointment of Commissioner to ascertain possession
