Case Note & Summary
The appellant, Pandurang Damodar Bhoir, filed a civil suit (Regular Civil Suit No. 155 of 2008) seeking a permanent injunction restraining the respondent, Baddruddin Abbasbhai Patel, from interfering with his possession over the suit property. The trial court dismissed the suit on the ground that it was barred by Section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948. The lower appellate court confirmed this dismissal in Civil Appeal No. 7 of 2012. The appellant then filed a second appeal before the Bombay High Court. The High Court framed the question whether the suit can be said to be barred by Section 85 of the Act. Both counsels agreed that a suit for simpliciter permanent injunction is not barred by Section 85. The High Court noted that the courts below had not gone into the merits of the controversy or recorded any finding on possession. The High Court held that the courts below committed an error of law in holding the suit barred. The second appeal was allowed, the judgments of the lower courts were quashed and set aside, and the matter was remitted back to the trial court to decide the suit on its own merits after giving parties an opportunity to lead evidence. The parties were directed to appear before the trial court on 27th July 2015. No order as to costs.
Headnote
A) Civil Procedure - Bar of Suit - Section 85 Bombay Tenancy and Agricultural Lands Act, 1948 - Suit for simpliciter permanent injunction - The suit claiming only permanent injunction without any declaration of tenancy rights is not barred by Section 85 of the Act. The courts below erred in dismissing the suit on the ground of bar without examining merits or possession. Held that such a suit is maintainable and if tenancy issue arises, it can be referred to the tenancy court. (Paras 1-4) B) Tenancy Law - Reference to Tenancy Court - Section 85 Bombay Tenancy and Agricultural Lands Act, 1948 - If issue of tenancy arises from pleadings, the matter can be referred to the tenancy court and the decision in the suit need not be waited for that. The suit cannot be dismissed outright on the ground of bar under Section 85. (Para 3)
Issue of Consideration
Whether a civil suit claiming permanent injunction simpliciter is barred by Section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948?
Final Decision
Second appeal allowed. Judgment and decree dated 04.10.2010 in Regular Civil Suit No. 155 of 2008 and judgment in Civil Appeal No. 7 of 2012 dated 20.12.2012 quashed and set aside. Matter remitted back to trial court to decide suit on its own merits in accordance with law, giving parties opportunity to lead evidence. Parties to appear before trial court on 27th July 2015. No order as to costs.
Law Points
- Suit for simpliciter permanent injunction is not barred by Section 85 of the Bombay Tenancy and Agricultural Lands Act
- 1948
- If tenancy issue arises
- matter may be referred to tenancy court but suit not dismissed
