Code of Civil Procedure, 1908-Order XXXIX Rules 1 and 2-Interim Injunction-Contractual transaction-Money advanced to second party and third party secured the loan by hypothecation and charge-Notice by lender to the securing party seeking repayment of the amount-Suit by securing party against the lender for mandatory injunction and application for interim injunction-Claim of lender before Debt Recovery Tribunal-Interim injunction granted and execution of any order by Tribunal restrained-Held: In the facts and circumstances of the case, the court below could not exercise its discretion to grant any interim injunction-Injunction against enforcement of orders of Tribunal also not correct-Such injunctions against the Tribunal having jurisdiction to pass such orders cannot normally be granted unless it is a case of fraud or the existence of some such vitiating factor is established or prima facie made out. Appellant-defendant No. 1 issued a notice to respondent No. 1 - plaintiff and defendant No. 2, seeking repayment of the amounts advanced by it to defendant No. 2, the repayment of which was secured by hypothecation and charge created by the plaintiff. Pursuant thereto respondent No. 1 - plaintiff filed a suit against defendant Nos. 1 and 2 for mandatory injunction restraining the defendants from interfering with certain capacitor banks systems allegedly supplied by the plaintiff and installed at various substations of Transmission Corporation of Andhra Pradesh. Plaintiff also filed application for interim injunction. Trial Court granted interim injunction. In the meanwhile appellant filed its claim for recovery of the amounts due, before Debts Recovery Tribunal. It also filed application for vacating the interim order and the same was vacated by Single Judge of High Court. Plaintiff's appeal thereagainst was allowed by Division Bench of High Court on the ground that since the suit was filed earlier to the claim before Debt Recovery Tribunal, the court was competent to entertain the suit and granted interim injunction. It permitted the proceedings before the Tribunal, but restrained the execution of any order that might be passed by the Tribunal. Hence the present appeal. Citation: 2006(8 )Suppl.SCR698 ,2007(1 )SCC106 ,2006(11 )SCALE585 ,2006(10 )JT366 Allowing the appeal, the Court HELD: 1. On the facts and in the circumstances of the case, the court is prima facie satisfied that this is not a fit case for exercise of discretion by the court to grant any interim injunction as sought for by the plaintiff. Division Bench has not properly adverted to or considered the question whether in the nature of the pleadings in the case and the nature of the relief claimed in the suit, an order of injunction as the one granted by it should be granted. The Division Bench did not ask itself the question whether it was open to it on the facts and in the circumstances of the case, to issue an order of injunction restraining one of the contracting parties from enforcing as against the other contracting party, the obligations arising out of that contract. The Division Bench also did not ask itself the question whether the plaintiff had made out a prima facie case for the grant of what it called an interim mandatory injunction - though it appears to this court to be a case of prohibitory injunction - and whether the balance of convenience is in favour of the grant of an interim order of injunction. [702-B-F] 2. Division Bench has clearly acted illegally in purporting to pass an interim order of injunction restraining the enforcement of any order that may be passed by the Debts Recovery Tribunal. The Debts Recovery Tribunal is a special forum created by a special enactment for the purpose of enforcement of special types of claims arising in favour of financial institutions. Thus, competent proceedings are instituted before such a Tribunal by a financial institution seeking to enforce its claimed rights. Whatever defences the plaintiff herein may have against the claims of the first defendant before the Debts Recovery Tribunal, have to be put forward by the plaintiff before the Debts Recovery Tribunal. The mere fact that the plaintiff chose to rush to the Civil Court on receipt of a notice from the first defendant in an attempt to thwart the enforcement of the obligations it has allegedly incurred, does not justify the grant of an interim order of injunction restraining the enforcement of the rights arising out of an alleged hypothecation and a charge created by the plaintiff in favour of the first defendant. That apart, to grant an injunction restraining the enforcement of orders passed by the Tribunal having jurisdiction to pass such orders cannot normally be granted unless it is a case of fraud or the existence of some such vitiating factor is established or prima facie made out. Even then, the order of injunction as now granted could be granted only in exceptional cases. [702-F-H; 703-A-C] 3. It is open to the plaintiff to put forward all its contentions before the Debts Recovery Tribunal and if it is thought appropriate, to get the suit filed by it transferred to the Debts Recovery Tribunal to be tried as a cross suit or counter claim against the claim of the first defendant before the Debts Recovery Tribunal. [703-E-F] State Bank of India v. M/s Ranjan Chemicals Ltd. and Anr., (2006) 10 SCALE 150, referred to. K.K. Mani for the Appellant. L. Nageshwar Rao, T.G. Narayanan Nair, Nandakumar K.P. Venugopal, and E. Venukumar, K.J. John & Co. for the Respondents.

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CASE NO.:
Appeal (civil) 4728 of 2006
PETITIONER:
Industrial Investment Bank of India Ltd
RESPONDENT:
Marshal’s Power & Telecom (I) Ltd.& Anr
DATE OF JUDGMENT: 08/11/2006
BENCH:
H.K. SEMA & P.K. BALASUBRAMANYAN
JUDGMENT:
J U D G M E N T
(Arising out of SLP(C) No.2962 of 2005)
P.K. BALASUBRAMANYAN, J.
 Leave granted.
 Heard both sides.
1. Defendant No.1 in C.S. No. 644 of 2003 filed on the
Original Side of the High Court of Madras is the appellant.
The appeal challenges the grant of an interim injunction
by the Division Bench of the High Court in favour of the
plaintiff, respondent No.1 herein, pending the suit. The
suit was filed by the plaintiff for a mandatory injunction
restraining defendants 1 and 2 jointly or severally from
taking possession of or interfering with the use of or
exercising any right of lien, charge or from issuing notice
in any form or from creating any kind of disturbance or
from attaching otherwise or raising a claim in respect of
certain capacitor banks systems allegedly supplied by the
plaintiff and installed at various substations of
Transmission Corporation for Andhra Pradesh (for short,
’APTRANSCO’) and for award of the costs of the suit. In
that suit, the plaintiff filed O.A. No. 806 of 2003 under
Order XXXIX Rules 1 and 2 of the Code of Civil Procedure
seeking an interim injunction along the same lines to
enure during the suit. The suit was filed when defendant
No. 1 issued a notice to the plaintiff and defendant No. 2
in the suit seeking repayment of the amounts advanced by
the first defendant to the second defendant, the
repayment of which was secured by hypothecation and
charge created by the plaintiff.
2. According to the plaint, no valid charge or
hypothecation was created in favour of the first defendant
and the first defendant was not entitled to claim any
amount as against the plaintiff and was not entitled to
enforce the charge or hypothecation as against the
plaintiff.
3. The trial court granted an ad interim ex parte
order of injunction after entertaining the suit. Meanwhile,
the first defendant filed its claim for recovery of the
amounts allegedly due to it from defendants 1 and 2
before the Debts Recovery Tribunal. The first defendant
also appeared in the suit filed by the plaintiff and in
addition to filing an objection to the interim application for
injunction also filed Application No. 4726 of 2003 praying
for vacating the interim order of injunction granted by the
court. The first defendant pleaded that substantial http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3
amounts were due to it; that certain assets had been
hypothecated to it and a charge created for securing the
loan by the plaintiff and that the charge and the
hypothecation were legally enforceable and there was no
ground for granting an interim order of injunction as
sought for. It was also submitted that the plaintiff had no
cause of action for filing such a suit and it was for the
plaintiff to put forward its case or its defence before the
Debts Recovery Tribunal.
4. The learned single judge after hearing both sides
vacated the interim order of injunction earlier granted.
Thus, he allowed the application filed by the first
defendant for vacating the injunction and dismissed the
application filed by the plaintiff for interim injunction.
The learned single judge essentially took the view that
since the first defendant had initiated a proper proceeding
for enforcement of its rights before a Tribunal exclusively
competent to deal with such a claim, it was not for the
Civil Court to intervene with an interim order of injunction
as sought for by the plaintiff. The plaintiff filed an appeal
before the Division Bench. The Division Bench of the High
Court allowed the appeal taking the view that the suit in
the Civil Court was maintainable and since the suit was
filed earlier, the court was competent to entertain the suit
and grant an interim order of injunction. Without properly
considering whether on the facts and in the circumstances
of the case and the nature of the suit filed by the plaintiff
an interim order of injunction was warranted or justified,
it granted an order of injunction presumably as prayed for
by the plaintiff but clarifying that the deed of
hypothecation executed on the subject matter in question
shall be in force and the proceedings before the Debts
Recovery Tribunal may go on, but restraining the
execution of any order that may be passed by the Debts
Recovery Tribunal. Feeling aggrieved, the first defendant
has filed this appeal.
5. We think that the Division Bench has not
properly adverted to or considered the question whether in
the nature of the pleadings in the case and the nature of
the relief claimed in the suit, an order of injunction as the
one granted by it should be granted. Prima facie, it
appears that the plaintiff had executed a hypothecation
and created a charge to secure the loan advanced by the
first defendant to the second defendant. The loan was
advanced to enable the second defendant to fulfil the
terms of a contract it had entered into with APTRANSCO.
The second defendant had sub-contracted a part of the
work to the plaintiff. The first defendant had advanced
monies to the second defendant for the work and the
plaintiff had prima facie secured the loan by
hypothecation and a charge. An order has been claimed
against the plaintiff before the Debts Recovery Tribunal in
enforcement of its rights by the first defendant. The
Division Bench did not ask itself the question whether it
was open to it on the facts and in the circumstances of the
case, to issue an order of injunction restraining one of the
contracting parties from enforcing as against the other
contracting party, the obligations arising out of that
contract. The Division Bench also did not ask itself the
question whether the plaintiff had made out a prima facie
case for the grant of what it called an interim mandatory
injunction --- though it appears to us to be a case of
prohibitory injunction --- and whether the balance of http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3
convenience is in favour of the grant of an interim order of
injunction. On the facts and in the circumstances of the
case, we are prima facie satisfied that this is not a fit case
for exercise of discretion by the court to grant any interim
injunction as sought for by the plaintiff.
6. We also find that the Division Bench has clearly
acted illegally in purporting to pass an interim order of
injunction restraining the enforcement of any order that
may be passed by the Debts Recovery Tribunal. The
Debts Recovery Tribunal is a special forum created by a
special enactment for the purpose of enforcement of
special types of claims arising in favour of financial
institutions. Thus, competent proceedings are instituted
before such a Tribunal by a financial institution seeking to
enforce its claimed rights. Whatever defences the plaintiff
herein may have against the claims of the first defendant
before the Debts Recovery Tribunal, have to be put
forward by the plaintiff before the Debts Recovery
Tribunal. The mere fact that the plaintiff chose to rush to
the Civil Court on receipt of a notice from the first
defendant in an attempt to thwart the enforcement of the
obligations it has allegedly incurred, does not justify the
grant of an interim order of injunction restraining the
enforcement of the rights arising out of an alleged
hypothecation and a charge created by the plaintiff in
favour of the first defendant. That apart, to grant an
injunction restraining the enforcement of orders passed by
the Tribunal having jurisdiction to pass such orders
cannot normally be granted unless it is a case of fraud or
the existence of some such vitiating factor is established
or prima facie made out. Even then, the order of
injunction as now granted could be granted only in
exceptional cases.
7. We had recently occasion to consider the scope
of the raising of a counter claim before the Debts Recovery
Tribunal in State Bank of India Vs. M/s Ranjan
Chemicals Ltd. & Anr. [2006 (10) SCALE 150]. It
appears to us that the claims sought to be put forward by
the plaintiff in the present suit is something that is really
in the nature of a defence to the action initiated by the
first defendant before the Debts Recovery Tribunal or
which could be put forward by way of a counter claim, if
necessary. This aspect also had to be borne in mind
before deciding whether a case for passing of an interim
order of injunction has been made out or not. This aspect
has also been ignored by the Division Bench.
8. In the result, we allow the appeal and setting
aside the order of the Division Bench, restore the order of
the learned single judge dismissing the application for
interim injunction. We make it clear that it is open to the
plaintiff to put forward all its contentions before the Debts
Recovery Tribunal and if it is thought appropriate, to get
the suit filed by it transferred to the Debts Recovery
Tribunal to be tried as a cross suit or counter claim
against the claim of the first defendant before the Debts
Recovery Tribunal. The first defendant \026 appellant, would
be entitled to its costs in this Court.

Code of Civil Procedure, 1908 : Order 39, Rules 1, 2 and 3-Trial court granting interim ex parte injunction order without recording reasons and requiring applicant to perform duties as laid down in proviso to Rule 3-Consequence thereof-Held, injunction order deemed to contain such requirements by implication and the appellant should perform the duties. Order 39, Rule 3A-Section 104, Order 43, Rule 1-Trial court failing to pass final orders within 30 days-Held, the injunction order is deemed to be the final order on the date of expiry of 30 days and the aggrieved party is entitled to right of appeal. Section 104, Order 43, Rule 1-High Court entertaining revision petition when there were alternate remedies-Whether correct-Held, High Court should have directed the parties to avail the alternate remedies and should not have entertained the revision petition-Constitution of India-Article 227. Appellant-plaintiff filed a suit before the trial court for a decree of permanent injunction restraining the respondents from dispossessing him of the suit property. The appellant also moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 for the grant of a temporary injunction, which was granted by the trial court. The respondents filed a revision petition under article 227 of the constitution before the High Court alleging that the respondents were in possession and enjoyment of the property. The High Court set aside the injunction order observing that the order could come into operation beyond thirty days under Order 39 Rule 3A of the Code. The High Court directed the trial court to take up the interlocutory application for injunction and pass orders on merits. In appeal to this Court, the plaintiff contended that the respondents had alternate remedies either by approaching the trial court for vacating the injunction order or filing an appeal against the order. The respondents contended that an injunction order without complying with the requisites envisaged in proviso to Rule 3 of Order 39 is void. Citation: 2000 AIR 3032,2000( 3 )Suppl.SCR 303,2000( 7 )SCC 695,2000( 6 )SCALE398 ,2000(10 )JT 599 Disposing of the appeal, the Court HELD: 1. An order passed under Rule 3 of Order 39 of the Code of Civil Procedure, 1908, is deemed to contain the requirements laid down in proviso (a) and (b) of the Rule by implication even if they are not stated expressly. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which has to be performed as required by the proviso, then the party must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. [310-C-D] 2.1. Rule 3A under Order 39 casts a protection to the party against whom the ex parte injunction order was passed. First is the legal obligation that the Court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days. Second is the legal obligation that if for any valid reasons the Court could not finally dispose of the application within the aforesaid time the Court has to record the reasons thereof in writing. [311-B] 2.2. The Court would have by-passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second, is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. It is only in very exceptional cases that the Court could by-pass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer. [311-D-E] 2.3. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule. [311-F-H; 312-A-C] 3. With regard to the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies, though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. [312-D] 4. As directed by the High Court the trial court should pass final orders on the interlocutory application filed by the plaintiff on merits and in accordance with law. Till the orders of the trial court, status-quo as it prevailed immediately preceding the institution of the suit would be maintained by the parties. [312-F] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5102 of 2000.

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PETITIONER:
A. VENKATASUBBIAH NAIDU
 Vs.
RESPONDENT:
S. CHELLAPPAN AND ORS.
DATE OF JUDGMENT: 19/09/2000
BENCH:
K.T. Thomas & R.P. Sethi
JUDGMENT:
THOMAS, J.
Leave granted.
L...I...T.......T.......T.......T.......T.......T.......T..J
 When a plaintiff rushed to the civil court for an exparte interim order of injunction against some of the
defendants and obtained it, those defendants rushed to the
High Court to get that order quashed. Both parties
succeeded in their respective endeavour and now both of them
accuse each other for the course adopted by the other. This
appeal is by special leave at the instance of the plaintiff.
 The subject matter of the litigation is a property
bearing Door No.177 to 182 on the Big Street at Triplicane
in Madras (now Chennai). At this stage and in this appeal
it is unnecessary to narrate the facts pleaded by the
plaintiff in the plaint nor by the contesting first
defendant in answer thereto regarding the right to the suit
property. Suffice it to say that plaintiff claims to be a
lessee under one S. Alagu (who is arrayed as 6th defendant
in the suit) in respect of the property and on that strength
he claimed to be in possession of the property. He alleged
that the defendants 1 to 5 have been threatening to
dispossess him.
 Appellant-plaintiff filed the suit on 25.6.1999 for a
decree of permanent injunction restraining defendant Nos.1
to 5 from dispossessing him. Along with the institution of
the suit he moved an application under Order 39 Rule 1 and 2
of the Code of Civil Procedure (for short the Code) to
pass an ad interim injunction restraining respondents 1 to 5
or their men or agents, or their representatives or any
person claiming through them or under them from evicting the
petitioner from the suit property other than by due process
of law and to pass such further or other order or orders.
 On 29.6.1999 the Assistant Judge of the City Civil
Court, Chennai passed the following ex-parte order on the
said application: Heard. Documents perused. Rental
receipt Document 11 to Document 47 proves that the
petitioner is the statutory tenant and prima facie
possession of the suit property. Though the property was
leased out by R.6 on the basis of mortgage document 3, the
petition is now in continuous possession of the property as
tenant. Hence the balance of convenience is in favour ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
the petitioner. In the interest of justice, it appears that
R.1 to R.5 are restrained from evicting the petitioner from
the suit property, except under due process of law. Notice
by 25.8.99. Ad interim injunction till then. Order 39 Rule
3 to be complied with."
 The first respondent, on behalf of himself and
respondent Nos.2 to 5, filed a revision petition invoking
Article 227 of the Constitution before the High Court of
Madras alleging that they purchased the property from the
owners thereof as per different sale documents executed on
15.3.1996, and they were in possession and enjoyment of the
property. They further alleged that one Ranganathan, MLA
and one Hithayatullah together expressed a wish to purchase
the property from the respondents, but it was not agreed to
and then those two persons exerted threat and pressure on
them to capitulate to their demand. As they did not yield
to such threats a suit was filed in 1998 by some parties who
are now supporting the present plaintiff. The respondents
further alleged that the said suit was filed at the instance
and instigation of those two named persons. When they
failed to get any relief therefrom another suit was caused
to be filed through one M. Devasinghamani on the strength
of some concocted documents. As no relief was obtained in
that suit also the present suit, which is the third one in
the series, has been filed at the behest of the above named
persons, according to the respondents.
 Learned Single Judge of the High Court of Madras who
disposed of the revision made the observation that the trial
court ought not have granted an order of injunction at the
first stage itself which could operate beyond thirty days as
the court had then no occasion to know of what the affected
party has to say about it. Such a course is impermissible
under Order 39 Rule 3A of the Code, according to the learned
single judge. He, therefore, set aside the injunction order
for the clear transgression of the provisions of law and
noted that this is the third suit filed in reference to the
suit property and hence deprecated the grant of ex-parte
injunction without notice. Though learned single judge
further declined to go into the other allegations, he has
chosen to make the following observations also: However,
prima facie, I am satisfied that these materials are
relevant for consideration before granting ad interim
injunction. As per the plaint and affidavit averments admit
that the first respondent is occupying a vacant portion of
1670 sq. ft. and running paper business and charcoal. But
there is no document to show that the first respondent is
actually in possession and running such a business except
the lease deed. Hence the ex-parte order is unsustainable.
For all these reasons, I am of the view that the order
passed by the learned Judge is liable to be set aside and it
is accordingly set aside.
 After holding thus learned Single Judge directed the
trial court to take up the interlocutory application for
injunction and pass orders on merits and in accordance with
law expeditiously.
 Sri Sivasubramaniam, learned Senior Counsel contended
that the High Court should not have entertained a petition
under Article 227 of the Constitution when the respondent
had two remedies statutorily available to him. First is
that the respondent could have approached the trial court
for vacating, if not for any modification, of the interimhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
ex-parte order passed. Second is that an appeal could have
been preferred by him against the said order. It is open to
respondent to opt either of the two remedies, contended the
Senior Counsel. Section 104 of the Code says that an
appeal shall lie from the following orders, and save as
otherwise expressly provided in the body of this Code or by
any law for the time being in force, from no other orders:
 (i) any order made under rules from which an appeal is
expressly allowed by rules.
 Order 43 Rule 1 says that: An appeal shall lie from
the following orders under the provisions of Section 104
namely;
 (r) An order under Rule 1, Rule 2, Rule 2A, Rule 4 or
Rule 10 of Order 39.
 Order 39 Rule 1 says thus: 1. Where in any suit it is
proved by affidavit or otherwise -
 (a) that any property in dispute in a suit is in danger
of being wasted, damaged or alienated by any party to the
suit, or wrongfully sold in execution of a decree or (b)
that the defendant threatens, or intends to remove or
dispose of his property with a view to defrauding his
creditors, (c) that the defendant threatens to dispossess
the plaintiff or otherwise cause injury to the plaintiff in
relation to any property in dispute in the suit, the Court
may by order grant a temporary injunction to restrain such
act, or make such other order for the purpose of staying and
preventing the wasting, damaging, alienation, sale, removal
or disposition of the property or disposition of the
plaintiff, or otherwise causing injury to the plaintiff in
relation to any property in dispute in the suit as the Court
thinks fit, until the disposal of the suit or until further
orders.
 It cannot be contended that the power to pass interim ex
parte orders of injunction does not emanate from the said
Rule. In fact, the said rule is the repository of the power
to grant orders of temporary injunction with or without
notice, interim or temporary, or till further orders or till
the disposal of the suit. Hence, any order passed in
exercise of the aforesaid powers in Rule 1 would be
applicable as indicated in Order 43 Rule 1 of the Code. The
choice is for the party affected by the order either to move
the appellate court or to approach the same court which
passed the ex parte order for any relief.
 Learned Senior Counsel for the respondents then
contended that an order granting injunction without
complying with the requisites envisaged in Rule 3 of Order
39 be void. Rule 3 reads thus: The Court shall in cases,
except where it appears that the object of granting the
injunction would be defeated by the delay, before granting
an injunction direct notice of the application for the same
to be given to the opposite party:
 [Provided that, where it is proposed to grant an
injunction without giving notice of the application to the
opposite-party, the Court shall record the reasons for its
opinion that the object of granting the injunction would be
defeated by delay, and require the applicanthttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
 (a) to deliver to the opposite-party, or to send to him
by registered post, immediately after the order granting the
injunction has been made, a copy of the application for
injunction together with-
 (i) a copy of the affidavit filed in support of the
application; (ii) a copy of the plaint; and (iii) copies
of documents on which the applicant relies, and
 (b) to file, on the day on which such injunction is
granted or on the day immediately following that day, an
affidavit stating that the copies aforesaid have been so
delivered or sent.
 What would be the position if a court which passed the
order granting interim ex parte injunction did not record
reasons thereof or did not require the applicant to perform
the duties enumerated in clauses (a) & (b) of Rule 3 of
Order 39. In our view such an Order can be deemed to
contain such requirements at least by implication even if
they are not stated in so many words. But if a party, in
whose favour an order was passed ex parte, fails to comply
with the duties which he has to perform as required by the
proviso quoted above, he must take the risk. Non-compliance
with such requisites on his part cannot be allowed to go
without any consequence and to enable him to have only the
advantage of it. The consequence of the party (who secured
the order) for not complying with the duties he is required
to perform is that he cannot be allowed to take advantage of
such order if the order is not obeyed by the other party. A
disobedient beneficiary of an order cannot be heard to
complain against any disobedience alleged against another
party.
 Learned Single Judge stated that the trial court ought
not to have granted ex parte injunction beyond thirty days
to be in force. The said observation is based on the
language contained in Order 39 Rule 3-A of the Code which
reads thus: Where an injunction has been granted without
giving notice to the opposite-party, the Court shall make an
endeavour to finally dispose of the application within
thirty days from the date on which the injunction was
granted; and where it is unable so to do, it shall record
its reasons for such inability.
 The Rule does not say that the period of the injunction
order should be restricted by the Court to thirty days at
the first instance, but the Court should pass final order on
it within thirty days from the day on which the injunction
was granted. Hence, the order does not ipso facto become
illegal merely because it was not restricted to a period of
thirty days or less.
 Nonetheless, we have to consider the consequence, if
any, on account of the Court failing to pass the final
orders within thirty days as enjoined by Rule3-A.
 The aforesaid Rule casts a three-pronged protection to
the party against whom the ex parte injunction order was
passed. First is the legal obligation that the Court shall
make an endeavour to finally dispose of the application of
injunction within the period of thirty days. Second is, the
legal obligation that if for any valid reasons the Court
could not finally dispose of the application within thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
aforesaid time the Court has to record the reasons thereof
in writing.
 What would happen if a Court does not do either of the
courses? We have to bear in mind that in such a case the
Court would have by-passed the three protective humps which
the legislature has provided for the safety of the person
against whom the order was passed without affording him an
 opportunity to have a say in the matter. First is that
the Court is obliged to give him notice before passing the
order. It is only by way of a very exceptional contingency
that the Court is empowered to by-pass the said protective
measure. Second is the statutory obligation cast on the
Court to pass final orders on the application within the
period of thirty days. Here also it is only in very
exceptional cases that the Court can by-pass such a rule in
which cases the legislature mandates on the court to have
adequate reasons for such bypassing and to record those
reasons in writing. If that hump is also bypassed by the
Court it is difficult to hold that the party affected by the
order should necessarily be the sole sufferer.
 It is the acknowledged position of law that no party can
be forced to suffer for the inaction of the court or its
omissions to act according to the procedure established by
law. Under the normal circumstances the aggrieved party can
prefer an appeal only against an order passed under Rules
1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43
Rule 1 of the Code. He cannot approach the appellate or
revisional court during the pendency of the application for
grant or vacation of temporary injunction.
 In such circumstances the party who does not get justice
due to the inaction of the court in following the mandate of
law must have a remedy. So we are of the view that in a
case where the mandate of Order 39 Rule 3A of the Code is
flouted, the aggrieved party, shall be entitled to the right
of appeal notwithstanding the pendency of the application
for grant or vacation of a temporary injunction, against the
order remaining in force. In such appeal, if preferred, the
appellate court shall be obliged to entertain the appeal and
further to take note of the omission of the subordinate
court in complying with the provisions of Rule 3A. In
appropriate cases the appellate court, apart from granting
or vacating or modifying the order of such injunction, may
suggest suitable action against the erring judicial officer,
including recommendation to take steps for making adverse
entry in his ACRs. Failure to decide the application or
vacate the ex-parte temporary injunction shall, for the
purposes of the appeal, be deemed to be the final order
passed on the application for temporary injunction, on the
date of expiry of thirty days mentioned in the Rule.
 Now what remains is the question whether the High Court
should have entertained the petition under Article 227 of
the Constitution when the party had two other alternative
remedies. Though no hurdle can be put against the exercise
of the constitutional powers of the High Court it is a well
recognized principle which gained judicial recognition that
the High Court should direct the party to avail himself of
such remedies one or the other before he resorts to a
constitutional remedy. Learned single judge need not have
entertained the revision petition at all and the party
affected by the interim ex parte order should have beenhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
directed to resort to one of the other remedies. Be that as
it may, now it is idle to embark on that aspect as the High
Court had chosen to entertain the revision petition.
 In the light of the direction issued by the High Court
that the trial court should pass final orders on the
interlocutory application filed by the plaintiff on merits
and in accordance with law, we may further add that till
such orders are passed by the trial court, status-quo as it
prevailed immediately preceding the institution of the suit
would be maintained by the parties.
 This appeal is disposed of with the above observations
and directions.

Section 41(h) of Specific Relief Act= Section 41(h) provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding. The relief of specific performance is equally efficacious, rather more efficacious, remedy than the suit for injunction simplicitor.= when remedy of a suit for specific performance is available to the plaintiff, he :8: 616.10.ao.j cannot file a suit for injunction simplicitor nor he can claim temporary injunction in pending suit for injunction simplicitor. 10 In the present case the plaintiff could have filed suit for specific performance of the contract as soon as he found that defendant no.1 had repudiated contract and was trying to dispose of the property to somebody else. The plaintiff filed the suit on the basis of the agreement allegedly executed by defendant no.1 in his favour and that agreement shows that consent terms in the earlier suit were accepted and defendant no.1 was entitled to retain and dispose of the premises. The defendant no.1 denies execution of this agreement. When pleadings of the plaintiffs show that there was no impediment in filing suit for specific performance, now he cannot say that because of the earlier suit he could not file suit for specific performance. These aspects were not considered by the trial court while granting temporary injunction in favour of the plaintiff. 11 In view of the above circumstances, as the suit for injunction simplicitor itself is not tenable in view of Section 41(h) of the Specific Relief Act, the plaintiff is also not entitled to temporary injunction pending the suit.

 :1: 616.10.ao.j
ata
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER  NO.616 OF 2010
IN
NOTICE OF MOTION NO. Ex.2 OF 2008
FROM
B. C. C. C. Suit No. 1602 OF 2008
WITH
CIVIL APPLICATION NO.193 OF 2012
Mr. Abdul Wahid
Residing at Room No.22,1st floor,
Ramzan Building, Hans Road,
Neara National Diary,
Byculla(W), Mumbai .. Appellant
               Vs.
1.Shri. Manish Hansraj Chandaria
Residing at Flat No.8,3rd Floor,
Link Corner,
Residential and Non­residential Premises
Co­operative Society(Prop.)Ltd,
Plot No.  231, T. P. S. III,
Linking Road, Bandra(W), Mumbai
2. Smt. Nasreen wd/o Yusuf Ibrahim Shaikh
Residing at Flat No.16 and 17,
Building No. 185, Nishant Pada,Dongri,
Mumbai .. Respondents :2: 616.10.ao.j
Mr. Jagdish N. Jayale,for the Appellant/Applicant..
Dr. Amod S. Tilak, for the Respondent No.1.
CORAM :­  J. H. BHATIA,J.
DATE     :­  FEBRUARY 17, 2012
 JUDGMENT
1 Rule.  Rule made returnable forthwith.  With the consent of  the
learned  counsel for both the parties, the appeal is heard forthwith.
2 The appeal is preferred by the original defendants challenging the
order dated 21.04.2010 passed by the learned Judge, City Civil Court in
Notice   of   Motion   whereby   the   defendants   are   restrained   from
dispossessing the plaintiff from the suit flat.
3 The plaintiff­respondent no.1 contended that the defendant no.1.
appellant is the owner of the suit flat.  On 6th June, 2008 the defendant
no.1 agreed to sell the suit flat to the plaintiff for consideration of Rs.40
lac.   Out of  the consideration amount, a sum of Rs.1 lac was paid by
cheque on the said date and amount of Rs.15 lac was paid in  cash on
that day.  Balance amount was to be paid on or before September 2008
before   registration   of   the   agreement.   According   to   the   plaintiff,
subsequent to the contract with the plaintiff, defendant no.1 agreed to :3: 616.10.ao.j
sell the property to defendant no.2. Therefore, the plaintiff filed suit the
for permanent injunction restraining the defendants from dispossessing
the plaintiff from the suit flat without following due process of law.  The
plaintiff also took out Notice of Motion for temporary injunction of the
same nature.  Defendant no.1, contested the Notice of Motion denying
that  there was any agreement  for sale between him and  the plaintiff.
He also denied to have received any amount of consideration from the
plaintiff.  According to him, the agreement is a forged  document.  After
hearing parties, learned  trial Court allowed  the Notice of Motion and
granted temporary injunction against defendant no.1.
4 Learned   counsel   for   the   defendant/appellant   vehemently
contended that when the plaintiff claims possession of the suit property
on the basis of the agreement for sale, he could not have filed suit for
injunction simplicitor because equally, rather more, efficacious relief of
specific performance  of contact is available to him.  He contends that
had the plaintiff filed the suit for specific performance of the contract he
could have claimed the relief of injunction and also temporary injunction
pending the suit, but when he has not filed suit for specific performance
of the contract, in view of Section 41(h) of the Specific Relief Act, the
injunction  cannot  be  granted  and  therefore in  such  a  suit  temporary
injunction also cannot  be granted.  In support of his contention learned :4: 616.10.ao.j
counsel   placed   reliance   upon  Mathurabai   Kadu   Koli   and   Ors   v/s
Roopchand Lalji Koli and Anr 2000(I) Bom.C. R. page 133.  On the
other   hand   the   learned   counsel   for   the   plaintiff   contended   that
agreement for sale between the plaintiff and defendant no.1 was subject
to realization of certain cheques and consent terms to be filed in earlier
suit  no.  509  of  2008  filed  by  defendant  no.1  against  his vendor Zia
Safruddin Ali  and  as  per  the  consent  terms,  the  defendant  no.1 was
entitled to retain as well as to dispose of the suit premises.   The deal
between the plaintiff and defendant no.1 would be subject to realization
of the cheque and  consent terms of suit no. 509 of 2008.   From the said
agreement, it is clear that defendant no.1 was entitled  to retain the suit
property and also  to dispose of  the same.    In such circumstances,  the
plaintiff claims have entered into contract to purchase the suit property
from defendant no.1 for consideration of Rs. 40 lac.  Out of which, an
amount of Rs.16 lac  was allegedly paid by him.  Defendant no.1 denies
receipt of money as well as execution of the agreement.  That defence
need not be  taken into consideration at  this stage.   According  to  the
plaintiff, the balance of amount Rs.24 lac was to be paid on or before
September, 2008 at the time of registration of the agreement for sale.
According to him, as per clause ‘h’ of the terms of the said agreement
defendant   no.1   had   handed   over   possession   of   the   suit   flat   to   the :5: 616.10.ao.j
plaintiff, and on that basis he is in possession.  He contends that after he
had entered into an agreement, defendant no.1 was  trying  to sell  the
property to defendant no.2 and therefore he filed the suit. According to
him, in view of these circumstances, he was not in a position to file suit
for specific performance of the contract and therefore was required to
file the suit for perpetual injunction simplicitor to protect his possession
till sale deed is actually executed and registered.
5 From the pleadings and contention of the plaintiff, it is clear that
the plaintiff claims to have received possession of the suit premises in
part performance of the contract between the parties.  According to him,
the balance amount of Rs.24 lac was to be paid by September 2008 at
the time of execution and registration of agreement for sale, infact the
sale  deed  and  not  agreement  for   sale.    However,    even  before  that
defendant no.1 had repudiated the contract with the plaintiff and was
trying  to sell  the property  to  third person.   That shows  that cause of
action  for  filing  the suit  for specific performance   had accrued  to  the
plaintiff.
6 The   contract   for   sale   of   the   property   is   specifically   enforcible
under Section 10 of the Specific Relief Act and the plaintiff who claims
to   have   agreed   to   purchase   the   property   was   entitled   to   seek   such
specific performance under Section 15 of  the Specific Relief Act.   He :6: 616.10.ao.j
could file the suit for specific performance of the contract and in such
suit  he  could  also  claim   permanent injunction   as  well   as  temporary
injunction pending the suit.  Section 41(h) provides that an injunction
cannot   be   granted   when   equally   efficacious   relief   can   certainly   be
obtained by any other usual  mode of  proceeding. The relief of specific
performance is equally efficacious, rather more efficacious, remedy than
the suit for injunction simplicitor.
7 It is  settled  position  of law  that where  the  plaintiff  claims  the
possession on the basis of part  performance  of the agreement for sale,
his   remedy   is   to   file   the   suit   for   specific   performance   and   suit   for
injunction simplicitor is not tenable.  This position was clarified by the
learned single Judge of this Court in Mathurabai Kadu Koli (supra).
8 Learned Judge referred  to  Yeshwantrao Martandrao Mukane v
Khushal K. Bhatia  ­1986(1) Bom. C. R.  533  in which  the Division
Bench of this Court had observed thus:­
“Clause  (e)  of  section  41  of  the  Specific  Relief  Act is
relevant   to   the   extent   and   in   the   context   of   the
provisions  of  section  53­A  of  the  Transfer  of  Property
Act, which requires  the plaintiff  to satisfy  that he was
ready and willing to perform his part of the contract. It
is only when such readiness and willingness is there that
the  contract  of  agreement for  sale  can  be  specifically :7: 616.10.ao.j
enforced.  If  this basic  readiness and willingness is not
established,   then   the   performance   could   not   be
specifically enforced. It follows, therefore, that by reason
of the principle underlying section 41(e) of the Specific
Relief Act, when  the plaintiff seeks injunction  so as  to
prevent breach of a contract whose performance cannot
be  specifically  enforced,  such  an injunction  has  to  be
refused. Similarly, when a suitor of such a type would
have equally efficacious relief available so as to enforce
the   contracts   by   taking   appropriate   remedy,   without
recourse to it, it would be indeed difficult to extend the
discretionary relief of permanent injunction. Clause (h)
of section 41 of the Specific Relief Act would require the
Court to refuse such a type of prayer for injunction. It is
not as if that in a suit to enforce the agreement itself,
such a relief is sought. On the other hand, although the
plaintiff came to the Court with the allegation that the
other party has repudiated  the agreement for  sale, he
has omitted to seek its enforcement  and is trying to hold
the property obviously without seeking  to complete his
title by enforcing the agreement for sale. To such a case,
the principles underlying Clause (h) of section 41 of the
Specific Relief Act can be extended so as to refuse such an
ancillary relief.”
9 Thus  the legal position is well  settled by  this Court  that
when
remedy of a suit for specific performance is available to the plaintiff, he :8: 616.10.ao.j
cannot file a suit for injunction simplicitor nor he can claim temporary
injunction  in pending suit for injunction simplicitor. 
10 In the present case the plaintiff could have filed suit for specific
performance of the contract as soon as he found that defendant no.1 had
repudiated     contract   and   was   trying   to   dispose   of   the   property   to
somebody   else.         The   plaintiff   filed   the   suit   on   the   basis   of   the
agreement  allegedly executed by defendant no.1 in his favour and that
agreement shows  that consent  terms in  the earlier suit were accepted
and defendant no.1 was entitled to retain and dispose of the premises.
The   defendant   no.1   denies     execution   of   this   agreement.   When
pleadings of the plaintiffs  show that  there was no impediment in filing
suit  for  specific performance, now he cannot  say  that because of  the
earlier suit he could not file suit for specific performance.  These aspects
were   not   considered   by   the   trial   court   while   granting   temporary
injunction in favour of the plaintiff. 
11 In  view  of  the  above  circumstances,  as  the  
 suit  for injunction
simplicitor itself is not tenable in view of Section 41(h) of the Specific Relief   Act,   the   plaintiff   is   also   not   entitled   to   temporary   injunction pending the suit.
Therefore the appeal is allowed and impugned order
stands set aside.  Notice of Motion stands dismissed.
(J. H. BHATIA,J.)

sec.376 I.P.C. and Juvenile Justice (Care and Protection of Children) Act, 2000= whether the conviction recorded by the High Court was justified on merits and, if it was, whether we ought to refer the appellant to the Juvenile Justice Board at this stage. Our answer is in the affirmative qua the first part and negative qua the second. The High Court has, in our opinion, properly appreciated the evidence on record especially the deposition of the prosecutrix, her companion PW-2 and her aunt Piar Devi-PW-3 as also her parents. The High Court has also correctly appreciated the medical evidence available on record especially the deposition and the report of PW-8-Dr. Suresh Bansal, the relevant portion of whose report reads as under: “...On examination I found that the female child had not started menstruating. There was painful separation of thighs. No marks of violence were present. Clotted blood was present on labia majora and on thighs. Secondary sexual characters were developed. Breasts were developed according to age. Pubic and axillary hairs were present but were scanty. Hymen was freshly fractured. Posterior fourchette was torn. The chid admitted one little finger with pain. The vagina was congested..... Injury mentioned in MLC Ext. PW-8/C appeared on the prosecutrix was subject to sexual intercourse...” 19. The prosecutrix was between 9 to 12 years according to the deposition of PW-9-Dr. D.C. Negi and deposition of PW- 13 who proved her date of birth to be 13th April, 1982. The presence of human blood on the cap with which the appellant appears to have wiped the blood after the sexual assault is also an incriminating circumstance which the High Court has rightly taken into consideration while finding the appellant guilty. We, therefore, see no reason to interfere with the order of conviction as recorded by High Court on merits. 20. Coming then to the question of reference to the Juvenile Justice Board, we are of the view that such a reference is unnecessary at this distant point of time. The appellant is nearly 36 years old by now and a father of three children. He has already undergone nearly three years of imprisonment awarded to him by the High Court. In the circumstances, reference to the Juvenile Justice Board at this stage of his life would, in our opinion, serve no purpose. The only option available is to direct his release from custody. 21. In the result, we dismiss criminal appeal arising out of SLP (Crl.) No.5059 of 2012 directed against the order of the High Court dated 8th April, 2010 and uphold the conviction of the appellant for the offence under Section 376 IPC.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 628-629 OF 2013
(Arising out of S.L.P (Crl.) Nos.5059-60 of 2012)
Bharat Bhushan …Appellant
Versus
State of Himachal Pradesh …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. Delay condoned.
2. Leave granted.
3. These appeals arise out of judgments and orders dated
8
th April, 2010 and 30th April, 2010 passed by the High Court
of Himachal Pradesh at Shimla whereby Criminal Appeal
No.406 of 1995 has been allowed, the order of acquittal
1Page 2
passed by the trial Court set aside, the appellant convicted
for an offence punishable under Section 376 of the Indian
Penal Code and sentenced to undergo rigorous imprisonment
for a period of five years besides a fine of Rs.50,000/-. In
default of payment of fine, the appellant has been directed to
undergo further imprisonment for a period of one year.
4. The appellant was charged with commission of an
offence of rape upon a girl hardly 11 years old while she was
working in the fields along with another girl aged around 10
years in Village Kanda, District Shimla, Himachal Pradesh. At
the trial, the prosecution examined not only the prosecutrix
who supported the charge but also other witnesses including
PW-2-her companion whose name is withheld to protect her
identity and who had escaped an attempted assault by the
co-accused, Dinesh Kumar. An alarm raised by PW-2
appears to have attracted the attention of PW-3-Piar Devi,
mother of PW-2, who had rushed to the spot to rescue the
girls, whereupon both the accused appears to have fled
away. PW-5-Misru-the father of the prosecutrix and PWs-7, 8
and 9 namely Dr. Ajay Negi, Dr. Suresh Bansal and Dr. D.C.
2Page 3
Negi were also examined at the trial all of whom have
supported the prosecution case in their respective
depositions. The trial Court, however, came to the conclusion
that the prosecution had failed to prove its case against the
appellant, the deposition of the witnesses mentioned above
notwithstanding and, accordingly, acquitted both the accused
persons of the charges framed against them.
5. Criminal Appeal No.406 of 1995 was then filed by the
State of Himachal Pradesh against the order of acquittal to
assail the view taken by the trial Court qua the appellant as
also his companion Dinesh Kumar. The High Court has by its
judgment and order dated 8th April, 2010 allowed the appeal
in part, reversed the view taken by the trial Court and
convicted the appellant for rape, punishable under Section
376 of the Indian Penal Code. As regards Dinesh Kumar, the
High Court was of the view that the order of acquittal passed
in his favour was justified. The High Court was of the view
that the prosecution story was reliable and inspired
confidence not only because of the inherent worth of the
deposition of the prosecutrix but also because of the fact that
3Page 4
her story was fully corroborated by PW-2, the other girl who
escaped from the clutches of Dinesh Kumar, the co-accused
and that of PW-3 Piar Devi who had rushed to the place of
occurrence to rescue the victim after hearing an alarm raised
by her daughter. More importantly, the High Court found
that the deposition of Dr. Suresh Bansal who had examined
the prosecutrix establish the commission of rape upon the
victim. The appellant was on such re-appraisal of evidence
convicted under Section 376 of the Indian Penal Code.
6. The High Court next examined the question of sentence
to be awarded to the appellant and by separate order dated
30th April, 2010 sentenced the appellant to rigorous
imprisonment for five years and a fine of Rs.50,000/- and a
default sentence of one year as already noticed above. What
is important is that while doing so the High Court noticed and
rejected the contention urged on behalf of the appellant that
he was only 16 years and 4 months old at the time offence
was committed, hence, entitled to the benefit of provisions of
Section 20 of the Juvenile Justice (Care and Protection of
Children) Act, 2000. Relying upon the decision of a
4Page 5
Constitution Bench of this Court in Pratap Singh v. State
of Jharkhand and Anr. (2005) 3 SCC 551, the High Court
held that the benefit of the Act was not legally available to
the petitioner.
7. The High Court also relied upon the decisions of this
Court in Jameel v. State of Maharashtra (2007) 11 SCC
420, where this Court held that since the appellant in that
case had completed 16 years of age as on the date of the
occurrence, the Juvenile Justice (Care and Protection of
Children) Act, 2000, Act had no application. Reliance was
also placed by the High Court upon the decision of this Court
in Ranjit Singh v. State of Haryana (2008) 9 SCC 453
where this Court had relying upon the Judgment in Jameel’s
case (supra) rejected the contention that the petitioner was
entitled to the benefit of Juvenile Justice (Care and
Protection of Children) Act, 2000, since he was below 18
years as on the date of the commission of the offence. In
conclusion, the High Court held that Section 20 of the 2000
Act was inapplicable since the accused was over 16 years of
age at the time of commission of the offence i.e. 22nd June,
5Page 6
1993 and over 18 years of age on 01-04-2001, the date
when the 2000 Act came into force. The present appeal filed
by the appellant assails the correctness of the above two
orders as already noticed earlier.
8. We have heard learned Counsel for the parties at some
length. The legal position regarding the entitlement of the
appellant who was more than 16 years but less than 18
years of age as on the date of commission of the offence on
22nd June, 1993, is in our view settled by the decision of this
Court in Hari Ram v. State of Rajasthan (2009) 13 SCC
211. This Court has in that case traced the history of the
legislation and reviewed the entire case law on the subject.
Relying upon the decision of the Constitution Bench of this
Court in Pratap Singh’s case (supra), this Court in Hari
Ram’s case (supra) reiterated that the question of juvenility
of a person in conflict with law has to be determined by
reference to the date of the incident and not the date on
which cognizance is taken by the Magistrate. Having said
that, this Court held that the effect of the pronouncement in
Pratap Singh’s case (supra) on the second question, viz.
6Page 7
whether the 2000 Act was applicable in a case where the
proceedings were initiated under the 1986 Act and were
pending when the 2000 Act came into force, stood
neutralised by the amendments to Juvenile Justice (Care and
Protection of Children) Act, 2000, by Act 33 of 2006. The
amendments made the provisions of the Act applicable even
to juveniles who had not completed the age of 18 years on
the date of the commission of offence said this Court.
Speaking for the Court Altamas Kabir, J. (as His Lordship
then was) observed:
“58. Of the two main questions decided in Pratap
Singh case, one point is now well established that
the juvenility of a person in conflict with law has to
be reckoned from the date of the incident and not
from the date on which cognizance was taken by the
Magistrate. The effect of the other part of the
decision was, however, neutralised by virtue of the
amendments to the Juvenile Justice Act, 2000, by
Act 33 of 2006, whereunder the provisions of the
Act were also made applicable to juveniles who had
not completed eighteen years of age on the date of
commission of the offence.
59. The law as now crystallised on a conjoint
reading of Sections 2(k), 2(l), 7-A, 20 and 49 read
with Rules 12 and 98, places beyond all doubt that
all persons who were below the age of 18 years on
the date of commission of the offence even prior to
1-4-2001, would be treated as juveniles, even if the
claim of juvenility was raised after they had attained
the age of 18 years on or before the date of
commencement of the Act and were undergoing
sentence upon being convicted.
xxxxxxxxx
7Page 8
xxxxxxxxx
68. Accordingly, a juvenile who had not completed
eighteen years on the date of commission of the
offence was also entitled to the benefits of the
Juvenile Justice Act, 2000, as if the provisions of
Section 2(k) had always been in existence even
during the operation of the 1986 Act.”
9. These decisions have been followed in several other
subsequent pronouncements of this Court including the
decisions of this Court in Raju and Anr. v. State of Haryana
(2010) 3 SCC 235, Dharambir v. State (NCT of Delhi) and
Anr. (2010) 5 SCC 344, Mohan Mali and Anr. v. State of
M.P. (2010) 6 SCC 669, Jitendra Singh @ Babboo Singh
and Anr. v. State of U.P. (2010) 13 SCC 523, Daya Nand
v. State of Haryana (2011) 2 SCC 224, Shah Nawaz v.
State of U.P. and Anr. (2011) 13 SCC 751 and Amit Singh
v. State of Maharashtra and Anr. (2011) 13 SCC 744.
10. The attention of the High Court was, it is obvious, not
drawn to the decision in Hari Ram’s case (supra), although
the same was pronounced on 5th May, 2009 i.e. almost a
year earlier to the pronouncement of the impugned
judgment in this case. Be that as it may, as on the date the
offence was committed the appellant was admittedly a
8Page 9
juvenile having regard to the provisions of Sections 2(k),
2(l), 7-A, 20 and 49 read with Rules 12 and 98 of the Rules
framed under the Juvenile Justice (Care and Protection of
Children) Act, 2000. He was, therefore, entitled to the
benefit of the said provision, which benefit, it is evident, has
been wrongly denied by the High Court only because the
High Court remained oblivious of the pronouncement of this
Court in Hari Ram’s case (supra).
11. The question then is whether the High Court could have
at all recorded a conviction against the appellant who as seen
above was a juvenile on the date of the commission of the
offence. The answer to that question, in our opinion, lies in
Section 20 of the 2000 Act which reads as under:
“20. Special provision in respect of pending
cases.- Notwithstanding anything contained in this
Act, all proceedings in respect of a juvenile pending
in any court in any area on the date on which this
Act comes into force in that area, shall be continued
in that court as if this Act had not been passed and
if the court finds that the juvenile has committed an
offence, it shall record such finding and instead of
passing any sentence in respect of the juvenile,
forward the juvenile to the Board which shall pass
orders in respect of that juvenile in accordance with
the provisions of this Act as if it had been satisfied
on inquiry under this Act that a juvenile has
committed the offence.
9Page 10
Provided that the Board may, for any adequate and
special reason to be mentioned in the order, review
the case and pass appropriate order in the interest
of such juvenile.
Explanation.- In all pending cases including trial,
revision, appeal or any other criminal proceedings in
respect of a juvenile in conflict with law, in any
court, the determination of juvenility of such a
juvenile shall be in terms of Clause (1) of Section 2,
even if the juvenile ceases to be so on or before the
date of commencement of this Act and the
provisions of this Act shall apply as if the said
provisions had been in force, for all purposes and at
all material times when the alleged offence was
committed.”
12. The above makes it manifest that proceedings pending
against a juvenile in any Court as on the date the 2000 Act
came into force had to continue as if the 2000 Act had not
been enacted. More importantly Section 20 (supra) obliges
the Court concerned to record a finding whether the juvenile
has committed any offence. If the Court finds the juvenile
guilty, it is required under the above provision to forward the
juvenile to the Board which would then pass an order in
accordance with the provisions of the Act as if it had been
satisfied on enquiry under the Act that the juvenile had
committed an offence.
13. Even in Pratap Singh’s case (supra), this Court had
interpreted Section 20 of the 2000 Act, and held that Section
10Page 11
20 was attracted to cases where the person, if male, had
ceased to be a juvenile under the 1986 Act being more than
16 years of age but had not yet crossed the age of 18 years.
This Court declared that it was only in such cases that
Section 20 was attracted and the Court required to record its
conclusion as to the guilt or innocence of the accused. This
Court observed:
“31. Section 20 of the Act as quoted above deals
with the special provision in respect of pending
cases and begins with non-obstante clause. The
sentence "Notwithstanding anything contained in
this Act all proceedings in respect of a juvenile
pending in any Court in any area on date of which
this Act came into force" has great significance. The
proceedings in respect of a juvenile pending in any
court referred to in Section 20 of the Act is relatable
to proceedings initiated before the 2000 Act came
into force and which are pending when the 2000 Act
came into force. The term "any court" would include
even ordinary criminal courts. If the person was a
"juvenile" under the 1986 Act the proceedings would
not be pending in criminal courts. They would be
pending in criminal courts only if the boy had
crossed 16 years or girl had crossed 18 years. This
shows that Section 20 refers to cases where a
person had ceased to be a juvenile under the 1986
Act but had not yet crossed the age of 18 years then
the pending case shall continue in that Court as if
the 2000 Act has not been passed and if the Court
finds that the juvenile has committed an offence, it
shall record such finding and instead of passing any
sentence in respect of the juvenile, shall forward the
juvenile to the Board which shall pass orders in
respect of that juvenile.”
(emphasis
supplied)
11Page 12
14. Reference may also be made to the decision of this
Court in Bijender Singh v. State of Haryana and Anr.
(2005) 3 SCC 685, where this Court reiterated the legal
position while interpreting the provisions of the Act and said:
“8. One of the basic distinctions between the 1986
Act and the 2000 Act relates to age of males and
females. Under the 1986 Act, a juvenile means a
male juvenile who has not attained the age of 16
years, and a female juvenile who has not attained
the age of 18 years. In the 2000 Act, the distinction
between male and female juveniles on the basis of
age has not been maintained. The age-limit is 18
years for both males and females.
9. A person above 16 years in terms of the 1986 Act
was not a juvenile. In that view of the matter the
question whether a person above 16 years becomes
“juvenile” within the purview of the 2000 Act must
be answered having regard to the object and purport
thereof.
10. In terms of the 1986 Act, a person who was not
juvenile could be tried in any court. Section 20 of
the 2000 Act takes care of such a situation stating
that despite the same the trial shall continue in that
court as if that Act has not been passed and in the
event, he is found to be guilty of commission of an
offence, a finding to that effect shall be recorded in
the judgment of conviction, if any, but instead of
passing any sentence in relation to the juvenile, he
would be forwarded to the Juvenile Justice Board (in
short the 'Board') which shall pass orders in
accordance with the provisions of the Act as if it has
been satisfied on inquiry that a juvenile has
committed the offence. A legal fiction has, thus,
been created in the said provision...
xx xx xx
12. Thus, by reason of legal fiction, a person,
although not a juvenile, has to be treated to be one
by the Board for the purpose of sentencing which
takes care of a situation that the person although
not a juvenile in terms of the 1986 Act but still
12Page 13
would be treated as such under the 2000 Act for the
said limited purpose.”
(emphasis supplied)
15. Section 20 of the 2000 Act fell for interpretation even in
Dharambir v. State (NCT of Delhi) (2010) 5 SCC 344,
where too this Court held that the explanation appended to
the same enables the Court to determine the juvenility of the
accused even after conviction and that the Court can while
maintaining the conviction set aside the sentence imposed
upon him and to forward the case to the Board for passing
an appropriate order under the Act. This Court observed:
“11. It is plain from the language of the Explanation
to Section 20 that in all pending cases, which would
include not only trials but even subsequent
proceedings by way of revision or appeal, etc., the
determination of juvenility of a juvenile has to be in
terms of Clause (l) of Section 2, even if the juvenile
ceases to be a juvenile on or before 1st April, 2001,
when the Act of 2000 came into force, and the
provisions of the Act would apply as if the said
provision had been in force for all purposes and for
all material times when the alleged offence was
committed. Clause (l) of Section 2 of the Act of
2000 provides that "juvenile in conflict with law"
means a "juvenile" who is alleged to have
committed an offence and has not completed
eighteenth year of age as on the date of commission
of such offence. Section 20 also enables the Court to
consider and determine the juvenility of a person
even after conviction by the regular Court and also
empowers the Court, while maintaining the
conviction, to set aside the sentence imposed and
forward the case to the Juvenile Justice Board
13Page 14
concerned for passing sentence in accordance with
the provisions of the Act of 2000.”
16. The above position was restated in Daya Nand v.
State of Haryana (2011) 2 SCC 224 and Kalu @ Amit v.
State of Haryana (2012) 8 SCC 34.
17. In the present case, the appellant was not a juvenile
under the 1986 Act as he had crossed the age of 16 years.
This case was, however, pending before the High Court in
appeal on the date the 2000 Act came into force and had,
therefore, to be dealt with under Section 20 of the Act which
required the High Court to record a finding about the guilt of
the accused but stop short of passing an order of sentence
against him. Inasmuch as the High Court convicted the
appellant, it did not commit any mistake for the power to do
so was clearly available to the High Court under the
provisions of Section 20. What was not permissible was
passing of a sentence for which purpose the High Court was
required to forward the juvenile to the Juvenile Board
constituted under the Act. The order of sentence is,
therefore, unsustainable and shall have to be set aside. 
14Page 15
18. The next question then is
whether the conviction
recorded by the High Court was justified on merits and, if it
was, whether we ought to refer the appellant to the Juvenile
Justice Board at this stage.
Our answer is in the affirmative
qua the first part and negative qua the second. 
The High
Court has, in our opinion, properly appreciated the evidence
on record especially the deposition of the prosecutrix, her
companion PW-2 and her aunt Piar Devi-PW-3 as also her
parents. The High Court has also correctly appreciated the
medical evidence available on record especially the
deposition and the report of PW-8-Dr. Suresh Bansal, the
relevant portion of whose report reads as under:
“...On examination I found that the female child had
not started menstruating. There was painful
separation of thighs. No marks of violence were
present. Clotted blood was present on labia majora
and on thighs. Secondary sexual characters were
developed. Breasts were developed according to
age. Pubic and axillary hairs were present but were
scanty. Hymen was freshly fractured. Posterior
fourchette was torn. The chid admitted one little
finger with pain. The vagina was congested.....
Injury mentioned in MLC Ext. PW-8/C appeared on
the prosecutrix was subject to sexual intercourse...”
19. The prosecutrix was between 9 to 12 years according to
the deposition of PW-9-Dr. D.C. Negi and deposition of PW-
15Page 16
13 who proved her date of birth to be 13th April, 1982. The
presence of human blood on the cap with which the appellant
appears to have wiped the blood after the sexual assault is
also an incriminating circumstance which the High Court has
rightly taken into consideration while finding the appellant
guilty. We, therefore, see no reason to interfere with the
order of conviction as recorded by High Court on merits.
20. Coming then to the question of reference to the
Juvenile Justice Board, we are of the view that such a
reference is unnecessary at this distant point of time. The
appellant is nearly 36 years old by now and a father of three
children. He has already undergone nearly three years of
imprisonment awarded to him by the High Court. In the
circumstances, reference to the Juvenile Justice Board at this
stage of his life would, in our opinion, serve no purpose. The
only option available is to direct his release from custody. 
21. In the result, we dismiss criminal appeal arising out of
SLP (Crl.) No.5059 of 2012 directed against the order of the
High Court dated 8th April, 2010 and uphold the conviction of
the appellant for the offence under Section 376 IPC. Criminal
16Page 17
appeal arising out of SLP (Crl.) No.5060 of 2012 is, however,
allowed and the order dated 30th April, 2010 passed by the
High Court is set aside with a direction that the appellant
shall be released from custody unless he is required in
connection with any other case.
….……………...…………J.
(T.S. THAKUR)
……….………...……...…J.
(DIPAK MISRA)
New Delhi
April 26, 2013
17

Section 14(3)(c) does not require that the building plans should have been duly sanctioned by the local authorities as a condition precedent to the entitlement of the landlord for eviction of the tenant. = availability of building plans duly sanctioned by the local authorities is not an ingredient of Section 14(3)(c) of the Act and, therefore, could not be a condition precedent to the entitlement of the landlord for eviction of the tenant, but depending on the facts and circumstances of each case, the Court may look into the availability of building plans duly sanctioned by the local authorities for the purpose of determining the bonafides of the landlord. once the High Court maintained the order of eviction passed by the Controller under Section 14(4) of the Act, the tenants were obliged to give vacant possession of the building to the landlord and could only ask for reasonable time to deliver vacant possession of the building to the landlord and hence the direction of the High Court that the order of eviction could only be executed on the revised plan of the building being approved was clearly contrary to the provisions of Section 14(4) of the Act and the proviso thereto. We accordingly allow the appeals, set aside the directions in Para 27 of the impugned judgment of the High Court, but grant time to the respondents to vacate the building within three months from today. We make it clear that it will be open for the respondents to apply for re-entry into the building in accordance with the proviso to clause (c) of Section 14(3) of the Act introduced by the Amendment Act, 2009. Considering, however, the peculiar facts and circumstances of the cases, there shall be no order as to costs.

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4127 OF 2013
(Arising out of SLP (C) No. 30 of 2012)
Hari Dass Sharma … Appellant
Versus
Vikas Sood & Ors. … Respondents
WITH
CIVIL APPEAL No. 4128 OF 2013
(Arising out of SLP (C) No.776 of 2012)
Hari Dass Sharma … Appellant
Versus
Kesri Devi & Ors. … Respondents
AND
CIVIL APPEAL No. 4129 OF 2013
(Arising out of SLP (C) No.888 of 2012)
Hari Dass Sharma … Appellant
Versus
Shiv Prashad … Respondent
J U D G M E N T
A. K. PATNAIK, J.Page 2
Leave granted.
2. These are appeals against the common order dated
02.09.2011 of the High Court of Himachal Pradesh in Civil
Revision Nos.179, 180 and 181 of 2008.
3. The facts very briefly are that the appellant let out
shops in premises No.5 Cart Road, Shimla (for short
“the building”) to the respondents. 
The appellant
filed applications under Section 14 of the H.P. Urban
Rent Control Act, 1987 (for short “the Act”) before
the Rent Controller, Shimla, for eviction of the
respondents from the building on grounds inter alia
that he bona fide required the building for purposes
of addition and alteration of the building or
rebuilding.
The respondents filed their replies before
the Rent Controller denying that the appellant
required the building for additions and alterations or
rebuilding. The Rent Controller framed an issue as to
whether the building was required bona fide by the
appellant for rebuilding or reconstruction. 
The
appellant examined an official of the Municipal
Corporation, Shimla, in support of his case that a plan
2Page 3
for rebuilding/ reconstruction had been sanctioned
and also a Civil Engineer in support of his case that
the building was in dilapidated condition and required
to be reconstructed. The Rent Controller after
considering the oral and documentary evidence on
record held that though the sanction plan of the
building was not a requirement of the Act, it is a
circumstance to establish the bonafide of the
appellant to seek eviction for the purpose of
rebuilding or reconstruction and also held that the
building was old and the appellant was in the
occupation of second floor of the building and for
rebuilding or reconstruction, the respondents have to
vacate the building and accordingly allowed the
applications of the appellant for eviction of the
respondents from the building. The respondents filed
appeals before the Appellate Authority, Shimla
against the order of eviction but the Appellate
Authority dismissed the appeals.
4. The respondents then filed the Civil Revisions before
the High Court and by the impugned common order
3Page 4
maintained the orders of eviction but relying on the
decision of this Court in Harrington House School v.
S.M. Ispahani & Anr. [(2002) 5 SCC 229] directed that
only on the valid revised/renewed building plan being
sanctioned by the competent authority, the order of
eviction shall be available for execution.
The High
Court further directed in the impugned order that the
valid revised/renewed sanctioned or approved
building plan shall be produced before the executing
court whereupon the executing court shall allow a
reasonable time to the tenants for vacating the
property and delivering possession to the landlord
and till then the tenant shall remain liable to pay
charges for use and occupation of the premises at
the rate at which they were being paid earlier.
Aggrieved, the appellant has filed these appeals.
5. Mr. Nidesh Gupta, learned counsel appearing for the
appellant, submitted that Section 14(4) of the Act
provides that if the Controller is satisfied that the
claim of the landlord is bonafide, he shall make an
order directing the tenant to put the landlord in
4Page 5
possession of the building on such date as may be
specified by the Controller and the proviso to Section
14(4) of the Act says that the Controller may give the
tenant a reasonable time for putting the landlord in
possession of the building and may extend such time
not exceeding three months in the aggregate. He
submitted that Section 14(4) of the Act thus makes it
clear that the order of eviction once passed by the
Controller will have to be executed and that the
direction of the High Court in the impugned order
that the order of eviction will not be executed till
such time as the building plan is sanctioned for
rebuilding or reconstruction of the tenanted building
is contrary to the bare provision in Section 14(4) of
the Act.
He submitted that in Harrington House
School v. S.M. Ispahani & Anr. (supra), on which the
High Court has relied on in the impugned judgment,
this Court decided the dispute between the landlord
and the tenant under the provisions of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960
and it had not considered the effect of the proviso to
5Page 6
Section 14(4) of the Act whereunder the Controller
had the power to grant in the aggregate three
months time to put the landlord in possession of the
tenanted premises. He cited the decision of this
Court in Shri Balaganesan Metals v. M.N.
Shanmugham Chetty & Ors. [1987) 2 SCC 707],
wherein this Court, while considering the proviso to
Section 10(3)(c) of the Tamil Nadu Buildings (Lease
and Rent Control) Act, 1960, similar to the proviso to
Section 14(4) of the Act, held that the proviso
empowers the Controller to grant adequate time to
the tenant upto a maximum of three months to
vacate the building and secure accommodation
elsewhere. He also relied on the decision of this
Court in J. Jermons v. Aliammal & Ors. [(1999) 7 SCC
382] in which it has been similarly held that a tenant
is entitled under Section 10(3)(c) of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960 to be
granted reasonable time for putting the landlord in
possession of the building, which may be extended
6Page 7
from time to time upto the maximum period of three
months.
6. In reply, Mr. Dhruv Mehta, learned counsel appearing
for the respondents, submitted that the provisions of
the Tamil Nadu Buildings (Lease and Rent Control)
Act, 1960 as well as the provisions of the H.P. Urban
Rent Control Act, 1987 (“the Act”) are analogous and,
therefore, the decision of this Court in Harrington
House School v. S.M. Ispahani & Anr. (supra) will
apply to a case arising under the Act and the High
Court rightly relied on the decision in Harrington
House School v. S.M. Ispahani & Anr. (supra) in which
this Court directed that the order of eviction will not
be executed until the plan for the building was
sanctioned. He further submitted that in any case
under the proviso to Section 14(4) of the Act the
Controller has power to give to the tenant a
‘reasonable time’ for putting the landlord in
possession of the building and it is only on expiry of
such reasonable time that the Controller may extend
the time not exceeding three months in any case. He
7Page 8
submitted that the power of the Controller to grant
reasonable time to the tenant for putting the landlord
in possession of the building is different from the
power of the Controller to extend such time not
exceeding three months. He submitted that the
expression ‘reasonable time’ to be given to the
tenant for putting the landlord in possession of the
building will depend upon the facts of each case and
in the facts of the present case, the High Court has
granted time upto the time of sanction of the plan for
rebuilding or reconstruction of the building. In this
context, he submitted that the sanctioned plan for
reconstruction of the building has lapsed and as the
building regulations for areas within the city limits of
Shimla have undergone drastic changes, it is not
permissible for the appellant to reconstruct the
building as per the sanction originally granted. He
submitted that in Jagat Pal Dhawan v. Kahan Singh
(dead) by L.Rs. & Ors. [(2003) 1 SCC 191] this Court,
while interpreting clause (c) of sub-section (3) of
Section 14 of the Act, has observed that while
8Page 9
adjudicating an eviction petition on the ground that
the building is bona fide required by the landlord for
reconstruction, the Court may look into the condition
of building, availability of necessary funds and
whether building plans have been sanctioned by the
local authority in order to assess the bona fide of the
landlord, even if the Act does not require these
aspects to be considered. He submitted that,
therefore, unless the appellant produces the revised
sanctioned plan before the executing court, the order
of eviction cannot be executed as rightly directed by
the High Court and this is not a case for interference
with the impugned order of the High Court. He finally
submitted that by the Himachal Pradesh Urban Rent
Control (Amendment) Act, 2009 (for short ‘the
Amendment Act, 2009’) a new proviso has been
added in clause (c) of Section 14(3) stating that the
tenant evicted under clause (c) of Section 14(3) of
the Act shall have the right to re-enter on new terms
of tenancy, on the basis of mutual agreement
between the landlord and the tenant, to the premises
9Page 10
in the rebuilt building equivalent in area to the
original premises for which he was a tenant. He
submitted that since the eviction orders passed by
the Controller in this case are under Section 14(3)(c)
of the Act, the respondents are entitled to re-entry as
per this proviso inserted by the Amendment Act,
2009.
7. Before considering the submissions of the learned
counsel for the parties, we may have a look at clause
(c) of sub-section (3) and sub-section (4) of Section
14 of the Act. These provisions, as they stood before
the Amendment Act, 2009, when the Controller
passed the orders of eviction, are extracted
hereinbelow:
“14. Eviction of tenants – 
(1) ………………
(2) ………………
(3) A landlord may apply to the Controller
for an order directing the tenant to put
the landlord in possession: 
(a) ……………….
(b) ……………….
(c) in the case of any building or
rented land, if he requires it to carry
1Page 11
out any building work at the
instance of the Government or local
authority or any Improvement Trust
under some improvement or
development scheme or if it has
become unsafe or unfit for human
habitation or is required bona fide
by him for carrying out repairs which
cannot be carried out without the
building or rented land being
vacated or that the building or
rented land is required bona fide by
him for the purpose of building or rebuilding or making thereto any
substantial additions or alterations
and that such building or re-building
or addition or alteration cannot be
carried out without the building or
rented land being vacated.
(4) The Controller shall, if he is satisfied
that the claim of the landlord is bona fide,
make an order directing the tenant to put
the landlord in possession of the building
or rented land on such date as may be
specified by the Controller and if the
Controller is not so satisfied he shall
make an order rejecting the application: 
Provided that the Controller may
give the tenant a reasonable time for
putting the landlord in possession of the
building or rented land and may extend
such time not exceeding three months in
the aggregate.”
8. A reading of clause (c) of sub-section (3) of Section
14 of the Act would show that a landlord may apply to the
Controller for an order directing the tenant to put the
1Page 12
landlord in possession in case of any building if it is
required bona fide by him for the purpose of building or
rebuilding or making thereto any substantial additions or
alterations and that such building or rebuilding or addition
or alteration cannot be carried out without the building
being vacated.
In Jagat Pal Dhawan v. Kahan Singh (dead)
by L.Rs. & Ors. (supra), this Court had the occasion to
consider the provisions of Section 14(3)(c) of the Act and
R.C. Lahoti J. writing the judgment for the Court held that
Section 14(3)(c) does not require that the building plans
should have been duly sanctioned by the local authorities
as a condition precedent to the entitlement of the landlord
for eviction of the tenant. 
To quote from the judgment of
this Court in Jagat Pal Dhawan v. Kahan Singh (dead) by
L.Rs. & Ors. (supra):
“The provision also does not lay down
that the availability of requisite funds and
availability of building plans duly
sanctioned by the local authority must be
proved by the landlord as an ingredient of
the provision or as a condition precedent
to his entitlement to eviction of the
tenant. However still, suffice it to
observe, depending on the facts and
circumstances of a given case, the court
may look into such facts as relevant,
1Page 13
though not specifically mentioned as
ingredient of the ground for eviction, for
the purpose of determining the bona fides
of the landlord. If a building, as
proposed, cannot be constructed or if the
landlord does not have means for
carrying out the construction or
reconstruction obviously his requirement
would remain a mere wish and would not
be bona fide.”
It will be clear from the aforesaid passage that this Court
has held that availability of building plans duly sanctioned
by the local authorities is not an ingredient of Section
14(3)(c) of the Act and, therefore, could not be a condition
precedent to the entitlement of the landlord for eviction of
the tenant, but depending on the facts and circumstances
of each case, the Court may look into the availability of
building plans duly sanctioned by the local authorities for
the purpose of determining the bonafides of the landlord.
9. In the present case, the Controller has held in the
orders of eviction that the appellant had admittedly
obtained sanction from the Municipal Corporation, Shimla
and that the building was an old one and that the
appellant was occupying the second floor of the building
and that rebuilding or reconstruction cannot be carried out
1Page 14
without the building being vacated by the respondents.
The Controller has accordingly arrived at a satisfaction
that the appellant bonafide requires the building for the
purpose of building or rebuilding and has accordingly
issued the direction in terms of sub-section (4) read with
clause (c) of sub-section (3) of Section 14 of the Act to the
respondents to put the appellant in possession of the
building. This order of the Controller was challenged by
the respondents in appeal but the Appellate Authority has
dismissed the appeal. Thereafter, the respondents filed
the Civil Revisions before the High Court challenging the
orders of the Controller and the orders of the Appellate
Authority, and the High Court has in the impugned
common order maintained the orders passed by the
Controller and the Appellate Authority subject to the
modifications mentioned in para 27 of its order. Para 27
of the impugned order of the High Court is quoted
hereinbelow:
“Accordingly, in view of the observations
and discussions made hereinabove, there
is no merit in the petition and the same is
dismissed. However, in the interest of
justice, in view of the judgment rendered
1Page 15
by their Lordships of the Hon’ble
Supreme Court in Harrington House
School v. S.M. Ispahani & Another (2002)
5 SCC 229, though the orders passed by
both the authorities are upheld/sustained,
however, it is directed that only on the
valid revised/ renewed building plan
being sanctioned by the competent
authority, the order of eviction shall be
available for execution. The valid
revised/ renewed sanctioned or approved
building plan shall be produced before
the executing court whereupon the
executing court shall allow a reasonable
time to the tenants for vacating the
property and delivering possession to the
landlord. Till then the tenant shall remain
liable to pay charges for use and
occupation of the premises at the same
rate at which they are being paid earlier.
Subject to these modifications, the orders
passed by both the authorities below are
maintained. No costs.” 
10. We also find that the respondents challenged the
impugned order of the High Court separately in Special
Leave Petition (Civil) Nos. 14028 and 2971 of 2012, but
this Court dismissed the Special Leave Petitions of the
respondents. The result is that the findings of the
Controller regarding the claim of the appellants for
eviction of the respondents on the ground that the
appellant bonafide requires the building for rebuilding or
reconstruction as affirmed by the appellate authority and
1Page 16
the High Court have become final could not be reopened
on any ground whatsoever and the respondents cannot
now contend that the appellant cannot any longer
construct or reconstruct the building on account of drastic
changes in the building regulations within the city limits of
Shimla.
11. In fact, the only question that we have to decide in
this appeal filed by the appellant is 
whether the High
Court could have directed that only on the valid
revised/renewed building plant being sanctioned by the
competent authority, the order of eviction shall be
available for execution. 
The High Court has relied on the
decision of this Court in Harrington House School v. S.M.
Ispahani & Anr. (supra) and we find in that case that the
landlords were builders by profession and they needed the
suit premises for the immediate purpose of demolition so
as to construct a multi-storey complex and the tenants
were running a school in the tenanted building in which
about 200 students were studying and 15 members of the
teaching staff and 8 members of the non-teaching staff
were employed and the school was catering to the needs
1Page 17
of children of non-resident Indians. 
This Court found that
although the plans of the proposed construction were
ready and had been tendered in evidence, the plans had
not been submitted to the local authorities for approval
and on these facts, R.C. Lahoti, J, writing the judgment for
the Court, while refusing to interfere with the judgment of
the High Court and affirming the eviction order passed by
the Controller, directed that the landlords shall submit the
plans of reconstruction for approval of the local authorities
and only on the plans being sanctioned by the local
authorities, a decree for eviction shall be available for
execution and further that such sanctioned plan or
approved building plan shall be produced before the
executing court whereupon the executing court shall allow
a reasonable time to the tenant for vacating the property
and delivering the possession to the landlord and till then
the tenants shall remain liable to pay charges for use and
occupation of the said premises at the same rate at which
they are being paid. 
In the present case, on the other
hand, as we have noted, the Rent Controller while
determining the bonafides of the appellant-landlord has
1Page 18
recorded the finding that the landlord had admittedly
obtained the sanction from the Municipal Corporation,
Shimla, and has accordingly passed the order of eviction
and this order of eviction has not been disturbed either by
the Appellate Authority or by the High Court as the
Revision Authority. 
In our considered opinion, once the
High Court maintained the order of eviction passed by the
Controller under Section 14(4) of the Act, the tenants were
obliged to give vacant possession of the building to the
landlord and could only ask for reasonable time to deliver
vacant possession of the building to the landlord and
hence the direction of the High Court that the order of
eviction could only be executed on the revised plan of the
building being approved was clearly contrary to the
provisions of Section 14(4) of the Act and the proviso
thereto. 
12. We accordingly allow the appeals, set aside the
directions in Para 27 of the impugned judgment of the
High Court, but grant time to the respondents to vacate
the building within three months from today. We make it
clear that it will be open for the respondents to apply for
1Page 19
re-entry into the building in accordance with the proviso to
clause (c) of Section 14(3) of the Act introduced by the
Amendment Act, 2009. Considering, however, the
peculiar facts and circumstances of the cases, there shall
be no order as to costs. 
.……………………….J.
(A. K. Patnaik)
………………………..J.
(Gyan Sudha Misra)
New Delhi,
April 29, 2013.
1