dying declaration = “Though a dying declaration is entitled and is still recognised by law to be given greater weightage but it has also to be kept in mind that the accused had no chance of cross-examination. Such a right of cross examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists tha the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of the deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.” So far as the statement of PW3 – Prem Chand recorded under Section 161, Cr.P.C. marked as Exh. P6 is concerned, the deceased was only abusing her father in law and that was not even corroborated by PW4 or PW5 and PW3 himself turned hostile. Due to discrepancies and contradictions between the two dying declarations and also in the absence of any other reliable evidence, in our view, the High Court is justified in reversing the order of conviction which calls for no interference by this Court. In view of above, the appeal is, therefore, dismissed.

Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 427 OF 2007
State of Rajasthan … Appellant
Versus
Shravan Ram & Anr. … Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. This is an appeal by the State of Rajasthan against the
Judgment in D.B. Criminal Appeal No. 124 of 2001 passed by
the High Court of Rajasthan. The Additional Sessions Judge
convicted the accused persons under Section 302, IPC and
sentenced them for life imprisonment with fine which was
reversed by the High Court and acquitted the accused persons.
2. The prosecution case is as follows:
Guddi, the deceased, was admitted in the hospital on
11.09.1998 with ninety nine per cent burn injuries. Parcha
Page 2
2
Bayan (Ex.P14A) of the deceased was recorded by ASI, Ram
Kishan and signed by SHO Mohan Lal PW13 in the hospital. On
the basis of the said Parcha Bayan, FIR No. 300/98 was
registered at police station Madanganj (Ajmer) against the
accused persons under Section 307, IPC. During treatment,
Guddi died at about 10AM on the same day and the case was
converted into Section 302, IPC. During the course of
investigation, both the accused persons were arrested on
12.09.1998, first accused is the father-in-law and second
accused is the husband. The accused persons denied the
charges and the case went to trial. On the side of the
prosecution 14 witnesses were examined. The Additional
Sessions Judge, placed considerable reliance on the dying
declaration stated to have been made before PW 3 Prem
Chand, a neighbour which find a place in the statement (Ex. P6)
made by him to the police under Section 161 of Cr.P.C. PW3
has stated that the deceased had raised hue and cry after the
burn injuries and abused the father-in-law - Sharvan Ram and
based on the evidence of PW3 and his 161 statement, the
Session Court found the accused persons guilty. Page 3
3
3. Following are the circumstances which weighed with the
Additional Sessions Judge:
(i) That Smt. Guddi, aged 19 years died after two years
of her marriage due to 99% burn injuries after
pouring kerosene on her enlightening match stick,
therefore the death is homicidal.
(ii) Deceased was in the custody of accused appellants
and simply on account of going outside the house
were the ‘occurrence took place’ custody will not be
ceased.
(iii) PW1 Nathu Lal (father), PW2 Kailash (uncle) and
PW13 Smt. Suraj Devi (mother) of the deceased in
their statements have deposed that Smt. Guddi was
not allowed by the accused appellants to go to her
matrimonial home.
(iv) The version of Prem Chand, PW3 in his statement
under Section 161 Cr.P.C. was considered as dying
declaration and not the Parcha Bayan. Reliance was
not placed by Additional Sessions Judge on Parcha
Bayan of deceased. 
(v) That the previous and subsequent conduct of
accused appellants was not satisfactorily explained in
their statements under Section 313 Cr.P.C as
required under Section 8 of the Evidence Act.
(vi) Since the death was caused in the custody of the
accused, therefore, the accused were also
Page 4
4
responsible for proving the fact of burn which was
specifically within their knowledge as required under
Section 106 of the Indian Evidence Act and further
according to Section 114 of the Indian Evidence Act
presumption has to be drawn against accused
appellants.
4. Shri Abhishek Gupta, learned counsel appearing for the
respondents submitted that the High Court has rightly held that
it is not safe to base conviction on the statement of PW 3 –
Prem Chand recorded under Section 161 Cr.P.C., who was
declared hostile. Further, it was also pointed out that in the
statement under Section 161 Cr.P.C., PW3 had not named the
second accused - Pappu Lal, husband of the deceased. Further,
it was also pointed out that PW4 Smt. Choti and PW5 Narayan,
who are neighbours, did not disclose the cause of death and
have not mentioned the names of any of the accused persons
in their evidence. Therefore, the dying declaration made
before Prem Chand remained uncorroborated and the High
Court has rightly held that no reliance could be placed on
uncorroborated dying declaration. Learned counsel, therefore,
submitted that the judgment of the High Court calls for no
interference.
Page 5
5
5. Shri Shoran Mishra, learned counsel appearing for the
State submitted that the High Court has committed an error in
not placing reliance on the evidence of PW3 and the statement
made by him before the Police under Section 161 Cr.P.C.,
wherein the name of the second accused has been mentioned.
Learned counsel also submitted that the High Court has failed
to notice the fact that the deceased was in the custody of the
respondents and therefore the burden of explaining the fact of
burning is on the accused persons. Further, they have failed to
provide any explanation when examined under Section 313
Cr.P.C. Learned counsel also pointed out that the High Court
has not properly appreciated the evidence by PW1 - Nathu lal
(father of the deceased), PW2 - Kailash (uncle of the deceased)
and PW14 – Suraj Devi (mother of the deceased). PW14 in her
deposition stated that the deceased father in law used to say
that Guddi is his wife and she had deposed that her daughter
had told if the above facts were disclosed she would be killed
by burning. Learned counsel, therefore, submitted that the
evidence of PW1, PW2 and PW14 coupled with the statement
made by PW3 would establish the guilt of the respondents and
the trial court has rightly convicted them.
Page 6
6
6. We notice that there is no eye-witness to the occurrence
and the entire case hinges upon few alleged dying declarations
made by the deceased and circumstantial evidence. PW11 –
Dr. P.C. Patni conducted the autopsy and gave report Ex.P14 in
which it is stated that the deceased had 99% burn injuries.
Post mortem was conducted by members of the board and in
their opinion cause of death was hypovolumic shock as a result
of ante-mortem burn and the death had occurred within 24
hours and there was no evidence of suicide or accidental fire
and therefore the case was homicidal.
7. We are in this case concerned with three dying
declarations which are as follows:
(i) ASI Kishan recorded Parcha Bayan of the deceased
which was signed by PW13 Mohan Lal in the presence
of the doctor who also signed the same. Further, the
accused also stated to have affixed his thumb
impression.
(ii) Dying declaration stated to have been made on
11.09.1998 , signed by the Sub-Divisional Magistrate
but neither the said dying declaration had been
exhibited nor the Sub-Divisional Magistrate had been
produced in evidence.Page 7
7
(iii) Dying declaration, as made by the deceased, before
PW 3, Prem Chand, which had been stated by him in
his statement under Section 161, Cr.P.C.
8. We find only two dying declarations are on record, the
second one mentioned above was not brought out in evidence.
Parcha Bayan of the deceased, based on which the case was
registered reads as follows:
“I stay in Maliyon ki Dhani Madanganj. Today morning
at around four-five, I had gone from home to near the
drain adjacent Shivji Temple to ease myself and I was
easing myself when at that time a person wearing
white pant and shirt came. And in his hand there was
a kerosene can, and poured over me. And lighting a
match poured over me. My terecot clothes
immediately caught fire. I fell in the drain and coming
out of the drain reached the house being inflamed and
narrated the whole incident to the family members. I
did not recognize the person. I being inflamed fell in
the drain and coming from the drain came being
inflamed and narrated the whole incident to the family
members, who have brought me to the hospital, my
marriage took place two years back.”Page 8
8
The third dying declaration stated to have been made by the
deceased before PW3 – Prem Chand was referred to in Part A to
B of Ex.P6 reads as follows:
“She was a woman who shouting at the site and was
abusing her father in law Shravan Ram that you be
doomed you ran away setting me on fire.”
9. We may now examine, whether statement of PW3 – Prem
Chand recorded under Section 161, Cr.P.C., marked as Ex.P6
could be accepted as a dying declaration, wherein it was stated
by him that the deceased was raising hue and cry and was
abusing her father in law for ablazing her. PW3 was declared
as hostile. Further, PW4 and PW5, the neighbours, who have
stated to have seen the deceased in a burning state and raising
hue and cry, neither disclosed the cause of death nor
mentioned the names of any of the accused persons.
Consequently, the dying declaration made by Prem Chand
remained uncorroborated. It is trite law that it is unsafe to base
reliance on the statement made under Section 161 Cr.P.C. as
dying declaration without any corroboration. Although
corroboration as such is not essential but it is expedient to
have the same, in order to strengthen the evidentiary value of
Page 9
9
declaration. This court in Arvind Singh v. State of Bihar
(2001) 6 SCC 407 while dealing with the case of oral dying
declaration stated as follows:
“Dying declaration shall have to be dealt with care and
caution. Corroboration is not essential but it is
expedient to have the same, in order to strengthen the
evidentiary value of declaration. Independent
witnesses may not be available but there should be
proper care and caution in the matter of acceptance of
such a statement as trustworthy evidence.”
10. This Court in Bhajju Alias Karan Singh v. State of
Madhya Pradesh (2012) 4 SCC 327 while dealing with
admissibility of dying declaration held as follows:
“The law is well settled that a dying declaration is
admissible in evidence and the admissibility is founded
on the principle of necessity. A dying declaration, if
found reliable, can form the basis of a conviction. A
court of facts is not excluded from acting upon an
uncorroborated dying declaration for finding
conviction. The dying declaration, as a piece of
evidence, stands on the same footing as any other
piece of evidence. It has to be judged and appreciated
in light of the surrounding circumstances and its
weight determined by reference to the principle
Page 10
10
governing the weighing of evidence. If in a given case
a particular dying declaration suffers from any
infirmity, either of its own or as disclosed by the other
evidence adduced in the case or the circumstances
coming to its notice, the court may, as a rule of
prudence, look for corroboration and if the infirmities
are such as would render a dying declaration so infirm
that it pricks the conscience of the court, the same
may be refused to be accepted as forming basis of the
conviction.”
11. Applying the above legal principles and examining the
facts on record, we are of the view that no reliance could be
placed on the statement made by PW3 – Prem Chand under
Section 161 Cr.P.C. before the police in the absence of any
corroboration. Over and above, PW3 has himself turned
hostile.
12. We will now deal with the question whether the dying
declaration stated to have been recorded by ASI Ramkishan,
signed by SHO Mohan Lal (PW13) as well as Dr. Anil Kumar Soni
would be sufficient to base the conviction.Page 11
11
13. First we will examine whether P14-A, Parcha Bayan, which
was converted into dying declaration is made in consonance
with Rule 6.22 of the Rajasthan Police Rules, 1965. Rule 6.22
of the Rajasthan Police Rules, 1965 reads as follows:
“Dying Declarations – (1) A dying declaration shall,
whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if
possible, be examined by medical officer with a view
to ascertaining that he is sufficiently in possession of
his reason to make a lucid statement.
(3) If no Magistrate can be obtained, the declaration
shall, when a gazetted police officer is not present, be
recorded in the presence of two or more reliable
witnesses unconnected with the police department
and with the parties concerned in the case.
(4) If no such witnesses can be obtained without risk of
the injured person dying before his statement can be
recorded, it shall be recorded in the presence of two or
more police officers.
(5) A dying declaration made to a police officer should,
under Section 162, Code of Criminal Procedure, be
signed by the person making it.”
14. We notice, in this case, the above mentioned Rule is
substantially complied with, still in our view no reliance could
Page 12
12
be placed due to lack of corroboration over and above the fact
that even in Ex. P14-A, the deceased had not named the
accused persons. What she stated is that she did not recognize
the person who has ablazed her. Therefore, in the absence of
any corroboration and also not naming any of the accused
persons in Ex.P14A, no reliance could be placed on the same
even though the provision of Rule 6.22 of the Rajasthan Police
Rules, 1965 has been complied with.
15. This Court had occasion to consider the scope of multiple
dying declarations in Smt. Kamla v. State of Punjab (1993)
1 SCC 1, this Court held as follows:
“A dying declaration should satisfy all the necessary
tests and one such important test is that if there are
more than one dying declaration they should be
consistent particularly in material particulars.”
16. In Kishan Lal v. State of Rajasthan (2000) 1 SCC 310,
this Court held has follows:
“Examining these two dying declarations, we find not
only that they gave two conflicting versions but there
is inter se discrepancies in the depositions of the
witnesses given in support of the other dying
Page 13
13
declaration dated 6.11.1976. Finally, in the dying
declaration before a Magistrate on which possibly
more reliance could have been placed the deceased
did not name any of the accused. Thus, we have no
hesitation to hold that these two dying declarations do
not bring home the guilt of the appellant. High Court,
therefore, erred in placing reliance on it by
erroneously evaluating them.”
17. In Lella Srinivasa Rao v. State of A.P. (2004) 9 SCC
713, this Court had occasion to consider the legality and
acceptability of two dying declarations. Noticing the
inconsistency between the two dying declarations, the Court
held that it is not safe to act solely on the said declarations to
convict the accused persons.
18. In Amol Singh v. State of Madhya Pradesh (2008) 5
SCC 468, this Court interfered with the order of sentence
noticing inconsistencies between the multiple dying
declarations. It is not the plurality of the dying declarations but
the reliability thereof that adds weight to the prosecution case.
If a dying declaration is found to be voluntary, reliable and
made in fit mental condition, it can be relied upon without any
Page 14
14
corroboration but the statement should be consistent
throughout. However, if some inconsistencies are noticed
between one dying declaration and the other, the Court has to
examine the nature of the inconsistencies, namely, whether
they are material or not and while scrutinising the contents of
various dying declarations, in such a situation, the court has to
examine the same in the light of the various surrounding facts
and circumstances.
19. In State of Andhra Pradesh v. P. Khaja Hussain
(2009) 15 SCC 120, this Court rejected the appeal filed against
the acquittal holding that it was not a case where the variation
between the two dying declarations was trivial in nature.
20. In Sharda v. State of Rajasthan (2010) 2 SCC 85, this
Court has dealt with three dying declarations. Noticing
inconsistencies between dying declarations, this Court set aside
the sentence ordered by Sessions Judge as well as High Court
and held as follows:
“Though a dying declaration is entitled and is still
recognised by law to be given greater weightage but it
has also to be kept in mind that the accused had no
Page 15
15
chance of cross-examination. 
Such a right of cross examination is essential for eliciting the truth as an
obligation of oath. 
This is the reason, generally, the
court insists tha the 
dying declaration should be such
which inspires full confidence of the court of its
correctness. 
The court has to be on guard that such
statement of the deceased was not as a result of
either tutoring, prompting or product of imagination.
The court must be further satisfied that the deceased
was in a fit state of mind after a clear opportunity to
observe and identify the assailants. 
Once the court is
satisfied that the aforesaid requirement and also to
the fact that declaration was true and voluntary,
undoubtedly, it can base its conviction without any
further corroboration.”
21. We have gone through both the dying declarations and
there are not only material contradictions in both the
declarations but also inter se discrepancies in the depositions
of the witnesses as well. In the first dying declaration recorded
by ASI, signed by PW13, there is no mention of the names of
any of the accused persons and the deceased had stated that
she could not recognize the person who set her ablaze even
though the declaration was in consonance with Rule 6.22 of the
Rajasthan Police Rules, 1965.
Page 16
16
22. So far as the statement of PW3 – Prem Chand recorded
under Section 161, Cr.P.C. marked as Exh. P6 is concerned, the
deceased was only abusing her father in law and that was not
even corroborated by PW4 or PW5 and PW3 himself turned
hostile. Due to discrepancies and contradictions between the
two dying declarations and also in the absence of any other
reliable evidence, in our view, the High Court is justified in
reversing the order of conviction which calls for no interference
by this Court. In view of above, the appeal is, therefore,
dismissed.
 …………………………..J.
(K.S. Radhakrishnan)
…………………………..J.
(Dipak Misra)
New Delhi,
May 1, 2013

Evidence Act, 1872: ss. 101 and 102-Burden of proof-Suit for declaring sale deed as void-Forgery and fabrication of document alleged-Held, with a view to prove forgery or fabrication in a document, possession of the same by defendant would not change legal position-Initial burden of proof would be on plaintiff-The fact that defendant was in a dominant position must be proved by plaintiff at the first instance. Evidence-Burden of proof and onus of proof-Distinction between-Explained. Words and Phrases: Expressions `burden of proof' and `onus of proof'-Connotation of in the context of Evidence Act. Suit-Framing of issues-Practice and Procedure. Pursuant to an agreement of sale between respondent and appellant, a sale deed was executed on 26.3.1991. Later, the respondent filed a suit for declaration that the said sale deed was void as the same was forged and fabricated. The defendant-appellant denied the allegations. On pleadings of the parties the trial court framed the following issue: "Whether the sale deed dated 26.3.1991 is forged and fabricated as prayed for?" On an application by the plaintiff, the trial court observed that onus to prove an issue was to be discharged in affirmative and it would always be difficult to prove the same in negative, and reframed the issue as under: "Whether the alleged sale deed dated 26.3.1991 is a valid and genuine document?" The revision application of the defendant was dismissed by the High Court observing that defendant was in a dominant position to prove the document affirmatively. Aggrieved, the defendant filed the present appeal. Citation: 2006 AIR 1971,2006(1 )Suppl.SCR659 ,2006(5 )SCC558 ,2006(5 )SCALE153 ,2006(11 )JT521- Allowing the appeal, the Court HELD: 1.1. In view of Section 101 of the Evidence Act, the initial burden of proof would be on the plaintiff. The trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. The fact that the defendant was in a dominant position must be proved by the plaintiff at the first instance. [662-h; 663-b-c; e] Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., AIR (2003) SC 4351, distinguished. 1.2. With a view to prove forgery or fabrication in a document, possession of the original sale deed by the defendant would not change the legal position. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the Trial Judge to produce the same. [655-d-e] 2. It should be borne in mind that a distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the OTHERS The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitled him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. [655-f-h; 666-a] R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr., JT (2004) 6 SC 442, relied on. 3. The order reframing the issue is set aside thus reviving the issue originally framed. [666-d] Suresh Kumari and A.P. Mohanty for the Appellant. Shalil Sagar, Pratap Venugopal and E. Venu Kumar for M/s. K.J. John & Co., for the Respondent.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (civil) 2413 of 2006
PETITIONER:
Anil Rishi
RESPONDENT:
Gurbaksh Singh
DATE OF JUDGMENT: 02/05/2006
BENCH:
S.B. Sinha & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
[Arising out of SLP (Civil) No. 5963 of 2006]
S.B. SINHA, J.
 Leave granted.
The defendant in the suit is the appellant herein. He is before us
aggrieved by a judgment and order dated 14th December, 2005 passed by the
Punjab and Haryana High Court at Chandigarh in Civil Revision No. 1077
of 2005 dismissing his revision application arising out of an order dated
9.2.2005 passed by the Civil Judge (Junior Division), Chandigarh.
An agreement to sell dated 26.03.1990 was entered into by and
between the parties hereto in relation to the premises bearing House No. 86,
situate in Sector 18A, Chandigarh. A sale deed was executed pursuant to the
said agreement to sell on 27.03.1991. However, a suit for declaration was
filed by the respondent herein alleging that the said sale deed dated
26.3.1991 was a forged, fabricated and was a void document. The appellant
filed his written statement in the said suit denying or disputing the
allegations contained therein. On the pleadings of the parties herein, issues
were framed by the learned trial Judge including the following:-
"Whether the sale deed dated 26.3.1991 is forged and
fabricated as prayed for?"
An application was filed by the respondent for deletion of the said
issue and reframe the same. The learned trial Judge reframed the issue
allowing the said application in terms of order dated 9.2.2005. Reframed
issue No. 2 reads as under:-
"Whether the alleged sale deed dated 26.3.1991 is a valid 
and genuine document?"
The learned Trial Judge while passing its order dated 09.02.2005
held:-
"Normally the initial burden of proving the execution of
a document when it is denied must rest upon the person
alleging its execution. Here in the present case the
plaintiff has denied the execution of the sale deed. The
onus to prove a issue has to be discharged affirmative.
"It is always difficult to prove the same in negative".
When the fact is proved in affirmative or evidence is led
to prove the same. Onus shifts on the other side to negate http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
the existence of such a fact."
A revision application filed on behalf of the appellant herein against
the said order was dismissed by the High Court by reason of the impugned
order stating:-
"In the present case, it is the case of the plaintiff respondent that he had not executed any sale deed dated
26.3.1991 in favour of the defendant-appellant and it was
a forged and fabricated document. On the other hand, it
is the case of the defendant that the said sale deed is valid
and genuine document. The sale deed itself is in
possession of the defendant. In such a situation, the
defendant is in a dominating position to prove the
document affirmatively, whereas it will be difficult for
the plaintiff to prove the same. Negatively, who is not
even in possession of the sale deed in question. After the
defendant proves the validity and genuineness of the sale
deed, the turn will come of the plaintiff to prove the
document negatively. In this view of the matter, I am of
the considered opinion that the trial court has rightly re framed issue No. 2 and put the onus on the defendant to
prove
whether the same is valid and genuine document. 
There is no infirmity in the order dated 9.2.2005 passed
by the Civil Judge (Junior Division), Chandigarh\005\005"
In the impugned judgment, the High Court proceeded on the basis that
although generally it is for the plaintiff to prove such fraud, undue influence
or misrepresentation, but when a person is in a fiduciary relationship with
another and the latter is in a position of active confidence, the burden of
proving the absence of fraud, misrepresentation or undue influence is upon
the person in the dominating position.
The initial burden of proof would be on the plaintiff in view of
Section 101 of the Evidence Act, which reads as under:-
"Sec. 101. Burden of proof. \026 Whoever desires any Court
to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts,
must prove that those facts exist.
When a person is bound to prove the existence of any
fact, it is said that the burden of proof lies on that
person."
In terms of the said provision, the burden of proving the fact rests on
the party who substantially asserts the affirmative issues and not the party
who denies it. The said rule may not be universal in its application and
there may be exception thereto. The learned trial Court and the High Court
proceeded on the basis that the defendant was in a dominating position and
there had been a fiduciary relationship between the parties. The appellant in
his written statement denied and disputed the said averments made in the
plaint.
Pleading is not evidence, far less proof. Issues are raised on the basis
of the pleadings. The defendant-appellant having not admitted or
acknowledged the fiduciary relationship between the parties, indisputably,
the relationship between the parties itself would be an issue. The suit will
fail if both the parties do not adduce any evidence, in view of Section 102 of
the Evidence Act. Thus, ordinarily, the burden of proof would be on the
party who asserts the affirmative of the issue and it rests, after evidence is
gone into, upon the party against whom, at the time the question arises,
judgment would be given, if no further evidence were to be adduced by
either side.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
The fact that the defendant was in a dominant position must, thus, be
proved by the plaintiff at the first instance.
Strong reliance has been placed by the High Court in the decision of
this Court in Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima
Maity & Ors., [AIR 2003 SC 4351]. In that case, the question of burden of
proof was gone into after the parties had adduced evidence. It was brought
on record that the witnesses whose names appeared in the impugned deed
and which was said to have been created to grab the property of the plaintiffs
were not in existence. The question as regards oblique motive in execution
of the deed of settlement was gone into by the Court. The executant was
more than 100 years of age at the time of alleged registration of the deed in
question. He was paralytic and furthermore his mental and physical
condition was not in order. He was also completely bed-ridden and though
his left thumb impression was taken, there was no witness who could
substantiate that he had put his thumb impression. It was on the
aforementioned facts, this Court opined:-
"12\005The onus to prove the validity of the deed of
settlement was on the defendant No. 1. When fraud,
misrepresentation or undue influence is alleged by a
party in a suit, normally, the burden is on him to prove
such fraud, undue influence or misrepresentation. But,
when a person is in a fiduciary relationship with another
and the latter is in a position of active confidence the
burden of proving the absence of fraud,
misrepresentation or undue influence is upon the person,
in the dominating position, he has to prove that there was
fair play in the transaction and that the apparent is the
real, in other words, that the transaction is genuine and
bona fide. In such a case the burden of proving the good
faith of the transaction is thrown upon the dominant
party, that is to say, the party who is in a position of
active confidence. A person standing in a fiduciary
relation to another has a duty to protect the interest given
to his care and the Court watches with jealously all
transactions between such persons so that the protector
may not use his influence or the confidence to his
advantage. When the party complaining shows such
relation, the law presumes everything against the
transaction and the onus is cast upon the person holding
the position of confidence or trust to show that the
transaction is perfectly fair and reasonable, that no
advantage has been taken of his position\005"
This Court in arriving at the aforementioned findings referred to
Section 111 of the Indian Evidence Act which is in the following terms:-
"Sec. 111. Proof of good faith in transactions where one
party is in relation of active confidence. \026 Where there is
a question as to the good faith of a transaction between
parties, one of whom stands to the other in a position of
active confidence, the burden of proving the good faith of
the transaction is on the party who is in a position of
active confidence."
But before such a finding is arrived at, the averments as regard alleged
fiduciary relationship must be established before a presumption of undue
influence against a person in position of active confidence is drawn. The
factum of active confidence should also be established.
Section 111 of the Evidence Act will apply when the bona fides of a
transaction is in question but not when the real nature thereof is in question. http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
The words ‘active confidence’ indicate that the relationship between the
parties must be such that one is bound to protect the interests of the other.
Thus, point for determination of binding interests or which are the
cases which come within the rule of active confidence would vary from case
to case. If the plaintiff fails to prove the existence of the fiduciary
relationship or the position of active confidence held by the defendantappellant, the burden would lie on him as he had alleged fraud. The trial
Court and the High Court, therefore, in our opinion, cannot be said to be
correct in holding that without anything further, the burden of proof would
be on the defendant.
The learned trial Judge has misdirected himself in proceeding on the
premise "it is always difficult to prove the same in negative a person/party in
the suit."
Difficulties which may be faced by a party to the lis can never be
determinative of the question as to upon whom the burden of proof would
lie. The learned Trial Judge, therefore, posed unto himself a wrong question
and arrived at a wrong answer. The High Court also, in our considered
view, committed a serious error of law in misreading and misinterpreting
Section 101 of the Indian Evidence Act. With a view to prove forgery or
fabrication in a document, possession of the original sale deed by the
defendant, would not change the legal position. A party in possession of a
document can always be directed to produce the same. The plaintiff could
file an application calling for the said document from the defendant and the
defendant could have been directed by the learned Trial Judge to produce
the same.
There is another aspect of the matter which should be borne in mind.
A distinction exists between a burden of proof and onus of proof. The right
to begin follows onus probandi. It assumes importance in the early stage of
a case. The question of onus of proof has greater force, where the question
is which party is to begin. Burden of proof is used in three ways : (i) to
indicate the duty of bringing forward evidence in support of a proposition at
the beginning or later; (ii) to make that of establishing a proposition as
against all counter evidence; and (iii) an indiscriminate use in which it may
mean either or both of the others. The elementary rule is Section 101 is
inflexible. In terms of Section 102 the initial onus is always on the plaintiff
and if he discharges that onus and makes out a case which entitles him to a
relief, the onus shifts to the defendant to prove those circumstances, if any,
which would disentitle the plaintiff to the same.
In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami &
V.P. Temple and Anr. [JT 2004 (6) SC 442], the law is stated in the
following terms :
"29. In a suit for recovery of possession based on title
it is for the plaintiff to prove his title and satisfy the court
that he, in law, is entitled to dispossess the defendant
from his possession over the suit property and for the
possession to be restored to him. However, as held in A.
Raghavamma v. A. Chenchamma there is an essential
distinction between burden of proof and onus of proof:
burden of proof lies upon a person who has to prove the
fact and which never shifts. Onus of proof shifts. Such a
shifting of onus is a continuous process in the evaluation
of evidence. In our opinion, in a suit for possession based
on title once the plaintiff has been able to create a high
degree of probability so as to shift the onus on the
defendant it is for the defendant to discharge his onus and
in the absence thereof the burden of proof lying on the
plaintiff shall be held to have been discharged so as to
amount to proof of the plaintiff’s title."http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
For the reasons aforementioned, the impugned judgment cannot be
sustained. The order reframing the issue is set aside thus reviving the issue
originally framed. The Trial Court will be free to frame any additional issue
if it is felt necessary.
The appeal is allowed as above.

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.)