Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. = the respondent-accused should have given or signed blank cheque to the appellantcomplainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them.- In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence.The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act. In our considered opinion, the High Court patently erred in holding that the burden was on the appellant-complainant to prove that he had advanced the loan and the blank signed cheque was given to him in repayment of the same. The finding of the High Court that the case of the appellant-complainant became highly doubtful or not beyond reasonable doubt is patently erroneous for the reasons discussed above.

1
REPORTABLE
THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NOS.230-231 OF 2019
(@ SLP(CRL ) NOS. 9334-35 OF 2018)
Bir Singh … Appellant
VERSUS
Mukesh Kumar …Respondent
J U D G M E N T
Indira Banerjee, J.
Leave granted.
2. These appeals are against a Judgment and order dated 21-11-
2017 passed by the High Court of Punjab and Haryana at
Chandigarh allowing the Criminal Revisional Application being
Criminal Revision Petition No.849 of 2016 filed by the respondentaccused, challenging a judgment and order dated 20-2-2016
passed by the Additional Sessions Judge, Palwal in Criminal Appeal
No.13/2015 filed by the respondent-accused, inter alia, affirming a
judgment and order of conviction of the respondent-accused,
2
passed by the Judicial Magistrate, 1st Class, Palwal under Section
138 of the Negotiable Instruments Act, 1881.
3. It is the case of the appellant-complainant, that the
respondent-accused issued a cheque being Cheque No.034212
dated 4-3-2012 drawn on Axis Bank, Branch, Palwal in the name of
the appellant towards repayment of a “friendly loan” of Rs.15
lakhs advanced by the appellant-complainant to the respondentaccused.
4. On 11-4-2012, the appellant-complainant deposited the said
cheque in his bank, but the cheque was returned unpaid with the
endorsement “Insufficient Fund”.
5. The appellant-complainant has alleged that, on the assurance
of the respondent-accused, that there would be sufficient funds in
his bank account to cover the amount of the cheque, the
appellant-complainant again presented the cheque to his bank on
23-5-2012, but it was again returned unpaid with the remark
“Insufficient Fund”.
6. On 15-6-2012, the appellant-complainant issued a legal notice
to the respondent-accused through his lawyer, calling upon the
respondent-accused to pay the cheque amount. The said notice,
sent by registered post, was according to the appellantcomplainant, duly served on the respondent-accused. The
respondent-accused, however, did not reply to the notice. Nor did
he pay the cheque amount to the appellant-complainant.
3
7. The appellant-complainant filed a Criminal Complaint against
the respondent-accused, being Case No.106 of 2012 before the
Judicial Magistrate 1st Class, Palwal, under Section 138 of the
Negotiable Instruments Act.
8. Sections 138 and 139 of the Negotiable Instruments Act are
set out herein below for convenience:-
“138 Dishonour of cheque for insufficiency,
etc., of funds in the account. —Where any cheque
drawn by a person on an account maintained by him
with a banker for payment of any amount of money to
another person from out of that account for the
discharge, in whole or in part, of any debt or other
liability, is returned by the bank unpaid, either because
of the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that
account by an agreement made with that bank, such
person shall be deemed to have committed an offence
and shall, without prejudice to any other provisions of
this Act, be punished with imprisonment for a term
which may be extended to two years, or with fine which
may extend to twice the amount of the cheque, or with
both:
Provided that nothing contained in this section shall
apply unless—
(a) the cheque has been presented to the bank within a
period of six months from the date on which it is drawn
or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque,
as the case may be, makes a demand for the payment
of the said amount of money by giving a notice in
writing, to the drawer of the cheque,within thirty days of
the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment
of the said amount of money to the payee or, as the
case may be, to the holder in due course of the cheque,
within fifteen days of the receipt of the said notice.
4
Explanation.— For the purposes of this section, “debt or
other liability” means a legally enforceable debt or
other liability.]
139. Presumption in favour of holder.—It shall be
presumed, unless the contrary is proved, that the
holder of a cheque received the cheque of the nature
referred to in section 138 for the discharge, in whole or
in part, of any debt or other liability.”
9. The object of Section 138 of the Negotiable Instruments Act is
to infuse credibility to negotiable instruments including cheques
and to encourage and promote the use of negotiable instruments
including cheques in financial transactions. The penal provision of
Section 138 of the Negotiable Instruments Act is intended to be a
deterrent to callous issuance of negotiable instruments such as
cheques without serious intention to honour the promise implicit in
the issuance of the same.
10. Having regard to the object of Section 138 of the Negotiable
Instruments Act, a prosecution based on a second or successive
default in payment of the cheque amount is not impermissible
simply because no statutory notice had been issued after the first
default and no proceeding for prosecution had been initiated. As
held by this Court in MSR Leathers vs. S. Palaniappan & Anr
1
,
there is no real or qualitative difference between a case where
default is committed and prosecution immediately launched and
another where the prosecution is deferred till the cheque presented
again gets dishonoured for the second time or successive times.
1 (2013) 1 SCC 177
5
11. By a judgment and order dated 9-2-2015, the Judicial
Magistrate I Class, Palwal convicted the respondent-accused under
Section 138 of the Negotiable Instruments Act and sentenced him
to undergo simple imprisonment for a period of one year and
further directed him to pay compensation of Rs.15 lakhs to the
appellant-complainant within one month from the date of the said
Judgment and order. Being aggrieved, the respondent-accused filed
a criminal appeal No.13/2015 dated 9-3-2015 in the court of
Additional Sessions Judge, Palwal.
12. By a judgment and order dated 20-2-2016, the Appellate
Court upheld the conviction of the respondent-accused under
Section 138 of the Negotiable Instruments Act and confirmed the
compensation of Rs.15 lakhs directed to be paid to the appellantcomplainant. The sentence of imprisonment was however reduced
to six months from one year.
13. The respondent-accused filed a Criminal Revision Petition
being CRR No.849 of 2016 in the High Court challenging the
Judgment and order of the Appellate Court. The appellantcomplainant also filed a Criminal Revision Petition being CRR
No.2017 of 2016 challenging the reduction of the sentence from
one year to six months.
14. By a common final Judgment and order dated 21-11-2017
which is impugned before us, the High Court has reversed the
concurrent factual findings of the Trial Court and the Appellate
Court and acquitted the respondent of the charge under Section
6
138 of the Negotiable Instruments Act, observing, inter alia, that
there was fiduciary relationship between the appellantcomplainant, an Income Tax practitioner, and the respondentaccused who was his client.
15. The High Court observed and held:-
“The complainant had fiduciary relationship with
the accused-petitioner. Therefore, heavy burden was
on the complainant to prove that he had advanced
the loan and that blank cheque for the same was
given to him. The complainant is an income tax
practitioner and he knows that whenever loan is
advanced to anybody, receipt has to be obtained and
that such heavy amount is to be advanced only
through a cheque or demand draft or RTGS. The
accused-petitioner was the client of the complainant
and they were having professional relationship. The
accused-petitioner was no so thick and thin with the
complainant. There is no reason why the
complainant, who is an income tax practitioner, will
advance such a heavy loan to his client without any
close relationship and without obtaining any writing
to this effect. There was heavy burden on the
complainant. In such circumstances, the accusedpetitioner is successful in raising reasonable doubts
that the complainant might have misused one of the
blank cheques given to him for payment of income
tax for depositing the same in the Treasury.
In order to support his case, the accusedpetitioner took a risk by stepping himself into the
witness box and offered himself for crossexamination. He asserted in his cross-examination
that the tax return was deposited in cash and the
complainant used to take cash from him. His version
was also supported by one Praveen Kumar, DW2.
From the abovenoted discussions, it is clear that
the parties were in fiduciary relationship and heavy
burden was on the complainant to prove that he had
advanced a loan of Rs.15,00,000/- to his client
7
without obtaining any writing and that he has not
misused any blank cheque of his client. Such loan
was not shown in the income tax return of the
complainant.
For the reasons mentioned above, the case of the
complainant becomes highly doubtful and is not
beyond all reasonable doubts. Therefore, no
presumption under Section 138 of the Negotiable
Instruments Act, 1881 can be raised. Both the courts
below erred in holding the accused-petitioner guilty
for the commission of offence punishable under
Section 138 of the Negotiable Instruments Act, 1881.
In view of the foregoing discussions, CRR No. 849
of 2016 is allowed and CRR No.2017 of 2016 is
dismissed. The accused- petitioner stands acquitted of
the notice of accusation served upon him.”
16. The short question before us is whether the High Court was
right in reversing the concurrent factual findings of the Trial Court
and of the Appellate court in exercise of its revisional jurisdiction.
The questions of law which rise in this appeal are, (i) whether a
revisional Court can, in exercise of its discretionary jurisdiction,
interfere with an order of conviction in the absence of any
jurisdictional error or error of law and (ii) whether the payee of a
cheque is disentitled to the benefit of the presumption under
Section 139 of the Negotiable Instruments Act, of a cheque duly
drawn, having been issued in discharge of a debt or other liability,
only because he is in a fiduciary relationship with the person who
has drawn the cheque.
8
17. The Trial Court, on analysis of the evidence adduced by the
respective parties arrived at the factual finding that the
respondent-accused had duly issued the cheque in question for
Rs.15 lakhs in favour of the appellant-complainant, in discharge of
a debt or liability, the cheque was presented to the bank for
payment within the period of its validity, but the cheque had been
returned unpaid for want of sufficient funds in the account of the
respondent-accused in the bank on which the cheque was drawn.
Statutory Notice of dishonour was duly issued to which there was
no response from the respondent-accused.
18. The Appellate Court affirmed the aforesaid factual findings.
The Trial Court and the Appellate Court arrived at the specific
concurrent factual finding that the cheque had admittedly been
signed by the respondent-accused. The Trial Court and the
Appellate Court rejected the plea of the respondent-accused that
the appellant-complainant had misused a blank signed cheque
made over by the respondent-accused to the appellantcomplainant for deposit of Income Tax, in view of the admission of
the respondent-accused that taxes were paid in cash for which the
appellant-complainant used to take payment from the respondent
in cash.
19. It is well settled that in exercise of revisional jurisdiction under
Section 482 of the Criminal Procedure Code, the High Court does
not, in the absence of perversity, upset concurrent factual findings.
It is not for the Revisional Court to re-analyse and re-interpret the
9
evidence on record.
20. As held by this Court in Southern Sales and Services and
Others vs. Sauermilch Design and Handels GMBH2
, it is a well
established principle of law that the Revisional Court will not
interfere even if a wrong order is passed by a court having
jurisdiction, in the absence of a jurisdictional error. The answer to
the first question is therefore, in the negative.
21. In passing the impugned judgment and order dated 21-11-
2017, the High Court mis-construed Section 139 of Negotiable
Instruments Act, which mandates that unless the contrary is
proved, it is to be presumed that the holder of a cheque received
the cheque of the nature referred to in Section 138, for the
discharge, in whole or in part, of any debt or other liability.
Needless to mention that the presumption contemplated under
Section 139 of the Negotiable Instruments Act, is a rebuttable
presumption. However, the onus of proving that the cheque was
not in discharge of any debt or other liability is on the accused
drawer of the cheque.
22. In Hiten P. Dalal vs. Bratindranath Banerjee
3
, this Court
held that both Section 138 and 139 require that the Court shall
presume the liability of the drawer of the cheques for the amounts
for which the cheques are drawn. Following the judgment of this
Court in State of Madras vs. Vaidyanatha Iyer
4
, this Court held
2 (2008) 14 SCC 457
3 (2001) 6 SCC 16
4 AIR 1958 SC 61
10
that it was obligatory on the Court to raise this presumption.
23. Section 139 introduces an exception to the general rule as to
the burden of proof and shifts the onus on the accused. The
presumption under Section 139 of the Negotiable Instruments Act
is a presumption of law, as distinguished from presumption of
facts. Presumptions are rules of evidence and do not conflict with
the presumption of innocence, which requires the prosecution to
prove the case against the accused beyond reasonable doubt. The
obligation on the prosecution may be discharged with the help of
presumptions of law and presumptions of fact unless the accused
adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact as held in Hiten P. Dalal (supra).
24. Presumption of innocence is undoubtedly a human right as
contended on behalf of the respondent-accused, relying on the
judgments of this Court in Ranjitsing Brahmajeetsing Sharma
vs. State of Maharashtra and Anr
5
 and Rajesh Ranjan Yada
@ Pappu Yadav vs. CBI through its Director
6
. However the
guilt may be established by recourse to presumptions in law and
presumptions in facts, as observed above.
25. In Laxmi Dyechem vs. State of Gujarat & Ors.
7
, this Court
reiterated that in view of Section 139, it has to be presumed that a
cheque was issued in discharge of a debt or other liability but the
5 (2005) 5 SCC 294
6 (2007) 1 SCC 70
7 (2012) 13 SCC 375
11
presumption could be rebutted by adducing evidence. The burden
of proof was however on the person who wanted to rebut the
presumption. This Court held “however, this presumption coupled
with the object of Chapter XVII of the Act leads to the conclusion
that by countermanding payment of a post dated cheque, a party
should not be allowed to get away from the penal provision of
Section 138 of the Act”.
26. In Kumar Exports vs. Sharma Carpets
8
, this Court
reiterated that there is a presumption that every negotiable
instrument duly executed, is for discharge of a debt or liability, but
the presumption is rebuttable by proving the contrary. In the facts
and circumstances of the case it was found that the cheque in
question was towards advance for purchase of carpets, which were
in fact not sold by the payee of the cheque to the drawer, as
proved from the deposition of an official of the Sales Tax
Department, who stated that the payee had admitted that he had
not sold the carpets.
27. In K.N. Beena vs. Muniyappan and Another
9
, this Court
held that in view of the provisions of Section 139 of the
Negotiable Instruments Act read with Section 118 thereof, the
Court had to presume that the cheque had been issued for
discharging a debt or liability. The said presumption was
rebuttable and could be rebutted by the accused by proving the
8 (2009) 2 SCC 513
9(2001) 8 SCC 458
12
contrary. But mere denial or rebuttal by the accused was not
enough. The accused had to prove by cogent evidence that there
was no debt or liability. This Court clearly held that the High
Court had erroneously set aside the conviction, by proceeding on
the basis that denials/averments in the reply of the accused were
sufficient to shift the burden of proof on the complainant to prove
that the cheque had been issued for discharge of a debt or a
liability. This was an entirely erroneous approach. The accused
had to prove in the trial by leading cogent evidence that there
was no debt or liability.
28. In R. Vijayan vs. Baby and Another
10
this Court observed
that the object of Chapter XVII of the Negotiable Instruments Act
is both punitive as also compensatory and restitutive. It provides
a single forum and single proceeding for enforcement of criminal
liability by reason of dishonour of cheque and for enforcement of
the civil liability for realization of the cheque amount, thereby
obviating the need for the creditor to move two different fora for
relief. This Court expressed its anguish that some Magistrates
went by the traditional view, that the criminal proceedings were
for imposing punishment and did not exercise discretion to direct
payment of compensation, causing considerable difficulty to the
complainant, as invariably the limitation for filing civil cases
would expire by the time the criminal case was decided.
10 (2012) 1 SCC 260
13
29. In R. Vijayan vs. Baby and another (supra) this Court
observed that unless there were special circumstances, in all
cases of conviction, the Court should uniformly exercise the power
to levy fine up to twice the cheque amount and keeping in view
the cheque amount and the simple interest thereon at 9% per
annum as the reasonable quantum of loss, direct payment of such
amount as compensation. This Court rightly observed that
uniformity and consistency in deciding similar cases by different
courts not only increases the credibility of the cheque as a
Negotiable Instrument but also the credibility of the Courts of
Justice.
30. The judgment of this Court in Raj Kumar Khurana vs. State
of (NCT of Delhi) & Anr.
11 was rendered in the particular facts of
the case where the drawer of the cheque had reported to the police
and the bank that two unfilled cheques signed by him had been
stolen.
31. The proposition as re-enunciated in John K John vs. Tom
Varghese & Anr.
12 cited on behalf of the respondent-accused that
if two views are possible, this Court, in exercise of its jurisdiction
under Article 136 of the Constitution would ordinarily not interfere
with a judgment of acquittal, is well settled.
32. In the aforesaid case this Court affirmed an acquittal under
Section 138 of the Negotiable Instrument Act, in the
11 (2009) 6 SCC 72
12 (2007) 12 SCC 714
14
peculiar facts and circumstances of the case where several civil
suits between the parties were pending.
33. In Krishna Janardhan Bhat vs. Dattatraya G. Hegde
13
,
cited on behalf of the respondent-accused, this Court reaffirmed
that Section 139 of the Act raises a presumption that a cheque duly
drawn was towards a debt or liability. However, keeping in view
the peculiar facts and circumstances of the case, this Court was of
the opinion that the courts below had approached the case from a
wholly different angle by wrong application of legal principles.
34. It is well settled that a judgment is a precedent for the issue
of law which is raised and decided. It is the ratio decidendi of the
case which operates as a binding precedent. As observed by this
Court in State of Punjab & Ors. vs. Surinder Kumar & Ors.
14
,
what is binding on all courts is what the Supreme Court says under
Article 141 of the Constitution, which is declaration of the law and
not what it does under Article 142 to do complete justice.
35. Furthermore, to quote V. Sudhish Pai from his book
“Constitutional Supremacy - A Revisit”:-
 “Judgments and observations in judgments are not
to be read as Euclid’s theorems or as provisions of
statute. Judicial utterances/pronouncements are in
the setting of the facts of a particular case. To
interpret words and provisions of a statute it may
become necessary for judges to embark upon lengthy
discussions, but such discussion is meant to explain
not define, Judges interpret statutes, their words are
13 (2008) 4 SCC 54
14 (1992) 1 SCC 489
15
not to be interpreted as statutes. Thus, precedents
are not to be read as statutes.”
36. The proposition of law which emerges from the judgments
referred to above is that the onus to rebut the presumption under
Section 139 that the cheque has been issued in discharge of a debt
or liability is on the accused and the fact that the cheque might be
post dated does not absolve the drawer of a cheque of the penal
consequences of Section 138 of the Negotiable Instruments Act.
37. A meaningful reading of the provisions of the Negotiable
Instruments Act including, in particular, Sections 20, 87 and 139,
makes it amply clear that a person who signs a cheque and makes
it over to the payee remains liable unless he adduces evidence to
rebut the presumption that the cheque had been issued for
payment of a debt or in discharge of a liability. It is immaterial that
the cheque may have been filled in by any person other than the
drawer, if the cheque is duly signed by the drawer. If the cheque
is otherwise valid, the penal provisions of Section 138 would be
attracted.
38. If a signed blank cheque is voluntarily presented to a payee,
towards some payment, the payee may fill up the amount and
other particulars. This in itself would not invalidate the cheque.
The onus would still be on the accused to prove that the cheque
was not in discharge of a debt or liability by adducing evidence.
39. It is not the case of the respondent-accused that he either
signed the cheque or parted with it under any threat or coercion.
16
Nor is it the case of the respondent-accused that the unfilled
signed cheque had been stolen. The existence of a fiduciary
relationship between the payee of a cheque and its drawer, would
not disentitle the payee to the benefit of the presumption under
Section 139 of the Negotiable Instruments Act, in the absence of
evidence of exercise of undue influence or coercion. The second
question is also answered in the negative.
40. Even a blank cheque leaf, voluntarily signed and handed over
by the accused, which is towards some payment, would attract
presumption under Section 139 of the Negotiable Instruments Act,
in the absence of any cogent evidence to show that the cheque
was not issued in discharge of a debt.
41. The fact that the appellant-complainant might have been an
Income Tax practitioner conversant with knowledge of law does not
make any difference to the law relating to the dishonour of a
cheque. The fact that the loan may not have been advanced by a
cheque or demand draft or a receipt might not have been obtained
would make no difference. In this context, it would, perhaps, not
be out of context to note that the fact that the respondent-accused
should have given or signed blank cheque to the appellantcomplainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them.
42. In the absence of any finding that the cheque in question was
not signed by the respondent-accused or not voluntarily made over
17
to the payee and in the absence of any evidence with regard to the
circumstances in which a blank signed cheque had been given to
the appellant-complainant, it may reasonably be presumed that
the cheque was filled in by the appellant-complainant being the
payee in the presence of the respondent-accused being the
drawer, at his request and/or with his acquiescence. The
subsequent filling in of an unfilled signed cheque is not an
alteration. There was no change in the amount of the cheque, its
date or the name of the payee. The High Court ought not to have
acquitted the respondent-accused of the charge under Section 138
of the Negotiable Instruments Act.
43. In our considered opinion, the High Court patently erred in
holding that the burden was on the appellant-complainant to prove
that he had advanced the loan and the blank signed cheque was
given to him in repayment of the same. The finding of the High
Court that the case of the appellant-complainant became highly
doubtful or not beyond reasonable doubt is patently erroneous for
the reasons discussed above.
44. The appeals are allowed. The judgment and order of the High
Court is set aside. The conviction of the respondent under Section
138 of the Negotiable Instruments Act is confirmed. However, the
respondent-accused is sentenced only to fine, which is enhanced to
Rs.16 lakhs and shall be paid as compensation to the appellantcomplainant. The fine shall be deposited in the Trial Court within
eight weeks from the date, failing which the sentence of
18
imprisonment of one year as imposed by the Trial Court shall
revive. There shall be no order as to costs.
.................................J.
(R. BANUMATHI)
.................................J.
(INDIRA BANERJEE)
FEBRUARY 06, 2019
NEW DELHI

In the contempt jurisdiction, the court has to confine itself to the four corners of the order alleged to have been disobeyed. Observing that in the contempt jurisdiction, the court cannot travel beyond the four corners of the order which is alleged to have been floated- No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above.- it is clear that the Single Judge fell in error in entertaining the contempt petition and further erred in directing the TWAD Board to pay compensation at the rate of Rs.600/- per sq. ft. which works out to more than Rs.4,00,00,000/-. It is public money and having implications on the public exchequer, the public money cannot be allowed to be taken away by an individual by filing contempt petition thereby arm-twisting the authorities. The order passed by the learned Single Judge affirmed by the Division Bench is ex-facie erroneous and liable to be set aside.

Hon'ble Mrs. Justice R. Banumathi
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1510 OF 2019
(Arising out of SLP(C) No.30317 of 2017)
ER. K. ARUMUGAM …Appellant
VERSUS
V. BALAKRISHNAN & ORS. …Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the judgment dated 23.08.2017
passed by the High Court of Madras in Contempt Appeal No.2 of
2017 affirming the order passed by the learned Single Judge dated
13.02.2017 in and by which the appellant-TWAD Board was
directed to pay Rs.600/- per sq. ft. to the first respondent for the
land which the appellant-Board entered possession in 1991 with
the consent of the first respondent.
3. During the year 1991-1992, land to an extent of 86.5 cents
in Survey No.271/2A 5E – “Dry Land” in Walajabad Village was
entered upon by the appellant-Tamil Nadu Water Supply and
Drainage Board (TWAD Board) with the consent of the first
1
respondent-land owner for the construction of Head works and
Staff quarters. In the year 1993, the appellant-Board constructed
the Head works for supply of drinking water and residential Staff
quarters. Accepting the recommendation of the Revenue Divisional
Officer, Kancheepuram made in the year 1991, by an order dated
30.03.2015, the District Collector, Kancheepuram fixed the value
of the land at the rate of Rs.260/- per cent and the total value of
the land was arrived at Rs.22,490/-. Giving incentive of 12% for
every year up to 2012, the value of the land was fixed at
Rs.2,43,001/-. A demand draft of Rs.2,43,001/- had been sent to
the first respondent by the appellant-Board vide its letter dated
14.05.2015 which the first respondent refused to receive and the
same was returned.
4. On 31.01.2016, the first respondent filed Writ Petition
No.3874 of 2016 and on the third day of filing of the petition i.e. on
03.02.2016, the High Court disposed of the said writ petition with
direction to the appellant-Board to submit a report to the District
Collector and to ensure that a fair and reasonable compensation
be sanctioned to the first respondent at an early date not later
than two months. The said order reads as under:-
“6. In the light of the above, there will be a direction to the 3rd
respondent to submit his report/response to the 4th respondent
as requested in the letter of the 4th respondent dated
23.09.2015, within a period of three weeks from the date of
receipt of a copy of this order. On receipt of such shall place
appropriate proposal for the consideration of the 2nd respondent
within a period of three weeks thereafter. Thereafter, the 2nd
respondent shall consider the matter and ensure that fair and
reasonable compensation is sanctioned to the petitioner and
2
paid at the earliest, not later than two months from the date on
which the proposal is submitted by the 4th respondent. The
authorities are well advised to adhere to the time schedule fixed
by this Court, failing which, it would amount to disobedience of
the order, warranting action under the Contempt of Courts Act.”
5. In compliance of the above direction, the Managing Director
of the appellant-Board had sent a letter dated 03.03.2016 to the
District Collector, Kancheepuram stating that the District Collector,
Kancheepuram is the authority to fix the land value and requested
him to fix a fair and reasonable value of the land as ordered by the
High Court. A State Level Committee meeting attended by High
level Officers had been convened on 25.04.2016. As seen from the
Minutes of the Meeting, the entire matter has been thoroughly
discussed and considered. It was decided in the said meeting that
the case neither comes under the ambit of the Land Acquisition Act
nor under ‘Private Negotiation’ and only the District Collector is
fully competent to fix the value of the land in such cases.
Accordingly, it was decided to remit the matter to the District
Collector to determine the value of the land and communicate the
same to the Managing Director, TWAD Board so that a fair and
reasonable compensation is sanctioned to the first respondent and
to ensure compliance of the order of the High Court.
6. The District Collector accordingly held a detailed enquiry and
examined various aspects of the matter and also took into
consideration the prevailing guideline value as on 01.04.2012.
After elaborate consideration, the District Collector vide proceeding
3
dated 23.05.2016 fixed the land value at the rate of Rs.200/- per
sq. ft. which was the guideline value as on 01.04.2012 and the said
order reads as under:-
“7. During the Private Negotiation meeting conducted on
09.04.2012, it was decided to for value as per the prevailing
guideline value as on 01.04.2012. The Sub-Registrar, Walajabad
recommended and reported that the guideline value was at the
rate Rs.200/- per sq. ft. for the land in S.No.271/2A5E in his
letter no.114/2012, dt. 16.04.2012. Accordingly, the District
Collector, Kancheepuram in his proceedings dt. 19.05.2012 has
fixed the land value at Rs.200/- per sq. ft. which was the
guideline value as on 01.04.2012 and the total value of the land
was arrived at Rs.75,42,800/-.”
The District Collector also observed that the land value at Rs.200/-
per sq. ft. is fixed and the same may be paid with interest at the
rate of 12% per annum from 19.05.2012 till date of payment. The
District Collector opined that land value fixed at Rs.200/- per sq. ft.
as on 01.04.2012 is a fair and reasonable value considering the
classification of the land at the time when Board entered upon the
land. Based on the land value fixed by the District Collector,
calculating the amount at the rate of Rs.200/- per sq. ft. along with
interest, TWAD Board calculated the total amount of compensation
at Rs.1,11,80,723/- as under:-
Land area …. 86 ½ cent (or)
37714 Sq. ft.
Cost of land at the rate of
Rs.200/- per sq. ft.
…. Rs.75,42,800/-
Interest @ the rate of 12% per
annum from 19.05.2012 to
25.05.2016 - 4 years and 7
days
…. Rs.36,37,923/-
Total …. Rs.1,11,80,723/-
4
The first respondent received the said amount of Rs.1,11,80,723/-
with protest on 31.05.2016 and issued a receipt for the said
amount.
7. The first respondent did not challenge the rate fixed by the
District Collector at Rs.200/- per sq. ft. in a manner known to law.
On the other hand, the first respondent filed Contempt Petition
No.2626 of 2016 in W.P. No.3874 of 2016 on 28.09.2016 alleging
disobedience of the order passed by the High Court on 03.02.2016.
The learned senior counsel appearing for the appellant-Board
submitted that when the contempt petition came up before the
learned Single Judge on 25.11.2016, though no orders were
passed, some instructions appeared to have been given to the
TWAD Board. It was submitted that apprehending that she might
be hauled up for contempt of court, the District Collector vide order
dated 30.11.2016 fixed the value of the land at the rate of Rs.500/-
per sq. ft. When the contempt petition came up for hearing on
13.02.2017, going beyond the order passed in Writ Petition
No.3874/2016, the learned Single Judge fixed the value of the land
at Rs.600/- per sq. ft and directed the balance amount be paid to
the first respondent at the rate of Rs.400/- per sq. ft. The order
passed by the High Court reads as under:-
“6. Considering the facts and circumstances of the case, this
Court is inclined to fix a reasonable amount of compensation
and accordingly, the same is fixed at Rs.600/- per sq. ft. has
been paid on 25.05.2016 together with interest, the balance
amount payable per square feet is Rs.400/-. However, the
interest for the differential amount shall be calculated only at
5
the rate of Rs.300/- per sq. ft. from 19.05.2012 till 25.05.2016.
The above direction shall be complied with by the respondents
within a period of four weeks from the date of receipt of a copy
of this order. On receipt of the amount, the erstwhile owner shall
execute a sale deed in favour of the TWAD Board and the
expenses be borne by the TWAD Boad……..”
8. Being aggrieved by the above order passed in the contempt
proceedings, the appellant-Board preferred appeal before the
Division Bench. The said appeal came to be dismissed by the
impugned order.
9. We have heard learned senior counsel appearing for the
appellant-Board and learned senior counsel for the first respondent
and perused the impugned order and materials on record.
10. The question falling for consideration in this appeal is, in
exercise of contempt jurisdiction, whether the learned Single Judge
was right in travelling beyond the four corners of the order in W.P.
No.3874 of 2016 dated 03.02.2016 and directing the appellantBoard to pay the compensation at the rate of Rs.600/- per sq. ft.
11. In Writ Petition No.3874/2016, the High Court passed the
order dated 03.02.2016 with direction to the authorities to ensure
a fair and reasonable compensation be sanctioned to the first
respondent and paid at the earliest. Immediately after the order
of the High Court, the Managing Director, TWAD Board wrote a
letter dated 03.03.2016 requesting the District Collector,
Kancheepuram to fix a fair and reasonable value of the land.
Thereafter, the State Level Committee meeting attended by the
6
High Level Officers had been convened and the matter was
considered and discussed at length. The State High Level
Committee felt that the case would neither fall under the ambit of
Land Acquisition Act nor under ‘Private Negotiation’ and therefore,
the Committee felt that it has no role to play and that the District
Collector is competent to fix the value of the land and the State
Level Committee remitted the matter to the District Collector to fix
the value of the land and communicate the value determined by
him to the Managing Director, TWAD Board so that a fair and
reasonable compensation is sanctioned to the first respondent
within the time limit fixed by the High Court in the order passed in
Writ Petition No.3874/2016.
12. A party can be proceeded for disobedience of the order of
the court only when there is willful disobedience and noncompliance of the order passed by the court. On perusal of the
order dated 03.02.2016 passed in Writ Petition No.3874/2016, it is
seen that in the said order, court has only directed the authorities
to ensure fair and reasonable compensation be sanctioned to the
first respondent and be paid at the earliest. The officers quickly
acted in order to comply with the direction of the High Court.
When the direction was only to consider the case of the first
respondent for ensuring fair and reasonable compensation and
having regard to the swift action taken by the appellant and other
officials, in our view, there was no disobedience of the order of the
7
court, much less wilful disobedience to invoke contempt
jurisdiction.
13. After the State Level Committee remitted the matter to the
District Collector, the District Collector conducted a detailed
enquiry and took into consideration the prevailing guideline value
as on 01.04.2012. After examining the report of the Sub-Registrar,
Walajabad and taking into consideration the guideline value, by
proceeding dated 23.05.2016 the District Collector fixed the land
value at Rs.200/- per sq. ft. which was the guideline value as on
01.04.2012. As pointed out earlier, the total value of the land was
arrived at Rs.75,42,800/- and the interest at the rate of 12%
totalling Rs.1,11,80,723/- was paid to the first respondent which
the first respondent received under protest. In compliance of the
order of the High Court, the District Collector passed the order
fixing the land value at the rate of Rs.200/- per sq. ft. as on
01.04.2012 (though the land came to be in occupation of TWAD
Board way back in 1991). The first respondent has not challenged
the said compensation fixed at the rate of Rs.200/- sq. ft. as on
01.04.2012 in the manner known to law. In compliance of the
order of the High Court, when the amount has been paid to the
first respondent, in our considered view, there was no
disobedience or non-compliance of the order of the court to
entertain the contempt petition.
8
14. In Sushila Raje Holkar v. Anil Kak (Retired) (2008) 14
SCC 392, the Supreme Court held that whether contempt has been
committed or not is not a matter of mechanical application of
mind. In a given case, it has to be tested having regard to the
subject matter of the proceeding in which it is made and the nexus
between the alleged contumacious act. In the Writ Petition
No.3874/2016, the High Court only directed TWAD Board and its
officials to ensure just and reasonable compensation be paid to the
first respondent which has been duly complied with by the Board
by paying the compensation fixing the land value at the rate of
Rs.200/- per sq. ft. as on 01.04.2012 as per guideline value. In
compliance with the order passed by the High Court, when the
compensation has been paid to the first respondent, there was no
question of disobedience of the order of the court to maintain the
contempt petition. Without appreciating that the order of the High
Court has been duly complied with, the learned Single Judge erred
in entertaining the contempt petition. Apart from entertaining the
contempt petition, the learned Single Judge further fell in error in
issuing positive direction to the authorities to pay further
compensation at the rate of Rs.600/- per sq. ft., which, in our
considered view, is arbitrary and unsustainable.
15. The learned senior counsel Mr. Ramamoorthy appearing for
the Board submitted that when the contempt petition came up for
hearing on 25.11.2016, the learned Single Judge issued oral
9
instructions to the TWAD Board and the appellant Board was
compelled to take further steps in fixing the higher land value. It
is stated that though no orders were passed by the learned Single
Judge on 25.11.2016, oral directions were issued by the learned
Single Judge. The same is reflected in the proceeding of the
District Collector dated 30.11.2016 as seen from the following:-
“….Thereafter, the land owner filed the contempt of court
petition in No.2626/2016 before the Chennai High Court. When
the aforesaid case was on trial, on 25.11.2016, as per the
instructions given by the honourable judge, today (30.11.2016)
the Superintending Engineer of the TWAD Board and the District
Registrar Kanchipuram, in the meeting held with them, it is
informed to the land owner as follows…..”
Though much reliance was placed upon the proceedings of the
District Collector dated 30.11.2016, we are constrained to observe
that the said proceeding of the District Collector dated 30.11.2016
fixing the land value at the rate of Rs.500/- per sq. ft. as on
30.11.2016 was passed under the fear of contempt of court which,
in our view, is liable to be quashed. In any event, when the entry
into land was way back in 1990-91, the first respondent cannot
claim that compensation be paid to him on the value of the land
fixed in the year 2016 as of 30.11.2016.
16. The learned senior counsel appearing for the first respondent
placed reliance upon the statement of the learned Additional
Advocate General who represented the Board in the Contempt
Petition No.2626/2016 who has stated “….that the court should
confirm itself to order compensation at the rate of Rs.500/- per sq.
ft.” This contention does not merit acceptance. Be it noted that
10
when the matter was heard by the learned Single Judge on
13.02.2017, no affidavit has been filed by any responsible officer
that the compensation may be paid to the first respondent at the
rate of Rs.500/- per sq. ft. Since we are quashing the order of the
District Collector dated 30.11.2016, in our considered view, the
first respondent cannot fall back upon statement of the learned
Additional Advocate General made in the court. The respondent
cannot take advantage of such oral concession made by the
learned Additional Advocate General.
17. In the contempt jurisdiction, the court has to confine itself to
the four corners of the order alleged to have been disobeyed.
Observing that in the contempt jurisdiction, the court cannot travel
beyond the four corners of the order which is alleged to have been
floated, in Sudhir Vasudeva, Chairman and Managing
Director, Oil and Natural Gas Corporation Limited and
others v. M. George Ravishekaran and others (2014) 3 SCC
373, speaking for the Bench, Justice Ranjan Gogoi held as under:-
“19. The power vested in the High Courts as well as this Court to
punish for contempt is a special and rare power available both
under the Constitution as well as the Contempt of Courts Act,
1971. It is a drastic power which, if misdirected, could even curb
the liberty of the individual charged with commission of
contempt. The very nature of the power casts a sacred duty in
the Courts to exercise the same with the greatest of care and
caution. This is also necessary as, more often than not,
adjudication of a contempt plea involves a process of selfdetermination of the sweep, meaning and effect of the order in
respect of which disobedience is alleged. The Courts must not,
therefore, travel beyond the four corners of the order which is
alleged to have been flouted or enter into questions that have
not been dealt with or decided in the judgment or the order
violation of which is alleged. Only such directions which are
11
explicit in a judgment or order or are plainly self-evident ought
to be taken into account for the purpose of consideration as to
whether there has been any disobedience or wilful violation of
the same. Decided issues cannot be reopened; nor can the plea
of equities be considered. The Courts must also ensure that
while considering a contempt plea the power available to the
Court in other corrective jurisdictions like review or appeal is not
trenched upon. No order or direction supplemental to what has
been already expressed should be issued by the Court while
exercising jurisdiction in the domain of the contempt law; such
an exercise is more appropriate in other jurisdictions vested in
the Court, as noticed above. The above principles would appear
to be the cumulative outcome of the precedents cited at the Bar,
namely, Jhareswar Prasad Paul v. Tarak Nath Ganguly (2002) 5
SCC 352, V.M. Manohar Prasad v. N. Ratnam Raju (2004) 13 SCC
610, Bihar Finance Service House Construction Coop. Society
Ltd. v. Gautam Goswami (2008) 5 SCC 339 and Union of India v.
Subedar Devassy PV (2006) 1 SCC 613.” [underlining added]
Applying the above principles to the present case, it is clear that
the Single Judge fell in error in entertaining the contempt petition
and further erred in directing the TWAD Board to pay
compensation at the rate of Rs.600/- per sq. ft. which works out to
more than Rs.4,00,00,000/-. It is public money and having
implications on the public exchequer, the public money cannot be
allowed to be taken away by an individual by filing contempt
petition thereby arm-twisting the authorities. The order passed by
the learned Single Judge affirmed by the Division Bench is ex-facie
erroneous and liable to be set aside.
18. In the result, the impugned order of the Division Bench in
Contempt Petition No.2/2017 and the order of the learned Single
Judge in Contempt Petition No.2626/2016 are set aside and this
appeal is allowed.
..……………………….J.
 [R. BANUMATHI]
12
 …...………………………..J.
[R. SUBHASH REDDY]
New Delhi;
February 06, 2019
13

in a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction.

Hon'ble Mrs. Justice R. Banumathi
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1509 OF 2019
(Arising out of SLP(C) No.29417 of 2016)
BALKRISHNA DATTATRAYA GALANDE …Appellant
VERSUS
BALKRISHNA RAMBHAROSE GUPTA …Respondents
AND ANOTHER
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the judgment dated 23.06.2016
passed by the High Court of Judicature at Mumbai dismissing
the Writ Petition No.6873 of 2016 thereby affirming the
judgment of the First Appellate Court decreeing the first
respondent’s suit for permanent injunction.
3. The first Respondent-plaintiff claiming to be a tenant
filed a suit in the year 2004 for permanent injunction
restraining the appellant-landlord from disturbing his peaceful
possession in the suit premises. Case of the first respondentplaintiff was that he was running eating house, a pan shop
1
and was also doing fabrication work in the suit premises
which has been constructed in tin sheet, wooden logs and
rafters. According to the first respondent-plaintiff, he was
inducted in the suit premises as a tenant in the year 1977 on
monthly rent of Rs.55/-. Appellant-defendant has earlier
instituted a suit against the first respondent-plaintiff in RCS
No.1004/1988 and the said suit was dismissed as withdrawn.
The first respondent-plaintiff averred that he repeatedly
called upon the appellant-defendant to carry out the
necessary repairs in the suit premises; however, the
appellant-defendant refused to carry out the repairs. The first
respondent-plaintiff further alleged that after obtaining
permission from the Corporation for effecting the necessary
repairs, when he was about to start the repair works, on
19.08.2004, the appellant-defendant came along with his men
and obstructed the first respondent-plaintiff from carrying out
the repairs. Hence, the first respondent-plaintiff was
constrained to file the suit for permanent injunction.
4. The appellant-defendant filed a written statement
contending that the first respondent-plaintiff was in
occupation of only one room until the year 1991. According to
the appellant-defendant, earlier he instituted a suit in RCS
No.1004/1988 against the first respondent-plaintiff and during
the pendency of that suit, parties arrived at a settlement and
2
in pursuance of that settlement, the first respondent-plaintiff
had handed over the possession of the suit premises to the
appellant-defendant. Accordingly, the appellant-defendant
filed Purshis Ex.-41 on 23.04.1991 seeking permission to
withdraw the suit and the said suit was disposed of on
26.04.1991. According to the appellant, the relationship
between the parties as landlord-tenant ceased to exist. The
appellant further averred that he had executed a
Development Agreement with the second respondent and
when he was about to start the development of the suit
premises, the first respondent-plaintiff had filed the suit for
permanent injunction and therefore, prayed for dismissal of
the suit.
5. Based upon the pleadings and evidence, relevant issues
were framed before the trial court. Upon consideration of oral
and documentary evidence, the trial court dismissed the suit
holding that the first respondent-plaintiff has not produced any
licence or electricity connection to show that he was running
the hotel, pan shop and doing fabrication work showing that he
has been carrying on the business from the suit premises. The
trial court held that the plea of the first respondent-plaintiff
that he has been in occupation of the suit premises is not
acceptable. Referring to the settlement arrived at, in RCS
No.1004/1988, the trial court pointed out that after disposal
3
of RCS No.1004/1988, the first respondent-plaintiff had not
paid the rent and that the first respondent-plaintiff failed to
establish that he was the tenant in the suit premises and on
those findings, the trial court dismissed the suit.
6. In appeal the First Appellate Court allowed the appeal
filed by the first respondent-plaintiff by holding that there is
nothing on record to show that after withdrawal of the earlier
suit i.e. RCS No.1004/1988, the first respondent-plaintiff has
vacated the suit premises in the year 1991. After referring to
the evidence of the first respondent-plaintiff (PW-1) and other
evidence, the First Appellate Court held that the first
respondent-plaintiff had established his possession over the
suit property and that the trial court erred in drawing
presumption of possession based on withdrawal Purshis Ex.-
41 filed in RCS No.1004/1988. Challenging the judgment of
the First Appellate Court, the appellant-defendant filed the
Writ Petition No.6873 of 2016 before the High Court under
Article 227 of the Constitution of India which came to be
dismissed by the impugned judgment.
7. We have heard the learned counsel appearing for both
the parties and perused the impugned judgment and
materials on record. When the first respondent-plaintiff has
neither proved his actual possession nor shown to have paid
the rent from the year 1991, in the suit filed by the first
4
respondent-plaintiff under Section 38 of the Specific Relief
Act, whether the High Court and the First Appellate Court
were right in granting permanent injunction in favour of the
first respondent-plaintiff, is the point falling for consideration
in this appeal.
8. Both the First Appellate Court and the High Court mainly
relied upon Purshis Ex.-41 dated 23.08.1991 based on which
the court permitted the appellant-defendant to withdraw his
earlier suit RCS No.1004/1988 on the ground that there were
technical defects in the said suit. Placing reliance upon
Purshis Ex.-41, both the High Court and the First Appellate
Court have held that there was no settlement between the
parties and there is no other evidence to show that the first
respondent-plaintiff has voluntarily surrendered the
possession of the suit premises and that the appellantdefendant has taken possession by following due process of
law. Contention of the appellant-defendant that after the
settlement in the earlier suit RCS No.1004/1988, the first
respondent-plaintiff vacated the premises, was not accepted
by the courts below on the ground that Purshis Ex.-41 does
not indicate that the first respondent-plaintiff vacated and
handed over possession of the suit premises to the appellantdefendant. The conclusion of the First Appellate Court as
affirmed by the High Court presuming possession of the first
5
respondent-plaintiff based on the Purshis Ex.-41 is not a
correct approach.
9. In a suit filed under Section 38 of the Specific Relief Act,
permanent injunction can be granted only to a person who is
in actual possession of the property. The burden of proof lies
upon the first respondent-plaintiff to prove that he was in
actual and physical possession of the property on the date of
suit. The First Appellate Court drew inference of the
possession of the first respondent-plaintiff from Purshis Ex.-41
and from the circumstances that he has obtained permission
from the Corporation for carrying out the repairs. The
Commissioner’s report dated 02.11.1988 which was referred
to in extenso in the order passed in interlocutory application
(Ex.-5) dated 17.10.2005 rejecting the first respondent’s
prayer for temporary injunction shows the poor condition of
the suit premises prior to filing of the suit RCS No.430/2004.
The Commissioner’s report indicates that even after replacing
the roof by new tin sheet, the premises was not fit to carry on
business. In the order passed in the interlocutory application
(Ex.-5) dated 17.10.2005, the trial court referred to the report
of the Commission which reads as under:-
“…..The flooring was completely damaged. Big Shahabadi
tiles were kept without using cement or morter for
joining/pointing. It was just of shift flooring, wooden stall
was also closed at the time of commission work. According
to plaintiff the premises was taken for conducting business
6
i.e. eating house. Considering the condition of the
premises on the date of commission work, it was
impossible to carry such business in it. It is not case of the
plaintiff that he carried repairs after commission work….”
As observed by the trial court, the first respondent-plaintiff
has not brought on record any document to show that the
court has passed any order permitting him to carry repairs
after the date of inspection by the Commissioner and having
regard to the condition of the building, it was impossible for
the first respondent-plaintiff to carry business in the suit
premises.
10. As rightly pointed out by the trial court on the date of
inspection by Commissioner, the premises was not fit for
conducting the hotel business. The trial court rightly rejected
the contention of the first respondent-plaintiff that he has
carried out repairs after the inspection by the Commissioner
observing that the first respondent-plaintiff has failed to
produce documents such as the order of the court permitting
him to carry repairs, receipts of material purchase and labour
charges paid etc. From the photographs filed by the first
respondent-plaintiff, the trial court rightly concluded that the
condition of the said premises was not at all fit for any
purpose.
11. The first respondent-plaintiff has filed the suit under
Section 38 of the Specific Relief Act seeking permanent
7
injunction on the ground that he is in actual possession of the
suit property. Grant of permanent injunction results in
restraining the defendant’s legitimate right to use the
property as his own property. Under Section 38 of the
Specific Relief Act, an injunction restraining the defendant
from disturbing possession may not be granted in favour of
the plaintiff unless he proves that he was in actual possession
of the suit property on the date of filing of the suit. The
earlier suit RCS No.1004/1988 was filed in the year 1988 and
it proceeded till 1991. In the present case, the first
respondent-plaintiff has to prove his actual possession on the
date of filing of suit. The First Appellate Court concluded that
the appellant-defendant had failed to prove that the plaintiff
has vacated the premises in 1991 after withdrawal of earlier
suit RCS No.1004/1988. Contention of the appellant is that a
settlement was arrived at between the parties and pursuant
to that settlement, the plaintiff has vacated the premises in
1991. This has not been rebutted by the first respondentplaintiff by adducing substantive evidence. The possession of
the plaintiff cannot be based upon the inferences; drawn from
circumstances. The plaintiff has to prove actual possession for
grant of permanent injunction.
12. According to the first respondent-plaintiff, he was
conducting business of hotel and Pan shop in the suit
8
premises and also carrying on fabrication work. As pointed
out by the trial court, the first respondent-plaintiff admitted
that for running the business of hotel and Pan shop, two
licences are required. In his evidence, the first respondentplaintiff admitted that he was not holding any licence issued
by the Pune Municipal Corporation for carrying on business.
The trial court also pointed out that the first respondent has
admitted that three-phase electricity connection is required
for carrying out the business of fabrication which he was
allegedly carrying on in the suit premises. But in his crossexamination, the first respondent admitted that he does not
have such three-phase electricity connection at the suit
premises. In the absence of requisite electricity connection,
the contention of the first respondent that he has been
carrying on the business of fabrication at the suit premises
does not appear to be probable. In the absence of licence and
the requisite electricity connection, the trial court rightly
rejected the plea of the first respondent that he has been
carrying on business of hotel, Pan shop and fabrication work
at the suit premises.
13. Contention of the appellant-defendant that after 1991,
the first respondent-plaintiff was not in possession of the suit
property is corroborated by the evidence of Sandeep Wagh.
In his evidence, Sandeep Wagh stated that he knows the first
9
respondent-plaintiff and appellant-defendant and that the first
respondent-plaintiff had met with an accident and thereafter
he was not carrying on any business at the suit premises.
Based upon the evidence of appellant-defendant and Sandeep
Wagh, the trial court has arrived at conclusion that in all
probability, the first respondent-plaintiff must have vacated
the suit premises in the year 1991. In our considered view,
the First Appellate Court ought not to have interfered with the
findings of fact recorded by the trial court on the basis of
Purshis Ex.-41.
14. The conclusion of the trial court that the first
respondent-plaintiff vacated the suit property since the year
1991 is fortified by yet another circumstance viz., nonpayment of rent by the respondent-plaintiff. Admittedly, ever
since withdrawal of earlier suit RCS No.1004/1988, the first
respondent-plaintiff has not paid any rent from the year 1991.
Be it noted, that the appellant-defendant had also not
initiated any proceedings claiming rent or arrears of rent from
the first respondent-plaintiff. After filing of the suit in 2004,
the first respondent-plaintiff has sent a cheque dated
14.05.2005 for Rs.10,395/- towards payment of rent for 189
months thereby admitting that he has not paid the rent for
more than fifteen years. The trial court also observed that the
first respondent-plaintiff has suppressed the material fact that
10
he has not paid the rent from 1991. The trial court observed
that the first respondent-plaintiff has not come to the court
with clean hands and that he cannot sustain his claim for the
equitable relief of permanent injunction.
15. The First Appellate Court did not keep in view that the
first respondent-plaintiff has not shown that he has paid any
rent after 1991 and that without paying rent, he cannot have
any legitimate right to be in possession of the suit premises.
The party seeking injunction based on the averment that he is
in possession of the property and seeking assistance of the
Court while praying for permanent injunction restraining other
party who is alleged to be disturbing the possession of the
plaintiff, must show his lawful possession of the property.
Having not paid rent for more than fifteen years, it cannot be
said that possession of the first respondent-plaintiff can be
said to lawful possession entitling him to grant of permanent
injunction.
16. The appellant-defendant decided to develop his property
through second respondent-builder and in that regard, a
public notice was given calling for objections from persons,
whether any person having any interest in the property. At
that time, the first respondent-plaintiff issued notice dated
13.04.2000 through his advocate claiming that he is a tenant
of the portion of the land measuring 1000 sq. ft. since last
11
twenty two years. In the earlier suit RCS No.1004/1988, the
tenanted premises was described as only one room. In its
order in the interlocutory application (Ex.-5) dated
17.10.2005, the trial court has pointed out that the total area
of the premises described in all the schedule is 356 sq. ft. It
is not known how the first respondent-plaintiff issued legal
notice claiming tenancy right over thousand square feet. As
pointed out by the trial court, objection of the first
respondent-plaintiff was rejected by the Corporation and
accordingly, layout of the proposed building on the said land
was sanctioned by the Corporation (Ex.-42/4). This conduct of
the first respondent-plaintiff also disentitles him from
claiming the equitable relief of permanent injunction and
these aspects were not properly appreciated by the First
Appellate Court.
17. As discussed earlier, in a suit filed under Section 38 of
the Specific Relief Act, possession on the date of suit is a
must for grant of permanent injunction. When the first
respondent-plaintiff has failed to prove that he was in actual
possession of the property on the date of the suit, he is not
entitled for the decree for permanent injunction.
18. Upon appreciation of the oral and documentary
evidence, the trial court rightly held that the first respondentplaintiff failed to prove his actual and physical possession
12
over the suit property on the date of the suit. When the
finding of the trial court was based on oral and documentary
evidence, the First Appellate Court and the High Court were
not right in setting aside the judgment of the trial court by
drawing inference of possession from Purshis Ex.-41. In our
considered view, the First Appellate Court and the High Court
fell in error by presuming that the first respondent-plaintiff
was in possession by merely relying upon the prior suit filed
by the appellant-defendant for possession and Purshis Ex.-41.
The impugned order of the High Court affirming the findings
of the First Appellate Court is not sustainable and is liable to
be set aside.
19. In the result, the impugned judgment dated 23.06.2016
passed by the High Court in Writ Petition No.6873/2016 is set
aside and this appeal is allowed. The suit RCS No.430/2004
filed by the first respondent is dismissed. No costs.
..……………………….J.
 [R. BANUMATHI]
 …...………………………..J.
[R. SUBHASH REDDY]
New Delhi;
February 06, 2019

13

“mis-joinder of parties and causes of action”. In Para (1) of the application, it was categorically mentioned that there was mis-joinder of parties and causes of action.-The trial court in its order dated 17.08.2011 has also clearly held that plaintiff has clubbed different causes of action which is to be deleted from the present suit. The trial court further held that the plaintiff is not justified in including different properties and separate cause of actions combining in single suit.

Hon'ble Mr. Justice Ashok Bhushan
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1052 OF 2019
SHIVNARAYAN (D) BY LRS. ...APPELLANT(S)
VERSUS
MANIKLAL (D)THR. LRS. & ORS. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed by the appellant
against the judgment of High Court of Madhya Pradesh
dated 13.11.2013 by which judgment writ petition
filed by the appellant challenging the order dated
17.08.2011 of the III Additional District Judge,
Indore in Civil Suit No.60-A of 2010 has been upheld
dismissing the writ petition.
2. Brief facts of the case necessary to be noticed
for deciding this appeal are:-
2.1 The appellant filed Civil Suit No.60-A of
2010 before the District Judge praying for
1
declaring various transfer documents as null
and void with regard to suit property
mentioned in Para No. 1A and Para No.1B of
the plaint. Plaintiff also prayed for
declaration that suit properties mentioned
in Para Nos.1A and 1B are Joint Family
Property of plaintiff and defendant Nos. 1
to 3 and plaintiff is entitled to receive
1/3rd part of the suit property. A Will
executed by one Lt. Smt. Vimal Vaidya was
also sought to be declared to be null and
void. Certain other reliefs were claimed in
the suit. The parties shall be referred to
as described in the suit. The plaintiff in
Para No.2 of the plaint has set the
following genealogy of the parties:-
“Kaluram Bairulal Vaidya
(Since Deceased dt. 15/08/1969)
Shankarlal Maniklal Babulal Shivnarayan
(20/04/98) (Dft. No.1) (4/11/75)
(Plaintiff)
(Deceased) (Deceased)
 Vimal
 Leelbai Sushilaben (25.11.2007)
 Def. No.2 Def. No.3 (Wife of Deceased)”
2
2.2 In Para No.1 of the plaint, description of
the property was mentioned to the following
effect:-
1.A) Plot No. SP 79, Sudama
Nagar Indore (M.P.) size 30
ft. X 50 ft. area 1500 Sq. Ft.
through membership no. 2905 of
Shikshak Kalyar Samiti, Sudama
Nagar, Indore.
B) Bombay Suburban District S.
No. 341, Pt. of Bandra Grant
Flat No.C/1/3, Sahitya Sahavas
Co-op. Housing Society, Second
Floor, building known as
“Abhang” Bandra (E), Mumbai400 051 situated on the plot
bearing no. C.T.S. No. 629,
(S. No. 341-A.B.S.D.)
Madhusudan Kalekar Marg,
Gandhinagar, Bandra (East)
Mumbai – 51.
2.3 The plaintiff sought relief with regard to
two properties (hereinafter referred to as
Indore property, situate at Indore, State of
Madhya Pradesh and Mumbai property situate at
Mumbai, State of Maharashtra). Plaintiff’s
case in the plaint was that Indore Property
was purchased by plaintiff’s father in the
year 1968-1969. Plaintiff’s father died on
15.08.1969. Thereafter, Indore property was
joint family property of the plaintiff and
defendant Nos. 1 to 3. Plaintiff’s brother
3
Babulal shifted to Pune. Babulal was
allotted Mumbai property under a Government
Scheme for extraordinary persons like writers
and educationist. Babulal died in the year
1975. Thereafter, the Mumbai property, on
the basis of succession certificate issued by
Court of Civil Judge (Senior Division), Pune
came in the name of widow of Babulal, Smt.
Vimal Vaidya. Smt. Vimal Vaidya transferred
the Mumbai flat by sale deed dated 15.10.2007
in favour of defendant Nos. 7 and 8. It was
further pleaded in the plaint that Smt. Vimal
Vaidya also dealt with Indore Property. The
name of Smt. Vimal Vaidya was mutated in the
year 1986 in the Indore property and
thereafter she transferred the Indore
property in favour of defendant Nos. 9 and
10. One set of pleadings was with regard to
a Will executed in the year 2000 by Smt.
Vimal Vaidya in favour of defendant Nos. 4 to
6. On aforesaid pleadings, following reliefs
were prayed in Para No. 25 of the plaint:-
“A) The property mentioned in Para
No.1 of the Plaint and its deed
4
of transfer documents be declared
null and void which is not
binding on the part of the
plaintiff.
B) The property mentioned in Para
No.1B of Plaint and document
related to its registered deed to
transfer be declared null and
void and which is not binding on
the part of Plaintiff.
C) The property mentioned in Para
No. 1A and 1B of the Plaint is
joint family property of the
Plaintiff and defendant No. 1 to
3 be declared joint family
property and Plaintiffs right to
receive 1/3 part of the suit
property.
D) Court Commissioner be appointed to
make division of suit property
and 1/3 part possession be given
to the Plaintiff.
E) During the hearing of the suit
injunction order be passed in
respect of the property not to
create third party interest by
the Defendants.
F) Plaintiff's suit be declared
decreed with the expenses.
G) To grant any other relief which
this Hon'ble Court may be fit in
the interest of justice.
H) The forged will executed by Late
Vimal Vaidya under influence of
defendant No. 4 and his
associates relatives Defendant
No. 5 and 6 and other relatives
of Kher family. Because, Late
Babulal Vaidya was a member of
5
undivided Hindu family.
Therefore, Late. Vimal Vaidya was
not authorized to execute that
alleged will as per the Law.
Therefore, the registered alleged
will be declared null and void
and be declared that it is not
binding on the part of the
Plaintiff.”
2.4 The defendant Nos. 7 and 8 appeared in suit
and filed an application with the heading
“application for striking out pleadings and
dismissing suit against defendants No.7 and 8
for want of it territorial jurisdiction and
mis-joinder of parties and causes of action.”
The defendant Nos. 7 and 8 pleaded that for
property being situated at Bandra East,
Mumbai, the Court at Indore has no
territorial jurisdiction. It was further
pleaded by the defendant that suit suffers
fatally from mis-joinder of parties as well
as causes of action. The defendant Nos. 7
and 8 pleaded that there is no nexus at all
between the two properties – one situate at
Indore and other at Mumbai. Details of
different causes of action and nature of the
properties, details of purchasers for both
6
different sale transactions have been
explained in detail in Para No. 6 of the
application. It was further pleaded that
Mumbai property does not form asset of any
Hindu Undivided Family. Mumbai property was
acquired by Babulal in his own name and after
his death on the basis of succession, it has
come to his sole heir Smt. Vimal Vaidya in
the year 1975. It was pleaded that no part
of the cause of action for the Mumbai
property took place in Indore. In the
application, following reliefs has been
prayed for by the defendant Nos. 7 and 8:-
“(a) All the pleadings and the relief
clauses relating to the property
situate at Mumbai may kindly be
ordered to be struck off from
the plaint, in exercise of
powers conferred on this Hon’ble
Court under Order 6 Rule 16 of
the Civil Procedure Code, and as
a consequence the suit against
the defendants No.7 and 8 may
kindly be dismissed with costs
for the answering defendants;
while the Suit relating to the
Indore property may be continued
if otherwise round maintainable
under the law;
OR in the alternative,
7
An order may kindly be passed
declining to entertain the part
of the suit relating to the
property in Mumbai with costs
for the answering defendants;
and
(b) Such other order may kindly be
passed as may be deemed
appropriate in the circumstances
of the case.”
2.5 The trial court after hearing the parties on
the application dated 19.03.2011 filed by the
defendant Nos. 8 and 9 passed an order dated
17.08.2011 allowed the application. An order
was passed deleting the property mentioned In
Para No. 1B of the plaint and the relief
sought with regard to the said property. The
trial court held that separate cause of
actions cannot be combined in a single suit.
2.6 Aggrieved by the order of the trial court, a
writ petition was filed in the High Court,
which too has been dismissed by the High
Court vide its order dated 13.11.2013
affirming the order of the trial court. High
Court referring to Section 17 of the Civil
Procedure Code, 1908 held that for property
situated at Mumbai, the trial court committed
8
no error in allowing the application filed by
defendant Nos. 7 and 8. The plaintiffappellant aggrieved by the order of the High
court has come up in this appeal.
3. We have heard Shri Vinay Navare for the
appellant. Shri Chinmoy Khaladkar has appeared for
respondent Nos. 7 and 8.
4. Learned counsel for the appellant submits that
High Court did not correctly interpret Section 17 of
the Code of Civil Procedure. The partition suit
filed by the appellant with regard to Mumbai and
Indore properties was fully maintainable. He submits
that Order II Rule 2 of CPC mandates that the
plaintiff must include the whole claim in respect of
a cause of action in the suit. The cause of action
claimed by the plaintiff was denial of the
plaintiff’s right to share in the Joint Family
Property. Restrictive interpretation of Section 17
will do violence to the mandate of Order II Rule 2.
Section 39(1)(c) of the CPC itself contemplate that
there can be a decree of an immovable property, which
is situated outside the local limits of the
9
jurisdiction. The words “immovable property”’ used in
Section 17 is to be interpreted by applying Section
13 of the General Clauses Act. It provides that in
all Central Acts and Regulations, unless the context
and subject otherwise requires, “any singular term
shall include plural”. In event, it is accepted that
with regard to separate properties situated in
different jurisdictions, separate suits have to be
filed that shall result in conflicting findings of
different Courts and shall involve the principles of
res judicata.

5. Learned counsel appearing for defendant Nos. 8
and 9 refuting the submissions of learned counsel for
the appellant contends that no error has been
committed by trial court in deleting the property at
Para No.1B in the plaint as well as pleadings and
reliefs with regard to said property. It is
submitted that Section 17 of the CPC contemplate
filing of a suit with respect to immovable property
situated in jurisdiction of different courts only
when any portion of the property is situated in the
jurisdiction of a Court, where suit has to be filed.
The word “any portion of the property” indicate that
10
property has to be one whose different portions may
be situated in jurisdiction of two or more Courts.
He further submits that there is no common cause of
action with regard to property situate at Indore and
property situate at Mumbai. Transfer deed with
regard to Indore Property as well as transfer deeds
of Mumbai property are different. The purchasers of
both the properties, i.e. Indore property and Mumbai
property are also different. According to pleadings
in the plaint itself, the Mumbai property was
purchased by Babulal, the husband of Smt. Vimla
Vaidya in his own name, which after death of Babulal
in the year 1975 was mutated in the name of Smt.
Vimla Vaidya. The plaintiff has sought to club
different cause of actions in one suit. There is
mis-joinder of the parties also in the suit since the
defendants pertaining to different transactions have
been impleaded in one suit whereas there is no nexus
with the properties, transactions and persons.
Learned counsel for the defendant Nos. 8 and 9
submits that by order of Court of Civil Judge (Senior
Division), Pune, the property is already mutated in
the year 1975 in the name of Smt. Vimla Vaidya after
11
death of her husband, which was rightfully
transferred by her to defendant Nos. 8 and 9 on
15.10.2007. It is submitted that the Court at Indore
might proceed with the property at Indore with the
defendants, who are related to Indore property but
suit pertaining to Mumbai property, transactions
relating thereto and defendants relating to Mumbai
property have rightly been struck off from the case.
6. Before we consider the submissions of the learned
counsel for the parties, relevant provisions
pertaining to place of suing as contained in Code of
Civil Procedure needs to be noted. Section 15 to
Section 20 contains a heading “place of suing”.
Section 16 provides that Suits to be instituted where
subject-matter situate. Section 16 is as follows:-
16. Suits to be instituted where subjectmatter situate.--Subject to the pecuniary
or other limitations prescribed by any law,
suits-
(a) for the recovery of immovable
property with or without rent or
profits,
(b) for the partition of immovable
property,
(c) for foreclosure, sale or
redemption in the case of a
12
mortgage of or charge upon
immovable property,
(d) for the determination of any
other right to or interest in
immovable property,
(e) for compensation for wrong to
immovable property,
(f) for the recovery of movable
property actually under
distraint or attachment,
shall be instituted in the Court
within the local limits of whose
jurisdiction the property is
situate:
Provided that a suit to obtain relief
respecting, or compensation for wrong to,
immovable property held by or on behalf of
the defendant, may where the relief sought
can be entirely obtained through his
personal obedience, be instituted either in
the Court within the local limits of whose
jurisdiction the property is situate, or in
the Court within the local limits of whose
jurisdiction the defendant actually and
voluntarily resides, or carries on
business, or personally works for gain.
Explanation.– In this section “property”
means property situate in India.
7. Section 17, which falls for consideration in the
present case, deals with suits for immovable property
situate within jurisdiction of different courts is as
follows:-
17. Suits for immovable property situate
within jurisdiction of different Courts.--
Where a suit is to obtain relief
13
respecting, or compensation for wrong to,
immovable property situate within the
jurisdiction of different Court, the suit
may be instituted in any Court within the
local limits of whose jurisdiction any
portion of the property is situate :
Provided that, in respect of the value
of the subject matter of the suit, the
entire claim is cognizable by such Court.
8. We need to notice the Scheme under Code of Civil
Procedure as delineated by Sections 16 and 17.
Section 16 provides that suit shall be instituted in
the Court within the local limits of whose
jurisdiction the property is situated. Section 16(b)
mentions “for the partition of immovable property”.
9. Now, we look into Section 17, which deals with
suits for immovable property situated within
jurisdiction of different Courts. As per Section 17,
the suit may be instituted in any Court within the
local limits of whose jurisdiction any portion of the
property is situated. What is the meaning of the
word “any portion of the property”? There may be a
fact situation where immovable property is a big
chunk of land, which falls into territorial
jurisdiction of two courts in which fact situation in
Court in whose jurisdiction any portion of property
14
is situated can entertain the suit. Whether Section
17 applies only when a composite property spread in
jurisdiction of two Courts or Section 17 contemplate
any wider situation. One of the submissions of the
learned counsel for the appellant is that the word
“property” as occurring in Section 17 shall also
include the plural as per Section 13 of General
Clauses Act, 1897. Section 13 of the General Clauses
Act provides:-
13. Gender and number.-In all Central Acts
and Regulations, unless there is anything
repugnant in the subject or context.-
(1) Words importing the masculine gender
shall be taken to include females; and
(2) words in the singular shall include
the plural, and vice versa.
10. Applying Section 13 of General Clauses Act, the
Bombay High Court explaining the word “property” used
in Section 17 held that it includes properties. We
are also of the same view that the word “property”
used in Section 17 can be more than one property or
properties.
11. The word “property” under Section 17 of the Civil
Procedure code may also be properties, hence, in a
15
schedule of plaint, more than one property can be
included. Section 17 can be applied in event there
are several properties, one or more of which may be
located in different jurisdiction of courts. The
word “portion of the property” occurring in Section
17 has to be understood in context of more than one
property also, meaning thereby one property out of a
lot of several properties can be treated as portion
of the property as occurring in Section 17. Thus,
interpretation of word “portion of the property”
cannot only be understood in a limited and
restrictive sense of being portion of one property
situated in jurisdiction of two courts.
12. We now look into the decisions of various Courts
in reference to Section 17 of Civil Procedure Code.
How the word “property” and “portion of the property”
occurring in Section 17 has been understood by
different High Courts. There are few decisions of
the Privy Council also where Section 17 of the Civil
Procedure Code came for consideration. In Nilkanth
Balwant Natu and Others Vs. Vidya Narasinh Bharathi
Swami and Others, AIR 1930 PC 188, Privy Council had
occasion to consider Section 17 of Civil Procedure
16
Code. The properties in respect of which relief was
sought by the plaintiff were situated in Satara,
Belgaum and Kolhapur. Although Satara and Belgaum
were situated in British India but Kolhapur was not.
The Privy Council after noticing the provision of
Sections 17 and 16(c) laid down following:-
“The learned Judge had jurisdiction to
try the suit so far as it related to the
mortgaged properties situate in Satara;
and, inasmuch as the mortgaged properties
in Belgaum are within the jurisdiction of a
different Court in British India, he had
jurisdiction to deal with those properties
also.”
13. The Privy Council, thus, held that Satara Court
had jurisdiction to entertain suit with regard to
property situated at Satara and Belgaum whereas it
has no jurisdiction to entertain suit pertaining to
Kolhapur, which was not in the British India. In
another case of Privy Council, Nrisingha Charan Nandy
Choudhry Vs. Rajniti Prasad Singh and Others, AIR
1936 PC 189, mortgage lands were in the Sonthal
Parganas, State of Bihar and also in the Gaya
district of State of Bihar. In Paragraph 9,
following was laid down:-
“9. Now, the mortgage deeds include, as
already stated, lands situated, not only in
17
the Sonthal Parganas, but also in the Gaya
District. What is the ordinary rule for
determining the court which can take
cognizance of a suit for immovable property
situated within the local limits of two or
more tribunals? The answer is furnished by
Section 17 of the Code of Civil Procedure
(Act V. of 1908), which provides that where
a suit is to obtain relief respecting
immovable property situate within the
jurisdiction of different courts, the suit
may be instituted in any court within the
local limits of whose jurisdiction any
portion of the property is situate.”
14. Different High Courts have also while
interpreting Section 17 of Civil Procedure Code laid
down that Section 17 is applicable in case where
properties are situated in the jurisdiction of more
than one court. In Rajendra Kumar Bose Vs. Brojendra
Kumar Bose, AIR 1923 Calcutta 501, the Division Bench
of the Calcutta High Court noticed following:-
“Exceptions to the rule that a suit cannot
lie for partition of a portion of the
family property have been recognised when
different portions of the family property
are situated in different jurisdictions,
aid separate suits for separate portions
have sometimes been allowed, where
different rules of substantive or adjective
law prevail in the differed Courts; Hari v.
Ganpat Rao, (1883) 7 Bom. 272; Ramacharia
v. Anantacharia, (1894) 18 Bom. 389; Moti
Ram v. Kanhaya Lal, AIR 1920 Lah. 474;
Panchanon v. Sib Chandra, (1887) 14 Cal.
835; Balaram v. Ram Chandra, (1898) 22 Bom.
922; Abdul v. Badruddin, (1905) 28 Mad.
216; Padmani v. Jagadamba, (1871) 6 B.L.R.
18
134; Rammohan v. Mulchand, (1906)28 All.
39; Lachmana v. Terimul, 4 Mad. Jur. 241;
Subba v. Rama, (1866-67) 3 Mad. H.C.R. 376;
Jayaram v. Atmaram, (1879) 4 Bom. 482;”
15. A Full Bench of Allahabad High Court in Kubra Jan
Vs. Ram Bali and Others, (1908) ILR 30 All. 560 had
occasion to consider suit, which was filed at
Bareilly with regard to Bareilly property as well as
Bara Banki property situated in two different
districts. The jurisdiction at Bareilly Court was
upheld in Paragraph Nos. 1 and 8, in which it was
laid down as follows:-
“1. This appeal has been laid before a Full
Bench by reason of a conflict in the
authorities upon a question raised in the
appeal. The suit is one by the daughter of
one Bande Ali to recover from her brother
Akbar Husain and a number of other
defendants, transferees from him, her share
in the property of her deceased father. This
property is situate in the district of
Bareilly and also in the district of Bara
Banki in Oudh. It appears that Akbar Husain
transferred the Bareilly property to the
defendants Nos. 2 to 8 and the Bara Banki
property to persons from whom the defendant
respondent Ram Bali acquired it by virtue of
a decree for pre-emption. The suit in regard
to the Bareilly property was compromised,
with the result that the claim in respect of
that property was abandoned, and the suit
proceeded as regards the Bara Banki property
only.
8. Again, it is said that after the
compromise in respect of the Bareilly
19
property the Court ceased to have any
jurisdiction to deal with the plaintiff's
claim, that is, that though the Bareilly
Court bad jurisdiction, when the plaint was
filed, to deal with the suit, it ceased to
have jurisdiction when portion of the
property claimed was withdrawn from the
litigation. 'It seems to me that once
jurisdiction is vested in a Court, in the
absence of a provision of law to the
contrary, that jurisdiction will not be
taken away by any act of the parties. There
is no allegation here that the plaint was
filed in the Bareilly Court with any
intention to defeat the provisions of the
Code of Civil Procedure as regards the venue
of suits for recovery of immovable property.
If any fraud of that kind had been alleged
and proved, other considerations would
arise. But in this case, as I have said, no
such suggestion has been made.”
16. Similar view was taken in Ramdhin and Others Vs.
Thakuran Dulaiya and Others, AIR 1952 Nag. 303 (Full
Bench); Basanta Priya Dei and Another Vs. Ramkrishna
Das and Others, AIR 1960 Ori. 159; Laxmibai Vs.
Madhankar Vinayak Kulkarni and Others, AIR 1968 Kant.
82; Prem Kumar and Others Vs. Dharam Pal Sehgal and
Others, AIR 1972 Delhi 90 and Janki Devi Vs. Mannilal
and Others, AIR 1975 All. 91.
17. The views of the different High Courts as well as
of the Privy Council, as noticed above, clearly
indicate that Section 17 has been held to be
20
applicable when there are more than one property
situated in different districts.
18. The point to be noticed is that the
permissibility of instituting suit in one Court,
where properties, which are subject matter of the
suit are situated in jurisdiction of different courts
have been permitted with one rider, i.e., cause of
action for filing the suit regarding property
situated in different jurisdiction is one and the
same. In a suit when the cause of action for filing
the suit is different, the Courts have not upheld the
jurisdiction of one Court to entertain suits
pertaining to property situated in different courts.
In this context, we need to refer to some judgments
of High Courts as well as of the Privy Council, which
has considered the issue. In Sardar Nisar Ali Khan
Vs. Mohammad Ali Khan, AIR 1932 PC 172, Privy Council
had occasion to consider the case where subject
matter of the suit were several properties situated
in jurisdiction of different courts. Suit was
instituted in Oudh (which later became part of Uttar
Pradesh). The Privy Council held that since there
was different cause of actions, the same cannot be
21
clubbed together. One of the properties, which was
situated in Punjab was referred to in the suit as
Khalikabad property. Although, suit with regard to
the other three properties had similar cause of
action but cause of action with regard to Khalikabad
property being found to be different, the Court held
that Section 17 Civil Procedure Code was not
applicable. Following was laid down in the case by
the Privy Council:-
“There remains the question of the
Khalikabad estate. Here the respondent
cannot succeed unless he shows that under
the terms of the deed creating the wakf he
is the trustee. That question depends upon
the construction of the deed. It is a
separate and different cause of action from
these which found the proceedings in
respect of the other three properties.
Their Lordships are unable to find any
jurisdiction for bringing the suit in
respect of this property elsewhere than in
the Court of the district where the
property is situate. Such justification
cannot in their Lordships' judgment be
found in Section 17, Civil P.C. upon which
the respondent relied.”
19. A Two-Judge Bench judgment of Allahabad High
Court has been heavily relied upon by the learned
counsel for the respondent reported in AIR 1942 All.
387, Karan Singh and Others Vs. Kunwar Sen and
Others. In the above case, suit properties were
22
situated in Haridwar and Amritsar. Suit was filed
in the Court of Civil Judge, Saharanpur. An
application under Section 22, Civil P.C. was filed to
determine as to whether a suit which is pending in
the Court of the Civil Judge of Saharanpur should
proceed in the corresponding Court having
jurisdiction at Amritsar in the Punjab. The Court
after noticing Section 17 held that plaintiffs were
claiming two properties against two set of
defendants, whom they alleged to be trespassers. The
Court held that unless suit is filed on one cause of
action, two properties situate in different
jurisdiction cannot be clubbed. Following was laid
down:-
“Having made these observations I must now
return to the question whether in the suit
with which we are dealing it can be said
that the relief claimed against the
Defendants in possession of the property at
Hardwar and the Defendants in possession of
the property at Amritsar arises out of the
same series of acts or transactions and
whether the two properties claimed can, for
the purposes of Section 17, be described as
a single entity. It must be admitted that
there is no apparent connection between the
transfer of the Amritsar property to Amar
Nath under the will executed by Jwala Devi
and the subsequent transfers made by him
and his successors-in-interest on the one
hand and the transfer made by Prem Devi of
the Hardwar property on the other hand. It
23
must be admitted also that the Plaintiffs
are not claiming the estates of Badri Das
as a whole against any rival claimant to
the estate. They are claiming two
properties against two sets of Defendants
whom they allege to be trespassers and who,
if they are trespassers, have absolutely no
connection with each other. The only
connecting link is that the Plaintiff's
claim in both the properties arose at the
time of the death of Prem Devi and that the
claim is based on the assumption that the
Defendants are in possession as the results
of transfers made by limited owners who
were entitled, during their lives, to the
enjoyment of the whole estate and the
properties comprised within it. It was held
many years ago in the case of Mst. Jehan
Bebee v. Saivuk Ram (1867) H.C.R. 1. 109,
that unconnected transfers by a Hindu widow
of properties comprised within the
husband's estate did not give rise to one
cause of action against the various
transferees. The same rule was laid down in
the case of Bindo Bibi v. Ram Chandra
(1919) 17 A.L.J. 658. In that case a
reference was made to the decision in Murti
v. Bhola Ram (1893) 16 All 165 and it was
pointed out that that was a case where a
claim was made against one Defendant who
had taken possession of different
properties in execution of one decree.
There is no doubt that that case is clearly
distinguishable from the case with which we
are dealing……………………”
20. The above judgment was subsequently relied and
explained by Allahabad High Court in Smt. Janki Devi
Vs. Manni Lal and Others, AIR 1975 All. 91. In
Paragraph No.11, following was laid down:-
24
“11. Similar view was expressed in Smt.
Kubra Jan v. Ram Bali, (1908)ILR 30 All 560
. This Full Bench decision does not appear
to have been brought to the notice of the
Division Bench hearing the case of Karam
Singh v. Kunwar Sen AIR 1942 All 387.
However, many observations made therein are
not contrary to the law laid down in the
above mentioned Full Bench case. The sum
and substance of this Division Bench case
also is that where in the facts and
circumstances of the case all the
properties can be treated as one entity a
joint trial shall be permissible but not
where they are more or less different
properties with different causes of action.
The material observations are as below:--
"........ and this implies, in my
judgment, that the acts or
transactions, where, they are
different, should be so connected as
to constitute a single series which
could fairly be described as one
entity or fact which would constitute
a cause of action against all the
defendants jointly. Whether this
necessary condition exists in any
particular case would, of course,
depend upon the nature of the case
but I am satisfied that this at least
is necessary that the case should be
such that it could be said that the
Court in which the suit was
instituted had local jurisdiction in
the first instance to deal with the
controversies arising between the
plaintiffs and each of the
defendants………………
The property must, in the particular
circumstances of the suit, be capable of
being described as a single entity. Whether
it can or cannot be so described will
depend again upon the nature of the dispute
between the parties. If there is a dispute,
25
for instance about a single estate which
both parties are claiming as a whole that
estate is obviously for the purposes of
that particular suit a single entity. If,
on the other hand, the owner of an estate
has a claim against unconnected trespassers
who have trespassed upon different parts of
the estate or different properties situated
within it, those parts or those properties
would not for the purposes of the dispute
between him and the trespassers be one
entity but several entities and the
provisions of Section 17, would not
apply".”
21. Thus, for a suit filed in a Court pertaining to
properties situated in jurisdiction of more than two
courts, the suit is maintainable only when suit is
filed on one cause of action.
22. Justice Verma of Allahabad High Court in his
concurring opinion in Karan Singh v. Kunwar Sen
(supra) while considering Section 17 of C.P.C. has
explained his views by giving illustration. Following
was observed by Justice Verma:
“I agree, Suppose a scattered Hindu dies
possessed of immovable property scattered
all over India at Karachi, Peshwar, Lahore,
Allahabad, Patna, Dacca, Shillong,
Calcutta, Madras and Bombay and is
succeeded by his widow who, in the course
of 40 or 50 years, transfers on different
dates portions of the property situated at
each of the places mentioned above, to
different persons each of whom resides at
the place where the property transferred to
26
him is situated, and the transfers are
wholly unconnected with, and independent of
one another. Upon the widow’s death the
reversioner wants to challenge these
various transfers. Learned counsel for the
plaintiffs has argued that in such a case
the reversioner is entitled to bring one
suit challenging all the transfers at any
one of the places mentioned above,
impleading all the transferees, I find it
very difficult to hold that such a result
is contemplated by the provisions of the
Code of Civil Procedure upon which reliance
has been placed and which are mentioned in
the judgment of my learned brother. I do
not consider it necessary to pursue the
matter any further. It is clear to my mind
that, if the plaintiffs; argument mentioned
above is accepted, startling results will
follow.”
23. Now, we come to submission of learned counsel for
the appellant based on Section 39 sub-section (1)
(c)of C.P.C. It is submitted that Section 39(1)(c) of
C.P.C. is also a pointer to what is intended in
Section 17. The scheme as delineated by Section 39
indicates that when a decree is passed by a Court
with regard to sale or delivery of immovable property
situated outside the local limits of the jurisdiction
of that Court it may transfer the decree for
execution to another Court. The provision clearly
indicates that a decree of Court may include
immovable property situate in local limits of that
27
Court as well as property situated outside the local
limits of the jurisdiction of the Court passing the
decree. Section 39(1)(C) re-enforces our conclusion
that as per Section 17 suit may be filed with regard
to immovable property situated outside the local
limit of the jurisdiction of the Court. We may,
however, add that passing a decree by a Court with
regard to immovable property situate outside the
local jurisdiction of the Court passing the decree
may not only confine to Section 17 but there may be
other circumstances where such decree is passed.
Section 20 of C.P.C. may be one of the circumstances
where decree can be passed against the defendant
whose property may situate in local jurisdiction of
local limits of more than one Court.
24. We may further notice that Section 17 uses the
words ‘the suit may be instituted in any Court’. The
use of word in Section 17 makes it permissive leaving
discretion in some cases not to file one suit with
regard to immovable property situated in local
jurisdiction of more than one court. One of the
exceptions to the rule is cases of partial partition
28
where parties agree to keep some property joint and
get partition of some of the properties.
25. The partial partition of property is well
accepted principle with regard to a joint family. In
Mayne’s Hindu Law & Usage, 16th Edition in paragraph
485 following has been stated:
“485. Partition partial or total.-
Partition may be either total or partial. A
partition may be partial either as regards
the persons making it or the property
divided.
Partial as to properties.- It is open to
the members of a joint family to severe in
interest in respect to a part of the joint
estate while retaining their status of a
joint family and holding the rest as the
properties of an undivided family. Until
some positive action is taken to have
partition of joint family property, it
would remain joint family property.”
26. Mulla on Hindu Law, 22nd Edition also refers to
partial partition both in respect of the property and
or in respect of the persons making it. In paragraph
327 following has been stated:
“”327. Partial partition.-(1) A partition
between coparceners may be partial either
in respect of the property or in respect of
the persons making it.
After a partition is affected, if some
of the properties are treated as common
29
properties, it cannot be held that such
properties continued to be joint
properties, since there was a division of
title, but such properties were not
actually divided.
(2) Partial as to property.- It is open
to the members of a joint family to make a
division and severance of interest in
respect of a part of the joint estate,
while retaining their status as a joint
family and holding the rest as the
properties of a joint and undivided
family.”
The issues arising in the present case being not
related to subject of partial partition the issue
need not to be dealt with any further.
27. Learned counsel for the appellant has also
submitted that permitting filing of a separate suit
with regard to property situate in different
jurisdiction shall give rise to conflicting decision
and decision in one suit may also be res judicata in
another suit. We in the present case being not
directly concerned with a situation where there are
more than one suit or a case having conflicting
opinion we need not dwell the issue any further.
28. Sections 16 and 17 of the C.P.C. are part of the
one statutory scheme. Section 16 contains general
principle that suits are to be instituted where
30
subject-matter is situate whereas Section 17 engrafts
an exception to the general rule as occurring in
Section 16. From the foregoing discussions, we arrive
at following conclusions with regard to ambit and
scope of Section 17 of C.P.C.
(i) The word ‘property’ occurring in Section 17
although has been used in ‘singular’ but by
virtue of Section 13 of the General Clauses Act
it may also be read as ‘plural’, i.e.,
”properties”.
(ii) The expression any portion of the property can
be read as portion of one or more properties
situated in jurisdiction of different courts
and can be also read as portion of several
properties situated in jurisdiction of
different courts.
(iii) A suit in respect to immovable property or
properties situate in jurisdiction of different
courts may be instituted in any court within
whose local limits of jurisdiction, any portion
of the property or one or more properties may
be situated.
(iv) A suit in respect to more than one property
situated in jurisdiction of different courts
can be instituted in a court within local
limits of jurisdiction where one or more
properties are situated provided suit is based
on same cause of action with respect to the
31
properties situated in jurisdiction of
different courts.
29. Now, we revert to the facts of the present case
and pleadings on record. The suit filed by the
appellant contained three different sets of
defendants with different causes of action for each
set of defendants. Defendant Nos. four to six are
defendants in whose favour Will dated 15.02.2000 was
executed by late Smt. Vimal Vaidya. In the plaint,
relief as claimed in paragraph 25(H)is the will
executed by late Smt. Vimal Vaidya was sought to be
declared as null and void. The second cause of action
in the suit pertains to sale deed executed by late
Smt. Vimal Vaidya dated 15.10.2007 executed in favour
of defendant Nos.7 and 8 with regard to Bombay
property. The third set of cause of action relates to
transfer documents relating to Indore property which
was in favour of defendant Nos.9 and 10. The transfer
documents dated 21.10.1986, 21.11.1988 and 20.08.1993
are relating to Indore property. The plaint
encompasses different causes of action with different
set of defendants. The cause of action relating to
Indore property and Bombay property were entirely
different with different set of defendants. The suit
32
filed by the plaintiff for Indore property as well as
Bombay property was based on different causes of
action and could not have been clubbed together. The
suit as framed with regard to Bombay property was
clearly not maintainable in the Indore Courts. The
trial court did not commit any error in striking out
the pleadings and relief pertaining to Bombay
property by its order dated 17.08.2011.
30. Learned counsel for the appellant has also
referred to and relied on order II Rule 2 and Order
II Rule 3 C.P.C. Learned counsel submits that order
II Rule 2 sub-clause (1) provides that every suit
shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause
of action. The cause of action according to Order II
Rule 2 sub-clause (1) is one cause of action. What is
required by Order II Rule 2 sub-clause (1) is that
every suit shall include the whole of the claim on
the basis of a cause of action. Order II Rule 2
cannot be read in a manner as to permit clubbing of
different causes of action in a suit. Relying on
Order II Rule 3 learned counsel for the appellant
submits that joinder of causes of action is
33
permissible. A perusal of sub-clause (1) of Order II
Rule 3 provides that plaintiff may unite in the same
suit several causes of action against the same
defendant, or the same defendants jointly. What is
permissible is to unite in the same suit several
causes of action against the same defendant, or the
same defendants jointly. In the present case suit is
not against the same defendant or the same defendants
jointly. As noticed above there are different set of
defendants who have different causes of actions.
31. Learned counsel has lastly submitted that
defendant Nos. 7 and 8 in their application having
not questioned the cause of action for which suit was
filed, the submission raised on behalf of the counsel
for the respondent that suit was bad for misjoinder
of the causes of action cannot be allowed to be
raised.
32. It is relevant to notice in the application filed
by defendant Nos. 7 and 8, the heading of the
application itself referred to “mis-joinder of
parties and causes of action”. In Para (1) of the
application, it was categorically mentioned that
34
there was mis-joinder of parties and causes of
action. The trial court in its order dated 17.08.2011
has also clearly held that plaintiff has clubbed
different causes of action which is to be deleted
from the present suit. The trial court further held
that the plaintiff is not justified in including
different properties and separate cause of actions
combining in single suit.
33. We, thus, are of the view that the trial court
has rightly allowed the application filed by the
defendant Nos.7 and 8. The High court did not commit
any error in dismissing the writ petition filed by
the appellant challenging the order of the trial
court.
34. We do not find any merit in this appeal, the
appeal is dismissed accordingly.
......................J.
 (ASHOK BHUSHAN )
......................J.
New Delhi, (K.M. JOSEPH )
February 06, 2019.
35