Delhi High Court
Ravinder Chaudhary vs Kishan Kumar Pauchauri & Ors on 4 July, 2018
Equivalent citations: AIRONLINE 2018 DEL 1741
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 4th July, 2018
+ C.R.P. No.176/2016 & CM No.39733/2016 (for stay).
RAVINDER CHAUDHARY ..... Petitioner
Through: Mr. Anuj Kumar, Adv.
versus
KISHAN KUMAR PAUCHAURI & ORS ..... Respondents
Through: Mr. R.K. Sahni, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Revision Petition under Section 115 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 4th May,
2016 in CS No.360/2014 of the Court of the Additional District Judge-02
(NE), Karkardooma Courts, Delhi] in favour of the respondent no.1 /
plaintiff and against the petitioner / defendant no.1 and respondents no.2 to 8
/ defendants with respect to property bearing No.K-5/39A, Street No.33,
West Ghonda, Delhi - 110 053, of (i) recovery of possession of the said
property; (ii) of permanent injunction restraining creation of any third party
interest or parting with possession of property except without due process of
law; and, (iii) of declaration that the documents in possession of the
petitioner / defendant no.1 and respondents no.2 to 8 / defendants in respect
of title to the aforesaid property are null and void and of cancellation of said
documents.
2. This Revision Petition under Section 115 of the CPC, instead of an
appeal under Section 96 of the CPC, has been preferred against the
impugned decree owing to the suit filed by the respondent no.1 / plaintiff,
insofar as for recovery of possession, being titled as under Section 6 of the
C.R.P. No.176/2016 Page 1 of 18
Specific Relief Act, 1963. In fact, in the said suit, mesne profits for
unauthorized and illegal use and occupation were also claimed from the
petitioner / defendant no.1 and respondents no.2 to 8 / defendants but which
have not been granted.
3. The Revision Petition came up first before this Court on 25 th October,
2016 and thereafter on 3rd November, 2016 when notice of the Revision
Petition was ordered to be issued to the respondents. Vide subsequent order
dated 8th March, 2017, on the respondent no.1 / plaintiff appearing before
this Court, stay of the impugned order was granted.
4. On 12th July, 2017 it was found that besides respondent no.1 /
plaintiff, respondents no.2,4,&8 / defendants only had been served and the
petitioner / defendant no.1 had not taken any steps for service of the
respondents no.3&5 to 7 / defendants; however the counsel for the petitioner
/ defendant no.1 stated that the interest of the petitioner / defendant no.1 and
the respondents no.2 to 6 / defendants was the same. In this view of the
matter, service of the unserved respondents no.3,5 to 7 was dispensed with.
It was further informed that the respondent / defendant no.7 Kamlesh, shown
as proforma respondent, is the wife of the respondent no.1 / plaintiff and the
counsel for the respondent no.1 / plaintiff stated that the respondent no.1 /
plaintiff has no adverse interest to the respondent no.7 / defendant. Hence the
service of the respondent no.7 / defendant was also dispensed with. It was
yet further informed that the respondent no.8 Sunita is the subsequent
purchaser from respondent no.5 / defendant and the counsel for the petitioner
/ defendant no.1 stated that the respondent no.8 / defendant had been served
and drew attention to the noting of the Court Master under the order dated 3rd
C.R.P. No.176/2016 Page 2 of 18
November, 2016 to the said effect. Since none appeared for the respondent
no.8 Sunita, she was on 12th July, 2017 proceeded against ex parte.
5. On 12th July, 2017, it was enquired from the counsel for the petitioner
/ defendant no.1, that since the decree impugned was not only of the relief of
recovery of possession under Section 6 of the Specific Relief Act but also of
permanent injunction and declaration coupled with cancellation of
documents, how was the Revision Petition maintainable.
6. The counsel for the petitioner / defendant no.1 stated that the
petitioner / defendant no.1 had earlier preferred RFA No.649/2016 against
the impugned judgment and decree but withdrew the same on 21 st
September, 2016 with liberty to take appropriate remedies and whereafter
this Revision Petition was preferred.
7. It was thus found that there was no finding of an appeal under Section
96 of the CPC against such a decree being not maintainable and the
petitioner / defendant no.1, by unilateral act, though had earlier preferred the
appeal, had withdrawn the same. Being of the prima facie opinion that
against such a decree, the remedy of Regular First Appeal which has a much
wider scope and not of the Revision Petition under Section 115 of the CPC
which has limited scope, would lie and with which the counsel for the
respondent no.1 / plaintiff also agreed, the counsel for the petitioner /
defendant no.1 was asked to explain. On request of the counsel for the
petitioner / defendant no.1, hearing was adjourned to 14th July, 2017.
8. On 14th July, 2017, the counsel for the petitioner / defendant no.1
stated that he had not found any case law on the question and the counsel for
the respondent no.1 / plaintiff handed over copy of judgment in Anathula
C.R.P. No.176/2016 Page 3 of 18
Sudhakar Vs. P. Buchi Reddy (2008) 4 SCC 594 and order on the petition
was intended to be dictated in Chamber. However, no clarity emerged and
the order remained to be passed.
9. The counsel for the respondent no.1 / plaintiff on a subsequent date,
also handed over written arguments along with copy of judgment in Dharam
Dir Vs. Ancha Devi 53 (1994) DLT 191. However, passing of the order went
on the back burner and the judgment on the aforesaid limited aspect is being
pronounced today after intimating the counsels.
10. Section 6 of the Specific Relief Act is as under:-
"6. Suit by person dispossessed of immovable
property.--(1) If any person is dispossessed without his
consent of immovable property otherwise than in due course
of law, he or any person claiming through him may, by suit,
recover possession thereof, notwithstanding any other title
that may be set up in such suit.
(2) No suit under this section shall be brought--
(a) after the expiry of six months from the date of
dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree
passed in any suit instituted under this section, nor shall any
review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from
suing to establish his title to such property and to recover
possession thereof."
11. Supreme Court, in East India Hotels Ltd. Vs. Syndicate Bank 1992
Supp 2 SCC 29 held that the purpose behind Section 6 is to restrain a person
C.R.P. No.176/2016 Page 4 of 18
from using force to dispossess a person without his consent, otherwise than
in due course of law.
12. Notice in this regard may also be taken of Articles 64 & 65 in Part-V
titled „Suits Relating to Immovable Property‟ of the Schedule to the
Limitation Act, 1963. Article 64 provides for a suit for recovery of
possession of immovable property based on previous possession and not on
title, when the plaintiff, while in possession of the property, has been
dispossessed. Article 65 provides for a suit for recovery of possession of
immovable property or any interest therein based on title. For both classes of
suits, limitation of 12 years is provided commencing, for Article 64, from the
date of dispossession and for Article 65, from the date when possession of
the defendant becomes adverse to the plaintiff. The same also indicates that a
suit for recovery of possession of immovable property can be filed either
merely on the basis of prior possession de hors title or on the basis of title.
Though Article 64 provides for limitation of 12 years but Section 6 supra, for
a suit thereunder, provides for a limitation of six months only. A suit for
recovery of immovable property, based on previous possession can thus be
filed either under Section 6, within six months from date of dispossession or
under Article 64 supra, within twelve years from date of dispossession.
While against a decree in a suit for recovery of possession of immovable
property based on previous possession filed otherwise, an appeal under
Section 96 of the CPC would lie but against a decree in a suit for recovery of
possession of immovable property based on previous possession, filed under
Section 6, the remedy of appeal is barred and only a Revision Petition lies.
The reason therefor is that the scope of enquiry in a suit under Section 6 is
limited to, whether the plaintiff was formerly in possession and whether he
C.R.P. No.176/2016 Page 5 of 18
was dispossessed without his consent, otherwise than in due course of law
within six months immediately preceding the date of institution of the suit.
The Court in such a suit does not try the question of title. Reference in this
regard can be made to Lallu Yeshwant Singh Vs. Rao Jagdish Singh AIR
1968 SC 620 and Somnath Burman Vs. S.P. Raju AIR 1970 SC 846. The
procedure under Section 6, in S.R. Ejaz Vs. T.N. Handloom Weavers'
Cooperative Society Ltd. (2002) 3 SCC 137, was held to be summary, as
aforesaid, to discourage people from adopting any foul means to dispossess a
person. In State of U.P. Vs. Maharaja Dharmender Prasad Singh (1989) 2
SCC 505, Krishna Ram Mahale Vs. Shobha Venkat Rao (1989) 4 SCC 131
and Muddanna Vs. Panthanagere Group Panchayat, Kengeri Hobli (2003)
10 SCC 349, it has been held that where a person is in settled possession of
property, even on the assumption that he had no right to remain in the
property, he cannot be dispossessed by the owner of the property except by
due process of law.
13. Notice at this stage may also be taken of Section 5 of the Specific
Relief Act as under:-
5. Recovery of specific immovable property.--A
person entitled to the possession of specific immovable
property may recover it in the manner provided by the Code
of Civil Procedure, 1908 (5 of 1908).
14. As far back as in Ganesh Vs. Dasso AIR 1927 Allahabad 669 and
again in Gokam Chinna Nagaiah Vs. Nagaram Baliga AIR 1956
Hyderabad 170 and Mt. Atra Devi Vs. Ramswaroop Prasad Singh AIR 1972
Patna 186, dealing with pari materia provisions of the Specific Relief Act,
1877, it was held that there is a distinction between a suit based upon a
C.R.P. No.176/2016 Page 6 of 18
possessory title under Section 5 and a suit under Section 6; in the former
case, the plaintiff would be entitled to a decree only where the plaintiff‟s
possession is sufficient proof of his title, while under Section 6, the Court
has merely to see whether the plaintiff was in possession six months prior to
the date of institution of the suit. In Nair Service Society Ltd. Vs. Rev.
Father K.C. Alexander AIR 1968 SC 1165, dealing with pari materia
provisions of the Specific Relief Act, 1877, it was explained that if Section 6
is invoked, the plaintiff need not prove title and the title of the defendant
does not avail the defendant; when however the period of six months has
passed, questions of title can be raised by the defendant and if he does so, the
plaintiff must establish better title or fail; it is for this reason only that a suit
under Section 6 does not bar a suit of prior possession within 12 years and
title need not be proved unless the defendant can prove one.
15. Having expounded on the nature of a suit under Section 6 of the
Specific Relief Act and having carved out the difference between such a suit
and other suits for recovery of possession based on prior possession, I will
now proceed to adjudicate the controversy.
16. The first thought which crosses the mind is that such being the
summary nature of a suit under Section 6, whether the respondent no.1 /
plaintiff, along with a suit under Section 6 of the Specific Relief Act, could
have claimed the other reliefs of permanent injunction and declaration and
cancellation of documents of title set up by the respondents / defendants no.2
to 6 and which, vide the impugned decree, have also been declared to be
void and ordered to be cancelled. Against a decree under Section 6, the
remedy of appeal is barred and only the remedy of Revision Petition is
C.R.P. No.176/2016 Page 7 of 18
available. Against a decree of permanent injunction and declaration and
cancellation of documents, it is the remedy of appeal which is available and
not the remedy of Revision Petition. If along with the relief under Section 6,
other reliefs are permitted to be combined, separate remedies, of Revision
against the decree, in so far as under Section 6 and of appeal, in so far as
with respect to other reliefs, will have to be availed. I have wondered,
whether the same is permissible in law and whether not it may lead to
conflicting decisions. In fact, with respect to decrees under Section 6, I find
Supreme Court in Sanjay Kumar Pandey Vs. Gulbahar Sheikh (2004) 4
SCC 664 to have held that ordinarily the High Court would not interfere
even in a Revision with a decree or order under Section 6 and may do so
only in exceptional cases. In ITC Limited Vs. Adarsh Cooperative Housing
Society Limited (2013) 10 SCC 169, it was held that the High Court should
interfere only if there is grave injustice or error of law and not to re-
appreciate evidence.
17. Anathula Sudhakar supra cited by the counsel for the respondent
no.1 / plaintiff is not found to address the question as has arisen and the
counsel for the respondent no.1 / plaintiff also could only draw attention to
part thereof holding that, where there are necessary pleadings regarding title
and appropriate issue relating to title on which parties have led evidence and
if the matter involved is simple and straight-forward, the Court may decide
upon the issue regarding title, even in a suit for injunction. What I can
understand the counsel for the respondent no.1 / plaintiff to be contending
therefrom is only that even though he filed the suit under Section 6 of the
Specific Relief Act, it may be treated as a suit for recovery of possession
otherwise than under Section 6.
C.R.P. No.176/2016 Page 8 of 18
18. I had during the hearing, on a quick scanning of search engines, drawn
attention of the counsels to (i) Hoshiari Devi Vs. Jagat Singh (2006) 134
DLT 513; (ii) Bihari Lal Vs. Dina Nath 2016 SCC OnLine HP 1815; (iii)
Vaneeta Khanna Vs. Rajeev Gupta (2008) 148 DLT 356; and, (iv) Adapa
Tatarao Vs. Chamantula Mahalakshmi AIR 2007 AP 44.
19. This Court, in Hoshiari Devi supra, in exercise of jurisdiction under
Article 227 of the Constitution of India, was concerned with an order of the
Additional District Judge holding an appeal against the order of the Civil
Judge of rejection under Order VII Rule 11 of the CPC of a plaint in a suit
under Section 6 of the Specific Relief Act. It was held that (i) that Section 6
has a special procedure created to try a particular nature of suits where a
party is dispossessed from the suit property without due process of law and
cannot be clubbed with any other relief; (ii) an order of rejection of a plaint
is also a decree within the meaning of Section 2(2) of the CPC; and, (iii) that
thus even against an order of rejection of a plaint in a suit under Section 6 of
the Specific Relief Act, the remedy would only be of a Revision Petition and
the appeal preferred was not maintainable.
20. The counsel for the respondent no.1 / plaintiff, in his written
arguments, has contended that as per the aforesaid dicta also, a Revision
Petition lies.
21. I am afraid not. Attention to the aforesaid judgment was drawn only to
show that the other reliefs claimed, besides the relief under Section 6, could
not have been clubbed with the suit and the aforesaid judgment is not a
precedent on the Court, in a Revision Petition, being required to consider /
C.R.P. No.176/2016 Page 9 of 18
adjudicate the decree qua the other reliefs or to consider only the decree qua
Section 6.
22. Vaneeta Khanna supra refers to an earlier suit filed by the plaintiff
therein, for recovery of possession under Sections 5&6 of the Specific Relief
Act, for specific performance of Agreement to Sell, for recovery of mesne
profits / damages and for permanent injunction restraining the defendants
from dealing with the property and which suit was held by the Supreme
Court to be for multifarious reliefs and not maintainable under Section 6 of
the Specific Relief Act.
23. The counsel for the respondent no.1 / plaintiff, in his written
arguments, has however not correctly appreciated the facts and has read the
said judgment as dismissing the application under Order VII Rule 11 of the
CPC, when the correct facts are as stated above.
24. Thus, Vaneeta Khanna also is a judgment on reliefs other than under
Section 6 of the Specific Relief Act being not entitled to be clubbed along
with a suit thereunder.
25. The High Court of Andhra Pradesh also, in Adapa Tatarao supra held
(i) that the proceedings in a suit under Section 6 are summary in nature; (ii)
that the Trial Court in that case had not addressed this basic requirement of
Section 6 and had framed issues totally unrelated to adjudication to be
undertaken in a Section 6 suit; (iii) that the suit also suffered from the
infirmity of the plaintiff having incorporated the relief of perpetual
injunction in respect of another item, in a suit filed under Section 6 of the
Act and which is totally impermissible; (iv) that the parameters for
adjudication of claim under Section 6 on the one hand and for perpetual
C.R.P. No.176/2016 Page 10 of 18
injunction under Section 38 of the Specific Relief Act on the other hand, are
totally different; (v) while for adjudication of a Section 6 suit, the trial is
summary in nature and the decree is not appealable, in contrast, a detailed
trial has to be conducted in a suit for perpetual injunction and a first
appeal and second appeal is provided against a decree therein; (vi) it is
impossible and impermissible to mix up such divergent types of
adjudication; and, (vii) that the judgment and decree of the Trial Court was
liable to be set aside on that ground alone and the matter needed to be
adjudicated afresh on proper lines.
26. The counsel for the respondent no.1 / plaintiff, with reference to the
aforesaid judgment, has contended that the High Court therein also, though
set aside the decree but remanded the suit under Section 6 of the Act for
fresh disposal after segregating the relief of perpetual injunction therefrom.
27. The counsel for the respondent no.1 / plaintiff thus appears to suggest
that this Revision Petition should be allowed and the subject suit also
remanded to the Trial Court for fresh adjudication qua the relief under
Section 6 of the Specific Relief Act only.
28. The High Court of Himachal Pradesh in Bihari Lal supra, also was
concerned with a Revision Petition against a decree in a suit for recovery of
possession under Section 6 of the Specific Relief Act and for permanent
injunction under Section 38 thereof. It was held (i) that the suit could not be
treated to be one under Section 6, for the reason that a decree for permanent
injunction had also been sought; (ii) that the Trial Court also had not treated
the suit as one under Section 6 and not tried the same summarily as
contemplated under Section 6; and, (iii) on the contrary, issues had been
C.R.P. No.176/2016 Page 11 of 18
framed and full trial held; thus the decree could not have been agitated by
invoking revisional jurisdiction and on dismissal of the suit, the appropriate
remedy should have been resorted to.
29. The counsel for the respondent no.1 / plaintiff, in his written
arguments, with respect to the aforesaid judgment has contended that in the
present case also, a detailed trial has been conducted and has prayed that the
impugned judgment, to the extent of passing a decree for declaration and
cancellation and permanent injunction, be set aside and be upheld qua the
decree for recovery of possession.
30. The counsel for the respondent no.1 / plaintiff in his written arguments
has also contended (i) that in a suit under Section 6, other reliefs cannot be
claimed as a consequence of repossession being granted under the Section;
(ii) that in the facts of the present case, the relief granted of repossession is
not consequential to the relief of declaration also granted; the relief of
declaration claimed and granted was independent of the relief of possession;
(iii) that the relief of repossession has been granted on an independent
finding of dispossession of the respondent no.1 / plaintiff from the property
within six months prior to the institution of the suit; (iv) though under
Section 6 a summary trial is requisite but in the present case, a full-fledged
trial has been conducted; the suit, from which this petition arises, is a
composite suit wherein in view of the stand taken by the petitioner /
defendant no.1 that the respondent no.7 / defendant Kamlesh, being the wife
of the respondent no.1 / plaintiff has sold the property to the respondent /
defendant no.5 Malkhan Singh, it was necessary to incorporate the relief of
declaration as the petitioner / defendant no.1 had tried to put a cloud on the
C.R.P. No.176/2016 Page 12 of 18
title of the respondent no.1 / plaintiff; (v) that if this Court comes to the
conclusion that the Trial Court has exceeded its jurisdiction in granting relief
of declaration, then the decree insofar as of declaration be set aside and the
decree insofar as for possession be upheld; and, (vi) that in Dharam Dir
supra, this Court held that a claim for recovery of mesne profits / damages
cannot be clubbed along with a suit for recovery of possession under Section
6 but this Court in the Revision Petition against the composite decree for
recovery of possession and mesne profits, instead of setting aside in entirety
the decree, set aside the decree for recovery of mesne profits / damages but
maintained the decree for recovery of possession.
31. I have not come across any other judgment dealing with the
controversy save my own in Qayamuddin Vs. Jamil-ud-Din (2013) 201
DLT 758 wherein I was concerned with a first appeal against an order of
rejection of plaint in a suit for declaration, possession under Section 6 of the
Specific Relief Act, damages and injunction on the ground of the other
reliefs being not entitled to be clubbed with the relief under Section 6. It was
held that the appeal, qua the rejection of plaint with relief under Section 6
was not maintainable. It was further held that the appeal, qua rejection of
plaint for other reliefs also was not maintainable because the reliefs of
declaration, damages and injunction were closely intertwined to the relief of
possession and rather incidental or consequential to the main relief claimed
of possession under Section 6 of the Act. It was further held that the suit for
the said reliefs, without the relief of possession, would not even be
maintainable.
C.R.P. No.176/2016 Page 13 of 18
32. It is thus clear, that the suit as filed was not maintainable. One option
of course is to allow the Revision Petition on this ground alone, leaving it
open to the respondent no.1 / plaintiff to pursue the remedy, either by filing a
suit for recovery of possession under Section 5 of the Specific Relief Act or
to file a suit for recovery of possession based on title, along with the other
reliefs to which the plaintiff may be entitled to. The counsel for the
respondent no.1 / plaintiff however, as aforesaid, has suggested setting aside
of the decree and remand of the suit for decision afresh qua the relief of
recovery of possession under Section 6 of the Specific Relief Act only and in
support of which the counsel for the respondent no.1 / plaintiff has stated
that the claim for declaration and injunction is not relatable to the claim for
recovery of possession.
33. To consider the aforesaid limited aspect, I have perused the plaint and
find the respondent no.1 / plaintiff to have pleaded (i) that the respondent
no.1 / plaintiff is the owner of property bearing No. K-5/39A, Street No.33,
West Ghonda, Delhi - 110 053; (ii) that on 12th April, 2010, the petitioner /
defendant no.1, in conspiracy with the respondents / defendants no.2 to 6,
forcibly threw away building materials of the respondent no.1 / plaintiff
collected for construction in the property and put their own locks over the
suit property, dispossessing the respondent no.1 / plaintiff therefrom; (iii) the
petitioner / defendant no.1, on being approached by the respondent no.1 /
plaintiff, claimed to have purchased the property from Kamlesh, wife of the
respondent no.1 / plaintiff; (iv) that the respondent no.1 / plaintiff, and not
his wife Kamlesh, is the owner of the property and the wife of the respondent
no.1 / plaintiff could not have sold the property; and, (v) that the wife of the
respondent no.1 / plaintiff disclosed to the respondent no.1 / plaintiff that she
C.R.P. No.176/2016 Page 14 of 18
had been cheated by the petitioner / defendant no.1 and respondents /
defendants no.2 to 6 on the pretext of borrowing money „for her‟ and that the
respondent / defendant no.6 Sudhir Kumar Chauhan had induced her to bring
the chain of the documents of the suit property to the office of the Sub
Registrar where she was forced to sign some papers merely on receipt of
Rs.25,000/-; hence the suit for the reliefs aforesaid.
34. As aforesaid would show, the claim of the respondent no.1 / plaintiff
for possession, is not de hors the claim for declaration and cancellation of
documents and for permanent injunction and is rather intertwined therein. A
perusal of the impugned judgment also shows the following issues to have
been framed in the suit on 8th November, 2012:-
"(1) Whether the plaintiff has locus to file the present suit? OPP
(2) Whether the suit is bad for mis-joinder and non-joinder of the
necessary party? OPD
(3) Whether the suit is not properly valued for the purpose of court
fee and jurisdiction? OPD
(4) Whether the suit as well as the affidavit have not been drafted or
verified as per High Court rules? OPD
(5) Whether the plaintiff is entitled for the decree of possession of
the suit property against the defendants? OPP
(6) Whether the plaintiff is entitled for a decree of declaration
against the defendants? OPP
(7) Whether the plaintiff is entitled for mesne profits, if yes, at what
rate? OPP
C.R.P. No.176/2016 Page 15 of 18
(8) Whether the plaintiff is entitled for decree of permanent
injunction against the defendants? OPP
(9) Relief."
35. Though the evidence led in the suit is not before me but a perusal of
the discussion of evidence, in the impugned judgment, shows the same also
to have been led on all the issues together.
36. I have wondered, that if the proposal of the counsel for the respondent
no.1 / plaintiff were to be accepted and the suit remanded for fresh decision
only qua the relief of possession, how would the learned Additional District
Judge now proceed to segregate the pleadings and the evidence into that qua
the relief of possession and that qua the other reliefs. The same appears to be
an impossible task and is sure to keep the parties embroiled in litigation
forever.
37. The said option is thus not found feasible.
38. I have next considered the option of setting aside of the decree with
liberty to the respondent no.1 / plaintiff to sue afresh. The respondent no.1 /
plaintiff is certainly entitled to do so under the provisions of Section 6 also.
However, the thought which crosses my mind is, whether not the same
would be a clear waste of time, not only of litigants but also of the Court and
which is precious. The suit from which this petition arises is also not found
to have been tried summarily but rather as a regular suit and remained
pending for nearly six years. This Court cannot be blind to the said fact.
39. Now that the respondent no.1 / plaintiff also as aforesaid has agreed
that the remedy of revision is not available and the remedy of appeal is
C.R.P. No.176/2016 Page 16 of 18
available, it seems to be a better course of action to dispose of this Revision
Petition by relegating the petitioner / defendant no.1 to the remedy of appeal,
notwithstanding the petitioner / defendant no.1 having earlier withdrawn the
appeal and notwithstanding the appellate remedy being now palpably barred
by time. It is felt that the said course of action will ensure that the judicial
time already spent in the suit and in this proceeding is not wasted and at the
same time, the petitioner / defendant no.1 is able to avail of remedy with
respect to the decree against him.
40. Needless to state, the respondent no.1 / plaintiff being himself to
blame for the situation aforesaid, would not be entitled to oppose the appeal
if any so preferred by the petitioner / defendant no.1, on the ground of it
being not maintainable or on the ground of it being barred by time.
41. Similarly the petitioner / defendant no.1 being himself to blame for
having on an earlier occasion unilaterally withdrawn the correct remedy of
appeal earlier availed of, will not be entitled to have the appeal allowed
merely on the ground of the suit for the composite reliefs under Section 6 of
the Specific Relief Act and of permanent injunction and declaration and
cancellation being not maintainable. The appeal shall be decided on merits of
the impugned judgment, treating the suit, insofar as for the relief of recovery
of possession, to be under Section 5 of the Specific Relief Act and not under
Section 6 of the Specific Relief Act. It will however be open to both the
counsels to contend before the Appellate Court that any additional evidence
is required to be led in the suit.
42. Accordingly, this Revision Petition is disposed of by relegating the
petitioner / defendant no.1 to the remedy against the impugned decree, of
C.R.P. No.176/2016 Page 17 of 18
appeal under Section 96 of the CPC and with a further provision that if the
said appeal is preferred on or before 31st July, 2018, the same shall be
entertained and decided on merits without going into the aspect of limitation
and by binding the parties hereto to the conditions aforesaid. Since there has
been an order in force of stay of the impugned judgment and decree, the said
order is also extended till 31st July, 2018, whereafter, unless there is an order
of stay of the impugned judgment and decree in any other proceeding, the
respondent no.1 / plaintiff will be entitled to execute the impugned judgment
and decree.
43. The parties are left to bear their own costs.
RAJIV SAHAI ENDLAW, J.
JULY 4, 2018 „pp‟..
C.R.P. No.176/2016 Page 18 of 18