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TMI Blog2012 (3) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... tire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. In this view of the matter, the impugned judgment of the High Court as also of the Trial Court deserve to be set aside and we accordingly do so. Consequently, this Court directs that the possession of the suit premises be handed over to the appellant, who is admittedly the owner of the suit property. In the peculiar facts and circumstances of this case, the legal representatives of the respondent are granted three months time to vacate the suit premises. They are further directed that after the expiry of the three months period, the vacant and peaceful possession of the suit property be handed over to the appellant. The usual undertaking to this effect be filed by the legal representatives of the respondent in this Court within two weeks. - C.A. 2968 OF 2012 - - - Dated:- 21-3-2012 - DALVEER CHAND BHANDARI, H.L. DATTU AND DEEPAK VERMA, JJ. JUDGEMENT Dalveer Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty. Admittedly, the appellant has placed a certified copy of the order of the Civil Judge, Senior Division at Panaji dated 27th May, 1972 issued in favour of the appellant. According to the appellant, the possession and title of the suit property in favour of the appellant is established from the judgment of the Inquiry Officer of City Survey Tiswadi, Panjim, Goa. The said order was not only passed in the presence of the respondent, but also in the presence of his Attorney, Rodrigues who was also a senior executive officer of the respondent. The relevant portion of that judgment is as under:- The claim put forth by Shrimati Maria Teresa de Sequeria from Panaji, in respect of Chalta No.14 of P.T. Sheet 65 was inquired into and it was found that the same belongs to the said Maria Teresa de Sequeria in view of Inventory Proceedings No.9- 1968 [1075-935] - vide Certificate issued by the Court of Civil Judge Senior Division, Panaji dated 27.5.72 and as such her title and possession to the Chalta No.14 of P.T. Sheet No.65 is confirmed. 7. According to the appellant, she obtained the exclusive title of the plot and the house in question. 8. It may be pertinent to mention th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not take any receipt from her brother or click a photograph to create evidence showing handing over of the custodian possession of the suit property. The respondent shifted to his new flat and the suit property was lying almost vacant because the appellant along with her husband was living outside Goa on his different official postings. 13. According to the appellant, the details of electricity, water and telephone bills clearly demonstrate that the house was locked and the small amounts payable in the said months, i.e., August, September, October and November in the year 1991, February 1992 also showed very nominal payments of ₹ 30/-, ₹ 33/-, ₹ 68/- which conclusively proved that a house comprising of several rooms, drawing, dining, bathrooms, verandah, lawns etc. was lying vacant. 14. On 20.5.1992, the appellant returned with her family to Goa and occupied and enjoyed the said suit property. The appellant submitted that she has a valid title/ownership and was in possession of the suit property and she could not be dispossessed by a Court in a suit for injunction. The appellant submitted that under Section 6 of the Specific Relief Act, the appellant could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 wherein a three-Judge Bench of this Court has observed that possession is no good against the rightful owner and that the assumption that he is in peaceful possession will not work and cannot operate against the true lawful owner. 19. Reliance has also been placed by the appellant on Southern Roadways Ltd., Madurai v. S.M. Krishnan (1989) 4 SCC 603 wherein this Court has held that it is the settled law that agent has no possession of his own and caretaker's possession is the possession of the principal. This Court has taken the view that possession of the agent is the possession of the principal and in view of the fiduciary relationship, the agent cannot be permitted to claim his own possession. Thus, according to the appellant, the respondent had no right, title and/or interest in the suit property and was not in lawful possession. Therefore, the suit for injunction under Section 6 of the Specific Relief Act is totally misconceived. The appellant contended that the High Court in the impugned judgment has gravely erred in affirming the judgment of the Trial Court. 20. According to the case of the respondent, he was permitted to live in the suit premises because of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ardian etc. cannot file a suit under Section 6 of the Specific Relief Act. 25. According to law laid down by this Court in Rame Gowda (dead) by LRs. (supra), it is the settled legal position that a possessory suit is good against the whole world except the rightful owner. It is not maintainable against the true owner. 26. This Court in Anima Mallick v. Ajoy Kumar Roy and Another (2000) 4 SCC 119 held that where the sister gave possession as gratuitous to the brother, this Court restored possession to the sister as it was purely gratuitous basis and the sister could have reclaimed possession even without knowledge of the brother. 27. According to the appellant, this Court in Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others (2004) 3 SCC 137 has observed that no injunction can be granted against the true owner and Section 6 of the Specific Relief Act cannot be invoked to protect the wrongdoer who suppressed the material facts from the Courts. 28. The appellant submitted that Section 41 of the Specific Relief Act debars any relief to be given to such an erring person as the respondent who is guilty of suppression of material facts. 29. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is voyage of discovery in which truth is the quest 37. This Court observed that the power is to be exercised with an object to subserve the cause of justice and public interest and for getting the evidence in aid of a just decision and to uphold the truth. 38. Lord Denning, in the case of Jones v. National Coal Board [1957] 2 QB 55 has observed that: In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries. 39. Certainly, the above, is not true of the Indian Judicial system. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that every trial is a voyage of discovery in which truth is the quest . In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law. 40. Lord Denning fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able doubt. The State discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace and law and order in the society doubt and gives the benefit of doubt to the accused. It is the parties that determine the scope of dispute and decide largely, autonomously and in a selective manner on the evidence that they decide to present to the court. The trial is oral, continuous and confrontational. The parties use cross-examination of witnesses to undermine the opposing case and to discover information the other side has not brought out. The judge in his anxiety to maintain his position of neutrality never takes any initiative to discover truth. He does not correct the aberrations in the investigation or in the matter of production of evidence before court 2.15 The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the investigation is perfunctory or ineffective, Judges seldom take any initiati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant's fraudulent statements during cross-examination for the purpose of seeking justice, for the purpose of arriving at the truth, which is a fundamental goal of our legal system . 49. Justice Cardozo in his widely read and appreciated book The Nature of the Judicial Process discusses the role of the judges. The relevant part is reproduced as under:- There has been a certain lack of candour, in much of the discussion of the theme [of judges' humanity], or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations. I do not doubt the grandeur of conception which lifts them into the realm of pure reason, above and beyond the sweep of perturbing and deflecting forces. None the less, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. 50. Aharon Barak, President of Israeli Supreme Court from 1995 to 2006 takes the position that: For issues in which stability is actually more important than the substance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or Court order. 55. In so far as denials are concerned, Rule 16.5 provides that where the defendant denies an allegation, he must state his reasons for doing so, and if he intends to put forward a different version of events from that given by the plaintiff, he must state his own version. 56. The various practice directions and prescribed forms give an indication of the particulars required. In fact, the 1998 Rules go further and provide for summary judgment. Rule 24.2 of the Civil Procedure Rules, 1998 reads as under: 24.2 The Court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if- (a) it considers that- (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial. 57. After enactment of the Civil Procedure Rules 1998, much greater emphasis is given on pleadings in the United Kingdom. Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession. 66. A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected. 67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents. 72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders. 73. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing beyond the stage for issues. 74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission. 75. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case. 76. In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he moment rights of the parties are adjudicated by a competent Court. 82. The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial 2006 (88) DRJ 545 held as under: 28. The expressions `due process of law', `due course of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing -- ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner. Now, this `due process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a matter of common experience that Court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least be minimized if exemplary cost is imposed for instituting frivolous litigation. The Court observed at pages 267-268 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. Grant or refusal of an injunction 86. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to a large extent. 91. The Court while granting injunction should broadly take into consideration the prevailing market rentals in the locality for similar premises. Based on that, the Court should fix adhoc amount which the person continuing in possession must pay and on such payment, the plaintiff may withdraw after furnishing an undertaking and also making it clear that should the Court pass any order for reimbursement, it will be a charge upon the property. 92. The Court can also direct payment of a particular amount and for a differential, direct furnishing of a security by the person who wishes to continue in possession. If such amount, as may be fixed by the Court, is not paid as security, the Court may remove the person and appoint a receiver of the property or strike out the claim or defence. This is a very important exercise for balancing equities. Courts must carry out this exercise with extreme care and caution while keeping pragmatic realities in mind and make a proper order of granting mesne profit. This is the requirement of equity and justice. 93. In the instant case, if the Courts below would have carefully looked into the pleadings, documents and had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e real owner. A servant cannot be said to be having any interest in the suit property. It cannot be said that a servant or a chowkidar can exercise such a possession or right to possession over the property as to exclude the master and the real owner of the property from his possession or exercising right to possession over the property. Possession is flexible term and is not necessarily restricted to mere actual possession of the property. The legal conception of possession may be in various forms. The two elements of possession are the corpus and the animus. A person though in physical possession may not be in possession in the eye of law, if the animus be lacking. On the contrary, to be in possession, it is not necessary that one must be in actual physical contact. To gain the complete idea of possession, one must consider (i) the person possessing, (ii) the things possessed and, (iii) the persons excluded from possession. A man may hold an object without claiming any interest therein for himself. A servant though holding an object, holds it for his master. He has, therefore, merely custody of the thing and not the possession which would always be with the master though t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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