Mahendra Magruram Gupta vs Rajdai Shaw

2025 INSC 651 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No(s). OF 2025 ARISING OUT OF SLP (C) No(s). 37012-37013 OF 2013

MAHENDRA MAGRURAM GUPTA & ANR. ...APPELLANT(S)

VERSUS

RAJDAI SHAW & ORS. …RESPONDENT(S)

ORDER

1. Leave granted.

2. The short facts necessary for our purpose are that three

brothers namely, Mr. Magruram Chotanki Gupta, Mr.

Deepnarayan Chotanki Gupta and Mr. Baburam Chotanki Gupta

were co-tenants of the suit property. The appellants are

descendants of Mr. Magruram Chotanki Gupta while respondent

no. 1 is the descendant of Mr. Deepnarayan Chotanki Gupta. The

appellants’ case is that by a notarised affidavit dated 22.02.1990,

Mr. Deepnarayan Chotanki Gupta (respondent no. 1’s predecessor)

transferred his rights in the tenanted premises to Mr. Magruram Signature Not Verified

Chotanki Gupta, i.e., their predecessor-in-interest. Subsequently, Digitally signed by INDU MARWAH Date: 2025.05.08 17:55:40 IST Reason:

after Mr. Deepnarayan’s death, his widow Smt. Antadevi signed a

1 declaration dated 18.04.1998 relinquishing her rights in the suit

property in favour of appellant no. 1.

3. Relying on these documents, the appellants/ plaintiffs filed a

suit for declaration and permanent injunction, in which their

prayer for interim relief of temporary injunction came to be

dismissed by the Trial Court on 21.12.2012. In appeal against this

order, the High Court by the order impugned herein virtually

dismissed the suit. Before adverting to the reasoning adopted by

the High Court for virtually dismissing the suit while considering

an application for injunction, we will first reproduce the relevant

portion of the prayers in the suit1 filed by the appellants before the

Bombay City Civil Court;

“(a) This Hon’ble Court be pleased to declare that the notarized Agreement dated 22.02.1990 executed by Shree Deepnarayan Chotanki Gupta in favour of the Plaintiff No.1’s father Mr. Manguram Chotanki Gupta is valid, legal and the same is binding upon the Defendant No.1 and/or anyone claiming through/for and on behalf of the Defendant No.1;

(b) This Hon’ble Court be pleased to declare that the notarized Agreement dated 18.04.1998 executed by Smt. Antadevi in favour of the Plaintiff No.1 is valid, legal and the same is binding upon the Defendant No.1 and/or anyone claiming through/for and on behalf of the Defendant No.1;

(c) The Defendant Nos.1 to 6 be restrained by an order of permanent perpetual injunction from dispossessing the Plaintiffs from Suit premises viz. Shop No.5 Bajarang Krupa Building situated at 220- 222, N.M. Joshi Marg, Parel, Mumbai - 400 013;

1 Civil Suit (L) No. 2217 of 2012. 2

(d) The Defendant Nos.1 to 6 be restrained by an order of permanent perpetual injunction from disturbing Plaintiffs continuous, peaceful and uninterrupted actual physical possession of the Suit premises viz. Shop No.5 Bajarang Krupa Building situated at 220-222, N.M. Joshi Marg, Parel, Mumbai - 400 013;

(e) The Defendant Nos.1 to 6 and/or anyone claiming through/for and on behalf of the Defendant Nos. 1 to 6 be restrained from creating a third party interests of whatsoever in nature viz. safe, gift, will, exchange, mortgage, lease or otherwise in respect of the Suit premises viz. Shop No.5 Bajarang Krupa Building situated at 220-222, N.M. Joshi Marg, Parel, Mumbai - 400 013.”

4. It is also relevant to note that respondent no. 1 also instituted

his own suit 2 before the High Court against the appellants for

recovery of possession, permanent injunction, and mesne profits

with respect to the same property.

5. While it is not necessary to refer to the reasoning adopted by

the Trial Court in denying the grant of interim relief to the

appellants, we will refer to certain portions of the impugned order

which are not only inconsistent with one another but are also

inappropriate and contrary to law.

6. While recording the submission of respondent no. 1, who is

defendant no. 1 in the appellants’ suit, that he will not interfere

with the possession of the appellants without an order or decree in

the suit for possession instituted by him, the High Court observed:

“2. The possession could be protected until respondent No.1 followed due legal process. The respondent No.1 has followed due legal process by filing Suit No.443 of 2013 in this Court. The respondent

2 Suit No. 443 of 2013. 3 No.1 cannot dispossess the appellants/plaintiffs until respondent No.1 obtains an order or decree in his suit. Mr. Sanglikar on behalf of respondent No.1 confirms this position. He states on behalf of respondent No.1 that respondent No.1 shall not dispossess the appellants/plaintiffs and shall not create any third party right or interest in the suit shop except under order or decree of this Court…”

7. However, following recording of the admission or a concession

by respondent no. 1, the High Court came to an extraordinary

conclusion that certain prayers in the suit have therefore become

infructuous. The later portion of the above extracted paragraph of

the High Court, which is a complete non sequitur reads as follows:

“Upon that statement the suit with regard to the protection of possession becomes infructuous as the reliefs granted in terms of prayers (c), (d) and (e) in the suit”.

8. The High Court also came to the conclusion that defendant

nos. 2 to 6 have accepted that defendant no. 1 is the owner and as

such they cannot dispossess the appellants/ plaintiffs pending

disposal of respondent no. 1’s suit for possession. For this reason,

the High Court reiterated its conclusion that an injunction must

be granted in favour of the appellants for the following reason;

“3. The appellants/plaintiffs have also sued other members of the family as defendant Nos. 2 to 6. Defendant Nos. 2 to 6 are not before this Court. Defendant Nos. 2 to 6 in paragraph 5 of the affidavit in reply filed in the trial Court have accepted that the defendant No. 1 is the owner of the suit shop. Hence defendant Nos. 2 to 6 also cannot dispossess the appellants/plaintiffs pending the due legal process initiated by defendant No. 1 by filing the aforesaid Suit No. 443 of 2013. That protection must be granted and continued in favour of the appellants/plaintiffs.”

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9. The High Court then comes to a strange conclusion that the

agreements dated 22.02.1990 and 18.04.1998, relied on by the

appellants for a declaratory relief, cannot be taken on record as

they are unregistered and an order or decree cannot be granted in

appellants’ favour in view of Section 49 of the Registration Act,

1908. The relevant portion of the order is as follows:

“4. The appellants/plaintiffs have also sued for declaration that a notarized unregistered agreement dated 22nd February, 1990 and a notarized unregistered agreement dated 18th April, 1988 are valid, legal and binding upon the defendant No. 1. The agreements are admittedly unregistered. They fall within the mischief of Section 49 of the Registration Act, 1908. No decree or order in that behalf can be granted. The suit as filed would require the Court to dismiss it with regard to the reliefs under prayers (a) & (b).”

10. The above referred conclusion was completely unwarranted.

There was no occasion for the High Court to consider the two

documents while deciding an application for interim relief. The

legality, validity, and admissibility of those documents were

matters to be considered in the suit during trial. The relevant

portion of the order passed by the High Court is as follows:

“5. Consequently the impugned order of the learned Judge, City Civil Court, Bombay dated 21st December, 2012 dismissing the Notice of Motion of the appellants/plaintiffs is set aside. Under the provision contained in Order 41 Rule 33 of the CPC further order in the suit is passed as follows:

The suit in terms of prayers (a) & (b) stands dismissed. Upon the statement of the Advocate for defendant No.1/respondent No.1 that respondent No.1 shall not dispossess the plaintiffs except under the order or decree of this Court in Suit No.443 of 2013, the suit in terms of prayers (c), (d) & (e) stands decreed in terms of the statement which is accepted by this Court, as defendant No.1 in the suit has followed due legal process.” 5

11. As is evident from the above, in the first part of its order, the

High Court reversed the finding of the Trial Court and granted

injunction. To this extent there is no problem, particularly in view

of the statement or concession of respondent no.1/defendant no.

1. In the later part however, the High Court dismissed prayers (a)

and (b) in the appellants’ suit and then proceeded to direct that

the other prayers in the suit filed by the appellants, namely prayers

(c), (d), and (e), should now be considered in the suit filed by

respondent no. 1/defendant no. 1 for recovery of possession.

12. In an appeal to the High Court against the order of the Trial

Court refusing to grant injunction pending disposal of the suit, the

High Court could not have dismissed the substantive portion of

the suit itself and direct that the remaining part of the suit be

agitated in a suit filed by the defendant. The approach adopted by

the High Court is completely illegal and unsustainable in law.

13. In view of the above, we allow the appeals, set aside the

judgment and order dated 14.08.2013 by the High Court in Appeal

from Order No. 476 of 2013 with Civil Application No. 581 of 2013,

and restore the suit filed by the appellants in Civil Suit (L) No. 2217

of 2012 filed before the Bombay City Civil Court to its original

number. Pending disposal of this suit, there shall be a direction 6 restraining the respondents-defendants from dispossessing the

appellants.

14. We also clarify that we have not expressed any opinion on the

merits of the matter.

15. No order as to costs.

16. Pending applications, if any, stand disposed of.

………………………………....J. [PAMIDIGHANTAM SRI NARASIMHA]

………………………………....J. [JOYMALYA BAGCHI]

NEW DELHI;

MAY 08, 2025

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