Full Judgment Text
IN THE SUPREME COURT OF INDIA
2025 INSC 651
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)
O R D E R
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
1
portion of the prayers in the suit 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
2
his own suit 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. ”
4
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
nd
notarized unregistered agreement dated 22 February, 1990 and a
th
notarized unregistered agreement dated 18 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
7
2025 INSC 651
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)
O R D E R
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
1
portion of the prayers in the suit 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
2
his own suit 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. ”
4
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
nd
notarized unregistered agreement dated 22 February, 1990 and a
th
notarized unregistered agreement dated 18 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
7