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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 ..... vant material and pertinent information from the Court and abusing the process of law. 5. Both the appellant and the respondent hail from the State of Goa and belong to one of the leading and well known families of Goa. The father of the appellant and the respondent, Dr. Jack D. Sequeira was an affluent businessman and a well-known politician of Goa. Dr. Sequeira, during his lifetime, gave a number of properties worth crores of rupees to the respondent and also gave some properties to the appellant and her sisters. The respondent was given a soft drink factory at Goa, mining leases of iron ore, agricultural lands and residential plots including one situated at Dona Paula, which is located next to the Governor's House. Though the respondent was given properties worth several crores of rupees, he still eyed on a small property which the appellant purchased through Court auction after paying full sale consideration. The respondent-brother of the appellant was also a very influential and important Member of Parliament. He was also very active in the local politics in Goa. 6. The appellant urged that the suit property originally belonged to her grandmother. Under the Portugu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her and she was the recorded owner of the same. According to the appellant, the respondent himself had acknowledged possession and title of the suit property in favour of the appellant. 10. The appellant submitted that she got married on 8.9.1974 to an Officer of the Indian Navy who was posted from time to time in different places in India. She also submitted that the respondent - her brother requested her that as his office is just adjacent to the suit property, therefore, it would be convenient for him to run his office and to keep an eye on the suit property of the appellant. Therefore, the suit property was given to the respondent only as a caretaker. 11. The respondent executed a leave and licence agreement in the name of his wife to shift with his family out of the suit property completely on 1.4.1991 to Campo Verde Apartments at Caranzalem in Goa. The leave and licence agreement executed by the respondent's wife for the new house wherein the respondent and his family shifted on 1.4.1991 and thereafter got the agreement renewed on 7.3.1992. The respondent also owned one flat in Goa and occupied on 17.4.1991. 12. According to the appellant, the respondent handed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciple under Section 6 of the Specific Relief Act. The appellant urged that the respondent's suit for injunction was not maintainable as he could not claim to be in lawful and legal possession of the premises at all. The appellant argued that the Courts below have missed the main issue as the respondent was merely in custody of the house on behalf of the appellant. According to her, a caretaker can never sue a valid title-holder of the property. 16. The appellant further urged that a caretaker's possession can never be a possession of individual's right and no such suit for injunction under Section 6 of the Specific Relief Act was maintainable. The appellant contended that the respondent returned the keys of the suit property sometime in May 1991. The appellant asserted that the respondent had manipulated the system and collected false and fabricated evidence in the form of Panchnama in collusion with the local police and was designed to throw out the appellant from her own house. 17. On 17.6.1992, the respondent filed a suit for permanent and mandatory injunction in the Court of Civil Judge, Senior Division at Panaji as a Special Civil Suit No.131/92/A. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit property which is evident from the Certificate of the Probate Proceedings known as Inventory Proceeding No.1075/935. She further submitted that the respondent, her brother, was a party in the said Probate Proceedings where the appellant acquired the title of the suit property on 27.5.1972. The respondent collected the sale consideration amount on 17th March, 1972 vide Cheque No.33559 drawn on Bank of India on behalf of his aunt in the auction proceedings. 23. The appellant submitted that the City Civil Court held that the appellant is the owner of the suit property and has the title and possession of the same which was never challenged by the respondent. The appellant also submitted that apart from the title of the suit property, house tax records and wealth tax records indicate that she was and continued to be the owner of the suit property. She further submitted that the utility bills of electricity, water and telephone were of minimal amount which show that the respondent had never resided in the suit premises. The appellant submitted that the finding of the Trial Court that the appellant had no funds to purchase the property was contrary to record. The High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 33. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. 34. In Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271, this Court observed that in such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. 35. What people expect is that the Court should discharge its obligation to find out where in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court may, at any time either of its own motion or on the application of any party, - (a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c) order any fact to be proved by affidavit 43. "Satyameva Jayate" (Literally: "Truth Stands Invincible") is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem. The meaning of full mantra is as follows: "Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides." 44. Malimath Committee on Judicial Reforms heavily relied on the fact that in discovering truth, the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d concern of the courts. It should become the paramount duty of everyone to assist the court in its quest for truth. 45. In Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC 421 to enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, pre-variation and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in Courts when they would find that truth alone triumphs in Courts. 46. Truth has been foundation of other judicial systems, such as, the United States of America, the United Kingdom and other countries. 47. In James v. Giles et al. v. State of Maryland 386 U.S. 66, 87, S.Ct. 793), the US Supreme Court, in ruling on the conduct of prosecution in suppressing evidence favourable to the defendants and use of perjured testimony held that such rules existed for a purpose as a necessary component of the search for truth and justice that judges, like prosecutors must undertake. It further held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing is not merely a job but a way of life. It is a way of life that does not include the pursuit of material wealth or publicity; it is a way of life based on spiritual wealth; it is a way of life that includes an objective and impartial search for truth." 51. In the administration of justice, judges and lawyers play equal roles. Like judges, lawyers also must ensure that truth triumphs in the administration of justice. 52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth. Pleadings 53. Pleadings are the foundation of litigation. In pleadings, only the necessary and relevant material must be included and unnecessary and irrelevant material must be excluded. Pleadings are given utmost importance in similar systems of adjudication, such as, the United Kingdom and the United States of America. 54. In the United Kingdom, after the Woolf Report, Civil Procedure Rules, 1998 were enacted. Rule 3.4(2) has some relevance and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to dismiss we must take all of the factual allegations in the complaint as a true, we are not bound to accept as true a legal conclusion couched as a factual allegation only a complaint that states a plausible claim for relief survives a motion to dismiss." 60. The aforementioned two decisions of the U.S. Supreme Court re-emphasized and reiterated the importance of pleadings. 61. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question. 62. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner. 63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum. 64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to support his claim and details of subsequent conduct which establish his possession. 70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive. (a) who is or are the owner or owners of the property; (b) title of the property; (c) who is in possession of the title documents (d) identity of the claimant or claimants to possession; (e) the date of entry into possession; (f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method; (g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount; (h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed; (i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.; (j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and (k) basis of his claim that not to deliver possession but continue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trespasser in settled possession cannot be dispossessed without recourse of law. It must be the endeavour of the Court that if a suit for mandatory injunction is filed, then it is its bounden duty and obligation to critically examine the pleadings and documents and pass an order of injunction while taking pragmatic realities including prevalent market rent of similar premises in similar localities in consideration. The Court's primary concern has to be to do substantial justice. Even if the Court in an extraordinary case decides to grant ex-parte ad interim injunction in favour of the plaintiff who does not have a clear title, then at least the plaintiff be directed to give an undertaking that in case the suit is ultimately dismissed, then he would be required to pay market rent of the property from the date when an ad interim injunction was obtained by him. It is the duty and the obligation of the Court to at least dispose off application of grant of injunction as expeditiously as possible. It is the demand of equity and justice. Due process of Law 81. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law." 83. We approve the findings of the High Court of Delhi on this issue in the aforesaid case. False claims and false defences 84. False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent. 85. This Court in a recent judgment in Ramrameshwari Devi and Others (supra) aptly observed at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual or realistic costs. While passing the order, the Court must take into consideration the pragmatic realities and pass proper order for mesne profits. The Court must make serious endeavour to ensure that even-handed justice is given to both the parties. 88. Ordinarily, three main principles govern the grant or refusal of injunction. a) prima facie case; b) balance of convenience; and c) irreparable injury, which guide the Court in this regard. 89. In the broad category of prima facie case, it is imperative for the Court to carefully analyse the pleadings and the documents on record and only on that basis the Court must be governed by the prima facie case. In grant and refusal of injunction, pleadings and documents play vital role. Mesne Profits 90. Experience has shown that all kinds of pleadings are introduced and even false and fabricated documents are filed in civil cases because there is an inherent profit in continuation of possession. In a large number of cases, honest litigants suffer and dishonest litigants get undue benefit by grant or refusal of an injunction because the Courts do not critically examine pleadings and documents on record. In case while granting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a caretaker. The caretaker holds the property of the principal only on behalf of the principal. 96. The respondent's suit for injunction against the true owner - the appellant was not maintainable, particularly when it was established beyond doubt that the respondent was only a caretaker and he ought to have given possession of the premises to the true owner of the suit property on demand. Admittedly, the respondent does not claim any title over the suit property and he had not filed any proceedings disputing the title of the appellant. 97. This Court in Puran Singh v. The State of Punjab (1975) 4 SCC 518 held that an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession. 98. This Court in Mahabir Prasad Jain (supra) has held that the possession of a servant or agent is that of his master or principal as the case may be for all purposes and the former cannot maintain a suit against the latter on the basis of such possession. 99. In Sham Lal v. Rajinder Kumar & Others 1994 (30) DRJ 596, the High Court of Delhi held thus: "On the basis of the material available on record, it will be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. 3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. 4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour. 5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession. 102. 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. 103. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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