The Supreme Court has clarified that where the plaintiff has sought only mandatory and permanent injunction and has not prayed for damages or compensation, the High Court, in second appeal, cannot set aside decrees in the plaintiff’s favour and compel the plaintiff or his legal heirs to accept monetary compensation, especially in the absence of consent. Such a course amounts to granting a relief never sought in the suit and is legally impermissible.
The Apex Court held that once a decree is set aside, the Executing Court cannot be directed to undertake valuation of the offending construction for purposes of compensating the plaintiff, because such an exercise is not supported by any subsisting decree and does not find support under Order XXI of the Code of Civil Procedure, 1908. The jurisdiction in second appeal must be exercised in accordance with Section 100 of the Code, including consideration of substantial questions of law.
A Two-Judge Bench comprising Justice S.V.N. Bhatti and Justice Atul S. Chandurkar observed that the High Court committed an error in reversing the decrees passed by the Trial Court and affirmed by the first Appellate Court on irrelevant considerations. The Bench noted that the first suit was for mandatory injunction seeking removal of encroachment on the common open space, and the Trial Court had found that the defendants could not prove any right, title or interest in the land on which they had erected the wall. In the second suit, the Trial Court had found that the defendants had illegally put up a lintel of the school building on the wall of the plaintiff’s house, and decreed its removal. Both decrees had been upheld in first appeal.
The Bench further observed that there was no prayer whatsoever by the original plaintiff for damages or compensation, and in the absence of such relief, the High Court could not set aside the decrees and compel the legal heirs to accept compensation assessed by a valuer, particularly when they had not consented to such a course. The Bench also held that once the decrees in favour of the plaintiff were set aside, there would be no occasion for the Executing Court to proceed, and directing it to assess the value of the wall was an exercise not supported by any decree and not traceable to Order XXI of the Code of Civil Procedure, 1908. The Bench additionally found that the High Court had proceeded on a factually wrong premise that the Trial Court had found the wall to be a common wall, whereas no such finding had been recorded.
The Bench also observed that the High Court repeated the same error that had earlier led to remand, by again seeking to compensate the legal heirs in monetary terms despite there being no prayer for compensation and despite a decree operating in their favour. It also noted that although the High Court referred to three questions and stated that the defendants urged the Court to frame them as substantial questions of law, the impugned order did not indicate that those questions were in fact treated as substantial questions of law. The setting aside of the decrees without an available question of law for consideration and by making out a new prayer resulted in miscarriage of justice.
Briefly, the appellants are the legal heirs of the original plaintiff, Om Parkash, who had filed two suits against the respondents. In first suit, the plaintiff sought mandatory injunction for removal of an alleged illegal encroachment in the form of a wall constructed on the common open space beyond his house, and also sought permanent injunction restraining further construction. That suit was decreed by the Trial Court on February 06, 2006, and the decree was affirmed. In second suit, the plaintiff sought mandatory injunction for removal of a lintel of the school building erected by the defendants on the wall of the plaintiff’s house. That suit was decreed by the Trial Court on November 08, 2004, and the decree was also affirmed.
In the second appeals filed by the defendants, the High Court had earlier modified the decrees by directing payment of specified amounts with interest and treating the wall as common between the parties. Those judgments were set aside by the Supreme Court on September 13, 2013 on the ground that the High Court had modified the decrees without entering into the merits and without framing substantial questions of law, and the matters were remanded for fresh consideration. On remand, the High Court again set aside the decrees passed by the Trial Court and affirmed by the first Appellate Court, and directed the Executing Court to assess the value of the construction so that the defendants could deposit such amount for payment to the legal heirs of the plaintiff.
