SHIV KUMAR SHARMA v. SANTOSH KUMARI

Citation: [2007] 10 S.C.R. 17

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

SHIV KUMAR SHARMA v. SANTOSH KUMARI.pdf

Judgment text

SHIV KUMAR SHARMA V. SANTOSH KUMAR! SEPTEMBER 18, 2007 [S. B. SINHA AND H. S. BEDI, JJ. ] Code ofCivil Procedure, I908-0 2 r.

2-Suitto include the whole claim-Parties in possession ofshop belonging to each other-Transfer ofpossession ofshop-Non-performance ofcontract by appellant- Decree infavour ofrespondentfor possession ofshop owned by him against appellant-Challenge to-High Court holding infavour of respondent anddirecting appellant to pay compensation to respondent and giving him liberty to claim damages/mesne profit in a separate suit-Propriety of-Held: High Court not correct inframing additional issues ofits own which did not arise for consideration-Respondent having omitted to claim damages by way ofmesne profit cannot be permitted to get the same indirectly-High Court did not have the , requisitejurisdiction in equity to pass such directions-Thus, thatpart of the order of High Court not sustainable-However, appellant directedtopay Rs 50, 0001- as costs to respondent besides costs awarded by courts below~onstitution ofIndia, I950-Article 142-Equity.

y Appellant and respondent entered into an agreement to sell their respective properties - shop-A and shop-B to each other for a certain price. Parties gave vacant possession ofthe property in their possession to each other. However, registered sale deed could not be executed. Respondent filed suit for possession ofshop-B and for permanent injunction against the appellant Trial Court held in favour ofthe respondent and against the appellant. Aggrieved, appellant 'G filed appeal. During pendency ofthe appeal, respondent got back possession ofthe premises. High Court held that the appellant was to pay sum of Rs. 1,50,000/- to the respondent in respect of transferring the title and possession ofshop-A and as such directed ---- but even a suit wherefor a prayer for grant ofdamages by way ofmesne profit or otherwise is claimed, must be instituted within the prescribed period oflimitation. Damages cannot be granted without payment ofcourt fee.

In a case where damages are required to be calculated, a fixed court fee is to be paid but on the quantum determined by the court and the balance court fee is to be paid when a final decree is to be prepared. 17. Ifthe respondent intended to claim damages and/ or mesne profit, in view of Order II, Rule 2 of the Code itself, he could have done so, )'' but he chose not to do so. For one reason or the other, he, therefore, had full knowledge about his right. Having omitted to make any claim for damages, in our opinion, the plaintiffcannot be permitted to get the same indirectly. Law in this behalfis absolutely clear. What cannot be done directly cannot be done indirectly. 18. Scope and ambit ofjurisdiction ofthe High Court in determining an issue in an appeal filed in terms of Section 96 of the Code of Civil Procedure (which would be in continuation of the original suit) and exercising the power ofjudicial review under Articles 226 and 227 of I ~ SHIV KUMAR SHARMA v.

SANTOSH KUMARI 27 the Constitution oflndia would be different While in the fonner, the court, subject to the procedural flexibility as laid down under the statute is bound to act within the four comers thereof, in adjudicating a lis in exercise of its power ofjudicial review, the High Court exercises a widerjurisdiction. No doubt, the court in an appropriate case, even in a civil suit may mould a reliefbut its jurisdiction in this behalfwould be confined to Order VII, Rule 7 ofthe Code ofCivil Procedure. [See Bay Berry Apartments Pvt. Ltd and Anr. v. Shobha and Ors. (2006) 10 SCALE 596 and UP. State Brassware Corpn. Ltd and Anr. v. Udai Narain Pandey, [2006] 1 sec 479] 19. Submission ofMs. Luthra that the High Court had the requisite jurisdiction in equity to pass the impugned decree, in a situation of this nature, therefore, in our opinion, is not correct. 20. Learned Trial Judge has relied upon Fibrosa v. Fairbairn, (1943) AC 32 and Nelson v. Larholt, (1948) 1 KB 339.

In support of its findings, reliance has also been placed by Ms. Luthra on Cumberland Consolidated Holdings Ltd v. Ireland, (1946) 1 All ER 284. Those decisions have no application to the facts and circumstances ofthe instant case. 21. In England, the Court ofEquity exercises jurisdiction in equity. The courts oflndia do not possess any such exclusive jurisdiction. The Courts in India exercise jurisdiction both in equity as well as law but exercise ofequity jurisdiction is always subject to the provisions oflaw. Ifexercise ofequity jurisdiction would violate the express provisions contained in law, the same cannot be done. Equity jurisdiction can be exercised only when no law operates in the field. 22. A court of law cannot exercise its discretionary jurisdiction de'hors the statutory law. Its discretion must be exercised in tenns ofthe existing statute. In Shamsu Suhara Beevi v. G. Alex and Anr.

, [2004] 8 SCC 569, this Court, while dealing with a matter relating to grant ofcompensation by the High Court under Section 21 ofthe Specific ReliefAct in addition to the relief of specific performance in the absence of prayer made to that effect either in the plaint or amending the same at any later stage of -t the proceedings to include the relief ofcompensation in addition to the reliefofspecific performance, observed: "Grant ofsuch a relief in the teeth of express provisions ofthe statute to the contrary is not permissible. On equitable consideration court cannot ignore or overlook the provisions of the statute. Equity must yield to law". 23. We, therefore, are ofthe opinion that the High Court was not . correct in framing the additional issues ofits own which did not arise for ~consideration in the suit or in the appeal. Even otherwise, the High Court should have formulated the points for its consideration in terms ofOrder XLI, Rule 31 ofthe Code.

On the pleadings ofthe parties and in view of the submissions made, no such question arose for its consideration. In any event, ifa second suit was maintainable in terms ofOrder II, Rule 4 ofthe Code, as was submitted by Ms. Luthra, no leave was required to be granted therefor. A civil court does not grant leave to file another suit. Ifthe law permits, the plaintiffmay file another suit but not on the basis ;-, of observations made by a superior court. 24. In view ofour findings aforementioned, it is not necessary for us to determine the question as to whether in a sitUation ofthis nature, the plaintiffwas entitled to damages. He might have been entitled thereto but no prayer having been made, that part of the judgment ofthe High Court which is impugned before us cannot be sustained.

y However, in exercise ofour discretionary jurisdiction under Article 142 ofthe Constitution oflndia and having regard to the conduct ofthe defendant, we direct that the costs shall be payable by the appellant in favour ofthe respondent in terms of Section 35A of the Code, besides . the costs already directed to be paid by the learned Trial Judge as also by the High Court. We direct the appellant to pay a sum of Rs. 50,000/- by way of costs to the respondent. 25. The appeal is disposed of with the aforementioned directions. NJ. Appeal disposed of