Where maintainability of a suit is questioned, the Court should prima facie decide question of maintainability before granting interim relief.

In the matter of Asma Lateef & Anr. Vs. Shabbir Ahmad & Ors. Civil Appeal No. 9695/2013 decided by Hon’ble Supreme Court of India on 12.01.2024.

Facts of the Case-

Appellants who were the Plaintiff before the Trial Court claimed that their great-grandmother had orally gifted a certain property to them and they were in peaceful possession of the same continuously. Appellants filed a suit u/s 38 of Specific Relief Act along with an application for interim injunctions against that lady’s son Kazmi (D/f No. 1), Kazmi’s son Samiullah (D/f No. 2) and one purported caretaker of the property (D/f No. 3). Kazmi filed his WS where he inter alia contented the maintainability of a civil court to adjudicate the said suit. As no WS was filed by Samiullah, the Appellants moved an application under Order VIII Rule 10 CPC for pronouncement of judgment against Samiullah, which was allowed by the trial court vide order dated 05.08.1991.

Meanwhile Kazmi passed away in 1995 and his sons transferred the suit property to R 1-3. As none of the legal heirs of Kazmi were brought on record, the suit was dismissed as abated in 2009. The Appellants, as purported decree holders filed an execution application for executing the order dated 05.08.1991. On the objections raised by the Respondents u/s 47 CPC, the executing court dismissed the execution application. The order of the executing court was set aside by the Revisional Court, however was upheld by the High Court vide judgment dated 04.02.2011.

The sole question raised before the Hon’ble Apex Court was “Whether the order dated 5th August, 1991 suffered from a jurisdictional error so grave that the decree drawn up subsequently is incapable of execution by the Executing Court and an objection that it is inexecutable was available to be raised under section 47, CPC by the Respondents 1 to 3?”

Analysis and Conclusion-

Kazmi had indeed filed his WS before the order dated 05.08.1991 wherein he objected to the maintainability of the suit before a civil court. The Apex Court noted that in the present case, maintainability of the suit was in question and despite Samiullah not having filed his WS, it was not a case where the Trial Court could simply pronounce judgment without even recording a satisfaction that it had the jurisdiction to try the suit and adjudicate the contentious issue(s), not to speak of pronouncing its verdict against Samiullah without assigning a single reason by treating the averments in the plaint to be admitted.

Coming to the question of jurisdiction, the Apex Court relied on a number of judgments to conclude that the question of jurisdiction has to be determined at the commencement and not at the conclusion of the enquiry. In the factual situation of the present case, the Court hold the order dated 05.08.1991 to be ab initio void and the decree drawn up based thereon as inexecutable.

Although not directly arising in the present case, the Apex Court also observed that the question of jurisdiction would assume importance even at the stage a court considers the question of grant of interim relief. ‘Where point of maintainability is raised in a suit and on that basis the Defendant contents that interim relief should not to be granted, grant of relief in whatever form, if at all, ought to be preceded by formation and recording of at least a prima facie satisfaction that the suit is maintainable or that it is not barred by law. Such a satisfaction resting on appreciation of the averments in the plaint, the application for interim relief and the written objection thereto, as well as the relevant law that is cited in support of the objection, would be a part of the court’s reasoning of a prima facie case having been set up for interim relief, that the balance of convenience is in favour of the grant and non-grant would cause irreparable harm and prejudice. It would be inappropriate for a court to abstain from recording its prima facie satisfaction on the question of maintainability, yet, proceed to grant protection pro tem on the assumption that the question of maintainability has to be decided as a preliminary issue under Rule 2 of Order XIV, CPC. That could amount to an improper exercise of power. However, if an extraordinary situation arises where it could take time to decide the point of maintainability of the suit and non-grant of protection pro tem pending such decision could lead to irreversible consequences, the court may proceed to make an appropriate order in the manner indicated above justifying the course of action it adopts.

(SP-01-2024)