JOSEPH SEVERANCE AND ORS. versus BENNY MATHEW AND ORS.

Citation: [2005] SUPP. 3 S.C.R. 429 · Decided: 23-09-2005 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

JOSEPH SEVERANCE AND ORS. 
A 
v. 
BENNY MA THEW AND ORS. 
SEPTEMBER 23, 2005 
[ARIJIT PASA Y AT AND C.K. THAKKER, JJ.] 
B 
Code of Civil Procedure, 1908: 
Section 100(4)-Second appeal-Substantial question of law-
Formulation of-High Court reversed the findings of Courts below without C 
formulating any substantial question of law-Correctness of-Held: This is 
contrary to the mandate of S. l 00( 4)-0rdinarily, the· matter would have 
been remitted to the High Court for formulating the substantial question of 
law and deciding the matter afresh-However, considering the long passage 
of time the matter decided by Supreme Court. 
D 
Order 39-Suit for mandatory injunction and prohibitory injunction-
Delay in filing the suit-Maintainability of-Plaintiff and defendant entered 
into an agreement of licence with respect to suit property-Permission granted 
to licensee to construct a cinema theatre for a period of five years-Licence 
renewed from time to time-On 11.2.1991 licence renewed for five years with E 
the condition that on expiry of five years, licensee to surrender vacant 
possession of suit property on demolishing the building-However, before 
expiry of jive years licensee died on 24.5.1994-Notice sent to defendants to 
vacate suit property-Suit filed on 12.2.1996-Tria/ court as well as First 
Appellate Court found that on the death of the licensee the licence came to F 
an end and thereafter possession of the defendants was as trespassers-
Mandatory injunction granted-However, before High Court, in second 
appeal, for the first time, the defendant took the plea that the-plaintiff could 
only seek recovery of possession and not injunction-High Court allowed the 
plea and held the suit as framed was not maintainable-It was also held that 
there was considerable delay in filing the suit-Correctness of-Held: The G 
defendant did not raise any specific plea before the trial court and first 
appellate court that the suit should be one for recovery of possession and 
that the suit for injunction was not maintainable-The plea raised was not 
a substantial question of law-Further, the High Court did not hold that the 
429 
H 
430 
SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R. 
A explanation offered by the plaintiff regarding the delay in filing the suit was 
not acceptable-It only took note of period after which suit was filed--
Defendant also did not raise any plea before the courts below that time taken 
was unreasonable-For the firs.t time, in second appeal, the dispute founded 
on factual foundation could not be raised-Hence, High Court's judgment set 
aside. 
B 
Words & Phrases: 
''Reasonable time "-Meaning of 
The appellant entered in to an agreement of licence with the respondent 
C with respect to the plaint schedule property under which permission was 
granted to the respondent to construct a cinema theatre for a period of five 
years. The licence was renewed from time to time and on 11.2.1991 the licence 
was renewed for five years with the condition that the licensee had to surrender 
vacant possession of the plaint schedule property on demolishing the building 
D and the structures thereon. However, before the expiry of five years the 
licensee died on 24.5.1994. The notice sent to the respondent yielded no 
results. Therefore, a suit for mandatory injunction as well as prohibitory 
injunction was filed. 
The trial court as well as the First Appellate Court found that on the 
E death of the licensee the licence came to an end and thereafter the possession 
of the defendants was as trespassers. Therefore, mandatory injunction as 
prayed for by the appellants was granted. 
Before the High Court, in second appeal, the respondent, for the first 
time, took the plea tha't since the respondents were trespassers the suit 
p property could be recovered only by filing a suit for recovery of possession. 
The High Court, without formulating the substantial question of law as laid 
down in Section 100( 4) of the Code of Civil Procedure, 1908, accepted the 
plea and held that the suit as framed was not maintainable. The High Court 
also held that there was considerable delay in filing the suit. Hence the appeal. 
G 
Allowing the appeal, the Court 
HELD: I. Though the High Court reversed the findings recorded by the 
trial court and the first appellate court no question of law was formulated. 
This is clearly contrary to the mandate of Section 100(4) of the Code of Civil 
Procedure, 1908. Ordinarily in such circumstances the ma

Excerpt shown. Read the full judgment & AI analysis in Lexace.