Suit For Injunction In Respect Of Immovable Property Not Abated On Death Of Parties: Karnataka High Court

A Single Judge bench of Justice N S Sanjay Gowda said,

"The right to enjoy possession of an immovable property is not a right that can be enjoyed only by one person and it is not a right that cannot survive beyond the life of that person. The right to enjoy property is a transferable right and thus is not limited to any one person. On the death of a person, the right to enjoy possession of that property can and does survive to his legal representative."

It added, "If it is to be held that in a suit for injunction, whenever a plaintiff or a defendant dies, the suit would abate, it would be virtually creating a never ending cycle of litigation, which obviously would result in an absurd situation where a party to suit is to be perennially litigating in courts."

The observation was made in a Second appeal arising out of a disputed property. During the pendency of the original suit itself, both the 1st plaintiff and original defendant died and their legal representative were brought on record and these legal representatives prosecuted not only the suit but also the appeal which arose out of the dismissal of the suit and also the second appeal.

The argument sought to be advanced in this second appeal is that the suit being one for injunction, on the death of the 1st plaintiff, the suit could not continue and similarly on the death of defendant, the suit had to abate.

Disagreeing, the bench said,

"An injunction, as stated under the Specific Relief Act, is a preventive relief granted at the discretion of the Court. An injunction, which is granted up to a limited time or until further orders of the court, is called a temporary injunction, while an injunction granted by a decree at the hearing of the suit and upon merits of the suit, is called a perpetual injunction. A decree of perpetual injunction perpetually enjoins a defendant from the assertion of his right or from the commission of an act which is contrary to the rights of the plaintiff. There is absolutely nothing indicated in provision of Part III or Part IV of the Specific Relief, which even remotely indicates that an injunction is a right which is personal to the plaintiff."

The Court was of the view that a personal right is a right that can be enjoyed only by an individual on his own and it is a right that cannot survive his life. Such kinds of personal rights are relatable only to a limited category of suits, such as a suit for defamation, suit for damages for the personal injuries suffered, a suit for bankruptcy, a suit for dissolution of marriage, etc.

Referring to Section 2 (11) of CPC, which is in regards to legal representatives, the bench said,

"A person in whose favour the rights of a property devolve by operation of law or by way of a testament would be a legal representative since he acquires a right to intermeddle with the estate of the deceased. Thus, it is clear that in a suit relating to the grant of a perpetual injunction in respect of an immovable property, the right to sue is not personal to the plaintiff but survives to his legal representative and the suit for injunction would not therefore abate."

The bench also referred to Section 306 of the Indian Succession Act and said that in a suit for injunction in relation to an immovable property, the legal representative of the deceased would enjoy the relief that the original party (plaintiff or defendant) would have been entitled to by virtue of the succession or inheritance in their favour and thus the suit would not abate and would have to be continued by bringing the legal representatives of the deceased on record.

Case Title: Chennaiah @Doddachennaiah and others versus Bylappa and others

Case No: RSA No 743/2011

Citation: 2022 LiveLaw (Kar) 149

Date of order: April 11, 2022

Appearance: Advocate Sampathi A for A1; Advocate B S Sudhindra for A2; Advocate Siddamallappa P M for R2, R3, R5; Senior Advocate G S Kannur a/w Advocate P Anand for R6

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