RAJIV SETH v. DAYA KISHAN MEHRA — 1996 DIGILAW 166 (DEL)

S. D. PANDIT ( 1 ) THESE two applications are inter-connected. IA. 11371/95 is filed by the plaintiff under Order XXXIX rules 1 and 2 of the Code of Civil Procedure whereas IA. 346/96 is filed by defendants 1 to 5 under Rule 4 of Order XXXIX of the Code of Civil Procedure. Hence, both these applications are being disposed of by this common order. ( 2 ) PLAINTIFF Rajiv Seth is the son of pre-decesed dauther of Seth Munni Lal Mehra whereas defendants I to 4 arc the sons and defendant No. 5 is the grandson of the said Scth Munni Lal Mehra. Plaintiff has come before the Court with the case that his grandfather Seth Munni Lal Mehra had died leaving behind him self- acquired properties consisting of moveables and iinmoveables, as mentioned in para No. 2 of the plaint. It is his further allegation that defendants 1 to 5 have forged and fabricated the document dated 23. 3. 1993, purporting to be the last Will of his grandfather late Munni Lal Mehra. He has filed the present suit to get partition and separate possession of his 1 /24th share in the suit property. By filing 1a. 113 71 /95 he has sought ad-interim injunction to restrain the defendants from transferring or creating am third party interest against the suit properties and on that application ex-parte order has been passed on 22. 11. 1995 as under: "issue order of ad interim injunction against defendants 1 to 5 restraining them from selling, mortgaging or creating any charge or encumberance on any of the suit immoveable as well as moveable properties until further orders. Issue show cause notice to the defendants to show cause as to w hy the ad interim injunction order issued today should not be made absolute and as to w hy the other claim of ad interim injunction sought for should not be granted. " ( 3 ) DEFENDANTS 1 to 5 have appeared and have filed their reply to the said application and they have also filed IA. 346/96. They contend that the claim of the plaintiff that they have fabricated a false Will is baseless and said Munni Lal Mehra was in fine health till he breathed his last and he had executed the Will of his own sweet Will. 346/96. They contend that the claim of the plaintiff that they have fabricated a false Will is baseless and said Munni Lal Mehra was in fine health till he breathed his last and he had executed the Will of his own sweet Will. They further contend that Munni Lal Mehra had executed nomination record as there were fixed deposit receipts held by him w ith Punjab National Bank, Agra and the Bank of India, Agra, w ith M/s. Ashwini Kumar Mahindra and Ashok Gupta as attesting witnesses-on behalf of the former bank and Mrs. G. Mahindra on behalf of the latter bank. They further contend that plaintiff, his father and brother were amongst the. recipients ofthe largesse of the late Munni Lal Mehra as he had transferred certain fixed deposit receipts in their favour. They further contend that the properties REFERRED TO to in para No. 2 of the plaint were not owned by Munni Lal Mehra and the properties at serial Nos. 1 to 3 are in the tenancy with Krishna Prasad Brothers and late Seth Munni Lal Mehra was not a partner of the said firm and, therefore, the plaintiff is not entitled _ to get any relief in respect ofthe same. They further contend that plaintiff has not given the description and details of the four bungalows and, therefore, the plaintiff s claim in respect of the same is also not tenable. As regards claim regarding properties in Amritsar and Bombay, it is contended that no property belonging to Munni Lal Mehra was lying in Amritsar or Bombay. They also contend that the claim ofthe plaintiff that Late Munni Lal Mehra was in possession of fixed deposits totalling rupees one crore in Punjab National. Bank, N. D. S. E. , New Delhi and the Bank of India, New Agra Branch Agra, is false. The said Munni Lal , Mehra did not own any shares either in any company or M/s. K. P. Brothers P. Ltd. According to them, the plaintiff has obtained the order from the Court by making false representations as well as false claim and, therefore, the order of ad-interim injunction issued in favour ofthe plaintiff be vacated and the plaintiff s application be rejected. ( 4 ) BEFORE considering the material on record and the submissions made by learned counsel for the. ( 4 ) BEFORE considering the material on record and the submissions made by learned counsel for the. defendant it is necesary to mention here certain aspects as regards the nature of the suit before me. This suit is brought by a son of a deceased daughter of late Munni Lal Mehra, who was not residing with Late Munni Lal Mehra. Defendants 1 to 4 are the sons of Late Munni Lal Mehra whereas defendant No. 5 is the son of a pre-deceased son of Late Munni Lal Mehra. It is the claim of the applicnt/plaintiff that the Will dated 23. 3. 1993 is fabricated and procured by defendants 1 to 5 in order to ururp the properties of his grandfather and deny the legitimate shares to him and other heirs of late Munni Lal Mehra. Deceased Munni Lal Mehra is the father of defendants 1 to 4 and grandfather of defendant No. 5 and these defendants 1 to 5 have laid claim to his property on the strength ofthe Will dated 23. 3,1993. Admittedly, the said Will was not registered during the life time of late Munni Lal Mehra and defendants 1 to 5 have subsequently got it registered. It is plaintiff s further claim that thereafter defendants 1 to 5 wanted the affirmation on affidavit about the validity of the said Will in their favour from the other heirs of deceased Munni Lal Mehra and in pursuance of the said activities they had also approached him and they had given copy of an affidavit on a stamp paper which they w anted me to sign along with one fixed deposit receipt for the value of Rs. 1,50,000. 00. ( 5 ) AT this juncture it is not necessary for me to go into the question of the validity of the Will because to make any observations regarding the truthfulness or otherwise of the claim of the plaintiff as regards the said Will will cause prejudice to both the plaintiff as well as the defendants when that claim will have to be decided and considered at the time of final hearing of the suit. But, it is necessary to mention here that as regards his claim the plaintiff has produced alongwith the suit the fixed deposit receipt for Rs. 1,50,000. But, it is necessary to mention here that as regards his claim the plaintiff has produced alongwith the suit the fixed deposit receipt for Rs. 1,50,000. 00 as well as the prepared affidavit affirming the said Will which was handed over to him in order to obtain his signature on the same. Alongwith the said document he has also produced copies of two other similar documents obtained from other heirs of Late Munni Lal Mehra which was filed by defendants 1 to 5 in the proceedings in the Agra Court. ( 6 ) I had asked the defendants 1 to 5 to produce on record the copy of the Will in uestion and the same has accordingly been produced. If the said document is seen then it would be quite clear that in the said document there is only a vague statement that all the moveable and immoveable property of late Munni Lal Mehra was to devolve on defendants 1 to 5. In the natural course of human conduct when a person wants to bequeath a property on the strength of the Will he would describe in the Will the property which he wants to bequeath by the said Will. This vague statment of the Will seems to have been purposely mentioned in order to avoid the information to other heirs to know as to w hat property has been bequeathed by him in favour of his sons and grandson. It is the claim of the plaintiff that when the said affidavit was brought to him he was told that if he happened to sign the said affidavit then he w ould be paid in all Rs. 15,00,000. 00. Now, when such an event takes place it is but natural that he w ould think that his grandfather must have left behind him assets worth crores of rupees. When plaintiff is out of possession of the property and when the plaintiff is not also having access to the account books and property of his grandfather his vague statement in the plaint that his grandfather has left behind him fixed deposit of Rs. one crore could not be said to be a blatant purposeful false statement made by him. He w ants an order of ad-interim injunction against defendants 1 to 5 from encashing any fixed deposit receipts in the banks mentioned in the plaint in order to protect his interest. one crore could not be said to be a blatant purposeful false statement made by him. He w ants an order of ad-interim injunction against defendants 1 to 5 from encashing any fixed deposit receipts in the banks mentioned in the plaint in order to protect his interest. When he is out of possession of the property and when he could not have the access to the property then there is no alternative for him than to come before the Court and seek aid of the Court to restrain defendants 1 to 5 who could be in possession of the material and the documents pertaining to the moveable and immoveable properties belonging to his grandfather What has been ordered by this Court is an order of issuing ad-interim injunction against defendants 1 to 5 liquidating the fixed deposits that might be standing in the banks mentioned in the plaint. I am unable to hold that the said order is causing any prejudice to the defendants in view of their claim that no asets were left behind by late Munni Lal Mehra. During the trial of the suit it would be possible for the plaintiff to show by summoning the bank authorities as to what fixed deposits w ere there in the name of late Munni Lal Mehra at the time of his death. Therefore, at this stage, if no injunction is granted as prayed for by the plaintiff he is likely to suffer irreparable loss as the defendants 1 to 5 w ould be at liberty to liquidate the fixed deposit receipts standing in the name of Late Munni Lal Mehra in those banks. ( 7 ) AS regards property Nos. 1,2 and 9 described in para No. 2 it is the claim of the defendants that these are not owned by Late Munni Lal Mehra and that property No. 1 is in the tenancy of Krishan Prasad Brothers P. Ltd. while property Nos. 2 and 9 are in the tenancy of K. P. brothers. According to defendants 1 to 5 at the time of his death Munni Lal Mehra was not a partner of these partnership firms, they have produced one document of the Partnership Deed dated 11. 5. 1992. The said document shows that there was earlier partnership dated 26. 7. 1983 in which late Munni Lal Mehra w as a partner and he expressed his desire to. 5. 1992. The said document shows that there was earlier partnership dated 26. 7. 1983 in which late Munni Lal Mehra w as a partner and he expressed his desire to. retire from 31. 3. 1992 and he actually retired on that date and then the new partnership, as disclosed by the said document, took place from 14. 1992. But it is not quite clear from the material on record as to whether his l/5th share in the partnership business and the tenancy right has been adequately paid to him. The defendants, as regards property No 1. and 2 they are tenants but it is not quite clear as to what took place regarding 1 /5th share of late Munni Lal Mehra in the said partnership businesses and partnership which had taken the said premises on lease the defendants 1 to 5 w ill be only restrained in not creating third party interest as regards the said property or to surrender the tenancy of the said premises. It is. at this juncture, not possible to hold conclusively that Munni Lal Mehra had no interest in those properties and to hold that his claim is totally false. No doubt he has contended as regards these properties Nos. 1 and 2 that they are of the ownership and they are self acquired properties of late Munni Lal Mehra but it must be borne in mind that plaintiff is one of the heirs of late Munni Lal Mehra and he has come before the Court to get partition and separate possession of his share in all the properties belonging to his grandfather as the partnership business in which his grandfather was a partner was being run in those premises. If he happened to ave r and contend that those properties were of the ownership of his grandfather,it could not be said that he has intentially and purposely made a false statement. If he happened to ave r and contend that those properties were of the ownership of his grandfather,it could not be said that he has intentially and purposely made a false statement. It would, at the most, be an error on his part in making the description of the property and that error on his part in describing the property of the ownership, in view of the peculiar circumstances, could not be taken as an dishonest act on his part so as to throw his claim out of Court ( 8 ) AS regards property No. 9, the said property is standing as owned by the partnership and as stated earlier at this stage it is not possible to hold that Munni Lal Mehra had no interest in the said property. Only after the full trial it w ill be possible to hold as to whether Munni Lal Mehra was a partner of the firm, whether the said property w as aquired or not and whether his share has been paid to him before his death. But in view of the nature of the suit and the controversy between the parties the retention of the said property by restraining defendants 1 to 5 is necessary in order to avoid multiplicity of proceedings between the parties and in order to adequately decide the rival claims. ( 9 ) AS regards the property at serial Nos. 4 and 5 it is the claim of the plaintiff that shares worth Rs. 50,00,000. 00 and Rs. 3,00,000. 00 of M/s. Binny Limited, Bangalore and K. P. Brothers, Defence Colony, New Delhi, respectively. were left behind by Munni Lal Mehra. According to the defendants no such shares were left behind by Munni Lal Mehra. Here again it must be mentioned that the plaintiff would not have the detailed information regarding the said claim of him as the original documents are not lying with him and the original documents belonging to Late Munni Lal Mehra are in custody and possession of defendants 1 to5. What has been ordered is to restrain defendants 1 to 5 from transferring or alienating the shares standing in the name of Munni Lal Mehra in those firms. If there happened to be no shares at the time of full trial of the suit then the said order would become redundant. What has been ordered is to restrain defendants 1 to 5 from transferring or alienating the shares standing in the name of Munni Lal Mehra in those firms. If there happened to be no shares at the time of full trial of the suit then the said order would become redundant. At this stage it is not possible to vacate the stay order becaise if such an order is vacated and on the full trial it is found that ther were such shares then it would definitely cause prejudice to the plaintiff. As against this if there are no shares, by continuation of the stay order no prejudice would be caused to defendants 1 to 5, ( 10 ) THERE is no dispute about the existence of property No. 6. The only thing contended on behalf of defendants 1 to 5 as regards this property is that some litigation is going on and they are not in possession of the same. Here also it must be mentioned that the injunction order against them is only to restrain them from alienating in whatsoever manner the property which w as standing in the name of Munni Lal Mehra ( 11 ) AS regards the four bungalows mentioned in para No. 7 in the reply the defendants have stated that out of the four bungalow s threc bungalows are admittedly the subject matter of three suits pending in the Agra Court in which defendants 1 to 5 are already brought on record as the legal representatives of late Munni Lal Mehra. ( 12 ) AS regards property No. 10 it is contended that that allegation is vague but this Court had asked the plaintiff to give details or the description of the said property before passing the said order and by IA. 11835/ 95 he has deleted the property at serial No. 10. Therefore, the said property at serial No. 10 does not survive as the suit property in view of IA. 11835/95 which has been allowed by this Court earlier. ( 13 ) LEARNED counsel for the defendants has cited before me the cases of M/s. Seemax Construction (P) Ltd. Vs. State Bank of India and anothe AIR 1992 Delhi 197]. In this case his Lordship Y. K. Sabharwal, J. had rejected the relief of ad-interim injunction on account of suppression of material facts. ( 13 ) LEARNED counsel for the defendants has cited before me the cases of M/s. Seemax Construction (P) Ltd. Vs. State Bank of India and anothe AIR 1992 Delhi 197]. In this case his Lordship Y. K. Sabharwal, J. had rejected the relief of ad-interim injunction on account of suppression of material facts. But if the facts of the said case are seen then it would be quite clear that the facts of the said case are not at all applicable to this case. In that suit plaintiff had filed two suits earlier in other courts on the same. facts and relief claimed but had not disclosed the said fact in the third suit and had obtained ex-parte order of ad-interim injunction and had subsequently withdrawn those two suits. Therefore, in view of these peculiar facts his Lordship Sabharwaj J. was pleased to reject the application of ad-interim injunction on account of suppression of material facts. ( 14 ) IN the present case before me, there is no suppression of any material fact by the plaintiff. At the most it is a mere error in the narration of facts. He has narrated in the plaint the property at serial Nos. 1 and 2 as the self-acquired separate properties of his grandfather though from the material on record it seems that they are in the tenancy of a partnership of which his grandfather was a partner. In the case of property at Serial No. 9 though he has averred in the plaint that it was self-acquired property of his grandfather as per the contention of the defendants that property is owned by the defendants and I have already discussed above that at this juncture it is not possible to hold that late Munni Lal Mehra had no interest in the same. Therefore, in these circumstances. I hold that the said case is not at all applicable to the facts before me. ( 15 ) LEARNED counsel for the defendants has then cited before me the cases of Rajabhai Abdul Rehman Munshi Vs. Vasudev Dhanjibhai Mody [1964 (3) S. C. R. 480], Harinarain Vs. Badri Das [1964 (2) S. C. R. 203] and Udai Chand Vs. Shankar Lal and Ors. [air 1978 S. C. 765]. ( 15 ) LEARNED counsel for the defendants has then cited before me the cases of Rajabhai Abdul Rehman Munshi Vs. Vasudev Dhanjibhai Mody [1964 (3) S. C. R. 480], Harinarain Vs. Badri Das [1964 (2) S. C. R. 203] and Udai Chand Vs. Shankar Lal and Ors. [air 1978 S. C. 765]. In all these three cases the petitioner seeking Special Leave under Article 136 of Constitution of India had obtained special leave on making false and misleading assertions in the petition. When it subsequently transpired that on the petitioner making false assertions the leave was granted to him, the leave was refused by dismissing the Special Leave Petition without going into the merits. The consideration of granting leave under Article 136 of the Constitution of India is quite different. From the material on record I am unable to hold that plaintiff has purposefully made any false statement to his knowledge. What has happened in the case before me is a mere error of misdescription. Therefore, all these cases are not applicable to the facts before me. ( 16 ) IT is also conteded before me on behalf of defendants 1 to 5 that the plaintiff has not complied with the provisions of Rule 3 of Order XXXIX of the Code of Civil Procedure. If the provisions of Rule 3 of Order XXXIX arc read then it would be quite clear that when the Court proposes to pass an order of ad-interim injunction without notice to the other side the Court would require the applicant to deliver to the opposite side the copy of the application and other documents and the order of the Court and then to file an affidavit of having done so. In the instant case admittedly the plaintiff has not filed the affidavit but he has produced the document to show that he had sent the copies by registered post. Learned counsel for the defendants has cited before me the case of Nat Organic Chemicals Indistries Vs. B. L. Industries [34 (1988) D. L. T. 232]. In the said. case it has been observed by his Lordship B. N. Kirpal, J. , as his Lordship then was, as under: "from the facts enumerated above it does appear that there has been a lapse on the part of the plaintiff in not complying with the provisions of Order 39 Rule 3 proviso. In the said. case it has been observed by his Lordship B. N. Kirpal, J. , as his Lordship then was, as under: "from the facts enumerated above it does appear that there has been a lapse on the part of the plaintiff in not complying with the provisions of Order 39 Rule 3 proviso. The | question which how ever, arises is that has that lapse resulted in any serious prejudice being caused to the defendant. As I have alrady noted above, the Court closed for w inter vacation after 18th December 19 87 and re-opened on 4th January, 1988, though the Registry -of the High Court opened on 2nd January, 1988 for the purpose of filing. It is before 2nd January. 1988 that the defendant had been served both with the order of injunction as well as copy of the application for injunction, plaint, affidavit in support of the injunction and copies of the document on which the applicant relied. As such the defendant could take apropriate action either in filing a reply to the application under Order 39 Rules I and 2 and/or filing an independent application under Order 39 Rule 4 immediately on the re-opening of this Court. The delay in sending the documents to the defendant has not, in my opinion, caused any serious prejudice to the defendant. For the aforesaid reasons, I come to the conclusion that the ad-interim ex-parte injunction which was granted on 17th December, 1987 did not stand automatically vacated. " ( 17 ) IF the above observations are taken into consideration then it must be said that in order to get the quashing of the order of ad-interim injunction for non-compliance of Rule 3 of Order 34 the party must show that prejudice has been caused to him by non-compliance of the same. From the material on record of this case I am unable to hold that any prejudice has been caused to the defendants. Defendants have filed the application under Order XXXIX Rule 4 in this Court on 10. 1. 1996 and the order in question w as passed on 22. 11. 1995, which was served on them by uregistered post as per the document produced by the plaintiff In the case of Naba Kishore das and another Vs. Defendants have filed the application under Order XXXIX Rule 4 in this Court on 10. 1. 1996 and the order in question w as passed on 22. 11. 1995, which was served on them by uregistered post as per the document produced by the plaintiff In the case of Naba Kishore das and another Vs. Umakanta Mohapatra and others [ air 1985 Ori 222 ] it has been held that non-compliance of Rule 3 of Order XXXIX does not render the order non-est. ( 18 ) THEREFORE, in view of the considerations and discussion above, I hold that the order passed in IA . 11370/95 deserves to be modified as indicated above and the defendants application IA. 346/96 deserves to be rejected. I, therefore, pass the following order: "defendants 1 to 5 are hereby restrained by ad-interim injunction from selling, mortgaging or creating any charge or encumberance on any of the properties mentioned at serial, Nos. 3,6,7 and 9 of para No. 2 of the plaint till further orders. Defendants 1 to 5 are further restrained by ad-interim injunction not to transfer the possession of the properties mentioned at serial Nos. 1 and 2 of para No. 2 of the plaint till further orders. Defendantsw 1 to 5 are further restrained by ad-interim injunction from liquidating any fixed deposits or am amounts lying in any account in the name of Late Munni Lal Mehra either in Punjab National Bank or the Bank of India, Agra and from transferring or alienating any shares standing in the name of Late Munni Lal Mehra of M/s. Binny Ltd. . Bangalore and M/s. K. P. brothers. Defence Colony, New Delhi. " ( 19 ) IAS. 11371/95and 346/96 stand disposed of with-no order as to costs.