Abdulkadar Esmailbhai Desai v. Chisti Khankah (Mosque, Dargah and Kabrastan) trust, Ahmedabad
1998-11-17
S.K.KESHOTE
body1998
DigiLaw.ai
S. K. KESHOTE, J. ( 1 ) THE plaintiff-petitioner by this civil revision application under Sec. 115 of the Code of Civil Procedure. Challenges the order of the Joint District Judge, Surat dated 8. 11. 1996 in Misc. Civil Appeal No. 23/96 filed against the order of the Small cause Court, Surat dated 16. 1. 1995 under which the application filed by him for grant of temporary injunction pending in the Small Civil Suit No. 267/94 has been rejected, has been confirmed. ( 2 ) THE facts of the case in brief are that admittedly the plaintiff-petitioner was a tenant of three pieces of land situated at Surat. All these properties are of the ownership of the Chisti Khankah (Mosque, Dargah and Kabrastan) Trust i. e. respondent No. 1. The respondent Nos. 2-9 are the trustees of the trust and the other respondents are the sub-tenants which were inducted from time to time by the plaintiff-petitioner in the suit property. ( 3 ) THE trust filed Small Causes Regular Civil Suit No. 348/82 against the plaintiff- petitioner for the arrears of the rent and for possession of the suit property. It is not in dispute that the suit aforesaid has ultimately been decreed by the Small Causes Court on the basis of compromise between the parties. As per the decree passed on the compromise of the parties the plaintiff petitioner has to surrender the possession of the disputed properties to the Trust. Instead of giving possession of the suit land in dispute in pursuance of the compromise decree, the plaintiff-petitioner filed the Small Cause Civil suit No. 267/9 for the cancellation of the decree passed by the Small Cause Court in small Civil Suit No. 348/82 on the ground of fraud. In this suit he filed an application for grant of temporary injunction to restrain the trustees from not to interfering and disturbing his possession of suit property. In the suit he impleaded the trust, trustees and sub-tenants as a party. ( 4 ) THE learned Trial Court after hearing the parties under the order dated 16. 1. 1995 decline to grant the temporary injunction in favour of the plaintiff. The plaintiff petitioner also prayed for the grant of temporary injunction to restrain trust and trustee from recovering the rent from the sub-tenants and this prayer is also declined.
( 4 ) THE learned Trial Court after hearing the parties under the order dated 16. 1. 1995 decline to grant the temporary injunction in favour of the plaintiff. The plaintiff petitioner also prayed for the grant of temporary injunction to restrain trust and trustee from recovering the rent from the sub-tenants and this prayer is also declined. ( 5 ) THE plaintiff-petitioner filed appeal against this order in the District Court, Surat which came to be decided under the impugned order by the Joint District Judge, Surat and the same has been dismissed. Hence this revision application before this Court. ( 6 ) RELYING on the series of the decisions of the Supreme Court and the different High court including this Court, the learned counsel for the plaintiff petitioner contended that the decree on the basis of which the Trust and the trustees are bent upon to dispossess the plaintiff-petitioner from the suit property has been obtained by fraud and as such it is not executable. It has next been contended that in the suit the plaintiff-petitioner has been given out a list of the facts where from it clearly come out that a fraud has been committed upon him by the trustees and this decree has been obtained. It is submited that the sub-tenants were not also parties to the suit in which the compromise decree has been passed and that decree in these facts and circumstances is not binding on them and the plaintiff-petitioner as he is in possession of the property through them. Lastly it is contended that the possession of the plaintiff petitioner on the suit property is not protected then the suit as well as this civil revision application have become infructuous. ( 7 ) ON the other hand the learned counsel for the respondent Nos. 1 to 9 contended that the suit is wholly misconceived and has been filed with the oblique motives, The plaintiff petitioner has compromised the suit and then it appears that dishonesty has been developed in his mind and to have some illegal benefits from the trust and trustees he has filed the present suit. It has next been contended that otherwise also the plaintiff-petitioner is not in physical, real and actual possession of the suit property. He has let out the suit property to sub-tenants and he is earning handsome amount in the form of rent from them.
It has next been contended that otherwise also the plaintiff-petitioner is not in physical, real and actual possession of the suit property. He has let out the suit property to sub-tenants and he is earning handsome amount in the form of rent from them. It is a case where the plaintiff-petitioner is making the profits out of this suit property which belongs to Turst. Carrying on this contention the learned counsel for the trust and trustees urged that the present is not the case where nongrant of the temporary injunction will cause any irreparable injury, which cannot be compensated in terms of money to the plaintiff petitioner. The balance of convenience is also does not favour grant of temporary injunction in favour of the plaintiff petitioner. It is submitted that both the courts have considered that even the plaintiff- petitioner has no prima facie case in his favour. Lastly, it is contended that the Courts may be slow to deprive the decree holder from fruits of decree, more so when it is passed on compromise between the parties. ( 8 ) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. ( 9 ) THE case law on which the reliance has been placed by the learned counsel for the plaintiff-petitioner during the course of his arguments in this revision application need not to be referred and discussed in detail for the obvious reason that it is a case where both the courts after considering the material produced by both the parties have declined to grant temporary injunction in favour of the plaintiff petitioner. This revision application is filed under Sec. 115 of the Code of Civil Procedure and this court has very very limited power of judicial review in its revisional jurisdiction. It is a case where both the Courts have gone deep in the matter and passed well considered and very very exhaustive orders. If we go by the orders of the Courts below, I am constrained to observe that instead of consuming that much of the time in deciding Ex. 5 the Courts should have disposed of the suit itself within that period. It appears that the disposal of Ex. 5 and the appeal filed against it has been taken for disposal towards their quota prescribed for the Courts subordinate.
5 the Courts should have disposed of the suit itself within that period. It appears that the disposal of Ex. 5 and the appeal filed against it has been taken for disposal towards their quota prescribed for the Courts subordinate. That seems to be reason that the learned Trial Court and the first appellate court are concentrating on the matters of temporary injunction. I fail to see this approach of the Courts below which felt contended and satisfied to fulfil their quota of the disposal of the cases. The suit and appeals against final decree of the Trial Court are to be decided and the disposals should only be taken of those matters towards the prescribed quotas of disposal of the Courts subordinate to this Court. ( 10 ) HOWEVER, this is a matter to be dealt with in some appropriate case at later point of time. ( 11 ) IN the matter of the grant of temporary injunction which is a discretionary order, however to be exercised judiciously in the equitable jurisdiction, the appellate Court as well as this Court have very very limited power of the judicial review. What are the revisional powers of this Court in such matters it is better to make reference to two decisions of the Honble Supreme Court the details of which are as under : (i) In the case of D. L. F. Housing and Construction Co. (P) Ltd. [m/s. ] vs. Samp singh and Others reported in AIR 1971 SC page 2324 and ii) in the case of The Managing Director (MIC) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and Another vs. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad reported in AIR 1973 SC page 76. ( 12 ) IN this case the grievance of the plaintiff petitioner is that the compromise decree has been obtained by the trustees by playing a fraud upon him. It is only an assertion of plaintiff- petitioner and same is to be decided by the learned Trial Court after taking evidence of both the parties. It is not the case where the other side has admitted the allegations made in plaint by plaintiff. So, it is a serious disputed question of fact and after the evidence of the parties, it may be accepted or may not be accepted by the Trial Court.
It is not the case where the other side has admitted the allegations made in plaint by plaintiff. So, it is a serious disputed question of fact and after the evidence of the parties, it may be accepted or may not be accepted by the Trial Court. In such matters, where there a compromise decree, I find sufficient justification in the approach of the learned Trial Court and the first appellate Court that normally the Courts should be very very slow to grant any temporary injunction which effects to restrain the decree holder from executing a decree passed by the competent Court. The grant of the injunction in such matters by way of interim relief will amount to granting of the final relief at the interlocutory stage. Moreover, while granting the temporary injunction, the Courts has to consider that the plaintiff-petitioners has prima facie case, the irreparable injury will cause, which cannot be compensated in terms of money in case the injunction as prayed by the party is denied or the plaintiff-petitioner by put in an irretrievable position and lastly the balance of convenience also favour for grnat of injunction. Leaving apart the question whether the plaintiff has a prime facie case or not in his favour at least in all the circumstances it cannot be said to be case where any irreparable injury will cause to the plaintiff in case the temporary injunction as prayed for has not been granted in his favour. The plaintiff-petitioner at the cost of repeatation it is stated is not in physical and actual possession of the suit property. He has come up with a case that he filed the suit for protection of his sub-tenants. It is suffice to say that the sub-tenants have not taken any action against the impugned decree. It is different matter that the plaintiff petitioner has joined them for his own support of the case but individually, as stated earlier, they have not taken any litigation and further they are not taking any action. Those persons are admittedly in the possession of the suit property. It is a case where the plaintiff petitioner is getting the rent from the sub-tenants.
Those persons are admittedly in the possession of the suit property. It is a case where the plaintiff petitioner is getting the rent from the sub-tenants. So in case the injunction has not been granted in favour of the plaintiff- petitioner, then what it will result that he will lose the difference of the amount of the rent to be paid by him to the trustees and the rent which he is collecting form the sub-tenants. This is certainly an ascertainable sum and ultimately if the plaintiff petitioners succeeds in the suit, the Court will take care of this amount and may pass appropriate order for the payment thereof in accordance with law. ( 13 ) SO it is not the case where in the presence of these facts any irreparable injury will cause to the plaintiff-petitioner on declining of the Courts below a temporary injunction in his favour. In the facts of the case which are stated at the cost of the repeatation that the decree is there in favour of the trust and trustees of the possession of the suit property against the plaintiff-petitioner and that too a compromise decree, the plaintiff-petitioner is not in possession of the suit property and the property belongs to the trust, it cannot be said that the balance of convenience is in favour of the plaintiff petitioner. In the result, this revision application fails and the same is dismissed with costs to the defendant No. 1. Trust which is quantified to Rs. 5,000/ -. .