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2000 DIGILAW 818 (KAR)

P. S. G. Krishnan v. Jyothi Narayan Das

2000-12-07

R.GURURAJAN

body2000
JUDGMENT R. Gururajan, J.—Plaintiff/Appellant is before this Court in this appeal complaining about the unsustainability of an order of dismissal of IA IX filed by him and complaining about allowing IA No. X subject to certain conditions in the impugned order dated 21.9.2000 on the following facts. 2. Parties will be referred to in this order as per their ranking in the trial Court. 3. Appellant/Plaintiff entered into a lease-cum-sale agreement dated 11.11.1982 with the then BDA in the matter of site bearing No. 97 in block 'B' Koramangala extension. The BDA issued certificate dated 25.8.1985 in terms of lease-cum-sale agreement. Appellant was given a possession certificate by BDA. Appellant has also cleared amounts payable to BDA. His name stands in the record of rights. It is the case of Plaintiff/Appellant that he did not execute any power of attorney or deed in favour of Defendant/Respondents. Defendants 1 to 3 have no right, title or interest in respect of the schedule property. Plaintiff/Appellant sought for a declaration declaring that the sale deed executed on 5.7.1999 by Defendant 1-Sri Jyothi Narayan Das in favour of Sri B.S. Prasanna and Smt. Vandana Prasanna is not binding on the Plaintiff and has also sought for permanent injunction in the matter. The trial Court passed an order in IA v. restraining Defendants 1 to 3 from putting up construction till the disposal of the suit. IA 5 was passed due to pausity of time and was made clear to parties that the parties are free to produce material to substantiate their version and seek necessary orders for varying the injunction granted. IA IX is an application filed by the Plaintiff to vary the order passed in IA v. on 19.8.2000. IA X is an application filed by the Defendants 2 and 3 to discharge the order of injunction granted in favour of Plaintiff as per order dated 19.8.2000. 4. The Defendant filed his written statement and affidavit before the trial Court. According to the Defendants the suit schedule property originally was allotted by BDA in favour of the Plaintiff. The Plaintiff did enter into an agreement of sale with one Ram S. Wadwa for Rs. One Lakh and consideration amount was paid by two cheques of Rs. 50,000/- each dated 21.6.1985 and 24.6.1985 drawn on United Western Bank, Bangalore. According to the Defendants the suit schedule property originally was allotted by BDA in favour of the Plaintiff. The Plaintiff did enter into an agreement of sale with one Ram S. Wadwa for Rs. One Lakh and consideration amount was paid by two cheques of Rs. 50,000/- each dated 21.6.1985 and 24.6.1985 drawn on United Western Bank, Bangalore. At the time of execution of agreement in favour of Ram S. Wadhwa Plaintiff gave a conditional sale deed dated 24.5.1985 in part performance of the contract executed under an irrevocable power of attorney in favour of Ramesh K. Ahuja and the said Ahuja and Wadhwa in turn entered into an agreement of sale in favour of Defendant 1 on 28.9.1985. Plaintiff was signatory to said deed as a consenting witness and a sale deed was executed by Plaintiff through his power of attorney holder Ramesh Ahuja on 18.4.1994 and Defendant 1 in turn sold the said property to Defendants 2 and 3. It is also the case of Defendant that katha has been transferred in their name and they have raised loan from CAN FIN HOMES LIMITED. They have availed a loan of Rs. 35/- lakhs from CAN FIN HOMES LIMITED and they would suffer injuries if an injunction restraining them from constructing building on the suit schedule property is granted by the Court. 5. Learned Judge heard I As IX and X and passed a common order. He framed 3 points for his consideration and answered the first point of "prima facie" in favour of the Plaintiff. In so for as balance of convenience is concerned he held against Plaintiff. He modified the order thereby dismissing IA IX and allowing IA X. He vacated the interim order of restraint by way of construction subject to the condition that the Defendants 2 and 3 shall give an undertaking before the Court that they would not claim equity on the basis of construction made by them on the suit property and that they would demolish the structure at their cost in the event of matter being decided against them. Defendants 2 and 3 shall furnish security for Rs. 20,000/- as bank guarantee for due performance of the said undertaking. The Defendants complied with the said undertaking. 6. Plaintiff as mentioned earlier challenges the said order questioning the correctness of the order by raising several contentions in the appeal. Defendants 2 and 3 shall furnish security for Rs. 20,000/- as bank guarantee for due performance of the said undertaking. The Defendants complied with the said undertaking. 6. Plaintiff as mentioned earlier challenges the said order questioning the correctness of the order by raising several contentions in the appeal. Appellant is represented by Sri Shekar Shetty, learned Counsel and Defendants/ Respondents appeared through Sri Shankar Narayan, learned Counsel. 7. Matter was heard at great length for several days and after hearing the following order is passed. 8. Mr. Shekar Shetty learned Counsel for the Appellant essentially contended that Defendants are totally strangers to his client. According to him a fraud is played on his client in the light of various discrepancies as can be seen from the documents placed before trial Court. According to him he is in possession and the power of attorney granted by him is misused resulting in this predicament situation to him. He further argues that the Judge having held prima facie issue in his favour and ought to have vacated the conditions is his submission. He submitted that the two conditions would not be in the interest of anybody and therefore he wants me to interfere with the orders of the trial Court. 9. Per contra Sri Shankarnarayan, learned Counsel took me through the pleadings and contended that Appellate Court must be slow in interfering in these matters. He further argued that having regard to a valid sale deed in his favour he cannot be prevented from putting up construction. According to him his client would suffer a greater hardship on account of the loan transaction with CAN FIN HOMES LIMITED. His submission is that Plaintiff's interest is fully protected because of two conditions. 10. Admitted facts are that the suit schedule property is an allotted site by BDA to the Plaintiffs. The Plaintiff denies having executed either power of attorney in favour of Mr. Ahuja or an agreement of sale in favour of Mr. Jyothi Narayan Das. According to him these are concocted documents. The Plaintiff stated that in view of certain financial difficulties he had with one Sri Nagpal, he gave a conditional sale deed to him and the said conditional sale deed is now misused as contended by him. 11. The trial Judge after noticing all these documents has given a favourable finding in favour of the Plaintiff. The Plaintiff stated that in view of certain financial difficulties he had with one Sri Nagpal, he gave a conditional sale deed to him and the said conditional sale deed is now misused as contended by him. 11. The trial Judge after noticing all these documents has given a favourable finding in favour of the Plaintiff. He has noticed that the various contentions raised by either parties are matters of evidence. Whether the signatures of the Plaintiff is forged and whether the conditional sale deed was said to be valid as security and whether the same was misused cannot be adjudicated at present as per the findings of the Judge. Defendant obtained sale deed in 1994 and did not get katha transferred till 1997. According to trial Judge there are serious questions to be tried and the case put forth by Plaintiff cannot be said to be duly false or vexatious. Suffice to say that the case of the Plaintiff being a prima facie one is accepted by the trial Judge. The said findings admittedly are not challenged by the contesting Defendant herein. As a matter of fact I did not want to go into more details about these aspects of the matter in this appeal. But Mr. Shekar Shetty, learned Counsel for the purpose of considering the balance of convenience wanted me to have a re-look of these documents in the light of the contention of either parties. The Defendants Counsel emphatically argues that in view of a sale deed in his favour he cannot be prevented from putting up construction. Any restraint order would cause hardship to him and I have noticed these documents only for the purpose of balance of convenience and the conduct of the parties in the matter of discretionary orders. The agreement alleged to have been executed by the Plaintiff in favour of Ram S. Wadwa is seen at page 27 of the trial Court records. The agreement is executed on 21.6.1985 by the Plaintiff in favour of Ram S. Wadwa. This agreement of sale refers to the Plaintiff being in actual possession of the site. It also refers that the Plaintiff has handed over vacant possession in favour of Ram S. Wadwa. The document is dated 21.6.1985. The agreement is executed on 21.6.1985 by the Plaintiff in favour of Ram S. Wadwa. This agreement of sale refers to the Plaintiff being in actual possession of the site. It also refers that the Plaintiff has handed over vacant possession in favour of Ram S. Wadwa. The document is dated 21.6.1985. On the very same day the Plaintiff is supposed to have given a power of attorney in favour of Ramesh Ahuja, and it refers to an alienation of the property in favour of Ram S. Wadwa. The said document is dated 21.6.1985. The third document in an agreement of sale between Ram S. Wadwa and Jyoti Narayan Das, Defendant 1 herein. The said document is executed by Ram S. Wadwa in favour of Jyothi Narayan Das. Mr. Jyothi Narayan Das was alleged to have given a sum of Rs. One Lakh. The possession was ought to have been handed over on 20.9.1985 by Ram S. Wadwa in favour of Defendant 1. In terms of the possession handed over to the Defendant 1 he has entered into agreement on 28.9.1995. This agreement is between Ram Wadwa in favour of Jyothi Narayan Das. The said document refers to a deed of assignment dated 28.9.1995, whereas the said document is only an agreement of sale. It refers to the vendor viz. Jyothi Narayan Das handing over the possession on the date of resignation of the sale deed. This document is signed by Ramesh, Power of Attorney Holder. The rectification deed is signed on 27.9.1989. This document is executed by power of attorney holder on behalf of Plaintiff to Defendant 1. The sale deed was executed in the year 1989 by Jyothi Narayan Das-Defendant 1 in favour of Defendants 2 and 3. In the said deed it refers to sale deed which is factually a rectification deed. More details regarding proposed deeds are not forthcoming in the sale deed in favour of Defendants. The encumbrance certificate issued to the Plaintiff does not reflect any sale deed of 1994 but the encumbrance certificate filed by the Defendant refers to a sale agreement in the year 1994. 12. All these facts would clearly go to show that the facts are not so clear with regard to a prima facie title in favour of the vendors of Defendants 2 and 3. 12. All these facts would clearly go to show that the facts are not so clear with regard to a prima facie title in favour of the vendors of Defendants 2 and 3. In one place it is seen that the possession has been handed over and in another place possession "shall be handed over," etc. It is not clear as to when the possession was obtained by Defendant 1 and how. 13. Mr. Shankarnarayan, in the course of arguments very vehemently contended that these facts should not be taken note of at this stage in view of an admitted sale deed in his favour. How he obtained the sale deed and possession and in what circumstances are necessary is to be taken into consideration prima facie for grant of an interim order. Now by virtue of the impugned order, possession according to the Defendant is by way of sale deed, whereas according to the Plaintiff it is by way of a fraud played on his client. As to who was in possession and how they came into possession are all matters of evidence and for further proceedings. 14. In view of these discrepancies the learned trial Judge rightly ruled that the Plaintiff has made out a prima facie case for his consideration and that finding is not challenged. Having found a prima facie case in his favour in the light of my earlier discussion I must find out as to whether the trial Judge is right in imposing the two conditions for putting up construction is a delicate issue. One party is complaining about a fraud or misuse and the other party is pleading hardship and difficulties on account of the Bank loan. In such circumstances whether the trial Judge is right in allowing construction notwithstanding these discrepancies is a matter that require my consideration. 15. Mr. Shekar Shetty, argued at great length to contend that virtually his client is dispossessed and the alleged possession by the Defendant is suspicious in character. At any rate it borders fraud on his client. He argued that in such circumstances Courts have ruled that the construction should not be allowed. He has relied on various judgments in support of his case. Mr. At any rate it borders fraud on his client. He argued that in such circumstances Courts have ruled that the construction should not be allowed. He has relied on various judgments in support of his case. Mr. Shankar Narayan on the other hand contends that comparatively speaking his client would be put to great hardship and the trial Judge was right in ordering construction subject to certain conditions. 16. The trial Judge had given two reasons for allowing construction, one is that the Defendant has collected material and second is that 'CAN FIN' has granted loan to Defendant and if the Defendant is prevented from construction he may have to pay heavy interest and to meet the ends of justice the trial Judge ordered "no equity" after construction and for "demolition with a deposit of Rs. 20,000/-". He has referred to the judgment of Justice Shyamsundar with regard to putting of terms in a matter like this. There cannot be any quarrel over terms, but what conditions are to be imposed is a matter that really concerns me in this case. The Plaintiff comes before the Court and Court accepts his prima facie case in his favour by accepting various discrepancies and after accepting it he orders construction or construction on conditions of no equity with demolition. 17. Parties rely on various judgments of various Courts. Plaintiff relies on the judgment reported in Smt. Rathnamma vs. B.A. Srinivasa Gupta, 1999 (1) KLJ 577; C.H. Krishnamurthy vs. Manjappa and Another, 1996 (3) KLJ 580; Chinnamma and others Vs. N. Nagaraj and others, AIR 1996 Kant 11; Nagesh Kumar Vs. Kewal Krishan, AIR 2000 HP 116 ; Venkat Reddy vs. Budenna @ Dodda Budenna, 1971 (1) Mys LJ 317 and Thunga Bai vs. Vishalakshi Heggadthi, 1974 (2) KLJ 484. 18. Per contra Defendants Counsel relies on C.H. Krishnamurthy vs. Manjappa and Another, 1996 (3) KLJ 580; Sree Jain Swetambar Terapanthi Vid. (S) Vs. Phundan Singh and Others, AIR 1999 SC 2322 ; S. Bapuchand Shaha and Co. vs. H. Sakharam Mehata and Co., ILR 1987 (3) Kar 571 and A. Madhava Hegde vs. Rajendra S. Revankar, ILR 2000 Kar 1267. 19. Taking into consideration a overall view of the matter I am of the view that the appellate Court can interfere if the trial Court's order granting a conditional order is capricious or arbitrary. vs. H. Sakharam Mehata and Co., ILR 1987 (3) Kar 571 and A. Madhava Hegde vs. Rajendra S. Revankar, ILR 2000 Kar 1267. 19. Taking into consideration a overall view of the matter I am of the view that the appellate Court can interfere if the trial Court's order granting a conditional order is capricious or arbitrary. In the case on hand the trial Court has noticed a prima facie case in favour of Plaintiff and also noticed several discrepancies with regard to title of the vendor of the Respondents. The Plaintiff has alleged fraud and mischief against the Defendant. The trial Court has accepted the said plea and has ruled that it requires evidence. When there is a serious plea of fraud with regard to the title of the vendor of the Defendant, it is not proper to permit the Defendant to construct in this case on hand. Moreover the Defendant has obtained loan according to him from CAN FIN HOMES LIMITED. The contract details and loan transactions the Respondents have at CAN FIN HOMES is not available on record. It is doubtful as to how far the undertaking of the present Defendant without the consent of the CAN FIN HOMES would be binding is also a matter that requires serious consideration. That being the position it is not safe to permit construction in a case like this. But it is no doubt true that the Defendants has obtained loan from an institution and that by itself cannot be a ground for ordering construction with no equity. On the other hand it is safe to issue an injunction restraining him from putting up construction with conditions on the Plaintiff which would rather meet the ends of justice. Asking a litigant to put up construction with a rider of pulling down is not that safe in a matter like this. The threat of demolition is always lingering in the mind of Defendant and he may not be peaceful with that sword of demolition. I am of the opinion that pulling down of a built structure is a serious matter. A poor country like ours cannot suffer construction and destruction. Parties construct for their living and not with a fear of demolition. On the other hand justice demands that imposition of conditions on Plaintiff in the background of this case. 20. In the case of Smt. Rathnamma Vs. A poor country like ours cannot suffer construction and destruction. Parties construct for their living and not with a fear of demolition. On the other hand justice demands that imposition of conditions on Plaintiff in the background of this case. 20. In the case of Smt. Rathnamma Vs. B.A. Srinivasa Gupta, 1999 (1) KLJ 577 after considering various case laws this Court has ruled that the purpose of interlocutory orders is to preserve in status quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overtacts by one side or the other during its pendency. In the case of C.H. Krishnamurthy Vs. Manjappa and Another, 1996 (3) KLJ 580 in somewhat identical circumstances this Court has ruled in paras 4, 5 and 6 as under: 4. One cannot lost sight of the fact that these orders have been passed at a very preliminary stage and that the documents and evidence which the parties will produce are yet to be scrutinized. The witnesses are yet to be examined and cross examined and under these circumstances, it is only a prima facie appraisal that the Courts have done in relation to the material that was on record. Both the Courts have come to the conclusion that as far as the area of 3 acres 6 guntas is concerned that there is no difficulty in granting the relief but the Courts did face a problem in view of the controversy that was raised in granting a relief as regards the disputed area of two acres 20 guntas. Though the Courts have not said so, in so many words, if they have taken cognizance of the fact that the documents on the basis of which the Defendants claim a right is a registered sale deed. Certain presumptions do arise in relation to such a document and even though its validity and execution have been seriously attacked, the Courts cannot straight away uphold those infirmities which are pleaded unless they are tested. The main infirmity that is alleged is that even assuming the Plaintiff is alleged to have executed the sale deed though he denies the execution, that he being a minor as on that date, the transaction would be void. The main infirmity that is alleged is that even assuming the Plaintiff is alleged to have executed the sale deed though he denies the execution, that he being a minor as on that date, the transaction would be void. It is the onus of establishing the infirmity that lies on the Plaintiff and one must remember that until this burden is discharged, the Court cannot come to any definite conclusions in this regard. Similarly, as regards the question of the record of rights whereas there is a good deal of merit in Mr. Patil's contention that if the transaction of sale took place in 1979 that there appears to be virtually no reason why the change could not have been made for more than one decade thereafter. The fact still remains that the Defendants will have to be given an opportunity of tendering whatever explanation they may have for this. There are several disputed areas in this case but more importantly I find that there are many grey areas which could ultimately emerge in favour of either of the parties. 5. Mr. Patil advanced a very strong submission that by going back to the year 1973, if he could establish the Plaintiffs title in respect of Sy. No. 60/2, that the Courts must uphold his contention that he is not only the owner but he is in possession of that whole survey number. Normally I would have straight away upheld this submission except for the fact that a registered document has been produced in respect of part of that land and it is this document which requires to be carefully examined. This Court will not opine to the validity or otherwise of that document at this point of time because both the parties must be afforded a fair opportunity of proving their cases in that regard. 6. The last question that arises is as to whether having regard to this state of record the two Courts were justified in refusing the Plaintiff a relief in respect of a part of the land measuring two acres twenty guntas. 6. The last question that arises is as to whether having regard to this state of record the two Courts were justified in refusing the Plaintiff a relief in respect of a part of the land measuring two acres twenty guntas. In my considered view, the two Courts were slightly in error in this regard because it is well settled law that even if a relief as prayed for cannot be granted, that having regard to the facts and circumstances of the case the Courts must mould a suitable relief having regard to the interests of justice. The Plaintiff contends that he is possession of that area of land and that he always was whereas the Respondent to this petition contend that they are in possession of that area of land. I find it impossible to hold conclusively in favour of either party and under these circumstances the Court is left with no option except to direct that the status quo as of today shall be maintained. It is clarified that whichever of the parties is in possession shall be precluded completely from alienating, parting with possession or creating any 3rd party rights in respect of the area of two acres twenty guntas. This Court in Chinnamma and others Vs. N. Nagaraj and others, AIR 1996 Kant 11 in the matter of injunction has ruled as under: One of this principles is that where there is a dispute in relation to immovable property which happens to be vacant, that if the property were to be encumbered, alienated, built upon or if third party rights are permitted to be created during the interim period that the situation might become and in fact does become totally irreversible by the time the Court passes final orders. It is a well defined principle of law that a Court is required to be equally fair to the Defendants as also to the parties who have approached the Court and therefore, necessary safety precautions in relation to the Plaintiff's interest are also of some consequence. This is in fact essence of the principle behind the grant of interim orders. In Nagesh Kumar Vs. Kewal Krishan, AIR 2000 HP 116 Himachal Pradesh High Court has considered grant of injunction restraining the Defendant from raising construction over the suit land. This is in fact essence of the principle behind the grant of interim orders. In Nagesh Kumar Vs. Kewal Krishan, AIR 2000 HP 116 Himachal Pradesh High Court has considered grant of injunction restraining the Defendant from raising construction over the suit land. In the light of these judgments instead of imposing of conditions on the Defendants the Court ought to have imposed conditions on the Plaintiff by asking him to make good the interest liability of the Defendants herein in view of a subsequent title for maintaining status quo with a further rider not to alienate or create any charge over the property. In fact that would be a safer course to adopt as held by this Court in such circumstances. It is in the interest of both parties to maintain status quo. As on today and that they are to be prevented completely from alienating or parting with possession or creating 3rd party rights. In addition to it Plaintiff must be directed to file an undertaking to make good interest liability of the Defendants. This would be the correct approach on the facts and circumstances of this case instead of no equity and pulling down. 21. Defendant has cited two judgments with regard to grant of injunction and two judgments with regard to Court-fee. The first case C.H. Krishnamurthy vs. Manjappa and Another, 1996 (3) KLJ 580 has already been noted by me while considering the case of the Plaintiff. The decision in the case of Sree Jain Swetambar Terapanthi Vid. (S) Vs. Phundan Singh and Others, AIR 1999 SC 2322 , the Supreme Court has considered the question of powers of the appellate Court. The Supreme Court ruled that the appellate Court without discussing the material on record cannot set aside the injunction as invalid. Para 12 of the said judgment reads as under: 12. It may be pointed out that it is one thing to conclude that the trial Court has not recorded its prima facie satisfaction on merits but granted the temporary injunction and it is another thing to hold that the trial Court has gone wrong in recording the prima facie satisfaction and setting aside that finding on the basis of the material on record because it has not considered the relevant material or because it has erroneously reached the finding or conclusions on the facts established. In the first situation, the appellate Court will be justified in upsetting the order under appeal even without going into the merits of the case but in the second eventuality, it cannot set aside the impugned order without discussing the material on record and recording a contrary finding. The High Court proceeded to set aside the order of the trial Court on the first ground ignoring the aforementioned findings of the trial Court, the order under appeal is, therefore, unsustainable. This finding of the Supreme Court read in the context of the present facts is not applicable to the facts of this case. In the case on hand the trial Court has given a finding of prima facie case in favour of the Appellant to which I have agreed to in my judgment. The Defendant-Respondent did not challenge that finding before this Court. In these circumstances, the judgment of the Supreme Court is not applicable to this case on hand. 22. Therefore taking an overall view of the matter in the light of the various judgments, I deem it proper to modify the impugned injunction in this case. 23. Before concluding I must notice two technical objections raised by Mr. Shankarnarayan. His first argument is that as against two I As one appeal is filed and therefore the appeal is not maintainable. In the light of this argument I have gone through the pleadings before this Court. Though there are two I As filed virtually it is an order passed in modification of an order passed in IA V, and even otherwise the appeal memo refers to a prayer to set aside an order dated 21.9.2000 passed in IA IX. Therefore, this argument does not appeal to me. The second argument is regarding Court fee payable on the plaint. Counsel contends that a serious question has been raised with regard to proper Court fee and the trial Judge without considering ought not to have granted an injunction. A reading of the Court Fee Act and the rules would show that the Court is required to consider the payment of proper Court fee as a preliminary issue. The two judgments - A. Madhava Hegde vs. Rajendra S. Revankar and, ILR 2000 Kar 1267 and Shivaram Bapuchand Shaha and Co. Vs. A reading of the Court Fee Act and the rules would show that the Court is required to consider the payment of proper Court fee as a preliminary issue. The two judgments - A. Madhava Hegde vs. Rajendra S. Revankar and, ILR 2000 Kar 1267 and Shivaram Bapuchand Shaha and Co. Vs. Hirachand Sakharam Mehata and Co, ILR (1988) KAR 1962 relied with regard to Court fee as mentioned earlier would not be available to the Respondents for the present and it may be available while considering the Court fee as a preliminary issue. Now that the pleadings are complete, the Court would be well advised to frame an issue with regard to payment of proper Court fee by the Defendants and decide it in accordance with law. Therefore these two arguments require to be rejected. 24. In the result this appeal is allowed. Order of the trial Judge is set aside. On the other hand a temporary injunction is issued restraining the Defendants from putting up any construction in the suit schedule properties with the following conditions. A) Parties are to maintain status quo as on today in the matter of possession and the character of the property; B) Both the parties are directed not to alienate or induct any third party in possession or create rights pending disposal of this case, C) Plaintiff shall file an undertaking to make good the interest liability suffered by the Defendants within one month from today in the event of his losing the case before the trial Court. Since the pleadings are complete I deem it proper to direct the Court below to complete the entire proceedings within six months from today. Parties are directed not to seek unnecessary adjournments and co-operate with the Court in completing the proceedings within the period stipulated in this order. D) Parties to bear their own costs. 25. In view of this order trial Court is directed to return the amount deposited by the Defendant-Respondent. 26. Ordered accordingly.