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2012 DIGILAW 955 (HP)

Darshan Kaur v. Parminder Singh

2012-12-11

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud, J.(oral) This petition under Article 227 of the Constitution of India has been preferred by the plaintiffs against the judgment and order of the learned Appellate Court reversing the order passed by the learned trial Court granting an injunction in favour of the plaintiffs restraining the defendant from alienating, transferring or creating any third party interest/charge in the property or encumbering or parting with the possession of the suit property, in any manner. 2. The plaintiffs instituted an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking injunction against the respondent. It was pleaded by the plaintiffs that the suit property is situated in Up Mohal, Lakkar Bazar, Patwar Circle Station Ward Bara Shimla in which plaintiff No. 1 Smt. Darshan Kaur is the owner to the extent of half share and Surjit Singh was the owner along with the first plaintiff of the other half share. The share of Surjit Singh was purchased by plaintiff No. 2 Shri Inderpreet Singh. Two agreements were entered into between the first plaintiff and Shri Surjit Singh with the father of the defendant on 6.9.1987. Pursuant to these agreements, Shri Surjit Singh agreed to sell a part of the suit land comprised in Khasra No. 521/7/8/9 measuring 84 Square yards. According to the first agreement, the consideration was Rs.70,000/- and according to the second agreement, the consideration was Rs.1,40,000/-. Thereafter, plaintiff No. 1 had executed a general power of attorney in favour of Darshan Singh, father of the defendant and Shri Surjit Singh with respect to the incomplete structure, raised on land measuring 84-4 square yards out of land measuring 215-3 square yards. It was stated in this power of attorney that father of the defendant will not claim any right over the structure or the land. The further case of the plaintiffs was that during the life time of Shri Darshan Singh, he did not pay the balance amount nor did he take steps to enforce the agreement dated 6.9.1987 and was neither ready nor willing to perform his part of the agreement. Shri Darshan Singh died about 10-15 years prior to the institution of the proceedings. Since the defendant was residing with Darshan Singh, therefore after the death of Darshan Singh, he (defendant) was allowed to reside in the premises. Shri Darshan Singh died about 10-15 years prior to the institution of the proceedings. Since the defendant was residing with Darshan Singh, therefore after the death of Darshan Singh, he (defendant) was allowed to reside in the premises. The plaintiff claimed the right of possession of the suit property and also claimed use and occupation charges. It is in these circumstances that the interim injunction was claimed till the final disposal of the suit. 3. The defendant contested the application stating that the application was not maintainable, the plaintiffs have no title in the land or building, but admitted their ownership and possession and the manner in which late Shri Darshan Singh and the defendant had acquired title. It was also admitted that the first plaintiff and Shri Surjit Singh had sold the land and transferred an area measuring 84-4 square yards of the plot along with the structure standing thereon which consisted six RCC pillars. The agreement to sell dated 6.9.1987 for Rs.70,000/- is also admitted. It was added that Rs.10,000/- was paid on 6.9.1987 when the agreement was executed and Rs.60,000/- on 16.7.1988. These amounts were stated to have been paid by late Shri Darshan Singh to plaintiff No. 1 and Shri Surjit Singh. It was also stated that Shri Surjit Singh has executed a general power of attorney in favour of late Shri Darshan Singh on 16.7.1988 after receipt of the entire balance sale consideration. Shri Darshan Singh is stated to have completed the remaining construction of both storeyes of the building transferred and sold to him and after that he was put in possession. The defendant further submitted that Shri Darshan Singh was always ready to perform his part of the sale but the sale deed could not be executed and registered as some restrictions were imposed in the year 1988 for the transfer of land in the municipal area to non-agriculturist of the Himachal Pradesh by the State. Shri Darshan Singh died on 9.12.1995 and thereafter the defendant being his only legal heir had inherited all rights, title or interest in the land. 4. The learned trial Court granted an injunction order by holding that the plaintiffs had relied upon two agreements dated 6.9.1987 executed between Darshan Kaur and Surjit Singh as the first party and Darshan Singh predecessor-in-interest of the defendant as the second party. 4. The learned trial Court granted an injunction order by holding that the plaintiffs had relied upon two agreements dated 6.9.1987 executed between Darshan Kaur and Surjit Singh as the first party and Darshan Singh predecessor-in-interest of the defendant as the second party. One agreement was executed for Khasra No. 521/7/8 and 9 of Lakkar Bazar, measuring 100 square yards whereby this land had been agreed to be sold for consideration of Rs.70,000/-, out of which Rs.10,000/- were paid by the second party and rest was agreed to be paid at the time of execution of the deed. According to the learned trial Court this agreement was also admitted by the defendant-respondent. Another agreement to sell between these parties on the same date for a sum of Rs.1,40,000/- measuring 100 square yards was executed, but according to the learned trial Court, there was no description of the property. Learned trial Court holds that according to the plaintiff since no sale deed was executed, the agreement of sell had lost its sanctity by efflux of time. 5. The defendant relied upon another agreement dated 17.7.1988 executed between Shri Darshan Kaur and Shri Surjit Singh as the first party and Shri Darshan Singh as the second party where it was agreed that Shri Darshan Singh predecessor-in-interest of the defendant will complete the construction of the structure consisting of 6 RCC pillars raised up to 8 feet height together with their foundation and plinth beam and also 3 RCC columns completed up to the second floor with the foundation etc. According to the defendant, the possession of this land was delivered to the respondent. It was also agreed that this construction would be made by the predecessor-in-interest of the defendant and the plaintiff would have no right, title or interest on it. The formal sale deed could not be executed as the permission of the State Government was required vide notification dated 14.4.1988. The defendant pleaded that the balance sale consideration had been paid and it was agreed that in case sanction was not granted, the second party shall hold over the property as an absolute owner and the plaintiffs/petitioners or their legal representatives shall have no claim over the same. This agreement was also admitted by the plaintiff-applicant. 6. The defendant pleaded that the balance sale consideration had been paid and it was agreed that in case sanction was not granted, the second party shall hold over the property as an absolute owner and the plaintiffs/petitioners or their legal representatives shall have no claim over the same. This agreement was also admitted by the plaintiff-applicant. 6. The learned trial Court then proceeds that the agreement dated 16.7.1988 provided that in case the permission is not granted by the Government, the defendant will hold the property as its absolute owner. The plaintiff pleads that the defendant never applied for such sanction as such notice dated 12.1.1992 along with its acknowledgement were placed on record. Accordingly this agreement was cancelled by the plaintiff. The Court holds that since the defendant had not placed on record any document to prima facie establish that he had applied to have the sale deed executed, the agreement dated 16.7.1988 had become disputed and as such the power of attorney cannot be relied upon. The Court then holds that according to the defendant, he is in possession of the land and premises and he has also installed the water and electricity meters. But since there are several disputed questions of law and facts which are to be determined at the time of final disposal of the case and the plaintiff is owner of the property according to jamabandi, therefore prima facie case has been made out in favour of the plaintiff-applicant and balance of convenience is also in his favour. In these circumstances, injunction was granted. 7. The defendant appealed. The learned Appellate Court after re-appreciating the factual situation holds that though it was urged by learned counsel appearing for the plaintiff that the defendant had no right, title or interest in the suit property, as they were recorded as owner in the revenue record yet the defendant was in possession and even if a registered sale deed was not executed, since Shri Darshan Singh had constructed the house on Khasra No. 680, he was to be treated as its owner more so when the vendees had accepted his ownership and possession. The Court holds that it was urged by the plaintiff that according to Clause-I of the general power of attorney, Shri Darshan Singh could not claim any right, title or interest in the construction carried out by him at his own costs. The Court holds that it was urged by the plaintiff that according to Clause-I of the general power of attorney, Shri Darshan Singh could not claim any right, title or interest in the construction carried out by him at his own costs. This according to the plaintiff was a part of the power of attorney stating that “to complete the structure at the cost of the attorney in which attorney will not have any right.” According to the learned Appellate Court, this was a mistake/oversight. 7. Most important of all, what I find is that the learned Appellate Court holds that the plaintiff did not dispute the execution of agreements dated 6.9.1987, 16.7.1988 and the general power of attorney executed in favour of Shri Darshan Singh. It was also the case of the defendant that during his life time, on 9.12.1991 Shri Darshan Singh had instituted a civil suit for permanent prohibitory injunction against the first plaintiff Smt. Darshan Kaur and her husband as also Shri Surjit Singh stating that he had been owner in possession of the suit property according to the agreements dated 6.9.1987 and 16.7.1988. He (Darshan Singh) had constructed a house in khasra No. 680 (new) corresponding to old Khasra No. 521/E/7, 8/9. There were common stairs of the parties to their houses situated in Khasra Nos. 680 and 681. The first plaintiff (of the present suit) had started obstructing the common stair case personally as also through her agents etc. and in that eventuality, a decree for injunction was issued prohibiting them from interfering in the rights of the defendant. Vide order dated 9.12.1991 an ad-interim injunction had been granted in favour of Shri Darshan Singh which was confirmed on 31.12.1993 and appeal against this order was dismissed on a statement having been made by Shri Narinder Singh, husband of the first plaintiff herein, who was also acting as attorney of his wife, stating that he will not close the common stairs and the suit was decreed in terms of the statement. This order was not challenged. 8. In the written statement filed, the first defendant had clearly stated that he had no intention to alienate the suit property. In the totality of the facts and circumstances, the learned Appellate Court held that the order of the learned trial Court could not sustained. 9. This order was not challenged. 8. In the written statement filed, the first defendant had clearly stated that he had no intention to alienate the suit property. In the totality of the facts and circumstances, the learned Appellate Court held that the order of the learned trial Court could not sustained. 9. I need not reiterate the principles for grant of an ad-interim injunction. In Colgate Palmolive (India) Ltd. vs. Hindustan Lever Ltd. AIR 1999 SC 3105 , the Supreme Court holds: “20. In Gujarat Bottling Co. Ltd. v. Coca Cola Co. (1995) 5 SCC 545 : AIR 1995 SC 2372 : (1995 AIR SCW 3521) this Court, however sounded a different note, though however, emphasised the discretionary power in the matter of grant of interlocutory injunction and in paragraph 43 (of SCC) : (para 46 of AIR) this Court observed : "43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion the Court applies the following tests – (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection, has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience" lies. The need for such protection, has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience" lies. (see : Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727 at pp. 731 32. In order to protect the defendant while granting an interlocutory injunction in his favour the Court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial." 23. Thus on an analysis of the decisions as noticed above, there does not seem to be any difficulty in appreciating the view as expressed by Lord Diplock in American Cyanamid (1975 (1) All ER 504). As a matter of fact, Laddie, J.'s decision in Series 5 Software case (1996 (1) All ER 853) (supra) has been able to resolve the issue without any departure from the true perspective of the judgment as noticed above. 24. We, however, think it fit to note hereinbelow certain specific considerations in the matter of grant of interlocutory injunction, the basic being non-expression of opinion as to the merits of the matter by the Court, since the issue of grant of injunction usually, is at the earliest possible stage so far as the time-frame is concerned. 24. We, however, think it fit to note hereinbelow certain specific considerations in the matter of grant of interlocutory injunction, the basic being non-expression of opinion as to the merits of the matter by the Court, since the issue of grant of injunction usually, is at the earliest possible stage so far as the time-frame is concerned. The other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :- (i) Extent of damages being an adequate remedy; (ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor; (iii) The Court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others; (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case - the relief being kept flexible; (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case; (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.” (at pp.3110-3112) 10. In State of Assam vs. Barak Upatyaka D.U. Karmachari Sanstha (2009)5 SCC 694the Supreme Court holds: “21. A precedent is a judicial decision containing a principle, which forms an authoritative element terms as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing.” (at p. 702) 11. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing.” (at p. 702) 11. The Court in Maria Margarida Sequeira Fernandes and others vs. Erasmo Jack De Sequeira (dead) through LRs (2012)5 SCC 370 holds: “81. False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent. 82. This Court in a recent judgment in Ramrameshwari Devi v. Nirmala Devi (2011)8 SCC 249 aptly observed at p. 266, para 43 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that the court’s otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least can be minimised if exemplary costs is imposed for instituting frivolous litigation. The Court observed at pp. 267-68, para 58 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. Grant or refusal of an injunction 83. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and Judges while granting or refusing injunction. Grant or refusal of an injunction 83. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and Judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. 84. In order to grant or refuse injunction, the judicial officer or the Judge must carefully examine the entire pleadings and documents with utmost care and seriousness. The safe and better course is to give a short notice on the injunction application and pass an appropriate order after hearing both the sides. In case of grave urgency, if it becomes imperative to grant an ex parte ad interim injunction, it should be granted for a specified period, such as for two weeks. In those cases, the plaintiff will have no inherent interest in delaying disposal of injunction application after obtaining an ex parte ad interim injunction. 85. The court, in order to avoid abuse of the process of law may also record in the injunction order that if the suit is eventually dismissed, the plaintiff undertakes to pay restitution, actual or realistic costs. While passing the order, the court must take into consideration the pragmatic realities and pass proper order for mesne profits. The court must take serious endeavour to ensure that even-handed justice is given to both the parties. 86. Ordinarily, three main principles govern the grant or refusal of injunction: (a) prima facie case; (b) balance of convenience; and (c) irreparable injury; Which guide the court in this regard. In the broad category of prima facie case, it is imperative for the court to carefully analyse the pleadings and the documents on record and only on that basis the court must be governed by the prima facie case. In grant and refusal of injunction, pleadings and documents play a vital role.” (at pp. 393-394) It is keeping in mind these principles that the entire dispute between the parties has to be considered. 12. In grant and refusal of injunction, pleadings and documents play a vital role.” (at pp. 393-394) It is keeping in mind these principles that the entire dispute between the parties has to be considered. 12. I find from the judgment of the learned Appellate Court that the predecessors-in-interest of the parties have been litigating and at one point of time, decree of injunction was also granted against the plaintiff and her husband who had started interfering in the stair case on the land and it is on this basis the suit in fact had been decreed. I also find that the agreement(s) to sell as also the power of attorney have been admitted though there are differences with respect to the payment of consideration and execution of the sale deed. It is in this backdrop that the entire case has to be considered. There can be no doubt that both the parties are required to be injuncted from alienating, encumbering the property in dispute. I find that this would be an appropriate order since the defendant-respondent has also filed a counter claim. During this period the injunction order issued against the petitioner herein, restraining her from interfering in the stair case and the common passage cannot be disturbed. Considering the contentious nature of pleadings, I find that the learned trial Court has been in grave error in passing the interim order as a matter of routine including within its ambit that relief which could have been granted by way of final relief. I find that the learned District Judge has gone further and vacated the injunction which obviously would lead to multiplicity of litigation though it is now well settled that anybody dealing with the property in litigation will do so at his own peril and if one does so, it is at his own risk as to consequences. The principles of lis pendense would be squarely applicable. (See Smt. Kasturi Devi and another vs. Harbant Singh and others, AIR 2000 Punjab and Haryana 271 and Shri Jagannath Mahaprabhu vs. Pravat Chandra Chatterjee and others, AIR 1992 Orissa 47) 13. The principles of lis pendense would be squarely applicable. (See Smt. Kasturi Devi and another vs. Harbant Singh and others, AIR 2000 Punjab and Haryana 271 and Shri Jagannath Mahaprabhu vs. Pravat Chandra Chatterjee and others, AIR 1992 Orissa 47) 13. In these circumstances, this petition is disposed of with the directions that (a) the plaintiff-petitioner shall not interfere in the stair case/passage subject matter of the suit inter se between the parties as held by the learned District judge (b) that both the parties will not alienate, encumber or transfer the suit land/property in any manner whatsoever during the pendency of the suit. 14. I find that the parties have been litigating since the time of his predecessors-in-interest. More time has been consumed ad-interim orders than considering the basic substance of the suit. In these circumstances, it would be in the fitness of things in case the suit is disposed of as early as possible by the learned trial Court by ensuring that no unnecessary adjournments are granted. 15. On the point urged before me, so far as the rights of the parties are concerned, and that merely because the permission has not been granted by the Government, will itself be no ground for grant of decree of specific performance. Petition stands disposed of.