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2016 DIGILAW 1092 (GAU)

Jyotika Gogoi v. Nupur Kumar Gogoi

2016-12-06

KALYAN RAI SURANA

body2016
JUDGMENT AND ORDER : Kalyan Rai Surana, J. Heard Mr. D. Mozumdar, learned senior counsel assisted by Mr. P. Bora and Mr. J. Kakoti, learned counsel for the applicants in IA(C) No. 1930/16. Also heard Mr. A.K. Purkayastha, learned counsel assisted by Mr. N.N. Upadhyay, learned counsel appearing for the respondents. For the sake of convenience, the parties are hereinafter referred to as "appellants" and "respondents", as they are arrayed in the connected RFA No. 67/2016. 2. I.A.(C) No. 1930/16 is filed by the respondents Nos. 3 and 4 for vacating/modifying the order dated 05.10.2016 passed by this Court in RFA No. 67/2016. By the aforesaid order dated 5.10.2016, as an interim measure and till the next returnable date, the parties have been directed to maintain status-quo as on the date of the said order. It would be pertinent to mention herein that I.A.(C) No. 1652/2016 has been filed by the appellant under the provisions of Order 39, Rule 1 and Rule 2 of Code of Civil Procedure read with Section 151 of the code. Both the applications are proposed to be disposed of by this common order. 3. The appellants, namely, Nupur Kumar Gogoi and Dibakar Dutta were the plaintiffs in Title Suit No. 17/2015, which was filed before the learned court of Civil Judge, Lakhimpur, North Lakhimpur. The following prayers were made by the appellants: "(a) Pass a decree cancelling the deed of lease agreement No.704.2014 and pass necessary order(s) for consequential reliefs. (b) pass a decree for permanent injunction restraining the defendant No.1, 2, 3 and 4 from entering illegally into the land and building described in the schedule - A hereto below; (c) pass for the cost of the suit; (d) and pass any order as may be deemed fit & proper in the circumstances of the suit." The description of the suit premises described in Schedule - A of the plaint, which is very relevant for the purpose of these cases is quoted below: "Schedule-A A R.C.C. building with 3 rooms covering 38' x 18' sq. ft. plinth and covering 30' x 50' sq. ft. space (about 9 lucha of land) carrying a fair price shop and its godown by Sri Dibakar Dutta, the plaintiff No. 2. Bounded by- North - Land owned by Sri Bogen Gogoi South - Land of Smti. Jyotika Gogoi East - Lilabari Airport road West - Land of Smti. ft. plinth and covering 30' x 50' sq. ft. space (about 9 lucha of land) carrying a fair price shop and its godown by Sri Dibakar Dutta, the plaintiff No. 2. Bounded by- North - Land owned by Sri Bogen Gogoi South - Land of Smti. Jyotika Gogoi East - Lilabari Airport road West - Land of Smti. Jyotika Gogoi." 4. Mr. Mozumdar, learned counsel for the Respondents Nos. 3 and 4 submits that in the appeal and injunction application filed before this Court, the appellants have suppressed vital and relevant material facts and submits that had those facts not been suppressed, this Court might not have passed the interim order dated 05.10.2016 in RFA No. 67/2016 and therefore, not only the respondent Nos. 3 & 4 have suffered irreparable prejudice, but in the process, the appellants have become disentitled to any relief in these cases. 5. In support of his contention, Mr. Mozumdar submits that the respondents Nos. 3 and 4 had taken the land measuring 2 Katha- 15 Lechas, covered by Dag No. 484 of Periodic Patta No. 137 of North Lakhimpur Sahar, Part-II, under Nakari Mouza in the District of Lakhimpur on lease. He submits that after procuring the requisite "land sale permission" from the Office of the Deputy Commissioner, under Memo No. LRS. 2/1/Part-II/2014/8 dated 17.11.2014, the said Deed of Lease was duly registered before the concerned Sub-Registry and numbered as Deed No. 596/2011 dated 18.11.2014. He further submits that it is mentioned in the said lease deed that the land has been taken with an intention to start the business of retail outlet under the dealership of Essar Oil Company Limited. 6. Mr. Mozumdar, by referring to the said deed of lease dated 18.11.2014 [(Annexure-C to I.A.(C) No. 1930/16] submits that the appellant No. 2, who is the son of respondent No.3 and an Advocate by profession in the North Lakhimpur Bar, has signed therein as "Witness No. 2" and the photograph as well as his thumb impression also appear in the page appended at the end of the said deed of lease. He also refers to the Annexure - L appended to I.A.(C) No. 1930/2016, to project that the said document is a "Title Opinion & Search Report dated 27.11.2014" in respect of the suit land described in Schedule-B of the plaint, which belonged to the respondent No. 3 and that the said opinion/report has been prepared and signed by the appellant No. 1, namely, Nupur Kumar Gogoi, Advocate. It is mentioned in the body of the said opinion/report that it was prepared under the instructions of the respondent No. 3 (i.e. mother of appellant No. 1) and by the said report, which is addressed to the respondent No. 1, namely, Essar Oil Company, the Appellant No.1 had given his opinion that his mother i.e. the respondent No. 3 has clear and marketable title over the property, which is free from all charges and encumbrances and further stating therein that the transfer of property is not subject to any restriction (on the ground of lands belonging to SC/ST) under any applicable law and that Smti. Jyotika Gogoi is in actual possession of the property, further opining that the property can be given on lease to the company for setting up a retail outlet (petrol pump) and there is no bar under the law against such lease. Mr. Mozumdar by referring to Annexure-M appended to the vacating application, has submitted that the Deputy Commissioner, Lakhimpur District has given "no objection" for establishing a retail outlet for petroleum products at Dag No. 484 of Periodic Patta No. 137 under Nakari Mouza of North Lakhimpur District, 2nd Part map, Sub-Division-North Lakhimkpur in the district of Lakhimpur, as per plan and drawing subject to fulfilment of explosive licence condition. 7. Mr. Mozumdar, submits that in the meantime the respondent No. 4 has spend an amount of about Rs. 45.00 lakh for creating requisite infrastructures till now. By referring to the statements made in paragraph 6 of the objection filed by the appellants in IA(C) No.1930/16, the learned Senior Counsel submits that notwithstanding that the appellants may not have not admitted the quantum of expenditure, but there is a categorical admission by the appellants that it is true that they (i.e. respondent No. 4) are carrying activities in the remaining portion of the title suit land measuring 2 kathas- 15 lechas, clarifying therein that suit premises is only of 9 laches. He further submits that in the proceeding of Title Suit No. 17 of 2015, the appellants had filed Misc. (J) No. 23/2015, praying for a temporary injunction and that the learned trial court after hearing all the parties, by a well reasoned order dated 04.06.2016, rejected the said injunction application i.e. Misc. (J) No. 23/2015 by holding that the appellants had no prima facie case against the respondent No. 3 and further holding that the balance of convenience was in favour of the respondent No. 4, who suffered loss if injunction is granted. 8. Mr. Mozumdar further submits that the prior to the institution of the suit on 17.08.2015, the respondent No. 4 has already started the construction and related activities for setting up the retail outlet on the suit land and in order to facilitate the shifting of the shop of the appellant No.2 from the suit land, the respondent No. 4 had already made arrangements with one Bhaba Gogoi, the owner of an adjacent land and accordingly, the respondent No.4 had constructed one shop room therein by spending a sum of Rs.50,000/- and the entire shop of the appellant No.2 was shifted to the said newly constructed shop room. However, instead of delivering the vacant shop room, the appellants had kept the suit rooms/house under lock and key and filed the suit. Mr. Mozumdar submits that in paragraph 2(e) of the vacating application, the respondents No.3 and 4 have made a specific averment that recently on 08.11.2016, the appellants herein have started keeping some goods inside the suit room, which was under lock and key on 05.10.2016, when they obtained the order of status-quo from this Court. 9. Mr. Mozumdar further submits that the learned trial court, while rejecting the prayer for temporary injunction had held that the appellant had claimed that there was a RCC building in the suit land, but from the spot verification report submitted by the Commissioner appointed by the court, it was found that there was a Assam type house and not a RCC building standing over the suit land. He further submits that although other issues have taken in the vacation application filed by him, he is now pressing only the aforesaid grounds and submits that as the relief of injunction is a discretionary jurisdiction, on the ground of suppression of material facts, the appellants are not entitled to any objection from this Court. Mr. Mozumdar submits that the appellants herein had not only suppressed the injunction application, objections which were separately filed by respondents Nos. 1 & 2 and respondent Nos. 3 & 4, but also suppressed the rejection of the prayer for injunction and the consequent dismissal of Misc. (J) case No. 23/2015 on ground f suppression of material facts. Mr. Mozumdar further submits that on the basis of the order of status-quo dated 05.10.2016, the respondent No.4 has been directed by the Officer-in-Charge of Lakhimpur Police Station not to go ahead with further activities of completing the retail outlet, installation and commission thereof. 10. Mr. Mozumdar has placed reliance upon the case of Wander Ltd. & Anr. v. Antox Indoa (P) Ltd., as reported in 1990 (Supp) SCC 77 (para-9 & 14), GujArat Bottling Co. Ltd. & ors. v. Coca Cola Co. & ors, as reported in 1995 (5) SCC 545 (para-47), and states that the ratio laid down in those cases is squarely covers the issues raised by the respondent Nos. 3 & 4, for which, the order of status quo dated 05.10.2016 passed in RFA 67/2016 is liable to be vacated. He further submits that as on today, the appellant have made no prayer for staying of the operation of the judgment and order dated 23.08.2016, passed by the Civil Judge (Sr. Division), Lakhimpur, dismissing Title Suit No. 17/2015 as not maintainable and, as such, the said suit continues to be dismissed. In the said context, he submits that the prayer for injunction, as mandated under the provisions of Order 39, Rule 1 and Rule 2 CPC, can be entertained only in a suit, and therefore, in the present case in hand, as the present appeal has merely been admitted, it would not amount to continuation of the suit. Hence, Mr. Mozumdar submits that even on this legal ground, the order of status quo granted on 05.10.2016 by this Court is liable to be vacated. Hence, Mr. Mozumdar submits that even on this legal ground, the order of status quo granted on 05.10.2016 by this Court is liable to be vacated. On the principles for granting an order of injunction, the learned Senior Counsel has relied on the case of M. Gurudas & ors. v. Rasaranjan & ors., as reported in (2006) 8 SCC 367 and submits that the court would, apart from finding out a prima facie case, balance of convenience and also irreparable injury that the plaintiff might suffer if injunction is refused, must also see that the contention of the petitioner must be bona fide. 11. Mr. P.P. Dutta, learned counsel appearing for the respondents No. 1 & 2 in RFA No. 67/2016 submits that he is adopting the arguments pressed by Mr. D. Mozumdar, learned senior counsel for the respondent Nos. 3 & 4 and further submits that the order dated 05.10.2016 passed by this Court in RFA No. 67/2016, is liable to be recalled on the ground of suppression of material facts because the appellants in IA(C) No.1652/2016 as well as in the RFA No. 67/2016 did not disclose that the respondents No. 1 & 2 i.e. Essar Oil Limited had contested Misc.(J) Case No. 26/2015 by submitting their written objection, wherein they had disclosed that the construction of the retail outlet is almost completed and was on the verge of commissioning and ready to be made open for service to public. He further submits that in the said objection, they had also disclosed before the trial court that the Deputy Commissioner, Lakhimpur had already issued a no objection certificate and by now the requisite explosive license has also been issued in respect of the proposed retail outlet. He further submits that as the appellants had remained silent from 18.11.2014, which was the date of execution of the lease deed till 17.8.2015, when the present suit was filed, a valuable right has been created in favour of the respondents and on the principle that "delay defeats equity", this is a fit and proper case for refusing injunction because of lack of the 3 golden principles of granting injunction, i.e. (i) lack of prima facie case, (ii) lack of balance of convenience, and (iii) lack of injury or loss to the appellants, which is apparent on the face of record. 12. Mr. A.K. Purkayastha, learned counsel for the respondents Nos. 12. Mr. A.K. Purkayastha, learned counsel for the respondents Nos. 1 & 2, while replying in the matter, has meticulously read each and every paragraph of the plaint and had pointed out that he was on the verge of reading each and every material on record to establish that there was no suppression of facts by the appellants. Thus, at the commencement of the argument, it is perceived by this Court that if such a detailed reading is permitted at the bar, it would consume almost two to three days of full length hearing and therefore, this Court, after his reading of the plaint was over, inquired from the learned counsel for the respondent whether he was proposing to argue the entire matter i.e. RFA No.67 of 2016 as well as the two connected IA's, i.e. I.A (C) No. 1652/16 and I.A. (C) No. 1930/16 and if so, he could continue reading materials on record to his fullest satisfaction, but if he is satisfied only on the disposal of both the IA's, then he must make a pointed reply to the aforementioned issues raised by the respondents. Thereupon, Mr. Purkayastha, with his all his usual fairness, restricted his reply only on the issues raised by the learned Senior counsel for the applicants in both the Interlocutory applications. 13. Per contra, Mr. Purkayastha submits that there was no suppression of material facts before this court. He submits that the appellant No.1 had undertaken his professional work pertaining to the land belonging to Smt. Jyotika Gogoi (his mother & respondent No.3) i.e. (1) preparing the lease deed, (2) issuing Title Opinion & Search Report and (3) obtaining NOC from Deputy Commissioner which is required for registering lease. He submits that while doing such professional works, he was never aware of the fact that his rights over the premises described in Schedule-A of the plaint would be lost. He refers to the statements made in the plaint that on good faith and honest belief, the appellant No.1 had signed as witness in the Deed of Lease because the respondent No. 3 had assured the appellant No. 1 that she would exclude the portion of land described in Schedule-A from the plot of land leased out to the respondent No. 4. Mr. Purkayastha submits that it was the pleaded case of the appellant that the respondent Nos. Mr. Purkayastha submits that it was the pleaded case of the appellant that the respondent Nos. 3 & 4 was to supply a copy of the said deed to the appellant No. 1 at the earliest opportunity. He also submits that it was the pleaded case of the appellant No. 1 that the respondents No. 3 & 4 had caused inadvertent delay in furnishing a copy of the lease deed to the appellant No.1 and that the appellant No.1 could not procure a certified copy thereof on consideration that his mother has consented to construct a RCC building in Schedule-A land. The appellant No. 1 claimed to have received a photocopy of the lease deed only on 07.05.2015 and was shocked to note that Schedule-A land and building was included in the Schedule-B land and projected that the declaration of respondent No. 3 in the lease deed was quite contrary to the spirit of the lease and also caused injuries to the appellant. Therefore, Mr. Purkayastha submits that he had duly disclosed all the material facts in the plaint. He further submits that in the plaint, he has also disclosed that the respondent No. 4 has been constructing boundary walls, toilet etc. over the land in Schedule-A and the respondent No. 4 had demanded to the appellant to vacate the premises over Schedule-A land which is practically impossible and, therefore, prayed for cancellation of the lease deed, decree of permanent injunction etc. as prayed in the suit and projects that the changes and constructions that were being done by the respondent no. 4 has been duly mentioned in his plaint and therefore, there is no suppression of material facts. 14. Mr. A.K. Purkayastha further argues that the appellants have filed an appeal before this Court against the order dated 04.06.2016 passed by the Civil Judge, Lakhimpur, in Misc (J) Case No. 23/2015, by which the said case was dismissed. Hence, he was not required to re-agitate the same matter even in this present appeal. He submits that the said appeal filed by the appellants has not been listed before this Court till date and therefore, the said appeal has remained un-registered and/or unnumbered. 15. Mr. Hence, he was not required to re-agitate the same matter even in this present appeal. He submits that the said appeal filed by the appellants has not been listed before this Court till date and therefore, the said appeal has remained un-registered and/or unnumbered. 15. Mr. Purkayastha submits that by order dated 04.06.2016 passed in TS No. 17/15, the learned trial court had framed preliminary issue and fixed 18.06.2016 for hearing on preliminary issue so framed and thereafter, by the order dated 23.08.2016 the learned trial court dismissed the suit on the said preliminary issues. Therefore, as the order for dismissing the injunction application has merged with the final order of dismissal of the suit, the allegation of suppression of material facts did not hold water. 16. Mr. AK Purkayastha, learned counsel for the respondents submits that in the present case in hand, without going into the issue of whether the shop of the Appellant No. 2 had been shifted to a new premises or not, the appellants are aggrieved by the imminent infringement of their rights over the premises described in Schedule-A of the plaint. Therefore, the alleged shifting of the shop to new premises cannot form a ground for the respondents No. 3 & 4 to pray for vacating of the order dated 05.10.2016 passed by this Court. In support of his argument, Mr. Purkayastha has pressed his written objection, which the Appellants have filed in IA (C) No. 1930/16, and submits that the report submitted by the Commissioner appointed by the trial court ought not to influence this Court because the suit was dismissed on preliminary issue and appellant had no occasion to dispute the correctness of Commissioner report, which could have been done only by cross-examination of the Commissioner and other witnesses. Mr. Purkayastha submits that if the order of injunction is refused by recalling, modifying or varying the order dated 05.10.2016 passed in RFA No.67/2016, it would amount to permit the respondents to change the nature and character of the Schedule-A premises and, as such, prays that the order of status-quo be maintained till disposal of the appeal in respect of the suit premises described in Schedule-A land and submits that this Court may exclude the remaining portion of Schedule-B land from the purview of the order of status-quo. 17. In support of his argument, Mr. 17. In support of his argument, Mr. A.K. Purkayastha, learned counsel for the respondents placed reliance on the following citations to canvass that the inadvertence of not making a statement cannot amount to suppression of material fact: a. Dr. Vijay Kumar Kathuria v. State of Haryana & ors., as reported in AIR 1983 SC 622 ; and b. The State of Haryana & Ors. v. The Karnal Distillery Co. Ltd., reported in AIR 1977 SC 781 ; 18. The points of determination, which arises in this case is as follows:- i. Whether there is any suppression of material facts before this court, which could have influenced this court to issue ad-interim order dated 05.10.2016 directing the parties to maintain status-quo? And whether the said ad-interim order is liable to be discharged/varied on ground of suppression of material facts? ii. Whether the jurisdiction of Or. XXXIX Rule 1 and 2 CPC read with section 151 CPC can be exercised in the case in hand? 19. The second point of determination is taken up first for decision. It is stated that although the argument put forward by Mr. Mozumdar, ld. Senior Counsel for the defendants No.3 and 4 appear to be appealing, but I have come across the judgment dated 22.02.2006 of this court rendered in W.P.(C) No. 989/06- Reboti Ray v. Sashi Kanta Budhia @ Agarwal, as reported in (2008) 3 GLR 42, this court was pleased to reject the prayer, similar to the one made by Mr. Mozumdar. As per the ratio of the said case, I have no hesitation to hold that the present appeal i.e. RFA No. 67/2016 is an extension of the suit and therefore, by operation of the provisions of section 107(2) CPC, this appellate court has the same powers and may perform as nearly as the same duties as are conferred and imposed by the Code of Civil Procedure on courts of original jurisdiction in respect of suits instituted therein. I am of the opinion that once the appeal has been admitted, then notwithstanding that no application under Order 41, Rule 5 CPC has been filed, the appellate court has the power to grant ad-interim injunction, not only under the provisions of Order 39 Rules 1 and 2 CPC but also by invoking the provisions of section 151 CPC. Therefore, I hold that this court does have the power to issue injunction. Therefore, I hold that this court does have the power to issue injunction. Hence, this point is determined in favour of the plaintiff/appellant and against the defendants/Respondents. 20. In order to decide the first point of determination, this court has examined the pleadings presented by the parties before the learned trial court in the suit i.e. TS 17/2015 and Misc. (J) Case No.23/2015. The following are considered to be relevant for deciding this issue, they are:- a. In the plaint, it is written that the suit was filed on 17.08.2015. b. In para 1 of plaint, it is, inter-alia, stated that the Plaintiff No.1 is an Advocate by profession and at present he is working as the Assistant Public Prosecutor. c. In para 2 of plaint, it is inter-alia, stated that in or about the year 1980, the plaintiff No.1 had constructed a RCC building comprising of 3 rooms (Schedule-A) under voluntary consent of the defendant No.3 for carrying a grocery shop till 31.12.1993 and he leased out the said RCC building to the plaintiff No.2, who has been running the grocery shop, now a fair price shop, till date. d. In para 3 of plaint, it is, inter-alia, stated that on 18.11.2014, the defendant No.4 entered into a lease agreement with defendant No.3, to run R.O. dealership under Essar Oil Ltd. (Defendant No.1 and 2) on the Schedule-B plot of land. The defendant No.3 assured plaintiff No.1 that the land of Schedule-A portion would be excluded and therefore, on honest belief and good faith consented the defendant No.3 in execution of the deed and signed as witness on condition that he would be supplied with copy of deed. e. In para 4 of plaint, it is pleaded that "But surprisingly enough the defendant No.3 and 4 caused inordinate delay in furnishing a copy of the said deed in which case the plaintiff No.1 caused no self afford to procure a certified copy thereof on the consideration that the defendant No.3 is his mother who herself consented to construct the RCC building in the Schedule-A land." f. In para 5 of the plaint, it is, inter-alia, stated that defendant No.3 furnished a Xerox copy of the aforesaid deed on 07.05.2015 and plaintiff No.1 was shocked to note that schedule-A was included in schedule-B land. g. In para 7 of the plaint, it is, inter-alia, stated that the defendant No.4 has been constructing boundary walls, toilet, etc. over schedule-A land. The defendant No.4 has demanded to the plaintiff to vacate the structure over schedule-A land which is practically impossible. h. In para 11 of the plaint, it is, inter-alia, stated that the cause of action arose on 18.11.2014 when lease deed was executed, on 07.05.2015, when copy of the said lease deed was furnished and thereafter on each date till the deed of lease is cancelled. i. In Schedule-A, it is mentioned as - A RCC building with 3 rooms covering 38'X18' sq. ft plinth and covering 30'X50' sq. ft. space (about 9 lecha land). j. In the plaint, prayers are made in the plaint for cancelling the deed of lease agreement No. 704/2014 and for permanent injunction restraining the defendants No.1, 2, 3 and 4 from entering illegally into the land and building described in the schedule-A hereto below. k. In the written statement jointly filed by the defendant No.3 and 4, it is, inter-alia, stated that in the year 1979/1980, the defendant No.3 constructed an Assam Type House on the suit land consisting of 3 rooms. The terms of lease deed was settled in the presence of plaintiff No.1 and he took active participation in procuring the due permission from Office of the Deputy Commissioner and signed as witness and he agreed to vacate the shop rooms in possession of the plaintiff No.2 in three months required to get permission for transfer of fair price shop to a suitable place. The plaintiff No.1 signed as witness after reading and satisfied with the contents of lease deed. The plaintiff No.1 resides with the defendant No.3 and never demanded copy of lease deed. It is mentioned that as the defendant No.4 has not fulfilled the illegal demands of the plaintiff No.1, he has been harassing the defendant No.4 from all corners. l. In the said joint written objection, the defendants No.3 and 4 had annexed the photographs of suit premises and made a statement that the said photos would show that the plaintiff Nos.1 and 2 are trying to deceive the court. It has specifically been stated that the petition is based on false, concocted and dishonest grounds just to establish the malafide intention of the plaintiff to reality. It has specifically been stated that the petition is based on false, concocted and dishonest grounds just to establish the malafide intention of the plaintiff to reality. m. The order dated 04.06.2016, is very relevant because by the said order, the learned trial Court had rejected Misc. (J) Case No. 23/2015. n. Even before this Court, the plaintiff has referred the suit house to be "RCC building" in para 4 of the IA(C) No. 1652/16, but in para 6 and 7, the same house is referred to as a "Semi RCC Building", notwithstanding the fact that the Commissioner, who visited the site of suit premises has found the suit house to be an "Assam Type House". The defendants No.4 had filed the two photographs of the suit premises as "Annexure-K", which shows the suit premises to be an "Assam Type" ground floor structure with CI Sheet roof. Moreover, as per the description of the suit premises in Schedule-A of the plaint, the house is mentioned as - "A RCC building with 3 rooms covering 38'X18' sq. ft plinth and covering 30'X50' sq. ft. space (about 9 lecha land)". Further, the defendant No.3 and 4 in para 2(e) of IA(C) 1930/16 has specifically stated that the shop in question was shifted to the adjacent land of Bhaba Gogoi by spending Rs.50,000/- and this assertion has not been specifically denied by the plaintiff. Rather, Mr. A.K. Purkayastha had forcefully argued this issue by submitting that assuming that the shop was shifted, the plaintiffs have claim on the schedule-A land, which is the subject matter of the suit and the present appeal, for which the status quo in respect of the suit premises is required to be maintained till the disposal of the appeal. It is seen from the written statement filed by the Defendants Nos. 1 and 2 that they had produced NOC dated 10.02.2015 issued by the Deputy Commissioner for setting up the retail outlet, but there is no reference to the said document in the present appeal. 21. Having considered the rival arguments and materials on record, it is well known that as a general rule, the power to grant ad-interim injunction is a discretionary power, because the litigant must demonstrate that not only it had approached the court with clean hands, but the three golden principles, required to be present for issuing ad-interim injunction were present in the case. Also, as a general rule, suppression of material facts by a litigant, disqualifies such litigant from obtaining any relief. In this regard, the decision of the Hon'ble Supreme Court of India, rendered in the case of S.J.S. Business Enterprises Pvt. Ltd. v. State of Bihar, as reported in (2004) 3 CCC 1: (2004) 7 SCC 166 may be referred to. In the present case in hand, we find that not only the plaintiff had suppressed material facts before the learned trial court, but material facts had been suppressed in the present appeal. The plaintiffs could have, after the injunction was rejected by the trial court on grounds of suppression of material facts, presented true and fair picture. However, this court finds that the plaintiffs had not only deliberately chose to suppress the order of dismissal of injunction, but in para 4 of the IA(C) No. 1652/16, stated as follows- "That the Appellants/Plaintiffs as petitioners also preferred a Misc. Case which was registered as Misc. (J) Case No. 23/15 under Order 39, Rule 1 C.P.C. for injunction against the Opposite Parties restraining them not to enter into the RCC Building and land in Schedule A till disposal of the Title Suit and the Respondent/Defendant has also filed their written objection. A copy of the written objection filed by the defendant Nos. 3 and 4 is annexed as Annexure-I." Thus, there is no statement that the said injunction petition was rejected by the learned trial court by order dated 04.06.2016. It is seen on the perusal of the order dated 04.06.2016 that the learned trial court by orders passed in Misc. (J) Case No. 1/2016, had appointed a Commissioner to inspect the suit premises and it is, inter-alia, held in the order dated 04.06.2016 that "after perusing Commissioner's report in the title suit it appears from commissioner's report in Misc. (J) Case No. 1/2016 prima facie that there is a Assam Type House situated over the suit land……". It appears that the mis-description of the Schedule-A premises is aimed to project before this court that the purported RCC house is a big structure covering an area of 9 lechas (1 lecha is equivalent to 144 square feet, as such, 9 lechas would be about 1,296 sq. feet), whereas, the Assam Type House is covering only an area of 38'X18' sq. ft (equivalent to about 684 sq. feet or 4.75 lechas). feet), whereas, the Assam Type House is covering only an area of 38'X18' sq. ft (equivalent to about 684 sq. feet or 4.75 lechas). Having seen the above referred photographs at Annexure-K of IA, the plinth does not appear to be covering 9 lechas land, but the land beneath the house does not exceed 38X18 ft., which is equivalent to 684 square feet (or 4.75 lechas). The learned trial court further disbelieved at that stage that the plaintiff No.2, being an advocate and attesting witness of the deed was ignorant of the said lease. Thus, the learned trial court did not find any prima facie case against Defendant No.3. The balance of convenience was found in favour of defendant No.4, as continuance of injunction would cause loss to defendant No.4, who had already incurred expenses for developing retail outlet over the suit land as per the lease deed executed by defendant No.3. The learned trial court further held that irreparable loss would be caused to the Defendant No.4 and not to plaintiffs, who have no prima facie case at that stage and, as such, this court finds that the material so far suppressed by the plaintiff has occasioned this court to be prevented from appreciating the fact that the learned trial court had already rejecting the prayer for injunction. Referring to the two case law citations canvassed by Mr. Purkayastha, this court finds that in the said two cases, the Hon'ble Supreme Court of India has made strong observations on misrepresentations made before the court and, as such, the said two citations cannot be of any assistance to the appellant, who have indulged in suppression of material facts, as held above. 22. This court has also considered the submissions of Mr. Purkayastha that the matter of injunction was not required to be agitated for the second time because the appeal against rejection of injunction was duly filed before this Court. In this connection, this court finds that despite the filing of IA(C) 1930/16, where specific plea has been taken about non disclosure of rejection of injunction, the appellants have not taken steps for bringing on record the said appeal. Hence, exposing to drawing of adverse inference against the appellant. As regards the issue raised by Mr. In this connection, this court finds that despite the filing of IA(C) 1930/16, where specific plea has been taken about non disclosure of rejection of injunction, the appellants have not taken steps for bringing on record the said appeal. Hence, exposing to drawing of adverse inference against the appellant. As regards the issue raised by Mr. Purkayastha that the Commissioner's report could have only been assailed by way of cross examination of Commissioner in suit, this court is not inclined to accept the said submissions because of the provisions of Order 26, Rule 10 (2) CPC, which prescribes that the report and depositions to be evidence in the suit and shall form a part of record. Hence, the report of the Commissioner cannot be brushed aside as projected by Mr. Purkayastha. This Court also finds that the shop of the Appellant No. 2 had been shifted to a new premises and, as the respondent No. 4 has taken full care that the business of the appellant No.2 is not disrupted and the appellant No.2 having accepted an alternative premises, cannot be permitted to dislodge the respondents No.3 and 4 by praying for injunction, which would have the effect of disrupting the business of respondent No.4 for which the land described in Schedule-B was taken on lease with knowledge and active participation of the appellant No.1 and, as such, this court is constrained to hold that if the appellant No.2 is aggrieved by his alleged loss or injury, if there be any, he is at liberty to seek compensation from the appellant No.1, if so permissible in law and if so advised. The prayer for injunction is also not maintainable because of two more reasons, firstly, no right of the appellant No.1 appears to be infringed as he cannot do business, being an advocate and not being the owner of premises, he has no legal right to be infringed and secondly, having witnessed the execution of lease deed and having given "Search report", the appellant No.1 is deemed to have extinguished his right, if there by any, over the premises described in Schedule-A of the plaint, by instilling confidence in the minds of respondents Nos. 3 and 4 that they had consent from the appellant No.1 to proceed ahead with their intended lease of schedule-B land. 23. This court has also considered the submissions made by Mr. 3 and 4 that they had consent from the appellant No.1 to proceed ahead with their intended lease of schedule-B land. 23. This court has also considered the submissions made by Mr. Purkayastha to the effect that the fallout of refusal of injunction may result in irreparable loss to the plaintiffs. In this regard, this court observes from the pleadings that the defendants Nos. 3 and 4 have already constructed a new shop for the plaintiff No. 2 in the adjacent land of Bhaba Gogoi, as such, the plaintiffs cannot claim to suffer any irreparable loss as his business can be conveniently run from the said alternative premises. The Lease Deed dated 18.11.2014 [Annexure-C to IA(C) 1930/16] clearly shows that the plaintiff No.1, who is an Advocate by profession had signed the same as witness and from the "Title Opinion & Search Report" dated 26.11.2014 addressed to the defendants Nos. 1 and 2, it is apparent that it was prepared and signed by the plaintiff No. 1 and, as such, it is not open for him to plead that he was not aware of the contents of the questioned lease deed dated 14.11.2014 and, as such, this court finds weight attached to the argument put forward by Mr. Mozumdar that as the plaintiff No.1 was making illegal demands, which were not met, the plaintiffs did not vacate the suit premises and have filed the suit to harass the defendants No.3 and 4. Thus, having found that the appellants/plaintiffs did not approach this court with clean hands, this court cannot protect such litigant by extending the order to maintain status-quo. 24. Thus, in view of the discussions above, for the limited purpose of ad-interim injunction, this court does not find the existence of a prima facie case in favour of the appellants and there is no balance of convenience in favour of appellants and/or for grant of ad-interim injunction, rather, the balance of convenience tilts heavily in favour of the respondents and against grant of injunction. There will be no loss or injury to the appellants which cannot be compensated in terms of money. Hence, this court has no hesitation to hold that this court was deliberately prevented from perusing relevant and/or material facts before passing the order dated 05.10.2016 in RFA No. 67/2016, directing the parties to maintain status-quo. There will be no loss or injury to the appellants which cannot be compensated in terms of money. Hence, this court has no hesitation to hold that this court was deliberately prevented from perusing relevant and/or material facts before passing the order dated 05.10.2016 in RFA No. 67/2016, directing the parties to maintain status-quo. Therefore, in view of the above, this court finds that this is a fit and proper case for modifying the order dated 05.10.2016 passed in RFA No. 67/2016 by vacating the order to the parties to maintain status quo and dismissing the I.A. (C) No. 1652/16 filed by the appellants/plaintiffs and to consequently, I.A. (C) No. 1930/16 filed by the defendants No.3 and 4 stands allowed. 25. This court hastens to observe that this order shall not prejudice the pendency of RFA No. 67/2016 or by the observations made herein, which is made only for the purpose of disposal of the present cases in hand, so that the pending appeal i.e. RFA 67/16 can be heard independent of the result of these cases. 26. As a result, this court is modifying the order dated 05.10.2016 passed in RFA No. 67/2016 by vacating the order to the parties to maintain status quo, and by dismissing the I.A. (C) No. 1652/16 filed by the appellants/plaintiffs and to consequently, I.A. (C) No. 1930/16 is allowed.