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2017 DIGILAW 135 (GAU)

Amit Kumar Bhajanka v. Shankar Lal Bhajanka

2017-01-30

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. O.P. Bhati, learned counsel for the applicant and also heard Mr. N. Sharma, learned counsel for the respondent who has appeared by filing caveat. 2. By filing this application under the provisions of Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, the applicant has prayed for grant of ad interim injunction restraining the respondent, his men, agents, employees, attorneys or any other person or persons from carrying out any construction/modification/alteration work in the suit premises as described in the Schedule B annexed to the plaint and thereby changing the nature and character of the suit premises and from entering into an agreement with other party and thereby transferring the right of tenancy. 3. The plaintiff in T.S. No. 128/2016 is the applicant in the present case. The said suit is pending for disposal before the court of learned Civil Judge No. 2, Guwahati. The suit is for specific performance of contract and for permanent injunction. In the suit, the applicant had prayed for the following reliefs:- “a. Decree against the defendant for specific performance of contract directing the defendant to handover the suit premises to the plaintiff as per the terms of memorandum in respect of the tenanted premises described in the schedule below in favour of the plaintiff within a specific period. b. Not to carry any construction/modification/alteration work in the suit premises and to change the character of the suit premises. c. And due to some reason, if the decree for specific relief is not granted, decree be passed to refund the advance amount of Rs.5,00,000/- (Rupess Five Lacs) only together with interest and damages. d. And cost of suit. e. And any other relied and reliefs the plaintiffs are found entitled.” 4. The respondent herein, who is the defendant in the suit had contested the suit by filing his written statement as well as by counter claim. d. And cost of suit. e. And any other relied and reliefs the plaintiffs are found entitled.” 4. The respondent herein, who is the defendant in the suit had contested the suit by filing his written statement as well as by counter claim. In the counter claim, the respondent/defendant had prayed for the following relief:- a. For dismissal of the suit of the plaintiff with cost; b. For a decree for declaration that the “Memorandum of Agreement” is illegal, unauthorized and void ab-initio and not binding on the defendant/counter-claimant and; c. For a decree for mesne profits of Rs.2,50,000/- per month and interest on such mesne profits till the status quo order is finally vacated; and d. For a decree of compensation/damages to the extent of Rs. 2,50,000/- towards the harassment and mental agony to the defendant/counter-claimant caused by the plaintiff by instituting a false suit brimmed with manufactured, concocted and distorted facts on the basis fabricated documents; and e. For cost of defending the suit and for this counter-claim; and f. For such further or other relief or reliefs to which the Defendant/counter-claimant may be found entitled to under the law and equity. 5. In connection with the said suit, the applicant had filed an application under the provisions of Order XXXIX Rules 1 and 2 read with Section 151 CPC for grant of temporary injunction with the following prayer:- a. It is, therefore, prayed that your honour would be graciously pleased to grant a temporary injunction restraining the opposite party, his men, agents, attorneys and assigns from carrying any construction/modification/alteration work in the suit premises described in schedule- B and to change the character of the suit premises and restraining the opposite party from entering into an agreement with any other party and thereby transferring the right of tenancy. b. And further be pleased to grant ad-interim ex-parte injunction against the opposite party to the aforesaid effect. 6. The said application was registered as Misc. (J) Case No. 174/2016. The learned Civil Judge No. 2, Guwahati had initially passed an order dated 04.04.2016, directing the parties to maintain the status quo in respect of the suit premises described in Schedule B. However, after hearing the learned counsel for the both the parties, the learned Civil Judge No. 2, Guwahati by order dated 05.07.2016 dismissed the Misc. The learned Civil Judge No. 2, Guwahati had initially passed an order dated 04.04.2016, directing the parties to maintain the status quo in respect of the suit premises described in Schedule B. However, after hearing the learned counsel for the both the parties, the learned Civil Judge No. 2, Guwahati by order dated 05.07.2016 dismissed the Misc. (J) Case No. 174/2016 and the status quo order dated 04.04.2016 was vacated. 7. Thereafter, the petitioner-plaintiff had filed an appeal under Order XLIII Rule 1(r) CPC against the said order dated 05.07.2016, which was registered as Misc. Appeal No. 49/2016. The learned First Appellate Court i.e. Court of Additional District Judge No. 2, Kamrup (M), Guwahati, by his order dated 23.12.2016, dismissed the said appeal, finding no infirmity with the findings of the learned Civil Judge No. 2, Guwahati. The said order has been put to challenge by filing this revision. 8. The learned counsel for the petitioner has submitted that both the courts below have heard in appreciating the facts and arrived at a wrong conclusion, amounting to perversity. He submits that as per the provisions of Section 22(1)(b) of the Specific Relief Act, 1963 the petitioner is required to specifically state all the reliefs which he prays, which is required to include the prayer to refund of the deposit paid or made by him, in case his claim for specific performance is refused. He submits that unless such prayer is made as per the provisions of Section 22(2) of the said Act, the court is precluded from granting any relief in clause (b) of sub- section 1 of Section 22 unless such prayer has been specifically made. He further submits that under sub-section 3 of Section 22 of the said Act, the power of the court to grant relief in clause (b) of sub-section (1) shall be without prejudice to the power of the court to award compensation under Section 21 of the said Act. He further submits that under Explanation (i) of sub-Section 10 of the Specific Relief Act, the Civil Court is required to presume that the breach of the contract to transfer immovable property cannot be adequately relieved by compensation in money, unless and until the contrary is proved. Therefore, both the courts have misconstrued his prayer for refund of the advance amounting of Rs.5.00 lakh, as prayed for, in prayer (c) of the plaint. Therefore, both the courts have misconstrued his prayer for refund of the advance amounting of Rs.5.00 lakh, as prayed for, in prayer (c) of the plaint. He has argued that by the Memorandum of Agreement dated 01.12.2015, the respondent- defendant had agreed to left out shop premise measuring 816 sq. Ft. to the plaintiff, consisting of shop numbers 2, 3, 6, 7, 9 and 10 in the ground floor of Bhajanka Bhawan/ Market situated at G.S. Road, Christian Basti, Guwahati, for which the defendant had taken an amount of Rs.5.00 lakh as advance, and agreed to deliver the physical possession of the shop on or before 29.02.2016. 9. It is projected that as the respondent- defendant did not keep his promise, the petitioner- plaintiff had approached the Civil Court for specific performance of the contract. By referring to the pleadings on record, it is submitted that as the suit is pending for disposal in respect of the Schedule-B premises, the said suit premises is squarely covered by a pending lis and therefore, he is entitled to some protection under the principles of lis pendens in terms of the provisions of Section 52 of the Transfer of Property Act. He further submits that if ad interim injunction as prayed for is not granted for maintaining status quo in respect of the suit premises described in Schedule B of the plaint, there is every likelihood that the defendant may transfer and/or alienate or create third party interest over the same and frustrate the said agreement dated 01.12.2015. 10. Per contra, the learned counsel for the respondent has submitted by referring to the Memorandum of Agreement dated 01.12.2015 that execution of the said agreement is totally denied by the defendant and in prayer (b) of the counter claim, the defendant has prayed for decree of declaration that the said Memorandum of Agreement dated 01.12.2015 was illegal, unauthorized and void ab-initio and not binding on the respondent-defendant/counter-claimant. 11. 11. By referring to clause 2 of the said agreement, it is submitted that notwithstanding the denial of having executed the said agreement, even assuming bit not admitting the execution of the same by the respondent, the said agreement did not create an existing tenancy and by the said agreement, the execution of which is denied, the defendant had agreed to give physical possession of the Schedule-B premises by making all endeavour to give possession on or before 29.02.2016. Thus, for all practicable purpose, the tenancy can only be deemed to have commenced on and from the date of delivery of actual physical possession of the suit premises to the petitioner. The relevant clause 2 of the said Memorandum of Agreement is reproduced below:- “That, the First party hereby agrees to give the physical possession of the scheduled premises free from al encumbrances and the tenancy shall be deemed to have commenced from the date of actual physical possession of the entire schedule premises. The First Party shall make all endeavour to give the physical possession of the schedule premises on or before 29th February, 2016”. 12. It is further projected by referring to the penultimate narration given in the said Memorandum of Agreement that there are pending litigation in respect of the shop No. 2 and therefore, the possession of the suit premises having not been given to the applicant, the applicant did not enter into the suit of tenant and in the absence of possession, no vested right was created in favour of the petitioner. It is projected that it is only after the said agreement dated 01.12.2015 is proved to be a valid agreement, the petitioner- plaintiff would become entitled to possession of the said premises as a tenant. The said narration is reproduced below:- “Be it mentioned that in connection with the shop premises bearing Shop No. 2, there is pending litigation and the first party declares that the same would be amicably resolved subject to payment of some amount to the existing tenant and for that only, the first party needs some advance from the Second party for settlement of disputes”. 13. 13. It is projected that it is the admitted case of the petitioner that he is not in possession of the suit premises and therefore, even if an injunction is granted, it would not help the petitioner in any manner as he still will not be able to use the suit premises. It is, therefore, argued that if the prayer for ad interim injunction is refused at this stage, the petitioner shall not suffer any perceivable loss or injury. It is further argued that as per the proviso to sub-section 2 of Section 22 of the Specific Relief Act, 1963 the court has the power, at any stage of the proceeding, to allow the plaintiff to amend the plaint on such terms as may be just for including the claim for refund of the deposit paid/made by him. It is further submitted that in the suit the petitioner has projected that he is wanting to open a shop in the suit premises and, as such, it is open for the court to assess the loss which the petitioner might have suffered, which can be calculated in terms of money and therefore, both the learned courts below did not commit any illegality in refusing injunction. 14. The learned counsel for the respondent submits that the prayer for ad interim injunction made by the petitioner before the Trial Court, First Appellate Court as well as before this revisional court is not in consonance with the prayer for reliefs claimed in the suit. He further submits that an order of injunction and status quo granted at this stage would create more problem of the respondent as there is every likelihood of incorrect view of the meaning and purport of the order and such an order will come in the way even, evict the present tenant/occupants or create hurdle for the respondent to do his own business in his own premises and if by re-chance the petitioner ultimately succeed in the suit he would get all reliefs and become entitled to the suit premises. It is further submitted that under the doctrine of lis pendens, as all the subsequent transferees, if any, would be bound by the decree, if any, passed in the suit there will be no multiplicity of the litigation contrary to as sought to be projected by the petitioner. 15. It is further submitted that under the doctrine of lis pendens, as all the subsequent transferees, if any, would be bound by the decree, if any, passed in the suit there will be no multiplicity of the litigation contrary to as sought to be projected by the petitioner. 15. The learned counsel for the respondent has referred to the following case law citations, (i) Terene Traders vs. Rameshchandra Jamanadas and Co. & another, reported in AIR (1987) SC 1492, (ii) Bindeshwar Narayan Singh and others vs. Managing Committee, Shri Sundarmal Hindi High School and others, reported in (1981) 1 GLR 231, (iii) State of Assam vs. M/s. M.S. Associates, reported in (1994) 2 GLR 104, (iv) Ranjit Roy vs. Raj Kumar Das and others, reported in (1996) 1 GLT 501. 16. In the case of Terene Traders (supra) the Hon’ble Apex Court has held that as the plaintiff was not in possession of any portion of the suit premises on the date of institution of suit the plaintiff was not entitled to temporary injunction. Relying on the said ratio, the learned counsel for the respondent has referred to the case of Bindeshwar Narayan Singh (supra) (para 16) and submits that the as the Trial Court had exercised its discretion in a judicial manner, which was by First Appellate Court and when it cannot be shown that the Trial Court has exercised its discretion capriciously or arbitrarily, such concurrent orders of the courts below is not liable to be interfered with in this present revision. By referring to the case of M/s. M.S. Associates (supra) (para 10), it is projected that the settled if the damaged can be assessed in terms of money or it can be compensate, the question of granting injunction does not arise and the procedure for granting temporary injunction should not be adopted as a general and normal course. 17. By referring to the case of M/s. M.S. Associates (supra) (para 10), it is projected that the settled if the damaged can be assessed in terms of money or it can be compensate, the question of granting injunction does not arise and the procedure for granting temporary injunction should not be adopted as a general and normal course. 17. By referring to the case of Ranjit Roy (supra) (para 4 & 5) it is argued that in the said case the coparcener were seek injunction against his father “karta” of the family for restraining him from alienating house property belonging to the joint hindu family for legal necessity, and even in such a case the Hon’ble Supreme Court in the case of Sunil Kumar and another vs. Ram Prakash and others, reported in AIR 1988 SC 576 refused to grant injunction as because the coparcener had got remedy of challenging the sale and getting set aside in a suit subsequent to the completion of sale, relying on which the injunction granted by the Trial Court was quashed. 18. Considered the rival submissions made by the learned counsels for both the sides and perused the documents filed with the revision application. 19. It is seen that the respondent had taken a plea in his written statement in paragraph 10 thereof that the “Memorandum of Agreement” is false, manufactured and fabricated on many counts. In paragraph 13, the respondents have disclosed that the tenant in respect of Shop No.2, the tenant has filed CRP No. 233/13, which is pending for disposal. Hence, a reasonable doubt is created whether even during the pendency of the said revision, it was possible for the petitioner-plaintiff negotiating the terms of the said agreement with the respondent-defendant. In paragraph 33(n) it is projected that the respondent had accumulated some construction materials for carrying out internal work in the suit premises to enable his son to start his business. Moreover, it is also observed that in the present revision, there is a total absence of any statement by the petitioner that the suit premises is unoccupied as of now. 20. The learned first appellate court has taken a view that as the petitioner/plaintiff has made an alternative prayer for refund of advance, he will not face irreparable loss as he can be compensated in terms of money. 21. 20. The learned first appellate court has taken a view that as the petitioner/plaintiff has made an alternative prayer for refund of advance, he will not face irreparable loss as he can be compensated in terms of money. 21. The learned trial court has given its reasoning to refuse injunction by arriving at a conclusion that the suit premises described in Schedule-B is inclusive of shop No.2, 3, 6, 7, 9 and 10 and as Shop No.2 is embroiled in a litigation, the petitioner cannot seek injunction in respect of the suit premises. The learned trial court has further concluded that without showing possession, the plaintiff is not entitled to injunction against the respondent herein, being the actual owner of the suit premises. It has further been held by the learned trial court that as the petitioner is entitled to efficacious relief through the suit for specific performance, he is not entitled to the relief of injunction. On the basis of the said findings, the learned trial court held that the petitioner had failed to establish a prima facie case. Therefore, the balance of convenience was also not found in favour of the petitioner. It was also held that the petitioner has failed to show how he will suffer injury if injunction is refused and that he can be adequately compensated by damages. 22. Similarly, the learned first appellate court has given its independent finding on the matter in appeal. It has arrived at its own conclusion on the basis of materials on record that third party rights have been created in respect of the suit premises and that the new tenants are not a party to the suit and if any prohibitory orders are passed in the matter, the interest of the new tenants would be affected. The learned first appellate court has further held that has relied on the ratio of the case of Wander Ltd. & Anr. V. Antox India (P) Ltd., reported in (1990) Supp SCC 727 wherein the Hon’ble Supreme Court of India has held that the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court has ignored the well settled principles of law regulating grant of or refusal of injunction. 23. 23. The same principles apply for the revisional court and it woill be skow to reassess materials in order to reach a conclusion different from the onw reached by the trial court and first appellate court, which are courts of facts. This court finds that the said findings as recorded by the learned trial court as well as the first appellate are both well evaluated finding and it was possible for the said learned courts to take such a view. It has been demonstrated by the respondent herein that the said findings are based on well established principles, as projected through the herein before referred four case law citations, which is not being repeated for the sake of brevity. At this stage, the ratio laid down by this court in the case of Bindeshwar Narayan Singh (supra) is required to be referred to:- “16. The power of the appellate court in the matter of injunction is rather circumscribed. The appellate court would be slow to interfere with the exercise of discretion and would normally not be justifying in interfering with the exercise of the discretion under appeal solely on the ground that if had considered the matter at the trial stage it may have come to a contrary conclusion…..” 24. The language used by the Hon’ble Apex Court is self explanatory and needs no further interpretation to understand its intent and purport. There is no material to show that the orders passed by the trial court and the first appellate court are perverse. There is nothing in the said impugned judgments from which this Court can be persuaded to accept the contention raised by the learned counsel for the petitioner that the impugned judgments passed by the courts below are capricious or perverse. In the opinion of this court, there is no factual foundation to sustain the said submission of the learned counsel for the petitioner. Moreover, it must be remembered that it is easy to make a bald allegation in the revision that the judgment passed by both the courts below are perverse, but in the present case in hand, it is seen that the petitioner has not able to bring home his allegations of any of the both judgments being perverse or capricious. 25. As a result, this court is not inclined to grant injunction in favour of the petitioner- plaintiff and the said prayer is refused. 26. 25. As a result, this court is not inclined to grant injunction in favour of the petitioner- plaintiff and the said prayer is refused. 26. It is however made clear that the observations made herein are for the purpose of deciding this IA, which shall in no manner cause any prejudice to any of the parties in course of trial. 27. The IA stands dismissed. There shall be no order as to costs.