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2019 DIGILAW 1807 (JHR)

Bhala Bhagat v. Shashi Devi

2019-10-24

SANJAY KUMAR DWIVEDI

body2019
JUDGMENT : I.A. No. 2293 of 2016 and I.A. No. 10075 of 2019 1. Heard Mr. Niladri Shekhar Mukherjee, learned counsel for the appellants and Mr. Lalit Kumar Lal, learned counsel appearing for the respondents. 2. I.A. No. 2293 of 2016 has been filed under Order XXXIX Rule 1 & 2 read with Section 151 of the Code of Civil Procedure for temporary injunction restraining the respondents from transferring, alienating or from creating any third party interest over the property involved in this appeal. I.A. No. 10075 of 2019 has been filed under Section 151 of the Code of Civil Procedure for restoration of suit property. I.A. No. 2293 of 2016 was heard on 27.09.2019. As on that day, learned counsel appearing for the respondents took time to file reply to the I.A., the matter was adjourned for filing counter affidavit and was directed to be listed on 23.10.2019 and till then, status quo of the disputed land was directed to be maintained. The respondents have filed counter affidavit and the appellants have filed I.A. No. 10075 of 2019 and that is how two I.As. have been placed today before the Bench. 3. Mr. Mukherjee at the first instance argued on both the I.As. and submits that the suit property is in the possession of the appellants and they have been forcefully dispossessed and the respondents are making some construction on the suit property. He referred to some photographs which have been annexed with the supplementary affidavit filed by the appellants. He further submits that since this Second Appeal has already been admitted on substantial question of law, to avoid multiplicity of the litigation, status quo may be made absolute till the disposal of the Second Appeal. He also submits that the appellants purchased the suit land by a sale deed dated 12.01.1982 from the recorded raiyats Nagarmal Poddar and Jibraj Poddar, which was consented by another brother Amlok Chand Poddar and thereafter the plaintiffs acquired right, title and interest and obtained possession of the properties described in Schedule-A of the plaint. He further argues that the appellants have sold 41 decimals of land to others and after the said sale the plaintiffs are in possession of 29 decimals of land. He further argues that the appellants have sold 41 decimals of land to others and after the said sale the plaintiffs are in possession of 29 decimals of land. He further submits that prima facie case, balance of convenience and irreparable loss, which are prime factor in granting the injunction are in favour of the appellants and that is why this Court may extend status quo order which has been granted by this Court vide order dated 27.09.2019. He relied upon the judgment rendered by Hon'ble the Supreme Court in the case of Dalpat Kumar & Anr. v. Prahlad Singh & Ors. reported in 1992 (1) Current Civil Cases 73 (SC) and by way of referring paragraph 4 of the judgment submits that the Hon'ble Supreme Court has held that under Order 39 Rule 1(c) which provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise that there is appreciation of dispossession of the party, who is in possession of the suit land. 4. Per contra, Mr. Lalit Kumar Lal submits that Ext.-1 is the sale deed, which is executed by recorded raiyats in the year 1982. He further submits that the vendors of the plaintiffs were no longer owner of the suit property as they had already sold the same in the year 1935 to M/s Central Spanning Weaving and Manufacturing Company Limited by registered sale deed dated 18.07.1935, who after coming in possession thereof sold the same to Mast Ram Modi by registered sale deed dated 14.12.1948 from whom the defendants have purchased the suit property by virtue of registered sale deed dated 20.09.1990. Exts.-D and D/1 are the certificates which has been issued by the Registrar Commissioner which suggest that no death certificate has been issued in Rajasthan with regard to Nagarmal Poddar and Jivraj Poddar, whereas, Exts.-Q and Q/1 are the documents which suggest that Nagarmal Poddar died in the year 1964 and Amlok Chand Poddar died in the year 1960. Ext. K is the certified copy of the deposition of R.Z. Siddiqui, who was the Registrar of Birth and Death Certificate, who deposed that Amlok Chand Poddar died on 19.02.1960, which has been registered in his office in Entry no. 2543. Ext. K is the certified copy of the deposition of R.Z. Siddiqui, who was the Registrar of Birth and Death Certificate, who deposed that Amlok Chand Poddar died on 19.02.1960, which has been registered in his office in Entry no. 2543. Ext.-K/1 is the deposition of Ful Kumar Poddar, son of Budhi Chand Poddar in which he has stated that Jivraj Poddar was his grandfather, who died on 1 Sambat 1993 at Nagpur. Ext.-M is the deposition of Shanti Kumar, Keshav Deo Poddar, who has stated that his grandfather Nagarmal Poddar died in the year 1964 at Nagpur. On these facts, Mr. Lal referring to conclusion arrived at by the appellate court as well as the trial court with regard to issue nos. XII, XIII and XIV and submits that both the courts have come to the conclusion that there are sufficient material for initiating a criminal proceeding for fabricating a false document and used it as a basis for claiming title. The appellate court further came to the finding that the plaintiff fabricated a forged document and adduce the same into evidence, which was marked as Ext.1 said to be executed on 12.01.1982, the date on which the executants were not alive. Not only this, the appellate court further came to the finding that the plaintiff procured and produced evidence Ext.11 and 11/A which are death certificates of Jivraj Poddar and Nagarmal Poddar and during trial, the authorities of Khaithun and Kota from where these death certificates were said to be issued, were examined by Advocate Commissioner, who have denied that any such certificate was issued from there. The appellate court further came to the finding that it was a case of glaring misuse of process of court to launch a litigation to claim title on the basis of the forged and fabricated documents, which were produced in evidence and such conduct cannot be lightly taken. The appellant/plaintiff not only sworn a false affidavit in support of the pleadings, but also testified falsely before the court on oath. The appellant/plaintiff initiated frivolous and vexatious litigation, which the plaintiff initiated on the basis of forged and fabricated document, put to great harassment to the defendants and consumed more than 24 years of court's time. Under these circumstances, the appellate court directed to initiate a criminal prosecution against the plaintiff, to deter such unscrupulous litigants. By referring paragraph no. The appellant/plaintiff initiated frivolous and vexatious litigation, which the plaintiff initiated on the basis of forged and fabricated document, put to great harassment to the defendants and consumed more than 24 years of court's time. Under these circumstances, the appellate court directed to initiate a criminal prosecution against the plaintiff, to deter such unscrupulous litigants. By referring paragraph no. 13 of the trial court judgment and paragraph no. 10 of the appellate court judgment, learned counsel for the respondents submits that both the courts below have come to the conclusion that the defendants are in possession of the suit land. He further submits that law is well settled in this regard that a party seeking discretionary relief has to approach the Court with clean hands and is required to disclose all material facts which may, one way or the other, affect the decision. To substantiate his arguments, he relied upon the judgment rendered in the case of Rohit Dhawan v. G.K. Malhotra & Anr. reported in ILR (2001) II Delhi 690 and the in the case of S.P. Chengalvaraya Naidu (Dead) by LRS. v. Jagannath (Dead) by LRS. & Others , reported in (1994) 1 SCC 1 . 5. Paragraph 11 of the judgment rendered in the case of Rohit Dhawan v. G.K. Malhotra & Anr. reported in ILR (2001) II Delhi 690 is quoted herein below: “11. The suit as framed gives the impression that the agreement conferring exclusive marketing rights on the plaintiff in respect of Glunorm and dbNorm are still in force. The grievance in the plaint appears to be that while the two agreements are still in force, the defendants had started violating it by selling and marketing their products, in violation of the agreements and that is why ex parte ad interim injunction was granted. Had the plaintiff brought to the notice of this Court that agreements have already been terminated, he would not have been entitled for ex parte injunction because in that case plaintiff could at the most claim that termination of agreements is contrary to law in which case only remedy available to the plaintiff would have been damages because agreements were not of such nature that their specific performance could be enforced. So in view of Section 41 of Specific Relief Act, no injunction could have been issued to prevent the breach of agreement which cannot be specifically enforced. So in view of Section 41 of Specific Relief Act, no injunction could have been issued to prevent the breach of agreement which cannot be specifically enforced. In the case of M/s. Seemax Construction (P) Ltd. v. State Bank of India and Anr., AIR 1992 Delhi 197 it was held that the suppression of material fact by itself is a sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief has to approach the Court within clean hands and is required to disclose all material facts which may, one way or the other, affect the decision. A person deliberately concealing material facts from court is not entitled to any discretionary relief. The Court can refuse to hear such person on merit. In that case plaintiff suppressed the facts that plaintiff had filed earlier suit before subordinate courts in which the relief was not granted. Non-disclosure of this fact was held to be sufficient to disentitle the plaintiff from discretionary relief of injunction. In the case of M/s Wander Limited and Anr. Vs. Antox India P. Ltd., 1990 (Supp) SCC 727 it was held that usually, the prayer for grant of an interlocutory injunction is at a stage the existence of the legal right asserted by plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The Court, at this stage, acts on certain well settled principles of administration of the form of interlocutory remedy which is both temporary and discretionary. The object discretionary. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverably in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must 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 weight one need against another and determined where the “balance of convenience lies”. The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The Court must weight one need against another and determined where the “balance of convenience lies”. The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The Court also, in restraining a defendant from exercising what he considered his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise are attracted.” Paragraph 5 of the judgment rendered in the case of S.P. Chengalvaraya Naidu (Dead) by LRS. v. Jagannath (Dead) by LRS. & Others, reported in (1994) 1 SCC 1 is quoted herein below: “5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.” Learned counsel for the respondents further submits that it is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. He relied upon the judgment rendered by Hon'ble the Supreme Court in the case of Kashi Math Samsthan and another v. Shrimad Sudhindra Thirtha Swamy, reported in (2010) 1 SCC 689 . Paragraph 16 of the said judgment is quoted herein below: “16. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court.” 7. He further submits an injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. He further submits an injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. He relied upon the judgment rendered by Hon'ble the Supreme Court in the case of Ramji Rai and another v. Jadgish Mallah (Dead) through LRS. and another, reported in (2007) 14 SCC 200 . Paragraph 10 of the said judgment is quoted herein below: “10. On the finding of facts, we do not wish to interfere. There is no reason to reverse the concurring findings. However, suffice it to state that the lower appellate court should have dismissed the suit filed by the appellants only on the ground that the appellants had failed to prove that they were in possession of the disputed lands. Under Section 38 of the Specific Relief Act, 1963 an injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. In the case of a permanent injunction based on protection of possessory title in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction without adding a prayer for declaration of his rights.” 8. By way of referring the aforesaid judgments, learned counsel for the respondents argues that the conduct of the appellant shows that he is not entitled for any injunction as he has not approached this Court with clear hands and that is why the appellate court has directed to initiate a criminal proceeding against the plaintiff. He further argues that there is no prima facie case and balance of convenience is not in favour of the appellant. 9. This Court after considering the arguments advanced by the learned counsel for the parties and looking into the aforesaid judgments as well as the judgments of the trial court as well as appellate court, come to the conclusion that the appellant has not approached this Court with clean hands. The two fact finding courts have given concurrent finding that the defendant is in possession of the suit property. This Court further finds that process of court is being abused by the appellants and this Court has got no hesitation in saying so that person whose case is false, has no right to approach the Court. The two fact finding courts have given concurrent finding that the defendant is in possession of the suit property. This Court further finds that process of court is being abused by the appellants and this Court has got no hesitation in saying so that person whose case is false, has no right to approach the Court. This Court further finds that there is no prima facie case, balance of convenience is also against the appellants and no irreparable loss will be caused to the appellants if the status quo is not extended. Accordingly, this Court is not inclined to extend the status quo granted by this Court vide order dated 27.09.2019. Only admission of the Second Appeal is not a ground of granting injunction. In view of the conduct of the appellant, this Court is not inclined to exercise its discretionary jurisdiction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. Accordingly, I.A. No. 2293 of 2016 and I.A. No. 10075 of 2019 are dismissed.