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2022 DIGILAW 2298 (RAJ)

Ramsharan Gupta S/o Suraj Narain Khandelwal (Gupta) v. Krishan Kumar Agarwal @ Kishan Kumar Agarwal S/o Gopal Lal Agarwal

2022-08-25

ANOOP KUMAR DHAND

body2022
JUDGMENT : ANOOP KUMAR DHAND, J. 1. Issue involved in both the Misc. Appeals is common, hence, same are being decided together by this common judgment. 2. These appeals involve a tussle and short issue with regard to applicability of the principle of “Res-Judicata” on the successive/second temporary injunction application filed under Order 39 Rules 1 and 2 CPC filed under the changed circumstances. 3. For the sake of convenience, the facts of Civil Misc. Appeal No. 4410/2019, are taken into consideration. 4. Challenge in this appeal filed by the appellant/defendant-Ramsharan Gupta (for short ‘the defendant’) has been made to the impugned order dated 12.6.2019 passed by the Court of learned Addl. District and Sessions Judge, No. 2, Jaipur Metropolitan, Jaipur (for short ‘Court below’) in Civil Misc. Application No. 38/2018 by which second/successive application filed by the respondent/plaintiff (for short ‘the plaintiff’) for temporary injunction in a suit for specific performance has been allowed and the directions have been issued to the defendant not to raise any construction and also not to make any changes in the suit property, till disposal of the suit. 5. Facts of the case in nutshell are that the plaintiff filed a suit for specific performance of contract in the year 2005 alongwith an application for temporary injunction under Order 39 Rules 1 and 2 CPC, which was disposed of by the Court below vide order dated 6.10.2006 and an agreed order was passed with the consent of the defendant that the suit property will not be alienated till disposal of the suit. During currency of the aforesaid, the plaintiff submitted second/successive application for grant of temporary injunction under Order 39 Rules 1 and 2 CPC before the court below stating therein that few days back the defendant started raising construction on the suit property and on 3.7.2018 when the plaintiff asked the defendant not to raise such construction then the defendant refused to stop raising of unauthorized construction over the suit property and threatened the plaintiff to transfer the same. Hence, under the changed circumstances, second/successive application seeking temporary injunction was submitted with the prayer to direct the defendant not to raise any construction, not to make any changes in the property in question and also not to alienate the same to anyone, till disposal of the suit. 6. Hence, under the changed circumstances, second/successive application seeking temporary injunction was submitted with the prayer to direct the defendant not to raise any construction, not to make any changes in the property in question and also not to alienate the same to anyone, till disposal of the suit. 6. The defendant submitted his reply and denied the averments of the application and took an objection that earlier the temporary injunction application was decided with the consent of the parties and it was agreed that the defendant would not sell and alienate the property in question to anyone till disposal of the suit. Hence, under these circumstances, the successive application for temporary injunction is barred by the principles of “Res-Judicata” and the same is not maintainable. It was also stated in the reply that no construction is being raised and a false affidavit has been submitted by the plaintiff for which proceedings be initiated against him under section 340 Cr.P.C. and the defendant prayed for rejection of the successive application for grant of temporary injunction. 7. The court below after hearing the arguments of rival parties, found prima facie case in favour of the plaintiff and also taking into consideration the changed circumstances and the other ingredients of balance of convenience and irreparable loss, allowed the second/successive application for temporary injunction by the impugned order directing the defendant not to raise any construction and also not to make any changes in the suit property, till disposal of the suit. 8. The defendant feeling aggrieved and dissatisfied by the impugned order passed by the court below has preferred instant misc. appeal before this Court. 9. Counsel for the defendant submits that the court below has committed an error in accepting the second/successive application filed by the plaintiff for grant of temporary injunction. Counsel submits that earlier the first application for temporary injunction was decided vide order dated 6.10.2006 with the consent of both the parties and the defendant agreed not to sell and alienate the property, till the disposal of the suit. Counsel submits that the plaintiff is estopped to file successive application on the basis of the same relief and the successive application is barred by the principles of Res-Judicata. Counsel submits that the court below further erred in directing the defendant not to raise any construction or not to make any changes in the suit property. Counsel submits that the plaintiff is estopped to file successive application on the basis of the same relief and the successive application is barred by the principles of Res-Judicata. Counsel submits that the court below further erred in directing the defendant not to raise any construction or not to make any changes in the suit property. Counsel submits that, if at all, the plaintiff was aggrieved by any action of the defendant then he could have availed the remedy contained under Order 39 Rule 4 CPC but instead of availing the same, the plaintiff filed second/ successive application for temporary injunction under Order 39 Rules 1 and 2 CPC, which is not maintainable. 10. In support of his contentions, learned counsel has placed reliance upon following judgments delivered by the Hon’ble Apex Court: 1. Satyadhyan Ghosal and Others vs. Smt. Deorajin Debi and Others, AIR 1960 SC 941 2. Raja Sri Sailendra Narayan Bhanja Deo vs. State of Orissa, 1956 SCR 72 3. Byram Pestonji Gariwala vs. Union Bank of India and Others, (1992) 1 SCC 31 4. Ambalal Sarabhai Enterprise Ltd. vs. K.S. Infraspace LLP Limited, (2020) 5 SCC 410 11. Per-contra, counsel for the plaintiff stoutly defended the impugned order and urged that no interference with the same is warranted. Counsel submits that after passing of the first order dated 6.10.2006, ill intention developed in the mind of the defendant and he started raising construction to change the status of the suit property. Hence, under these circumstances, the plaintiff was left with no other alternative remedy except to file second/successive application for temporary injunction seeking directions against the defendant not to raise any construction or make any changes in the suit property. Counsel submits that no illegality has been committed by the court below while entertaining the successive application for temporary injunction filed by the plaintiff. Counsel submits that there is no bar under the principles of ‘Res-Judicata’ for consideration of the second/successive application by the court below filed by the plaintiff under Order 39 Rules 1 and 2 CPC. 12. In support of his submissions, counsel has placed reliance upon the judgment delivered by the Hon’ble Apex Court in the case of Arjun Singh vs. Mohindra Kumar and Others, AIR 1964 SC 993 and also the following judgments delivered by this Court: 1. Madan Lal Khuteta vs. Badri Narayan, AIR 1988 Rajasthan 61 2. Bhura vs. Addl. 12. In support of his submissions, counsel has placed reliance upon the judgment delivered by the Hon’ble Apex Court in the case of Arjun Singh vs. Mohindra Kumar and Others, AIR 1964 SC 993 and also the following judgments delivered by this Court: 1. Madan Lal Khuteta vs. Badri Narayan, AIR 1988 Rajasthan 61 2. Bhura vs. Addl. District Judge, Jaipur City and Others, 2004 (1) WLC (Raj.) 180 13. There remains no quarrel in the factual position that the suit was filed by the plaintiff against the defendant for specific performance along-with an application for temporary injunction in which it was stated that the suit property was agreed to be purchased by the plaintiff from the defendant through oral agreement on 09.09.2004. On 11.09.2004, a document was executed in this regard and as per the terms and conditions of the said agreement, a sale deed was prepared on a stamp of Rs. 1 lakh on 29.12.2004 through an Advocate and the parties to the agreement put their signatures on the sale deed and the sale deed was supposed to be registered on a particular day but the defendant did not appear, hence, the sale deed could not be executed. In-spite of making several efforts, when the sale deed was not executed and registered then the suit for specific performance along-with an application for temporary injunction was submitted. This fact is not in dispute that with the consent of the plaintiff and the defendant an agreed order was passed on 6.10.2006 that the suit property would not be alienated till disposal of the suit. When the defendant started raising construction and wanted to change the status of the suit property and refused to stop the construction activities on 3.7.2018, then under these changed circumstances, the plaintiff submitted successive application against the defendant before the court below seeking temporary injunction. After hearing the arguments of both the sides, the court below accepted the application in part and directed the defendant not to raise any construction or not to make any changes in the suit property till disposal of the suit. 14. Heard and considered the rival submissions of both sides and perused the material available on the record. 15. After hearing the arguments of both the sides, the court below accepted the application in part and directed the defendant not to raise any construction or not to make any changes in the suit property till disposal of the suit. 14. Heard and considered the rival submissions of both sides and perused the material available on the record. 15. The objection raised by the counsel for the defendant that the successive application for grant of temporary injunction is not maintainable as the same is barred by the principles of ‘Res-Judicata’ contained under section 11 CPC is not tenable in the peculiar circumstances of the instant case because after passing of the first order dated 6.10.2006 the defendant started raising construction over the suit property on 3.7.2018, though this fact has been disputed by the defendant claiming that the plaintiff has submitted a false affidavit regarding the same. For verifying this fact, this Court vide order dated 19.12.2019 appointed Mr. Pranjul Chopra, Advocate as a Commissioner to inspect the site, who inspected the site on 19.12.2019 and after inspection he submitted his report dated 20.12.2019 before this Court which clearly indicates that fresh cement plaster was visible on the suit property and in support of the report, photographs were also submitted from which it is clear that fresh construction was on going. So, under these circumstances, the plaintiff was left with no other alternative remedy except to submit second/successive application under Order 39 Rules 1 and 2 CPC for grant of temporary injunction for protecting the suit property. Keeping in view the changed circumstances, the court below has passed the impugned order restraining the defendant not to raise any construction and not to change the nature/status of the suit property. 16. In the considered opinion of this Court, the order of temporary injunction is capable of being altered and varied on prima facie proof of new situation which may arise subsequently. 17. The Hon’ble Apex Court in Arjun Singh (supra) has held that second application for grant of temporary injunction can be filed. It was observed in Para No. 13 as under: “13. 17. The Hon’ble Apex Court in Arjun Singh (supra) has held that second application for grant of temporary injunction can be filed. It was observed in Para No. 13 as under: “13. It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res-judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the court would be justified in rejecting the same as an abuse of the process, of court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under O. IX. R. 7 would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the defendant to “set the clock back” does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages, so as to preclude its being reconsidered. Even if the rule of res-judicata does not apply it would not follow that on every subsequent day on which the suit stands adjourned for further hearing the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle of res-judicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of res-judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res-judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res-judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the court would be competent, nay would be bound to take those into account and make an order conformably to the facts freshly brought before the court.” 18. This Court in the case of Madan Lal Khuteta (supra) and Bhura (supra) has taken the similar view that there was no error if the successive application for temporary injunction is accepted under the changed circumstances and the principle of ‘Res-Judicata’ is not attracted in such cases. 19. The judgments submitted by the learned counsel for the appellant in the cases of Raja Sri Sailendra Narayan Bhanja Deo (supra), Byram Pestonji Gariwala (supra) and Ambalal Sarabhai Enterprise Ltd. & Ors. 19. The judgments submitted by the learned counsel for the appellant in the cases of Raja Sri Sailendra Narayan Bhanja Deo (supra), Byram Pestonji Gariwala (supra) and Ambalal Sarabhai Enterprise Ltd. & Ors. (supra) are not applicable in the facts and circumstances of the present case because all these judgments deal with the issue of ‘Res-Judicata’ or waiver of rights when the final judgments and decrees were passed on the basis of consent of the parties and their rights were finally adjudicated. While in the instant case, the first application for temporary injunction was decided with the consent of the parties that the defendant would not sell and alienate the suit property, thus, the earlier application for temporary injunction cannot be said to be decided on merits. Now when the defendant started raising construction and wanted to change the nature/status of the suit property, the second/successive application was submitted under the changed circumstances. Hence, the same is not barred by the principles of Res-Judicata. 20. In the given facts and circumstances of the present case, it cannot be said that the court below has exercised its discretion on the jurisdiction in an arbitrary or whimsical manner. The impugned order cannot be said to be perverse as it does not suffer from any grave illegality or jurisdictional error. 21. There remains no quarrel that grant or refusal of temporary injunction is within the sole discretion of the Court of first instance and normally appellate Court is not expected to substitute its view. The Appellate Court can very well interfere with the order passed by Court below if it comes to the conclusion that the order impugned is perverse or dehors the sound legal principles governing the province of temporary injunction. 22. This Court in case of Vimla Devi vs. Jang Bahadur, AIR 1977 Rajasthan 196, has examined the powers of appellate Court to interfere with the discretionary order in the matter of grant of temporary injunction and observed: “I have given my earnest consideration to the contentions raised on behalf of the defendant-petitioner. The order refusing temporary injunction is of a discretionary character. Ordinarily Court of appeal will not interfere with the exercise of discretion passed by the trial Court and substitute for it its own discretion. The order refusing temporary injunction is of a discretionary character. Ordinarily Court of appeal will not interfere with the exercise of discretion passed by the trial Court and substitute for it its own discretion. The interference with the discretionary order, however, may be justified if the lower Court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles or without considering all the relevant records. In the light of the above observations, I have now to see whether it was open to the learned District Judge to interfere with the order of the learned trial Court. It is well settled that the grant of temporary injunction is a discretionary order and the decision of the first Court could not be easily interfered with by the appellate Court vide Musa vs. Badri Prasad, ILR (1953) 3 Rajasthan 257. The mere possibility of the appellate Court coming to a different conclusion on the same facts and evidence will also not justify interference vide Wazir Sundar Singh vs. Mst. Farida Khanam, AIR 1920 PC 132 . Another well established principle while disposing of the application under O. 39, R. 1 and 2, C.P.C. is that when the Court while dealing with the case for grant of temporary injunction decides the question of prima facie case, it should apply its judicial mind to the materials which are placed on the record and if it does not do so then it commits illegality in the exercise of jurisdiction and in that case the High Court is competent to interfere in revision in such a case vide Musa vs. Badri Prasad (supra). The view taken in Musa vs. Badri Prasad (supra) has been followed by Kan Singh J. in Girdhari Lal vs. Mahadevi Sharma, AIR 1958 Rajasthan 237. It has been held in this case that the appellate Court should be slow in upsetting a decision of a trial Court in a matter relating to grant of temporary injunction unless the decision of the trial Court is arbitrary, perverse or is not based on sound legal principles. It has been held in this case that the appellate Court should be slow in upsetting a decision of a trial Court in a matter relating to grant of temporary injunction unless the decision of the trial Court is arbitrary, perverse or is not based on sound legal principles. It has been further observed in that case that when the appellate Court does not apply its judicial mind on all the materials brought on the record then in that case the approach of an Appellate Court would be wrong and contrary to the well established principles laid down by the High Court, more so when the appellate Court does not deal with the reasoning that has prevailed with the trial Court and further when it does not apply its judicial mind on the materials placed on the record.” 23. In a subsequent judgment, the Supreme Court in case of Wander Ltd. and Another vs. Antox India Pvt. Ltd. 1990 (Supp.) SCC 727 observed that appeal against grant or refusal of temporary injunction is appeal on principle. While dilating on the powers of appellate Court, the Court held: “In such appeals, 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 had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.” 24. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.” 24. Further apart from prima facie case, it is also required to be considered that what nature of loss or injury or prejudice would be caused to the party, if he is restrained by way of temporary injunction during course of trial. In present case, trial court has dealt with this ingredient also and observed that balance of convenience tilts in favour of plaintiff and it is the plaintiff who may suffer irreparable loss not the defendant, if temporary injunction is not granted. The defendant could not make out a case that they would suffer any grave loss or injury or prejudice by the injunction order passed by the Court below. 25. The Hon’ble Supreme Court, in the case of Maharwal Khewaji Trust (Regd.) Faridkot vs. Baldev Dass, (2004) 8 SCC 488 has propounded a principle of law in relation to grant of temporary injunction under Order 39 Rules 1 and 2 CPC that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. The said principle has further been followed in the case of Dev Prakash and Another vs. Indra and Others, (2018) 14 SCC 292 wherein the Hon’ble Supreme Court observed that the very essence of the concept of temporary injunction and receivership during the pendency of a civil litigation involving any property is to prevent its threatened wastage, damage and alienation by any party thereto, to the immeasurable prejudice to the other side or to render the situation irreversible not only to impact upon the ultimate decision but also to render the relief granted, illusory. The Hon’ble Supreme Court observed that the judicial discretion has to be disciplined by jurisprudential ethics and can by no means conduct itself as an unruly horse. 26. The Hon’ble Supreme Court observed that the judicial discretion has to be disciplined by jurisprudential ethics and can by no means conduct itself as an unruly horse. 26. Following the above judgments, this Court in the case of Rudresh Jhunjhunwala and Others vs. Satish Kumar and Others, 2022 (2) DNJ (Raj.) 797 has held that interference in the temporary injunction order can be made only in a situation where the Appellate Court is satisfied that the court below has acted arbitrarily or contrary to law or that the findings of the court below are perverse or incorrect. 27. Having regard to the facts and circumstances of the case and law on the subject, in my opinion, Court below has exercised its discretion judiciously. Therefore, I feel disinclined to interfere with the discretionary order passed by the court below. 28. Consequently, both the appeals fail and same are hereby rejected. 29. Stay applications and all pending applications, if any, also stand dismissed. 30. However, before parting, it may be observed that considering the lis involved in the matter, Court below is expected to expedite the trial of the main suits and decide the same at the earliest not beyond the period of one year from the date of receipt of the certified copy of this order. 31. Registry is directed to place a copy of this order in the connected case file.