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2022 DIGILAW 418 (AP)

Kolluru Sudhakar Rao v. Polineni Nagabhushanam

2022-04-19

SUBBA REDDY SATTI

body2022
JUDGMENT Subba Reddy Satti, J. - assailing the judgment and decree, dated 31.07.2018 passed in a.S.No.84 of 2016 on the file of learned IV additional District Judge, Nellore confirming the judgment and decree, dated 22.03.2016 passed in O.S.No.279 of 2014 on the file of learned III additional Junior Civil Judge, Nellore, the above appeal is filed by plaintiff. 2. The parties to the appeal shall be referred to as they are arrayed in O.S.No.279 of 2014. 3. The plaintiff filed O.S.No.279 of 2014 for permanent injunction against the defendant restraining him, his men and agents from evicting the plaintiff from the suit schedule property without following due process of law. 4. The averments in the plaint, in brief, are that the defendant is the owner of the suit schedule property; that plaintiff took shop room No.1 bearing door No.5/612, present door No.5/3/545 on oral lease on 01.07.1998 at monthly rent of Rs.2,000/- and deposited an amount of Rs.50,000/- as advance; that he is carrying on business under the name and style of 'Sri Sai Kamakshi Traders'; that monthly rent was enhanced to Rs.4,400/-; that the defendant demanded the plaintiff to enhance the rent to Rs.7,500/- and also to pay additional advance of Rs.75,000/- for which, the plaintiff expressed his inability; that the defendant with his men and agents tried to dispossess the plaintiff and hence the suit was filed. 5. The defendant filed written statement and contended inter alia that the plaintiff took the property on lease on 20.04.2004 on monthly rent of Rs.3,500/- and executed lease deed; as per the terms of lease agreement, plaintiff has to vacate the leased premises by 19.04.2007; that plaintiff paid Rs.20,000/- only as security deposit; that if the plaintiff continues tenancy, the landlord is entitled to enhance the rent by 20% on existing monthly rent; that plaintiff executed an undertaking in favour of the defendant that he would vacate the suit schedule property on or before 31.03.2013 and failed to adhere to the same; that plaintiff again executed another undertaking, dated 17.09.2013 agreeing to vacate the premises on or before 31.03.2014 and failed to vacate the suit schedule property; that the plaintiff is chronic defaulter and the defendant is taking steps to get the plaintiff evicted from the suit schedule premises and also for recovery of arrears through due process of law and prayed to dismiss the suit. 6. 6. During trial, plaintiff examined himself as PW1 besides examining PWs2 and 3 and got marked Exs.a1 to a4. On behalf of the defendant, defendant examined himself as DW1. Exs.B1 to B3 were marked. 7. The trial Court vide judgment, dated 22.03.2016 dismissed the suit with costs. 8. aggrieved by the said judgment and decree, plaintiff filed a.S.No.84 of 2016 on the file of learned IV additional District Judge, Nellore. The first appellate Court being final fact finding Court, on consideration of oral and documentary evidence dismissed the appeal. 9. aggrieved by the judgments of the Courts below the above second appeal is filed by the plaintiff. 10. Heard Sri K.S. Gopala Krishnan, learned counsel for the appellant/plaintiff. 11. Learned counsel for the plaintiff would contend that since the plaintiff was inducted into possession of the suit schedule property by way of lease, the defendant/landlord cannot evict him except by due process of law and hence the appellant/plaintiff is entitled to the relief of injunction. He would further contend that the Courts below failed to consider the evidence on record in a proper perspective. Thus prayed to set aside the judgments of the Courts below. In support of his contention, he placed reliance on Krishna Ram Mahale (Dead) by his Lrs. Vs. Mrs. Shobha Venkat Rao aIR 1989 SC 2097 . 12. The following are substantial questions of law that arise for consideration in the second appeal: 1. Whether the appellant/plaintiff is entitled for discretionary relief of injunction against the defendant/landlord? 2. Whether the cause of action pleaded by the plaintiff to file suit for injunction is true and correct? 3. Whether the appellant/plaintiff came to the Court with unclean hands and hence is not entitled to the discretionary relief of Injunction. 4. To what relief? 13. Undisputed facts in the case are that the property i.e. achari complex is a commercial complex consisting of 12 shops and is situated in the main commercial area at Nellore. Plaintiff originally entered into lease in respect of shop No.1 in the year, 1998. Monthly rent as on the date of filing of suit is Rs.4,400/-. advance of Rs.20,000/- was paid as security deposit when plaintiff entered lease. The defendant filed suit O.S.No.1 of 2015 on the file of learned Principal Senior Civil Judge, Nellore seeking eviction and other reliefs against the plaintiff and the same is pending. 14. Monthly rent as on the date of filing of suit is Rs.4,400/-. advance of Rs.20,000/- was paid as security deposit when plaintiff entered lease. The defendant filed suit O.S.No.1 of 2015 on the file of learned Principal Senior Civil Judge, Nellore seeking eviction and other reliefs against the plaintiff and the same is pending. 14. Before going into the merits of the case, it is apt to have a look at Chapter VIII, Section 38 of the Specific Relief act, 1963 (for short the 'act'), which deals with perpetual injunction: '38. Perpetual injunction when granted.- (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:- (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings. 15. a perusal of Section 38 makes it clear that to prevent breach of an obligation either expressly or by implication or where the defendant invades or threatens to invade will not be compensated in terms of money etc, injunction would be granted in favour of the plaintiff. 16. There is no dispute that the plaintiff is carrying on business in the suit schedule property as a tenant. 17. according to the plaintiff, defendant/landlord demanded for enhancement of rent to Rs.7,500/- per month and also to deposit an amount of Rs.75,000/- as advance. Plaintiff further pleaded that defendant came to the shop with unknown elements, one day prior to the filing of the suit and demanded the plaintiff to vacate the shop within two days, lest the plaintiff should face dire consequences. Plaintiff further pleaded that defendant came to the shop with unknown elements, one day prior to the filing of the suit and demanded the plaintiff to vacate the shop within two days, lest the plaintiff should face dire consequences. The plaintiff also further averred that he reported to the Police about the highhandedness of the defendant, but the Police turned down his request since the matter is of civil nature and hence, he was constrained to file the suit. 18. Defendant filed written statement and contended that plaintiff suppressed Exs.B1 to B3. Ex.B1 lease agreement dated 05.07.2004; Ex.B2 undertaking, dated 17.02.2011 and Ex.B3, another undertaking 17.09.2013. Defendant/landlord further contended that the plaintiff is a chronic defaulter and he is taking steps to evict the plaintiff from the suit schedule premises and for recovery of arrears by following due process known to law. 19. a perusal of the pleadings and evidence let in by respective parties and the findings recorded by the Courts below manifest that plaintiff came to the Court with unclean hands by suppressing facts. Injunction being discretionary relief may not be granted in favour of a person, who approached the Court with unclean hands. 20. The relief of injunction is purely discretionary. The Court is not bound to grant discretionary relief merely because it is lawful to do so. It is settled law that discretionary reliefs are granted on the basis of factual situation obtaining in each case. It is pertinent to consider Section 41 of the act, which speaks as to when injunction is to be refused. The Court is not bound to grant discretionary relief merely because it is lawful to do so. It is settled law that discretionary reliefs are granted on the basis of factual situation obtaining in each case. It is pertinent to consider Section 41 of the act, which speaks as to when injunction is to be refused. 'Section 41: Injunction when refused - an injunction cannot be granted:- a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings: b) to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought c) to restrain any person from applying to any legislative body: d) to restrain any person from instituting or prosecuting any proceeding in criminal matter e) to prevent the breach of a contract the performance of which would not be specifically enforced: f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance g) to prevent a continuing breach in which the plaintiff has acquiesced: h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust: i) when the conduct of the plaintiff or his agents has been such as to disentitle him to assistance of the Court: j) when the plaintiff has no personal interest in the matter. as per Section 41 (i) injunction cannot be granted in favour of the plaintiff when the conduct of plaintiff or his agents disentitled the Court to grant relief in his/their favour. 21. In ammani vs. Tiruchengode Municpality aIR 2004 Mad 333 , the Madras High Court held that one who comes to the court with unclean hands and acts in an inequitable and unfair manner, is not entitled to the discretion relief of injunction. 22. In M.P. Mathur vs. DTC aIR 2007 SC 414 , the Hon'ble Supreme Court held that the discretion under the Section which the court has to exercise is a judicial discretion and has to be exercised on well settled principles. 22. In M.P. Mathur vs. DTC aIR 2007 SC 414 , the Hon'ble Supreme Court held that the discretion under the Section which the court has to exercise is a judicial discretion and has to be exercised on well settled principles. The court has to consider as to the nature of the obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the court granting the decrees. 23. In Premji Ratansey vs. Union of India 1994 (5) SCC 547 the Hon'ble apex Court held that: 'Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right. Under Section 41(j) of the Specific Relief act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.' 24. In M/s. Seemax Construction (P) Ltd. V. State Bank of India aIR 1992 Delhi 197 the Delhi High Court observed as under: '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 with 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 merits. a person seeking relief of injunction is required to make honest to make honest disclosure of all relevant statements of facts otherwise it would amount to an abuse of the process of the court.' 25. In S.P. Chengalvaraya Naidu v. Jagannath 1994 1 SCC 1 , the Hon'ble Supreme Court held as under: '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 abuse. In S.P. Chengalvaraya Naidu v. Jagannath 1994 1 SCC 1 , the Hon'ble Supreme Court held as under: '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 abuse. 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.' 26. Thus, it is well settled law that the relief of injunction is purely discretionary and the Court in the given facts and circumstances of each case may exercise its discretion. However, such discretion ought to be reasonable, and not to be arbitrarily exercised. It is a well settled law that a person cannot obtain the assistance of court in taking advantage of his own wrongs. The courts must not give protection to such soiled hands. Section 41(i) of the act, mandates that an injunction cannot be granted where the conduct of the plaintiff has been such as to disentitle him to such assistance of the Court and if the plaintiff acts in an unfair or inequitable manner or if he/she suppresses material facts from the Court the suit will be barred. 27. In the case on hand, the plaintiff suppressed about the written lease and execution of undertakings under Exs.B2 and B3. In fact, cause of action pleaded by the plaintiff is also not true and correct. Having entered into written lease with landlord and after executing undertakings to vacate the shop, did not vacate the shop. apart from that the defendant/landlord initiated proceedings vide O.S.No.1 of 2015 seeking eviction of the plaintiff from the suit schedule property. There is no threat as pleaded by the appellant/plaintiff. Thus, this Court came to the conclusion that appellant/plaintiff came to the Court by suppressing facts and with unclean hands and hence is not entitled to discretionary relief of injunction. 28. Whether the concurrent findings of facts recorded by Courts below warrant any interference by High Court by exercising its jurisdiction under Section 100 CPC. 29. Thus, this Court came to the conclusion that appellant/plaintiff came to the Court by suppressing facts and with unclean hands and hence is not entitled to discretionary relief of injunction. 28. Whether the concurrent findings of facts recorded by Courts below warrant any interference by High Court by exercising its jurisdiction under Section 100 CPC. 29. The Hon'ble apex Court in Kulwant Kaur and Ors vs. Gurdial Singh Mann (Dead) By Lrs. and Ors. aIR 2001 SC 1273 held as under: 'Sec 100 CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil Procedure amendment act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity.' 30. In Yadavarao Dajiba Shrawane vs. Nanilal Harakchand Shah 2002 (6) SCC 404 the Hon'ble Supreme Court held as under: 18. From the discussions in the judgment it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position is well settled that when the judgment of the final Court of fact is based on mis-interpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is well settled that when the judgment of the final Court of fact is based on mis-interpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by Courts. a finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal. Since the parties have been in litigating terms for several decades the records are voluminous. The High Court as it appears from the judgment has discussed the documentary evidence threadbare in the light of law relating to their admissibility and relevance. 31. In Leela Soni vs. Rajesh Goyal 2001 (7) SCC 494 , the Hon'ble Supreme Court held as under: It will be apt to refer to Section 103 of C.P.C. which enables the High Court to determine the issues of fact: "103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, (a) which has not been determined by the Lower appellate Court or both by the Court of first instance and the Lower appellate Court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100." The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations : (1) when that issue has not been determined both by the trial court as well as the Lower appellate Court or by the Lower appellate Court; or (2) when both the trial court as well as the appellate Court or the Lower appellate Court has wrongly determined any issue on a substantial question of law which can properly be the subject matter of second appeal under Section 100 of C.P.C.' 32. Further the Hon'ble apex Court in Hero Vinoth Vs. Seshammal aIR 2009 SC 1481 , held thus: '19. Further the Hon'ble apex Court in Hero Vinoth Vs. Seshammal aIR 2009 SC 1481 , held thus: '19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. It was furthermore held: 23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. an entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. an entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MaNU/SC/0091/2001). 24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:- (i) .. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. a question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. a substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.' 33. In the light of the law laid down by the Hon'ble apex Court on the scope of interference of by the High Court in second appeal, this Court while exercising jurisdiction under Section 100 of the CPC has to confine to the substantial question of law involved in the appeal. This Court cannot re-appreciate the evidence and interfere with the concurrent findings of the Court below where the Courts below have exercised the discretion judicially. Further the existence of substantial question of law is the sine qua non for the exercise of jurisdiction. This Court cannot substantiate its own opinion unless the findings of the Court are manifestly perverse and contrary to the evidence on record. 34. Further the existence of substantial question of law is the sine qua non for the exercise of jurisdiction. This Court cannot substantiate its own opinion unless the findings of the Court are manifestly perverse and contrary to the evidence on record. 34. In the present case the plaintiff filed O.S.No.279 of 2014 seeking injunction and the suit was dismissed in the year, 2016, which was confirmed by the first appellate Court in the year, 2018. as on today, the plaintiff is carrying on business in the suit schedule premises without any interference by the defendant/landlord. These circumstances indicate that the plaintiff failed to prove the breach of obligation and the alleged highhanded interference by the defendant/landlord. The evidence of other witnesses is not supporting the case of plaintiff. They are not aware of Exs.B1 to B3. as stated supra the evidence of PWs2 and 3 does not inspire confidence of this Court with regard to the alleged highhanded acts on behalf of the defendant/landlord. 35. The findings of fact recorded by the Courts below while dismissing the suit for injunction are not perverse and in fact based on pleadings and evidence. The judgements under appeal does not call for interference of this Court under Section 100 CPC. The decision relied upon by learned counsel for the plaintiff in Krishna Ram Mahale's case (referred supra) will not apply to the facts of the case. 36. In view of the above discussion, this Court finds no grounds to interfere with the findings of the fact recorded by the Courts below. Hence, this second appeal is liable to be dismissed. 37. In the result, this second appeal is dismissed at the stage of admission. However, no costs. 38. as a sequel, pending miscellaneous petitions, if any, shall stand closed.