Skip to content


Rajkumar Sanahal Singh and ors. Vs. R.K. Khutasana Singh and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 2 of 1981
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 39, Rule 2
AppellantRajkumar Sanahal Singh and ors.
RespondentR.K. Khutasana Singh and ors.
Appellant AdvocateT. Bhubon Singh, Adv.
Respondent AdvocateA. Nilamani Singh, Adv.
DispositionRevision dismissed
Excerpt:
.....been satisfied injunction was refused. 11. in the instant case, in determining the question whether the plaintiffs will suffer irreparable injury if injunction is refused by the court, in my opinion, the court must apply its mind to several aspects of the injury complained by him, one of which is apparently loss of status. this court refused to interfere with the order of injunction passed by the courts below on the ground that the petitioner had failed to show that it will cause him irreparable injury if the impugned order was allowed to stand. the proviso mandates the high court to bear in mind the injunction that it shall not vary or reverse any order made except when it is found, inter alia, that if allowed to stand it would occasion a failure of justice or cause irreparable..........and thus the court came to the finding that these material facts were suppressed by the plaintiffs-revisionists in their suit and accordingly they practised fraud on the court. therefore, both the courts below held that the plaintiffs had a prima facie case to go to trial.6. both courts also found that the balance of convenience was in favour of the plaintiffs because, according to them, plaintiff 1 had been managing the said properties and keeping the deity in his custody, which allegation was supported by the sworn affidavit. the further fact that weighed with the court in holding that the plaintiff 1 was. in management of the said properties was the finding that he was a lineal descendant of kirtidhaja and it would, therefore, be reasonable to presume to his having custody.....
Judgment:

T.N. Singh, J.

1. The revisionists in this Court are aggrieved by the order of interim injunction passed in a suit filed by the respondents. The respondents, in their suit, impugned the decree obtained by the revisionists in Civil Suit No. 27 of 1963, passed by the Subordinate Judge II, Manipur, which was finally affirmed by this Court and it is submitted that the Supreme Court also affirmed this Court's decision. The revisionists complain that though they were impleaded, according to the plaintiffs, as defendants 1 to 7, they were not described property. Because, in the decree obtained by them they were described in a different manner. Accordingly, they did not enter appearance in the suit, but they filed an application to be added as a party in the injunction proceedings and the prayer was accepted and they were accordingly impleaded therein and heard.

2. The plaintiffs' case, in short, is that the revisionists had obtained the decree by practising fraud on the Court and by not impleading them therein and the said decree was not, therefore, binding on the plaintiffs. By the impugned decree, the revisionists obtained the declaration that they were Shebaits of the deity Gopinath and they had the right to worship the deity and to manage its property to the exclusion of the defendants. They founded their right to Shebaitship on the allegation that they were lineal descendants of late Maharajah Bheigyachandra through his son Kirtidhaja and that the deity Gopinath was given to their ancestor Kirtidhaja for worship by the late Maharajah. Plaintiff 1 claimed to be a 'Piba' or Head of the ruling clan of Pukhrambam of Ningthoukhong and as such he was the chief Shebait/Manager of the deity Gopinath being the lineal descendant of Kirtidhaja. The particulars of fraud stated in the plaint and summed up by the trial Court are as follows:

'1) That they falsely set up in their aforesaid suit that Kirtidhaja was the son of Bhagya Chandra alias Karta Maharaja of Manipur, and that the former's mother Kishori was a Rani and wife of the said Maharaja, by suppressing the fact that Kishori alias Keshori was the wife of Desraj who was only a follower of the Maharaj and that Kirtidhwaja was the very son of Desraj;

2) That they falsely claimed to be the male lineal descendants of Kirtidhwaja through Samusana alias Rudra, by suppressing the fact that Rudra whose real alias names were Samuphaba or Samuyaima was the son of Pukhrambam Brindaban, son of Pukhrambam Kabi, who were subject of Ningthou or Chief of Ningthoukhong;

3) That these defendants falsely asserted that they and their forefathers in their lifetime have been successively in possession, custody and management of the Deity Gopinath and its Debutter properties, and they used to assume direct management of those properties sometimes to appoint managers/shebaits for management thereof, by suppressing the fact that they were never in such possession, custody and management and the plaintiff 1 assisted by his clan brotherhood has been in such possession, custody and management.'

The plaintiff further alleged that the revisionists threatened to forcibly remove plaintiff 1 from the management of the deity and its affairs. The plaintiffs came to know about the decree obtained by them when the revisionists levied execution thereof. The plaintiff claimed that they had the right to retain custody of the idol and manage its property and if the plaintiff No. 1 was removed from his office as head of the clan and Shebait of the idol, the plaintiffs shall suffer irreparable injury.

3. In the said suit, an application was filed by the plaintiffs for temporary injunction and in support of the application, plaintiff 1 filed an affidavit in support of the case made out in the plaint. In the course of hearing, 42 documents which the plaintiff filed in support of their case and also two printed books of the historical importance having a bearing on the subject-matter of dispute were also filed and relied on. The books placed before the trial Court by the plaintiffs in support of their case were :

(1) Chada Lahui by Khelchandra Singh and (2) Chingthangkhomba Maharaj Ganga Chatpa by Rajkumar Sanahal Singh. The trial Court accepted the authorities as reliable historical works and relied thereon.

4. While contesting the injunction proceedings as caveator, the revisionists put in a joint written statement, wherein they described themselves as Rajkumars by prefixing 'R. K.' with their names. In this revision also, the learned counsel for the revisionists have strongly urged that they were not described as Rajkumars when they were impleaded as defendants in the suit and, therefore, their identity could not be established. In the Courts below and also before me one of the grievances of the revisionists was that injunction could not be issued against fictitious person or persons who

were not added as defendants. It was also submitted that the decree which was impugned in the suit, described them as Rajkumars and, therefore, the suit was not in form and the decree could not be challenged without impleading them by the proper description. The revisionists, in their objection, also contended that particulars of the alleged fraud were not mentioned and they denied that they obtained the decree by practising fraud. Besides, they contended that the suit was barred by the principle of res judicata. They also filed documents in support of their case.

5. The trial Court, in considering the prayer for injunction, formulated for decision three points, which indeed corresponds to the accepted test to be adopted by Courts in such cases. All the three points were answered in favour of the plaintiffs. In answering the first point, the Court addressed itself to the most pertinent question, whether the plaintiffs had established a prima facie case to go to trial. In this connection, he considered a Full Bench decision of this Court, reported in AIR 1978 Gau 56, wherein it was held that a decree alleged to have been obtained by fraud is an 'injury' within the meaning of Rule 2 of Order 39 and in appropriate cases an injunction may issue to restrain execution thereof. He then considered the particulars of fraud set out in the plaint and rightly, in my opinion, observed as also admitted in this Court by counsel of both sides, that the properties belonged to the deity Gopinath and further that late Maharaja Bheigyachandra gave the deity to Kirtidhaja. The only question, therefore, which fell for decision was, whether the plaintiffs were the descendants of Kirtidhaja as claimed by them. In this connection, the Courts considered the plaintiffs' case that Kirtidhaja was not the son of Maharajah Bheigyachandra which he found supported by the authorities referred to above. The Courts also considered certain Jamabandis which supported the plaintiffs that they were descendants of Kirtidhaja. Although those Jamabandis did not relate to the suit land, according to the Courts below the Jamabandis, as indeed also the historical authorities, supported the genealogy which the plaintiffs have pleaded. The Courts also considered the fact that the revisionists, as plaintiffs in the aforesaid suit No. 27 of 1963, had pleaded that Kirtidhaja was the son of Maharajah Bheigyachandra through his Maharani Keshori, while from the materials placed before him the Courts were convinced that the said

Maharani Keshori was, in fact, wife of not Maharajah Bheigyachandra but of Dasaraj,, who was merely a follower of Maharajah Bheigyachandra and thus the Court came to the finding that these material facts were suppressed by the plaintiffs-revisionists in their suit and accordingly they practised fraud on the Court. Therefore, both the Courts below held that the plaintiffs had a prima facie case to go to trial.

6. Both Courts also found that the balance of convenience was in favour of the plaintiffs because, according to them, plaintiff 1 had been managing the said properties and keeping the deity in his custody, which allegation was supported by the sworn affidavit. The further fact that weighed with the Court in holding that the plaintiff 1 was. in management of the said properties was the finding that he was a lineal descendant of Kirtidhaja and it would, therefore, be reasonable to presume to his having custody of the deity and also managing the properties owned by the deity. They held that it was not the caveator-objectors' case that they were ever in possession of the said properties and the balance of convenience was, therefore, in favour of the plaintiffs to allow them to be in possession thereof and removal of the plaintiffs from the management of the properties will result in irreparable loss to them.

7. Faced with the concurrent findings of the two Courts below, learned counsel for the revisionists Mr. T. Bhubon Singh has, in the first place, argued forcefully that both Courts having failed to exercise their discretion judicially in granting injunction, which indeed was a discretionary remedy, their order was null and void in law. His first submission is that there was no fraud which could be attributed to the revisionists and that what were alleged as particulars of fraud were mere false statements attributed to them and a decree obtained on mere false statements could not be said to be a fraudulent decree. In support of this submission he has relied on the decision in AIR 1969 Mad 462, Weavers Mills v. Balkis Ammal, wherein a dictum of the English Chancery Court was relied on at page 467. The distinction between false statements and fraud as projected in the said dictum was relied on by Mr. T. Bhuban Singh. However, when and how a decree tainted by fraud can be set aside does not appear to have been

dealt with in the dictum relied on. On the other hand, in AIR 1956 SC 593, Nagubai v. Shama Rao, the test has been pithily stated. Their Lordships observed that when a proceeding is alleged to be fraudulent, it meant that the claim made therein is untrue and that the claimant has managed to obtain the verdict of the Court in his favour and against his opponent by practising fraud on the Court. Therefore, not the statement but the claim is the vice of a fraudulent decree which vitiates the decree obtained as a result of the claim being accepted. In the instant case, this test, according to me, is fully satisfied. Because, an untrue claim was made in their suit by the revisionists and on the basis of which they obtained a verdict from the Court in their favour which injured the plaintiffs. That apart, I do not think, Mr. T. Bhubon Singh's contention that plaintiffs' prima facie case was wrongly accepted by the Courts below, should be accepted on one another ground. Because, this Court's Full Bench decision referred to above shows that it is not only in cases of fraud or collusion that a decree can be assailed. A person who was not party to a suit may also assail the decree that it is not binding on him and execution of the decree may amount to 'injury' against which the relief of temporary injunction can be granted by the Court under Order 39 Rule 2 C.P.C.

8. The next submission of Mr. T. Bhubon Singh, to which I have already referred at the outset, is also meritless, according to me. Identity of the parties, as claimed by him in so far as the revisionists are concerned, in my opinion, cannot be an issue in the proceeding before me. Both the Courts below have held in this connection against the revisionists and indeed I am also of the same opinion that the grievance is devoid of substance. I say so because the objection, according to me, is merely technical. The objection appears to me to have been by the revisionists as a matter of abundant caution to protect their interest as they appear to be smarting under the belief or impression that it will be an admission on their part of plaintiff's claim, if they contested the suit without being described as 'Rajkumars.' Their identity indeed is fixed by their place of residence and by their parentage, which is duly considered by the Courts below. However, one aspect of the matter needs consideration. It is that the application of the

revisionists to be added defendants in the suit in proper manner, namely, with description added to their names as Rajkumars, has yet to be disposed of by the Courts below. It is submitted by Mr. A. Nilmani Singh on behalf of the respondents that this application was filed in the suit on 14-5-80, only two days before the impugned order was pronounced on 17-5-80, by the trial Court and, therefore, even this grievance is pre-mature. Be that as it may, I am convinced that on this ground can it be said that the plaintiffs have failed to prove their case inasmuch as the finding on this point by the Courts below is unassailable for reasons alluded.

9. The third and the most important point urged by Mr. T. Bhubon Singh is that the findings of the Courts below in so far as the question of balance of convenience and the irreparable injury concerned, are perverse inasmuch as the same are based on no material. Besides, contends Mr. T. Bhubon Singh, the Court had not applied the correct principle of law in determining the balance of convenience. He has cited in this connection a large number of decisions. Before dealing therewith, I would like to first make it clear that in my opinion, the findings as impugned cannot be said to be baseless. The findings are indeed based on admitted facts and not only on the affidavit filed by plaintiff 1. Because, one of the admitted facts is that the revisionists were not in possession of the suit land and they did not have the custody of the deity which they proposed to secure by execution of the decree. That apart, Mr. T. Bhubon Singh has submitted that the revisionists' own case in their suit was that a portion of the property of the deity was alienated by persons who have been impleaded in the present suit as pro forma-defendants. Indeed, these are none other than the clan members of the plaintiffs. In the present suit also, they have been made parties by the plaintiffs and alienation of the property of the deity has also been challenged in the present suit.

10. It is, however, true that there was no material before the Courts below except perhaps the affidavit of the plaintiff 1 that he had either custody of the deity or he was managing the properties of the deity. This fact, in my opinion, would not render invalid the findings of the Courts on the question of balance of convenience. Because, the term or concept itself signifies the Court weighs or balances the conveniences of both sides and,

therefore, it considered the case of both sides and weighed their relative merit. This appears to me to be the settled-law and this is so held also in a recent decision of their Lordships of the Supreme Court in Gangubai Babla Chaudhury's case, (1983) 4 SCC 31 : (AIR 1983 SC 742). The High Court in appeal confirmed the decision of a single Judge and refused the relief of temporary injunction, which was granted by the Supreme Court, upon holding as below (at p. 743) :

'When an interim injunction is sought, the Court may have to examine whether the party seeking the assistance of the Court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed?'

Then, their Lordships proceeded to hold, after considering the case of both sides, that if injunction is granted as prayed for, the respondents were not likely to be inconvenienced and if it was not granted the situation may become irreversible by the time the dispute is decided which will preclude fair and just decision in the matter. Mr. T. Bhubon Singh has relied on the decision reported in AIR 1962 SC 527. In that case, the Court observed that temporary injunction can be issued by the Court in exercise of inherent power under Section 151 C.P.C. in the circumstances which ate not covered by Order 39. It was further held in that case that the question of issuing to a party restraining him from proceeding with any other suit in a regularly constituted Court of law deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice. In the instant case, however, injunction is applied for and granted not under Section 151 but under Order 39, Rule 2 and in the instant case it is not a dispute inter partes but it is a case wherein the plaintiffs alleged, and admittedly, were not parties in the earlier suit. This decision, in my opinion, does not support Mr. T. Bhubon Singh's contention. In AIR 1963 P.unj 104, the Court held that the balance of convenience on the side of the defendant because the plaintiff, who was prematurely retired could be compensated in terms of damages, while the defendant did not have any ex post facto remedy. This case merely exemplified the position that it is the nature of injury which determined the question of balance of convenience and we have therefore to consider, no doubt, the nature of the injury

complained in this case, which, in my opinion, tilts the balance in plaintiffs' favour. The decision in Bhagalpur Rolling Mills v. Bhagalpur Electric supply Co. Ltd., AIR 1974 Pat 269, merely states that temporary injunction cannot issue in the absence of prima facie case and/or balance of convenience, which principle is indeed indisputable. The Court found on the facts of the case, the balance of convenience was in favour of the defendant-appellant and, therefore, the Court below was not justified in granting injunction. In AIR 1979 Orissa 76, Ghanashyam v. Muralidhar, the Court observed, and indeed rightly, as is accepted law according to me, in considering the question of balance of convenience, the Court has to consider the comparative mischief or inconvenience of both the parties. In AIR 1975 Andh Pra 187, Barkat Ali v. Zulfiquar, the three determinant's of the principle concerning issue of temporary injunction are merely stated and it is observed that at least two of the conditions should be satisfied by the petitioners conjunctively on the facts of the case, and none of the conditions having been satisfied injunction was refused. In AIR 1974 All 471, (Nanak Chand v. Union of India), it is of course held that the question of balance of convenience is not merely dependent upon a comparison of the convenience of the parties and the plaintiff who wants an order of injunction will further have to satisfy the Court that he will suffer irreparable harm if the injunction is not issued. This principle is also indisputable.

11. In the instant case, in determining the question whether the plaintiffs will suffer irreparable injury if injunction is refused by the Court, in my opinion, the Court must apply its mind to several aspects of the injury complained by him, one of which is apparently loss of status. The plaintiffs' case is that he is 'Piba' or Head of his clan and if injunction is not granted and if the decree is executed his status will be in jeopardy. Because, he claims, it is in virtue of the status as 'Piba' of the clan that he is in custody of the deity and is managing its property. There can be no acceptable argument to dispute the position that loss of the status, in such circumstances can never be compensated in terms of money. It cannot, therefore, be said that in the instant case the Courts below were wrong in holding that plaintiffs will suffer irreparable injury if injunction was refused though, in coming to

the said conclusion they held that the plaintiffs being in management of the property, it would so happen. That also, indeed, is a cogent reason and the findings, therefore, arrived at by the Courts below are not findings to be called perverse on that ground. As I have already observed that the Courts below adopted the right principle in determining the principle of balance of convenience by comparing the relative merit of the cases of both sides that on the one hand the revisionists are the persons, who were out of possession and there was no question of their suffering any irreparable injury or inconvenience if the injunction was granted and on the other hand it is admitted that pro forma-defendants were in possession of the said properties; and indeed, they did not in specific term contest in their objection the statement made by the plaintiffs in the injunction petition that they were in management of the said properties.

12. However, Mr. A. Nilamani Singh, the learned counsel for the respondents, further submits that this Court in exercising its powers under Section 115 C.P.C. shall not interfere with the impugned order which is based on concurrent findings as to comparative hardship of the parties as the findings are neither perverse nor erroneous. In support of his contention, he has cited a decision reported in AIR 1981 SC 1690, Bhaichand v. Laxmishanker, wherein their Lordships cautioned the High Court in this regard, as submitted by the learned counsel. Indeed, this position is statutorily recognised now adding weight to the judicial verdict and this Court in the decision reported in AIR 1983 Gau 88, Jamini Mohan v. Santosh Kumar, took note of this legal position by referring to and relying on newly added proviso to S, 115 C.P.C. This Court refused to interfere with the order of injunction passed by the Courts below on the ground that the petitioner had failed to show that it will cause him irreparable injury if the impugned order was allowed to stand. The proviso mandates the High Court to bear in mind the injunction that it shall not vary or reverse any order made except when it is found, inter alia, that if allowed to stand it would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

13. Mr. T. Bhubon Singh has referred to two decisions of this Court, wherein this Court had held that if the discretion to grant

injunction was not exercised judicially it shall be open to the High Court to interfere in revision. But, I do not consider it necessary to discuss those for the simple reason that I have found the discretion exercised by the Courts below in the instant case to be meticulously conforming to the established principles of law.

14. In the result, I find, this petition does not merit interference by this Court and accordingly I uphold the impugned order. However, on the facts and circumstances of the case, I leave the parties to bear their own costs.

15. Before parting with records of this case, it is necessary to take care of one of the grievances of the revisionists to which I have already referred above. Their application for being added as defendants in the suit, which is still pending decision, must be decided expeditiously and in doing so the Court shall see that their rights are protected in such manner as may leave no case for any grievance.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //