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A. Chinnaraja Vs. N.S. Subbaiyah and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1998)2MLJ370
AppellantA. Chinnaraja
RespondentN.S. Subbaiyah and anr.
Cases ReferredSri Suryanarayana Paper and Boards (P) Ltd. and Ors. v. V. Padmakumar and Ors.
Excerpt:
- orders.s. subramani, j.1. this revision under article 227 of the constitution of india, is filed by the first defendant in o.s. no. 100 of 1997, on the file of sub court, palani. two plaintiffs, who are respondents herein, filed the said suit, to direct the first defendant to surrender possession of the property to the plaintiffs, and directing him to pay a sum of rs. 3,000 being the value of firewood and seized timber to the plaintiffs, with interest at 18% per annum from date of suit till payment, and also to direct an enquiry into the past and future mesne profits under order 20, rule 12, c.p.c, and to grant permanent injunction restraining the first defendant and his man from putting up any further construction in the suit property, and also award costs of the suit, and grant such.....
Judgment:
ORDER

S.S. Subramani, J.

1. This revision under Article 227 of the Constitution of India, is filed by the first defendant in O.S. No. 100 of 1997, on the file of Sub Court, Palani. Two plaintiffs, who are respondents herein, filed the said suit, to direct the first defendant to surrender possession of the property to the plaintiffs, and directing him to pay a sum of Rs. 3,000 being the value of firewood and seized timber to the plaintiffs, with interest at 18% per annum from date of suit till payment, and also to direct an enquiry into the past and future mesne profits under Order 20, Rule 12, C.P.C, and to grant permanent injunction restraining the first defendant and his man from putting up any further construction in the suit property, and also award costs of the suit, and grant such further reliefs.

2. Facts narrated in the plaint may briefly be stated thus :

First plaintiff is the son of late N.R.S. Ramasamy Chettiar. Between himself and his father, there was a partition on 22.5.1964. Plaint schedule property was one of the items allotted to his father late N.R.S. Ramasamy Chettiar. It is not disputed that pursuant to the partition, Ramasami Chettiar had obtained absolute right and exclusive right over the same. It is seen that Ramasami Chettiar executed a Will on 30.1.1980, bequeathing all his properties to the second plaintiff herein, who is also the son of the first plaintiff. There was difference of opinion between first plaintiff and his father. The Will was cancelled. The; father also began to deal with the property and sold the plaint schedule item to a third person. There was a suit filed by the very same first plaintiff as O.S. No. 183 of 1988, on the file of Subordinate Judge, Periakulam. That suit was to restrain the late father, by a permanent prohibitory injunction from alienating or dealing with the properties retained by him and also from interfering with the possession of those properties by the first plaintiff herein. In that suit, the plaint property was not an item. In that suit, it was further stated that the father has already executed a sale deed, in favour of a stranger, and the first plaintiff reserves his right to have the same impeached in appropriate proceedings. In that plaint, the first plaintiff herein also referred to a family arrangement dated 19.1.1987 and the allegation was that the father is alienating the properties violating the terms of the family arrangement.

3. A detailed counter affidavit was filed by the father in that suit, wherein he admitted the execution of the family arrangement of 1987 and the circumstances under which he revoked the Will already executed by him. He also contended that he continued to be the absolute owner of all the properties obtained by him under the 1964 document, and the so called family arrangement never came into effect, and it is an unregistered deed. He also denied having received any amount from the first plaintiff, but contended that certain documents were fabricated by the first plaintiff, exploiting his weakness and old age. He also alleged that he is residing away from the first plaintiff's house and the first plaintiff was also not maintaining him ever since the date of the socalled family arrangement. He also said that all the properties excepting one that has been sold by him continues in his possession.

4. The suit was not prosecuted further since there was a compromise. As per the terms of the compromise, first plaintiff declared that his father is the absolute owner of all the properties scheduled to that plaint, and his father who is now more than 80, is not in a position to manage the same and, therefore, those properties are entrusted to the first plaintiff so that out of the income, first plaintiff should maintain his parents. Certain amounts were also directed to be paid annually. He also declared that those properties will ultimately go to his grandson, who is the second plaintiff herein. The father also agreed that he will not alienate the properties. A compromise decree was passed on 11.3.1992.

5. Subsequently the father died. The present suit is filed by two plaintiffs in regard to the property which was not the subject-matter of the earlier litigation, and which was already alienated by the father. The contention of the plaintiffs is that they came into possession on the basis of the family arrangement entered into on 19.11.987. The first defendant, who is a neighbour, was attempting to knock off all the property by some hook or crook, and with that intention, trespassed into the same and wanted to put up construction.

6. Along with the suit, plaintiffs also moved I.A. No. 303 of 1997 to restrain the first defendant herein from putting up any construction in the plaint schedule property. The property was described as vacant land, and in the affidavit filed in support of the injunction application, it was stated that the first defendant is going to construct a building, and if the same is allowed, plaintiffs will be put to hardship. It was also stated that the first defendant trespassed into the property on 23.7.1988 and he is a person without any title. An ad interim injunction was granted by the lower court restraining the first defendant from putting up an construction in the suit property.

7. It will not be out of place to state that the suit was filed before the Vacation Civil Judge, Dindigul. At that time, the suit was numbered as O.S. No. 28 of 1997, and the Injunction Application was numbered as I.A. No. 35 of 1997. Subsequently, it was transferred to Sub Court, Palni, where the suit was renumbered as O.S. No. 100 of 1997 and the I.A. was renumbered as I.A. No. 303 of 1997.

8. First defendant entered appearance and filed a counter immediately after the case was transferred to Palani Court. The interim order is dated 21.5.1997. After the receipt of notice, first defendant entered appearance and the case was posted to 12.6.1997 on which date he entered appearance and also filed a counter. An application was filed by the plaintiffs for having the injunction extended, which was also granted till 4.9.1997. On 4.9.1997, the lower court endorsed that counter has already been filed, but the matter was adjourned for enquiry and disposal. It was being adjourned from time to time for one reason or other. In the meanwhile, first defendant filed an application for appointment of a Commissioner to verify as to what is the state of construction. In view of the pendency of that application, the interim injunction was also being extended from time to time. First defendant also filed his written statement on 19.9.1997, and along with the same, first defendant also filed all the documents and also photographs which were taken months back, to prove the stage of construction. In between, there was a police complaint filed by the first defendant against the plaintiffs. Plaintiffs also moved for contempt against the first defendant for alleged violation of the injunction order. At any rate, the ad interim injunction which was granted in May, 1997 was in force till the civil revision petition was filed. Various attempts made by the petitioner to have the same vacated, failed. It is under these circumstances, first defendant came to this Court with a grievance and filed this revision under Article 227 of the Constitution of India.

9. In the counter-affidavit, to the injunction application, it was stated by the petitioner that the first plaintiff's late father who was admittedly having absolute title over the property, alienated the same for valuable consideration and from the purchaser, he has taken the document in 1988, and eversince that date, he is in exclusive possession. An absolute owner having alienated the property, without setting aside the same, relief for recovery of possession cannot be granted. It was further alleged that long before the institution of the suit, he has made arrangements for construction of the building. The ground floor and first floor of the building have already been constructed, and the plastering alone is required to be done, and, if at this stage, he is restrained from proceeding further with the construction, he will be put to irreparable loss. The allegation of trespass by the plaintiff was also denied. It was further contended both in the counter as well as in the written statement that the plaintiffs have no prima facie case. The balance of convenience and the irreparable loss are only with the petitioner, if the injunction is allowed to continue. At any rate, since he is in possession from 1988, and has already progressed with the construction, the same cannot be restrained in a simple suit for recovery.

10. At the time when the matter came for admission, on 23.12.1997, I ordered notice of motion, and the ad interim injunction granted by the lower court was suspended till 5.2.1998. After the respondents entered appearance, they wanted the status quo to be maintained and, therefore, I gave a direction on 29.1.1998 that status quo as on that date will be maintained till the disposal of the revision.

11.1 heard learned Counsel appearing for both parties, in detail, and in fact, both of them argued the Injunction Application itself, and they did not confine their arguments to the scope of ad interim in-j unction. Though under Article 227 of the Constitution of India, ordinarily I need only consider the legality of the impugned order, when both the learned Counsel argued the entire injunction application itself, and when they have produced copies of various documents on which they placed reliance, it will be improper on my part if I do not consider the application on merits. At this stage. I may further make it clear that I am expressing only a prima facie opinion on the basis of the materials available before me, and I further make it clear that the conclusion arrived at by me for this injunction matter is only tentative, and the lower court is bound to take into consideration the merits of the case, untrammelled by any of the findings entered by me, for the purpose of granting or negativing the relief of injunction. The lower Court shall not get itself influenced by these tentative findings. My scope of enquiry is only under Order 39, Rule 1, C.P.C., and not beyond that. I may also add that both the learned Counsel wanted the injunction application itself to be disposed of.

12. A preliminary objection was raised by learned Counsel for the respondents that the petitioner herein is not entitled to be heard unless he purges himself from the contempt for which proceedings have been initiated against him. He also contended that when the petitioner comes before court with a revision under Article 227 of the Constitution, his conduct also requires consideration, and in this case, violating, the order of injunction he has proceeded with the construction, and that is an important point which this Court should take note of, to refuse to exercise the discretionary power under Article 227.

13. I do not think the preliminary objection raised by the respondents is correct. The case put forward by the petitioner herein is that long before the institution of the suit, he has made preparation for the construction. The construction of the ground floor as well as the first floor are over. They are at the finishing stage. Second floor is yet to be constructed, and it is at this stage, the ad interim injunction was granted. It is further stated that in the suit, the schedule of property is described as a vacant land, which is apparently a false case. Plaintiffs, who are residing closely, were well aware of the construction, even months before the suit was instituted. He also contended that before the court below, all the photographs taken on 25.4.1997 were produced, to show the construction as on that date. It was nearly a month thereafter, the suit was instituted. The construction proceeded beyond what is seen in the photographs, dated 25.4.1997. The further contention is that if only these things had been brought to the notice of the lower court regarding the actual state of affairs, the lower court would not have granted the interim order of injunction. He also said that after the interim injunction order was obtained, he never proceeded with the construction, and the construction proceeded only after I suspended the order on 23.12.1997. It is also stated that when status quo was ordered to be maintained as on 23.12.1997, the construction was not proceeded. To prove the bona fides of the said contention, learned Counsel also relied on his conduct, namely, that immediately after the counter affidavit, to substantiate his conduct regarding the stage of construction, he wanted the issuance of a Commission which was tooth and nail opposed by the respondents herein. The lower court did not pass any order on the same. In the meanwhile, contempt application was also moved by the respondents. It is, therefore, contended by him that he has not come to court for any relief, but only to have the ad interim injunction vacated. The question of purging himself from any contempt also, therefore, does not arise. His conduct is beyond any criticism. It is the plaintiffs who have come forward with a false case by playing fraud on court. The court was made to believe that construction was made, and this prompted the lower court to grant the interim order.

14. At this stage, I may say that there is no evidence in this case to show that after the injunction order was obtained, the petitioner proceeded with the construction, violating that order. Attempt was made by petitioner to show the stage of construction, and also to show that there was no change after the injunction order. But he was prevented from doing so. At least, the respondents could have proved it by acceptable evidence.

15. Mere allegation of contempt is not sufficient to hold that the petitioner herein has violated the order and proceeded with the construction. In this connection, the decisions of this Court and also other High Courts will be of some importance.

16. In Palaniappa Chetty v. Raman Chetty and Ors. : AIR1929Mad672 , this Court held thus : .What happened thereon does not appear from the report. The other case relied on is Gordon v. Gordon, 20 T.L.R. 272, in the circumstances of that case it was held that the party in contempt could be heard. In the course of the judgment, Vaughan Williams, L.J. thus observed :

Taking it generally it has not been disputed in the discussion before us that this rule, that a person who is in contempt cannot be heard, prima facie applies to voluntary applications on his part when lie comes and asks for something, and not to cases in which all that he is seeking is to be heard in respect of matters of defence. This observation is entirely applicable to the facts of this case. The petitioner wishes to be heard in prosecution of his own appeal, that is to obtain a decree in accordance with the relief sought in his plaint. It is clearly different from the facts of Gordon v. Gordon, where the order had been passed against the defendant with regard to payment of a sum of money and that the defendant was allowed to be heard against such an order. This being so, it is clear that the petitioner until he purged his contempt could not be heard in prosecution of his appeal.

In that judgment, their Lordships had made reference to a decision in Gordon v. Gordon and Gordon, 20 T.L.R. 272. wherein also similar question came for consideration. The relevant portion reads thus :

(Learned Judge), after referring to the act of contempt as stated in the affidavit of Sir George Lewis, said that the question was whether the preliminary objection ought to prevail. In this opinion, it ought not. Many cases had been cited, but he did not think it necessary to go through them. There were some general principles which applied to the case. Speaking generally, it was not disputed should not be heard prima facie applied to voluntary motions on his part-applicants when he was coming to ask for something - not when he was asking to be heard by way of defence. Not that every matter of defence entitled a person who was in contempt to be heard. If, for instance, an order had been made in the exercise of the discretion of the Court, and a person who was in contempt said that the court had exercised its discretion wrongly, he would not be heard until he had purged his contempt. But if there was an order as to which it was suggested that it might have been made without jurisdiction, and on looking at the order you could see that there was really the ground of the appeal, it seemed to his Lordship that such a case had always been treated as one in which the court would entertain the objection, even though the person who made it was in contempt. It was admitted that if the order complained of was the very one which had created the contempt, and the objection to it was of the character to which His Lordship had referred, the fact that the person who was objecting was in contempt would not prevent his being heard. Here, according to the respondent's own evidence, the contempt was committed before the order appealed from was made. The simple question for decision was this - an order was made the objection to which was not one which depended on an exercise of the discretion of the court. It was said that it was unlawful to make such an order as to the separate property of a married woman which was subject to a restraint on anticipation, and it was said, on the other hand, that the court ought not to hear this objection because the appellant was in contempt. The nature of the objection being that the order was illegal, His Lordship thought here was no rule which prevented the appellant from being heard. If the order was in fact illegal, and the court were to refuse to hear the appeal, His Lordship did not think there would be any opportunity of questioning the order hereafter. It would not be fight for the court to allow the order to continue in force without first determining the question of its legality.

17. In Dr. Madan Gopal Gupta v. The Agra University and Ors. : AIR1974All39 and S.S. Roy v. Damodar Valley Corporation and Ors. : AIR1974Cal69 , this question was considered in detail. In the Allahabad decision, it was held thus :

The above authorities make it amply clear that the drastic step of striking out the defence, and detail of hearing to a party in contempt is an extreme penalty which is enforced only in those cases where an act of a party in contempt impedes the course of justice or that justice in the case cannot be done without compliance of the court's Order, but the party in contempt is entitled to challenge the validity of the order and the jurisdiction of the court passing the order itself. The party in contempt may not be entitled to take advantage of its own action in the same cause without purging the contempt but such a party is entitled to defend itself. There is considerable difference in the right of a party in contempt for bringing an action into court of law, and his right to defend himself before the Court. In former case, the party in contempt is not entitled to bring an action before a court of law or to take advantage of its contemptuous act in the same case or proceeding but in the latter case such a party is entitled to defend itself and to question the jurisdiction of the court passing the order in respect of which contempt may have been committed....

18. In the second decision referred to supra, the Calcutta High Court has taken the following view :

The point raised is undoubtedly of an old vintage, coming down the corridor of time and going back many centuries in our law. It is undoubtedly true that at one stage there was some cloud raised over the point at issue, but by and large the same has been removed by the principles laid down by the various authorities and the imprimature of judicial decisions. It is pertinent therefore to refer to the backdrop against which this principles arises. That a party in contempt will not be heard was never a rule of the common law, but as was observed by Lord Justice Law, which was adopted by the ecclesiastical court and the Chancery Courts.' This history of the rule in Chancery, as it appears from Beam's Orders in Chancery page 35, shows that it originated in the 78th Ordinance of Lord Bacon of 1618. It laid down that 'they that are in contempt are not to be heard, neither in that suit nor any other, except the court of special grace suspend the contempt'. It also appears from Gilbert on Forum Romanum 102 that Lord Chief Baron Gilbert laid it down as a general rule that 'the contemner, who is in contempt, is never to be heard by motion or otherwise till he has cleared his contempt and paid the costs.' The Ordinance of Lord Bacon though used for enforcing orders in Chancery was never applied unless the contempt had been established by the issue of a writ of attachment or an order for committal. It is only then that the party became a party in contempt and the Court would not hear him. The said ordinance however and the limitations referred to above were found to be capable of working great injustice and as was observed by Lords Justice Denning in (1952)2 All E.R. 567 'in the course of practice, it came to be much restricted in scope. It was confined to cases where a party in contempt, i.e., a party against whom a writ of attachment had been issued or an order of committal had been made, came forward voluntarily and ask for an indulgence in the same suit. It was no indulgence for a plaintiff to bring his cause to a hearing or for a defendant to defend himself. Even if he was in contempt therefore, he was allowed to be heard unless an order had been made staying the proceedings.' It is pertinent in this context to refer to Daniel's 'Chancery Practice' (7th Edn, Vol. 1) page 725 that

A party in contempt for non-obedience to an order in one cause will not be thereby prevented from making an application to the court in another cause relating to a distinct matter, although the party to such other cause may be the same.' In the case of Taylor v. Taylor (1849)1 M& G. 397 : 41 E.R. 1318. It was observed that 'the circumstances of the plaintiff being out of the jurisdiction and in contempt for non-compliance with the decree made, did not prevent his filing the bill in question'. The observation of Lord Cottenham, L.C. were approved of, again and again in a series of cases. It has been stated in Halsbury's Laws of England' (3rd Edn.) Vol. 8, Section 4, Paragraph 73 that 'probably the true rule is that the party in contempt will not be heard only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing the obedience. 'Lord Justice Denning also observed ultimately after discussing the history of the principle in (1952) 2 All E.R. 567, already referred to above that

applying this principle, I am of opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard but if his disobedience is such that so long as it continues, it impedes the course of justice for the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make then the Court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.I respectfully agree with the said view and hold that the proposition made by Mrs. Bhattacharya stands qualified as above.

19. In Halsbury's Laws of England - Fourth Edition - Volume 9, dealing with Contempt of Court, it is stated (in para 106) thus :

Position of party in contempt. The general rule is that a party in contempt, that is a party against whom an order for committal has been made, cannot be heard or take proceedings in the same cause until he has purged his contempt; nor while he is in contempt can be heard to appeal from any order made in the cause; but this is subject to exceptions. Thus a party in contempt may apply to purge the contempt, he may appeal with a view to setting aside the order in which is contempt is founded, and in some cases he may be entitled to defend himself when some application is subsequently made against him. A plaintiff in contempt has been allowed to prosecute his action when the defendant had not applied to stay the proceedings.

Even in cases where the rule is prima facie applicable, the court appears to retain a discretion whether or not to hear the party in contempt, and may in its discretion refuse to hear a party only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing his obedience.

20. From the above decisions, it is clear that the preliminary objection raised by the respondents cannot be accepted. That apart, there is also a discretion which the court has to exercise, to decide whether a party in contempt should be heard or not, and may, in its discretion, refuse to hear a party only on those occasions when his contempt impedes the course of justice. [Italics supplied]

21.1 do not think the petitioner is to be condemned on the basis of this allegation alone without any proof. To refuse to hear a party merely on the basis on the basis of the allegation of contempt or disobedience of court is not proper. There must be clear and cogent evidence that the party has violated the Order. Learned counsel for the respondents was not successful in placing any material regarding the same except for production of certain photographs which were taken subsequent to my order where I suspended the interim order.

22. Now that the preliminary objection is overruled, the question that requires consideration is, whether the respondents herein are entitled to get an injunction. In this connection, it may also be noted that what is the nature of the order that was passed by the lower Court. It is an one sentence order : 'Heard. Ad interim injunction Notice.

23. In Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors. : [1993]3SCR522 , in para 30 of the judgment, Their Lordships considered the circumstances under which a temporary injunction could be granted It was held thus : .Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles - ex debito justified. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.

Paragraphs 32 to 35 of that judgment read thus :

Power to grant injunction is an extra-ordinary power vested in the court to be exercised taking into consideration the facts and circumstances of a particular case. The Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that 'where it is proposed to grant an injunction without giving notice of the application to the opposite-party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay.' It has come to our notice that in spite of the aforesaid statutory requirement, the courts have been passing orders of injunction before issuance of notice or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance pan be made by the other side that court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.

The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said 'the court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite-party.' The proviso was introduced to provide a condition, where court proposes to grant an injunction without giving notice of the application to the opposite-party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the court 'shall record the reasons' why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions, it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effects, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplus age for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known case of Taylor v. Taylor, 41 E.R. 1318 and Nazir Ahmed v. Emperor. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Land Act in the case of Ramachandra Keshav Adke v. Govind Joti Chavare.

As such whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed.

[Italics supplied]

The decision was followed in Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 . In para 36, the principles under which an ex parte order of injunction could be granted were laid down, and the Guidelines were also given. That para reads thus :

As a principle, ex parte injunction could be granted only under exceptional circumstances, the factors which should weigh with the court in the grant of ex parte injunction are :

(a) whether irreparable or serious mischief will ensue to the plaintiff;

(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;

(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;

(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

(f) even if granted, the ex parte injunction would be for a limited period of time.

(g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court.

24. Our High Court also had occasion to consider a similar question which is reported in Sri Suryanarayana Paper and Boards (P) Ltd. and Ors. v. V. Padmakumar and Ors. (1995) 2 L. W. 266. wherein a similar view was taken by M. Srinivasan, J., as he then was. It may be stated that the Order impugned in that case was also similarly worded. If this is the legal position regarding the grant of ad interim injunction, it cannot be doubted that the Court below has violated the norms. That itself is sufficient to set aside the Order. In that judgment also, M. Srinivasan, J. (as he then was) has, after enunciating the principles, finally disposed of the interim application in that revision. On the basis of the said precedent, and also on the basis of the argument put forward by learned Counsel for both parties, regarding the merits of the injunction application, I am bound to consider whether there is any case made out for the grant of injunction.

25. Even from the allegations made in the plaint, it is clear that the plaintiffs are out of possession at least for nine years before the institution of suit. It is not disputed by the plaintiffs that the property was absolutely allotted to the first plaintiff's father as per the partition deed. The claim is based only on the socalled family arrangement, which is an unregistered deed. It was after the date of the socalled family arrangement, first plaintiff himself filed a suit before the Subordinate Judge's Court to restrain his father from alienating his properties, which were retained by him on that date. It may be mentioned that the plaint schedule property was not included in that suit since it was already alienated. Plaintiff reserved his rights so far as the alienated property was concerned. Thereafter, when the father filed the counter-affidavit, the matter was compromised. On a reading of that compromise, it is clear that the parties did not want to retain the terms and conditions of the socalled family settlement deed dated 19.1.1987. It is entirely a new arrangement that was effected in the compromise. Even in the compromise entered in the suit, the absolute right of the late father in regard to the properties which he retained, was recognised.

26. In the present plaint, in paragraphs 8 and 9, the circumstances under which the socalled arrangement dated 19.1.1987 came into existence are stated. It is said therein that prior to 19.1.1987, there was an arrangement, which was put down in writing in the nature of a memorandum. It is that memorandum the respondents claim as a family settlement. Photo copy of the same is also made available by the respondents. Learned counsel for petitioner herein doubted the genuineness of the document and also its validity. I do not want to enter any finding regarding the same at this stage, But one peculiar circumstances against the respondent is that the late father himself has disputed the validity of the socalled family arrangement, Though he has admitted that he has executed such an arrangement, it is his definite case that it was never acted upon, and he has not received even a pie as consideration, as stated therein, Even at that stage, late father has stated that certain terms have been introduced in that document, which were not originally available, and receipts have been prepared without payment, etc. In the subsequent compromise, after these allegations were made by the father, there is no statement about the memorandum of agreement dated 19.1.1987. When the genuineness was doubted by the late father himself, on the basis of that document alone, I do not think, plaintiffs can be granted an interim order. The document has to be proved in accordance with law.

27. Even if we consider it as genuine, I do not think that for the grant of injunction, the same is relevant. Even as per the socalled agreement, the title of late father is admitted, He wanted only his assets should go to his grandson on his death. Both the, first plaintiff and his father agreed that the property will not be alienated, But, how far such an agreement or contract is valid in law is doubtful. If the father was admittedly the title-holder till his death, and if he has already alienated the same during his lifetime, can the plaintiffs simply institute a suit for recovery without a prayer for setting aside the deed, Can the plaintiffs entertain a suit simply as one for recovery of possession? Prima facie, I do not think the plaintiffs have got title so long as the alienation made by the father stands, unless its validity is determined in the case.

28. Regarding the balance of convenience, we have to take into consideration the stage of construction as on the date of suit. I have already said that the plaintiffs have filed the suit as if the property is a vacant land. But the evidence is otherwise. On the date of suit, the structural portion of the building is almost over. Construction of groundfloor and first floor was over. Photographs dated 24.9.1997 are not challenged. They show that a major portion of the construction was over on that date. The suit was filed nearly a month thereafter. If the petitioner is prevented from completing the building after he has spent so much huge amount, he will be put to great hardhip. At the same time, plaintiffs who were out of possession from 1988, and those alleged title is yet to be found in their favour, are not going to sustain any loss, merely because the construction is made. If the plaintiffs had come to Court when the construction began, we can understand that status quo as on that date can be maintained. But, when the plaintiffs have come to Court when the construction is almost over, I can only say that they have acquiesced the same by allowing the petitioner herein to proceed with the construction. This is also a relevant circumstance which has to be taken into consideration while granting the interim order, Then we have to consider, what is the hardship to which the plaintiffs will be put to, if the construction is allowed to be proceeded with. The suit is only for recovery of possession, with mesne profits, By putting up the construction, even if decree is granted, it is not the case of the plaintiffs that the decree cannot be executed.

29. An argument was taken by learned Counsel for the respondents that the construction is being proceeded with, without any valid license torn the Local Authority, This is disputed by the petitioner's counsel. At any rate, either in the plaint or in the injunction application, this is not a ground on which injunction is sought for, It is the case of the petitioner that when the structure of the first floor was over, a notice was issued at the instance of the Local Authority, which was replied, and they have begun the construction only after obtaining a valid license. I do not think that this can be a ground for the grant of injunction in favour of the respondents, if it is for the Local Authority to decide whether the construction is authorised or unauthorised.

30. I do not think, any ground under Order 39, Rule 1, C.P.C. has been made out by the respondents herein for the grant of injunction.

31. In this connection, I find that the lower court was misled by the respondents when they said that it is only a vacant land and the petitioner herein is about to start a construction, This was only a false statement.

32. Under the above circumstances, I do not think that the respondents are entitled to an injunction as prayed for. I.A. No. 303 of 1997 filed by the respondents herein in O.S. No. 100 of 1997 will stand dismissed. The ad interim injunction granted by the lower court is vacated.

33. I reiterate that the findings entered by me are only for the purpose of disposing of the interlocutory application, and it is for the lower court to decide the case untrammelled by any of the findings entered by me. Both the parties are at liberty to adduce evidence and put forward arguments de hors my above findings.

34. In the result, the civil revision petition is allowed, as indicated above. No costs. Connected C.M.P. is closed.


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