Calcutta High Court
Srijan Realty Pvt. Ltd. & Ors vs John Augustine & Anr on 14 May, 2025
Author: Arijit Banerjee
Bench: Arijit Banerjee
2025:CHC-OS:68-DB
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Before:
The Hon'ble Justice Arijit Banerjee
And
The Hon'ble Justice Om Narayan Rai
APOT 94 of 2025
With
IA No: GA 1 of 2025
Srijan Realty Pvt. LTd. & Ors.
Vs.
John Augustine & Anr.
For the Appellants : Mr. S. N. Mitra, Sr. Adv.
Mr. Suman Kr. Dutt, Sr. Adv.
Mr. Siddhartha Banerjee, Adv.
Mr. Rahul Karmakar, Adv.
Mr. Abhisek Baran Das, Adv.
For the Plaintiff/Petitioner : Mr. Jayanta Kr. Mitra, Sr. Adv.
Mr. S.N. Mookherji, Sr. Adv
Mr. Ranjan Bachhawat, Sr. Adv
Mr. Rudraman Bhattacharyya, Sr. Adv.
Ms. Amrita Panja Moulick, Adv.
Mr. Saptarshi Banerjee, Adv.
Mr. Suryaneel Das, Adv.
Mr. Akash Munshi, Adv.
Mr. Siddharth Banerjee, Adv.
Ms. Shivangi Agarwal, Adv.
For the Defendant Nos. 1 & 2 / : Mr. Joydeep Kar, Sr. Adv.
Proforma Respondent Nos. 3 & 4 Mr. Pijush Roy, Adv.
Mr. Shounak Mukhopadhyay, Adv.
Ms. Shrayashee Das, Adv.
Mr. Rohan Kumar Thakur, Adv.
Mr. Tridibesh Dasgupta, Adv.
Hearing Concluded on : 02.05.2025
Judgment on : 14.05.2025
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Om Narayan Rai, J.:-
1. Although initially the application for stay being GA 1 of 2025 was slated to
be heard, yet since all the papers that were there before the learned Single
Judge are there before us, by consent of the parties we have heard the
appeal itself.
2. The defendant nos. 3, 5 and 6 in the suit being CS 35 of 2025 have
preferred the instant appeal laying challenge to a judgment and order dated
March 20, 2025, passed by a learned Single Judge of this Court in GA 1 of
2025 arising out of CS 35 of 2025, thereby granting an ex parte ad interim
order of injunction restraining the defendants in the suit (i.e. the appellants
and the proforma respondents) inter alia from carrying on any further
construction at or alienating or transferring or disposing of the suit property
to any third party.
3. Since the appeal is directed against an ex parte ad interim order of
injunction passed in a suit, in view of the law as it stands today, the Court
should, at this stage, proceed on the assumption that all the averments
made in the plaint and in the application for injunction are true. The case
run in the plaint therefore needs to be noticed first. Briefly summed up, the
plaint case is as follows:-
(a) The plaintiff no. 1 is the Metropolitan Bishop of India, Pakistan, Burma
and Ceylon and the Chairman of Indian Church Trustees. The plaintiff
no. 2 namely the Indian Church Trustees has been stated to be a body
incorporated by the Royal Charter dated June 11, 1929 and published
in the Gazette of India on July 20, 1929 at Shimla under Section 6(1) of
the Indian Church Act, 1927. It has been alleged that the plaintiff no. 2
is a body corporate which can sue and be sued in its own name.
(b) Paragraphs 1 to 11 of the plaint have been devoted to narrating the
history of the Church of India in order to project that the properties of
Church of India are vested with the plaintiff no. 2 and that the Church
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of India is in effective control of and has been administering the Church
properties.
(c) The plaintiffs have been uninterruptedly enjoying and possessing
premises no. 224, Acharya Jagadish Chandra Bose, Kolkata- 700017
lying and situated within the jurisdiction of the Karaya Police Station,
Ward No. 69 which forms the subject matter of the suit. The said
property is "under the ownership of the Indian Church held through the
plaintiff no. 1". The plaintiffs have been regularly paying property tax to
the Kolkata Municipal Corporation.
(d) The plaintiff no. 1 who has the power of operation across India and who
has been managing several properties across India, has been operating
through its Trustees and other office bearers.
(e) In or around September, 2024, the plaintiffs came to learn that the
defendant no. 3 was constructing a building at the suit premises and
the Indian Church Trustees was shown as the land owner.
(f) The members of the Indian Church Trustees held a meeting on
February 22, 2025 and decided to take steps against dissipation of the
church property without the concurrence or knowledge of the Church of
India. Accordingly the plaintiff no. 1 was authorized through a
resolution of even date to take appropriate steps in respect of the suit
property inter alia by filing appropriate proceedings before competent
Courts and authorities.
(g) The members of Indian Church Trustees then engaged lawyers to
conduct searches whereupon it was found that a development
agreement dated August 7, 2019, had been entered into between the
defendant nos. 1 and 2 on the one hand and the defendant no. 3 on the
other, whereby the defendant no. 3 had been allowed to construct a
building and had been given right to the extent of 47% of the
constructed area.
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(h) The defendant nos. 1 and 2 are not the Trustees of the Indian Church
and in any case the Trustees are not authorized to enter into any
agreement with respect to any property of the Church without the
permission of the General Council and/or of the Metropolitan.
(i) The joint development agreement dated August 7, 2019 and the power
of attorney dated August 18, 2019, executed by the defendant nos. 1
and 2 on behalf of the plaintiff no. 1 in favour of the appellants
(defendant nos. 3, 4 and 5) is fraudulent. Particulars of such fraud have
been pleaded in paragraph 26 of the plaint. The said joint development
agreement dated August 7, 2019 and the power of attorney dated
August 18, 2019, are void documents inasmuch as the same have been
fraudulently created.
(j) Feeling distressed by the attempts of the defendants in the suit to
invade the rights of the plaintiffs in respect of the Church property as
aforesaid, the plaintiffs have instituted the suit being CS 35 of 2025
praying inter alia for the following reliefs:
(a) Decree for declaration that the Joint Development Agreement dated
7th August, 2019 registered in the Office of the Registrar of
Assurances in Book No. I, Volume No. 135, Pages 133 to 136,
Being No. 5076, for the year 1960, executed jointly by the
Defendant no. 4, being part of Annexure-"E" hereto and the Power
of Attorney, has being registered with the Additional District Sub-
Registrar, Sealdah, South 24-Parganas in Book No. I, Volume No.
1606 to 2019, Pages 126859 to 126888, Being No. 160603405, for
the year 2019, being part of Annexure - "E" hereto is null, void ab
initio, of no effect and not binding on the Plaintiffs;
(b) Decree adjudging the Joint Development Agreement dated 7th
August, 2019 registered in the Office of the Registrar of Assurances
in Book No. I, Volume No. 135, Pages 133 to 136, Being No. 5076,
for the year 1960, executed jointly by the Defendant No. 4, being
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Annexure - "E" hereto and the Power of Attorney, has been
registered with the Additional District Sub-Registrar, Sealdah,
South 24-Parganas in Book No. I, Volume No. 1606 to 2019, Pages
126859 to 126888, Being No. 160603405, for the year 2019, being
part of Annexure - "E" as void and directing delivery of and
cancellation thereof;
(c) A decree of declaration that the Indian Church is the lawful owner
of the suit premises mentioned in Schedule "A" to the plaint;
(d) Direction to send a copy of the decree to the Registrar of
Assurance, Kolkata for noting on the copy of the said Joint
Development Agreement dated 7th August, 2019 registered of
Assurances in Book No. I, Volume No. 135, Pages 133 to 136,
Being No. 5076, for the year 1960, executed jointly by the
Defendant No. 4, being part of Annexure - "E" hereto and the
Power of Attorney, has been registered with the Additional District
Sub-Registrar, Sealdah, South 24-Parganas in Book No. I, Volume
No. 1606 to 2019, Pages 126859 to 126888, Being No. 160603405,
for the year 2019, being part of Annexure - "E" contained in his
Books for its cancellation;
(e) decree for perpetual injunction restraining the Defendants and/or
each of them by themselves or through their agents, servants,
representatives and/or assigns from acting on the basis, in
furtherance or in terms or from giving effect to the impugned Joint
Development Agreement dated 7th August, 2019 and the impugned
Power of Attorney dated 18th August, 2019, being Annexures - "E"
hereto or from deriving from any benefit therefrom in any manner
whatsoever in relation to any part of the scheduled Premises,
directly or indirectly;
(f) decree for perpetual injunction restraining the Defendants and/or
each of them by themselves or through their agents, servants,
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representatives and/or assigns from disturbing the Plaintiffs'
peaceful possession in respect of the scheduled Premises without
any obstruction or interference in any manner whatsoever, directly
or indirectly;
4. Along with the plaint, the plaintiffs have also filed an application for interim
reliefs praying inter alia for an order restraining the defendants in the suit
(i.e. the appellants and the proforma respondents) from carrying on any
further construction and from transferring and/or alienating and/or
disposing of and/or dealing with and/or creating any third party right, title
or interest in the suit property. Insofar as the factual matrix is concerned,
the said application is a substantial replica of the plaint.
5. The said application was heard on March 20, 2025, by the learned Single
Judge whereupon the learned Single Judge has been pleased to pass an ex
parte ad interim order of injunction restraining the defendants inter alia
from carrying on any further construction or alienating or transferring or
disposing of the suit property to any third party.
6. It is such ex parte ad interim order of injunction passed on March 20, 2025,
which has been impugned in the present appeal.
7. Mr. Surojit Nath Mitra, learned Senior Advocate appearing for the appellants
(defendant nos. 3, 5 and 6) opened his case by submitting that the suit in
question, as would be evident from the pleadings in the plaint and the reliefs
prayed for, is a suit for land. Inviting the Court's attention to the schedule
appended to the plaint it was submitted that the property which forms the
subject matter of the instant suit is admittedly situated within the
jurisdiction of Karaya Police Station which is outside the original jurisdiction
of this Court. Mr. Mitra invited the attention of this Court to prayer (c) of the
plaint and submitted that as decree for declaration of title in respect of the
suit property which is situated outside the original jurisdiction of this Court
has been sought for, the suit could not have been entertained by the learned
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Single Judge and no order of injunction could have been passed inasmuch
as this Court lacks territorial jurisdiction in respect of the suit property.
8. As the point raised by Mr. Surojit Nath Mitra prima facie appealed to us and
a decision on it would have led to an expeditious disposal of the appeal
itself, we called upon the principal respondents/plaintiffs to answer the
same.
9. Mr. Jayanta Kumar Mitra, learned Senior Advocate appearing for the
principal respondents/plaintiffs submitted on instructions that his clients
are ready and willing to forego the relief of declaration of title in respect of
the suit property sought for vide prayer (c) made in the plaint inasmuch as
title is not really an issue in the suit in view of the fact that title of the
plaintiff no. 2 as the owner of the suit property stands admitted.
10. Placing reliance on a judgment of the Hon'ble Supreme Court in the case of
Adcon Electronics Pvt. Ltd. vs. Daulat and Another1, it was submitted
that a suit would not fall within the category of suit for land if no relief of
delivery of possession of the suit property had been claimed. Referring to the
various prayers made in the plaint, it was sought to be demonstrated that
no relief for delivery of the possession of the suit property had been claimed
and it was submitted that the suit in question would therefore not be a suit
for land.
11. It was further submitted that the facts of the case had telltale signs of fraud
committed by the defendant nos. 1, 2 and 3 for using the Church property
for their own gain. Relying on a judgment of the Single Bench of this Court
in the case of Sm. Parimal Mitra and Others vs. Paresh Chandra Hazra
and Others2, it was submitted by Mr. Mitra that even if a suit which was
otherwise a suit for land was founded on an allegation of fraud, the Court
within whose jurisdiction fraud was committed would have jurisdiction to
entertain the suit notwithstanding the fact that suit property lay outside the
1
(2001) 7 SCC 698
2AIR 1982 Cal 361
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jurisdiction of the said Court. It may be recorded here in this connection
that upon considering the judgment of Sm. Parimal Mitra2 (supra), we put
the principal respondents on notice that their contention may require
reconsideration in the light of the judgment of the Hon'ble Supreme Court in
the case of Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr.3
12. Another judgment of this Court in the case of Macneill and Magor Ltd.
and Another vs. Mouhsen Ali and Another 4 was relied on for the
proposition that the provisions of Order 7 Rule 10 of the Code of Civil
Procedure, 1908 (hereafter "the Code") do not apply to Chartered High
Courts and that in case it is found that this Court does not have territorial
jurisdiction to try the suit in question, this Court would not have authority
to return the plaint under Order 7 Rule 10 of the Code and that the Court
would have to exercise its powers under section 24 of the Code to transfer
the suit to the Court having jurisdiction.
13. Relying on a judgment of the Hon'ble Supreme Court in the case of
Committee of Management of Pachaiyappa's Trust vs. Official Trustee
of Madras and Another 5, it was stressed that it was obligatory on the part
of the Trustees as well as of the Court to safeguard the interest of the
Church. Further, another Single Bench judgment of this Court in the case of
Mohan Lall Seal & Ors. vs. Kanak Lall Seal & Ors.6, was cited by Mr.
Mitra to emphasize that in case of charitable and religious trusts, the
trustees have an inherent obligation to act in the interest of the trust and its
beneficiary and/or in other words, in public interest. Relying on the same
judgment, it was also emphasized that all transfer of property held by
religious or charitable trusts, should be done by issuance of public notices
and/or advertisement and that such transfer should be given sufficient
publicity to fetch the best offers. It has been submitted that in any case the
development agreement impugned in the suit falls foul of the principles of
3
(2005) 7 SCC 791
4AIR 1985 Cal 460
5(1994)1 SCC 475
6(2010) 3 CHN 597 (Cal)
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fairness and transparency. Mr. Mitra therefore submitted that the order
impugned in the appeal did not call for any interference.
14. A Privy Council judgment in the case of Gopi Narain Khanna v. Babu
Bansidhar 7, was relied on to submit that if the "plaint contains a statement
of all the material circumstances, but the prayer of it is inartificially framed"
then it would be sufficient for the Court "to give the plaintiff the appropriate
relief if he was otherwise entitled to it".
15. Mr. Surojit Nath Mitra in reply submitted that even if the plaintiffs gave up
the relief sought for vide prayer (c) of the plaint, the suit would still remain a
suit for land inasmuch as the appellants as developers had acquired
substantial right and interest in the suit property and that any order passed
in the suit would affect the appellants' interest and right in the suit
property.
16. Referring to the pleadings in paragraph 12(vi) and 16 of the plaint, it was
submitted that since the plaintiffs had not disclosed as to what necessitated
a certified transcription of the declaration of 1960, on November 27, 2020, it
should be reasonably inferred that the same was done upon getting
knowledge of the Development Agreement that was entered into on August
07, 2019, for the purpose of instituting the suit.
17. Drawing attention of the Court to the pleadings at paragraph 14 of the
plaint, it was submitted that the Plaintiffs admittedly had knowledge of the
building being constructed in September 2024, yet they approached the
Court in March 2025.
18. He also placed paragraph 15 of the plaint and submitted that the averments
made therein to the effect that "the members of the Indian Church Trustees
held a meeting on 22nd of February 2025, and decided to take steps with
regard to the dissipation of the church property without the concurrence or
knowledge of the Church of India..." clearly demonstrated that the suit in
7
MANU/PR/0016/1905
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question was based on questions of right, title and interest in the suit
property and the suit is thus a suit for land.
19. He then took us to the development agreement dated August 07, 2019, that
had been annexed to the plaint. Inviting our attention to the first page
thereof it was submitted that the same was not a copy of the certified copy
of the registered document (i.e. development agreement) but a copy made
directly from the original registered document itself. Mr. Mitra sought to
subtly hint that the fact that the plaintiffs had annexed a copy of the
registered development agreement precipitated the inference that the
plaintiffs had access to the original registered development agreement itself
which in turn was a pointer to the plaintiffs' knowledge thereof from the very
inception of the said agreement.
20. He then submitted that the appellants had invested substantial sums in the
project and had raised construction scaling upto six stories at the suit
premises upon demolishing the existing structure thereat. Inviting the
attention of this Court to Clause 11.1 of the development agreement dated
August 7, 2019, it was submitted by Mr. Mitra that in terms of the said
development agreement the appellants had already paid a sum of
Rs.5,00,000,00/- (Rupees Five Crore) to the Indian Church Trustees. It was
submitted that out of the said sum of Rs.5,00,000,00/- (Rupees Five Crore)
the first tranche had been paid at the time when the said development
agreement was entered into and the balance was paid later on in terms of
the said agreement. Mr. Mitra submitted that the principal
respondents/plaintiffs have not denied receipt of such payment. He
expounded the point by submitting that once the development agreement
had come to the knowledge of the principal respondents/plaintiffs and the
same had been annexed to the plaint then if it was the principal
respondents'/plaintiffs' case that such sum of Rs.5,00,000,00/- (Rupees
Five Crore) had not been paid by the appellants to the credit of Indian
Church Trustees, they ought to have denied the same in the plaint.
21. Placing clauses (a) and (b) of the power of attorney dated August 22, 2019, it
was further submitted by Mr. Mitra that the said instrument granted wide
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powers including power to obtain sanction and power of demolition of the
existing building and structure at the suit property to the developer. It was
submitted that the appellants had in exercise of such power already
demolished the existing structure and have thus far raised a G+VI storied
building/structure incurring considerable expense. It was submitted that
the appellants thus have interest in and are in possession of the suit
property and that any order passed in the suit would certainly affect the
appellants' right, title and interest in and possession of the suit property. To
buttress his contention, Mr. Mitra relied on a judgment of the Hon'ble
Supreme Court in the case of Sumer Builders (P) Ltd. v. Narendra
Gorani 8 and placed paragraphs 2, 5 and 32 thereof. He also cited a
Division Bench judgment of this Court in the case of Tridandeeswami
Bhakti Kusum Sraman Maharaj & 0rs. v. Mayapore Sree Chaitanya
Math & Ors.9 in support of the contention that in a suit where the primary
object was to establish title to land or for possession or control of land, then
the suit would be a suit for land.
22. The principal respondents/plaintiffs rejoined by denying the assertion made
on behalf of the appellants that a sum of Rs.5,00,000,00/- (Rupees Five
Crore) had been credited to the account of Indian Church Trustees i.e.
respondent no. 2 in terms of the development agreement dated August 7,
2019. It was submitted by the principal respondents/plaintiffs that money
might have actually been paid to the proforma respondent nos. 3 and 4 and
that no sum was credited to the account of the plaintiffs.
23. Paragraph 6 (c) of the application for stay was placed by the learned Senior
Advocate representing the principal respondents/plaintiffs to argue that as
the appellants were aware of the fact that the suit property was (is) the
property of the Church, therefore, they could not have dealt with it without
taking permission from the competent Court in terms of the relevant
provisions of the Charitable and Religious Trust Act, 1920. Attention of the
Court was also drawn to clause 3(l) of the development agreement to drive
8
(2016) 2 SCC 582
9AIR 1983 Cal 420
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home the point that the appellants were aware of the fact that the property
in question was (is) a church property and that the same therefore could not
have been dealt with without permission from the competent Court. Clause
22.2 of the development agreement was also placed to demonstrate that the
said clause of indemnification has been consciously inserted to protect the
appellants from any future claim, damage and loss inasmuch as the
appellants were aware that the proforma respondents had no right to deal
with the property in question.
24. It was further submitted by Mr. Jayanta Kumar Mitra, learned Senior
Advocate appearing for the principal respondents/plaintiffs, that the Court
should, in matters like the one at hand, tread cautiously keeping in mind
the grave consequences of allowing a person who has no right, title and
interest in a given property to continue to remain in possession thereof and
make constructions thereat. It was submitted that in the suit in question
too, if the appellants are allowed to carry on the construction at the suit
property and create third party interest by selling portions of the
constructed areas to different persons and after all of this if it is ultimately
found that the appellants have no right, title and/or interest in the suit
property then the situation would become unmanageably complex.
25. In answer to pointed queries of the Court as to why should the Court
intervene and injunct construction of a building that had risen upto six
stories when the plaintiffs themselves allowed such construction to come up
by not approaching the Court earlier and as to why should the observations
made by the Hon'ble Supreme Court in the case of Mandali Ranganna &
Ors. v. T. Ramachandra & Ors.10 not apply to the facts of the present
case, Mr. Mitra submitted that there was good explanation for the plaintiffs'
belated approach to Court and for the said judgment to not apply here. It
was submitted that as the plaintiffs dwell outside Kolkata, therefore, they
did not have immediate knowledge about the construction. It was contended
that the plaintiffs got knowledge about the construction only from the
10(2008)11 SCC 1
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advertisements and hoardings and the plaintiffs have rushed to Court
promptly thereafter. It was then submitted on behalf of the plaintiffs that in
the case of Mandali Ranganna10 (supra) the appellants had approached
the Court late despite there being a public notice of the constructions and
the order was passed in the wake of such belated approach.
26. On a further enquiry from Mr. Jayanta Kumar Mitra as why should the suit
not be treated as one for land in the light of the submission of the appellants
that despite the plaintiffs' foregoing prayer (c) of the plaint, the suit would
still remain a suit for land inasmuch as the appellants as developers had
acquired substantial right and interest in the suit property and any order
passed in the suit would affect the appellants' interest and right in the suit
property, Mr. Mitra submitted that since the principal prayers in the suit are
for declaration that the development agreement is void and for cancellation
and delivery thereof, which are based on Sections 26 and 31 of the Specific
Relief Act, 1963, the suit would not be a suit for land upon giving up prayer
(c) in the suit. Mr. Mitra also cited another Division Bench judgment in the
case of Gloster Limited vs Bowreah Jute Mills Private Limited & Ors.11,
for the proposition that a suit for land is one which involves direct
adjudication of title and/or possession in respect of land or other immovable
property and that if a decree or order passed in a suit indirectly or
consequentially affects title to and/or possession in respect of land, the suit
cannot be said to be a suit for land.
27. Mr. Joydeep Kar, learned Senior Advocate appearing for the proforma
respondent nos. 3 and 4 (defendant nos. 1 and 2) invited the attention of
this Court to prayer (f) of the plaint and submitted that since the plaintiffs
had sought for a decree for perpetual injunction restraining the defendants
and/or each of them by themselves or through their agents, servants,
representatives and/or assigns from disturbing the plaintiffs' peaceful
possession in respect of the scheduled Premises, the suit was indeed a suit
for land. In order to fortify his submission, Mr. Kar relied on a judgment of
11
AIR 2014 Cal 230
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the High Court of Madras in the case of Jethmull Chordia vs. C.
Venkatasubba Reddy12.
28. He further submitted that the proforma respondents had evidence to show
that money had been credited to the account of Indian Church Trustees i.e.
the respondent no. 2 herein.
29. It was further contended by him that the proforma respondents as trustees
had never seen the plaintiffs on board as trustees. Relying on the averments
made in paragraphs 14 and 15 of the plaint, it was submitted by Mr. Kar
that the same raise serious doubts about the plaintiffs' claim in the suit
inasmuch as it is not expected of a trustee of the Indian Church Trustees to
be unware of the properties that the Church owns.
30. Mr. Kar also referred to paragraph 23 of the order impugned to demonstrate
that the order indeed directly hits the suit property and the same is
therefore another pointer that the suit in question is a suit for land.
31. Having considered the submissions made on behalf of the respective parties
in the light of the material on record, we are of the view that the order of
injunction dated March 20, 2025 ought not to have been passed by the
learned Single Judge in the facts and circumstances of the present case.
There are good reasons that persuade us to reach such conclusion.
32. The first weighty reason for this Court to hold that the order of injunction
ought not to have been passed is that we are prima facie satisfied that the
suit could not have been filed on the original side of this Court as the same
does not satisfy the conditions prescribed in clause 12 of the Letters Patent.
33. To start with, except the defendant nos. 1 and 2 none of the other
defendants either reside or carry on business within the original jurisdiction
of this Court. This Court has noticed that even in cases of such defendants,
whose addresses given in the cause title clearly evince that the same lie
beyond/outside the original jurisdiction of this Court, the same have been
12
2012 SCC OnLine Mad 5221
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described in the cause title as "within the aforesaid jurisdiction" meaning
within the original jurisdiction of this Court. It is in any case clear that all
the defendants in the suit are not amenable to the original jurisdiction of
this Court and as such the suit could not have been filed before this Court
on the basis of the defendants' residence or place of business.
34. Insofar as the subject matter of the suit is concerned, the pleadings made in
the plaint and the prayers thereof read cumulatively lead to the inescapable
conclusion that the suit in question is actually a suit for land/immovable
property situated outside the original jurisdiction of this Court.
35. The schedule of the plaint evinces that the subject property is situated
within Karaya police Station outside the original jurisdiction of this Court.
While it was submitted on behalf of the plaintiffs that they were ready and
willing to forego the relief of declaration of title in respect of the suit property
as sought for vide prayer (c) made in the plaint, still the character of the suit
as one for land does not fade by even a shade.
36. Indeed, in the case at hand, a decree for cancellation of the development
agreement has been sought. We also note the submission of Mr. Jayanta
Kumar Mitra, learned Senior Advocate appearing for the plaintiffs that the
suit in question is one based on Sections 26 and 31 of the Specific Relief
Act, but we are unable to agree that even with such prayer for decree of
declaration that the development agreement is null and void and for decree
of cancellation of the said agreement, the suit could have been received by
the Court and can be tried on its original side. There are several reasons for
that.
37. Firstly, the development agreement appears to have been registered at the
office of the Additional Sub-Registrar, Sealdah, beyond or outside the
original jurisdiction of this Court. There is no pleading in the plaint that the
agreement was executed within the original jurisdiction of this Court.
Therefore, cause of action does not appear to have arisen within the original
jurisdiction of this Court. In such view of the matter the suit could not have
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been received by this Court on its original side and the Court cannot try it
on the original side.
38. Secondly, even if there was a pleading in the plaint that the agreement was
executed within the original jurisdiction of this Court, then also, taking the
same on face value, that by itself would have formed only a part of cause of
action for the suit. For a suit to be instituted on the basis of accrual of a
part of cause of action within the original jurisdiction of this Court leave of
this Court would be required to be taken under clause 12 of Letters Patent.
It has not been demonstrated before us that any such leave has been
obtained in the present case. Therefore, in our prima facie view, the suit
could not have been received and cannot be tried on the original side of this
Court even on the basis that it is a suit for mere annulment, cancellation
and delivery of the development agreement and not for possession or title.
39. Furthermore, the said development agreement grants some kind of title or
interest in the suit property to the developer and on the basis thereof the
developer has admittedly taken possession of the suit property. We say
admittedly because if the appellants had not been in possession there could
not have been any construction done by them and there would not have
arisen any necessity for the plaintiffs to file the application for injunction
and to pray for an order "restraining the respondents (sic defendants) Nos.1,
2, 3, 4, 5 and 6 and their men, servants, agents and/or
assigns/representatives from carrying out further construction whatsoever in
the impugned Construction ........" The averments in paragraph 14 of the
plaint also clearly demonstrate that the appellants are in possession. In fact
the "second" paragraph 44 of the application for injunction makes the
picture clearer when it says "There is extreme urgency in the matter in view
of the facts that the Respondent is in the verge of completing the
superstructure and has publicity materials out in the public inviting offers
from the innocent buyers to invest in the impugned construction thereby
threatening to create third party rights."
40. In the wake of the aforesaid, prayer (f) in the suit, which is for a "decree for
perpetual injunction restraining the Defendants and/or each of them by
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themselves or through their agents, servants, representatives and/or assigns
from disturbing the Plaintiffs' peaceful possession in respect of the scheduled
Premises without any obstruction or interference in any manner whatsoever,
directly or indirectly" becomes veritably meaningless. There can be no
occasion for the Court to pass a decree for injunction restraining the
defendants from interfering with the plaintiffs' possession, if the plaintiffs
are not in possession. Therefore, only the prayers for decrees for declaration
that the development agreement is null and void and for cancellation and
delivery thereof remain. If that be so, in our prima facie view the suit itself
may become vulnerable since there are prayers made for decrees for
declaration that the development agreement is null and void and for
cancellation and delivery thereof without seeking the consequential relief of
delivery of possession. We are conscious that prayer (e) has been made
seeking a decree for perpetual injunction restraining the defendants "from
acting on the basis, in furtherance (sic of) or in terms (sic of) or from giving
effect to the impugned Joint Development Agreement dated 7 th August, 2019
and the impugned Power of Attorney dated 18th August, 2019 being
Annexures - "E" hereto or from deriving from any benefit therefrom in any
manner whatsoever in relation to any part of the scheduled Premises, directly
or indirectly" but we are afraid that the same would not form the complete
consequential relief in the absence of a prayer for recovery of possession
when the plaintiffs are admittedly not in possession.
41. Be that as it may, taking the suit as it is, with all the pleadings in the plaint
and the prayers made therein, we find substance in the submissions of Mr.
Kar appearing for the proforma respondent nos. 3 and 4, that in the light of
prayer (f) of the plaint where decree for perpetual injunction restraining the
Defendants from disturbing the plaintiffs' peaceful possession has been
sought, it cannot be said that the relief claimed does not relate to
possession. While deciding as to whether or not relief like one sought
through prayer (f) should be granted or not, the question of possession
would necessarily fall for determination before the Court. In view of the
aforesaid, it cannot be said that the plaintiffs' claim would not require
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adjudication of any question relating to title and possession at all. In our
prima facie view the claim in the suit relates to title and possession.
42. In the light of the aforesaid discussion, the plaintiffs' submission that - as
title is not an issue in the suit (since title of the plaintiff no. 2 as the owner
of the suit property has been admitted in the development agreement dated
August 7, 2019) therefore the suit will no longer remain a suit for land upon
the plaintiffs foregoing prayer (c) thereof - even if accepted on face value,
does not in our prima facie view make the suit anything lesser than suit for
land.
43. Such being the case, the ratio of the judgment in the case of Gloster
Limited11 (supra) would, in our prima facie view, not help the plaintiffs
inasmuch as the aforesaid decree prayed for vide prayer (f) of the plaint
would directly affect possession and title of the parties to the suit, especially
the appellants and not indirectly or consequentially as sought to be
suggested by the plaintiffs.
44. In this regard the observation of the Hon'ble Supreme Court in the case of
Sumer Builders (P) Ltd. v. Narendra Gorani8 (supra) cited by the
appellants may also be noted:
32. The seminal issue is whether on the factual score which has been
exposited, the application filed under Section 9 of the 1996 Act before
the High Court of Bombay can be regarded as a money claim. On a
studied scrutiny of the agreement and the MoU it is clear as day that
the development agreement indubitably had created certain interests in
the land in favour of the appellant. The assertions made in the
application along with the relief clause when read in entirety and
appreciated in a holistic manner, it becomes luminescent that the core
dispute pertains to possession of the land, for the appellant claims to be
in exclusive possession and the respondent, per contra, has
asseverated that it had taken over possession. It can irrefragably be
stated that any order passed under Section 9 of the 1996 Act will have
the impact on the land. It is difficult to accede to the submission that it
will not conceptually fall within the category of "suit for land" as
engrafted under Clause 12 of the Letters Patent. It is clearly a dispute
with regard to the possession which is evincible from the
correspondences and the averments made in the application preferred
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under Section 9 of the 1996 Act. Thus, there has to be determination as
regards possession and impliedly issue of direction for recovery of
possession. Hence, the conclusion arrived at by the Division Bench on
the basis of the scrutiny of documents that the dispute is embedded
with regard to the possession of the land because the fundamental
claim pertains to certain constructed space on the land and, therefore, it
would conceptually fall within the conception of "suit for land"
appearing in Clause 12 of the Letters Patent is unexceptionable. Prayer
(a) quoted above seeks restraint by a temporary order or injunction from
entering upon the property. It is difficult to accept the submission that it
is a money claim and, therefore, the Bombay High Court would also
have the territorial jurisdiction and accordingly we unhesitatingly repel
the same.
(Emphasis supplied by underlining)
45. In fact the judgment of the Hon'ble Supreme Court in the case of Adcon
Electronics1 (supra) cited by the respondents also speaks against the
respondents/plaintiffs when it clarifies that a suit for land is a suit in which
the relief claimed relates to the title or to delivery of possession of land or
immovable property. The relevant paragraphs of Adcon Electronics1 (supra)
are reproduced herein below:
15. From the above discussion it follows that a "suit for land" is a suit in
which the relief claimed relates to title to or delivery of possession of
land or immovable property. Whether a suit is a "suit for land" or not
has to be determined on the averments in the plaint with reference to
the reliefs claimed therein; where the relief relates to adjudication of
title to land or immovable property or delivery of possession of the land
or immovable property, it will be a "suit for land". We are in respectful
agreement with the view expressed by Mahajan, J. in MooljiJaitha
case [AIR 1950 FC 83: 1949 FCR 849].
16. In a suit for specific performance of contract for sale of immovable
property containing a stipulation that on execution of the sale deed the
possession of the immovable property will be handed over to the
purchaser, it is implied that delivery of possession of the immovable
property is part of the decree of specific performance of contract. But in
this connection it is necessary to refer to Section 22 of the Specific Relief
Act, 1963 which runs:
"22. Power to grant relief for possession, partition, refund of
earnest money, etc.--(1) Notwithstanding anything to the contrary
contained in the Code of Civil Procedure, 1908, any person suing
for the specific performance of a contract for the transfer of
immovable property may, in an appropriate case, ask for--
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(a) possession, or partition and separate possession, of the
property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the
refund of any earnest money or deposit paid or made by him, in
case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be
granted by the court unless it has been specifically claimed:
Provided that where the plaintiff has not claimed any such relief in
the plaint, the court shall, at any stage of the proceeding, allow him
to amend the plaint on such terms as may be just for including a
claim for such relief."
18. In the instant case the suit is for specific performance of the
agreement for sale of the suit property wherein relief of delivery of
the suit property has not been specifically claimed, as such it cannot
be treated as a "suit for land".
(Emphasis supplied by underlining)
46. In this connection the judgment in the case of Tridandeeswami Bhakti
Kusum Sraman Maharaj9 (supra) cited by the appellants also seems
apposite. In paragraph 11 thereof it has inter alia been held thus:-
11........... If the primary object is to establish title to land or for
possession or control of land, then it would be a suit for land." If, on
the other hand, the Court comes to the conclusion that the primary
object is something else, it will not be a suit for land
notwithstanding the fact that it may affect title to or possession of
land.......
47. We have already prima facie found that the decree prayed for vide prayer (f)
of the plaint would directly affect possession and title of the parties to the
suit, especially the appellants and not indirectly or consequentially as
sought to be suggested by the plaintiffs.
48. The plaintiffs/principal respondents have while relying on the judgment of a
Single Bench of this Court in the case of Sm. Parimal Mitra2 (supra)
contended that even if it is assumed that the suit in question is a suit for
land, then also this Court would still have jurisdiction to entertain the same
since the reliefs of cancellation of the development agreement and the
consequential injunctive reliefs as prayed for are founded on pleadings of
fraud which has been stated to have been committed within the jurisdiction
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of this Court. The relevant extract of Sm. Parimal Mitra (supra) may first
2
be noticed:
11. In the instant suit also there is an allegation of fraud. In other words,
the suit is founded on fraud and the fraud has been alleged to have
been committed within the jurisdiction of City Civil Court, Calcutta. It is
now an accepted principle of law that the Court within whose
jurisdiction fraud is committed will be entitled to entertain a suit
founded on fraud. From that point of view also the City Civil Court had
jurisdiction to try the suit.
49. We have considered the said judgment. The said judgment cannot and does
not help the principal respondents/plaintiffs at all. To begin with, since the
said judgment was rendered in the context of a case filed before the City
Civil Court, territorial jurisdiction whereof was/is governed by the provisions
of sections 16 to 20 of the Code and not in the context of a suit filed on the
original side of this Court, which is governed by the provisions of Letters
Patent, therefore, the said judgment would not apply to the case at hand.
Section 120 of the Code in any case excludes application of Sections 16, 17
and 20 of the Code to the High Court in exercise of its original civil
jurisdiction.
50. Even otherwise the suit in question would not be covered by Sm. Parimal
Mitra2 (supra). In the said case, the Court ultimately concluded that the
subject suit was indeed a suit for land and it was additionally held that
since cause of action for fraud had also arisen within the territorial
jurisdiction of the City Civil Court, such Court had jurisdiction to decide the
suit. While we accept that a suit founded on fraud would be entertainable by
a Court within whose jurisdiction fraud was committed, we would hasten to
clarify that if the subject matter of a suit is land and the same is also
founded on fraud (i.e. fraud constitutes the cause of action or constitutes
one of the causes of action of such suit) then such suit would have to be
instituted within the territorial jurisdiction of the court where the land is
situated and not where fraud is committed unless the suit is governed by
the proviso to Section 16 of the Code. We may explain the basis of our
conclusion in the following manner:
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a) Territorial jurisdiction of a civil court, (other than Chartered High
Courts where Letters Patent applies) would have to be determined
in terms of the provisions of Sections 16 to 20 of the Code.
b) The gamut of discussion in the cited case would involve Sections
16 and 20 only and if the case with which we are presently
concerned had been presented in a court other than this Court,
then the same would also have been governed by the said
provisions only.
c) Section 16 provides that suits are to be instituted where the
subject-matter of the suit is situated and Section 20 provides that
other suits are to be instituted where defendants reside or cause of
action arises.
d) A perusal of the aforesaid provisions would reveal that in case the
suit is one for land then, in terms of the provisions of Section 16 of
the Code only the court within whose territorial jurisdiction the
subject land or the suit-land is situated would have jurisdiction to
try the suit. The proviso to Section 16, however provides for an
exception by stating that if any relief respecting, or compensation
for wrong to, immovable property held by or on behalf of the
defendant is required to be obtained and if such relief can be
entirely obtained through the personal obedience of the defendant
then in such a case a suit can be instituted either in the Court
within the local limits of whose jurisdiction the property is situate,
or in the Court within the local limits of whose jurisdiction the
defendant actually and voluntarily resides, or carries on business,
or personally works for gain.
e) Insofar as the decision as regards territorial jurisdiction of the
court for filing a suit on the ground of fraud is concerned, the same
would be governed by Section 20 of the Code and the Court within
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whose jurisdiction fraud is committed would be the court having
jurisdiction to try such suit, as fraud would be the cause of action.
f) Now if both the elements (i.e. land as well as fraud) are involved,
then also the suit would still have to be filed in terms of Section 16
and not in terms of Section 20 of the Code. This is because while
there is a specific provision governing suit for land there is none for
a suit founded on allegations of fraud. A suit based on allegations
of fraud would therefore be governed by the "residuary" provision of
Section 20.
51. Our aforesaid explanation owes its genesis to the observations of the Hon'ble
Supreme Court in the case of Harshad Chiman Lal Modi3 (supra). The
relevant paragraphs of the said judgment are quoted hereinbelow:
15. Now, Sections 15 to 20 of the Code contain detailed provisions
relating to jurisdiction of courts. They regulate forum for institution of
suits. They deal with the matters of domestic concern and provide for
the multitude of suits which can be brought in different courts. Section
15 requires the suitor to institute a suit in the court of the lowest grade
competent to try it. Section 16 enacts that the suits for recovery of
immovable property, or for partition of immovable property, or for
foreclosure, sale or redemption of mortgage property, or for
determination of any other right or interest in immovable property, or for
compensation for wrong to immovable property shall be instituted in the
court within the local limits of whose jurisdiction the property is situate.
The proviso to Section 16 declares that where the relief sought can be
obtained through the personal obedience of the defendant, the suit can
be instituted either in the court within whose jurisdiction the property is
situate or in the court where the defendant actually or voluntarily
resides, or carries on business, or personally works for gain. Section 17
supplements Section 16 and is virtually another proviso to that section.
It deals with those cases where immovable property is situate within
the jurisdiction of different courts. Section 18 applies where local limits
of jurisdiction of different courts are uncertain. Section 19 is a special
provision and applies to suits for compensation for wrongs to a person
or to movable property. Section 20 is a residuary section and covers all
those cases not dealt with or covered by Sections 15 to 19.
16. Section 16 thus recognises a well-established principle that actions
against res or property should be brought in the forum where
such res is situate. A court within whose territorial jurisdiction the
property is not situate has no power to deal with and decide the rights
or interests in such property. In other words, a court has no jurisdiction
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over a dispute in which it cannot give an effective judgment. The proviso
to Section 16, no doubt, states that though the court cannot, in case of
immovable property situate beyond jurisdiction, grant a relief in
rem still it can entertain a suit where relief sought can be obtained
through the personal obedience of the defendant. The proviso is based
on a well-known maxim "equity acts in personam", recognised by the
Chancery Courts in England. The Equity Courts had jurisdiction to
entertain certain suits respecting immovable properties situated abroad
through personal obedience of the defendant. The principle on which
the maxim was based was that the courts could grant relief in suits
respecting immovable property situate abroad by enforcing their
judgments by process in personam i.e. by arrest of the defendant or
by attachment of his property.
21. A plain reading of Section 20 of the Code leaves no room for doubt
that it is a residuary provision and covers those cases not falling within
the limitations of within its sweep all personal actions. Sections 15 to
19. The opening words of the section, "subject to the limitations
aforesaid" are significant and make it abundantly clear that the section
takes thus within its sweep all personal actions. A suit falling under
Section 20 thus may be instituted in a court within whose jurisdiction
the defendant resides, or carries on business, or personally works for
gain or cause of action wholly or partly arises.
(Emphasis supplied by underlining)
52. Now we once again turn to the law applicable to the case at hand. There can
be no dispute that the suit in question having been filed on the Original Side
of this Court, would have to conform to the requirements of clause 12 of
Letters Patent. The said clause reads thus:
12. Original jurisdiction as to suits.- And We do further ordain that
the said High Court of judicature at Fort William in Bengal, in the
exercise of its ordinary original Civil jurisdiction, shall be empowered to
receive, try, and determine suits of every description, if, in the case of
suits for land or other immoveable property, such land or property shall
be situated, or in all other cases if the cause of action shall have arisen,
either wholly, or, in case the leave of the Court shall have been first
obtained, in part, within the local limits of the ordinary original
jurisdiction of the said High Court or if the defendant at the time of the
commencement of the suit shall dwell, or carry on business, or
personally work for gain within the local limits of the ordinary original
jurisdiction of the said High Court, except that it shall not have such
original jurisdiction in cases falling within the jurisdiction of the Small
Cause Court at Calcutta, in which the debt or damage, or value of the
property, sued for, does not exceed one hundred Rupees.
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53. A perusal of the above would clarify that this Court is empowered to receive,
try, and determine suits for land or other immoveable property only if such
land or property is situated within the local limits of the ordinary original
jurisdiction of this Court. In other cases such suit can be instituted if the
cause of action arises wholly within the jurisdiction of this Court or the
defendants reside or carry on business within the jurisdiction of this Court
or the cause of action arises wholly within the jurisdiction of this Court. In
case only a part of cause of action arises within the jurisdiction of this Court
leave of this Court would have to be sought first and if such leave is granted
the suit can be tried by this Court. A comparative reading of the provisions
of Sections 16 and 20 of the Code and that of clause 12 of Letters Patent
would at once reveal that the provisions of Sections 16 and 20 of the Code
taken cumulatively express only that which has been succinctly summed up
in Clause 12 with only two exceptions.
54. The first of such exceptions is that in order to invoke the original
jurisdiction of this Court, in a case where only a part of cause of action has
arisen within the jurisdiction of this Court, leave would have to be obtained.
The second exception is that there is no provision in clause 12 akin to the
proviso to Section 16 of the Code that allows a suit to obtain relief respecting,
or compensation for wrong to, immovable property held by or on behalf of the
defendant, to be instituted either in the Court within the local limits of
whose jurisdiction the property is situate, or in the Court within the local
limits of whose jurisdiction the defendant actually and voluntarily resides,
or carries on business, or personally works for gain provided the relief
sought can be entirely obtained through the personal obedience of the
defendant. Since a provision similar to the proviso to Section 16 of the Code
is absent in clause 12 therefore, we need not engage ourselves with the
same in the case at hand.
55. Now coming back to clause 12, the usage of the expression "or in all other
cases" after the provision for suit for land and before the expression "if the
cause of action shall have arisen", gives a screaming hint that the preceding
part providing for suit for land is a specific provision governing suits
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concerning immovable property and the succeeding or subsequent part is
the residuary part governing suits instituted on the basis of cause of action.
The provision is clear and it admits/allows no exception when it says that
suits of other types based on cause of action other than land i.e. "in all other
cases" can be filed in the Court "if the cause of action shall have arisen,
either wholly, or, in case the leave of the Court shall have been first obtained,
in part, within the local limits of the ordinary original jurisdiction of the said
High Court".
56. In such a situation, there is no reason for us to not apply the ratio of the
judgment of the Hon'ble Supreme Court in the case of Harshad Chiman
Lal Modi3 (supra) to the facts of this case and hold that a suit which is
otherwise a suit for land could not have been filed on the original side this
Court only on the basis of the allegation that fraud was committed within
the jurisdiction of this Court and that such cause of action arose within the
jurisdiction of this Court.
57. Even otherwise, the plaintiffs were not entitled to the ex-parte ad interim
order of injunction that was granted, on the ground of delay and
acquiescence. Upon perusal of the plaint case it appears that the principal
respondents (plaintiffs) have been unduly tardy in their approach to Court.
To wit, as per the principal respondents' own case in paragraph 14 of the
plaint, they got knowledge about the construction that was being carried on
at the suit property in or around September, 2024, yet the suit came to be
instituted only in March, 2025, i.e. almost six months after acquiring of
knowledge of construction. In fact the pleadings in the "second" paragraph
44 of the application for injunction to the effect that "There is extreme
urgency in the matter in view of the facts that the Respondent is in the verge
of completing the superstructure and has publicity materials out in the public
inviting offers from the innocent buyers to invest in the impugned construction
thereby threatening to create third party rights" clearly demonstrate the
plaintiffs' utterly delayed approach to Court.
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58. The plaintiffs have sought to explain the delay by asserting (in the
paragraphs following paragraph 14 in the plaint) that they had been
conducting searches and that it was only "sometime around December 2024"
that the plaintiffs came to learn that the appellant no.1 had been claiming to
develop the property "in association with the Plaintiff No. 1". It has been
further alleged that it was thereafter that the plaintiffs conducted further
searches and came to learn about the development agreement dated August
7, 2019. It is nigh impossible to believe that in the age of digitization and
computerization when records of property registration (if not all records then
at least the major details thereof) are available at the click of a few buttons,
it took months for the plaintiffs to get to the details as alleged. Furthermore,
when the plaintiff no. 1 claims to be the repository of all powers relating to
the management of the Church properties it was incumbent on him to be all
the more wary and vigilant. It is incomprehensible that such a person would
be unaware of the status and position of properties that he is required to
manage and protect.
59. We have noticed the pleadings in the application for injunction including the
one in paragraph 44 thereof but the same do not justify grant of ex parte ad
interim order of injunction. The order impugned too does not reveal any
acceptable reason justifying non issuance of notice before the grant of such
ex parte ad interim order of injunction.
60. When it now stands admitted that substantial constructions have come up
over a period of time and have been continuing for a period of at least six
months it would be wholly inequitous to grant ex-parte ad interim relief as
prayed for. As the plaintiffs' approach was evidently belated, notice could
not have been dispensed with. It is now settled that if constructions have
come up the same should not be stalled unless the party objecting to
construction has been able to bring forth exceptional material like lack of
sanctioned plan that would persuade the Court to pass a restraint order.
61. Furthermore, the development agreement dated August 7, 2019, reveals that
a sum of Rs. 5,00,00,000/- had been paid to the Indian Church Trustees i.e.
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respondent no. 2 by the appellants. A copy of the development agreement
forms part of the plaint as an annexure which demonstrates that the
principal respondents had knowledge about such assertion in the
development agreement. In fact the principal respondents have also relied
on various clauses of the said agreement during the hearing. What surprises
us is that despite knowledge about such recital in the agreement there is no
assertion in the plaint that such amount or any part thereof had not been
received by the plaintiff no. 2. We are aware that the plaintiffs have denied
receipt of such payment during the hearing before us and have sought for
cancellation of the development agreement but then cancellation of the
development agreement would be the final relief, if the suit withstands trial
and succeeds. At the ex-parte ad interim stage the averments in the plaint
would matter the most. Non-denial by the respondents/plaintiffs of a strong
statement (in the recital of an agreement) alleging payment of a sum to the
tune of Rs.5,00,00,000/- to the respondent no. 2 itself who has challenged
the agreement cannot be lightly ignored at the ex-parte ad interim stage.
62. It is now well settled that relief of injunction is an equitable relief and both
delay and acquiescence defeat equity. The Hon'ble Supreme Court had in
the case of Mandali Ranganna10 (supra) while considering a similar fact
situation refused to grant injunction against the Builder/Developer, with the
following observations:
21. While considering an application for grant of injunction, the court
will not only take into consideration the basic elements in relation
thereto viz. existence of a prima facie case, balance of convenience
and irreparable injury, it must also take into consideration the
conduct of the parties.
22. Grant of injunction is an equitable relief. A person who had kept
quiet for a long time and allowed another to deal with the properties
exclusively, ordinarily would not be entitled to an order of
injunction. The court will not interfere only because the property is a
very valuable one. We are not, however, oblivious of the fact that
grant or refusal of injunction has serious consequence depending
upon the nature thereof. The courts dealing with such matters must
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make all endeavours to protect the interest of the parties. For the
said purpose, application of mind on the part of the courts is
imperative. Contentions raised by the parties must be determined
objectively.
********************* ****************** ***************
******************
26 Rightly or wrongly constructions have come up. They cannot be directed to be demolished at least at this stage. Respondent 7 is said to have spent three crores of rupees. If that be so, in our opinion, it would not be proper to stop further constructions. 27 We, therefore, are of the opinion that the interest of justice would be sub served if while allowing the respondents to carry out constructions of the buildings, the same is made subject to the ultimate decision of the suit. The trial court is requested to hear out and dispose of the suit as early as possible. If any third-party interest is created upon completion of the constructions, the deeds in question shall clearly stipulate that the matter is sub judice and all sales shall be subject to the ultimate decision of the suit. All parties must cooperate in the early hearing and disposal of the suit. The respondents must also furnish sufficient security before the learned trial Judge within four weeks from the date which, for the time being, is assessed at rupees one crore.
[Underscored for emphasis]
63. The above-quoted observations of the Hon'ble Supreme in paragraphs 21, 22 and 26 of the judgment in the case of Mandali Ranganna10 (supra) clearly guide us to decide against the plaintiffs at this stage.
64. The submission of the plaintiffs, while referring to paragraph 20 thereof, that the said judgment would not apply to the facts of the instant case inasmuch as in the said case a public notice had been issued does not appeal to us at all. We have already discussed hereinabove that the averments in paragraph 14 of the plaint and paragraph 16 of the application for injunction clearly evince that the plaintiffs acquired knowledge about the construction in September 2024 and that the explanation proffered by the plaintiffs in the subsequent paragraphs do not justify their belated approach to court.
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65. Insofar as the judgments in the case of Committee of Management of Pachaiyappa's Trust5 (supra) and Mohan Lall Seal & Ors.6 (supra) cited by the plaintiffs are concerned, the same are indeed instructive and edifying as regards the manner in which a Trust Property should be dealt with but the same would not help the plaintiffs in the present case and at the present stage at all. We are at the ad interim stage and the maintainability of the suit rather the jurisdiction of this Court to try the suit itself is under question. The question as to whether the Trust property has been properly dealt with or not can be thrashed out only upon evidence and not at the ex parte ad interim stage. The said judgments would not therefore aid the plaintiffs in sustaining the impugned ad interim order of injunction.
66. As regards the Privy Council judgment in the case of Gopi Narain7 (supra) this Court is of the view that the instant case is not at all of "inartificially framed" prayers. It is rather a case where the prayers resonate with the pleadings and therefore lead the Court to form the prima facie view that the court lacks jurisdiction to try the suit in question.
67. Insofar as the judgment in the case of Macneill and Magor Ltd.4 (supra) is concerned, the same was cited by the plaintiffs to assert that the provisions of Order 7 Rule 10 of the Code do not apply to this Court and that in the said case the Court had therefore exercised powers under Section 24 of the Code to transfer the suit while keeping the interim order intact till the transfer was effected.
68. The said judgment was delivered in an appeal against an order dismissing the suit for want of jurisdiction as the suit in question was suit for land. Such order had been passed on an application by the defendants in the suit praying for dismissal of the suit for want of jurisdiction. In the case at hand, the appeal is against an ex parte ad interim order of injunction i.e. an order passed by the court at a stage when it was considering prima facie case.
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69. It is now well settled that if at the stage of considering prima facie case, the Court finds from the averments made in the plaint itself, that the Court has no jurisdiction to entertain the suit in accordance with law, it should reject the application for injunction on the ground of absence of prima facie jurisdiction of the Court to give the ultimate relief to the plaintiff. (See - Axis Bank Ltd. v. MPS Greenery Developers Ltd.)13
70. It is equally well settled that the scope of an appeal against an ex parte ad interim order of injunction is limited only to the examination as to whether the order under appeal is correct or not, therefore, our findings in this judgment would only be prima facie. In any case, in terms of Section 107 of the Code and principles analogous thereto, this Court being the appellate Court would have the same powers and duties as that of the original Court and in such view of the matter, we do not deem it proper for us to exercise the power under Section 24 of the Code at this stage.
71. We could have passed an order imposing exactly similar conditions as regards stipulation about the matter being sub judice in deeds creating third party rights and interests and furnishing sufficient security before the learned Trial Judge, as done by the Hon'ble Supreme Court in paragraph 27 of the judgment in the case of Mandali Ranganna10 (supra) but we are dissuaded from doing in view of the fact that in the case before the Hon'ble Supreme Court, jurisdiction of the court was not in issue and in the instant case we have prima facie found that this Court lacks jurisdiction to entertain the suit for reasons detailed hereinabove. We therefore set aside the order dated March 20, 2025, passed in G.A. No. 1 of 2025 in connection with C.S No. 35 of 2025 with the observation that the construction conducted by the appellants shall abide by the result of the suit.
72. With the aforesaid observations APOT 94 of 2025 stands allowed. GA 1 of 2025 stands disposed of accordingly. No order as to costs.
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73. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance of all formalities.
I agree.
(Arijit Banerjee, J.) (Om Narayan Rai, J.) LATER 74. After the judgment is pronounced, learned Advocate for the
respondents/plaintiffs prays for stay of operation of the judgment and order.
75. The prayer is considered and refused.
(Arijit Banerjee, J.) (Om Narayan Rai, J.)
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