Calcutta High Court (Appellete Side)
Maharaj Commercial Private Limited And ... vs Sundari Bibi And Others on 18 July, 2019
1 S/L. 8.
July 18, 2019.
MNS.
C. O. No. 672 of 2019 Maharaj Commercial Private Limited and another Vs. Sundari Bibi and others with C. O. No. 236 of 2019 Sundari Bibi Vs. Abul Kasem Molla and others Mr. Saptangshu Basu, Mr. Debjit Mukherjee, Mr. Kaustav Bhattacharya ... for the petitioners in C. O. No. 672 of 2019 and opposite party nos. 4 and 5 in C. O. No. 236 of 2019.
Mr. Partha Pratim Roy, Mr. Sounak Bhattacharya ...for the petitioner in C. O. No. 236 of 2019 and opposite party no. 1 in C. O. No. 672 of 2019.
Affidavits-of-service filed in Court today are taken on record. C. O. No. 672 of 2019 and C. O. No. 236 of 2019 are taken up together for hearing, since both the revisional applications have been preferred against the same order.
By virtue of the impugned order, the appellate court, while setting aside an order of status quo passed by the trial court, added two riders, to the effect that the defendant nos. 4 and 5, being the purchasers of the property, shall not claim any equity to any extent if the 2 plaintiff succeeds in establishing her claim in respect of the suit property and that the said defendants shall not create any third party interest in respect of the suit property by executing any document of whatever nature without mentioning the fact of pendency of the suit, so that the vendee(s) thereof, if any, cannot claim himself or themselves to be bona fide purchasers without notice.
The plaintiff, being the petitioner in C. O. No. 236 of 2019, filed the suit challenging a sale deed in favour of the defendant nos. 4 and 5, apparently executed by the plaintiff herself through a power of attorney allegedly in favour of defendants-opposite party nos. 1 to 3.
It is relevant to mention that the defendant no. 1 is the son, the defendant no. 2 is the grandson and the defendant no. 3 is the daughter-in-law respectively of the plaintiff.
In the said suit, the petitioner took out an application for temporary injunction restraining the opposite parties from taking over possession of the suit property, changing the nature and character thereof and/or from transferring the property by creating any third party interest in any manner.
The trial court allowed the said application, directing both the parties to maintain status quo in respect of the nature, character, possession and alienation of the suit property till disposal of the suit.
The appellate court, while reversing such order, added the two riders as indicated above.
Learned senior counsel for the petitioners in C.O. No. 672 of 2019, who were the purchasers of the property, argues that the appellate court acted without jurisdiction in adding such restrictions in the form of riders, despite having repeatedly held that the plaintiff does not have any prima facie case to go for trial. The premise of the plaintiff's case is that the plaintiff 3 did not execute any power of attorney in favour of the defendant nos. 1 to 3 and as such, both the power of attorney and the sale deed executed by virtue thereof were fraudulent and ought to be set aside.
It is argued by the petitioners-defendant nos. 4 and 5 that it has been the practice of the plaintiff to enter into such transactions, despite her being a pardanashin lady. Moreover, since photocopies of the bank drafts showing payment of consideration were produced in the court below, there cannot be any doubt as regards the transaction being valid. The bank drafts-in- question were in the name of the plaintiff herself.
It is argued that the appellate court rightly attached presumption of correctness to the registered documents-in-question and the plaintiff could not rebut such presumption by any cogent material, sufficient to create a prima facie case in her favour justifying the grant of injunction. Learned senior counsel argues that the balance of convenience and inconvenience is in favour of the defendant nos. 4 and 5 since they invested huge amounts to raise structures on the suit property.
As such, it is argued that the appellate court acted without jurisdiction in not setting aside the order of the trial court outright, but adding unnecessary restrictions against the defendant nos. 4 and 5.
Learned counsel for the plaintiff submits that the defendant nos. 4 and 5, in their written objection in the court below, categorically admitted that the plaintiff is a pardanashin lady, thereby casting burden on the said defendants to prove the validity of the transaction.
It is further argued that a plain reading of the purported power of attorney would show that the same did not contain any clause recording that the same was read over and explained to the plaintiff, who is an illiterate and pardanashin lady. 4
Moreover, no photograph of the plaintiff was found from the relevant documents and registration of the deeds apparently took place on commission. As such, the presumption of correctness usually attached to registered document could not be attached to the present case, more so since the plaintiff was illiterate and pardanashin.
It is further argued on behalf of the plaintiff that mere production of photocopies of bank drafts would not necessarily imply that those were encashed, that too, by the plaintiff herself. Hence, it is submitted that the appellate court acted without jurisdiction in setting aside the status quo order at all and ought to have affirmed in full the status quo order of the trial court.
It is seen from the materials on record that the defendant nos. 4 and 5 produced photocopies of bank drafts issued in the name of the plaintiff herself.
That apart, the appellate court relied on certain findings of a report filed in a connected criminal proceeding, which substantially indicate that the left thumb impression on the disputed documents was of the plaintiff.
Mere absence of a clause, recording that the document was read over and explained, by itself may not vitiate a document, since a person with the intention to defraud could easily insert such a clause in a document despite the same having not been actually read over and explained, since an illiterate person would not be able to decipher the mean of such clause in any event.
Although the illiteracy and purdah of the plaintiff created an initial onus on the defendant nos. 4 and 5, the alleged purchasers, to dispel the doubt as to validity of the sale deed-in-question, in the present case, such initial onus was discharged by the defendant nos. 4 and 5, at least prima facie, by production of the bank drafts and the registered documents- in-question. The fact that the defendant nos. 4 and 5 explained in their written objection that 5 there were previous transactions of a similar nature by the plaintiff despite the plaintiff being a pardanashin lady, shows that the defendant nos. 4 and 5 did not suppress the fact that the plaintiff was a pardanashin lady, although the said fact was not mentioned in clear terms by the plaintiff herself, despite her having claimed that she is an illiterate lady.
Since sufficient initial rebuttal material was produced by the defendant nos. 4 and 5 to dispel the doubt cast in view of the plaintiff being pardanashin and illiterate, the appellate court was justified in arriving at the conclusion that the plaintiff failed to establish a prima facie case to go for trial. If the mere fact, that a person is an illiterate and pardanashin lady, would entitle her to injunction in every case despite sufficient primary materials being produced in support of the valid transaction, an occasional unscrupulous plaintiff would only need to plead such traits and file a suit to create pressure on the defendant by obtaining an injunction, forcing the defendants to come to a truce.
As such, since the appellate court was justified in coming to the finding that no prima facie case was established by the plaintiff, the addition of the rider as regards the defendant nos. 4 and 5 inserting a clause in the proposed transactions as regards the litigation, was uncalled for and ought not to have been imposed. However, the other rider, that the defendant nos. 4 and 5 shall not claim any equity to any extent if the plaintiff succeeds in establishing her claim in respect of the suit property, is a given in the context and cannot be faulted.
In such circumstances, C. O. No. 672 of 2019 and C. O. No. 236 of 2019 are disposed of, thereby modifying the impugned order dated December 24, 2108 passed by the Additional District Judge, Fast Track Court No. II at Alipore, District- South 24 Parganas, in Miscellaneous Appeal No. 105 of 2018, to the effect that the rider (b), pertaining to the 6 defendant nos. 4 and 5 not creating any third party interest in respect of the suit property by executing any document without mentioning the fact of pendency of the suit, is set aside.
It is made clear that the observations made in the present revisional applications or in the order of the courts below shall not influence the trial court in any manner at the hearing of the suit.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)