Rajasthan High Court - Jodhpur
Smt. Swati Bhatia vs Lalit Upadhyay Shastri And Ors on 6 September, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 955/2018
Smt. Swati Bhatia W/o Shri Bhupesh Bhatia, R/o Bicchu Magri,
Bagol Road, Nathdwara, Dist. Rajsamand Raj.
Versus
1. Shri Lalit Upadhyay Shastri S/o Late Shri Shyam Sunder
Upadhyay Shastri, By Caste Bramhin R/o Imli Ke Niche,
Nathdwara, Dist. Rajsamand Raj.
2. Shri Sudhakar Upadhyay Shastri S/o Late Shri Shyam
Sunder Upadhyay Shastri, By Caste Bramhin R/o Upside
Bank Of Baroda, Taxi Stand, Dist. Rajsamand Raj.
3. Shri Ratnakar Upadhyay Shastri S/o Late Shri Shyam
Sunder Upadhyay Shastri, By Caste Bramhin R/o
Mohangarh, Nathdwara, Dist. Rajsamand Raj.
4. Smt. Rama Bacch D/o Late Shri Shyam Sunder Upadhyay
Shastri W/o Shri Satish Kumar Bacch, By Caste Bramhin
R/o R.c. Vyas Colony, Bhilwara Raj
5. Smt. Snehlata Pauranik D/o Late Shri Shyam Sunder
Upadhyay Shastri W/o Shri Shanti Lal Pauranik, By Caste
Bramhin R/o Jhanga Gali, Jawad, Tehsil Jawad, Dist.
Neemach M.P.
6. Smt. Pushpa Upadhyay Shastri S/o Late Shri Harikant
Upadhyay Shastri, By Caste Bramhin R/o Imli Ke Niche,
Nathdwara, Presently Hiran Magri Sector No. 4, Udaipur
7. Shri Atul Upadhyay Shastri S/o Late Shri Harikant
Upadhyay Shastri, By Caste Bramhin R/o Imli Ke Niche,
Nathdwara, Presently Hiran Magri Sector No. 4, Udaipur
8. Shri Sharad Upadhyay Shastri S/o Late Shri Harikant
Upadhyay Shastri, By Caste Bramhin R/o Imli Ke Niche,
Nathdwara, Presently Hiran Magri Sector No. 4, Udaipur
9. Shri Arvind Kumar Bhatt Rehi S/o Late Shri Balkrishna
Bhatt Rehi, By Caste Bramhin R/o Turist Banglow Road,
Lal Bagh, Nathdwara Presently Malad East, Mumbai
Maharashtra
10. Shri Nathdwara Mandir Mandal, Nathdwara through its
Chief Executive Officer.
11. Sub Registrar, Nathdwara, Dist. Rajsamand.
----Respondents
(2 of 12) [CMA-955/2018]
For Appellant(s) Mr. Vinit Sanadhya
For Respondent No.1&3 Mr. Rajat Dave
For Respondent No.2 Mr. Vineet Dave
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment Reportable 06/09/2018 Appellant (defendant), a bona fide purchaser of immovable property, has approached this Court for vindicating her rights vis- à-vis the property which are emanated from a registered instrument of sale. The endeavour of the appellant is to get rid of temporary restraining order dated 14 th of February 2018, passed by Additional District & Sessions Judge, Nathdwara, District Rajsamand (for short, 'learned trial Court'), foreclosing her rights to raise construction on the property in question. Order impugned came into offing due to indulgence granted by the learned trial Court upon allowing application for temporary injunction of the respondent-plaintiff in their suit for preemption with consequential reliefs and perpetual injunction.
2. Succinctly stated, the facts of the case are that respondent- plaintiffs instituted a civil suit against appellant-defendant and other proforma respondents for craving aforementioned reliefs. In the plaint, it is inter-alia averred by the respondent-plaintiffs that all of them are legal heirs of Late Shri Shyam Sunder Upadhyay, who purchased shops No.15, 16, 17 & 18 from Goswami Tilkayat Shri Govindlal, by a registered sale-deed dated (3 of 12) [CMA-955/2018] 15th of March 1971. It is further averred that after demise of Shri Shyam Sunder, all of them are in possession of the property as its owner. A fact pertaining to purchase of roofs of all the aforementioned shops by Shri Shyam Sunder Upadhyay admeasuring 12 x 23 sq.ft. from Tilkayat Shri Govindlal is also incorporated in the plaint with material particulars about date of registered instrument as 24th of September, 1997. The respondent-plaintiffs also pleaded that after execution of sale- deed dated 24th of September 1997, proforma respondent No.9/second-defendant, preferred a civil suit for preemption against Shri Shyam Sunder Upadhyay and Nathdwara Temple Board, Nathdwara before Munsif & Judicial Magistrate, Nathdwara bearing Civil Suit No.213 of 1978 and the said suit was decided on 5th of December, 1980. As per positive assertion of the respondent-plaintiffs, in Civil Suit No.213/78, Court has acknowledged and recognized right of preemption by treating both the properties of co-ownership.
3. By asserting all these facts, a specific plea was incorporated in the pleadings that respondent-plaintiffs are having right of preemption vis-à-vis property owned by proforma respondent No.9/second-defendant and, therefore, it was obligatory on his part to have served a notice to the respondent-plaintiffs under Section 8 of the Rajasthan Pre-emption Act, 1966 (for short, 'Act') before entering into sale transaction with the appellant-defendant. Respondent-plaintiffs also mentioned in the plaint that predecessor-in-title of the appellant proforma respondent No.9 has transferred the property in question to appellant-defendant by a registered sale-deed dated 28 th of October, 2016 by accepting (4 of 12) [CMA-955/2018] consideration amount of Rs.15 Lakhs dehors Section 8 of the Act. The dimensions of the property sold by proforma respondent No.9 to appellant with neighbourhoods are also mentioned in the plaint.
4. The respondent-plaintiffs, while asserting their right of preemption have also pleaded in the plaint that had the proforma respondent No.9/second-defendant divulged requisite information to them, showing his intention to sale the property at aforementioned consideration amount, they could have purchased the same. Further, persisting with their plea of non-adherence of Section 8 of the Act, respondent-plaintiffs have stated in the plaint that proforma respondent No.9/second-defendant has not sought any consent of the respondent-plaintiffs before entering into sale transaction with the appellant, and therefore, the sale-deed dated 28th of October, 2016 is void and ineffective vis-à-vis their rights. Execution of sale-deed dated 28th of October 2016, therefore, according to respondent-plaintiffs has furnished right of preemption to them under Section 4 of the Act. With all these facts, requisite prayers are incorporated in the plaint.
5. Alongwith the plaint, respondent-plaintiffs also filed an application under Order 39 Rule 1 & 2 CPC reiterating the same facts. The application for temporary injunction is contested by the appellant as well as proforma respondent No.9 refuting all the allegations. On behalf of appellant as well as proforma respondent, it was specifically averred in reply to temporary injunction application that vis-à-vis property in question no right much less right of preemption has accrued to the respondent- plaintiffs as a consequence of execution of sale deed dated 28 th of (5 of 12) [CMA-955/2018] October, 2016. With this positive assertion, appellant has pleaded in the return that Section 8 of the Act is not attracted. While referring to the judgment dated 5 th of December, 1980, passed by Munsif & Judicial Magistrate, Nathdwara, appellant as well as proforma respondent No.9 averred in their reply that it was a compromise decree, therefore, cannot operate as res-judicata.
6. On behalf of appellant, specific plea is buttressed that Civil Suit No.213 of 1978 was decided on merits and consequently the Court while deciding the same on the strength of compromise has not adjudicated the issue relating to right of preemption by analyzing and applying principles governing the said right of the suitor. Alternatively, it is also stated in the reply by the appellant that as per compromise decree dated 5 th of December 1980, on the common wall admeasuring 2½ ft rival parties with their consent shall be free to raise construction on half of it, i.e., 1¼ ft each, and therefore, right of preemption claimed by the respondent-plaintiffs on the strength of compromise decree too is not tenable. Even otherwise, according to the appellant, this Court has held that in case of a joint wall none of the parties can claim right of preemption. Asserting her right as bona fide purchaser to enjoy the property in question, appellant also averred in the reply that respondent-plaintiffs are having no prima facie case in their favour for grant of temporary injunction. That apart, regarding the two other necessary ingredients for grant of temporary injunction also, on behalf of appellant, it was specifically pleaded that both of them are conspicuously missing inasmuch as construction at the site is being carried out by her after obtaining sanction from Municipal Board, Nathdwara.
(6 of 12) [CMA-955/2018]
7. The learned trial Court, after hearing rival parties, by the order impugned, accepted temporary injunction application of the respondent-plaintiffs and restrained appellant from raising any construction on the property in question besides prohibiting her to alienate the same.
8. Learned counsel for the appellant, Mr. Vinit Sanadhya, while assailing the impugned order, buttressed all the grounds urged in the appeal. It is also contended by learned counsel that impugned order has resulted in miscarriage of justice inasmuch as the order virtually deprived a lawful owner to enjoy the property. Mr. Sanadhya, learned counsel for the appellant, would contend that findings of the learned Court below on prima facie case are wholly perverse and the conclusion of the learned trial Court on remaining two necessary ingredients for grant of temporary injunction is bereft of any reason much less cogent reasons. In the alternative, it is submitted by learned counsel Mr. Sanadhya that appellant may be permitted to raise construction subject to her undertaking not to alienate the suit property till final disposal of the suit. In support of his argument, learned counsel for the appellant has relied on a judgment of Supreme Court in the case of Narendra Kante Vs. Anuradha Kante & Ors. [(2010) 2 SCC 77].
9. Per contra, Mr. Rajat Dave, learned counsel for respondent No.1 & 3, submits that impugned order warrants no interference in exercise of appellate jurisdiction. Mr. Rajat Dave, learned counsel has argued that preemption right of the rival parties vis-à-vis property in question is no more res integra as settled between (7 of 12) [CMA-955/2018] respondent-plaintiffs and the predecessor-in-title of the appellant, therefore, a discretionary order cannot be made subject matter of judicial review in the instant appeal. In support of his arguments, learned counsel has relied on following judgments:
(1) Judgal Kishore Vs. Shantimal & Ors. [1986 (2) WLN 764] (2) Maharwal Khewaji Trust (Regd.) Faridkot Vs. Baldev Dass (AIR 2005 SC 104) (3) M. Paramashivam & P. Nithyakalyani Vs. I. Karuppaiah, S. Matheswari & G. Annamatai [2011 (2) CTC 515] (4) Sonia Vs. Smt. Snehlata (S.B. Civil Misc. Appeal No.2097/2011, decided on 30.01.2013).
10. Learned counsel for second respondent Mr. Vineet Dave has reiterated arguments advanced by Mr. Rajat Dave. While joining issue with the appellant, learned counsel Mr. Vineet Dave submits that power of the appellate Court to interfere with the discretionary order of the trial Court in the matter of grant or refusal of injunction is very much limited and required to be exercised under exceptional circumstances. For substantiating his arguments, learned counsel has placed reliance on following judgment:
▪ Skyline Education Institute (Pvt.) Ltd. Vs. S.L. Vaswani (AIR 2010 SC 3221).
I have given my anxious considerations to the arguments advanced at Bar, perused the impugned order and also scanned the materials available on record.
11. Appeal against grant or refusal of temporary injunction is an appeal on principle, precisely, for the reason that said order being (8 of 12) [CMA-955/2018] discretionary it is the prerogative and repository of the Court of first instance. Well it is true that scope of judicial review against a discretionary order of the Court of first instance by the appellate Court is very much limited and circumscribed but then it is rather difficult to comprehend that appellate Court is loathed with the power to interfere in the matter. When an appeal is preferred against a discretionary order, granting or refusing injunction by the trial Court, appellate Court is expected to examine as to whether the Court of first instance has exercised its discretion judiciously in adherence of sound principles of law and practice. In case, the appellate Court finds that the Court of first instance has exercised its discretion arbitrarily or capriciously, or perversely, or while passing the order exercised its jurisdiction dehors the settled principles of law regulating grant or refusal of interlocutory injunctions, its jurisdiction is not circumscribed to interfere with the order. The judgments dilating on the powers of appellate Court in the matter of grant or refusal of temporary injunction, relied upon by the learned counsel for the respondents, are examined by me and I record my concurrence with the legal propositions adumbrated therein.
12. However, at the stage of passing temporary injunction order, competent Court is obliged to form its opinion on availability of prima facie case in favour of plaintiff and further record its satisfaction regarding two other necessary ingredients; viz., balance of convenience and irreparable injury. Essentially, these are three pillars on which rests the foundation of any order of injunction. Although jurisdiction to grant temporary injunction is discretionary, but the same has to be exercised with utmost care (9 of 12) [CMA-955/2018] and caution. The phrase "prima facie case" cannot be construed to have a magic connotation. In legal parlance, it means a case sufficient on its face, supported by atleast the minimum level of evidence. In other words, a case that should prevail in absence of contradictory evidence. More precisely, the term 'prima facie case' can be defined as under:
"There is serious question to be tried in suit to dispel cloud of doubt relating to plaintiff's entitlement."
13. Contextually, now, if the afflictions of the appellant are examined, then it clearly emerges out that subject matter of the suit is an immovable property. Law postulates that in the event of any genuine dispute between the rival parties concerning immovable property, changing its status during pendency of the suit may not be congenial and its detrimental effect on the rights of the plaintiff are of high magnitude. Therefore, normally, in a suit for partition, redemption of mortgage and specific performance of contract, Courts are adopting a pragmatic approach to preserve and protect status/nature of the immovable property to avoid multiplicity of proceedings and other complications. Likewise, a suit for preemption also falls in the same category. Be that as it may, in a suit for preemption, at times, it may be too harsh for a bona fide purchaser to enjoy the property when its rights to reap the fruits flowing from title are sought to be jeopardized at the instance of any unscrupulous or ingenious litigation. Thus, in the considered opinion of the Court, while granting indulgence to plaintiff in a suit for preemption in the form of temporary injunction, a Court of first instance is expected to examine prima facie case with a practical and (10 of 12) [CMA-955/2018] pragmatic approach sans purely pedantic and idealistic view of the matter. A litigant, who has approached the Court asserting his right of preemption, is required to plead and prove for grant of temporary injunction his preferential right to purchase the immovable property, which has been sold to other.
14. The right of preemption is duly recognized by custom among Hindus since Pre-Independence Era and subsequently in the year 1966 a comprehensive law on the subject in the form of Act came into offing. According to popular view, preemption right can be classified in three categories: (i) superior rights of preemption,
(ii) equal rights of preemption, and (iii) inferior rights of preemption. Section 4 of the Act envisages cases in which right of preemption accrues and Section 6 defines the persons to whom right of preemption accrues. While it is true that threadbare examination of the right of preemption at the stage of consideration of temporary injunction application is not desirable inasmuch as the same can be adjudicated in the main suit after taking evidence of the rival parties, but then temporary injunction applications in such matters cannot be decided in a cursory manner. While granting temporary injunction, a Court is not expected to be swayed solely on the basis of subject matter of the suit and reliefs prayed therein.
15. If the impugned order is scrutinized, more particularly, with respect to the finding of learned Court below on prima facie case, then it would ipso facto reveal that for prima facie acknowledging preemption right of the plaintiff, learned trial Court has solely relied on a compromise decree dated 5 th of December 1980, which was passed in a suit filed by predecessor-in-title of the appellant (11 of 12) [CMA-955/2018] against Shyam Sunder Upadhyay, ancestor of the respondent- plaintiffs. True it is that in the earlier litigation between contesting parties compromise decree was passed but, I am afraid, such a compromise decree cannot be categorized as a decision by the Court. A compromise decree merely sets the seals of the Court on the agreement of the parties. Therefore, finding of the learned Court below on prima facie case, which is entirely edificed on the compromise decree and not by examining facts of the instant case objectively and independently, is per se not a sound exercise of discretion by the learned Court below.
16. Existence of prima facie case is sine qua non for grant of temporary injunction and, therefore, a Court deciding such prayer cannot shirk from its responsibility to examine the same in the backdrop of facts and circumstances of the individual case. The terms of compromise decree dated 5 th of December, 1980 also do not find mention in the impugned order, is yet another glaring infirmity highlighting perverse exercise of discretion by the learned Court below while recording its affirmative findings on prima facie case. That apart, it clearly depicts ignorance of sound legal principles governing the province of grant of temporary injunction by the learned trial Court. This being the situation, even if impugned order is examined on the touchstone of limited scope of judicial review in the instant appeal, which is an appeal on principles, order under challenge is ex-facie vulnerable.
17. It is also noteworthy that the temporary injunction granted by the learned Court below has stalled construction of the appellant-defendant and, therefore, virtually deprived her to enjoy the property being its bona fide purchaser but this crucial issue (12 of 12) [CMA-955/2018] has not been addressed by the learned Court below while deciding two other necessary ingredients; i.e., balance of convenience and irreparable injury, in favour of respondent-plaintiffs. There cannot be two opinions that besides prima facie case, balance of convenience and irreparable loss are also necessary ingredients for grant of temporary injunction. I am also constrained to record my indignation for the reason that learned Court below has decided balance of convenience and irreparable injury in an absolutely casual and cursory manner inasmuch as the finding on these two ingredients is not supported by reasons much less sufficient reasons. Therefore, viewed from any angle, impugned order cannot be sustained.
The upshot of above discussion is that the instant appeal is allowed and the impugned order dated 14th of February 2018 passed by learned trial Court is reversed and set aside and the matter is remanded back to learned trial Court for deciding temporary injunction application of the respondent-plaintiffs afresh, strictly in accordance with law. It is clarified that while deciding temporary injunction application afresh, the learned trial Court shall examine the matter objectively in a dispassionate manner, uninfluenced by any observations made hereinabove touching merits of the case. The learned trial Court is further requested to de novo decide the application for temporary injunction as expeditiously as possible, preferably within a period of two months from the passing of this order.
(P.K. LOHRA),J Powered by TCPDF (www.tcpdf.org)