Rajasthan High Court - Jodhpur
Chunni Ram vs . Smt. Badho @ Badu & Anr. on 20 March, 2015
Author: P.K. Lohra
Bench: P.K. Lohra
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
Chunni Ram Vs. Smt. Badho @ Badu & Anr.
S.B. CIVIL MISC. APPEAL NO.2275 OF 2013
Date of Judgment: March 20, 2015.
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA, J.
Mr. G.R. Goyal, for the appellant.
Mr. Narendra Thanvi with Mr. Jogendra Singh, for
respondents.
*****
BY THE COURT:
Appalled by the impugned order dated 3rd December 2012, passed by learned Addl. District Judge No.2, Nohar, District Hanumangarh, appellant-plaintiff has laid this appeal under Order 43 Rule 1(r) of the Code of Civil Procedure 1908 (for short, 'CPC'). By the order under challenge, the learned Court below has rejected the application of the appellant under Order 39 Rule 1 & 2 CPC for grant of temporary injunction in a suit for specific performance of contract.
[2]
The bare necessary facts, for adjudication of this appeal, are that the appellant-plaintiff filed a civil suit against first respondent Smt. Badho alias Badu for specific performance of contract, inter-alia, on the ground that first respondent agreed to sale agricultural land to the appellant measuring 56 bighas and 7 biswas being part of Khasra No.23 & 26 located at village Jorawarpura and executed an agreement to sale in his favour. As per agreement, appellant-plaintiff paid a substantial amount of consideration to the tune of Rs.90,000/- as against total amount of consideration Rs.1,04,000/-. It is also averred that as part performance of the contract, possession of the land is also handed over to the appellant. Referring to yet another agreement, reiterating agreement dated 24th February 1994, the appellant has pleaded in the plaint that on 24th May 1994 the first respondent in the form of ratification of earlier agreement executed yet another agreement after accepting consideration amount of Rs.10,000/- and as such the remaining consideration amount was a petty sum of Rs.4,000/- only. As per the version of the appellant, after execution of agreement to sale, first respondent shifted her permanent abode to District [3] Firozpur (Punjab) and that being so sale-deed could not be registered and on her assurance that as and when she would return back to Nohar for registration of the sale- deed, appellant waited for her return. In order to show cause of action, the appellant-plaintiff has averred that on 24th March 2012 the respondent refused to execute sale- deed in adherence of the agreement to sale and that has prompted him to file the suit for specific performance of contract. Before this Court, at the instance of appellant, Begh Raj was impleaded as respondent. Along with the suit, the appellant also preferred an application under Order 39 Rule 1 & 2 CPC for temporary injunction praying therein that during pendency of the suit the first respondent be restrained from further alienating the suit property.
The application, for temporary injunction, is contested by the respondent with specific denial about execution of agreement to sale. According to first respondent, the alleged agreements dated 22nd February 1994 and 24th May 1994 are spurious documents and in terms of the recitals contained in these agreements, she has not received any amount from the appellant. Pleading in the return that she is an old Parda Nashin [4] illiterate lady and in order to dupe her appellant has manipulated and maneuvered everything to grab her agricultural land respondent resisted the prayer for T.I. In the return, a specific plea is also incorporated that this entire transaction is brainchild of the appellant in connivance with one Loone Khan with whom respondent was having transactions. Alleging nexus between appellant and Loone Khan, respondent has pleaded that he misguided her to put her thumb impression on the stamp papers for some other purpose but probably the said stamp papers have been mis-utilized by Loone Khan in connivance with the appellant to give it the shape of an agreement to sale for the disputed land. In the alternative, it is also pleaded that in terms of the alleged agreement to sale, the suit as such is barred by limitation, and therefore no interim relief can be granted to the appellant.
The learned Court below, after hearing the rival parties, noticed that the appellant has failed to establish prima facie case in his favour for grant of temporary injunction. Further, taking note of the conduct of the appellant in concealing a material fact about launching litigation before the revenue courts for [5] declaring him Khatedar tenant, on the strength of plea of adverse possession, the learned Court below has found that appellant has not approached the Court with clean hands and therefore he is not entitled for temporary injunction. The learned Court below has also taken cognizance of Section 52 of the Transfer of Property Act, wherein principle of lis pendens is envisaged, and eventually found that there is no prima facie case in favour of appellant for grant of temporary injunction. Switching on to the other ingredients, viz., balance of convenience and irreparable loss, the learned Court below has found that both these ingredients are also conspicuously missing, and in these situations declined the relief of temporary injunction.
Learned counsel for the appellant has vehemently argued that while passing the impugned order, the learned Court below has not examined the matter in entirety and therefore the impugned order cannot be sustained. Learned counsel Mr. Goyal submits that although appellant has filed revenue suit, but the same was subsequently withdrawn, and therefore in these circumstances deniable of relief of temporary injunction to the appellant, solely on the ground of non-disclosure of [6] this fact about laying of revenue suit, has rendered the order impugned vulnerable. Learned counsel, Mr. Goyal, would contend that true it is that temporary injunction is a discretionary relief but a Court is expected to exercise its jurisdiction judiciously and not perversely, or capriciously in utter disregard to sound legal principles. In support of his contentions, Mr. Goyal has placed reliance on following judgments:
1. Ashwin Kumar K. Patel Vs. Upendra J. Patel & Ors. [1999 DNJ (SC) 207
2. Mohd. Mehtab Khan & Ors. Vs. Khushunma Ibrahim & Ors. (AIR 2013 SC 1099)
3. Jugal Kishore Garg Vs. Shri Anand Srivastava & Ors. [2013 (2) WLC (Raj.) 87]
4. Niranjan Singh & Anr. Vs. Rajesh Kumar [2013 WLC (Raj.) UC 426].
Per contra, Mr. Narendra Thanvi, learned counsel for the respondents submits that the learned Court below has examined the matter in its entirety and has exercised its discretion judiciously in passing the impugned order, which is not liable to be interfered in this appeal. Learned counsel Mr. Thanvi has urged that initially agreement to sale dated 24th February 1994, on which the entire suit is based, clearly envisage the crucial date for [7] execution of sale-deed as 22nd of February 1995 and therefore on the face of it filing of the suit for specific performance of contract in the year 2012 is barred by limitation in terms of Article 54 of the Limitation Act, 1963. Learned counsel for the respondents submits that there is nothing on record to show that appellant has made any endeavor to call upon the respondent to perform her part of the contract inasmuch as the alleged cause of action for laying the suit is vague and cryptic. Elaborating his submission in this behalf, Mr. Thanvi has contended that date of alleged accrual of cause of action i.e. 24th of March 2012 is without any basis inasmuch as the alleged denial by the respondent is oral and there is no semblance of proof that any notice was given by the appellant to the respondent for performing her part of the contract. Therefore, Mr. Thanvi submits that the entire edifice of the suit is some of the facts, which are per-se false and concocted. Learned counsel would contend that grant or refusal of temporary injunction is within the sole discretion of the Court of first instance and power of judicial review by the appellate Court in these matters is very much limited. Lastly, Mr. Thanvi has urged that the learned Court below has also invoked the doctrine of lis pendens and as such no interference with the impugned [8] order is warranted. In support of his contentions, learned counsel has placed reliance on following judgments:
Smt. Vimla Devi Vs. Jang Bahadur (1977 RLW
326) Lrs of deceased Bhagwanti Vs. Nand Lal & Anr.
[2009(1) DNJ (Raj.) 155].
I have heard learned counsel for the rival parties, perused the impugned order and other materials available on record.
The first and the foremost question that has emerged for consideration of this Court is the very edifice of the suit for specific performance of contract. There remains no quarrel in the factual position that the alleged agreement to sale is dated 24th February 1994 wherein it is clearly stipulated that the prospective vendor (respondent) would execute requisite sale-deed on or before 22nd February 1995. Therefore, a plain reading of the agreement to sale makes it amply clear that the parties had agreed for culminating agreement to sale into registered instrument of sale on or before 22nd of February 1995. In that background, the subsequent agreement, which is nothing but reiteration of the earlier [9] agreement, prima facie, some of its recitals are irreconcilable, more particularly the term "registered deed would be executed by the vendor at the will of the purchaser". The very fact that there is no specific recitals in the subsequent agreement for changing the last date for registration of instrument, I am afraid, the contention of the learned counsel, that period of limitation has not been reckoned from 22nd of February 1995, cannot be sustained. Be that as it may, the fact remains that the alleged effort by the appellant is made for getting sale-deed executed as late as in March 2012, further creates serious doubts and suspicion about the entire transaction, more particularly, when the appellant has specifically pleaded that he has paid almost entire amount of consideration to the respondent. An incumbent purchaser, who has paid substantial amount of consideration to the vendor, is not expected to wait for almost two decades for getting the land transferred in his name by a valid instrument. The plea of the appellant that he made endeavor to persuade the respondent to execute sale-deed on 24th of March 2012 is prima facie not convincing and inspiring confidence. The period of limitation is envisaged under Article 54 of the Limitation Act 1963, which reads as under:
[10]
Description of suit Period of Time from which period limitation begins to run
54. For specific Three years The date fixed for the performance of a performance, or, if no contract such date is fixed, when the plaintiff has notice that performance is refused.
Therefore, on the face of it, the enforcement of the agreement to sale itself is under cloud. While considering the prayer of the appellant for temporary injunction, the learned Court below has also invoked the principles of equity, justice and good conscience by observing that the appellant has not approached the Court with clean hands. It goes without saying that temporary injunction is an equitable relief and for granting equitable relief Court can very well take note of the conduct of a party. As the appellant has concealed a vital fact, pertaining to laying of a revenue suit seeking declaration about his Khatedari rights for the same land, non-disclosure of the facts in the plaint has rightly been taken cognizance by the learned Court below to deny equitable relief to him. The learned Court below has also taken note of doctrine of lis pendens and as such, in my opinion, there is no infirmity, much less legal infirmity in the impugned order. The legal precedents, on which learned counsel for the appellant [11] has placed reliance, have been examined by me and on considering the proposition of law propounded in these judicial pronouncements on the touchstone of facts and circumstances of the instant case, in my opinion, these precedents are of no help to the appellant. The legal precedents as such cannot come to the rescue of the appellant for the simple reason that the learned Court below has examined the matter objectively and passed the impugned order in adherence of sound legal principles upon consideration of the relevant records.
It is trite that scope of judicial review in an appeal against the order refusing temporary injunction by the trial Court is very much limited, as it lies within the discretion of the Court of first instance, and the appellate Court is not expected to re-assess the material and seek to reach the conclusion different from one reached by the Court below. In Vimla Devi's case (supra), on which the learned counsel for the respondents has placed reliance, has laid down the same principles. The Court held:
10. I have given my earnest consideration to the contentions raised on behalf of the defendant-petitioner. The order refusing temporary injunction is of a discretionary character. Ordinarily Court of appeal will not interfere with the exercise of discretion passed by the trial Court and [12] substitute for it its own discretion. The interference with the discretionary order, however, may be justified if the lower Court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles or without considering all the relevant records.
11. In the light of the above observations, I have now to see whether it was open to the learned District Judge to interfere with the order of the learned trial Court. It is well settled that the grant of temporary injunction is a discretionary order and the decision of the first Court could not be easily interfered with by the appellate Court vide Musa v. Badri Prasad, ILR (1953) 3 Raj 257.
The mere possibility of the appellate Court coming to a different conclusion on the same facts and evidence will also not justify interference vide Wazir Sundar Singh v. Mst. Farida Khanam, AIR 1920 PC 132. Another well established principle while disposing of the application under O. 39, Rr. 1 and 2, C.P.C. is that when the Court while dealing with the case for grant of temporary injunction decides the question of prima facie case, it should apply its judicial mind to the materials which are placed on the record and if it does not do so then it commits illegality in the exercise of jurisdiction and in that case the High Court is competent to interfere in revision in such a case vide Musa v. Badri Prasad (supra). The view taken in Musa v. Badri Prasad (supra) has been followed by Kan Singh J. in Girdhari Lal v. Mahadevi Sharma, AIR 1958 Raj 237. It has been held in this case that the appellate Court should be slow in upsetting a decision of a trial Court in a matter relating to grant of temporary injunction unless the decision of the trial Court is arbitrary, perverse or is not based on sound legal principles. It has been further observed in that case that when the appellate Court does not apply its judicial mind on all the materials brought on the record then in that case the approach of an Appellate Court would be wrong and contrary to the well established principles laid down by the High Court, more [13] so when the appellate Court does not deal with the reasoning that has prevailed with the trial Court and further when it does not apply its judicial mind on the materials placed on the record.
Hon'ble Apex Court had the occasion to examine the powers of the appellate Court in Wander Ltd. & Anr. Vs. Antox India Pvt. Ltd. [1990 (suppl) SCC 727], and held:
14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.
After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR721) [14] ... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co.
v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.
The appellate judgment does not seem to defer to this principle.
The learned Single Judge of this Court, in almost identical situation, in LRs of deceased Bhagwanti (supra) has declined to interfere with the order of trial Court refusing temporary injunction. The Court held:
8. The broad facts which have been mentioned above clearly reveal that the agreement in question is dated 30.4.2002 and before filing the suit for specific performance of contract, a suit under Section 92A was filed by the plaintiff in the revenue Court where she is agitating her rights. Under what circumstances, only land measuring 5 bighas 4 biswas was purchased by the plaintiff from the defendant by registered sale deed dated 5.12.2002 has not been made clear even after the agreement for sale of land measuring 7 bigahs 4 biswas was made, whereas the defendant's case is that the plaintiff had no money, therefore, he purchased only 5 bighas 4 biswas land only from the vendor. Looking to the totality of the facts of the case, the trial Court has not decided any legal issue finally and could not [15] have decided finally, therefore, rest of the contentions are immaterial.
Therefore, upon evaluation of the matter in its entirety, I am in agreement with the learned Court below, and, in my opinion, interference with the impugned order is not warranted. The learned Court below, while exercising its discretion, has not acted arbitrarily or with perversity, or in utter disregard of sound legal principles.
Resultantly, the appeal fails and the same is hereby dismissed.
(P.K. LOHRA), J.
arora/