Gujarat High Court
Prathmesh Farms Pvt Ltd & vs Dahiben Bhanabhai & on 12 December, 2013
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
PRATHMESH FARMS PVT LTDV/SDAHIBEN BHANABHAI C/SCA/15211/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 15211 of 2012 ================================================================ PRATHMESH FARMS PVT LTD & 14....Petitioner(s) Versus DAHIBEN BHANABHAI & 13....Respondent(s) ================================================================ Appearance: MR SHITAL R PATEL, ADVOCATE for the Petitioner(s) No. 1 - 15 MR AJ SHASTRI, ADVOCATE for the Respondent(s) No. 1 - 4 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 12/12/2013 ORAL ORDER
1. This petition under Article 227 of the Constitution of India, has been preferred against order dated 18-9-2012, passed by the learned Addl. District Judge, Surat ( the Appellate Court ), in Civil Misc. Appeal No.76 of 2008, whereby the order passed by the learned 11th Addl. Senior Civil Judge, Surat ( the Trial Court ) below the application at Exh.5 in Regular Civil Suit No.137 of 2007, has been quashed and set aside.
2. Briefly stated, the relevant facts of the case are that the petitioners (original plaintiffs) instituted the above-mentioned Suit against the respondents for declaration and grant of a permanent injunction in respect of the suit property, being land bearing Old Revenue Survey No.546 (new Revenue Survey No.331), admeasuring 8900 Sq. Meters of Mouje Vesu, Taluka Choryasi, District Surat, which, according to them, was purchased by them by a Registered Sale Deed dated 2-6-2000. Along with the Suit, the petitioners filed an application at Exh.5 for grant of a temporary injunction, pending the Suit. The said application was partly-allowed by the Trial Court vide order dated 7-6-2008. Being aggrieved by the said order, respondents Nos.1 to 8 (original defendants Nos.1 to 8) filed an appeal before the Appellate Court. The said appeal has been allowed and the order passed by the Trial Court below the application at Exh.5 has been quashed and set aside. Being aggrieved by the order of the Appellate Court, the petitioners are before this Court.
3. Mr. Shital R. Patel, learned advocate for the petitioners has submitted as under:
(a) That non-disclosure of the sale of the Suit property in favour of a third party by the petitioners in the Suit proceedings cannot be considered as a material fact which would disentitle them from seeking equitable relief against the present respondents.
(b) That the Appellate Court has passed the impugned order reversing the order of the Trial Court below Exh.5, only on the ground of locus standi and the aspect that the petitioners have not disclosed the fact of sale of the Suit property. This aspect has not been appreciated in proper perspective by the Appellate Court, therefore, the said order may be quashed and set aside.
(c) That under Section 55 of the Transfer of Property Act,1882 ( the T.P. Act for short) the seller would be under an obligation to pass a clear title to the purchaser, therefore, as a seller, the petitioners were obliged to institute the suit in order to pass on a clear title to the purchaser.
4. The petition is strongly opposed by Mr.A.J.Shastri, learned advocate for respondent No.1 (Caveator) on the ground that when a person comes to the Court seeking equitable relief, he ought to come with clean hands and disclose all material facts before the Court. It is submitted that the fact that the suit property was sold by the petitioners even before the institution of the suit is a material fact and suppression thereof shows the conduct of the petitioners and would disentitle them from the grant of equitable relief.
4.1 It is further submitted that it is only during the pendency of the appeal that the respondents came to know of the sale of the suit property, prior to the institution of the suit. They, therefore, filed an application at Exh.55 for production of additional documents under Order 41 Rule 27 of the Code of Civil Procedure, 1908, which was allowed by the Appellate Court, on 3-8-2012. The defendants produced a receipt dated 20-3-2012, issued by the Sub-Registrar, Surat and a copy of the Index pertaining to the suit property, upon perusal of which it is clear that the petitioners had already transferred their right, title and interest in the suit property in favour of one Mahendrabhai C.Shah, vide a Registered Sale Deed No.14388,dated 4-12-2006. The Suit has been filed by the petitioners on 30-3-2007,that is, after the sale of the suit property had already taken place.
4.2 That, as the petitioners do not have any right,title or interest in the suit property, they cannot seek an injunction in respect of that property, which they no longer own. The Appellate Court has rightly set aside the order of temporary injunction in their favour by a proper appreciation of the factual and legal position.
4.3 On the above grounds, it is submitted that the petition be rejected.
5. Having heard learned counsel for the petitioners and the Caveator and upon perusal of the averments made in the petition, contents of the impugned order and other documents on record, it is an undisputed position that there is no denial of the fact that the suit property has been sold prior to the institution of the suit. Further, this aspect has not been disclosed by the petitioners/plaintiffs in the Suit. It has been submitted on behalf of the petitioners that it is not a material fact, therefore, its non-disclosure would not disentitle the petitioners from grant of equitable relief.
6. This Court is unable to agree with the submissions advanced on behalf of the petitioners for the simple reason that there can be no injunction in favour of a party in respect of property, when they no longer have any right, title or interest in it. The grant of an injunction is an equitable relief. It is a settled position of law that a person who does not come to the court with clean hands ought not to be granted equitable relief. In this view of the matter, this court cannot find any fault with the reasoning of the Appellate Court for quashing and setting aside the order passed by the Trial Court, granting a temporary injunction in favour of the petitioners.
7. The other submission advanced on behalf of the petitioners that in view of Section 55 of the T.P. Act, the seller is under an obligation to give a clear title to the purchaser, in the context of the above-noted factual position, is totally implausible. It is nothing more than an excuse to cover up the conduct of the petitioners. The provisions of Section 55 of the Act cannot be cited as a reason for suppressing a material fact. The suit is in respect of property and the reliefs of declaration and permanent injunction have been claimed with regard to the very same property that was sold even prior to the institution of the suit. The petitioners were very well aware of this fact at the time of institution of the suit but chose to give a different colour in the plaint, in order to lead the Trial Court into believing that the suit property is still in the hands of the petitioners.
8. The Appellate Court is, therefore, right in coming to the conclusion that as the suit property has been sold by the petitioners even prior to the institution of the suit, no prima facie case exists in their favour.
9. As the petitioners no longer have had right, title or interest in the suit property at the time of institution of the suit, the balance of convenience is certainly not in their favour. Nor would they suffer any irreparable loss that cannot be compensated in terms of money, if a temporary injunction is not granted to them. In fact, the petitioners have derived financial benefits by selling the suit property.
10. The totality of the facts and circumstances of the case, as discussed hereinabove, leave no doubt in the mind of this court that the impugned order passed by the Appellate Court is justified and within accepted legal parameters.
11. It may be noted that the Trial Court was in the dark about the fact that the suit property had already been sold by the petitioners before the institution of the suit, therefore, this aspect was never looked into by that court, at the time of partly-allowing the application at Exh.5.
12. For the afore-stated reasons and as there is no illegality or perversity in the impugned order of the Appellate Court, this court does not consider the present to be a fit case for exercise of its discretion under Article 227 of the Constitution of India.
13. The petition is rejected.
(SMT. ABHILASHA KUMARI, J.) ARG Page 8 of 8