Gujarat High Court
Shreem Construction Pvt Ltd Through ... vs Tensile Steel Limited on 12 July, 2018
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/AO/160/2015 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 160 of 2015
With
APPEAL FROM ORDER NO. 109 of 2016
============================================
APPEAL FROM ORDER NO. 160 of 2015 SHREEM CONSTRUCTION PVT LTD APPELLANT Versus TENSILE STEEL LIMITED & ANR RESPONDENTS APPEAL FROM ORDER NO. 109 of 2016 TENSILE STEEL LTD APPELLANT Versus APOORVA DINESHBHAI PATEL & ANR RESPONDENTS ============================================ Appearance:
APPEAL FROM ORDER NO. 160 of 2015 MR SHALIN MEHTA, SENIOR ADVOCATE with MR TATTVAM K PATEL, ADVOCATE for the APPELLANT MR S.N. SOPARKAR, SENIOR ADVOCATE with MR MANAV A MEHTA & MR A B MUNSHI, ADVOCATES for the RESPONDENT No. 1 MR.D K.PUJ, ADVOCATE for the RESPONDENT No. 2 APPEAL FROM ORDER NO. 109 of 2016 MR YATIN OZA, SENIOR ADVOCATE with MR RAJESH K SAVJANI, ADVOCATE for the APPELLANT MR.D K.PUJ, ADVOCATE for the RESPONDENT No. 1 MR SHALIN MEHTA, SENIOR ADVOCATE with MR TATTVAM K PATEL, ADVOCATE for the RESPONDENT No.2 ============================================ Page 1 of 28 C/AO/160/2015 CAV ORDER CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 12/07/2018 CAV ORDER
1. These two Appeals arise from the common Order passed by the Principal Senior Civil Judge, Vadodara dated 04.05.2015 below application Exh.132 in Regular Civil Suit No.1294 of 2009 and application Exh. 116 in Special Civil Suit No. 370 of 2010.
2. Appeal from Order No.160 of 2015 is filed by the plaintiff of Special Civil Suit No.370 of 2010 and Appeal from Order No.109 of 2016 is filed by the plaintiff of Regular Civil Suit No.1294 of 2009.
3. The proceedings, which led to filing of these appeals, briefly stated are as under.
3.1 Tensile Steel Ltd. instituted Regular Civil Suit No.1294 of 2009 against Apoorva Dineshbhai Patel and another, principally challenging the power of attorney dated 20.04.2009 and an agreement to sell dated 18.06.2009, executed in favour of Shreem Construction Pvt Ltd., pursuant to the said power of attorney. In the said suit, the Trial Court had initially granted injunction (on application Exh.5) in favour of the said plaintiff vide order dated 24.05.2010.
3.2 Shreem Construction Pvt. Ltd. filed Special Civil Suit No.370 of 2010, principally praying for specific performance of the above referred agreement to sell dated 18.06.2009 in its favour. In the said suit, injunction application Exh.5 was Page 2 of 28 C/AO/160/2015 CAV ORDER rejected by the Trial Court vide order dated 18.11.2010.
3.3 The suit land in both the proceedings is the same.
3.4 The above two orders, i.e. grant of injunction by the Trial Court in favour of Tensile vide order dated 24.05.2010 and refusal of injunction by the Trial Court in favour of Shreem vide order dated 18.11.2010, were the subject matters of different Appeals from those Orders before this Court, being Appeal from Order No.369 of 2010, Appeal from Order Nos.124 & 125 of 2011. Those three Appeals were disposed of by this Court (Coram : Hon'ble Mr.Justice S.G.Shah) on 01.10.2014, principally holding that, after those two orders i.e. orders dated 24.05.2010 and 18.11.2010, certain developments took place and there are many documents which need to be taken into consideration. Had the said exercise been undertaken by this Court, it might have prejudiced any party, qua the right of appeal before this Court. In the view of this Court, therefore, it was appropriate not to undertake that exercise here, at that time. In this background, this Court had, vide order dated 01.10.2014, directed the parties to move the Trial Court again and the Trial Court was also directed to decide the application(s) within a period of two months.
3.5 Pursuant to the above order of this Court dated 01.10.2014, the plaintiff of Special Civil Suit No.370 of 2010 (Shreem Construction Pvt. Ltd.) filed two applications before the Trial Court.
(i) Application Exh.116 was given in Special Civil Suit No.370 of 2010, for modification of the earlier order Page 3 of 28 C/AO/160/2015 CAV ORDER dated 18.11.2010, and for grant of injunction (which was earlier refused).
(ii) Application Exh.132 was given in Regular Civil Suit No.1294 of 2009. It was for vacating injunction which was earlier granted in favour of Tensile vide order dated 24.05.2010.
3.6 The above two applications are decided by the Trial Court by the impugned common order dated 04.05.2015.
3.6.1 The Trial Court, on the basis of the material before it, has come to the conclusion that the plaintiff of Regular Civil Suit No.1294 of 2009 (Tensile) could not have been granted injunction in its favour for various reasons, including suppression of material facts. The Trial Court has therefore vacated the injunction which it had granted on 24.05.2010 in favour of Tensile. This is challenged by (Tensile) the plaintiff of Regular Civil Suit No.1294 of 2009 before this Court in Appeal from Order No.109 of 2016, praying for restoration of the injunction which was operating in its favour.
3.6.2 The Trial Court, while holding that no injunction could be granted / continued in favour of the plaintiff of Regular Civil Suit No.1294 of 2009, refused to grant injunction in favour of the plaintiff of Special Civil Suit No.370 of 2010 (Shreem), not because it is not entitled to on merits, but holding that, once the injunction was refused earlier vide order dated 18.11.2010, the same can not be granted, since such an application would not be maintainable (though it might be pursuant to the direction of the High Court). With this view, the Page 4 of 28 C/AO/160/2015 CAV ORDER Trial Court has rejected application Exh.116 in Special Civil Suit No.370 of 2010. This has given rise to Appeal from Order No.160 of 2015 by Shreem.
4. It is noted that the plaintiff of Special Civil Suit No.370 of 2010 i.e. Shreem had challenged the above order before this Court by filing Appeal from Order No.160 of 2015, however, the plaintiff of Regular Civil Suit No.1294 of 2009 i.e. Tensile had challenged the said order before the District Court, Vadodara which was registered as Misc. Civil Appeal No.81 of 2015. The said proceedings were ordered to be transferred to this Court vide order dated 10.02.2016, recorded on Misc. Civil Application No.2795 of 2015. Consequently, it has come to this Court and the same is registered as Appeal from Order No.109 of 2016. This is how these two appeals are before this Court. Both have arisen from the self-same order of the Trial Court dated 04.05.2015.
5. Heard learned advocates.
6. Mr. Shalin Mehta, learned senior advocate has appeared on behalf of the appellant of Appeal from Order No.160 of 2015, who is the plaintiff of Special Civil Suit No.370 of 2010. He has also addressed the Court as the contesting respondent of Appeal from Order No.109 of 2016. Mr.D.K.Puj, learned advocate has appeared on behalf of the Power of Attorney Holder - Apoorva Dineshbhai Patel. On behalf of Tensile Steel Ltd., which is the plaintiff of Regular Civil Suit No.1294 of 2009, two learned senior advocates have addressed this Court. Mr.Soparkar, learned senior advocate has appeared on behalf of the said litigant as the respondent in Appeal from Order Page 5 of 28 C/AO/160/2015 CAV ORDER No.160 of 2015. Mr.Y.N.Oza, learned senior advocate has appeared on behalf of the said litigant as the appellant in Appeal from Order No.109 of 2016. It is noted that the learned advocates for the respective parties have addressed the Court at length. They have extensively taken this Court through the paper-book, which runs into hundreds of pages.
7. Mr.Shalin Mehta, learned senior advocate for the appellant of Appeal from Order No.160 of 2015 (Shreem) has submitted that, the Trial Court fell in error by holding that the application Exh.116 filed by Shreem was not maintainable. It is submitted that the said finding would negate the order of this Court (Corum: Hon'ble Mr. Justice S.G.Shah) dated 01.10.2014 recorded on Appeal from Order No.369 of 2010 and cognate matters. To substantiate this argument, Mr.Mehta, learned senior advocate has taken this Court extensively through the pleadings of the earlier round of litigation being Appeal from Order No.369 of 2010 & cognate matters and Civil Applications filed therein and the order of this Court dated 01.10.2014 recorded thereon. It is submitted that the grievance of Shreem was not considered on merits by this Court, at the relevant time, on the ground that the same was required to be done by the Trial Court again, and when Shreem approached the Trial Court, as per the directions of this Court, its case is not heard on merits by the Trial Court, on the ground that, the application filed by Shreem under Order 39 Rule 4 of the Code of Civil Procedure, was not maintainable. It is submitted that, if this Court is to confirm the said view of the Trial Court and hold that the said application of Shreem was not maintainable, then this litigant (Shreem) would be remedy-less. It is submitted that, under these circumstances, these appeals be considered Page 6 of 28 C/AO/160/2015 CAV ORDER on merits by this Court. It is further submitted that, not only the application filed by Shreem, which was pursuant to the directions of this Court, was maintainable, the rejection thereof by the Trial Court, holding that since no injunction was granted earlier in Special Civil Suit No. 370 of 2010, it cannot be modified under Order 39 Rule 4 of the CPC, is illegal and needs to be interfered with. It is submitted that the matter may not be remanded back for fresh consideration. It is submitted that the appeal be allowed on merits, by this Court, on the basis of the material on record. In support of his submissions, learned advocate has relied on the following authorities.
Ashwinkumar K. Patel Vs. Upendra J. Patel - (1999) 3 SCC
161. Arjun Singh Vs. Mohindra Kmmar - (1964) 5 SCR 946. Shri Rakesh Mandan Vs. Rajasthan Financial Corporation, decision of Delhi High Court recorded on I.A.14090 of 2008 (Dated :13.01.2009).
M.R.F. Ltd. Vs. Manohar Parrikar - (2010) 11 SCC 374.
8.1 Mr.D.K. Puj, learned advocate for the Power of Attorney Holder - Apoorva Dineshbhai Patel, has adopted the arguments of Mr.Shalin Mehta, learned senior advocate for the plaintiff of Special Civil Suit No.370 of 2010 (Shreem). Mr.Puj, learned advocate has further contested the claim of Tensile and has submitted that his client, as the Power of Attorney Holder, had acted strictly as per the power given to him and had also acted as per the instructions of the Donor (Tensile). It is submitted that not only it is the case of the power of attorney holder that no illegality is committed by him, it is the matter of record that the donor (Tensile) has even written letters to different Page 7 of 28 C/AO/160/2015 CAV ORDER Authorities confirming the stand of the power of attorney holder. In this regard, learned advocate has drawn the attention of this Court to various documents, which were on record before the Trial Court and which are on record of these Appeals as well. The documents which are referred to by him also include the following.
(i) Letter dated 20.08.2011 written by Tensile to the Principal Secretary of the Government of Gujarat, Revenue Department, Gandhinagar. (Page:424-428 of the paper book).
(ii) Letter dated 10.09.2011 written by Tensile to the Principal Secretary of the Government of Gujarat, Revenue Department, Gandhinagar. (Page:429-433 of the paper book).
(iii) Letters dated 17.08.2011 and 30.08.2011 written by Tensile to the Police Commissioner, Vadodara. (Page:443-446 of the paper book).
(iv) Affidavit-cum-Indemnity bond given by Tensile dated 14.10.2011. (Page:434-441 of the paper book).
(v) Letter dated 15.10.2011 written by Tensile to the Principal Secretary of the Government of Gujarat, Revenue Department, Gandhinagar, annexing therewith the above referred Affidavit-cum-Indemnity bond. (Page:442 of the paper book).
8.2 By referring to the above documents, Mr.Puj, learned advocate has submitted that, though not conceded, at the best the grievance of Tensile against the power of attorney holder Page 8 of 28 C/AO/160/2015 CAV ORDER was only to the extent that, the suit property was dealt with at a price less than what was expected by Tensile. It is submitted that Appeal from Order No.109 of 2016 (filed by Tensile) be dismissed and the Appeal from Order No.160 of 2015 (filed by Shreem) be allowed.
9.1 Mr.Soparkar, learned senior advocate appearing for the respondent (Tensile) in Appeal from Order No.160 of 2015 has submitted that no injunction was granted in favour of Shreem by the Trial Court earlier and therefore there was no question of entertaining any application under Order 39, Rule 4 of the CPC. It is submitted that the said application (Exh.116) was not maintainable and even this Appeal from Order would not be maintainable.
9.2 Without prejudice to the above contention, Mr.Soparkar, learned senior advocate has further submitted that in the event this Court comes to the conclusion that the application Exh.116 moved by Shreem before the Trial Court was maintainable, the same may not be decided on merits by this Court and the matter be remanded back to the Trial Court for fresh adjudication.
9.3 Without prejudice to the above alternative submission, it is further submitted that in the event, this Court is to take up the application Exh.116 for consideration, on merits, the documents attempted to be relied upon by Shreem be not taken into consideration. It is submitted that, the said application be dismissed.
Page 9 of 28C/AO/160/2015 CAV ORDER 9.4 In support of above submissions, Mr.Soparkar, learned senior advocate has placed reliance on the following decisions.
Kishori Mohan Ghosh Vs. Smt. Madhabi Maurh - AIR 2016 Calcutta 319.
Pidilite Industries Ltd. Vs. Jubilant Agri and Consumer Products Ltd, decision of Bombay High Court, Ordinary Original Civil Jurisdiction (Notice of Montion No.2168 of 2016) dated 06.10.2016.
Sucha Singh Sodhi (D) Thr. Lrs. Vs. Baldev Raj Walia & Anr., decision of Supreme Court of India recorded On Civil Appeal No.3777 of 2018 (arising out of SLP (C) No.13256 of 2014).
M/s. Manas Shelters Pvt. Ltd., Vs. Madhavlal Narayanlal Pettie, decision of Bombay High Court, Ordinary Original Civil Jurisdiction (Notice of Motion No.2504 of 2016 in Suit No.586 of 2015) dated 14.03.2017.
Dependra Nath Basu Vs. Eastern Railways - 2011 3 ICC
834. NGEF Ltd. Vs. Chandra Developers (P) Ltd. - (2005) 8 SCC
219. Kishor Motilal Balsara Vs. O.L. Of Vitta Mazada Ltd. - (2014) 42 Taxman 792 (Gujarat).
10. Mr.Y.N.Oza, learned senior advocate appearing for the appellant in Appeal from Order No.109 of 2016 - (Tensile - the plaintiff of Regular Civil Suit No.1294 of 2009), has adopted the arguments of Mr.Soparkar, learned senior advocate. He has addressed the Court at length. Number of submissions are made, including reference to various provisions of the Companies Act etc. It is vehemently submitted that, strict rule Page 10 of 28 C/AO/160/2015 CAV ORDER of pleadings should be applied against the parties and the documents attempted to be relied by the other side (Shreem) be not permitted by this Court. It is submitted by him that, Appeal from Order No.109 of 2016 be allowed. In support of his submission, reliance is placed on the following decisions.
Thakur J. Bakshani Vs. Shriutivinda Agro Farms Pvt. Ltd., decision of Madras High Court, recorded on C.S. Nos.877 of 2005 (Dated:08.02.2018).
Dineshbhai Chandubhai Patel Vs. State of Gujarat - (2018) 3 SCC 104.
Harishbhai Ramanbhai Rathod Vs. State of Gujarat, decision of this Court recorded on Misc. Criminal Application No.16731 of 2016 dated 10.07.2017.
11. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds that, the following two issues arise for consideration of this Court.
11.1 The first issue is, whether the impugned order dated 04.05.2015 passed by the Trial Court, to the extent it has allowed application Exh. 132 vacating the earlier injunction granted by it on 24.05.2010 in favour of the plaintiff of Regular Civil Suit No.1294 of 2009, calls for any interference by this Court, which is the subject matter of Appeal from Order No.109 of 2016.
11.2 The second issue is, whether the impugned order dated 04.05.2015 passed by the Trial Court, to the extent it has rejected application Exh. 116 as not maintainable, and thereby Page 11 of 28 C/AO/160/2015 CAV ORDER has refused to modify its earlier order dated 18.11.2010 and thereby further refused to grant injunction in favour of the plaintiff of Special Civil Suit No.370 of 2010, calls for any interference by this Court, which is the subject matter of Appeal from Order No.160 of 2015.
12.1 The first issue, as noted above, which needs to be answered by this Court is, whether the impugned order dated 04.05.2015 passed by the Trial Court, to the extent it has allowed Exh. 132 and thereby has vacated the earlier injunction granted by it in favour of the plaintiff of Regular Civil Suit No.1294 of 2009 (vide order dated 24.05.2010), calls for any interference by this Court, which is the subject matter of Appeal from Order No.109 of 2016.
12.2 So far this issue is concerned, this Court has, firstly considered the reasons recorded by the Trial Court in the impugned order dated 04.05.2015. The Trial Court has, on the basis of the material placed before it, arrived at the conclusion that, there was suppression of material facts by the plaintiff of Regular Civil Suit No.1294 of 2009, while injunction application Exh.5 filed by it in the suit was considered by the Trial Court on 24.05.2010. The Trial Court has noted that, had all those factors been pleaded and placed on record at the relevant time, the Court would not have granted injunction in favour of the said plaintiff. The Trial Court has also referred to certain documents, additionally placed on record before it, and has concluded that, the said plaintiff i.e. the plaintiff of Regular Civil Suit No.1294 of 2009, is blowing hot and cold together qua the suit property, to suit its convenience. The Trial Court has satisfied itself to the effect that, the basis of the suit is that Page 12 of 28 C/AO/160/2015 CAV ORDER the power of attorney is forged one, the very same plaintiff confirms the very power of attorney to be genuine in different proceedings. Further, the said litigant also confirms the said document to be genuine before different authorities. The Trial Court has further noted that, on one hand, it is pleaded by the said plaintiff that the suit land could not have been dealt with by it, and at the same time, that very litigant has attempted to sell the said property to some other party. On conjoint consideration of this material, the Trial Court has concluded that, the interim injunction granted in favour of the plaintiff of Regular Civil Suit No.1294 of 2009, needs to be vacated and has accordingly allowed application Exh.132. In the view of this Court, the Trial Court can not be said to have committed any error while coming to this conclusion.
12.3 This Court has also verified the above findings of the Trial Court, vis-a-vis the material on record. For this purpose, this Court has taken into consideration, the following documents.
(i) Letter dated 20.08.2011 written by Tensile to the Principal Secretary of the Government of Gujarat, Revenue Department, Gandhinagar. (Page:424-428 of the paper book).
(ii) Letter dated 10.09.2011 written by Tensile to the Principal Secretary of the Government of Gujarat, Revenue Department, Gandhinagar. (Page:429-433 of the paper book).
(iii) Letters dated 17.08.2011 and 30.08.2011 written by Tensile to the Police Commissioner, Vadodara. (Page:443-446 of the paper book).
Page 13 of 28C/AO/160/2015 CAV ORDER
(iv) Affidavit-cum-Indemnity bond given by Tensile dated 14.10.2011. (Page:434-441 of the paper book).
(v) Letter dated 15.10.2011 written by Tensile to the Principal Secretary of the Government of Gujarat, Revenue Department, Gandhinagar, annexing therewith the above referred Affidavit-cum-Indemnity bond. (Page:442 of the paper book).
12.4 On conjoint consideration of the above, this Court finds that, the Trial Court has not committed any error while coming to the conclusion that there was suppression of material facts on part of the said plaintiff (Tensile) and in any case, even on merits, the injunction needs to be vacated. For these reasons, this Court finds that, no interference is required in the impugned order to the extent, it has allowed application Exh. 132 and thereby has vacated the earlier injunction granted by it in favour of the plaintiff of Regular Civil Suit No.1294 of 2009 (vide order dated 24.05.2010). The Appeal from Order No.109 of 2016 therefore needs to be dismissed.
12.5 It is noted that, though learned senior advocate for the said appellant - plaintiff of Regular Civil Suit No.1294 of 2009, has addressed the Court at length, none of those arguments will take the case of the said litigant any further, on the face of the above findings of this Court. Further, it is also the case of learned senior advocate for Tensile that a litigant should not be permitted to argue beyond pleadings. Accepting the said submissions, it needs to be held that, the arguments advanced on behalf of Tensile, including reference to various provisions of the Companies Act etc., would not help the said Page 14 of 28 C/AO/160/2015 CAV ORDER litigant, since those arguments were not put forward before the Trial Court. It would not be proper to decide the validity of the impugned order passed by the Trial Court, on those arguments. The Appeal from Order No.109 of 2016 therefore needs to be dismissed.
13.1 The next issue, which arises for consideration before this Court is, whether the impugned order dated 04.05.2015 passed by the Trial Court, to the extent it has rejected application Exh. 116 as not maintainable, and thereby has refused to modify its earlier order dated 18.11.2010, refusing to grant injunction in favour of the plaintiff of Special Civil Suit No.370 of 2010, calls for any interference by this Court, which is the subject matter of Appeal from Order No.160 of 2015. The question of maintainability of this Appeal from Order No.160 of 2015 is also raised by the respondents therein, who are the plaintiffs of Regular Civil Suit No. 1294 of 2009.
13.2 Since the question of maintainability of the application Exh. 116 before the Trial Court and maintainability of this Appeal from Order before this Court are interwoven, they are considered together.
13.3 To answer this issue, the impugned order dated 04.05.2015 needs to be read, keeping in view the common order passed by this Court (Corum: Hon'ble Mr. Justice S.G. Shah) dated 01.10.2014 recorded on Appeal from Order No. 369 of 2010 and Appeal from Order Nos.124 & 125 of 2011. On conjoint consideration of the above two orders, an unmistakable picture emerges before this Court that, the view of the Trial Court, holding the application Exh.116 as not Page 15 of 28 C/AO/160/2015 CAV ORDER maintainable, is erroneous, bad in law, and unsustainable in the facts of this case. By holding the said application to be not maintainable, the Trial Court has, in substance, negated the order of this Court dated 01.10.2014. The impugned order therefore needs to be interfered with to that extent, on this ground alone. There are additional reasons to do so, which are noted hereunder.
13.4 At the time of admission hearing of this Appeal (Appeal from Order No.160 of 2015), this Court had examined this issue in detail. Reference needs to be made to the order of this Court (Corum: Hon'ble Mr. Justice Akil Kureshi) dated 13.08.2015. The relevant part of the said order reads as under.
".......
7. In my prima facie opinion, application of Rule 4 cannot be limited to cases where an injunction was previously granted by the trial Court and the party dissatisfied with such order applies for discharge, variation or setting aside of the injunction order.
Firstly, the beginning portion of Rule 4 starts with the expression "Any order for an injunction" and not an order of injunction. Meaning, it would apply in all cases where interim injunction application has been decided. Secondly, even where no injunction has been granted, such an order can be varied by granting injunction which was previously refused. Further the first proviso to Rule 4 pertains to cases where an injunction has been granted without giving Page 16 of 28 C/AO/160/2015 CAV ORDER notice to the opposite party. Second proviso covers a situation where injunction order has been passed after giving to a party an opportunity of being heard. In such a case, it is provided that the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances or unless the Court is satisfied that the order has caused undue hardship to that party. In the nutshell, the second proviso to Rule 4 would ensure that ordinarily an order for interim injunction attains finality till disposal of the suit and the same issues are not reheard or reopened time and again before the same Court. If therefore, interim injunction application has been disposed of after byparte hearing, at the instance of a person who has been heard already, the order of discharge, variation or setting aside would be permissible only when it is necessitated by the change in circumstances or unless the Court is satisfied that the order has caused undue hardship to that party. Two situations would therefore, permit a Court to discharge, vary or modify the order of interim injunction application which is disposed of after byparte hearing namely, it is necessitated by change in circumstances Page 17 of 28 C/AO/160/2015 CAV ORDER or the Court is satisfied that the order has caused undue hardship to that party.
8. Prima faice I do not find any indication in Rule 4 to exclude the application of the said Rule in cases where injunction has been refused. As noted, the words used are "Any order for an injunction" and not any order of injunction. In comparison in Rule 3 of Order XXXIX, the expression used is "The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated". Here the expression used is "Object of granting the injunction". Likewise, under Rule 1, upon satisfaction of requirements mentioned therein, the Court may "by order grant a temporary injunction to restrain". Here again the expression used is "grant a temporary injunction". Similarly, in Rule 3A it is provided that "where an injunction has been granted without giving notice to the opposite party....." Here again the expression used is where an injunction has been granted. Thus other Rules contained in Order XXXIX where situation so demands, the legislature has used expression "grant an injunction" or "where an injunction has been granted". Strikingly, in Rule 4, no such expression has been used. Instead expression used is "Any order for an injunction". It is well settled principle of statutory Page 18 of 28 C/AO/160/2015 CAV ORDER interpretation that when the legislature uses different expressions, it is prima facie indication of conveying different meanings.
9. One contention of the defendants can however be summarily disposed of namely, that of resjudicata. When the appellant earlier approached the High Court, the Appeal from Order was not decided on merits. The appellant was only permitted to approach the trial Court for taking into consideration additional documents and decide his application under Order XXXIX Rule 4. There is no question of resjudicata.
10. Appeal from Order is therefore, admitted."
13.5 The above order of this Court dated 13.08.2015 was challenged by the plaintiff of Regular Civil Suit No.1294 of 2009 (Tensile) before the Supreme Court of India by filing Special Leave Petition (Civil) No.33767 of 2015. The said Special Leave Petition was dismissed vide order dated 11.12.2015. The said order reads as under.
"Mr. B.A. Desai, learned senior counsel appearing for the petitioner, submits that the petitioner had raised the issue that in view of the proceedings and the interim order passed by the Board for Industrial and Financial Reconstruction (BIFR), the civil court has no jurisdiction to pass an order of injunction. It is urged by him that such Page 19 of 28 C/AO/160/2015 CAV ORDER a point was raised before the High Court, but it has not been adverted to. In view of the said submission, we permit the petitioner to file an application for review only on the above point.
With the aforesaid observation and
liberty, the special leave petition is
disposed of."
13.6 Pursuant to the above order of the Supreme Court, no review application is filed by the said appellant. The matter has thus attained finality qua that order. Having examined the issue independently, this Court arrives at the same conclusion which was recorded by this Court in the order dated 13.08.2015.
14. In view of above, this Court arrives at the conclusion that the impugned order dated 04.05.2015 passed by the Trial Court, to the extent it has rejected application Exh. 116 holding it to be not maintainable, needs to be set aside.
15. Having held that, the said application Exh.116 was maintainable before the Trial Court, it next needs to be decided, whether the grievance voiced in the said application should be considered by this Court here, or the matter should be remanded back to the Trial Court. In this regard, it needs to be noted that, the impugned order consists of two parts. It has allowed application Exh.132 and has rejected application Exh.116. The first part of the order, allowing application Exh.132 is being confirmed by this Court, as noted above (para:12.1 to 12.4). It would therefore not be proper to remand Page 20 of 28 C/AO/160/2015 CAV ORDER the matter back to the Trial Court, after confirming the very order on merits, may be in part. The grievance of the plaintiff of Special Civil Suit No.370 of 2010 as voiced in application Exh.116 therefore needs to be considered on merits by this Court. The said consideration is as under.
16. This Court has considered the reasons recorded by the Trial Court in orders dated 24.05.2010 and 18.11.2010. By the order dated 24.05.2010, the Trial Court had granted injunction in favour of (Tensile) - the plaintiff of Regular Civil Suit No.1294 of 2009 and by the order dated 18.11.2010, it had refused to grant injunction in favour of (Shreem) - the plaintiff of Special Civil Suit No.370 of 2010. Those two orders were the subject matter of Appeals from those Orders before this Court being Appeal from Order No.369 of 2010, Appeal from Order Nos.124 & 125 of 2011. Those three Appeals were disposed of by this Court (Coram : Hon'ble Mr.Justice S.G.Shah) vide order dated 01.10.2014, reference to which is made here-above. The conjoint consideration thereof, takes this Court to the conclusion that, both the litigants could not have been granted injunction qua the suit property in their favour. The Trial Court had, as noted above, already granted injunction in favour of (Tensile) the plaintiff of Regular Civil Suit No.1294 of 2009 vide order dated 24.05.2010. When the Trial Court was, on 18.11.2010, considering the question of grant / refusal of injunction in favour of the plaintiff of the Special Civil Suit No.370 of 2010 (Shreem), the earlier order dated 24.05.2010, as noted above, was already holding the field. On the face of the said injunction in favour of the plaintiff of Regular Civil Suit No.1294 of 2009 (Tensile), no injunction could have been granted by the Trial Court in favour of the plaintiff of Special Page 21 of 28 C/AO/160/2015 CAV ORDER Civil Suit No.370 of 2010 (Shreem), which the Trial Court, at the relevant time had rightly not granted. Now, when the Trial Court itself has vacated the said injunction dated 24.05.2010, the order dated 18.11.2010 would also require a re-look. The Trial Court does not hold that, the plaintiff of Special Civil Suit No.370 of 2010 (Shreem) is not entitled to injunction, on merits. The Trial Court erroneously found itself to be helpless, holding the said application Exh.116 to be not maintainable, which is already set aside here-above. On merits, the balance certainly tilts in favour of the said plaintiff (Shreem). On one hand, the injunction is vacated by the Trial Court which was operating in favour of the plaintiff of Regular Civil Suit No.1294 of 2009 (Tensile), and in-spite of that it has refused to grant injunction in favour of the contesting litigant i.e. the plaintiff of Special Civil Suit No.370 of 2010 (Shreem). It is this vacuum like situation, which needs to be cured by this Court. This Court finds that the application Exh.116 needs to be allowed for the very reasons which are noted by the Trial Court, on merits, in the impugned order itself. Consequently the Appeal from Order No.160 of 2015 needs to be allowed.
17. It is noted that, though number of authorities are relied by learned senior advocates for Tensile, including the decision of the Madras High Court in the case of Thakur Bakshani (supra), in view of the findings recorded by this Court on facts, as noted above, none of those authorities would take the case of Tensile - the appellant of Appeal from Order No.109 of 2016 and respondent of Appeal from Order No.160 of 2015 any further. The said authorities are therefore not discussed.
18. In view of the above findings of this Court, Appeal from Page 22 of 28 C/AO/160/2015 CAV ORDER Order No. 109 of 2016 needs to be dismissed and Appeal from Order No. 160 of 2015 needs to be allowed. Before the operative part on this line is recorded, it also needs to be noted that, during the course of hearing of these two Appeals, few serious issues have come to the notice of this Court. They are as under.
19.1 It is noted that, the final hearing of these appeals had opened before this Court on 30.04.2018. The matter was thereafter heard, almost on day-to-day basis, giving reasonable accommodation to the learned advocates. The judgment / order was reserved on 09.05.2018. In the interregnum, all sorts of tactics were resorted to by the appellant of Appeal from Order No.109 of 2016 i.e. the plaintiff of Regular Civil Suit Suit No.1294 of 2009 (Tensile) to sabotage the hearing of these appeals. Reference in this regard can be made to the proceedings before the Supreme Court of India being Special Leave to Appeal (C) Diary No.17029 of 2018 - [converted as SLP (Civil) No.13854 of 2018]. The said SLP was stated to have been filed, against a non-existent order of this Court dated 02.05.2018. The said SLP was dismissed by the Supreme Court on 07.05.2018, in the following terms.
"Permission is granted to file SLP without certified / plain copy of impugned order.
Heard the learned senior counsel appearing on behalf of the petitioner.
We do not find any merit in this petition.
The Special leave petition is, accordingly,
Page 23 of 28
C/AO/160/2015 CAV ORDER
dismissed.
Pending application stands disposed of"
19.2 It is noted that, this Court had not passed any order on 02.05.2018. Before recording this factual aspect, this Court has also verified the record of both the appeals. The copy of the order of this Court, purported to be dated 02.05.2018, placed on the record of the said SLP before the Supreme Court, to say the least, could not be a genuine document. Whether this should be treated to be forgery and / or, any penal provision would be attracted in that regard, are the issues, which are not gone into by this Court, leaving it to the aggrieved party to do needful.
20.1 The above referred appellant before the Supreme Court had earlier filed an application before this Court being Civil Application No.12523 of 2017 in Appeal from Order No.160 of 2015. In the said Appeal, he is standing as the respondent. The prayer clause of the said application, reads as under.
"(A) YOUR LORDSHIPS may be pleased to dismiss Appeal from Order No.160 of 2015;
(B) Pending the admission and final hearing of this application, restrain opponent No.1 from seeking mutation of entry of order dated 13.08.2015 passed in Appeal from Order No.160 of 2015 and consequently the City Survey Superintendent, Vadodara be restrained from mutating entry pursuant to the application made by the opponent No.1;
Page 24 of 28C/AO/160/2015 CAV ORDER (C) Pending the admission and final hearing of this application, clarify that pendency of the Appeal from Order No.160 of 2015 and /or the present application will not come in way of the Sr. Civil Judge, Vadodara in deciding the application filed under Order 7 Rule 11 by the applicant and that the trial Court be directed to decide the said application forthwith;
(D) Such other and further relief/s as may be deemed just in the facts and circumstances of the present case may kindly be granted."
20.2 On the said application, this Court (Coram : Hon'ble Mr.Justice C.L.Soni) had, on 04.10.2017, passed the following order.
"It is pointed out that the hearing of the application filed under Order VII Rule 11 of the Civil Procedure Code, 1908 (the Code) is kept on 09.10.2017. Since the application filed under Order VII Rule 11 of the Code is kept for hearing on 09.10.2017, the learned Judge may proceed with the hearing of the said application as pendency of the proceedings of the Appeal from Order before this Court shall not come in the way of the learned Judge for hearing and deciding the said application.
The Appeal from Order with Civil Application shall be posted for hearing on 15.11.2017."Page 25 of 28
C/AO/160/2015 CAV ORDER 20.3 Keeping the above order in view, it was inquired, what had happened to the said application under Order 7 Rule 11 of the Code of Civil Procedure. To that, it is replied that the said application was rejected by the Trial Court, against which Civil Revision Application No. 210 of 2018 was preferred before this Court. On the said Revision Application, this Court had passed an order on 12.03.2018, which was challenged before the Supreme Court of India by way of Special Leave to Appeal (C) No.8558 of 2018. The said SLP was disposed of on 13.04.2018 in the following terms.
"Mr.Mukul Rohatgi, learned senior counsel for the petitioner on insturctions states that on better advice, the petitioner is not interested in prosecuting further the application under Order XVII Rule 11 CPC filed by the petitioner.
In view of the aforesaid, the Civil Revision Application No.210 of 2018 pending before the High Court of Gujarat at Ahmedabad stands dismissed as withdrawn and naturally, all interim orders stand disposed of.
The Special leave petitions stands disposed of accordingly.
Pending application (s), if any, stand
disposed of."
20.4 Since the said Civil Revision Application now stands withdrawn, nothing further needs to be inquired in that regard, Page 26 of 28 C/AO/160/2015 CAV ORDER however that would show the overall conduct of the said litigant. The Trial Court has found the said litigant to be guilty of suppression of material facts. This Court had also, while recording order dated 12.03.2018 on Civil Revision Application No.210 of 2018, made serious observations against the very said litigant. Those observations do not stand today, not because they are expunged but because the said Civil Revision Application filed before this Court is withdrawn by the said litigant before the Supreme Court. The said litigant has also attempted to produce a non-existent order of the High Court before the Supreme Court.
21. For the reasons recorded above, the following order is passed.
21.1 Appeal from Order No.109 of 2016 is dismissed. The impugned order passed by the Principal Senior Civil Judge, Vadodara dated 04.05.2015 below application Exh.132 in Regular Civil Suit No.1294 of 2009, is confirmed to the extent, it has allowed the said application (Exh.132) and thereby has vacated the injunction granted by it earlier, in favour of the plaintiff of Regular Civil Suit No.1294 of 2009 (Tensile).
21.2 Appeal from Order No.160 of 2015 is allowed. The impugned order passed by the Principal Senior Civil Judge, Vadodara dated 04.05.2015 below application Exh.116 in Special Civil Suit No.370 of 2010, is quashed and set aside to the extent, it rejects the said application (Exh.116) as not maintainable. It is held that, the said application was maintainable. The said application is allowed. The defendants of Special Civil Suit No.370 of 2010, including their agents, are Page 27 of 28 C/AO/160/2015 CAV ORDER restrained from dealing with the suit property in any manner, during the pendency of the suit proceedings.
(PARESH UPADHYAY, J)
22. After the pronouncement of this order, Mr.Manav Mehta, learned advocate has requested to stay this order for some time. He states that this request is made on behalf of Tensile Steel Ltd. - which is the respondent of Appeal from Order No.160 of 2015. The said litigant (Tensile Steel Ltd.) is the plaintiff of Regular Civil Suit No.1294 of 2009 and the defendant of Special Civil Suit No.370 of 2010. Considering the totality, more particularly, the reasons recorded in the order including Para:19 & 20 of this order, this request is refused.
(PARESH UPADHYAY, J) MO BHATI/PS/02 Page 28 of 28