Gujarat High Court
Shardaben Widow Of Bipinbhai Manibhai ... vs Thakorbhai Ashabhai Patel & on 11 June, 2014
Author: S.H.Vora
Bench: S.H.Vora
C/AO/490/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 490 of 2012
With
CIVIL APPLICATION NO. 13276 of 2012
In
APPEAL FROM ORDER NO. 490 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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SHARDABEN WIDOW OF BIPINBHAI MANIBHAI PATEL....Appellant(s)
Versus
THAKORBHAI ASHABHAI PATEL & 1....Respondent(s)
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Appearance:
MR BS PATEL, ADVOCATE for the Appellant(s) No. 1
MS KETTY MEHTA with MR MRUGEN K PUROHIT, ADVOCATE for the
Respondent(s) No. 1
MR.HEMANG H PARIKH, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Page 1 of 17
C/AO/490/2012 CAV JUDGMENT
Date : 11/06/2014
CAV JUDGMENT
1. Present appeal from order preferred under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (for short "the Code") is directed against order dated 5.11.2012 passed by learned 6th Additional Senior Civil Judge, Anand, by which the learned Judge refused the injunction application preferred below application Exh.5 under the provisions of Order 39 Rule 1 and 2 of the Code in Special Civil Suit No.7 of 2011.
2. The parties to the proceedings would be referred to as their original status in the plaint.
3. Brief facts that would be required to be noticed for the purpose of present adjudication may now be recapitulated.
3.1 The plaintiff instituted Special Civil Suit No.4 of 2011 (hereinafter referred to as "the previous suit" for the sake of brevity) before the Court of learned Principal Civil Judge, Petlad on 1.1.2011 against defendant No.1 only. Vide said suit, the plaintiff claimed that defendant No.1 has agreed to sell the property being agricultural land situated at village Piplav, Tal: Sojitra, Dist: Anand bearing survey No.767 admeasuring 17907 sq mtr (hereinafter referred to as "the suit land") on 17.10.2008 by entering into sale agreement with the plaintiff in consideration of Rs.6,80,000/- and the plaintiff was also put into possession of the said land. It is the case of the plaintiff in the previous suit that he is cultivating the suit land and till the date of filing of the previous suit, the Page 2 of 17 C/AO/490/2012 CAV JUDGMENT plaintiff paid in piecemeal a sum of Rs.6,50,000/- and it was agreed by the defendant No.1 that upon payment of balance amount of Rs.30,000/- by the plaintiff, the defendant No.1 was required to execute the sale deed in favour of the plaintiff. According to the plaintiff's case in the previous suit, as the defendant No.1 intended to take back the possession of the suit land, the plaintiff was constrained to file previous suit before the Court of Additional Civil Judge, Petlad for specific performance of sale agreement dated 17.10.2008 and further prayed to restrain the defendant No.1 from interfering with the possession of the suit land. It is an admitted fact that the defendant No.2 i.e. Sureshbhai Bhikhabhai Thakkar, who is subsequent purchaser of suit land, is not joined in the previous suit on the date till present appeal was heard. It is stated at bar that the injunction application preferred in the previous suit against the defendant No.1 was not heard by the learned trial Judge.
3.2 It is an admitted fact that defendant No.1 sold the suit land to defendant No.2 on 23.12.2010 by way of registered sale deed bearing serial No.40 of 2010 in consideration of Rs.5,60,000/-. According to the plaintiff, the plaintiff came to know about registration of said sale deed only when defendant No.1 made declaration in the previous suit about execution and registration of the sale deed in favour of the defendant No.2 on 4.1.2011. Upon such declaration made by the defendant No.1 in the previous suit on 4.1.2011, the plaintiff filed Special Civil Suit No.7 of 2011, inter alia, praying to cancel the registered sale deed No.40 of 2010 registered on 23.12.2010 being void and executed in collusion and therefore, further prayed that the defendants be Page 3 of 17 C/AO/490/2012 CAV JUDGMENT restrained from disturbing the plaintiff's possession over the suit land pending hearing and final disposal of the suit.
3.3 The learned trial Judge after hearing the parties refused the injunction application preferred by the plaintiff. Vide injunction application, the plaintiff has prayed to restrain the defendants from interfering or obstructing the plaintiff's enjoyment over the suit land and further to restrain them from dispossessing the plaintiff from the suit land and further prayed to restrain the defendants from transferring or parting or gifting the suit land pending final hearing of Special Civil Suit No.7 of 2011.
4. Learned advocate Mr. B.S. Patel appearing for the plaintiff submitted that the learned trial Judge has seriously erred in not considering the cardinal principles governing law of injunction and without properly considering the facts of the case and further without considering the provisions of section 53A of the Transfer of Property Act, refused the injunction application. It is submitted by learned advocate Mr. Patel for the plaintiff that it is not the case of any of the defendants that they are in possession of the suit land and therefore, the plaintiff's possession over the suit land ought to have been protected. It is vehemently argued by learned advocate Mr. Patel that the learned trial Judge has committed serious error in holding that the plaintiff's suit for specific performance is lying in previous Court and since the prayer for specific performance is not prayed in the present suit, the plaintiff is not entitled to raise plea under section 53A of the Transfer of Property Act. According to him, the plaintiff is entitled to raise plea under section 53A of the Transfer of Property Act Page 4 of 17 C/AO/490/2012 CAV JUDGMENT against the defendant No.2 i.e. subsequent purchaser in absence of privity of contract between them. In nutshell, it is submission of learned advocate Mr. Patel that the learned trial Judge while deciding the injunction application was required to focus its attention to the issue of possession only. In support of his submission, he has pressed into service principles laid down in case of M. Kalappa Setty Vs. M.V. Lakshminarayana Rao reported in AIR 1972 SC 2299.
4.1 It is further submitted by learned advocate Mr. Patel for the plaintiff that bar under the provisions of Order II Rule 2 of the Code cannot operate against the plaintiff, because the cause of action in the previous suit and present suit is totally different and therefore, the present suit is entitled in its present form and therefore, the learned trial Judge ought to have protected plaintiff's possession qua suit land. In support of his submission, he has pressed into service decision rendered in case of the State of Madhya Pradesh Vs. State of Maharashtra and others reported in (1977) 2 SCC 288.
5. Per contra, learned advocate Ms. Ketty Mehta appearing with learned advocate Mr. M.K. Purohit for defendant No.1 submitted that the plaintiff has not prayed any relief of specific performance of so called sale agreement dated 17.10.2008 in the present suit on one hand and on the other hand, the defendant No.2, who is subsequent vendee and necessary and proper party in the previous suit has not been joined and therefore, neither proper and legal decree can be passed in the previous suit nor in the present suit. It is further submitted by her that the plaintiff ought to have included the relief to cancel the sale deed dated 23.12.2010 Page 5 of 17 C/AO/490/2012 CAV JUDGMENT as on the date of filing of the previous suit on 1.1.2011 and therefore, it can be said that the plaintiff has notice of the said transaction as per section 3 of the Transfer of Property Act. It is vehemently argued by her that the plaintiff was required to include the relief of cancellation of sale deed to which the plaintiff was entitled on the date of filing of the previous suit on 1.1.2011 and therefore, the present suit without leave obtained by the plaintiff in the previous suit is barred under Order II Rule 2(2) and (3) of the Code. In support of her submission, learned advocate Ms. Mehta relied upon decision rendered in case of M/s Virgo Industries (Eng.) P. Ltd. Vs. M/s Venturetech Solutions P. Ltd. reported in JT 2012 (8) SC 600.
5.1 It is further submitted by her that the sale deed dated 23.12.2010 was executed prior to the date of the previous suit and further as no relief of specific performance of sale agreement dated 17.10.2008 is sought in the present suit, the plaintiff is not entitled to raise plea under section 53A of the Transfer of Property Act. In support of her submission, she has relied upon decision rendered in case of Ambaben Wd/o Waghubhai Haribhai Desai Vs. Baldevbhai Becharsinh Vaghela and others reported in 2009(3) GLH 768.
6. Learned advocate Mr. H.H. Parikh appearing for the defendant No.2 while adopting submissions made by learned advocate Ms. Mehta appearing for defendant No.1 submitted that present suit is not maintainable in light of the provisions contained in section 19(a) and 19(b) of the Specific Relief Act.
7. It is required to be kept in mind that the present Appeal from Order is filed under the provisions of Order 43 Rule 1(r) Page 6 of 17 C/AO/490/2012 CAV JUDGMENT of the Code and challenge in this appeal is a discretionary order passed by the learned trial Judge under the provisions of Order 39 Rules 1 and 2 of the Code. In case of Matrix Telecom Pvt.Ltd. V/s. Matrix Cellular Services Pvt. Ltd. reported in 2011(3) GLR 1951, this Court, in paras 6 and 6.1, observed as under:-
"6. Before proceeding further it is required to be noted that the present appeal is against the rejection of interim relief and the main suit is still pending. If this court elaborately deals with the matter on merits it is likely that the same would prejudice the case of either side. Therefore, it is well settled law that this Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant-plaintiff has made out a prima facie case or not for grant of interim injunction.
6.1. It is required to be noted that it is well settled law that the Appellate Court may 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. The 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."
8. Similarly, in the case of Wonder Ltd. and another V/s.
Page 7 of 17 C/AO/490/2012 CAV JUDGMENTAntox India Pvt. Ltd. reported in 1990 (Supp.) SCC 727, the Hon'ble Supreme Court in para 9 of the said decision, after considering the scope of Order 43 Rule 1(r) of the Code in an appeal wherein, the discretionary order passed by the learned trial Court is under challenge, observed as under:-
"9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated "...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience lies".
The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to Page 8 of 17 C/AO/490/2012 CAV JUDGMENT commence his enterprise, are attracted."
9. After hearing the submission made at length at bar and after considering the averments made in both the plaints filed by the plaintiff in respect of the suit land, it is an undisputed fact that the plaintiff is in possession of the suit land. The plaintiff has not prayed for relief of specific performance in the present suit, but straightway prayed for the relief of cancellation of sale deed dated 23.12.2010 executed by the defendant No.1 in favour of the defendant No.2 and also the defendant No.2 is not party in the previous suit, which is filed for specific performance of sale agreement dated 17.10.2008 against the defendant No.1 only. It is also an admitted fact that sale deed dated 23.12.2010 came to be executed and registered by defendant No.1 in favour of the defendant No.2 before filing of previous suit on 1.1.2011. It is not case of the plaintiff that the registration was not valid. So, it can be inferred that the plaintiff has notice of transaction effected by defendant No.1 in favour of the defendant No.2.
10. Keeping in mind this broad undisputed facts on record, it is necessary to abstract provision of order II Rule 2 of the Code.
"ORDER II
2. Suit to include the whole claim.
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit Page 9 of 17 C/AO/490/2012 CAV JUDGMENT within the jurisdiction of any Court. (2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation-For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
11. Order II Rule 2 (1) of the Code requires that civil suit shall include the whole of the claim to which the plaintiff is entitled in respect to any particular cause of action. As per the averments made by the plaintiff in the previous suit and in the present suit, no room for doubt that on the date when the previous suit was instituted i.e. on 1.1.2011, it can be said that the plaintiff has notice of the registered document dated 23.12.2010. In the aforesaid situation, it was open for the plaintiff to incorporate the relief of cancellation of sale deed dated 23.12.2010 along with relief of permanent injunction that formed the subject matter of above two suits. It is needless to say that the foundation for the relief of permanent injunction claimed in the two suits furnished a complete cause of action to the plaintiff in both the suits to also sue for the relief of cancellation of sale deed. Yet the said relief was omitted to be incorporated in the previous suit by way of necessary amendment on one hand and on the other hand, no Page 10 of 17 C/AO/490/2012 CAV JUDGMENT leave in this regard was obtained or granted by the Court in the previous suit.
12. Furthermore, it is an admitted proposition of law that existence of cause of action is a sine qua non for the maintainability of the civil suit. In order to claim temporary injunction, the existence of a pending suit is a pre-requisite. An inter locutory injunction can only be granted during the pendency of the civil suit claiming a relief, which is likely to result in a final decision upon the subject in dispute. Meaning thereby, the suit would be maintainable only on the existence of a cause of action, which would entitle the plaintiff for the substantive relief claimed in the suit. Admittedly, in the present suit, the plaintiff has not prayed for the relief of specific performance of sale agreement dated 17.10.2008. This legal provision is recognized in section 19(b) of Specific Relief Act, which enables the agreement holder to sue for the specific performance of the contract against any person claiming under a party to the contract by title arising subsequent to the contract. Strangely, the plaintiff has not prayed for relief of specific performance of contract dated 17.10.2008 in the present suit and unless and until the relief of specific performance is granted, no relief to cancel the sale deed executed subsequent to the sale agreement can be made/granted.
13. At this juncture, it is relevant to reproduce observations made in para 11 of the decision rendered in case of M/s Virgo Industries (supra).
11. The cardinal requirement for application of the provisions contained in Order II Rule 2(2) and (3), Page 11 of 17 C/AO/490/2012 CAV JUDGMENT therefore, is that the cause of action in the later suit must be the same as in the first suit. It will be wholly unnecessary to enter into any discourse on the true meaning of the said expression, i.e. cause of action, particularly, in view of the clear enunciation in a recent judgment of this Court in the Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman v. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee[5]. The huge number of opinions rendered on the issue including the judicial pronouncements available does not fundamentally detract from what is stated in Halsbury Law of England, (4th Edition). The following reference from the above work would, therefore, be apt for being extracted hereinbelow:
Cause of Action has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. Cause of action has also been taken to mean that particular action the part of the defendant which gives the plaintiff his cause of complaint, or the subject- matter of grievance founding the action, not merely the technical cause of action."
14. Interestingly and admittedly, the plaintiff has not applied for leave to sue for the relief of cancellation of sale deed at a later stage in any of the suits. So, now the moot question is whether the cause of action for the first and second suit is the one and the same or not. As recorded herein above, the plaintiff has notice of registration and execution of sale deed dated 23.12.2010 when the plaintiff filed first suit on 1.1.2011. In the matter of specific performance of sale agreement, subsequent vendee is always Page 12 of 17 C/AO/490/2012 CAV JUDGMENT necessary party. The cause of action, namely right to obtain a sale deed and possession of the property purchased concerns both the defendants and entitles the plaintiff to pray for the relief against both the defendants. Admittedly, pending hearing of previous suit, a declaration was made by the defendant No.1 to the effect that he has sold the suit land to the defendant No.2 by way of registered sale deed dated 23.12.2010 and such declaration was made in writing before the trial Court on 4.1.2011. Meaning thereby, the plaintiff has one more additional notice of fact that defendant No.1 has sold his right, title and interest to the defendant No.2 by way of registered sale deed. However, the plaintiff without incorporating relief to cancel the sale deed in the previous suit and without obtaining any leave, filed second suit i.e. Special Civil Suit No.7 of 2011 on 10th January, 2011. Under these circumstances, though the plaintiff has a liberty to challenge the subsequent sale deed dated 23.12.2010 in the first suit itself, the plaintiff chose to file second civil suit i.e. Special Civil Suit No.7 of 2011 without claiming relief of specific performance of sale agreement dated 17.10.2008 against the defendant No.1. On this count, the subsequent suit i.e. Special Civil Suit No.7 of 2011 becomes non-
maintainable in absence of relief for specific performance of sale agreement dated 17.10.2008.
15. Now, coming to the plea raised by learned advocate Mr. Patel for the plaintiff under section 53A of the Transfer of Property Act is concerned, it is well settled principle that plea under section 53A of the Transfer of Property Act is available only against transferor and not available against third party purchaser with whom the plaintiff has no privity of contract Page 13 of 17 C/AO/490/2012 CAV JUDGMENT and therefore, suit for permanent injunction against the defendant No.2 herein is not maintainable in light of decision rendered in case of Ambaben (supra) and therefore, the learned trial Judge has rightly refused injunction application.
16. So far as contention raised by learned advocate Mr. Patel for the plaintiff that the learned trial Judge ought to have considered only issue of possession in light of decision rendered in case of M. Kalappa Setty (supra) is not well founded for the simple reason that the plaintiff is only agreement holder, whereas the defendant No.2 is holding right, title and interest in the suit land by virtue of registered sale deed executed in accordance with the provisions contained in the Registration Act and therefore, it cannot be said that the defendant No.2 is not having better title than the plaintiff. Needless to say that such sale agreement does not confer or create any right, title and interest in the immovable property and therefore, the plaintiff cannot get injunction restraining the defendant No.2 from disturbing his possession when plea under section 53A of the Transfer of Property Act is not available to the plaintiff and therefore, principle laid down in case of M. Kalappa Setty (supra) is not applicable to the peculiar facts of the present case and nature and frame of the suit.
17. In view of the facts emerging on record and considering the nature of both the suits filed in respect to the same cause of action, it cannot be said that the provisions of Order II Rule 2 of the Code cannot be made applicable as cause of action in the subsequent suit is different from that of the previous suit. Needless to say that the plaintiff's second suit will be barred Page 14 of 17 C/AO/490/2012 CAV JUDGMENT under Order II Rule 2 of the Code as he omitted to sue for cancellation of sale deed with the knowledge that he has a right to sue for the relief. As recorded herein above, the plaintiff has notice of registration of the documents on the date of filing of the previous suit i.e. on 1.1.2011. However, the plaintiff omitted to sue for relief of cancellation of sale deed in the previous suit and further filed second suit i.e. present suit, wherein no relief for specific performance of sale agreement dated 17.10.2008 has been claimed. In light of this legal position, the learned trial Judge rightly refused to grant injunction pending hearing of such non-maintainable suit and therefore, no case is made out to interfere with the findings recorded by the learned trial Judge.
18. So, in light of the limited powers of this Court, the Appellate Court can interfere with the discretionary order passed by the trial Court only in exceptional circumstances and the Appellate Court cannot 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, capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. In nutshell, an appeal against exercise of discretion is said to be an appeal on principle. To put it differently, the Appellate Court cannot reassess the entire evidence so as to come to its own conclusion contrary to the conclusion arrived at by the trial Court, if two views are possible.
19. While parting with the order, it is clarified that this Page 15 of 17 C/AO/490/2012 CAV JUDGMENT Court has examined the impugned order passed by the learned trial Judge within the limited scope of provisions of Order 43 Rule 1(r) of the Code, whereas the main controversy involved in the suit is at large before the trial Court to be adjudicated through full-fledge trial. Therefore, the learned trial Judge shall not be influenced by any observations recorded in the impugned order and observations recorded by this Court herein above while deciding the suit at the end of trial. The findings recorded either by the trial Court or by this Court at inter locutory stage of the suit are tentative in its nature and the learned trial Judge shall decide the case on its merit and as per evidence that may be led during the course of trial and decide the suit in accordance with law.
20. In the result, the appeal from order stands dismissed. Consequently, civil application also stands dismissed. Notice is discharged.
(S.H.VORA, J.) shekhar FURTHER ORDER After pronouncement of the judgment, learned advocate Mr. B.S. Patel requests to stay the operation of the judgment passed today for eight weeks.
Considering the facts and circumstances of the case and reasons recorded by this Court in the judgment in question, no case is made out to stay operation of this judgment. Therefore, request is rejected.
(S.H.VORA, J.) Page 16 of 17 C/AO/490/2012 CAV JUDGMENT shekhar Page 17 of 17