Delhi High Court
Smt. Raj Rani Sharma vs Smt. Gayatri Kukreja And Ors on 13 January, 2012
Author: Manmohan Singh
Bench: Manmohan Singh
* HIGH COURT OF DELHI: NEW DELHI
% Order pronounced on: 13.01.2012
+ I.A. No.9770/2011 in CS (OS) No.774/2007
SMT. RAJ RANI SHARMA ..... Plaintiff
Through Mr. Sandeep Bajaj, Adv. with
Mr. Gurpreet S. Parwanda, Adv.
Versus
SMT. GAYATRI KUKREJA AND ORS .....Defendants
Through Mr. Jayant Bhushan, Sr. Adv.
with Mr. K.B.Upadhyay, Adv. for
Defendant No.3.
Mr. Sandeep Sharma, Adv. with
Mr. Anuj Malhotra, Adv. for D-1.
Mr. R.S.Juneja, Adv. for
Defendant No.2.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By this order, I propose to decide the third application filed by the plaintiff, bearing I.A. No.9770/2011 filed under Section 94 read with Order XXXIX, Rules 1, 2 & 3 CPC.
2. It is the admitted position that the plaintiff‟s earlier applications, both under Order XXXIX, Rules 1 & 2 CPC bearing I.A. No.4897/2007 & I.A. No.7083/2008 were dismissed vide order dated 20.09.2010 and the ex-parte injunction order granted on 11.08.2008 was vacated.
I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.1 of 21
3. The said order was passed by the Court after hearing both the parties. Thereafter, the plaintiff filed an appeal against the said order, bearing FAO(OS) No.117-18/2011 before the Division Bench, which was dismissed as withdrawn. The liberty was granted by the Division Bench to dispose of the above-mentioned application being IA No.9770/2011 without being influenced by the impugned order. The parties were also granted liberty to raise their all respective contentions.
Thus, the learned counsel for the plaintiff states that the present application is maintainable on the grounds of fresh cause of action and the same be disposed of.
The Plaintiff's Case
4. The plaintiff filed the present suit under Sections 31, 33 & 34 of the Specific Relief Act, 1963 for declaration, and in the alternative, claiming a compensation to the tune of Rs.82,16,000/- from the defendants apart from other reliefs.
4.1 It is alleged by the plaintiff that she is the lawful owner of a flat bearing No.B-47, Upkar Cooperative Group Housing Society, situated in Plot No.18, Mayur Vihar, Delhi-110091 which she purchased for a lawful consideration of Rs.7,90,000/- from defendant No.1, vide registered sale deed dated 09.05.2005.
4.2 The plaintiff submits that the defendant No. 2 had issued a No Objection Certificate dated 29.12.2003 in favour of defendant No.1 and consequently, the said flat was allotted in her favour. Thereafter, the defendant No.1 got the said flat registered in her favour. The said I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.2 of 21 property was then converted from lease-hold to free-hold vide registered deed dated 24.08.2004 making the defendant No.1 the absolute owner.
4.3 Defendant No.1 now being the absolute owner of the said property and being in possession thereof entered into a sale agreement with the plaintiff and executed a Sale Deed dated 09.05.2005 and by virtue of the same, the plaintiff became the absolute owner of the property.
4.4 The plaintiff submits that while she was away from the country in 2006, the defendant No.2 took illegal possession of the said flat, in connivance with defendant No. 1. Thereafter defendant No. 1 & 2 started claiming that defendant No.1 had, in fact, ceased to be a member of the Society and hence not entitled to the said flat. The plaintiff states that there is absolutely no relationship between the plaintiff and the defendants. The defendant No.1 had conveyed a deed in favour of plaintiff, by the title paramount and 4.5 There were no proceedings initiated qua cancellation of the said Sale Deed and a duly registered document cannot be superseded or become non-existence by an executive action/order and in the absence of a registered document.
4.6 The plaintiff also submits that the communication dated 16.3.2007 on the face of it is null and void and is any event an outcome of connivance of defendant No. 1 & 2 as the flat in question continues to be vested upon the plaintiff as she is the lawful/legal owner as she had got the flat legally and with proper procedure. Defendant No.2- I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.3 of 21 Society has no right over the same and in illegal possession of the said flat.
4.7 Alongwith the suit, the plaintiff also filed an application for interim relief. Ex-parte order granted on 11.08.2008 and was vacated vide order dated 20.09.2010 after hearing the parties.
5. While dismissing the interim applications filed by the plaintiff, the Court has dealt with submission of the parties and given its findings in paragraphs-15 to 20 of the order which are against the plaintiff. The same read as under:-
"15. The contention which arises for consideration is as to whether the interim order which is passed on 11.8.08 by this Court restraining defendant no.2 from allotting the flat in question to anybody including defendant no.3 ought to be continued or not or whether the plaintiff is entitled to any stay so far as the allotment of the said flat in respect of which she is claiming to be declared as bonafides purchaser, should be passed or not.
16. There is no dispute about the fact that in order to get interim order, a party has to admittedly show that it has got prima facie a good case in its favour. In the present case, the question to be considered is whether the plaintiff has got prima facie a good case in its favour which may prompt the Court to pass an interim order in favour of the plaintiff qua the flat and against the defendant. Certainly the plaintiff cannot be said to be having prima facie case in this regard. This is on account of the fact that one of the basic dictums of law, is that nobody can pass a title better than what he has. The plaintiff herself is admitting in para 12 of the plaint that the defendant no.1 did not have the lawful and rightful title to the flat in question and consequently, the plaintiff became a victim of fraud. In the prayer clause, she herself is stating that the sale deed dated 9.5.2005 which I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.4 of 21 is purported to have been executed by defendant no.1 in her favour should be declared as null and void and in the prayer „B‟ she is claiming that the said sale deed be cancelled.
17. If that be so, meaning thereby if the relief regarding cancellation of the sale deed dated 9.5.2005 or a declaration to the effect that the sale deed dated 9.5.2005 is void, one wonders under what authority or on what basis the plaintiff can be declared to be the owner of the flat in question much less the bonafide owner.
18. In other words, the entire thrust of the plaint of the plaintiff is that the defendant no.1 did not have the title to the property and yet she sold the same in favour of the plaintiff and consequently, she became a victim of fraud and yet she wants to be declared as bonafide purchaser. These two things are totally incongruent and cannot stand together. By no stretch of imagination, it could be said that the plaintiff has got prima facie case in her favour and accordingly, no injunction order in favour of the plaintiff qua the flat in question can be passed. The plaintiff is admittedly claiming another relief in the suit that is regarding recovery of Rs.82 lacs which clearly shows that even the plaintiff is clear that in case she fails to get the first relief in the alternate, she may be given the second relief. The grant of second relief claimed by the plaintiff will be more in line with the averments made in the pleadings, if at all she succeeds in proving her case.
19. The next question which arises for consideration is that if no restrain order can be passed qua the flat in question, does it deserve to be allotted to the defendant no.3 by the defendant no.2? In this regard no doubt, the defendant no.3 has given a long history of his membership and the subsequent litigation resulting his membership starting from 1981 and the culmination of the same resulting in the finding given by Sh.S.M.Aggarwal, ADJ (Retired) that the defendant no.3 was a lawful member of the defendant no.2/society but the Court is not, in this proceeding, going to decide as to I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.5 of 21 whether such finding given by Sh.S.M.Aggarwal, ADJ (Retired) was lawful and valid in the light of the fact that the defendant no.3 had earlier lost in almost every forum right up to High Court.
20. Since defendant no.3 is not the plaintiff before this Court and is not seeking any relief, it is not for this Court to adjudicate as to the question of legality or validity of the membership of the defendant no.3 nor it is open to this Court to suggest to the defendant no.2 that it may or may not allot the said flat in question to the defendant no.3. The only thing which this Court can do is to vacate the restraint order which has been passed by this Court on 11.8.08 restraining the defendant no.2 from allotting the said flat in question to any person during the pendency of the suit leaving the society free to allot the said flat to any such member whom it considers to be the lawful, valid and eligible to be allotted the flat in accordance with law."
6. In view of the order passed by the Division Bench, now the plaintiff is insisting for an interim order in the second application being IA No.9770/2011 i.e. for same relief. It is argued by the plaintiff that in the application a fresh cause of action has arisen in the said suit in favour of the plaintiff as defendant No.3 who claims to be a member of the defendant No. 2-Society has caused letter to be written to defendant No. 2 from the Office of the Registrar of Cooperative Societies dated 13.05.2011, whereby calling upon defendant No. 2 that membership of defendant No. 3 has been cleared and requested defendant No. 2 to raise a demand with respect to Flat No. B-47, Upkar Cooperative Group Housing Societies, 18 Mayur Vihar, Delhi- 110091 that is suit property in favour of defendant No. 3.
I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.6 of 21
7. It is argued by the plaintiff that the documents executed in his favour would show that the Registrar of Cooperative Societies is not vested with any jurisdiction to allow allotment of the said flat. It is stated that under the garb of the communication, no third party right can be created of the said flat depriving the rights of the plaintiff. The plaintiff also submits that if defendant No.2 acts on the basis of the communication dated 13.05.2011, then the plaintiff would suffer irreparable loss and hence prayed for status quo. The plaintiff also contends that the said communication was not placed before this Court when the earlier application was decided and in order to safeguard her rights and interest, the defendants be restrained in any manner acting on the communication dated 13.5.2011.
Reply on behalf of Defendant No.3
8. Defendant no. 3 has filed reply to the application stating therein that the whole application filed by the plaintiff is misconceived. The said defendant submits that he is the regular and bona fide member of Upkar Cooperative Group Housing Society. He applied for membership and the same was granted to him and he was given a certificate of his membership bearing Share Certificate No. 133 dated 15.5.1981.
8.1 Defendant no. 3 further submits that defendant no. 2 forged a letter dated 16.3.1987 whereby a fraud was committed and allegedly defendant no. 3 has resigned from his membership of the Society. The resignation was said to be accepted by the Society in its meeting dated 22.3.1987. Defendant no. 3 states that he had never signed any letter of any kind. He alleges that a fraud has been committed on him by the office bearers of the Society and that the signature on the alleged letter I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.7 of 21 dated 16.3.1987 was not of him and society register would show that his name was added at the end of the list of the resigned members in a different ink.
8.2 Being aggrieved by the illegal and criminal actions of the office bearers of the Society, defendant no. 3 made representations at the office of the Registrar of Cooperative Societies but there was no effective action. Thereafter defendant no.3 had sent a representation to the Lt. Governor of Delhi requesting his intervention also requesting Lt. Governor to direct the Society to continue him as regular and bonafide member.
8.3 The Registrar of the advised defendant no. 3 to file a claim under section 60 of the DCS Act vide a letter dated 21.08.1991. Hence defendant no. 3 filed an arbitration petition being 37/JR1/CH/92-93 before the Registrar Cooperative Societies Act claiming that he had not resigned from membership of the Society and he did not have any disqualification under any provision of law and thereby he is a regular and bonafide member of the Society.
8.4 After hearing both the parties, the Registrar passed an order holding that the Arbitration case 37/JR1/CH/92-93 is not covered under section 60 of the DCS Act vide order dated 29.04.1993. The said order was challenged before the Presiding Officer of Delhi Cooperative Tribunal, Delhi vide order dated 28.09.1993 remanding the case to Registrar of the Cooperatives Societies. The matter was assigned to the Assistant Registrar Cooperatives Society.
I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.8 of 21 8.5 The Assistant Registrar without properly appreciating the facts and examining the records rejected the claim of defendant no. 3 vide order dated 04.05.1998. Defendant no. 3 filed an appeal against the order of Assistant Registrar before the Presiding Officer of Delhi Cooperative Tribunal. The appeal was also dismissed vide order dated 28.07.2000 8.6 The order dated 28.07.2000 was challenged by defendant no. 3 by filing a Writ Petition being WP (C) No. 2614 of 2001. The same was dismissed on the ground that the writ petition was filed on disputed question of facts.
8.7 Defendant no. 3 also contends that the office bearers have played fraud on him. The office bearers have also put up a false case that Paras Nath Pathak is not the one and the same person and that the real Paras Nath Pathak had resigned from membership.
8.8 With regard to that Paras Nath Pathak submitted a representation at the concerned police station and asked the police officials to register a F.I.R. but the police officials refused to register an F.I.R. Defendant No.3 claims that the police officials were under the influence from the office bearers. On 14.12.2002 Sri Paras Nath Pathak gave a written complaint to the Commissioner of Police, Police Head Quarter, I.P. Extension requesting them to register a complaint against the office bearers of the Society for fabrication of documents, criminal breach of trust and falsification of accounts. A representation was also made to the Director CBI requesting investigation and prosecution of the office bearers of the Society on 27.07.2004.
I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.9 of 21 8.9 Despite the representations no complaint/F.I.R was registered by the police or the CBI. Hence defendant no. 3 approached the High Court and filed a Writ Petition being W.P (Crl) No. 26/2005 for issuance of a direction to the State to register and F.I.R. in this regard.
8.10 Pursuant to the directions of the High Court, an enquiry u/s 55 of the Delhi Cooperative Societies Act was initiated and Shri S.M. Agarwal, ADJ (Retired) was appointed as Enquiry Officer. After proper enquiry and investigation of the relevant documents it was held that Sri Paras Nath Pathak was the one and the same person who is a member of the said Society vide membership certificate no. 133 by the Managing Committee and never resigned as a member, vide order dated 10.10.2005. The High Court vide its order dated 21.03.2006 in W.P. (Crl) No. 26/2005, directed the DCP, EOW Cell Delhi Police to take up enquiry and file report within four weeks.
8.11 Pursuant to the orders dated 21.03.2006 by the High Court a F.I.R. was registered being No. 133 dated 19.04.2006 under sections 420, 468, 471 and 120B of the Indian Penal Code and investigation was conducted by Insp. S.S. Gill and the Writ Petition was disposed of. The report of the enquiry officer Sri S.M. Aggarwal was duly accepted by the Society vide its letter dated 23.02.2006.
8.12 Thereafter, defendant no. 3 approached the Registrar of the Cooperatives Society and wanted to opt for his legitimate claim on a flat in the housing society. But Paras Nath was informed that pursuant to the order dated 26.04.2001 by this Court, no action can be taken in favour of defendant no. 3, i.e. Paras Nath Pathak. Then Registrar of Cooperative Society in his order dated 31.05.2006 held that the I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.10 of 21 membership of defendant no. 3 was already settled by the Court in dismissed Writ Petition No. 2614 of 2001 and did not accept the report of Enquiry Officer Shri S.M. Aggarwal and observed that in case Sri Paras Nath Pathak would take any legal action the same should be contested.
8.13 Defendant no. 3 again approached the Court for clarification of the order dated 26.04.2001 and the Court vide order dated 17.08.2007 passed in C.M. No. 10539/2007 in W.P. (C ) No. 2614 of 2001 has observed "having considered the materials on record I am of the opinion that no clarification is required to be made; the events relied on are all subsequent to the dismissal of the petition and therefore if the petitioner has any remedies available in law it is open for him to pursue the same. the order dated 26.04.2001 was on the basis of that adjudication in the writ petition entails investigation into the disputed questions of facts; there was no decision on merits of the case"
8.14 Hence defendant no. 3 approached the Registrar of Cooperative Society for confirmation of his membership and allotment of his flat B- 47, the only vacant flat. A detailed proceedings went on at the office of the Registrar who vide order 16.04.2008 approved the report of Enquiry Office Shri S.M. Aggarwal and membership of defendant no. 3 was approved.
8.15 It is also alleged that a Writ Petition being W.P. (C) No. 4324/2008 titled as Seema Bijlani Vs. Registrar Cooperative Societies & Ors was filed before this Court to frustrate the claim of defendant no. 3 and he was not made a party. The said writ was however dismissed on 30.05.2008.
I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.11 of 21 8.16 A publication was made in the two daily newspapers namely Statesman, Rashtriya Sahara dated 23rd July 2008 for draw of a flat (B-
47) any persons having any objections may submit representation to Assistant Registrar within 15 days of the said publication. In the meanwhile a suit was filed by the plaintiff against Smt. Gayatri Kukreja.
8.17 Defendant No. 3 discloses that the membership of defendant no. 1 Smt. Gayatri Kukreja was obtained in a clandestine manner by giving false affidavits as she concealed that Sri Ramesh Kukreja was her husband and the proceedings are initiated against Smt. Gayatri Kukreja by the Registrar of Cooperative Societies under Rule 25 of the Delhi Cooperative Societies Rules and the Registrar vide order dated 25.02.1999 held that Mr. Ramesh Kukreja and Smt Gayatri Kukreja are husband and wife and they had filed wrong affidavits before the Society. During the course of the proceedings defendant No. 1 had tendered her resignation and the same was accepted. Since defendant No.1 had submitted her resignation her husband Sri Ramesh Kukreja continued to be member in the said society.
8.18 Despite resignation defendant No.1 applied to DDA for conversion of the said flat (B-47) in her name vide application no. 6111 for conversion from leasehold to freehold in her favour and she obtained the same through a deed of conveyance dated 24.08.2004. On knowing upon this fact the Society issued a notice bearing No. UCGHS/GK/04- 01/05 dated 28.03.2005 stating that defendant no. 1 has already resigned from membership and she is not authorized to transact in whatsoever manner regarding Flat B-47. And in the meanwhile defendant no. 1 had I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.12 of 21 already sold the flat to plaintiff for a consideration of Rs. 7,90,000/- vide sale deed dated 9.05.2005.
8.19 Mr. Shekhar Vashisht is one of the witness in the sale deed who is also a member of the Managing Committee of the Society at the time of execution of the deed knowing fully well that defendant no. 2 is not the legal owner of the said flat. Allegations are also made that Mr. Shekhar Vashisht played an instrumental role in the sale proceedings for some ulterior motive as the purchaser was his mother in law, the plaintiff herein.
8.20 The Society wrote a letter bearing No. UCGHS/GK/08-01/05 dated 31.08.2005 to DDA knowing about the status of the Flat No. B-
47. Thereafter Society took possession of the said flat vide its letter dated 14.02.2006 and intimated certain information to DDA. Thereafter DDA vide letter dated 16.03.2007 that the Deed of Conveyance dated 24.08.2004 stands cancelled by the L.G. of Delhi.
Reply of Defendant No.2 Society
9. Defendant No. 2 has also filed reply to the application, stating therein that the plaintiff is not the owner of the flat as alleged. The flat in fact was allotted to Smt. Gayatri Kukreja who through proceedings initiated against her, submitted her resignation and the same was accepted by the Registrar Cooperative Societies.
9.1 After knowing of this fact, Mr. Shekhar Vashist, son in law of the plaintiff and a member of the society manipulated the documents for getting flat done to free hold as DDA organized a Riverside camp in Mayur Vihar Phase I and converted the said flat from lease hold to I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.13 of 21 freehold. It is alleged that a manipulation was done by Mr. Vashist and the flat was sold at a throw away price for a consideration of Rs. 7.90 lac as against the proper market value of 30 lac who was fully aware of the fact that defendant No. 2 Smt. Gayatri Kukreja had already resigned from the membership.
9.2 The plaintiff had intentionally not stated all the facts in the matter despite of having knowledge of all the facts. The flat was allotted in May 1994. The alleged NOC dated 29.12.2003 was never issued by defendant no. 2 but a mere manipulation of documents by Mr. Vashist who also witnessed the conveyance deed.
9.3 The defendant no. 1 gave her resignation from the membership of the Society and hence had no title to the said flat. Defendant no. 2 till date is the owner of the flat and plaintiff has no right whatsoever. The defendant No. 2 states that Mr. Shekhar Vashist is the owner of flat no. D-139 in the society and his wife (daughter of the plaintiff) is residing in flat no. C-92, both in the society. Mr. Vashist in order to pressurize the committee had filed various complaints against the society in many forums viz. police station etc. 9.4 It is also stated that the question of collusion as raised by plaintiff in para 9 of the plaint does not arise as per the facts given no collusion is possible between defendant no. 1 and defendant no. 2. Infact there was collusion between plaintiff and Mr. Shekhar Vashist and the documents were manipulated. The plaintiff got a stay in CS (OS) No. 774 of 2007 but after detailed arguments the stay was vacated. The plaintiff also filed a review application but the same was also dismissed. The plaintiff I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.14 of 21 also filed an appeal against the vacating of stay order but that too was dismissed.
10. The learned counsel for the plaintiff has argued that a fresh cause of action was arisen in the pending suit and the perusal of the documents would show that the Registrar of Cooperative Societies is not vested with any jurisdiction to refer to or to allow allotment of the suit flat. The learned counsel further submitted that the communication dated 13.05.2011 was not before the Court when the earlier applications were decided and further, the legal points in view of the original Conveyance Deed dated 24.08.2004 executed by the defendant No.2 in favour of defendant No.1 and subsequently the Sale Deed dated 09.05.2005 was registered in favour of the plaintiff were not addressed in the first interim application and since fresh cause of action has arisen in favour of the plaintiff, thus, the plaintiff is entitled for interim injunction and the present application is maintainable as there is no bar to file second application for injunction incase the court is satisfied about the fresh cause of action.
11. The learned counsel for the plaintiff has referred the decision of this Court in the case of Rakesh Madan & Anr. vs. Rajasthan Financial Corporation & Ors., 159 (2009) Delhi Law Times 539 rendered by my esteemed brother R.S. Endlaw, J. In support of his submission he strongly referred paragraphs-7, 8 & 9 of the said judgment. The same read as under:-
"7. The first application aforesaid of the plaintiffs under Order 39 Rules 1 & 2 of the CPC was dismissed by a detailed reasoned order dated 26th May, 2008. This Court, prima facie, disbelieved the case set up by the plaintiffs I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.15 of 21 that Shri Des Raj Madan at the time of execution of the mortgage of his property in June 2001 in favour of the defendant No. 1 being incapacitated owing to illness or age from doing so. It was prima facie found that the plaintiffs were having full knowledge of the entire transaction and the present suit had been instituted merely to help the defendant No. 2 who owed huge amounts to the defendant No.1. It was further held that the defendant No. 1 was entitled to enforce the mortgage as long as the loans subsisted and could not be injuncted from taking action against the mortgaged property "in accordance with the provisions of State Financial Corporation Act". It was further observed "if plaintiff has any grievance, he can approach the appropriate forum only under the said Act".
The plaintiffs preferred an appeal being FAO (OS) No.281/2008 against the dismissal of first application for interim relief. The Division Bench of this Court vide order dated 22nd July, 2008 inter alia held that the plaintiffs and their brother defendant No. 2 did not appear to have intention to repay the dues of defendant No. 1; that no case for interfering in appeal in the discretion exercised by the Single Judge in dismissing the application was made out.
8. IA No. 14090/2008 also under Order 39 Rules 1 & 2 of the CPC was filed again for the same relief as claimed in the earlier application i.e., for restraining the defendant No. 1 from interfering in any manner in possession and ownership of the plaintiffs of the property and from selling the same. The reliefs in the second application under Order 39 Rules 1 & 2 of the CPC is identical to that claimed in the first application. The reason for moving the second application as set out therein is that the plaintiffs, after the dismissal of their appeal aforesaid had come across the judgment of the Apex Court in Karnataka State Financial Corporation vs. N. Narasimahaiah, AIR 2008 SC 1797 wherein it has been held that the provisions of Sections 29 & 30 of the Act cannot be invoked against a surety or a guarantor.
9. The plaintiffs thus argued that without prejudice to their pleas subject matter of adjudication in the suit that I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.16 of 21 Shri Des Raj Madan had not stood guarantee and mortgaged the property, the defendant No. 1 was in any case not entitled to take possession of the property and sell the same in exercise of powers under Sections 29 & 30 of the Act. The application came up first before this Court on 19th November, 2008 when it was informed that the officials of the defendant No. 1 were sitting outside the aforesaid property being the residence of the plaintiff No. 1 to take possession thereof. In spite of advance copy of the application to the counsel for the defendant No. 1, he did not appear on that date and in the circumstances, the defendant No. 1 till the next date was restrained from taking possession of the property. It is the admitted position that the plaintiff No. 1 continues to be in possession of the property. On the next date, the counsel for the defendant No. 1 stated that no reply was required to be filed and the counsels for the plaintiffs and the defendant No. 1 were heard. Till the disposal of this application the order dated 19th November, 2008 was continued and the plaintiffs and the defendant No. 2 were also restrained from dealing with the property in any manner or parting with the possession thereof.
12. The judgment relied upon by the learned counsel for the plaintiff in Rakesh Madan‟s case (supra) is not applicable to the facts of the present case. The reason for moving the second application in the case referred was that the plaintiffs, after the dismissal of their appeal aforesaid had come across the judgment of the Apex Court in Karnataka State Financial Corporation Vs. N. Narasimahaiah, IV (2008) SLT 41, wherein it was held that the provisions of Sections 29 and 30 of the Act cannot be invoked against a surety or a guarantor which were applied while deciding the first application. Therefore, in that context, the Court considered the second application filed by the plaintiffs for interim injunction.
I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.17 of 21 In the same decision, the Court itself in great details has dealt with the point involved in the present case as to whether the second application for the interim injunction is maintainable and if so, under what circumstances. The Court has analyzed various provisions of law in this regard which were discussed in paragraphs-11 to 15 of the decision referred by the plaintiff. The same read as under:-
"11. The first question to be considered is whether a second application for the same relief as in the first is maintainable under Order 39 Rules 1 & 2 of the CPC. The purpose of the said provision is protection of the property during the adjudication of the lis. Though the Code does not contain any express bar to a second application under Rule 1 of the CPC or a second interlocutory application under any other provision thereof and contains such a bar only in respect of a second suit only, the subject matter whereof has been directly and substantially an issue in a former suit between the same parties (Section 11 of the CPC), but the courts have held that the principles of Section 11 of the CPC are applicable to successive stages of the same proceedings also. The Apex Court in Y. B. Patil vs. Y.L. Patil, AIR 1971 SC 392 held that it is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings; once an order made in the course of a proceedings becomes final, it would be binding at the subsequent stage of the same proceedings. Even earlier thereto in Satyadhyan Ghosal vs. Deorajin Dabi, AIR 1960 SC 941, it was held that the principle of res judicata applies also as between two stages in the same litigation to this extent that a court whether a trial Court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceeding. It was, however, clarified that it did not mean that because at an earlier stage of the litigation a court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.18 of 21 appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again.
12. The Apex Court yet again in Prahlad Singh v Col. Sukhdev Singh, AIR 1987 SC 1145, while reiterating the principles laid down in Satyadhyan Ghosal (supra) however observed "we are not also concerned here with orders of an interlocutory nature such as orders granting temporary injunction, appointing receiver, etc which do not purport to decide the rights of the parties finally". The Apex Court thus carved out an exception to the general rule, in relation to orders in the nature of interlocutory injunction, appointment of receiver, etc.
13. It will be noticed that Rule 4 of Order 39 itself does not attach any finality to the orders in the nature of interlocutory injunction. Rule 4 enables the court to discharge or vary or set aside an order of interlocutory injunction, on finding the same to be necessary by a change in circumstances or if the order is found causing undue hardship to any party. The legislature has thus itself, not intended the principle aforesaid of finality or res judicata in relation to successive stages of the same proceeding to order under Order 39 of the CPC. Though Rule 4 deals only with vacation or modification of an interlocutory injunction granted, but in my view, the purport thereof being interim protection of the property, even if the Court had earlier not found enough reason to grant interim protection, the court on finding a change in the circumstances or undue hardship having been caused to a party who had been declined the interim injunction earlier, is competent to entertain a second application and to grant such injunction.
14. The power of the Court, is however, circumscribed by the aforesaid parameters of change in circumstances or undue hardship. Without any change in circumstances or without any case of undue hardship having been made out, the court is not competent to, in the same facts grant an interlocutory injunction, which was declined earlier. Caution has to be exercised that such power does not lead I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.19 of 21 to filing applications before successive presiding officers. There is no element of wager to be attached to such successive applications.
15. In the case of P.S. Prasad and Family HUF vs. Bharat Bijlee Ltd. decided in Civil Revision No.619/2001 on 10.08.2006, the court while reiterating that principles of res judicata and estoppel applied to different stages of the same litigation and once a question/contention of the parties is decided by a court, the same issue/contention cannot be raised again before the same Court at a subsequent stage of the same proceeding carved out an exception "unless there is a change in law, pronouncement of Supreme Court or High Court or change in facts constituting a new cause of action or fraud that entitles the party concerned to move another application for the same relief".
13. After having considered the rival contentions of the parties, the pleadings of the present application as well as the decision passed on the earlier two applications and the decision referred by the learned counsel for the plaintiff, I am of the considered view that the present second application for the same relief of the plaintiff is not maintainable as I find that there is no fresh cause of action for filing the same has arisen in favour of the plaintiff after passing the order dated 20.09.2010. There are no fresh facts in favour of the plaintiff which would show that the plaintiff is entitled for relief due to change in circumstances as alleged. All points and facts raised by the plaintiff in the present application were earlier decided in the order dated 20.09.2010. This Court is not inclined to reconsider again the merit of the case on the basis of the same facts placed earlier. I totally agree with the findings given in the case of Rakesh Madan‟s case (supra) that unless there is a change in law or change in facts constituting a new cause of action of I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.20 of 21 fraud, the party is not entitled to move another application for interim injunction for the same relief.
14. Thereafter, the relief prayed in the application cannot be granted except in order to strike the balance between the parties and in the interest of justice, equity and fair play it is directed that incase the defendant No.2-Society allots the flat No.B-47 in question to defendant No.3 in compliance of order dated 13.05.2011 or any other member of the Society, the allottee will not create any third party interest or dispose of the same, directly or indirectly, without the permission of the Court. The defendant No.2 will also have to obtain undertaking in this regard separately. I.A. No.9770/2011 is accordingly disposed of.
CS (OS) No.774/2007List the matter before the Court on 07.03.2012 for framing of issues.
MANMOHAN SINGH, J.
JANUARY 13, 2012 I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.21 of 21