Karnataka High Court
Sri Sampangi vs Smt N Premalatha on 2 August, 2012
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 02ND DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.No.3921/2012 (CPC)
BETWEEN:
Sri Sampangi
S/o late Nanjundappa
Aged about 61 Years
R/at No.1, Behind Haralikatte
Rayasandra Road, Naganathpura Village
Electronic City Post
Bangalore - 560 100. ... Appellant
(By Sri N.Devhadass, Senior Advocate for M/s.Jayaraj &
Associates, Advocates)
AND:
Smt.N.Premalatha
W/o Sri K.Ashok
Aged about 31 Years
No.106, Near Bangalore English School
Naganathpura Village
Electronic City Post, Begur Hobli
Bangalore - 560 100. ... Respondent
(By Sri Ashok Harnahalli, Senior Advocate for Sri Ramesh Adithya,
Advocate for Caveator-respondent)
This appeal is filed under order 43 Rule 1(r) C.P.C., against
the order dated 10.04.2012, passed on I.A.No.II in
O.S.No.1433/2011, on the file of the Principal Senior Civil Judge,
Bangalore Rural District, Bangalore, dismissing I.A.No.II and etc.
This appeal having been heard and reserved for judgment
on 25.07.2012, coming on for pronouncement this day, the court
delivered the following:-
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JUDGMENT
The matter is listed for admission. The lower court records are received. With the consent of learned counsel for parties, the matter is taken up for final disposal.
The appellant is the plaintiff before trial court (hereinafter referred to as 'plaintiff') and respondent is the defendant (hereinafter referred to as 'defendant'). The trial court has dismissed the application filed by plaintiff for grant of temporary injunction to restrain defendant from putting up any further construction on suit schedule property.
2. I have heard Sri N.Devhadass, learned senior counsel for plaintiff and Sri Ashok Haranahalli, learned senior counsel for defendant.
3. In brief, averments of plaint and application (IA No.II) are as follows:-
The plaintiff is the owner of suit schedule property viz site No.1, measuring East to West 50 feet and North to South 80 feet, formed in Survey No.16, Naganathapura Village, 3 Begur Hobli, Bangalore South Taluk. On 30.08.2011 one Mr.Krishna @ Putani and his neighbour Mr.Chandra along with defendant and husband of defendant contacted plaintiff and requested him to attest a document as a witness. The plaintiff is an illiterate and ignorant person and he does not have worldly knowledge. On 02.09.2011, plaintiff was near Ashwathakatte of Naganathapura Village. The defendant along with aforestated persons took plaintiff in a car to Panchami Bar at Sarjapur. In the bar, plaintiff was made to consume alcohol. The plaintiff was in intoxicated and unbalanced condition. When plaintiff was under such condition, defendant and her henchmen induced plaintiff to attest a document, purported to be a General Power of Attorney. The plaintiff was not in a position to understand anything. Under the guise of some attestation, defendant got the document executed in respect of suit schedule property.
The plaintiff was taken in the same condition to the Office of Sub-Registrar and aforstated document came to be executed in favour of defendant. Thereafter, defendant and her 4 henchmen dropped plaintiff near his residence. This fact came to knowledge of plaintiff on 23.11.2011. Immediately, plaintiff lodged a complaint with the jurisdictional police. Unfortunately, police failed to take any action. As such, plaintiff has filed a private complaint under section 200 Cr.P.C., in PCR No.26057/2011, on the file of IX ACMM at Bangalore.
The defendant is totally a stranger. There were no negotiations. Nothing had transpired between plaintiff and defendant, prior to alleged sale deed. It is not the only sale deed executed on 02.09.2011, but also two other sale deeds came to be executed, wherein it is stated that entire sale consideration was paid in cash on 02.09.2011. A suit for partition in respect of suit schedule property amongst others is pending before the competent court. Since the sale deed executed in favour of defendant is a fraudulent document, it is not open for defendant to claim any right, title or interest over suit schedule property.
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4. The defendant asserting her rights under aforestated fraudulent document has taken up construction and hastily proceeding with construction. Therefore, plaintiff has sought for following reliefs:-
a. To declare that the Sale Deed dtd.02.09.2011 registered as document No.BGR-1-04665-2010-11 of Book I in CD No.BGRD105 registered before the Sub-Registrar, Begur, Bangalore South alleged to have been executed by the plaintiff in favour of the defendant in respect of the schedule property as void ab initio and not binding on the plaintiff; consequently, direct the defendant to deliver possession of the suit schedule property in favour of the plaintiff herein;
b. for mandatory injunction the defendant or her agents, servants, administrators, henchmen or any other persons claiming under or through her to remove the illegal and unauthorized construction put upon the schedule property.
c. For permanent injunction restraining the defendant or her agents, servants, administrators, henchmen or any other persons claiming under or 6 through her from putting up further constructions in the suit schedule property;
d. For permanent injunction restraining the defendant or her agents, servants, administrators, henchmen or any other persons claiming under or through her from alienating the schedule property in favour of the third party/s;
e. Grant cost of the suit; and f. Grant such other relief/s as this Hon'ble court deems fit under the facts and circumstances of the case in the interest of justice and equity."
5. In brief, averments of written statement and objections filed by defendant are as follows:-
The defendant has denied that plaintiff was taken to a bar and document was executed when plaintiff was under
the state of intoxication and in the same condition, plaintiff was taken to the Office of Sub-Registrar and said document was registered in the Office of Sub-Registrar. The defendant has contended that plaintiff executed registered sale deed on 02.09.2011 in favour of defendant for valuable consideration 7 of Rs.14,00,000/- and suit schedule property was delivered to defendant and defendant has taken up construction of a residential house and construction is halfway through. The defendant has asserted that plaintiff had given an offer to defendant, disclosing his intention to sell suit schedule property to clear debts and the offer was accepted by defendant. The negotiations were held and registered sale deed was executed on 02.09.2011. The plaintiff executed registered sale deed on 02.09.2011, without there being fraud, coercion and undue influence. The defendant has invested Rs.30 to 40 lakhs for putting up construction on suit schedule property. The plaintiff has sought for temporary injunction to restrain completion of construction to coerce defendant and bring her to terms. The plaintiff has not made out a prima facie case for grant of temporary injunction. The balance of convenience lies in favour of defendant. The plaintiff has sought for a mandatory injunction and possession of suit schedule property. If plaintiff were to succeed, he would be entitled to mandatory 8 injunction and possession of suit schedule property. On the other hand, if defendant is restrained from completing construction, she would suffer irreparable loss and injury.
Thus, prayed for dismissal of application.
6. The learned trial Judge on consideration of pleadings and documents filed by parties has held that averments of plaint and application that defendant (a woman) took plaintiff to Panchami Bar at 1.30 p.m., on 02.09.2011 and plaintiff was induced to consume alcohol and execute the document and in the same condition he was brought to the Office of Sub-Registrar do not prima facie inspire confidence. The learned trial Judge has noticed that on the same day, plaintiff had executed three sale deeds; one in favour of plaintiff and the other two sale deeds in favour of one Smt.Chitra.E., and Smt.N.Shantha. The learned trial Judge considering the contents of registered documents has held that sale deed executed in favour of defendant and other two sale deeds in favour of Smt.Chitra.E., and Smt.N.Shantha were registered between 02.59 p.m and 02.55 p.m., 9 (afternoon) on 02.09.2011. As such, averments of plaint that plaintiff was taken to Panchami bar at 1.30 p.m., cannot be accepted. The learned trial Judge has held that defendant has been in possession of suit schedule property and defendant has taken up construction of a residential house and construction is halfway through, plaintiff has sought for a mandatory injunction and possession. Therefore, defendant cannot be restrained from completing construction. The learned trial Judge has held that if plaintiff succeeds on merits of case, he would be entitled to decree of mandatory injunction for demolition of house constructed by defendant and delivery of possession of vacant site, on the other hand, if defendant is restrained from completing construction of house, defendant would be put to irreparable loss and injury and balance of convenience lies in favour of defendant.
7. Sri N.Devhadass, learned senior counsel for plaintiff has made following submissions:-
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I. The fraud pleaded by plaintiff is apparent on the face of registered sale deed dated 02.09.2011, as the Sub-
Registrar had not made an endorsement regarding receipt of sale consideration by plaintiff.
II. The plaintiff has made out a case for trial and there are serious questions to be tried.
III. The mere fact that construction is halfway through is not a ground to refuse an order of temporary injunction.
8. The learned senior counsel for plaintiff has relied on following decisions of the Supreme Court:-
I. (2006) 8 SCC 367 (in the case of M.Gurudas and others Vs. Rasaranjan and others);
II. AIR 1983 SC 742 (in the case of Gangubai Bablya Chaudhary and others Vs. Sitaram Bhalchandra Sukhtankar and others);11
III. (1995) 5 SCC 545 (in the case of Gujarat Botting Co.
Ltd. & Others Vs. Coca Cola Co. & others);
IV. (2006) 5 SCC 282 (in the case of Seema Arshad Zaheer and others Vs. Municipal Corpn. of Greater Mumbai and others)
9. Sri Ashok Haranahalli, learned senior counsel for defendant has made following submissions:-
I. The averments of plaint that registered sale deed executed in favour of defendant is fraudulent document and it has come into existence in the circumstances narrated in plaint cannot be accepted.
The document was presented and registered in the Office of Sub-Registrar at Begur between 12.50 p.m and 1 p.m., (afternoon) on 02.09.2011. Therefore, averments of plaint and application that plaintiff was taken to a bar near Sarjapur Road at 1.30 p.m., on the same day are apparently false.12
II. The plaintiff has admitted that defendant is in possession of suit schedule property and defendant is constructing a residential house. The plaintiff has sought for mandatory injunction for demolition of construction and also for possession of suit schedule property. If plaintiff were to succeed in suit, defendant would demolish the constructed residential house and deliver vacant possession of suit schedule property to plaintiff, without claiming any equity. Therefore, balance of convenience is not in favour of plaintiff. The plaintiff does not suffer any irreparable loss or injury if an order of temporary injunction is not granted.
III. The power to grant or refuse temporary injunction lies with the sound discretion of trial court. The appellate court can interfere with the order of trial court if the order is capricious or perverse or illegal.
10. The learned senior counsel for defendant has relied on following decisions of the Supreme Court:- 13
I. 2010 (5) KCCR 4237 (in the case of Mandali Ranganna & Others Vs. M.Ramachandra & Others);
II. (1995) 5 SCC 545 (in the case of Gujarat Bottling Co.
Ltd. & Others Vs. Coca Cola & Others);
11. In a decision reported in (1995) 5 SCC 545 (in the case of Gujarat Bottling Co. Ltd. & Others Vs. Coca Cola & Others), the Supreme Court has held:-
"43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain 14 till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to 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. [See:Wander Ltd. V.Antox India (P) Ltd.15, (SCC at pp.731-32]. In order to protect the defendant while granting an interlocutory injunction in his favour the Court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if 15 the uncertainty were resolved in his favour at the trial."
12. In a decision reported in 1977(2) Kar.L.J.266 (in the case of Purna Investments Ltd. Vs. Southern Steelmet & Alloys Ltd. Ors), this court has held:-
"11. ... In the present case, we are at the stage of interlocutory orders and trial is yet to commence. Findings on matters such as mala fides, fraud and bad faith cannot, generally, be arrived at on mere affidavits. The matter has to go for trial and I am, therefore, reluctant to take into account the merits of the case at this stage to come to a conclusion which detracts from what an assessment of the balance of convenience in the case suggests."
(underlining supplied) In the case on hand, we are at a stage of deciding interlocutory applications. The plaintiff has filed an affidavit, asserting that registered sale deed dated 02.09.2011 alleged to have been executed by plaintiff in favour of defendant is a fraudulent document. The plaintiff has alleged that he was taken to a bar and he consumed alcohol and became 16 intoxicated. When the plaintiff was under such condition, defendant and her henchmen took plaintiff to the Office of Sub-Registrar at Begur and got document executed by plaintiff and it was registered in the Office of Sub-Registrar in favour of defendant in the same condition. The defendant has filed an affidavit, denying all these facts. Therefore, at this stage, plea of fraud pleaded by plaintiff cannot be decided on the strength of affidavit and counter affidavit. The reliefs sought for by plaintiff are stated supra. The plaintiff has sought for mandatory injunction for demolition of construction put up by defendant and also sought for possession of suit schedule property. The plaintiff has admitted that defendant is in possession of suit schedule property. The defendant has submitted that construction is halfway through.
13. In a decision reported in (2006) 8 SCC 367 (in the case of M.Gurudas & Others Vs. Rasaranjan & Others), the Supreme Court has held that relevant factors to be considered for grant of temporary injunction, are existence of 17 prima facie case, balance of convenience and irreparable loss and injury.
In the aforestated judgment, the Supreme Court has held that finding on "prima facie case" would be a finding of fact. However, while arriving at such a finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist.
14. The law is fairly well settled that an order of temporary injunction granted in favour of a party is a step in aid to the main relief. In the case on hand, if plaintiff were to succeed in the suit, he will be entitled to declaration that registered sale deed dated 02.09.2011 is null and void; mandatory injunction for demolition of construction put up by defendant and possession of suit schedule property would be delivered to plaintiff. It is not a situation where refusal of temporary injunction would frustrate the suit. It is not a situation where refusal of temporary injunction would lead to multiplicity of proceedings.
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15. In a decision reported in (2006) 8 SCC 367 (in the case of M.Gurudas and others Vs. Rasaranjan and others) the Supreme Court has held:-
"19. A finding on 'prima facie case' would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist."
As already stated, finding of facts such as malafides, fraud and bad faith cannot, generally, be arrived at on mere affidavit and counter affidavit. The learned trial Judge on careful scrutiny of averments of plaint and contents of registered sale deed dated 02.09.2011 has held that averments of plaint and application do not make out a prima facie case and they do not prima facie inspire confidence.
The law is fairly well settled when fraud is alleged, it is for the party asserting fraud to prove the same just like any other fact.
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16. The learned senior counsel for plaintiff taking me through the contents of registered sale deed dated 02.09.2011 would submit that the Sub-Registrar had not ensured payment of sale consideration to plaintiff.
17. From the contents of registered sale deed, we find that sale consideration was not paid in the presence of Sub- Registrar, but it was paid in the presence of witnesses. Therefore, the contention of learned senior counsel for plaintiff cannot be accepted.
18. In a decision reported in AIR 1983 SC 742 (in the case of Gangubai Bablya Chaudhary and others Vs. Sitaram Bhalchandra Sukhtankar and others), the Supreme Court has held:-
"6. When an interim injunction is sought, the Court may have to examine whether the party seeking the assistance of the Court, was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show 20 how the plaintiffs were dispossessed? We pin- pointed this question and heard the submission. We refrain from discussing the evidence and recording our conclusions because evidence is still to be led and the contentions and disputes have to be examined in depth and any expression of opinion by this Court may prejudice one or the other party in having a fair trial and uninhibited decision. Having given the matter our anxious consideration, we are satisfied that this is not a case in which interim injunction could be refused. Similarly we are of the opinion that if respondents are allowed to put up construction by the use of the F.S.I. for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced because they are in possession of about 9,000 sq. meters of land on which they can put up construction."21
In the case on hand, defendant has relied on registered sale deed dated 02.09.2011 to contend that she has been in lawful possession of suit schedule property. The plaintiff has contended that it is a fraudulent document. The plaintiff has to establish that registered sale deed is a fraudulent document and it has come into existence under the circumstances narrated in plaint on merits of the case.
19. At this juncture, it is relevant to notice that plaintiff had executed registered sale deed on 02.09.2011 not only in favour of defendant, but he had also executed two registered sale deeds in favour of two other persons namely Smt.Chitra.E., and Smt.N.Shantha. The copies of these documents would indicate that three documents were executed by plaintiff and documents were registered during the period when plaintiff was alleged to have been taken to a bar. It is not the case of plaintiff that defendant and aforestated persons had joined together and got executed three registered sale deeds on 02.09.2011 in their favour. The time of presentation and registration of sale deeds in 22 favour of defendant, Smt.Chitra.E., and Smt.N.Shantha would belie the contention of plaintiff that he had been taken to a bar at about 1.30 p.m. on 02.09.2011.
20. In a decision reported in (1995) 5 SCC 545 (in the case of Gujarat Bottling Ltd. & Others Vs. Coca Cola & Others), the Supreme Court has held that grant of interlocutory injunction being an equitable relief, conduct of party seeking injunction or party seeking Court's interference with the order of injunction must be fair.
21. In a decision reported in (2006) 5 SCC 282 (in the case of Seema Arshad Zaheer and others vs. Municipal Corpn. of Greater Mumbai and others), the Supreme Court has held:-
"30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the 23 need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands."
22. Thus, on reconsideration of the matter, I find that plaintiff has failed to establish primfa facie case. The balance of convenience does not lie in favour of plaintiff and plaintiff has also failed to prove that he would be put to irreparable loss and injury, if an order of temporary injunction is not granted. In the circumstances, the impugned order cannot be called as perverse, capricious or illegal. Therefore, impugned order does not call for interference.
23. The learned senior counsel for plaintiff has contended that defendant is putting up construction, without obtaining 24 licence and approved plan. Therefore, defendant cannot be permitted to proceed with construction.
24. It is seen from the written statement, in paragraph 27, defendant has stated that subsequent to purchase of suit schedule property by her, she has paid up-to-date property tax to Bruhath Bangalore Mahanagara Palike (for short, 'BBMP'). The katha extract has been issued by BBMP.
25. It is needless to state that dismissal of application filed by plaintiff for grant of temporary injunction cannot be construed as permission granted to defendant to put up construction, without licence or approved plan. If the defendant has been constructing house without licence and approved plan, it is for the competent authorities to take action in accordance with law, notwithstanding the order of dismissal of application for grant of temporary injunction in favour of plaintiff.
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26. In the result, I pass the following:-
ORDER The appeal is dismissed.
Sd/-
JUDGE SNN