Rajasthan High Court - Jaipur
Amar Singh Rathore And Ors vs Smt Anju Agarwal And Ors on 1 September, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
ORDER
S.B. Civil Writ Petition No. 1345 / 2017
1. Amar Singh Rathore Son of Shri Laxman Singh, Plot No. 220,
Mukandgarh House Colony, Sansar Chandra Road, Jaipur
(Rajasthan).
2. Hemlata Rathore Wife of Amar Singh Rathore, Plot No. 220,
Mukandgarh House Colony, Sansar Chandra Road, Jaipur (Rajasthan)
Since Deceased Through L/R
2/1. Dharam Singh S/o Shri Amar Singh Rathore, 220,
Mukundgand House Colony, Sansar Chand Road Jaipur.
2/2. Swadesh W/o Dr. P.C. Suman D/o Shri Amar Singh,
14/98 Shiprapath Mansarovar, Jaipur.
2/3. Renu D/o Shri Amar Singh, 14/98 Shiprapath
Mansarovar, Jaipur.
2/4. Kansingh S/o Shri Amar Singh Rathore
2/5. Surendra Singh S/o Shri Amar Singh Rathore
2/6. Pushpa D/o Shri Amar Singh Rathore,
220, Mukundgand House Colony, Sansar Chand Road Jaipur.
----Petitioners
Versus
1. Smt. Aanjju Agarwal Wife of Shri Pramod Kumar Agarwal, D-110-
4, D Campus, Murlipura, Sikar Road, Jaipur.
2. Smt. Sharda Devi Wife of Shri Mahaveer Prasad Agarwal, Plot No.
18, Sikar House, Jaipur Presently Resident of D-12, Sanjay Colony,
RPA Road, Panipech, Jaipur.
.........Respondents.
3. Radhakishan Son of Late Shri Deen Dayal Agarwal, by Caste
Agarwal
4. Narendra Agarwal Son of Late Shri Deen Dayal Agarwal
5. Smt. Asha Wife Shri Ashok Agarwal Daughter of Late Shri Deen
Dayal Agarwal
6. Smt. Kanta Wife of Shri Vishwanath Daughter of Late Shri Deen
Dayal Agarwal
7. Smt. Usha Wife of Sunil Garg Daughter of Late Shri Deen Dayal
Agarwal,
All Residents of 257/14, Vivhyadhar Nagar, Section 3, Jaipur
(Rajasthan).
(2 of 15)
[CW-1345/2017]
----Performa/Respondents
____________________________________________________
For Petitioners : Mr. Rajesh Mehrishi with
Mr. Prashant Kumar Dubey.
For Respondents : Mr. M. M. Ranjan, Sr. Advocate with
Mr. Rajat Ranjan, for the respondent No.2.
Mr. M. C. Jain, for the respondent No.1.
_____________________________________________________
HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI
Date of Order :: 01/09/2017
The instant petition under Article 227 of the
Constitution of India has been filed by the
defendant/applicant/petitioners assailing the order dated
19.1.2017 passed by Additional District & Sessions Judge No.14,
Jaipur Metropolitan, Jaipur (hereinafter referred to as the
'Appellate Court') in Civil Misc. Appeal No.03/2015 titled as Smt.
Anju Agarwal & Anr. Vs. Amar Singh Rathore & Ors., whereby the
learned Appellate Court has allowed the appeal filed by the
plaintiff/non-applicant/respondents and the order dated 13.1.2015
granting temporary injunction by the Civil Judge (Jr. Division),
Jaipur Metropolitan (East) (hereinafter referred to as the 'trial
Court') in Civil Misc. (Temporary Injunction) Application
No.77/2014 has been set aside.
Brief facts necessary for disposal of this petition are
that Smt. Babli Devi, the plaintiff, mother of the respondents No.3
to 7, filed a civil suit No.337/1993 against the petitioners for
permanent injunction stating therein that one Bharat Nirman
(3 of 15)
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Bhawan Sahkari Samiti purchased a land in front of Rajasthan
Police Academy and developed a scheme in the name of Sanjay
Colony. In the said scheme, Plot No.7 was allotted to one Shri
Kailash Sharma on 17.2.1981. It is also stated that petitioner No.1
filed an application under Section 145 Cr.P.C. stating therein that
the said plot was earlier allotted to his wife, petitioner No.2
Hemlata. The said application was dismissed on 23.4.1982.
However, the learned Additional District & Sessions Judge, Jaipur
vide its order dated 24.3.1989 allowed the said revision petition.
It is further stated that the said plot was sold by Shri Kailash
Sharma to one Shri Mahendra Pal and said Shri Mahendra Pal sold
the said plot to plaintiff Smt. Babli Devi. The said society issued
the allotment letter in favour of plaintiff on 18.10.1990 and since
then she is in possession thereof. It is further stated that on
16.6.1993, it came to the notice of plaintiff that in the case under
Section 145 Cr.P.C., order has been passed to give possession of
the said plot to petitioner No.2 Hemlata. In these circumstances,
the plaintiff filed the suit for permanent injunction against the
petitioners, since the plaintiff was not party to the said
proceedings. The plaintiff alongwith the aforesaid suit filed an
application for temporary injunction, which was allowed by the
learned trial Court on 7.1.1998 and the defendant/petitioners
were restrained not to dispossess the plaintiff and not to interfere
in her use and occupation of the same.
The petitioners filed written statement alongwith
counter claim stating therein that the said plot No.7 was firstly
allotted on 7.10.1969 and thereafter the society and the plaintiff
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forged the allotment letter. It was also stated that the said plot
was under attachment from 23.4.1982 to 21.3.1993, therefore,
there is no question of possession of any person on the said plot.
It is further stated that alongwith counter claim, the petitioners
filed an application for temporary injunction No.121/2001, which
came to be decided by the learned trial Court on 21.4.2006,
whereby the plaintiff was ordered that if the plaintiff gives written
undertaking that at the time of judgment of the suit, if the
ownership of the petitioners is found, the plaintiff shall handover
the possession to the petitioners and in that circumstance she can
carry out the construction on the said plot, otherwise the plaintiff
shall maintain status-quo on the plot in dispute.
During pendency of the suit, the original plaintiff Smt.
Babli Devi expired and her legal representatives, respondents No.3
to 7 herein, were taken on record. Subsequently, respondent No.3
on the basis of an alleged will sold the disputed plot No.7 to the
respondents No.1 & 2 through registered sale deed dated
3.4.2013. Thereafter, respondents No.1 & 2 filed an application
under Order 22 Rule 10 and Order 1 Rule 10 CPC with the prayer
that they should be added as plaintiffs No.2 & 3 in the cause title
and further sought amendment in the plaint that the rights of the
deceased/plaintiff have been vested in them, therefore, they are
entitled to the relief sought by the plaintiff. The petitioners filed
reply to the said application. The learned trial Court allowed the
application on 12.11.2014 only to the extent of adding the
respondents No.1 & 2 as party to the suit and the amendment
sought by the respondents No.1 & 2 was rejected.
(5 of 15)
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Pursuant to the order dated 21.4.2006 passed in
temporary injunction application No.121/2001, neither the plaintiff
Smt. Babli Devi furnished any undertaking in her life time nor by
her legal representatives thereafter. After impleading respondents
No.1 & 2 as party to the suit, they submitted an undertaking
before the learned trial Court. The petitioners filed their objections
to the undertaking submitted by respondents No.1 & 2 and the
same is pending consideration before the learned trial Court.
Thereafter, the petitioners filed second application for
temporary injunction stating therein that respondents No.1 & 2
and their husbands started putting the building material on the
disputed plot for constructing building thereon. It was also stated
that order of status-quo dated 21.4.2006 is operative with regard
to the disputed plot and the rights of the parties are yet to be
determined. It was further stated that respondent No.3 has sold
the property to the respondents No.1 & 2 in contempt of the order
of status-quo passed by the learned trial Court. It was further
stated that if the plot in question is further sold to the third party,
it will create unnecessary litigation and prayed to restrain the
respondents by temporary injunction to maintain status-quo on
the plot in dispute.
The respondents No.1 & 2 filed reply to the said
temporary injunction application stating therein that they are the
bonafide purchaser of the disputed plot and prayed to dismiss the
temporary injunction application. The respondents No.3 to 7 also
filed reply to the said temporary injunction application stating
therein that they had informed the respondents No.1 & 2 about
(6 of 15)
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pending suit and the criminal proceedings before the sale of
disputed plot and prayed to dismiss the temporary injunction
application. It is also stated that respondents No.1 & 2 were also
given complete files of the proceedings.
Learned trial Court allowed the second application for
temporary injunction vide it's order dated 13.1.2015 and
restrained the respondents and directed them to maintain status-
quo with regard to plot in dispute. Being aggrieved with the above
order, the respondents No.1 & 2 filed Civil Misc. Appeal No.3/2015.
During pendency of the aforesaid appeal, the petitioner No.2 Smt.
Hemlata expired and her legal representatives were taken on
record.
After hearing the parties, learned Appellate Court
allowed the appeal vide impugned order dated 19.1.2017 and set
aside the order dated 13.1.2015 passed by the learned trial Court.
Mr. Rajesh Mehrishi, learned counsel for the petitioners
submitted that learned Appellate Court committed error in not considering the order dated 21.4.2006 passed on the first application for temporary injunction filed by the petitioners, whereby the plaintiff-Smt. Babli Devi was directed to give written undertaking to the effect that she will hand over possession of the disputed plot to the petitioners, if at the time of judgment of the suit the ownership of the petitioners is found, else she would maintain status-quo on the disputed plot. Learned counsel also submitted that since the plaintiff had not furnished any such undertaking, the order of status-quo is effective and the respondents No.1 & 2 being subsequent purchaser are also bound (7 of 15) [CW-1345/2017] by the said order of status-quo.
Learned counsel for the petitioners also contended that respondents No.1 & 2, after they were impleaded party to the suit, filed an undertaking to which the petitioners have raised detailed objections and the said objections are pending adjudication before the learned trial Court, therefore, the impugned order allowing the appeal and directing the respondents No.1 & 2 to furnish undertaking is wholly erroneous and is liable to be set aside. Learned counsel further contended that the learned Appellate Court failed to consider that vide order dated 21.4.2006, the plaintiff was restrained from selling the disputed plot to any other person. Learned counsel also submitted that even if the plaintiff Smt. Babli Devi had given the undertaking as per the said order, she had to give possession to the petitioners in case the suit was decided in their favour, as such the plaintiff had to retain the possession of the plot in dispute till disposal of the suit and, therefore, sale to the respondents No.1 & 2 is in violation of order dated 21.4.2006.
Learned counsel for the petitioners further contended that the learned Appellate Court had erred in holding that respondents No.1 & 2 are the bonafide purchasers. Learned counsel also contended that respondents No.3 to 7 have categorically stated in their reply that they had informed the respondents No.1 & 2 about pending suit and criminal proceedings and they were given the complete files of the said proceedings. In view of the said averments in the reply by respondents No.3 to 7, (8 of 15) [CW-1345/2017] the findings of the learned Appellate Court is perverse and erroneous and deserves to be set aside. Learned counsel for the petitioners also contended that simply because the sale deed does not contain about pending litigation, it does not lead to the conclusion that the respondents No.1 & 2 were not aware of the pending suit and the criminal proceedings. As such the sale deed executed by the respondent No.3 in favour of respondents No.1 & 2 does not confer any title or interest in the plot in dispute.
Per contra, Mr. M. M. Ranjan, Sr. Advocate assisted by Mr. Rajat Ranjan, Advocate appearing for the respondent No.2 and Mr. M. C. Jain, Advocate appearing for the respondent No.1 vehemently opposed the contentions of learned counsel for the petitioners and supported the impugned order passed by learned Appellate court. Learned counsel for the respondents contended that learned trial Court passed an injunction order on 7.1.1998 holding that the plaintiff Smt. Babli Devi was in possession and restrained the petitioner No.2 Hemlata and others not to dispossess the plaintiff Smt. Babli Devi and not to cause any hindrance in her use and occupation. The order has become final as no appeal has been filed against this order. Thereafter, Jaipur Development Authority after thorough enquiry and on the basis of documents submitted by the society, issued a patta in favour of Smt. Babli Devi on 17.7.2002. Smt. Babli Devi wanted to raise construction and then an application for temporary injunction was submitted by the petitioner No.2 Hemlata praying therein to restrain the plaintiff not to raise any construction, which came to be decided by the learned trial Court on 21.4.2006 and the (9 of 15) [CW-1345/2017] learned trial Court held that Smt. Babli Devi had a right to raise construction and she can raise construction provided she submits an undertaking in writing to the effect that in the event of decision of the case against her, then she will not claim any damages or any equity and in case the undertaking is not submitted then the order for maintaining status-quo was passed and the injunction application filed by the petitioner No.2 Hemlata was dismissed.
Learned counsel for the respondents also contended that because of certain financial constraints, Smt. Babli Devi and after her death legal representatives could not commence the construction work. Before the death of Smt. Babli Devi, she executed a will in favour of her son Radha Kishan, respondent No.3 herein. After the death of Smt. Babli Devi, Radha Kishan sold the plot to respondents No.1 & 2 vide registered sale deed dated 3.4.2013. Learned counsel further contended that respondent No.3 Radha Krishan did not disclose the fact of litigation and executed the sale deed in favour of respondents No.1 & 2. Learned counsel also contended that the respondents No.1 & 2 submitted an undertaking when they came to know about the passing of the order and started raising construction, then again injunction application was submitted by Smt. Hemlata. Learned counsel further contended that petitioner Hemlata has been allotted plot No.32 as is evident from the award dated 22.12.1987 under Section 75 of the Rajasthan Cooperative Societies Act, as such she cannot take advantage of two plots.
Learned counsel for the respondents further contended that it is an admitted case and the findings of both the Courts that (10 of 15) [CW-1345/2017] petitioners are not in possession of the plot in dispute and plaintiff Smt. Babli Devi and now successors in title, respondents No.1 & 2 herein, are in possession and have raised construction over the plot in dispute. Learned counsel also submitted that no irreparable loss would be caused to the petitioners in case their counter claim is decreed because they will get the improved plot. Under such circumstances, balance of convenience also does not lie in favour of the petitioners.
Learned counsel for the respondents further contended that while exercising the powers under Article 227 of the Constitution of India, this Court should be slow to interfere in the discretion exercised by the first Appellate Court in the matter of grant or refusal of temporary injunction application and prayed to dismiss the petition being devoid of any substance.
From contentions of learned counsel for the parties and perusal of material made available to me, it is borne out that first application for temporary injunction filed by the petitioners, was decided by the learned trial Court on 21.4.2006 and the plaintiff Smt. Babli Devi was directed to give written undertaking to the effect that in the event of decision of the case against her, she will not claim any damages or equity, else she would maintain status- quo on the plot in dispute. The plaintiff Smt. Babli Devi had not furnished any undertaking, therefore, the order of status-quo is effective. The respondents No.1 & 2 are subsequent purchasers, therefore, they are bound by the said order of status-quo. It is also borne out that after the death of plaintiff Smt. Babli Devi, respondent No.3 Radha Kishan sold the plot in dispute to (11 of 15) [CW-1345/2017] respondents No.1 & 2 vide registered sale deed dated 3.4.2013 and thereafter respondents No.1 & 2 were impleaded as party to the suit and filed an undertaking to which the petitioners have filed objections, which are pending adjudication before the learned trial Court.
Taking note of the pleadings of the petitioners that the respondents will construct flats on the plot in dispute and are prepared to sale the flats to different persons, learned trial Court allowed the second application for temporary injunction on 13.1.2015 filed by the petitioners restraining the respondents to maintain status-quo of the plot in dispute till disposal of the suit. Learned trial Court was of the opinion that if the process of alienation is allowed to continue and rights of third parties are created then the complications would arise and it will result in multiplicity of proceedings. Learned trial Court also opined that prima facie the non-applicants No.6 & 7 (respondents No.1 & 2 herein) are not bonafide purchasers looking to the averments of non-applicants No.1 to 5 (respondents No.3 to 7 herein) in their reply. Learned trial Court also observed that several complicated questions of law and facts are involved in the suit, which cannot be decided at this stage and such questions can be decided after completion of trial. Learned trial Court further observed that the case is at the stage of final arguments and found all the three ingredients in favour of the petitioners and allowed the application for temporary injunction, as stated above.
Respondents No.3 to 7 have categorically stated in their reply that the respondents No.1 & 2 have been informed (12 of 15) [CW-1345/2017] about the pending suit and the criminal proceedings and they were given the complete files of the said proceedings. Whereas, respondents No.1 & 2 pleaded that they were not aware of the pending suit and criminal proceedings, as such they are bonafide purchasers. The learned Appellate Court reversed the finding of learned trial Court holding that respondents No.1 & 2 are bonafide purchasers on the basis that the registered sale deed does not mention about the pending litigation. The above finding of learned Appellate Court is grossly erroneous at this stage, in view of the reply of respondents No.3 to 7.
In the case of Skyline Education Institute (Pvt) Ltd Vs. S. L. Vaswani & Anr. reported in 2010 AIR SCW 628, Hon'ble Apex Court held that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a denovo consideration of the matter, it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity. Unless the appellate Court comes to the conclusion that the discretion exercised by trial court in refusing to entertain the prayer for temporary injunction is vitiated by an error apparent or perversity and manifest injustice has been done, there will be no warrant for exercise of power.
In the case of Mohd. Mehtab Khan & Ors Vs. Khushnuma Ibrahim Khan & Ors. reported in (2013) 9 SCC (13 of 15) [CW-1345/2017] 221, a suit was filed under Section 6 of the Specific Relief Act, 1963, wherein interim relief of direction to be put back in possession of the suit property was sought by the plaintiffs. The said interim relief was refused by the trial Court. But in appeal, the High Court granted the interim relief. Setting aside the order of the High Court, the Apex Court held that where the trial Court on a consideration of the respective cases of the parties and the documents laid before it, was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the appellate court could not have interfered with the exercise of discretion by the trial Judge, unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the trial Judge do not indicate that the view taken is not a possible view. The appellate court, therefore, should not have substituted it's view in the matter merely on the ground that in it's opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. What is sought to be emphasised is that as long as the view of the trial court was a possible view the appellate court should not have interfered with the same.
Learned Appellate Court has not considered that the civil suit is pending at the stage of final disposal since 9.11.2013 and at that stage permitting the respondents No.1 & 2 to carry out the construction on the plot in dispute, will lead to complications and multiplicity of litigation.
In view of law laid down by Hon'ble Apex Court in the (14 of 15) [CW-1345/2017] case of Skyline Education Institute (Pvt) Ltd Vs. S. L. Vaswani & Anr. (supra) and Mohd. Mehtab Khan & Ors Vs. Khushnuma Ibrahim Khan & Ors (supra) that the Appellate Court should not interfere with the exercise of discretion of learned trial Court and substitute its own discretion except where the discretion has been exercised by the trial Court arbitrarily or capriciously or perversely or in utter disregard of the sound principles of law. The learned Appellate Court reassessed the material and reached to a conclusion different from the conclusion made by the learned trial Court, whereas the learned trial Court has considered all the material available on record. In such circumstances, it was not advisable for the learned Appellate Court to reassess the material and substitute it's own findings. Learned Appellate Court did not consider the fact that if the respondents No.1 & 2 are permitted to carry out construction or make alteration in the property in dispute, prima facie it will change the subject matter of the suit and will cause irreparable loss to the petitioners.
On consideration of submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case laws, this Court finds that the present is a fit case in which interference is required to be made in the impugned order, as the learned Appellate Court has committed jurisdictional error in interfering with the order passed by the learned trial Court.
Consequently, the writ petition is allowed and the impugned order dated 19.1.2017 passed by Additional District & (15 of 15) [CW-1345/2017] Sessions Judge No.14, Jaipur Metropolitan, Jaipur in Civil Misc. Appeal No.03/2015 titled as Smt. Anju Agarwal & Anr. Vs. Amar Singh Rathore & Ors. is set aside and the order dated 13.1.2015 passed by the Civil Judge (Jr. Division), Jaipur Metropolitan (East) in Civil Misc. (Temporary Injunction) Application No.77/2014 is restored.
In view of above, the stay application also stands disposed of.
During the course of arguments, learned counsel for the parties apprised the Court that the civil suit pending before the learned trial Court is at the stage of final arguments since the year 2013, as such the learned trial Court is expected to decide the same expeditiously without giving any unreasonable adjournment.
(DINESH CHANDRA SOMANI)J. A.Arora/-
(Reserved).