Gujarat High Court
Manojbhai Vinodchandra Shah vs Suraj Prakash Bhagat on 24 July, 2018
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/AO/86/2018 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 86 of 2018
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MANOJBHAI VINODCHANDRA SHAH APPELLANT
Versus
SURAJ PRAKASH BHAGAT & ORS RESPONDENTS
============================================ Appearance:
MR P.C. KAVINA, SENIOR ADVOCATE with MR. RAJ A TRIVEDI, ADVOCATE for the APPELLANT(Original Defendant No.3) MR MIHIR THAKORE, SENIOR ADVOCATE & MR SHALIN MEHTA, SENIOR ADVOCATE with MR. BHADRISH S RAJU, ADVOCATE for the CONTESTING RESPONDENT No. 1 (Original Plaintiff) MR MEHUL S. SHAH, SENIOR ADVOCATE with MR JENIL M SHAH, ADVOCATE for the RESPONDENT No. 2 (Original Defendant No.1) RESPONDENT No. 3 (Original Defendant No.2) is served ============================================ CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 24/07/2018 CAV ORDER
1. This Appeal arises from the Order passed by the 16th Additional Senior Civil Judge, Vadodara dated 12.02.2018, below injunction application Exh. 5 in Special Civil Suit No. 330 of 2017. By the impugned order, the Trial Court has allowed injunction application Exh.5 filed by the plaintiff and has restrained the defendants from dealing with the suit property.
2. Heard learned advocates.
3.1 Mr. P.C. Kavina, learned senior advocate for the appellant
- original defendant No.3 has submitted that the appellant is a Page 1 of 16 C/AO/86/2018 CAV ORDER bona-fide purchaser of the suit land and the Trial Court has committed an error by granting injunction against the present appellant. It is submitted that the suit of the plaintiff is based on a power of attorney given by the plaintiff himself to the defendant No.1, pursuant to which the suit land was sold by defendant No. 1 to him through registered sale deeds dated 26.12.2016. It is submitted that the very foundation of the suit is false, frivolous and lacks bona - fide. It is further submitted that the power of attorney, based on which the suit property was sold by the defendant No.1 to the present appellant, was an irrevocable power of attorney and was operating since the year 2000 and was never challenged by the plaintiff. Further, the some different power of attorney, which the plaintiff talks about, is not produced by him before the Trial Court. It is submitted that the appellant is in possession of the suit land and the interim injunction granted by the Trial Court needs to be interfered with. Learned senior advocate has taken this Court extensively through the paper book, which runs into hundreds of pages. Detailed submissions are made even on the merits of the matter, including on the issues which are pending before the Trial Court. It is submitted that the impugned order be quashed and set aside.
3.2 Learned senior advocate for the appellant has also made serious grievance that the impugned order is not mere an error of judgment on the part of the Trial Court. Learned senior advocate for the appellant has, with due restrain, but without mincing words submitted that, if the language of the plaint and the language of the impugned order is compared, the tenor and vocabulary in the impugned order, which runs into about 72 pages, is almost akin to that of the plaint and anyone Page 2 of 16 C/AO/86/2018 CAV ORDER may reasonably infer that the author of both the documents are less likely to be different. It is submitted that, the plaintiff resides at Mumbai and the pattern of pleading, including the tenor of the impugned order, is more of original jurisdiction of the Bombay High Court. It is submitted that, the impugned order be viewed from this angle as well. It is submitted that the impugned order be quashed and set aside.
3.3 Mr.Kavina, learned senior advocate for the appellant has, on instructions stated that, to show the bona fide on his part, the appellant is ready to deposit the entire amount, which could have been received by the original plaintiff, as indicated in the sale deeds. He further states that, the total amount of all the five sale deeds, qua this amount i.e. the amount payable to the plaintiff comes to Rs.16,86,17,635/- (Rupees Sixteen Crores Eighty Six Lakhs Seventeen Thousand Six Hundred Thirty Five Only). It is stated that, the said amount may be deposited with the Registry of this Court, or as may be ordered by this Court, within reasonable time. It is further submitted that, this is without prejudice to the rights and contentions of the appellant and the same be not construed as any concession of the appellant on merits.
4. Mr. Mehul Shah, learned senior advocate for the respondent No.2 - original defendant No. 1, who is the power of attorney holder of the original plaintiff, has submitted that on the face of the pleadings by the parties before the Trial Court, the injunction could not have been granted. It is submitted that on the basis of the power of attorney dated 19.05.2000, which was irrevocable in nature, the defendant No.1 fought various legal battles for 17 years on behalf of the Page 3 of 16 C/AO/86/2018 CAV ORDER plaintiff. It is submitted that on one hand, it is the case of the plaintiff before the Trial Court that no power of attorney was given to the defendant No.1, on the other hand, it is the say of the plaintiff that though he had given power of attorney to the defendant No.1, the said power of attorney was subsequently forged by the defendant No.1. It is further submitted that the plaintiff has suppressed various material facts, qua the proceedings before the Revenue Authorities and earlier round of litigation, qua the suit property, wherein it is admitted by the plaintiff himself that he had given a power of attorney dated 19.05.2000 to the defendant No. 1 to deal with the suit property, on his behalf, including sale thereof. It is submitted that though these aspects were put on the record of the Trial Court by the defendant No.1, the Trial Court did not consider those vital aspects and granted injunction in favour of the plaintiff. It is submitted that, on these glaring facts, the Trial Court could not have recorded that the plaintiff has even prima-facie case. It is submitted that the injunction granted by the Trial Court needs to be interfered with. Learned senior advocate has taken this Court extensively through the paper book, which runs into hundreds of pages. Detailed submissions are made even on the merits of the matter, including on the issues which are pending before the Trial Court. Mr.Mehul S. Shah, learned senior advocate for the supporting respondent has also, while adopting the argument of learned senior advocate for the appellant as noted in para:3.2 above, reiterated that the impugned order is not mere an error of judgment on the part of the Trial Court, but there is something more. Mr.Shah, learned senior advocate has also, with due restrain, but without mincing words, submitted that, if the language of the plaint and the language of the impugned order Page 4 of 16 C/AO/86/2018 CAV ORDER is compared, it is less likely that the author of both the documents could be different. It is submitted that, the impugned order be viewed from this angle as well. It is submitted that the impugned order be quashed and set aside.
In support of these submissions, learned senior advocate for original defendant No.1 has relied on the following authorities.
1. Ahmedasahen & Ors. Vs Sayed Ismail -(2012) 8 SCC
516.
2. Mandali Ranganna & Ors Vs T. Ramachandra & Ors -
AIR 2008 SC 2291.
3. Gautam Sarup Vs Leela Jetly & Ors - (2008) 7 SCC 85.
4. Ram Chandra Singh Vs Savitri Devi &Ors - (2003) 8 SCC 319.
5. Ramaswamy Vs M. Lobo - (2001) 10 SCC 176.
6. S. Saktivel Vs M Venugopal Pillai & Ors - (2000) 7 SCC
104.
7. Basanti Mohanty Vs Brahmanand Das & Ors - AIR 1996 Ori 86.
8. Prabhudayal & Ors Vs State of Maharastra - (1993) 3 SCC 573.
9. Dalpat Kumar Vs Prahlad Singh & Ors - AIR 1993 SC 276
10. Thiru John Vs Returning Officer -(1977) 3 SCC 540.
5. Mr. Mihir Thakore, learned senior advocate and Mr. Shalin Mehta, learned senior advocate have contested this appeal on behalf of the respondent No.1 - original plaintiff. Learned senior advocates have taken this Court extensively through the paper book, which runs into hundreds of pages. Detailed submissions are made even on the merits of the matter, Page 5 of 16 C/AO/86/2018 CAV ORDER including on the issues which are pending before the Trial Court. It is submitted that the Trial Court has not committed any error by granting injunction in favour of the plaintiff and against the defendants and no interference be made by this Court. It is submitted that this appeal be dismissed. In support of their submissions, learned senior advocates for the plaintiff have relied upon following authorities.
1. Garapati Venkanna Vs Mullapudi Atchutamanna & Ors - AIR 1938 Madras 542
2. Devkubai Vs Rajesh Builders - 1997 1 Mh.L.j 403
3. Ravindrabhai Chhotabhai Patel Vs State of Gujarat -
2014 2 GLR 1315
4. Sukhbir Kaur Vs Balwant Singh & Ors - 2016 184 PLR 593
5. Mt. Jan Vs Mt. Fajjan - 1983 AIR Lahore 351
6. Surekha Sakharam Washiwale Vs Nanobha Dhondiba Bharekar & Ors - 2014 2 Mh.L.j 405
7. Nanobha Dhondiba Bharekar & Ors Vs Surekha Sakharam Washiwale in SLP CC No. 7003 of 2014
8. Barses Vs Muni Corporation GR. Mumbai - 2003 4 Mh LJ 451
9. Manubhai Prabhudas Patel and Ors Vs Jayantilal Vadilal Shah and Ors - 2012 GLH (1) 565
10. P. M. Desappa Nayanim Varu and Ors Vs Ramabhaktula Ramiah and Ors - AIR 1952 Mad 559
11. Suraj Lamp & Lamp Industries Pvt. Ltd. Vs Staet of Haryana and Anr. - (2012) 1 SCC 656
12. Khimjibhai Harjivanbhai Patadia Vs Patel Govindbhai Bhagvanbhai & Ors - MANU/GJ/8510/2006
13. Harshadkumar Kantilal Bhalodwala & Anr Vs Page 6 of 16 C/AO/86/2018 CAV ORDER Ishwarbhai Chandubhai Patel & Ors - 2010 51 GLR 1041
14. Nirav Ishwarbhai Patel & Ors. Vs Govindbhai Gilabhai Sachpara & Ors reported in 2014 SCC Online Guj
15. Govindbhai Gilabhai Sachpara & Ors Vs Nirav Ishwarbhai Patel & Ors. In SLP (C) CC Nos. 17140 - 17141 of 2014
16. Santosh Vs Jagat Ram & Anr. - 2010 3 SCC 251
17. A. V. Papauua Sastry & Ors Vs Govt. of A.P. & Ors - (2007) 4 SCC 221
18. S. P. Chengalvaraya Vaidu (Dead) by LRS. Vs Jagannath & Others (Dead) by LRS. - 1994 1 SCC 1
19. Meghmala & Ors Vs G. Narasimha Reddy & Ors - (2010) 8 SCC 383
6. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under.
6.1 The point at issue before this Court is whether the Trial Court fell in error while granting injunction in favour of the plaintiff, in the facts of this case, and/or whether the impugned order otherwise calls for any interference by this Court.
6.2 Whether the plaintiff has prima-facie case or not, that issue is answered by the Trial Court as 'partly affirmative'. This Court has considered the reasons recorded by the Trial Court. The foundation of the suit is that, the plaintiff disowns the power of attorney given by him to defendant No.1. At one stage, it is contended by the plaintiff that the said power of attorney is a forged one, at some other places, it is contended Page 7 of 16 C/AO/86/2018 CAV ORDER by the plaintiff that, there is difference in dates. The prayer clauses of the plaint and injunction application are also sufficient to indicate that the plaintiff has attempted to create confusion qua the date of power of attorney. The Trial Court has also recorded its finding qua the first parameter - 'prima- facie case' as 'partly affirmative'. In this factual background, even the first parameter - whether the plaintiff can be said to have prima-facie case or not, may require closer scrutiny. In this regard, the following aspects are considered.
6.3 It is not in dispute that there is only one power of attorney. A copy thereof is on record. This Court has considered the said document. In no uncertain terms, it is an irrevocable power of attorney and further, it authorises the power of attorney holder, to do everything qua the suit land, including execution of sale deed and acceptance of sale consideration (vide Para:10). Based on the said power, the defendant No.1 has acted on behalf of plaintiff, before various Authorities / Forums / Courts for about 17 years and has successfully pursued various litigations / proceedings. In all those litigations / proceedings, not only on behalf of the plaintiff, but by the plaintiff himself, under his own signature, it is asserted that, the defendant No.1 is his (plaintiff's) power of attorney holder and the said power is dated 19.05.2000. Reference in this regard can be made to the following documents / proceedings.
(i) The affidavit dated 27.02.2012 sworn by the plaintiff and submitted to the District Court, Vadodara in the proceedings of MCA No.110 of 2010. In the said document, it is the assertion of the Page 8 of 16 C/AO/86/2018 CAV ORDER plaintiff that, Mr.Bhavesh Amin (the defendant No.1 in the suit) is holding power of attorney on his (plaintiff's) behalf. The said document is at page No. 261 of the paper-book. The said document is qua the very suit land.
(ii) The written submissions (in Gujarati) given by the plaintiff under his own signature to the Deputy Collector (Land), Vadodara in Tenancy Appeal No.97 of 2013. In the said document, it is so stated by the plaintiff that, Mr.Bhavesh Amin (the defendant No.1 in the suit) is holding power of attorney on his (plaintiff's) behalf. He specifically refers to the power of attorney dated 19.05.2000. It is to deal with the suit land. The said document is at page Nos.205 to 213 of the paper-book. In the said document, the above aspect is referred at para:2. This document is qua the very suit land.
(iii) Letter (in Gujarati) written to the Mamlatdar at Dehgam dated 11.06.2003 (at page:194 of the paper-book), pertaining to some different land. This however would show that, the plaintiff does undertake correspondence in Gujarati.
(iv) Orders of this Court dated 16.07.2015 & 13.08.2015 recorded on Special Civil Application No.7477 of 2013 and 7480 of 2013.
6.4 Considering the above, this Court finds that the very foundation of the plaint that the plaintiff had not given any Page 9 of 16 C/AO/86/2018 CAV ORDER power to the defendant No.1, or that the said power is not a genuine one, is not only contrary to the record, but would be counter productive for the plaintiff himself, even on merits. It is not in dispute that whatever rights the plaintiff claims in the suit land now, is earned by him after various litigations / proceedings which the defendant No.1 has pursued / contested for more than 15 years, based on that very power of attorney, which is now attempted to be disowned by the plaintiff. It is this in-genuine attempt on the part of the plaintiff, which would not only dis-entitle him from claiming any discretionary relief, but would go to the very root of the matter, on the first parameter qua prima facie case, leading to irresistible conclusion that the plaintiff can not be said to have prima facie case. Disowning the said power of attorney would be counter productive for the plaintiff, even on merits, because if the said power of attorney goes, as the necessary consequence thereof, all orders in favour of the plaintiff passed by various Authorities / Forums / Courts would also go. Then, nothing remains with the plaintiff to be claimed / contested in the suit.
6.5 It is noted that, the suit land has ultimately been freed from all legal clutches pursuant to the last order of the Deputy Collector, Vadodara, in the proceedings which were reopened pursuant to the order of this Court dated dated 16.07.2015 recorded on Special Civil Application No.7477 of 2013 and 7480 of 2013. The said petition was filed by the plaintiff through this very power of attorney. The plaintiff can not be permitted to contend that, the said power of attorney was genuine when the said petition was filed and successfully pursued by the very same person including before the District Court, but is not genuine thereafter.
Page 10 of 16C/AO/86/2018 CAV ORDER 6.6 There are additional factors, which would further tilt the balance against the plaintiff. It was categorically pleaded by the defendant No.1 in his written statement before the Trial Court that, the plaintiff had deliberately suppressed the above referred material facts. In this regard, details of the proceedings before various authorities including the revenue Authorities, were also given, along with supporting documents, wherein it was not only admitted but asserted by the plaintiff himself that the defendant No.1 is his power of attorney holder. The said documents are considered by this Court. This Court finds that the plaintiff has suppressed those material facts and documents before the Trial Court. It is noted that, had those facts and documents, which were relevant and also on record, were considered by the Trial Court, no injunction could have been granted by the Trial Court in favour of the plaintiff. The impugned order thus suffers from the vice of perversity.
7.1 It needs to be noted that, serious grievance is made by learned senior advocate for the appellant - original defendant that, over and above there being no merits in favour of the plaintiff, the impugned order is not mere an error of judgment on the part of the Trial Court, but there is something more. It is also noted that, though with due restrain, but without mincing words, it is vehemently submitted on behalf of the appellant before this Court that, if the language of the plaint and the language of the impugned order is compared, the tenor and vocabulary in the impugned order, which runs into about 72 pages, is almost akin to that of the plaint and anyone may reasonably infer that the author of both the documents are Page 11 of 16 C/AO/86/2018 CAV ORDER less likely to be different. This Court finds substance in this argument. The plaintiff resides at Mumbai. The pattern of pleading is more of original jurisdiction of the Bombay High Court. Even in the pleadings, at some places, the plaintiff has referred to 'receiver to be appointed by Bombay High Court'. It also needs to be noted that, for the purpose of grant of injunction, the Trial Court has recorded its satisfaction inter- alia to the effect that, if the injunction as prayed for is granted in favour of the plaintiff, a workable formula can be evolved between the parties (internal page:33 of the impugned order). Finding out workable formula between the contesting parties, where the dispute is qua the land, can not be a legal consideration, for the purpose of grant of injunction. It would only encourage / enhance bargaining capacity of an in-genuine litigant. If this finding of the Trial Court is weighed vis-a-vis the grievance made by the learned senior advocate for the appellant, qua language and tenor of the impugned order, this Court finds that, the grievance voiced by the appellant in this regard does not appear to be without any basis.
7.2 This Court has also noticed that, number of unusual aspects are noted by the Trial Court in the impugned order. The Trial Court has enlisted, as many as 38 entries (internal page-38 to 41 of the impugned order), what is not being decided by it, while considering the said injunction application. After noting those 38 entries, the Trial Court has found that 'there is partly affirmative prima facie case in favour of the plaintiff', after recording about 70 pages. Those 70 pages are also tainted with, what is noted in para:7.1 above.
7.3 Further, the Trial Court has directed that let there not be Page 12 of 16 C/AO/86/2018 CAV ORDER any interference by any of the defendants in the possession of the plaintiff over the suit land. This would pre-suppose that the possession of the suit land is with the plaintiff. If the prayer clause of the injunction application is seen, it is the case of the plaintiff himself that the possession of the suit land be forcibly taken from the defendants and be handed over to the plaintiff, by appointing a receiver by the Court. If this was the prayer of the plaintiff, where was the necessity and on what basis the Trial Court came to the conclusion that the possession of the suit land is with the plaintiff. These are few of the glaring aspects, which make the impugned order more vulnerable.
7.4 On one hand, the plaintiff contends that, the power of attorney on record is not genuine one, at the same time he also does not produce copy of any power of attorney, which according to him is genuine. It is not in dispute that, there is only one power of attorney. In this factual background, the onus was on the plaintiff to produce the material on record, to substantiate his case, which he did not do. The thrust in the entire impugned order is that the defendants have not been able to prove / do certain things. It was not for the defendants to disprove the case of the plaintiff. The Trial Court was thus in error by erroneously shifting the burden on the defendants, to prove that the plaintiff was not right.
7.5 On conjoint consideration of the facts, the material on record and the reasons / findings recorded above, this Court arrives at the conclusion that:- (i) the plaintiff does not have prima facie case on merits, (ii) even on the foundation of the suit (qua the power of attorney), he blows hot and clod; simultaneously; to suit his convenience, and (iii) there are Page 13 of 16 C/AO/86/2018 CAV ORDER suppression of material facts by the plaintiff before the Trial Court. For all these reasons, the plaintiff was not entitled to claim any injunction in his favour. The impugned order therefore needs to be quashed and set aside. Further, the impugned order needs to be interfered with also on the ground that, it suffers from the vice of two fold perversity. Firstly, the Trial Court was guided by a consideration that, if the injunction is granted in favour of the plaintiff it may yield workable formula between the parties. This was not the relevant consideration. Secondly, it has refused to take into consideration the relevant material, more particularly the contents of the written statement and material annexed in support thereof, including qua the contention of suppression of material facts by the plaintiff. The impugned order is unsustainable also on the ground that, there is substance in the grievance of the appellant (original defendant No.3) and also the supporting respondent (original defendant No.1) before this Court that, there is something more than mere an error of judgment on the part of the Trial Court, the reference to which (though guardedly) is made while recording their submissions as noted above and the findings of this Court in this regard, to the extent necessary as noted in para: 7.1 to 7.4 above.
8. For the above reasons, the impugned order needs to be quashed and set aside and the injunction application Exh.5 filed by the plaintiff needs to be dismissed. It is noted that learned advocates for the respective parties have addressed this Court at length. Number of arguments are made, including arguments on merits of the matter and various authorities were relied upon by learned advocates in support of their Page 14 of 16 C/AO/86/2018 CAV ORDER cases. Since the point at issue for the present is only, as to whether, the Trial Court has committed any error while recording the impugned order on injunction application Exh.5, detailed discussion with regard to the different issues raised by the contesting parties and authorities relied upon by them in that regard are not examined at this stage. Dealing with those arguments and the authorities may prejudice the case of either of the parties in the trial. Further, in view of the above findings on facts, various authorities relied by learned senior advocate for the original plaintiff - present respondents No. 1, would not take the case of the plaintiff any further.
9. Though the impugned order needs to be set aside for the reasons recorded above, in view of the statement made on behalf of the appellant, as noted in para:3.3 above, without prejudice to the rights and contentions of the appellant, the appellant may be directed to deposit the amount as indicated by him, with the Trial Court, within some reasonable time.
10. For the reason recorded above, the following order is passed.
10.1 This Appeal from Order is allowed.
10.2 The impugned order passed by the Trial Court, i.e. the 16th Additional Senior Civil Judge, Vadodara, dated 12.02.2018, below injunction application Exh. 5 in Special Civil Suit No. 330 of 2017, is quashed and set aside.
10.3 The said injunction application Exh.5 filed by the original plaintiff in Special Civil Suit No. 330 of 2017 in the Court of the Senior Civil Judge, Vadodara is dismissed.
Page 15 of 16C/AO/86/2018 CAV ORDER 10.4 In view of the statement made on behalf of the
appellant, as noted in para:3.3 above, it is ordered that, the appellant shall deposit an amount of Rs.16,86,17,635/- (Rupees Sixteen Crores Eighty Six Lakhs Seventeen Thousand Six Hundred Thirty Five Only) with the Trial Court within a period of six weeks from today. It is clarified that this would be without prejudice to the rights and contentions of the appellant.
(PARESH UPADHYAY, J) MOBHATI/PS/01
11. After the pronouncement of this order, Mr.Sahlin Mehta, learned senior advocate for the original plaintiff has requested that this order be stayed for some time. Considering the totality, this request is refused.
(PARESH UPADHYAY, J) MOBHATI/PS/01 Page 16 of 16