Rajasthan High Court - Jaipur
Abdul Hamid vs Murad And Ors on 24 January, 2019
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 5750/2017
Abdul Hamid S/o Shri Mohammed Khan, R/o Plot No. 198 B,
Jalupura, Jaipur Raj.
----Appellant
Versus
1. Murad S/o Late Shri Abdul Samad Khan, R/o Plot No. 199,
Purana Jalupura, Jaipur Raj.
2. Siraj S/o Late Shri Abdul Samad Khan, R/o Plot No. 199,
Purana Jalupura, Jaipur Raj.
3. Shakeel S/o Shri Mehmood Khan, R/o 198A, Purana
Jalupura, Jaipur Raj.
----Respondents
For Appellant(s) : Mr. Dinesh Yadav
For Respondent(s) :
HON'BLE MR. JUSTICE PRAKASH GUPTA
Judgment / Order
24/01/2019
This civil misc. appeal has been filed by the appellant- plaintiff against the order dated 22.08.2017 passed by Additional District Judge No.8, Jaipur Metropolitan in Civil Misc. Application No.73/2017 (166/2017).
Brief facts giving rise to this appeal are that the plaintiff- appellant filed a civil suit for partition with regard to Plot No.199, situated at Old Jalupura, Shastri Nagar, Jaipur. It was stated by the plaintiff that the said property belonged to one Samad Khan who adopted the plaintiff-appellant as his son. It was also stated in the plaint that Samad Khan executed a Will in favour of the plaintiff on 16.08.1991 and by virtue of this Will plaintiff had (Downloaded on 05/06/2021 at 10:40:49 PM) (2 of 6) [CMA-5750/2017] become the owner of the said plot. The respondents-defendants are trying to alienate the plot in question. Therefore, the respondents be restrained to alienate the same.
Respondent No.1 and 2 filed their reply wherein it was stated that Samad Khan neither adopted the plaintiffs nor executed any Will in favour of the plaintiff on 16.08.1991. The same is forged and fabricated. It was also stated in the reply that the plaintiff had filed a suit prior to filing of the present suit. The appellant-plaintiff also filed an application under Order 39 Rule 1 and 2 CPC for granting temporary injunction in that suit and the same was dismissed vide order dated 02.03.2017. In the aforesaid order, it was observed that Will dated 16.08.1991 seems to be a suspicious document prima facie.
It has been submitted by learned counsel for the appellant- plaintiff that the issue as to whether the Will is a suspicious document or not can be decided in the suit itself after opportunity of adducing evidence is given to both the parties and it was wrongly observed by the learned trial court that Will is a suspicious document at the stage of deciding the temporary injunction application.
Having heard the learned counsel for the appellant, I find no substance in the argument raised by him. It is revealed from the order impugned that the plaintiff had earlier filed a suit in the Court of Civil Judge (Junior Division) West, Jaipur Metropolitan for permanent injunction. In that suit, the appellant-plaintiff filed an application for temporary injunction which was dismissed vide order dated 02.03.2017 and the court in the said order observed that Will dated 16.08.1991 seems to be a suspicious document. Against the order dated 02.03.2017, an appeal was filed by the (Downloaded on 05/06/2021 at 10:40:49 PM) (3 of 6) [CMA-5750/2017] appellant-plaintiff and the same was dismissed by Additional District Judge No.10, Jaipur Metropolitan vide order dated 04.04.2017. There is no evidence available on record which even prima facie shows that the plaintiff-appellant has any right, title or interest in the property in question.
It is very well settled law that the relief of temporary injunction is a discretionary relief and a party who does not come with clean hands is not entitled to this equitable discretionary relief.
In the present matter, the appellant has concealed this material fact that his earlier application for temporary injunction had already been dismissed.
In this regard, the Hon'ble Apex Court in (2011) 7 SCC page 87 Amar Singh v. Union of India has observed under: -
"53. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. Courts held that such litigants have come with "unclean hands" and are not entitled to be heard on the merits of their case.
54. In Dalglish v. Jarvie the Court, speaking through Lord Langdale and Rolfe B., laid down:
(mac & G p. 231 : ER p. 89) "It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward."
55. In Castelli v. Cook Vice-Chancellor Wigram, formulated the same principles as follows: (Hare p. 94: ER p. 38) ".... a plaintiff applying ex parte comes (as it has been expressed) under a contract with the Court that he will state the whole case fully and (Downloaded on 05/06/2021 at 10:40:49 PM) (4 of 6) [CMA-5750/2017] fairly to the Court. If he fails to do that, and the Court finds, when the other party applies to dissolve the injunction, that any material fact has been suppressed or not properly brought forward, the plaintiff is told that the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go."
56. In Republic of Peru v. Dreyfus Bros. & Co. Kay, J. reminded us of the same position by holding: (LT p. 803) "....If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith with the Court when ex parte applications are made."
57. In one of the most celebrated cases upholding this principles, in the Court of Appeal in R. v. Kensington Income Tax Commr., ex p Princess de Polgnac K.B. Scrutton, L.J. Formulated as under: (KB p. 514) "... and it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts - facts, not law. He must not misstate the law if he can help it - the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement."
58. It is one of the fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings and especially when it contains a prayer for injunction. A prayer for injunction, which is an equitable remedy, must be governed by the principles of "uberrima fides".
59. The aforesaid requirement of coming to court with clean hands has been repeatedly reiterated by this Court in a large number of cases. Some of which may be noted, they are: Hari Narain v. Badri das, Welcome Hotel v. State of A.P., G. Narayanaswamy Reddy V. Govt. of Karnataka, S.P. Chengalvaraya Naidu v. Jagannath, A.V. Papayya Sastry v. Govt. of A.P., Prestige Lights Ltd. v. SBI, Sunil Poddar v. Union Bank of India, (Downloaded on 05/06/2021 at 10:40:49 PM) (5 of 6) [CMA-5750/2017] K.D. Sharma v. SAIL, G. Gayashree v.
Bhagwandas S. Patel and Dalip Singh V. State of U.P. Similarly, the Hon'ble Apex Court in (2006) 5 SCC page 294 Seema Arshad Zaheer v. Municipal Corpn. Of Greater Mumbai observed as under:-
"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 need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the 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."
(Emphasis supplied) It is trite that in such matters, the jurisdiction of the first appellate Court is very limited. The first appellate Court should not interfere unless it is found that the order of the trial Court is arbitrary, capricious and perverse or is against sound legal principles and has been passed ignoring material on record.
In this regard, the Hon'ble Apex Court in (2013) 9 SCC Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan observed as under: -
"In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of (Downloaded on 05/06/2021 at 10:40:49 PM) (6 of 6) [CMA-5750/2017] 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 learned trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The appellate court, therefore, should not have substituted its views in the matter merely on the ground that in its 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. While we must not be understood to have said that the appellate court was wrong in its conclusions 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 following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd.
In the present matter, the learned trial court has considered each and every aspect of the matter also the material available on record. Therefore, the order of the learned trial court cannot be termed as arbitrary, capricious, perverse or against sound legal principles.
I find no substance in this appeal and hence the appeal is dismissed.
(PRAKASH GUPTA),J Mohit9 (Downloaded on 05/06/2021 at 10:40:49 PM) Powered by TCPDF (www.tcpdf.org)