Calcutta High Court (Appellete Side)
Khan Mohamad Khan & Ors vs Jam Mohammad Khan on 11 June, 2015
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Civil Revisional Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
C.O. No. 1419 of 2015
Khan Mohamad Khan & Ors.
-vs-
Jam Mohammad Khan
For the petitioners : Mr. S.M. Ismail, Advocate
Heard on : 14.05.2015
Judgment on : : 11.06.2015
HARISH TANDON, J.:
This revisional application is directed against the judgment and order dated November 29, 2014 passed by the learned Additional District Judge, 4th Court, Murshidabad in miscellaneous appeal No. 26 of 2011 reversing the order dated 4th April, 2011 passed by the learned Civil Judge (Senior Devision), Lalbagh in Partition Suit No. 184 of 2010.
The facts adumbrated in the said title suit are, inter alia, as follows;- That one Abu Khan owned and possessed 4.66 sataks plot of land out of 5.56 sataks, which is recorded in R.S. plot No. 49. The rest of 90 decimal of the land was recorded in the name of Srimanta Sarkar and Sadhu Charan Sarkar. The said Abu Khan at the time of his death left behind him surviving six sons, i.e., plaintiff and defendant Nos. 1 to 5 and two daughters who inherited the said property of their predecessor. The plaintiff/opposite party further claimed title by adverse possession in respect of 90 decimal of land comprised in the said plot. It is alleged in the plaint that the plaintiff/opposite party requested the other heirs of Abu Khan to amicably partitioned the estate left by the predecessor and after having refused by them, filed the Partition Suit being Partition Suit No. 184 of 2010. It is further alleged that the defendants in connivance with the officials of the Land Reforms Office/ Settlement Office have got their names mutated in the L.R. record without surviving notice upon the opposite party. Alleging that the defendants/ petitioners are contemplating to cut down the Mango trees and by digging holes or trying to construct a house on the western portion of the scheduled property, an application for injunction was taken out in the said suit.
In the written objection the defendants/ petitioners categorically stated that the plaintiff/opposite party is guilty of suppression of material facts inasmuch as after the death of the said Abu Khan, the parties executed a deed of partition and divided that land as per their share inherited under the Mohammedan Law. It is thus stated that the suit for partition is, therefore, not maintainable. It is further alleged that prior to the institution of the present suit, the plaintiff instituted Title Suit No. 73 of 2010 claiming relief of partition in respect of the selfsame property and the instant suit is barred by the principles of res judicata.
The Trial Court rejected an application for temporary injunction, as the plaintiff opposite party not only suppressed the material fact pertaining to the institution of the earlier suit and the execution of the partition deed dated 13.6.1984, which disentitles him to get an order of temporary injunction. The order of the Trial Court was carried to an Appellate Court who reversed the said order holding that Section 14 of the West Bengal Land Reforms Act recognizes the partition amongst the co-sharers to be effected by the registered instrument and, therefore, the suppression of the partition deed dated 13.6.1984 cannot be a ground for rejection of an application for temporary injunction. The Appellate Court restrained the defendants from changing the nature and character of the suit premises till the disposal of the suit. The defendants have filed the instant revisional application assailing the order of the Appellate Court.
The learned Advocate for the petitioner submits that suppression of the material facts is one of the important factors to deny the injunction which is discretionary and equitable in nature. He further submits that the plaintiff/ opposite party instituted an earlier suit wherein he could not succeed in getting an order of temporary injunction and suppressing the aforesaid facts have filed the instant suit which is per se barred by the principles of res judicata. He, thus submits that though the plaintiff/opposite party has been able to prove the existence of a prima facie case but the conduct of the plaintiff/opposite party in suppressing the material facts disentitled him to get the order of injunction.
The learned Advocate for the opposite party submits that the earlier suit being the declaratory suit was restricted to 90 decimal of land which his clients claimed to have perfected the title by way of adverse possession and, therefore, non-disclosure of the said fact cannot stand in the way of granting temporary injunction when the subject matter of the present suit relates to the land owned by his predecessor. He vehemently submits that the Court of appeal below factually found that there is an existence of a prima facie case and exercises the discretion in granting the temporary injunction and, therefore, the discretionary order should not be interfered with in exercise of power under Article 227 of the Constitution of India. He audaciously submits that the alleged partition deed dated 13.6.1984 has no relevance and bearing in the subject dispute as the same was never acted upon by the parties. Lastly, it has submitted that the parties who are admittedly co- sharers cannot be allowed to defeat the right of the other co-sharers by making constructions over the joint property.
It is no longer res integra that an application for temporary injunction are decided on three well recognized principles firstly, prima facie case, secondly, balance of convenience and inconvenience and thirdly irreparable lose and injury. The conduct of the parties before the Court is also one of the relevant factors which shall weigh to the Court in an injunction proceeding as a person who does not come to the Court with clean hands does not deserve to get an order of injunction. This Court had an occasion to peruse the plaint of the title suit No. 73 of 2010 and the order refusing to pass an injunction wherefrom it appears, though the claim was restricted to 90 decimal of land but the properties inherited by the parties from their predecessor were also noticed by the Trial Court. The injunction is a discretionary and equitable relief and may disentitle the plaintiff an order of injunction if there is a suppression of the material facts. This Court is not oblivion of the fact that there lies a distinction between the suppression of the facts and suppression of material facts. Every facts which do not germane to the core issue if not disclosed cannot stand in the way of passing the order of injunction. The material facts are those which have a direct nexus and impact on the disputes involved in the suit or a proceeding and the suppression thereof may disentitle the plaintiff to have the order of injunction in his favour. The reference can conveniently be made to a judgment of the Delhi High Court rendered in case of M/s Seemax Construction (P) Ltd. v. State Bank of India and another reported in AIR 1992 Delhi page-197 wherein it is held that the suppression of material fact by itself is sufficient enough to decline the discretionary relief of injunction in these words:
"10. The suppression of material fact by itself is sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief has to approach the court with clean hands and is required to disclose all material facts which may, one way or the other, affect the decision. A person deliberately concealing material facts from court is not entitled to any discretionary relief. The court can refuse to hear such person on merits. A person seeking relief of injunction is required to make honest disclosure of all relevant statements of facts otherwise it would amount to an abuse of the process of the court. Reference may be made to decision in The King v. The General Commissioners for the purposes of the Income-tax Acts for the District of Kensington, 1917(1) King'' Bench Division 486 where the court refused a writ of prohibition without going into the merits because of suppression of material facts by the applicant. The legal position in our country is also no different (See : Charanji Lal v. Financial Commissioner, Haryana Chandigarh, AIR 1978 Punjab and Haryana, 326 (FB). Reference may also be made to a decision of the Supreme Court in Udai Chand v. Shankar Lal, AIR 1978 SC 265: (1978)2 SCC 209. In the said decision the Supreme Court revoked the order granting special leave and held that there was a misstatement of material fact and that amounted to serious misrepresentation. The principles applicable are same whether it is a case of misstatement of a material fact or suppression of material fact."
Under order 39 of the Code of Civil Procedure, the Court exercises an equitable jurisdiction and cannot overlook the conduct of the party as held by the Supreme Court in the case of M/s Gujrat Bottling Co. Ltd. and others v. Coca Cola Company and others reported in AIR 1995 Supreme Court Page-2372:
" 50. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings."
The aforesaid proposition of law can further be forfeited by referring a judgment of the Delhi High Court rendered in case of Rohit Dhawan v. G. K. Malhotra and another reported in AIR 2002 Delhi Page-151 wherein it is held:
"14.The suit as framed gives the impression that the agreement conferring exclusive marketing rights on the plaintiff in respect of Glunorm and dbNorm are still in force. The grievance in the plaint appears to be that while the two agreements are still in force, the defendants had started violating it by selling and marketing their products, n violation of the agreements and that is why ex parte ad interim injunction was granted. Had the plaintiff brought to the notice of this Court that agreements have already been terminated, he would not have been entitled for ex parte injunction because in that case plaintiff could at the most claim that termination of agreements is contrary to law in which case only remedy available to the plaintiff would have been damages because agreements were not of such nature that their specific performance could be enforced. So in view of Section 41 of Specific Relief Act, no injunction could have been issued to prevent the breach of agreement which cannot be specifically enforced. In the case of M/s. Seemax Construction (P) Ltd v. State Bank of India, AIR 1992 Delhi 197 it was held that the suppression of material fact by itself is a sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief has to approach the Court with clean hands and is required to disclose allmaterial facts which may, one way or the other, affect the decision. A person deliberately concealing material facts from Court is not entitled to any discretionary relief. The Court can refuse to hear such person on merits. In that case plaintiff suppressed the facts that plaintiff had filed earlier suit before subordinate Courts in which the relief was not granted. Non-disclosure of this fact was held to be sufficient to disentitle the plaintiff from discretionary relief of injunction. In the case of M/s Wander Limited v. Antox India P. Ltd., 1990(Supp) SCC 727 it was held that usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The Court, at this stage, acts on certain well-settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverably in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must 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 right for which he could not be adequately compensated. The court must weight one need against another and determine where the "balance of convenience lies". "he interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The Court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations some what different from those that apply to a case where the defendant is yet to commence hiss enterprise, are attracted.
15. Had the factum of termination of agreements been brought to the notice of Court at the first consideration of grant/refusal of ex parte injunction, the interlocutory relief may not have been granted. As already noticed, the plaint gives the impression that agreements are still in force and plaintiff is continuing to sell the said capsule but simultaneously the defendants had also started marketing/selling its products in violation of agreements. In such circumstances withholding g of relevant documents from the Court would amount to playing fraud upon the court. In the case of S.p. Chengalvaraya Naidu (dead) by LRs. V. Jagannath (dead) by LRs, AIR 1994 SC 853 it was observed that the Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
In the present case, the plaintiff/ opposite party not only suppressed the execution of a deed of partition dated 13.6.1984 but have consciously omitted to mention the institution of an earlier suit for partition and rejection of an application for temporary injunction. The Appellate Court though recorded that those facts are not disclosed by the plaintiff/opposite party in the plaint but proceeded to grant an injunction as Section 14 of the West Bengal Land Reforms Act does not recognize the partition to be effected by a non-registered document. It is immaterial at the stage of temporary injunction whether the partition deed dated 13.6.1984 can be legally sustainable or not but the fact remains that the plaintiff/opposite party suppressed the existence of the said deed in the plaint. Furthermore, the Appellate Court overlooked the suppression of the other facts relating to the institution of an earlier suit in which the plaintiff/opposite party was not favoured with an order of temporary injunction. The order rejecting an application for temporary injunction in an earlier suit was a well reasoned order and the disputes involved in the instant suit was also noticed therein. In equitable jurisdiction the approach should be honest and clear. Suppressing the material facts is seriously viewed and disentitles a person to get the order of injunction from the Court exercising such jurisdiction. Though the Higher Court should seldom interfere with the discretionary order even when another view is possible. The Higher Court may interfere with the discretionary order if the same can be tainted as irrational, unreasonable and beyond the legal periphery. Merely because another view is possible the Court should not upset the discretionary order and should refuse the interference. There is no hesitation in my mind that the plaintiff/ petitioners have consciously and deliberately suppressed the material facts and, therefore, the Court of appeal below ought not to have granted the order of injunction.
The impugned order is, therefore, not sustainable and is here by set aside.
The revisional application succeeds. No costs.
(Harish Tandon, J.)