Karnataka High Court
Mirza Mohammed Yousuf Baig vs Deccan Enterprises on 12 February, 1996
Equivalent citations: ILR1996KAR1618, 1996(2)KARLJ109, 1996 A I H C 3132, (1996) 2 CURCC 538 (1996) 2 KANT LJ 109, (1996) 2 KANT LJ 109
JUDGMENT Chandrashekaraiah, J.
1. This Appeal is against the order dated 8.12.1995 on IA-I in O.S. No. 4256/1994 by the VIII Additional City Civil Judge, Bangalore City, dismissing IA-I for temporary injunction,
2. For the sake of convenience the parties will be referred to in the course of this Judgment as they are arrayed in the Trial Court.
3. This Appeal is by the plaintiff. The plaintiff has filed the suit for a declaration that the order passed in HRC No. 10010/91 on the file of the Court of Small Causes, Bangalore, dated 7.7.1994 is collusive, and fraudulent and the same is not binding on the plaintiff and for a permanent injunction restraining the first defendant from executing the said order. The plaintiff also filed an application IA-I for temporary injunction under Order 39 Rules 1 and 2 CPC restraining the 1st defendant from executing the order passed in HRC No. 10010/91 dated 7.7.1994 or in any way dispossessing the plaintiff from the property mentioned in the schedule to the plaint without due process of law during the pendency of the suit.
4. The first defendant has filed its written statement and opposed grant of temporary injunction by filing objections to IA-I. The Trial Court after hearing both the parties rejected IA-I by its order dated 6.12.1995. Aggrieved by the same, the plaintiff has preferred this Appeal.
5. The brief facts of the case are as follows:-
The case of the plaintiff is that the suit schedule property bearing old No. 21 and new No. 52 situate at M.G. Road, Bangalore, originally belonged to Yousuf Sait Saheb. The said property was leased in favour of late Haji Mirza Khasim Baig who is the father of the plaintiff for consideration of services rendered by him for looking after the remaining portion of the property belonging to Yousuf Sait Saheb. The father of the plaintiff used the said premises during his life time for his residence and also for carrying on business in the remaining portions selling handicraft items. After his death the plaintiff continued to carry on the abovesaid business in the said premises. The further case of the plaintiff is that Yousuf Sait Saheb or after his death, his L.Rs did not collect any rent from the plaintiff or from his father. According to the plaintiff Smt. Shariffa Zani Ashraf purchased the suit schedule property from the original owner under a registered Sale Deed dated 21.5.1983. The said Smt. Shariffa Zani Ashraf executed a Will in respect of the property and thereafter died. The Power of Attorney Holder of the executor Smt. Shariffa Zani Ashraf sold the suit property in favour of the first defendant during the year 1985. The first defendant filed HRC No. 10010/91 against one Sri Raju and obtained an order of eviction on the ground that the premises was required for immediate demolition and reconstruction and in the said proceedings the plaintiff is not a party and the decree obtained by the first defendant is collusive and fraudulent and as the first defendant has already instituted execution proceedings, taking advantage of the decree, is likely to dispossess the plaintiff from the suit schedule property and therefore he sought for a declaration that the said decree is not binding on him and also for a permanent injunction restraining the first defendant from executing the order passed in HRC No. 10010/91.
6. The first defendant in its written statement contended that it had purchased the property under the registered Sale Deed dated 8.8.1985 and after obtaining the Sale Deed an application was made before the City Corporation for change of katha. On the said application the Corporation ordered for change of katha in the name of the first defendant. Thereafter the first defendant applied for licence and also for sanction of plan to the Bangalore City Corporation to construct a commercial complex which was objected to by one Sri Rajabalan. In view of the said objections the first defendant was compelled to file a Writ Petition in WP No. 6018/92 for a Mandamus to the Corporation to sanction the plan and for issue of licence. The said Writ Petition case to be allowed and the Corporation was directed to issue licence and approve the building plan. In pursuance of the said directions the Corporation sanctioned the plan as well as issued the licence. The first defendant after the purchase of the property filed HRC No. 10010/1991 wherein one I. Raju was the tenant in respect of the suit schedule premises. The said petition was allowed directing the L.Rs of the said I. Raju to hand over the vacant possession of the suit property. In order to realise the fruits of the decree the 1st defendant filed Ex. Petition No. 10073/94 and obtained a delivery warrant. Then the plaintiff who had no interest or right in the suit schedule property filed objections on the ground that he has been in possession of the property. On the said objections tile Execution Court provided an opportunity to the plaintiff to lead evidence. But the plaintiff failed to adduce any evidence in support of his application and consequently his objections are overruled. Aggrieved by the said order plaintiff filed R.F.A. No. 693/1994 which came to be dismissed. The further case of the defendant is that the plaintiff has also filed O.S. No. 5687/92 for permanent injunction against this defendant and others and also made an application for temporary injunction which was rejected, holding that the plaintiff is not entitled for an order of temporary injunction as against the defendants. The facts mentioned in O.S.No. 5687/92 are similar and identical with the facts mentioned in this suit. The further case of the 1st defendant is that plaintiff in fact has taken different stands at different stages in different proceedings; and the plaintiff having suppressed material facts in this suit he is not entitled for an order of temporary injunction. On these facts, the Trial Court after considering the material produced before it rejected the application filed by the plaintiff.
7. Challenging the said order this Appeal is filed. The main grievance of the plaintiff in this appeal is that the Trial Court was not right in rejecting his application for temporary injunction as he has been in settled possession of the suit schedule property. It is also the case of the plaintiff that the Trial Court has not considered all the material produced before it before rejecting his application for an order of temporary injunction. Further, it is also contended that though the plaintiff has produced documents to show that he has been in possession even prior to 1985 the Trial Court committed an error in holding that the documents produced by the plaintiff relate to the period subsequent to the filing of HRC No. 10010/1991.
8. In reply to the said contentions the learned Counsel for the 1st respondent contended:
1) that the plaintiff having failed to get an order of temporary injunction in the suit filed earlier on the same facts, is not entitled for an order of temporary injunction in this suit and further the plaintiff having suppressed the material fact in the affidavit filed in support of the present application is not entitled for an order of temporary injunction.
ii) that the plaintiff has not disclosed his clear right to sue as he had taken different stands in different suits and proceedings and on this ground alone the plaintiff shall be non-suited and if so, in such a suit no injunction shall be granted in favour of the plaintiff.
9) In order to appreciate the contention that the plaintiff having failed to get an order of temporary injunction in the earlier suit, is not entitled to seek for an order of temporary injunction in the suit on hand, it is necessary to refer to the pleadings and prayer in the suit on hand and also the pleadings and prayer in the earlier suit O.S. No. 5687/1992. One of the prayers in O.S.5687/92 filed by the plaintiff reads as follows:
"The plaintiff prays for Judgment and decree against the defendant jointly and severally :
a) permanently restraining each one of defendants, their agents, servants, etc., from interfering with the plaintiff's possession and enjoyment of the suit schedule property in any manner whatsoever either by evicting him in execution of the orders that may be obtained by the first defendant against the 3rd defendant or against any other party or in any other manner whatsoever, or otherwise, causing any damage to any part of the building or otherwise including any wall on the western side, or interfering with the plaintiff's possession in any other manner whatsoever in the interest of justice."
One of the prayers in the suit on hand O.S. 4256/94 reads as follows :
"Wherefore, the plaintiff prays that this Hon'ble Court be pleased to pass a judgment and decree in favour of the plaintiff and against the defendants -
a) xxx xxx xxx
b) for a permanent injunction restraining the first defendant from executing the order passed in HRC 10010/91 on the file of Small Causes Judge (SCCH.20) Civil Station, Bangalore dated 7.7.1994 or in any way dispossess the plaintiff without due process of law;"
10. A reading of the abovesaid prayers in both the suits makes it clear that the plaintiff was aware of the fact that the first defendant has already instituted HRC proceedings for eviction. In the said suit he made an application for an order of temporary injunction by filing an application IA-I in the Court of 13th Additional City Civil Judge, Bangalore, for an order of temporary injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit schedule property. The learned City Civil Judge while rejecting the said application for temporary injunction on 5.12.1992 has observed as follows :
"6. Now as could be made out from the plaint averments, the plaintiff claims to have been in possession of the schedule property by virtue of his father having been allowed to stay in the property by its original owner and he also claims to have been in possession by adverse possession. To show that he has been in possession of the schedule property, he has produced the xerox copy of the certificate of registration under the Central Sales Tax Act, receipt for the payment of money issued by the concerned authority issued under the K.S.T. Act, 1957 assessment order for the period from 7.3.1985 to 31.3.1985 assessment for the period from 1.4.1987 to 31.3.1988, assessment for the period from 1.4.1988 to 31.3.1989, appeal order dated 28.11.1990 of the Asst. Commissioner of Commercial Taxes, another assessment order for the period from 1.4.1989 to 31.3.1990 xerox copy of the invoice dated 31.10.1987 and the xerox copies of certain other documents to show that certain goods are exported and those are all of the period from 1985 and onwards. All these documents are produced to show that in all these documents No. 52 of M.G. Road is mentioned as the address of the plaintiff."
Considering the above said documents referred to in the order the learned City Civil Judge, held as follows :
"The plaintiff is not entitled for the relief of temporary injunction and cannot be said at this stage as having a prima facie case and consequently rejected his application for temporary injunction."
In this suit also the plaintiff relied upon the same documents for an order of temporary injunction. The fact that the plaintiff has filed an earlier suit and is still pending and the fact that application for temporary injunction was rejected by the City Civil Judge's Court are not disputed by the plaintiff. On these facts, Sri G.V. Shantharaju, learned Senior Counsel for the defendants contended that the plaintiff is not entitled for an order of temporary injunction in this suit as his prayer for an order of temporary injunction on the same facts has already been rejected in an earlier suit filed by the plaintiff and the same is still pending.
11. Sri M.R. Janardhan, learned Senior Counsel appearing for the plaintiff submitted that it is no doubt true that the learned City Civil Judge in O.S. 5687/92 has rejected his application for temporary injunction but as against the said order MFA has been filed before this Court and that Appeal is also pending. It is also an admitted fact that no order in the nature of temporary injunction has been granted by this Court in the appeal filed by the plaintiff. As no Interim Order is granted in the M.F.A. the order rejecting the application for temporary injunction referred to above is binding on the parties.
12. Sri Shantharaju, learned Senior Counsel in support of his contentions relied upon the Judgment of the Supreme Court in the case of Y.B. PAUL AND ORS. v. Y.L. PATIL, . In this case, the Supreme Court has held as follows :
"Principles of res judicata can be invoked not only in separate subsequent proceedings, they can get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceedings."
The learned Counsel further relied upon the Decision in the case of SHRIRAM NARAYAN DHOND OF BICHOLIM GOA AND ANR. v. DEMU SURYA GAUDE, 1992 (1) Civil Law Journal 169, wherein it is held as follows :
"3. There is considerable substance in the submission of Shri Kakodkar. Admittedly the earlier suit numbered 35/86 being still pending and in which the respondent was found out of possession in respect of the suit property it was not permissible for the respondent to file a fresh suit on the same subject-matter during the pendency of the earlier suit. Further if the respondent had not been able to establish his possession over the suit property in the earlier first suit and on the ground the learned Civil Judge had declined to grant him any interim relief it was not open for the respondent, who did not even challenge the order dated 6.6.1986 rejecting his prayer for injunction, to file in the same Court another suit on the same property and move the trial Judge with a fresh application for a similar relief which was denied to him in the earlier suit. And if such suit was not available no temporary injunction could have been entertained by the learned trial Judge on the same matter. The learned District Judge also clearly overlooked this simple aspect of the matter involving a jurisdiction error committed by the learned trial judge when he refused to interfere in appeal with this wrong exercise of jurisdiction assumed by the trial Court with material irregularity."
In view of the above Decisions, I am of the view that, on principle when once an application has been rejected refusing to grant the relief, in subsequent suit on the same facts in respect of the same subject matter between the same parties, no relief on similar application shall be granted, to avoid conflicting decisions. Therefore, I am of the view that the trial Court is justified in rejecting the application for temporary injunction as otherwise it would amount to abuse of the process of Court.
13. The defendant contended that the plaintiff has supressed the material facts in the affidavit filed along with the application for temporary injunction is not entitled for an order of temporary injunction. In support of this contention, it is submitted that the plaintiff in the affidavit filed in support of his application has not disclosed that on similar facts an application was filed by him and the same was rejected in O.S. No. 5687/92 and therefore he having not approached the Court of Equity with clean hands, he is not entitled for an order of temporary injunction. In support of this contention he brought to my notice that the application IA-I filed by the plaintiff to show that he has not disclosed the abovesaid facts. The said fact has also not been disputed by the learned Counsel for the plaintiff.
14. Now the Question for Consideration is :
Whether the non-disclosure of the fact that the dismissal of the application for temporary injunction in the earlier suit is a suppression of material fact in order to disentitle plaintiff for the relief of temporary injunction?
After going through the proceedings, I am convinced that the documents relied upon for obtaining temporary injunction are the same as that of the documents relied upon by the plaintiff in the earlier suit. In the earlier suit the first defendant is also impleaded as defendant-1. The subject matter of the suit and the facts relied upon are same in both the suits. Under these circumstances, it is necessary for the plaintiff to disclose all the material facts which are within his knowledge in order to invoke the jurisdiction of the Court of Equity. It is well recognised principle that for grant of equity relief the plaintiff must come to the Court with clean hands and he must disclose all facts for and against him in order to get the discretionary relief of injunction. In the instant case the plaintiff having suppressed material fact of dismissal of the application for temporary injunction filed in O.S.No. 5687/92, the plaintiff is not entitled for an order of temporary injunction in this suit.
15. The Counsel for the defendant contended that the plaintiff in the plaint has not disclosed his clear right to sue in order to establish a prima facie case for an order of temporary injunction.
16. To consider this point, it is relevant to refer to the stand taken by the plaintiff in different proceedings. In O.S. 4256/94 it is stated by the plaintiff in one breath that the premises in question was leased in favour of late Haji Khasim Baig for the consideration of the services rendered by him for looking after the remaining portion of the property which belong to Yousuf Sait Saheb and in another breath he says that Haji Mirza Khasim Baig was in permissive occupation of the portion of the schedule property. In O.S. 5687/92 the plaintiff states that his father Haji Mizra Khasim Baig was permitted by Yousuf Sait Saheb during his life time to reside in a portion of property No. 2, M.G. Road, Bangalore, without payment of any charges for the occupancy. Again in another para it is stated by the plaintiff that the plaintiff continued to be in possession of the suit schedule property undisturbed and unclaimed by either Mrs. Shariffa Zani Ashraf or his vendors till the year 1985 from the time of occupation by the plaintiff's father and subsequently by him and therefore he has perfected his title by adverse possession. In the application filed by the plaintiff as obstructor, in Ex. No. 10073/94, under Order 21, Rules 97, 98, 99, 100 and 103 of CPC he has not disclosed his right or interest in the suit schedule property. The aforesaid pleadings show that the plaintiff has not disclosed a clear right to sue consistently in all the proceedings. In one suit he pleads that he is a tenant, in another suit he pleads that he is a licensee because he is in permissive possession. Again in the same suit he putforward the plea of adverse possession. In the Execution Proceedings he does not disclose the nature of his right in respect of the suit schedule property. It is also relevant to mention the conduct of the plaintiff in instituting the proceedings after proceedings in order to prevent the first defendant from enjoying the fruits of the decree passed in HRC No. 10010/91. In the Execution Proceedings he filed objections as referred to above. On that objection, the Executing Court passed an order directing the plaintiff to lead his evidence on his objections to establish his right and nature of possession. But the plaintiff did not choose to lead evidence in order to establish his right over the suit, schedule property, in spite of several opportunities given to him. Ultimately, the Executing Court by its order dated 24.11.1994 passed an order which reads as follows :
"When case taken up at 12.12 noon, obstructor and advocate are absent. No evidence lead for obstructor. Hence, it is clear that obstructor has not established his right for possession. Objections are overruled. Issue delivery warrant returnable by 14.12.94."
Aggrieved by the said order the plaintiff preferred R.F.A.No. 693/94 before this Court. The said Appeal came to be dismissed by order dated 12.9.1995. In the meanwhile the plaintiff obtained an order of temporary injunction in O.S.No. 4256/1994 which came to be vacated and the same is impugned in this Appeal. The conduct of the plaintiff in not disclosing his clear right and also instituting proceedings after proceedings in order to prevent the first defendant from enjoying the fruits of the decree which he obtained show that he has not made out a prima facie case for an order of temporary injunction.
16. Though I have held that the plaintiff is not entitled for an order of temporary injunction, it is also necessary for me to consider the contentions raised by the learned Counsel for the plaintiff that he has been in settled possession of the property and the said possession is to be protected by granting an order of temporary injunction. According to the plaintiff the documents produced before the Trial Court clearly show that he has been in possession from a very long time and therefore the said possession is a settled possession. In support of this contention, Sri M.R. Janardhan, learned Senior Counsel relied upon the Decisions , Krishna Ram Mahale by Lrs. v. Shobha Venkat Rao, wherein it is held as follows :
"It is a well settled law in this Country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law."
17. The learned Counsel relied upon the Decision reported in A.I.R. 1968 S.C. 702, Munshi Ram v. Delhi Administration, wherein the Supreme Court has observed thus:
"It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true, owner, though not in actual possession at the time to remove the obstruction even by using necessary force."
18. In both the cases the person in possession continued to be in possession of the property even after the expiry of the licence or the lease and their possession shall not be disturbed except by due process of law. The law laid down in those Decisions is not applicable to the facts of this case. In order to get an order of temporary injunction he must show his legal right and there is a threat or invasion of his legal right. The plaintiff is not sure of the nature of his right in respect of the suit schedule property in view of his different stands taken in different proceedings. The possession of the plaintiff appears to be as observed by Erie, J, in BURLING v. READ, 11 QB 904:
"Parties might imagine that they acquired some right by merely intruding upon land in the night, running up a hut and occupying it before morning."
In order to claim that he is in settled possession of the property he must show in what capacity he entered into the possession of the property and what is the nature of his right to be in possession of the property. Though the plaintiff claims that he was in possession of the property by virtue of the lease granted in favour of his father by the then landlord he had not produced any document such as lease deed or rent receipts. He has further stated in the plaint that in lieu of his services rendered by looking after the other property belonging to the then landlord he was permitted to be in possession of the suit schedule property. He has not stated which of the property belonged to the landlord he was looking after. Further the case of the plaintiff is that he was not paying any rent after the sale of the suit schedule property in favour of Mrs. Shareefa Zani Ashraf. The plaintiff has not filed the affidavits of the neighbouring tenants who were also the tenants similar to him in respect of the other portions of the property to show that he was in possession of the property either as a tenant or as a licencee. The plaintiff has not filed the affidavit of the landlord or their legal representatives to the effect that he was permitted to use the suit schedule property. The aforesaid facts do not disclose what is the nature of right of the plaintiff over the suit schedule property. So under these circumstances it is not possible to believe that the plaintiff is in the settled possession of the suit schedule property.
19. The Supreme Court in the case of PREMJI RATANSEY SHAH AND ORS. v. UNION OF INDIA AND ORS , , has held thus :
"Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who had no interest in the property. Even assuming that they had any possession, their possession was wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner."
The facts in this case also disclose that the plaintiff has not shown his interest or right in respect of the suit schedule property as he is not sure of the nature of his right. Mere possession of the plaintiff cannot be in any manner said to be a lawful possession in order to grant equitable relief of injunction in favour of the plaintiff.
20. The learned Counsel for the plaintiff submitted that the Trial Court has committed a material irregularity in observing that all the documents produced by the plaintiff relate to the period subsequent to the filing of the petition HRC 10010/91. It is no doubt true that the observation appears to be not correct as the plaintiff has produced some documents to show that he is carrying on the business in the suit schedule property earlier to filing of HRC 10010/91. But this itself is not sufficient to grant an order of temporary injunction in favour of the plaintiff as I have already come to the conclusion as stated supra that the plaintiff has not made out a prima facie case for an equitable relief of temporary injunction.
21. Granting or refusing to grant an order of temporary injunction is purely within the discretion of the trial Court. The trial Court having considered all the materials placed before it, exercised its discretion in refusing to grant it an order of temporary injunction in favour of the plaintiff. The jurisdiction of the Appellate Court in interfering with the order of the trial Court is very limited as held by this Court and also by the Supreme Court. In the instant case as the order of the Trial Court is neither perverse nor capricious it does not call for intereference by this Court.
22. For the reasons stated above, I pass the following order:
The Appeal is dismissed.
Parties to bear their own costs.