Arun Kapur vs Atul Kapur on 10 March, 2008

[Cites 5, Cited by 0]

Madras High Court

Arun Kapur vs Atul Kapur on 10 March, 2008

This Original Side Appeal is filed by the Appellants/Applicants/Defendants as against the order passed by the learned Single Judge in dismissing the Application No.1519 of 2006 in C.S.No.985 of 2004 dated 08.06.2007.

2.In an Application No.1519 of 2006 in C.S.No.985 of 2004 filed by the appellants/Applicants/Defendants praying for relief of ad interim mandatory injunction directing the respondent/Plaintiff to vacate possession of the premises viz., Pent House No.9-A, situated at "Ved Nivas" No.52, Taylors Road, Kilpauk Chennai-600 010 and restore the possession of the said House to them, the learned single Judge has passed orders on 08.06.2007 inter alia observing that 'But the applicants/Defendants were not able to establish that the respondent/Plaintiff has not been in possession of the Pent house before obtaining the order of interim injunction from the Division Bench nor they were able to establish that the respondent/Plaintiff trespassed into the pent house only after the orders of the Division Bench. The higher Standard of proof that is more than a prima facie case required for granting such order is lacking in the present case etc.' and has come to the resultant conclusion that considering the relationship of parties also, it cannot be said at this juncture that the respondent/Plaintiff is a trespasser and he has to restore possession to the applicants/Defendants and dismissed the said application.

3. Aggrieved against the said order passed by the learned single Judge in Application No.1519 of 2006 dated 08.06.2007 the appellants/Applicants/Defendants have preferred this Original Side Appeal.

4.According to the learned counsel for the appellants/ Applicants/Defendants, the learned Single Judge erred in dismissing the Application No.1519 of 2006, without taking into consideration the available materials in the case and that the learned single Judge has not appreciated the fact that the respondent/Plaintiff took possession of the property only after the order passed in O.S.A.No.90 of 2005 dated 21.04.2005, on the strength of the order and the fact that the respondent/Plaintiff tried to take forceful possession for which a complaint was lodged on 11.10.2004 and that the complaint lodged by the Apartments Owners Association on 12.10.2004 against the respondent/Plaintiff for trespassing were not taken into consideration by the learned single Judge and only after the Division Bench order, the respondent/Plaintiff has produced Tamilnadu Electricity Board Card showing the service in his name and the payments being made by him and this fact was not taken into account by the learned single judge which has resulted miscarriage of justice and therefore prays for allowing the appeal.

5.The respondent/Plaintiff has originally filed the suit C.S.No.985 of 2004 praying for the relief of partition of the immovable property described in the plaint schedule and for separate possession of his 11014/28284 share and for directing the first appellant/first defendant to render true and correct amount of the income from the said property collected by him and for cost of the suit. Subsequently, as per order passed in Application No.1638 of 2005 dated 05.01.2006, the plaint was amended and a relief that the release deed is illegal, inoperative and unenforceable was included.

6.The appellants/Defendants have taken a plea that the respondent/Plaintiff has released all his rights in the property 52, Taylors Road, Kilpauk, Chennai-10 by means of release deed dated 01.04.2002 in favour of the appellants/ Defendants and that the appellants/Defendants are in possession of the three pent houses and that the respondent/ Plaintiff is not entitled to claim the relief of partition and separate possession of building corresponding to his share and that the respondent/Plaintiff has signed as a confirming party in some of the sale deeds that he has no rights in the said property (while registering the undivided share of land) and therefore the suit is to be dismissed with costs.

7.The appellants /Applicants /Defendants filed Application No.1519 of 2006 praying for the relief of ad interim injunction restraining the respondent/Plaintiff, his men agents and servants from entering into the premise viz., pent house 9-A situated at 'Ved Nivas' No.52, Taylors Road, Kilpauk, Chennai-10 and directing him not to disturb the possession by removing the lock.

8.The respondent/Plaintiff has filed a counter inter alia mentioning that he has not received any consideration for the release deed, which fact is not denied and it is not the case of his brother whether that he paid Rs.5 lakhs as described in the release deed and that there is an interpolation in the said document which is not signed by him stating that the value of the property of the release deed is Rs.5 lakhs, whereas the actual value runs to crores of rupees and that the release deed dated 01.04.2002 is brought about by flat and undue influence and is illegal etc.

9.The specific pleas of the respondent/Plaintiff are that he is in possession of pent house 9-A and that the appellants/Defendants are in possession of other two pent houses 9-B and 9-C and that the Application No.1038 of 2004 filed by him for injunction was dismissed and that he has executed all the documents in order to develop the property without any hassle so that all the co-owners can share the property from such development and also each of the co-owners can have one pent house for his or her residence and that he has not received any consideration from such sales even though in some of the sale deeds he is a party and that all the money transactions were made by the first appellant/first defendant and the Chartered Accountant and that the first appellant/first defendant is entitled to a sum of Rs.1,03,00,000/- (as per arrangement) from out of his share of the sale of flats or 5,150 sq. ft. of constructed flat from his share of 44,000 sq.ft. as per his entitlement.

10.It is useful to point out that earlier the Application No.1038 of 2004 filed by the respondent/ Plaintiff praying for the relief of ad interim injunction against the appellants/Defendants was dismissed by this Court on 25.01.2005 holding that the aspect of the release deed being a fabricated document cannot be the issue at this stage and reserving the liberty of the plaintiff to take action as deem it fit to challenge the release deed in accordance with law and that no prima facie case has been made out.

11.In O.S.A.No.90 of 2005 filed by the respondent/ Plaintiff as appellant, this Court passed Judgment on 10.08.2005 remanding the matter back to the learned Single Judge for fresh disposal, with a hope that the matter shall be disposed of at an early date.

12.The Application No.1038 of 2004 filed by the respondent/Plaintiff praying for the relief of interim injunction was dismissed by this Court on 05.01.2006, based on the opinion that without going into the validity of the release deed an order of injunction cannot be passed and that the respondent/Plaintiff has not made out a prima facie case for grant of injunction and that in regard to the genuineness of the release deed in question the same is not decided by the Court and that the balance of convenience is not in favour of the respondent/Plaintiff at this stage.

13.In C.M.P.No.7508 of 2005 in O.S.A.No.90 of 2005 filed by the respondent/Plaintiff (as petitioner/appellant) he has given his address as 'resident of No.9-A, Pent house, 'Ved Nivas' Building, 52, Taylors Road, Kilpauk, Chennai-10'. Further more, the respondent/Plaintiff has stated in the said C.M.P. Affidavit that 'there was no need for such intrusion as he was always in possession and continuing in possession etc.,'. In C.M.P. No.7508 of 2005 in O.S.A.No.90 of 2005 filed by the respondent/Plaintiff, this Court has granted an order of interim injunction on 21.04.2005.

14.The specific case of the appellants/defendants is that the respondent/Plaintiff after obtaining an order of interim injunction in C.M.P.No.7508 of 2005 in O.S.A.No.90 of 2005 dated 21.04.2005, has entered into the possession of the pent house No.9-A and in as much as the respondent/Plaintiff has executed the release deed dated 01.04.2002 his possession is only that of trespasser in the eye of law.

15.It cannot be gain said that it is fundamental that if an individual asserts that he could be dispossessed only through Court of law, he must show that he has right under law to remain in possession till his rights are determined by a Court of law. It is the well established principle that an interim relief which amounts to final relief would not be granted except where situation of the case so warrants, for which the Court shall record reasons. As a matter of fact, interim mandatory injunction can be granted only in exceptional cases. Generally, the issuance of interim mandatory injunction will amount to pre-trial decree.

16.It is apt to point out that the principle is that an act of Court should not injure any of the suitors. Undoubtedly, the discretion to be exercised by a Court of law in granting or refusing mandatory injunction is a judicial discretion and it must be exercised on the principles which are capable of enunciation, in the considered opinion of this Court.

17.Besides the requisites of jurisdiction on injunction generally, there are two necessary ingredients for the jurisdiction of Court in the matter of mandatory injunction,

i)the case in question must be necessary in order to prevent the breach of obligation.

ii)they must be acts which the Court is capable of enforcing in order to restore individuals to the status quo must of course depend on the particular facts of each case, in our considered opinion.

Moreover, the relief of mandatory injunction is granted if at all only to restore status quo and not to establish a new state of things differing from the status that existed on the date when the suit was laid. In fact, while granting the relief of mandatory injunction Court of law is supposed to act with great circumspection exercising its power in exceptional and rare cases.

18.It is pertinent to point out that the respondent/ plaintiff in the plaint in C.S.No.985 of 2004 has stated that 'he is residing at No.74, Halls Road, Kilpauk, Chennai-600 010'.

19.It is not out of place to make a relevant mention that in the orders passed in C.M.P.No.7508 of 2005 O.S.A.No.90 of 2005 dated 21.04.2005 filed by the respondent/plaintiff (as petitioner/appellant), this Court has recorded as follows:

"In the affidavit filed in support of the above application in paragraph No.3, as well as 6, the petitioner/appellant has specifically asserted that he is in possession and pent-house 9-A which is the subject matter in the suit. The above assertion is recorded".

20.In the Electricity Board current consumption charges card the names of the second appellant/second defendant and first appellant/first defendant and the word PENT-HOUSE are found. However, in the current consumption charges card for electricity connection No.149-13-545, the name of the respondent/plaintiff Atul Kapur is seen and the address is shown as 52, Taylors Road, Kilpauk, Chennai. The appellants /defendant's counsel submits that the respondent/plaintiff has given a letter dated 02.04.2002 addressed to M/s.Sukret Constructions No.17, Balaji Nagar, Royapettah, Madras-14 wherein he has specifically mentioned that the respondent/ plaintiff has already released his share in property No.52, Taylors Road, Kilpauk, Chennai in favour of the second appellant and first appellant (defendants) who are the co-owners of the property and that he has no right whatsoever in the property and that the release deed is duly registered and that he is enclosing the Xerox copy of the same.

21.In the letter dated 13.7.2001 of the architect Kharche & Associates on the subject it is mentioned as PENT HOUSE (A) 9th and 10th Floor ONLY FOR INTERNAL BRICK PARTITION WORKS LOCATIONS OF DOORS & WINDOWS CONSTRUCTION DRG, with a copy being marked to the respondent/plaintiff.

22.In the letter dated 15.02.2003 addressed by the architect Kharche and Associates addressed to the first appellant/first defendant on the subject of pent house (A) 9th and 10th Floor it is mentioned that has required by M/s.Atul Kapur (respondent/plaintiff) the changes described or required to be executed as per the enclosed drawing and listed thereto.

23.As a matter of fact, the respondent/ plaintiff in a letter dated 26.11.2004 addressed to the Commissioner of Police, Egmore has inter-alia stated that his brother Arun Kapur (first appellant) has brain-washed and induced his mother to execute and register a deed of settlement of her entire share putting the value as Rs.50,000/- and later got her entire share registered in favour of his brother Arun Kapur (first appellant), behind his back and today (5th October 2004) at about 10 a.m., his brother with his help of men created obstacles for him to work in the pent house, which has been in his possession from the date of the agreement and that he has given a complaint dated 05.10.2004 in respect of the above matter to the Inspector of Police, Kilpauk Police Station and therefore, requested to direct investigation into the matter and take necessary action and also give him police protection of his person and property. The first respondent/ plaintiff in his complaint dated 05.10.2004 addressed to the Inspector of Police, G-3 Kilpauk Police Station has inter alia stated that his brother Arun Kapur (first appellant/ first defendant) has brain-washed and induced his mother to execute and register a deed of settlement of her entire share putting the value as Rs.50,000/- and later got her entire share registered in favour of his brother Arun Kapur (first appellant) being his back and today (5th October 2004) at about 10 a.m., his brother with the help of his men created obstacles for him to work in the pent house, which has been in possession from the date of the agreement. The Station Reception Officer, G-3, Kilpauk Police Station, Chennai-10 has given S.R.O. Receipt No.306/G3 PS/2004 to the first respondent/plaintiff for the complaint made by him. By virtue of settlement deed dated 28.02.2003, the second appellant/second defendant has settled in favour of the first appellant/first defendant her remaining entire share of 5116 sq.ft. Of undivided land in the property at No.52, Taylors Road, Kilpauk, Chennai.

24.It appears that the Godrej key for the property in dispute viz., 9-A Pent house bearing No.68019 is in the possession of respondent/plaintiff. As far as the present case is concerned, when the builder has given possession of the property in dispute is the crucial aspect. Till 19.07.2005 both the first appellant and the respondent/ plaintiff were not there in 9-A Pent house.

25.At this juncture, it is pertinent to point out that in (1990) 2 SCC at page 117 at special page 118 Dorab Cawasji Warden V. Coomi Sorab Warden and Others, the guidelines for the grant of interlocutory mandatory injunction are stated as, "(1)On the facts before the Court there should be a strong probability of the plaintiff getting the relief prayed for by him in the suit. The plaintiff's case should be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2)It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3)Since the relief of an interim injunction is all the same an equitable relief the Court shall also consider whether the comparative mischief or inconvenience which is likely to ensue from withholding the injunction will be greater than that which is likely to arise from granting it, which means that the balance of convenience is in favour of the plaintiff seeking the relief.

The above guidelines are neither exhaustive nor complete or absolute rules".

26.In fact, Or.39 R.2 C.P.C. speaks of only application filed by the plaintiffs against the defendants. However, R.1 of Or.39 gives an indication that an order of injunction can be passed either against the defendant or against the plaintiff. The words occurring in Or.39 R.1 C.P.C. viz., 'by any party to the suit' are sufficient to show that such orders can be passed even on the application filed by the defendants. In fact, the object of Or.39 C.P.C. is to prevent the mischief complained of and to keep the things in status-quo during pendency of the litigation, in the interest of justice. Therefore, it can be said safely that Or.39 R.1 C.P.C. provides scope for issuance of an order of injunction, prohibitory or mandatory on an application filed by the defendant also, in the considered opinion of this Court.

27.In 2003 A I H C at page 611 Gadag Co-operative Cotton Sale Society Ltd., V. Ramanath and others, it is inter alia held that "Moreover, when certain unlawful means were adopted by the defendants to gain possession, it was plainly the responsibility of the Court to invoke its inherent jurisdiction to secure the ends of justice to prevent the abuse of process of Court and accordingly, in the exercise of its inherent jurisdiction to prevent the abuse of process of Court, the Trial Court passed an order to restore the status quo by issue of an ad interim order of mandatory injunction. Such an Order made by the trial Court cannot be faulted on the facts and in the circumstances of the case".

28.In a relief of mandatory injunction the appellants/ defendants will have to prove their case, when a claim is so made. In this connection, it is relevant to state that Rule 32 of the Civil Rules of Practice with reference to proof of facts by affidavit runs as follows:

"Any fact required to be proved upon an interlocutory proceeding shall, unless otherwise provided by these rules, ordered by the court, be proved by affidavit, but the judge may, in any case, direct evidence to be given orally; and thereupon the evidence shall be recorded and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibit shall be prepared and annexed to the judgment".

29.In the instant case on hand, no oral evidence and documentary evidence were adduced on both sides. Merely because the Electricity Consumption Charges were paid by an individual it cannot be said that he is in possession of a property. Moreover, it is stated that the documents filed by the respondent/plaintiff are subsequent to the order dated 21.04.2005 in C.M.P.No.7508 of 2005 in O.S.A.No.90 of 2005. On behalf of the appellants/ defendants a plea is taken that by the admissions of respondent/plaintiff and the affidavit filed all will go to show that he is residing elsewhere and only when he has given a reply in July 2005 he has given his address as Pent house.

30.The appellants/defendants have given their residential address in Application No.1519 of 2006 as pent house 9-E, No.52, Taylors Road, Kilpauk, Chennai-10. But the appellants/defendants address in Original Application No.1038 of 2004 was shown as 'Queens Court, B-2, Second Floor 28/21, Dr.Gurusamy Road, Kilpauk, Chennai-10' by the respondent/plaintiff who figured as applicant therein. In fact, the first appellant/first defendant has filed O.S.No.7529 of 2006 on the file of XII Assistant City Civil Judge as plaintiff seeking relief against the defendant M/s.Ved Nivas Apartment Owners Association, Madras-10 for the relief of perpetual injunction etc.

31.It cannot be lost sight of that the Ved Nivas Apartment Owners Association, Chennai-10 has written a letter to the respondent/plaintiff dated 25.04.2005 with a copy being marked to the Inspector, Kilpauk Police Station, Chennai inter alia stating that as a result of dispute between him and his brother, the Association filed a complaint with a police and the police ordered that the flat should be locked and no one should enter the flat until the matter is settled by the process of law etc.

32.In 2006 (3) CTC at page 185 Kishore Kumar Khaitan and another V. Praveen Kumar Singh, it is held that 'interim mandatory injunction can be granted only in circumstances which are clear and prima facie materials clearly justify a finding that status quo has been altered by one of parties to litigation and interests of justice demands status quo ante be restored'.

33.In AIR 1966 Supreme Court page 605 at page 606 Ambika Prasad Thakur and others V. Ram Ekbal Rai (dead) by his legal representatives and others, it is observed that 'if a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in illus. (d) to S.114. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this Section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognised both in India. This is rule of evidence by which one can presume the continuity of things backwards. The presumption of continuity weakens with the passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances'.

34.In the instant case on hand, it is not known on what date the builder has given possession of the building which has been completed in 2004. One cannot brush aside an important fact that even on 05.10.2004 the first respondent /plaintiff has the key of pent house No.9-A. It is also represented that till 19.07.2005 both the first appellant/ first defendant and the respondent/plaintiff were not there in Pent house No.9-A, the disputed one in question.

35.As far as the present case is concerned, though the appellants/defendants have prayed for the relief of mandatory injunction in Application No.1519 of 2006, on a consideration of entire gamut of the matter and considering the facts and circumstances of the case in an integral fashion and exercising our judicial discretion, we opine that the appellants/applicants/defendants have not established a prima facie case for granting an equitable relief of interim mandatory injunction and that the balance of convenience is also not in favour of the appellants/ defendants and per contra even as early as on 05.10.2004, on the date of police complaint the respondent/plaintiff is in possession of the key in respect of the property 9-A Pent house in question which is a favourable circumstance in his favour and in that view of the matter, we are not inclined to interfere with the orders passed by the learned single Judge and consequently, the OSA fails and the same is hereby dismissed in the interest of justice. The order of the learned Single Judge passed in Application No.1519 of 2006 in C.S.No.985 of 2004 is affirmed for the reasons assigned in this appeal. Before parting, we make it clear that this Court has not entered upon the rights of parties which are in fact the subject matter of the pending suit. Bearing in mind the facts and circumstances of the case, there shall be no order as to costs.

(S.J.M.J.,) (M.V.J.,) 10.03.2008 Index :Yes Internet :Yes vri/sgl S.J.MUKOPHADHAYA,J.

AND M.VENUGOPAL,J.

Sgl JUDGMENT IN O.S.A.NO.235 OF 2007 10.03.2008

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