Gujarat High Court
Prakash Ramchandra Brahmbhatt vs Thakor Lalsinh Ramtuji on 15 November, 2021
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4362 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PRAKASH RAMCHANDRA BRAHMBHATT
Versus
THAKOR LALSINH RAMTUJI & 6 other(s)
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Appearance:
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1
MR MB GANDHI(326) for the Petitioner(s) No. 1
MR TEJAS P SATTA(3149) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3,4,5,6,7
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 15/11/2021
CAV JUDGMENT
1. Rule. Mr.Tejas P. Satta, learned advocate waives service of notice of Rule for and on behalf of respondent no.1. Page 1 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021
2. Present petitioner has preferred this petition under Articles 226 and 227 of the Constitution of India and under the provisions of Order XXXVII Rule 4 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC" for short) and requested to quash and set aside the order dated 14.07.2010 passed below Exh.23 in Regular Civil Suit No.197 of 2007 as well as order dated 23.01.2017 passed in Civil Misc. Appeal No.11 of 2015 by the learned 3 rd Additional District Judge, Kalol.
3. Short facts leading to the filing of present petition are as under:
3.1 Regular Civil Suit No.197 of 2007 was filed for declaration and injunction by the original plaintiff before the Trial Court on the basis of the agreement executed on 19.02.1998. The said suit was filed in the year 2007, wherein injunction application Exh.5 was preferred by the plaintiff.
The Trial Court, after hearing the plaintiff, passed an order dated 14.07.2010 restraining the original defendants to sell, mortgage, gift or in any manner transfer the suit property except the plaintiff and not to create any debt or charge upon the same till the disposal of the suit. The present petitioner Page 2 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 was not aware about the proceedings of Regular Civil Suit No.197 of 2007 and interim injunction order dated 14.07.2010. The petitioner, who is the owner of the suit property i.e. Survey/Block No.96, located at Village: Nasmed, admeasuring 1-66-93 sq. mtrs. by registered sale deed executed on 12.04.2010, came into knowledge of the aforesaid proceedings on an entry of the injunction order in Village Form No.7/12, and therefore, he filed an application for joining him as party defendant in Regular Civil Suit No.197 of 2007 which was granted by the Court and the petitioner was joined as defendant no.7. As the original suit and injunction application were filed against defendant nos.1 to 6 and not against the petitioner, after joining him as party defendant, the petitioner applied under Order XXXVII Rule 4 for modification of injunction by raising various grounds viz. (i) limitation, (ii) under Section 34 of the Specific Relief Act as the suit is not maintainable in absence of the prayer for enforcement of rights under the agreement to sell, (iii) agreement relied upon by the plaintiff is dated 19.02.1998 and the suit was filed in the year 2007, (iv) agreement was also challenged on the ground that it was a new tenure land, which cannot be transferred and therefore, the agreement itself is Page 3 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 bad, (v) registered document is a deemed notice, which was not taken care of by any of the authorities including the Court and several other grounds as stated in the said application Exh.23 dated 12.03.2014. The learned Civil Judge, after hearing the parties, was pleased to reject the prayer made in the application Exh.23 holding that the petitioner has not shown any change in the circumstances, and therefore, injunction was properly granted and the Court cannot exercise the power under Order XXXIX Rule 4 of the CPC. While dismissing the application Exh.23, the learned Judge further passed an order of injunction against defendant no.7-present petitioner against whom no injunction was granted by the Trial Court restraining him to transfer, alienate or create any encumbrances whatsoever over the suit property till the final disposal of the suit.
4. Being aggrieved and dissatisfied with the order passed below Exh.23 by the learned Civil Court concerned and passing interim injunction on 14.07.2010, the petitioner preferred Civil Misc. Appeal No.11 of 2015 before the District Court concerned. The learned 3rd Additional District Judge, Kalol rejected the Civil Misc. Appeal No.11 of 2015 vide order dated 23.01.2017 and confirmed the order passed below Page 4 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 Exh.23 by the learned Civil Court concerned. Hence, this petition.
5. Heard learned advocate for the petitioner and learned advocate for the respondents.
6. Learned advocate appearing for the petitioner has submitted that the Court-below has not taken into consideration any of the submissions, which were made by the petitioner. It is further submitted that the present petitioner against whom there was no injunction and if he has moved any application for vacating interim injunction under Order XXXIX Rule 4 of the CPC, there cannot be a counter injunction against him, and therefore, the impugned orders are without jurisdiction. It is further submitted that the land in dispute was a new tenure land and agreement was executed for the new tenure land, and therefore, it was illegal. It is further submitted that the original plaintiff filed the suit only for injunction and declaration and no prayer for specific performance of the contract was made, and therefore, the suit itself is not maintainable in absence of possession with him and subsequent sale deed was executed on 12.04.2010 and the petitioner was in possession since then for which the Trial Page 5 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 Court has not considered this aspect erroneously. It is further submitted that the suit itself is time barred as the agreement was executed in the year 1998 and the suit is filed in the year 2007. That on the ground of limitation, the suit is required to be dismissed. That various grounds were pressed into service at the time of hearing of the application Exh.23, but nothing was considered by the Trial Court. It is further submitted that on the basis of the registered sale deed executed in favour of the present petitioner dated 12.04.2010, prima facie case would be in favour of the present petitioner-defendant no.7 and against the plaintiff, and therefore, in view of the aforesaid change in the circumstances and change in the prima facie case, it is requested by learned advocate for the petitioner to exercise the powers under Order XXXIX Rule 4 of the CPC and to vacate interim injunction granted earlier by the learned Civil Court concerned and confirmed by the First Appellate Court by quashing and setting aside the impugned order dated 14.07.2010 passed below Exh.23 in Regular Civil Suit No.197 of 2007 and order dated 23.01.2017 passed in Civil Misc. Appeal No.11 of 2015 by the learned 3 rd Additional District Judge, Kalol.
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7. Per contra, learned advocate appearing for respondents strongly objected the submissions made by learned advocate for the petitioner and supported the order passed by the Court-below. It is further submitted that interim injunction granted in favour of the original plaintiff cannot be varied or set aside by exercising the powers under Order XXXIX Rule 4 of the CPC. No false statement was made or misleading the statement in relation to the material particulars. That notice was duly served to the original defendants and after hearing the plaintiff and considering the material produced on record, interim injunction was granted below Exh.5. It is further submitted that there is no change in the circumstances for modification of the order, as prayed by the present petitioner, nor it is necessary to do in the interest of justice as order of interim injunction was passed after giving an opportunity of being heard to a party. It is further submitted that there is no illegality or error committed by the Trial Court or the First Appellate Court in dismissing the application Exh.23 and Misc. Civil Appeal No.11 of 2015. That the defendant no.7 is a newly purchaser of the land in dispute, and therefore, he should be restrained to transfer and alienate the suit property, and therefore, the Trial Court has rightly passed the order of Page 7 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 injunction against the present petitioner-defendant no.7. That discretion exercised by the Trial Court, while passing the order below Exh.5 in favour of the original plaintiff, cannot be interfered by this Court by exercising the powers under Articles 226 and 227 of the Constitution of India. Hence, it is requested by learned advocate for respondents to dismiss the present petition.
8. Having considered the submissions made by learned advocates for the respective parties and perused the material on record, it appears that Regular Civil Suit No.197 of 2007 filed by the original plaintiff was for declaration and injunction based on an agreement dated 19.02.1998, wherein the petitioner was not made a party and as such, there is no injunction against the present petitioner. The suit property i.e. Survey/Block No.96, located at Village: Nasmed, admeasuring 1-66-93 sq. mtrs. was purchased by registered sale deed executed on 12.04.2010. When the petitioner came to know about the proceedings i.e. Regular Civil Suit No.197 of 2007, he filed an application for joining him as party defendant, which came to be granted by the Court and he was joined as defendant no.7. It also appears that after joining him as party defendant, he filed an application Exh.23 under Order XXXIX Page 8 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 Rule 4 of the CPC for modification of the order with various grounds. The said application was rejected by the Trial Court, and passed the injunction order against the present petitioner, who was the applicant of the said application. The petitioner, being aggrieved and dissatisfied with the order passed below Exh.23 dated 14.07.2010, preferred Civil Misc. Appeal No.11 of 2015 before the District Court, Kalol which also came to be dismissed vide order dated 23.01.2017. If we refer the contents made in the plaint of Regular Civil Suit No.197 of 2007, it appears that the suit was based on an agreement executed on 19.02.1998 and the suit was filed in the year 2007. The prayer in the suit was made for declaration and injunction. Interim injunction was granted by the Trial Court vide order dated 14.07.2010 restraining the original defendants to sell, mortgage, gift or in any manner transfer the suit property except the plaintiff and not to create any debt or charge upon the same till the disposal of the suit. As per the submissions made by learned advocate for the petitioner, he was not known to the proceedings i.e. Regular Civil Suit No.197 of 2007. When an entry of injunction was effected in Village Form No.7/12, he came across the said suit and filed an application for joining him as party defendant, Page 9 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 which was granted by the Court as he was joined as defendant no.7. As the suit and injunction application were filed against defendant nos.1 to 6 and not against the petitioner, the petitioner preferred an application Exh.23 before the Trial Court under Order XXXIX Rule 4 of the CPC for modification of the injunction on various grounds viz. (i) limitation, (ii) under Section 34 of the Specific Relief Act as the suit is not maintainable in absence of the prayer for enforcement of rights under the agreement to sell, (iii) agreement relied upon by the plaintiff is dated 19.02.1998 and the suit was filed in the year 2007, (iv) agreement was also challenged on the ground that it was a new tenure land, which cannot be transferred and therefore, the agreement itself is bad, (v) registered document is a deemed notice, which was not taken care of by any of the authorities including the Court and several other grounds as stated in the said application. The learned Civil Judge concerned rejected the said application observing that the agreement to sell was of the year 1998 executed before the Notary Public and original owner did not appear inspite of the notice and temporary injunction was already granted on 14.07.2010. From the order passed below Exh.5, it appears that the summons and notice were issued by Page 10 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 the Court. Defendant no.1 accepted the summons on behalf of himself and on behalf of defendant nos.2 and 3. Summons and notice were also duly served to defendant nos.4 to 6 on 09.03.2009, however, defendant nos.4 to 6 were not remained present, and therefore, right to file written statement as well as application for injunction was closed by the Court for all the defendants. Hearing of learned advocate appearing for the plaintiff was permitted. Neither written statement of the plaint nor objection for application for interim injunction were produced on record. The plaintiff's arguments were heard in the suit and interim injunction was granted vide order dated 14.07.2010. An application Exh.23 preferred by the present petitioner after joining him as defendant in the suit was filed under Order XXXIX Rule 4 of the CPC raising various grounds as stated therein. The Trial Court found that prima faice balance of convenience was still in favour of the plaintiff and irreparable loss may be caused to the plaintiff if the property is further transferred. As the plaintiff has not misled or knowingly put any statement before the Court falsely, the defendant was not able to prove any false or misleading statements made by the plaintiff, and therefore, an application Exh.23 was rejected. The defendant was also ordered not to Page 11 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 transfer, alienate or create any encumbrances over the property, till the final disposal of the present suit. The First Appellate Court in Civil Misc. Appeal No.11 of 2015 also confirmed the order and dismissed the appeal vide order dated 23.01.2017. As per Order XXXIX Rule 4 of the CPC, any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order. Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party. Under the circumstances, considering Order XXXIX Rule 4 of the CPC, an injunction, which has been passed after giving an opportunity of being heard to a party, the order cannot be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances. Therefore, if a party against whom the injunction has been granted satisfies on submitting Page 12 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 application that there are change in the circumstances, the Court may in exercise of powers under Order XXXIX Rule 4 of CPC vary or set aside or discharge the injunction granted earlier. This Court (Coram: M.R. Shah, J.), in the case of Padmavati Paradise Vs. Kirtiben Dhaneshkumar Shah reported in 2012 SCC Online Guj. 471 : (2012) 2 GLH 61, has observed in Paragraph-16 as under:
"16. As per the settled proposition of law and even considering the provision of Order 39 Rule 1 while considering the grant of injunction under Order 39 Rule 1 of the Code of Civil Procedure, the Court is required to consider the prima facie case, balance of convenience and irreparable loss. While considering grant of injunction under Order 39 Rule 2 of the Code of Civil Procedure prima facie case plays an important role. If the Court finds that there is no prima facie case in favour of the plaintiffs, the Court may not even grant the injunction. At the relevant time the Court might have granted injunction considering the facts and circumstances prevailing at the relevant time and considering the prima facie case, balance of convenience and/or irreparable loss at the relevant time. However due to change in circumstance and in view of subsequent development, in a given case a prima facie case and/or balance of convenience and/or irreparable loss might change and if it is found that due to subsequent development prima facie case and balance of convenience is likely to be changed, the same can be Page 13 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 said to be change in circumstances warranting exercise of powers under Order 39 Rule 4 of the Code of Civil Procedure and the Court may in exercise of powers under Order 39 Rule 4 of the Code of Civil Procedure may discharge or vary or set aside the injunction granted earlier. Therefore, any change in circumstance subsequent to grant of injunction due to the subsequent development by which prima facie case and/or balance of convenience is likely to be changed, the Court can exercise the powers under Order 39 Rule 4 of the Code of Civil Procedure and can discharge, vary or set aside the injunction granted earlier. However, while exercising such powers the Court is required to take great care and unless a strong case is made out of change in the circumstance, by which the relevant consideration for grant of injunction are likely to be changed, the Court may not exercise such powers, as earlier injunction has been passed after giving an opportunity to both the parties."
9. Admittedly, suit property was purchased by the present petitioner, pursuant to the registered sale deed on 12.04.2010. In Regular Civil Suit No.197 of 2007, interim injunction was granted on 14.07.2010 after purchasing the suit property by the present petitioner. He was joined as party defendant no.7 in the suit. Contention of limitation, non-maintainability of the suit under Section 34 of the Specific Relief Act in absence of the prayer for enforcement of rights under the agreement to Page 14 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 sell, agreement relied upon by the plaintiff was dated 19.02.1998, the suit was filed in the year 2007, agreement was also challenged on the ground that it was a new tenure land, which cannot be transferred, the agreement itself is bad, the registered document was a deemed notice, which was not taken care of by any of the authorities and was not required to be considered by the Trial Court while rejecting the application Exh.23. Originally, interim injunction was granted in absence of the defendant nos.1 to 6 as they have not contested the suit nor an application Exh.5 for interim injunction. Neither written statement was filed by any of the defendants nor any objection against the application for interim injunction. There was no injunction against the present petitioner initially granted by the Court while deciding the application Exh.5. When he moved an application Exh.23, counter injunction was granted by the learned Civil Court concerned without praying any relief of injunction by the original plaintiff or the defendant which can be said to be without jurisdiction. The other grounds raised by the present petitioner in his application may be decided by the Trial Court after recording evidence and hearing of the parties as interim injunction is in force since 14.07.2010. However, interim Page 15 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022 C/SCA/4362/2017 CAV JUDGMENT DATED: 15/11/2021 injunction granted against the present petitioner by the Trial Court concerned dated 21.04.2015 would require to be interfered by this Court as it was without any prayer made by any party in the suit.
10. In view of the above observations, present petition is partly allowed. Rule is made absolute to the aforesaid extent.
11. Interim injunction granted against the present petitioner- defendant no.7 dated 21.04.2015 below Exh.23 in Regular Civil Suit No.197 of 2007 shall be quashed and set aside, which is confirmed in Civil Misc. Appeal No.11 of 2015 by an order dated 23.01.2017 by the learned 3 rd Additional District Judge, Kalol. As the suit is pending between the parties since 2007, it is necessary to direct the learned Trial Court concerned to expedite the hearing of the suit and decide it on merits, preferably within a period of one year from the date of receipt of this order.
(B.N. KARIA, J) rakesh/ Page 16 of 16 Downloaded on : Wed Jan 12 00:49:02 IST 2022