Himachal Pradesh High Court
Sh. Vijay Kumar Negi vs Smt. Swaran Bala And Another on 16 March, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CMPMO No. 359 of 2015.
Judgment reserved on: 10.3.2016 Date of decision: March 16, 2016 ___________________________________________________________ of Sh. Vijay Kumar Negi ...Petitioner Versus Smt. Swaran Bala and another rt ...Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No For the Petitioner : Mr. Dibender Ghosh, Advocate.
For the Respondents : Mr. B.C. Sharma, Advocate, for respondent No.1.
Mr. Arvind Sharma, Advocate, for respondent No.2.
Tarlok Singh Chauhan, Judge This petition under Article 227 of the Constitution of India takes exception to the order passed by learned District Judge, Shimla on 28.7.2015 whereby he dismissed the appeal filed by the petitioner and affirmed the order passed by learned trial Court on 24.6.2015 dismissing the application preferred by the plaintiff under Order 39 Rule 1 and 2 CPC.
The facts in brief may be noticed.
2. The petitioner filed a suit for permanent prohibitory and mandatory injunction against the respondents on the ground that ____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 15/04/2017 19:55:13 :::HCHP 2 he was the real son of Sh. Bhag Chand alias Baba Bhagwan Dass .
Tyagi (for short 'Baba'), who after a long ailment died on 18.6.2014 at Hanuman Takri Bhima Kali Mandir near Totu, Shimla. The father of the petitioner was stated to be a Pujari and was residing in the Mandir for the last 25 years. It is his further case that his father had deposited a of sum of ` 5,00,000/- in FDR with respondent No.2 and the same was to mature on 28.8.2014. In the said FDR the father of the petitioner had rt nominated respondent No.1 as nominee. The plaintiff apprehended that respondent No.2 would release the entire amount of FDR in favour of respondent No.1 and he, therefore, filed the aforesaid suit for permanent prohibitory injunction restraining the respondent No.1 from receiving the amount in question. He further prayed for decree of mandatory injunction against respondent No.2 from releasing the amount in favour of respondent No.1.
3. Respondent No.1 filed written statement wherein preliminary objections regarding maintainability, locus-standi, valuation, jurisdiction and cause of action were taken. On merits, respondent No.1 denied the very relationship of the petitioner with the deceased and claimed that it was on account of the services rendered by her continuously for the last 10 years to the deceased, that he had nominated her to receive the amount of FDR in the event of his death.
4. The respondent No.2 filed separate written statement wherein preliminary objection regarding the maintainability of the suit was taken. Though, the factum of FDR was not denied, however, rest of the contents of the plaint were denied and it was maintained that ::: Downloaded on - 15/04/2017 19:55:13 :::HCHP 3 respondent No.1 had been made nominee in the FDR and therefore .
the suit be dismissed.
5. Alongwith the suit, the petitioner also preferred an application under Order 39 Rule 1 and 2 CPC praying therein for restraining respondent No.1 from receiving the amount of FDR. Upon of consideration, learned trial Court dismissed the application and the appeal preferred against the said order also met the same fate. It is rt against these two orders that the instant petition has been filed.
6. It is vehemently argued by Mr. Dibender Ghosh, Advocate, that the learned Courts below have erred in not taking into consideration the fact that respondent No. 1 is only nominee in the FDR and was, therefore, required to hand over the same to the legitimate claimant i.e. the petitioner, who is the son of late Baba. It is further contended that the learned Courts below erred in concluding that the petitioner was not the son of the deceased Baba, though there was ample amount of evidence available on record to prima-facie establish that the petitioner was none other than the son of deceased Baba.
7. On the other hand, Mr. B.C. Sharma, learned counsel for respondent No.1 has vehemently argued that the present petition is nothing but an abuse of process of the Court whereby the petitioner, who is not even the son of the deceased Baba is trying to grab the amount which is due and legally payable to his client more especially when the nomination in her favour has not been disputed by any of the parties.
::: Downloaded on - 15/04/2017 19:55:13 :::HCHP 4I have heard learned counsel for the parties and have .
gone through the records of the case carefully and meticulously.
8. The petitioner in support of his contention that he is the son of late Baba has appended with this petition the copy of the Parivar Register, school leaving certificate and certain revenue records. Strong of exception to these documents has been taken by Mr. B.C. Sharma, learned counsel for respondent No.1 on the ground that these rt documents ought to have found placed either in the list of reliance or should have been appended with the suit itself and, therefore, the petitioner should not be permitted to make reference to these documents.
9. Having given my considerable thought to the aforesaid submission, I feel that a reference to these documents at this stage would be necessary for the just and complete decision of this petition.
Even otherwise, in case the reference is not made to these documents at this stage nothing in law would prevent the petitioner from placing these documents before the trial Court and the effect thereof shall be seen by the Court below at the time of passing of the final decree.
10. The copy of the Parivar Register appended as Annexure P-8 with this petition makes an interesting reading. The entry against house No. 46 reflects the name of one Bhag Chand alias Baba Bhagwan Dass Tyagi son of Bana Sukh and his date of birth is shown as 07.03.1962. Whereas, the entry against house No. 46/1 shows one Vijay Kumar (allegedly the petitioner) to be the son of the aforesaid Bhag Chand alias Baba Bhagwan Dass Tyagi and his date of birth is shown as 27.10.1974. It is evident from both these entries that if the ::: Downloaded on - 15/04/2017 19:55:13 :::HCHP 5 same are taken to be correct then the petitioner was born when Bhag .
Chand alias Baba Bhagwan Dass Tyagi was hardly 12 years, 7 months and 20 days and obviously would have been conceived when his father was not even 12 years old. This is an impossibility. Judicial notice can otherwise be taken of the fact that in the hilly and cold climatic regions, of puberty is attained at a later age when compared to the counter-parts living in the plains or region having warm temperature.
rt Thus, the plaintiff by placing these documents has virtually demolished his own case.
11. I may now refer to the school leaving certificate, Annexure P-9, wherein the date of birth of the petitioner is reflected as 29.10.1974 and the same obviously does not tally with the copy of Parivar Register, Annexure P-8, wherein his date of birth is recorded as 27.10.1974.
12. Now, in case one would advert to the revenue records, more particularly, jamabandi for the year 2003-2004 (Annexure P-12), the note appended therewith clearly reveals that Bhag Chand whom the petitioner claims to be his late father had died whereafter the land standing to his name had been mutated in favour of the petitioner. This noting bears the date 2.6.2005. Therefore, if the father of the petitioner Sh. Bhag Chand alias Baba Bhagwan Dass Tyagi died prior to 2.6.2005, then on what basis is the petitioner claiming himself to be his son especially when his pleaded case is that the Baba died on 18.6.2014.
13. The factors required to be borne in mind while granting or refusing injunction have been succinctly dealt with by the Hon'ble ::: Downloaded on - 15/04/2017 19:55:13 :::HCHP 6 Supreme Court in M.Gurudas and others versus Rasaranjan and .
others (2006) 8 SCC 367 in the following manner:-
"18.While considering an application for injunction, it is well- settled, the courts would pass an order thereupon having regard to:
(i) Prima facie case
of
(ii) Balance of convenience
(iii) Irreparable injury.
19. A finding on 'prima facie case' would be a finding of fact. However, rt while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. Rajeev Dhawan that the decision of House of Lords in American Cyanamid v. Ethicon Ltd.
(1975) 1 All ER 504 would have no application in a case of this nature as was opined by this Court in Colgate Palmolive (India) Ltd. v.
Hindustan Lever Ltd.(1999) 7 SCC 1 and S.M. Dyechem Ltd. v.
Cadbury (India) Ltd. (2000) 5 SCC 573, but we are not persuaded to delve thereinto.
20. We may only notice that the decisions of this Court in Colgate Palmolive (supra) and S.M. Dyechem Ltd (supra) relate to intellectual property rights. The question, however, has been taken into consideration by a Bench of this Court in Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd. (2006) 1 SCC 540 stating:
(SCC pp. 552-53, paras 36-40) "36.The Respondent, therefore, has raised triable issues.
What would constitute triable issues has succinctly been dealt with by the House of Lords in its well-known decision in American Cyanamid Co. v. Ethicon Ltd.(1975)1 All ER 504 holding: ( All ER p.510 c-d) 'Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expression as 'a probability', 'a prima facie case', or 'a strong prima facie case' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court ::: Downloaded on - 15/04/2017 19:55:13 :::HCHP 7 no doubt must be satisfied that the claim is not .
frivolous or vexatious; in other words, that there is a serious question to be tried.' It was further observed (All ER pp.511 b-c & 511j) 'Where other factors appear to be evenly balanced it is of a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he rt has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.
* * * The factors which he took into consideration, and in my view properly, were that Ethicon's sutures XLG were not yet on the market; so that had no business which would be brought to a stop by the injunction; no factories would be closed and no workpeople would be thrown out of work. They held a dominant position in the United Kingdom market for absorbable surgical sutures and adopted an aggressive sales policy.'
37. We are, however, not oblivious of the subsequent development of law both in England as well as in this jurisdiction. The Chancery Division in Series 5 Software v. Clarke (1996) 1 All ER 853] opined: (All ER p.864 c-e) 'In many cases before American Cyanamid the prospect of success was one of the important factors taken into account in assessing the balance of convenience. The courts would be less willing to subject the plaintiff to the risk of irrecoverable loss which would befall him if an interlocutory injunction was refused in those cases where it thought he was likely to ::: Downloaded on - 15/04/2017 19:55:13 :::HCHP 8 win at the trial than in those cases where it thought he .
was likely to lose. The assessment of the prospects of success therefore was an important factor in deciding whether the court should exercise its discretion to grant interlocutory relief. It is this consideration which American Cyanamid is said to have prohibited in all but the most exceptional case. So it is necessary to of consider with some care what was said in the House of Lords on this issue.' rt 38. In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd.
(1999) 7 SCC 1, this Court observed that Laddie, J. in Series 5 Software (supra) had been able to resolve the issue without any departure from the true perspective of the judgment in American Cyanamid. In that case, however, this Court was considering a matter under Monopolies and Restrictive Trade Practices Act, 1969.
39.In S.M. Dyechem Ltd. v. Cadbury (India) Ltd. (2000) 5 SCC 573, Jagannadha Rao, J. in a case arising under Trade and Merchandise Marks Act, 1958 reiterated the same principle stating that even the comparative strength and weaknesses of the parties may be a subject matter of consideration for the purpose of grant of injunction in trade mark matters stating :
(SCC p.591, para 21) '21.....Therefore, in trademark matters, it is now necessary to go into the question of "comparable strength" of the cases of either party, apart from balance of convenience. Point 4 is decided accordingly.'
40.The said decisions were noticed yet again in a case involving infringement of trade mark in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.(2001) 5 SCC 73."
21. While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question ::: Downloaded on - 15/04/2017 19:55:13 :::HCHP 9 sought to be tried must be a serious question and not only on a mere .
triable issue.(See Dorab Cawasji Warden v. Coomi Sorab Warden and Others , (1990) 2 SCC 117, Dalpat Kumar v. Prahlad Singh(1992) 1 SCC 719, United Commercial Bank v. Bank of India (1981) 2 SCC 766, Gujarat Bottling Co. Ltd. v. Coca Cola Co. (1995) 5 SCC 545, Bina Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev (1999) 5 SCC 222 and Transmission Corpn. of A.P. Ltd (supra)."
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14. The petitioner was firstly required to prove a prima-facie case in his favour. Having failed to do so, it cannot thereafter be said rt that balance of convenience lies in his favour or that he will suffer irreparable loss and injury in the event of the injunction being refused to him.
15. Thus, no fault can be found with the orders passed by the learned Courts below and the same therefore call for no interference.
However, the subject matter of the suit cannot be permitted to be destroyed in its entirety rendering the suit itself to be otiose. Therefore, in order to safeguard and protect the interest of the litigating parties, it is directed that the Fixed Deposit Receipt shall be kept by respondent No.2 in a safe custody and shall not be released to any of the parties till the decision of the suit. However, the interest accruing thereon shall on monthly basis be remitted to respondent No.1 with effect from 1st April, 2016 after renewing the FDR till 31.3.2016, subject to the respondent No.1 furnishing personal security before the learned trial Court undertaking therein that in the event of the suit being allowed, she would return the amount received by her alongwith 6% interest.
16. However, before parting, it may be observed that the observations, reasoning and the conclusion drawn in this petition are solely for the purpose of determination of this petition and the trial ::: Downloaded on - 15/04/2017 19:55:13 :::HCHP 10 Court shall proceed to decide the matter without being influenced by .
whatsoever observed hereinabove.
17. In view of the above, the petition is disposed of in the aforesaid terms, so also the pending applications, leaving the parties to bear their own costs.
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March 16, 2016 rt (Tarlok Singh Chauhan)
(GR) Judge
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