Dilip Kumar Utmani vs Smt. Kanta Devi <BR> Smt. Kanta Devi Vs Dilip Kumar Utmani

Bela M. Trivedi, J.—Both the appeals arise out of the same order dated 19.9.13 passed by the Addl. District & Sessions Judge No. 5, Jaipur City, Jaipur (hereinafter referred to as ''the trial court'') in Civil Misc. Application No. 41/13, and therefore, they were heard together and are being decided by this common order. The appellant in SBCMA No. 3113/13, who is respondent in SBCMA No. 3403/13 (hereinafter referred to as ''the appellant-plaintiff'') has filed the suit against the respondent-defendant, who is the appellant in the other appeal (hereinafter referred to as ''the respondent-defendant'') seeking mandatory injunction for direction against the respondent-defendant to open the lock put on the main gate at the suit premises being Plot No. D-189-B, Jagdish Market, Bani Park, Jaipur and seeking permanent injunction inter-alia for restraining the respondent-defendant from causing any obstruction to the appellant-plaintiff in bringing the goods of his business or causing any obstruction to his employees in running the machinery in the part of the basement and the ground floor of the suit premises, and also from causing any obstruction to the plaintiff and his family members in using the part of the first and second floor, marked with yellow colour in the site plan annexed to the plaint, for residential purpose. The appellant-plaintiff had also filed the application seeking temporary injunction of the same nature as sought in the suit.

The trial court had appointed the Commissioner to carry out the local inspection of the suit property vide the order dated 24.8.13, pursuant to which the Commissioner had visited the site on 25.8.13 and had submitted the report on 26.8.13. On 27.8.13 the respondent defendant sought time to file reply to the T.I. application, however, while granting the time, the court directed the respondent-defendant to open the lock put on the main gate of the disputed premises, and further directed the parties to put a lock with two keys so that each party would have their own key.

As per the case of the respondent-defendant, under the garb of said order dated 27.8.13, the appellant-plaintiff and his family members entered the disputed premises and threatened the respondent-defendant to dispossess her and, therefore, the respondent-defendant had to file counter application seeking temporary injunction against the appellant-plaintiff for restraining him from dispossessing her from the disputed premises, and from using the disputed premises for business purposes and for seeking the relief for restoring the position as existed on 21.8.13.

The trial court vide the impugned order dated 19.9.13 partly allowed the application of the appellant inter-alia permitting him to use the part of the premises which was in his possession for business purposes, and allowed the counter T.I. application of the respondent-defendant by restraining the appellant from dispossessing the respondent-defendant from the suit premises and further restraining him from using the suit premises for residential purposes or causing any destruction in the suit premises. The trial court also directed both the parties to maintain status-quo vide the impugned order. Being aggrieved by the said order the appellant and the respondent have preferred their respective appeals.

During the pendency of these appeals, the learned senior counsel Mr. Sudhanshu Kasliwal for the appellant-plaintiff had made a statement on 21.11.13 that the appellant-plaintiff had already filed an application before the trial court seeking permission to withdraw the suit, which was fixed for order on the next day. Hence the hearing of appeals were adjourned on 25.11.13. However, it appears that the respondent-defendant having raised the objection against the withdrawal of the suit, the said application filed by the appellant for withdrawal of the suit was withdrawn. Hence, these appeals were heard on merits.

The factual matrix of the case is that the appellant-plaintiff has filed the suit seeking mandatory and permanent injunction as stated hereinabove, alleging inter-alia that the appellant-plaintiff was taken in adoption by Shri Jhamandas and Smt. Heera Devi, first wife of Shri Jhamandas. The appellant-plaintiff was brought up and got married by his adoptive father and mother, and during their life time they had also executed an adoption deed on 7.12.93, which was duly registered on the same day. It has also been alleged in the plaint that late Shri Jhamandas was carrying on the business in the name and style of Laxmi Kirana Store and had handed over the said business to the appellant-plaintiff during his life time. According to the appellant-plaintiff out of the income received from the said business, the said Jhamandas had purchased number of properties including the disputed property. It is further case of the appellant-plaintiff that the said Shri Jhamandas, after the death of his first wife Smt. Heera Devi, had married the respondent-defendant, however the respondent-defendant used to quarrel with the plaintiff for one reason or the other. According to the appellant-plaintiff, he used to reside alongwith his adoptive father and the respondent in the two rooms situated at first floor and at the second floor of the disputed property shown with yellow colour in the site plan annexed to the plaint and used to keep raw material stock related to the business of Laxmi Kirana Store, in the room situated at the first floor and at the basement, as shown with diagonal lines with yellow colour in the said site plan. As per his further case, since the relationship between the appellant and the respondent had strained, the said Jhamandas had got one receipt executed from the appellant-plaintiff, just to please and show the respondent-defendant that the appellant had vacated the suit property, however he had never vacated the suit premises and had continued to use the same both for his residential as well as business purposes. As per the further case of the appellant-plaintiff on 28.7.13 at about 9.00 a.m. when he went to the disputed premises, he had found one lock put on the main gate of the said premises, and he was restrained by the respondent-defendant from entering into the suit premises. The appellant, therefore, had filed the FIR at the Police Station, Sindhi Camp, Jaipur and had also filed the suit as well as the T.I. Application.

The said T.I. application was resisted by the respondent-defendant by filing the reply denying the allegations and averments made in the application and further contending inter-alia that the appellant plaintiff was not adopted by late Shri Jhamandas and Smt. Heera Devi as per the rites and customs of the Sindhi Community, and that whatever late Shri Jhamandas had done for the appellant, was done in the capacity of his being uncle. It was further contended that Jhamandas had made the appellant only a partner in his business, and that the appellant had not stayed with his family nor had carried on the business in any specific part of the disputed premises as shown in the site plan. According to the respondent-defendant, the appellant alongwith his family members had already left the suit premises on 5.7.12 and had started staying at house No. B-2 Rukmani Garden, Shiv Mark, Bani Park, Jaipur, for which the appellant, his wife, daughters and sons had also executed the writing on the stamp paper of Rs. 10/- on 5.7.12. It was stated therein inter-alia that they had voluntarily vacated the disputed premises and handed over the possession to late Shri Jhamandas and that he had no right in the said premises. The respondent-defendant had further contended that the respondent had become the exclusive owner of the disputed premises after the death of her husband Shri Jhamandas by virtue of the registered Will dated 24.9.97 executed by him during his life time, and therefore the appellant-plaintiff had no right to use the said premises. The respondent-defendant had also filed the counter T.I. application alleging inter-alia that the appellant under the guise of the ad-interim order passed by the trial court had entered into the disputed premises and was threatening the respondent-defendant to dispossess her.

The appellant-plaintiff had filed the reply to the counter T.I. application filed by the respondent-defendant denying the allegations made against him by the respondent-defendant and further contending inter-alia that the appellant with his family members had shifted in the House No. B-2 at Rukmani Garden, at the request made by Shri Jhamandas as the respondent-defendant used to quarrel with the appellant every day. It was also further contended that the said Jhamandas had executed another Will on 11.10.97 in favour of the appellant, cancelling the earlier Will dated 24.9.97 executed in favour of the defendant-respondent, and therefore the appellant had equal share in the disputed property as that of the respondent-defendant.

Considering the said pleadings and the documents placed on the record, and the submissions made by the learned counsels for the parties, the trial court had passed the impugned order, which is under challenge before this court.

The learned senior counsel Mr. Kasliwal for the appellant-plaintiff while supporting the impugned order passed by the trial court to the extent it permitted the plaintiff to use part of the disputed premises for his business purposes, vehemently submitted that the trial court had committed an error in mis-appreciating the documents on the record and in holding that the part of the premises was not being used by the appellant for his residential purposes. Referring to the various documents, more particularly the pleadings of the parties and the receipt dated 4.5.12 allegedly executed by late Shri Jhamandas, Mr. Kasliwal submitted that Shri Jhamandas had already cancelled the earlier Will executed in favour of the respondent-defendant and executed the subsequent Will in favour of the appellant, according to which the ownership of the disputed premises was given to the appellant and the respondent was given only the right of residence during her life time. Relying upon the Commissioner''s report, Mr. Kasliwal submitted that even as per the said report, the plaintiff-appellant had the keys of the part of the premises. According to him though the receipt dated 5.7.12 was executed by the appellant and his family members, the said writing was never implemented and the same was got executed by Shri Jhamandas only to please the respondent. Mr. Kasliwal has placed reliance on the various judgments of the Apex Court and of the other High Courts to submit that the owner of the property cannot be restrained from enjoying the property and to submit that the appellant could not be restrained by an injunction in the counter T.I. application filed by the respondent-defendant. Mr. Kasliwal has relied upon the decisions of the Apex Court in case of Mehul Mahendra Thakkar @ Karia Vs. Meena Mehul Thakkar @ Karia, in the case of Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others, and in the case of State of Maharashtra and Another Vs. B.E. Billimoria and Others, . He has relied upon the decision of Apex Court in case of Bharat Aluminium Company and Others Vs. Kaiser Aluminium Technical Service, Inc. and Others etc. etc., to submit that interim relief could be granted if it is in the aid of and ancillary to the main relief, and in the instant case, the respondent having not filed any substantive counter claim at the time when the counter T.I. application was filed, she was not entitled to any temporary injunction in the suit filed by the appellant. Mr. Kasliwal has also relied upon the decision in case of Ayyaswami Gounder and Others Vs. Munnuswamy Gounder and Others, to submit that the right of co-ownership presupposes a bundle of rights including unrestricted user, unlimited in point of disposition.

However, the learned counsel Mr. Rajendra Prasad for the respondent-defendant vehemently submitted that the appellant-plaintiff had filed the suit only for the purpose of misusing the process of law, inasmuch as under the guise of the ad-interim order dated 27.8.13 he had entered into the disputed premises and had started threatening the respondent to dispossess her from the said premises. He further submitted that after the purpose of entering into the house was served, the appellant-plaintiff had made an attempt to withdraw the suit, however, the respondent had objected against such withdrawal, and hence the appellant had withdrawn the said application of withdrawal of the suit. Mr. Rajendra Prasad relying upon the decision of the Apex Court in case of Kalabharati Advertising Vs. Hemant Vimalnath Narichania and Others, submitted that the proceedings should not be filed in the court only to avail of interim relief without final adjudication and that the benefit of the interim relief automatically gets withdrawn on the withdrawal of the suit. He submitted that the process of court should not be permitted to be misused to benefit the undeserving litigant. He further submitted that the appellant-plaintiff had neither produced the copy of the Will allegedly executed by late Shri Jhamandas in his favour, nor had referred to the contents of any such Will or of the receipt dated 4.5.12 allegedly executed by late Shri Jhamandas, in either the plaint or the T.I. application. According to him, the said receipt being a forged one, the respondent has already filed complaint against the appellant in the court of law. He also submitted that after having vacated the disputed premises and executing the receipt dated 5.7.12, the appellant and his family members were residing at the House at Rukmani Garden, and therefore the trial court has rightly not permitted him to use the disputed premises for residential purposes. According to him, the appeal was filed by the respondent only because the trial court while passing the impugned order had directed the parties to maintain status-quo, which part was not in consonance with the earlier part.

In the instant case, it appears from the submissions made by the learned counsels for the parties and from the documents on record that after filing of the suit, the trial court had appointed the Commissioner to have local inspection of the disputed premises, pursuant to which the Commissioner had visited the premises on 25.8.13. Of course, as per the settled legal position, none of the parties could use the said report as an evidence for showing their respective possession. The said report could be read by the court only for the purpose of elucidating the matter in dispute. Now if the said report is read in the light of the site plan produced by the appellant-plaintiff alongwith the plaint, it transpires that the disputed premises consists of basement, ground floor, first floor and second floor. It also transpires that the lock put on the room at the basement was opened with the key of the appellant and some food articles and a roaster machine and other goods were found lying therein. The lock put at the door for going to the ground floor was opened with the key to the respondent-defendant and some dry fruit packets were lying in the room at the right side. The room at the left side was also opened by the defendant-respondent in which some chairs, cots etc. were lying. On the first floor some cartons of dry fruits were found lying on the floor at the right side. The room situated at the left side was opened by the plaintiff. It also appears that on the second floor of the premises there was one room, where one watchman named Lala Ram was found with some household articles. Considering the said report of the Commissioner, it was observed by the trial court that the basement and part of the first floor of the premises was being used for the business purposes, however, there was hardly anything to indicate that any part of the premises either on the first floor or second floor was being used by the appellant for residential purposes. As rightly observed by the trial court, if the appellant-plaintiff was staying on the first floor with his family as alleged by him, the kitchen and the toilets would have been found in running condition by the Commissioner.

It is pertinent to note that even as per the averments made by the appellant in para 6 of his reply to the counter T.I. application filed by the respondent, he had admitted to have shifted his residence to the house at Rukmani Garden. Though he had tried to explain that he had shifted on the request made by Shri Jhamandas as the respondent-defendant used to quarrel with the appellant everyday, the fact remains that even as per his own version, he was not in possession of the disputed premises, and was not staying with his family in the disputed premises. Under the circumstances, the submission made by the learned counsel Mr. Kasliwal that the receipt dated 5.7.12 was got executed by late Shri Jhamandas only to please the respondent and that the appellant was not staying at the house at Rukmani Garden, does not find any force. From the receipt dated 5.7.12, it clearly transpires that the appellant had written the address of the house at Rukmani Garden and had handed over the possession of the disputed premises to his father Jhamandas. The said receipt was signed by the appellant and by his all family members, whose photographs were also fixed thereon, and was also got notarised.

As regards the ownership of the disputed premises, it was sought to be submitted by the learned counsel Mr. Kasliwal that late Shri Jhamandas had executed a Will on 11.10.97 in favour of the appellant, cancelling the earlier registered Will dated 24.9.97 executed in favour of the respondent. Mr. Kasliwal while admitting that no such Will was produced by the appellant before the trial court till the passing of the impugned order, he had placed heavy reliance on the receipt dated 4.5.12 allegedly signed by late Shri Jhamandas. The said submission could not be accepted for the simple reason that apart from the fact that the appellant had not produced any copy of such Will and the respondent had produced the copy of the registered Will in her favour, there was no reference of the said Will allegedly in his favour, either in the plaint or in the application for temporary injunction filed by the appellant. It was only when the respondent filed the reply to the T.I. application contending that a registered Will was executed by Shri Jhamandas on 24.9.97 in her favour, the appellant had come out with the case that the subsequent Will dated 11.10.97 was executed by Shri Jhamandas in his favour. The genuineness of the alleged receipt dated 4.5.12 also has been challenged by the respondent. It is also required to be noted that the said receipt was also not referred to by the appellant in the plaint or T.I. application filed by him. Under the circumstances, the court finds much substance in the submissions made by the learned counsel Mr. Rajendra Prasad for the respondent that as per the registered Will dated 24.9.97, executed by the late Shri Jhamandas, prima facie ownership of the disputed premises was also with the respondent. The said will has not been challenged by the appellant so far either in the present suit proceedings though produced by the respondent, nor in any other separate proceedings.

In that view of the matter, this court is of the opinion that since the appellant was found to be using part of the disputed premises for business purposes, and since the appellant had failed to prima facie establish that he was residing in the disputed premises alongwith his family members, the trial court had rightly restrained the respondent from causing any obstruction to the appellant for using the part of the premises for his business purposes, and restrained the appellant for using the same for residential purposes. However, since under the guise of the ad-interim order dated 27.8.13, the appellant was claiming the possession of the entire disputed premises, the order of maintaining status-quo passed by the trial court was required to be set aside.

It appears that during the pendency of the appeal, an attempt was also made by the appellant to withdraw the suit, after obtaining the interim relief in his favour. As rightly submitted by the learned counsel Mr. Rajendra Prasad relying on the decision of the Apex Court in case of Kalabharti Advertising v. Hemant Vimalnath Narichania & Ors. (supra), the forum of the court cannot be used for the purpose of giving interim relief as the only and the final relief. It is not permissible to any party to file the proceeding in the court and obtain certain orders during the pendency of the proceedings, and then withdraw the same without getting proper adjudication of the issue involved therein. It is also observed therein that no litigant can derive any benefit from the mere pendency of a case in the court of law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. There cannot be any disagreement to the ratio of decision laid down by the Apex Court in case of Bharat Aluminium Co. v. Kaiser Aluminium (supra) that interim relief could be claimed only on the existence of a substantive suit for final relief. It is true that when the counter application seeking temporary injunction was filed by the respondent-defendant, she had not filed any counter claim in the suit. However it appears that she was required to file such counter application as the appellant, under the guise of the ad-interim order was claiming the possession of the disputed premises and threatening the respondent to dispossess her from the said premises. Hence, considering the facts and circumstances of the case, the trial court had entertained the counter application of the respondent also while passing the impugned order, which appears to be just and proper. It is needless to say that the court has inherent powers to grant temporary injunction in cases which are not covered by the provisions of Order XXXIX of CPC, if the circumstances so warrant.

The other decisions relied upon by the learned counsel Mr. Kasliwal are hardly of any help to him inasmuch as in case of Mehul Mahendra Thakkar v. Meena Mehul Thakkar (supra), it has been held that by way of interim relief, final relief should not be granted. Mr. Kasliwal has also relied upon the decision of the Apex Court in the case of Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others, to contend that if the final relief cannot be granted, temporary injunction also cannot be availed of. So far as the present case is concerned, the appellant-plaintiff had prayed for the temporary injunction of the same nature as has been prayed for in the suit and, if the ratio of the decision relied upon by Mr. Kasliwal is applied, the appellant would not be entitled to the relief by way of temporary injunction, which would tantamount to granting of the final relief. The decision in the case of Ayyaswami Gounder & Ors. v. Munnuswamy Gounder & Ors (supra) also would not be helpful to the appellant as the appellant has not pleaded co-ownership of the suit premises with the respondent. On the contrary, as discussed hereinabove, by virtue of the registered Will executed by late Shri Jhamandas during his life time, the respondent prima facie appears to be the exclusive owner of the disputed premises.

In that view of the matter, the court does not find any substance in the appeal being No. 3113/13 filed by the appellant-plaintiff and therefore the same deserves to be dismissed. Since the later part of the impugned order passed by the trial court directing the parties to maintain status-quo is not in consonance with the earlier part of the order, the appeal being No. 3403/13 filed by the respondent-defendant deserves to be allowed.

The impugned order therefore deserves to be modified. It is directed that the appellant-plaintiff shall use the part of the disputed premises i.e. the basement and that part of the ground floor, where the cartons and other packages of dry fruits were found lying as per the Commissioner''s report, for his business purposes and shall not use any part of the premises for his residence. It is also directed that the appellant shall not cause any nuisance to the respondent while using the part of the premises for his business purposes. In view of the aforesaid directions, the appeal being No. 3113/13 is dismissed and the appeal being No. 3403/13 is allowed accordingly.

The learned counsel Ms. Suruchi Kasliwal for the appellant requests to stay the operation of the order passed by this Court for a period of four weeks to approach the higher forum, by submitting that the appellant is staying in the disputed premises. Since the Court by passing the order has held that the appellant had already shifted to the house at B-2 Rukmani Garden since 5.7.2012, the request cannot be granted.