Iqbalbhai Hushenbhai Padaya vs Maheshkant Dhirajlal Vasavada and Others

Abhilasha Kumari, J.—Rule. Mr. Satyam Y. Chhaya, learned advocate waives service of notice of Rule for the respondents Nos. 1, 3, 4 and 5. Respondents Nos. 2,6 and 7 are duly served, but none appears on their behalf.

This petition has been filed under Articles 226 and 227 of the Constitution of India, challenging order dated 30-12-2008 passed by the District Court, Junagadh, in Civil Misc. Appeal No. 45 of 2007,whereby the order dated 20-6-2007 passed by the Trial Court below application at Exh.5, in Regular Civil Suit No. 38 of 2006, has been confirmed.

The petitioner, who is the plaintiff, has instituted the above-mentioned Suit for declaration and grant of permanent injunction against the respondents.

Briefly stated, the case of the petitioner in the Suit is that a registered Sale Deed dated 4-2-2000 in respect of land bearing Revenue Survey No. 1391/14 admeasuring 202 sq. mts., situated near Link Guest House, Mangrol, was executed by him in favour of respondents Nos. 1,3,4 and 5 (defendants Nos. 1,3,4 and 5 in the Suit). The sale consideration mentioned in the Sale Deed is Rs. 71,000/- and there is no dispute regarding the fact that the said respondents have paid an amount of Rs. 71,000/- to the petitioner. However, it is the case of the petitioner that the parties had orally agreed that the sale consideration would be Rs. 5,71,000/- and the concerned defendants have assured the petitioner that they would pay an additional amount of Rs. 5,00,000/- in a few days, but the said amount was not paid and possession of the land was taken over by the respondents. The concerned respondents, further sold the suit land to respondent No. 6, for a sale consideration of Rs. 70,000/-.

4.1 In the Suit the petitioner has, inter alia prayed for the grant of a mandatory injunction against the respondents, directing them to hand over the possession of the suit land to him, till the dispute between the parties is resolved and the full amount of consideration is paid to him. Another prayer is that the respondents be restrained from transferring or alienating the suit land till the final decision of the Suit. Along with the Suit, the petitioner filed an application at Exh.5, with almost the same prayers, except that the prayer to hand over the property to the petitioner was prayed for as an interim prayer, during the pendency of the Suit. The Trial Court has rejected the application at Exh.5 by passing order dated 20-6-2007, which has been confirmed by the District Court in Appeal, by way of the impugned order, giving rise to the filing of the petition.

Mr. Pranav M. Raval, learned Counsel for the petitioner has submitted that the respondents Nos. 1,3,4 and 5,in whose favour the Sale Deed has been executed by the petitioner, have cheated him on several times, by entering into fraudulent transactions. It is submitted that though the amount of sale consideration mentioned in the Sale Deed is Rs. 71,000/-, the said respondents had orally agreed to pay an additional amount of Rs. 5,00,000/- for the land which, has not been paid. On the assurance that the amount would be paid within two to three days, the petitioner has handed over possession of the suit land to them. It is further submitted that the impugned orders of both the courts below are erroneous, inasmuch as they are not based on any proper reasoning and a material error has been committed while passing the same. It is submitted that the Courts below have not taken into consideration the aspect that the respondents had agreed to pay an amount of Rs. 5,00,000/- to the petitioner and, at least, the prayer regarding maintenance of status-quo, qua the suit land ought to have been granted during the pendency of the suit, therefore, the impugned order deserves to be quashed and set aside and the petition allowed. No other submission has been made by the learned Counsel for the petitioner.

On the other hand, Mr. Satyam Y. Chhaya, learned Counsel for respondents Nos. 1, 3, 4 and 5, while opposing the petition, has submitted that the petitioner has not challenged the Sale Deed dated 4.2-2000 executed by him in favour of respondents Nos. 1, 3, 4 and 5 and nor has the subsequent Sale Deed, by which the land has been sold by the said respondents to respondent No. 6, been challenged. Instead, a Suit for declaration, valued at Rs. 300/-only, has been filed by paying Court Fees. It is further submitted that the story that the concerned respondents had agreed to pay an additional amount of Rs. 5,00,000/- to the petitioner is false and in any case there is no material on record to prove this aspect. It is contended that there is no dispute that the amount of sale consideration, that has been mentioned in the Sale Deed, has already been paid to the petitioner, therefore, the sale transaction is complete. Defending the orders of the Trial Court as well as the lower Appellate Court, Mr. Satyam Y. Chhaya, learned Counsel submits that the Courts below have rightly not granted the prayers made in the application at Exh.5 by the petitioner as the first prayer is for grant of mandatory injunction and the second prayer, which seeks to restrain the respondents from alienating the suit property, would amount to a serious transgression of the rights of the true owners of the property which cannot be done in the absence of any adverse material on record. It is, urged that the petition may be dismissed.

I have heard the learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other material on record. From a perusal of the impugned judgments of the Trial Court and the lower Appellate Court it is clear that the case of the petitioner lies in a narrow compass. According to the petitioner, the dispute is regarding non-payment of the amount of Rs. 5,00,000/- towards sale consideration to him. The orders of the Trial Court as well the lower Appellate Court have been passed on the basis of a proper scrutiny of material on record. Both the Courts below have arrived at the findings that there is no material on record to show that the respondents, who purchased the land from the petitioner by way of Sale Deed dated 4-2-2000, have orally agreed to pay an additional amount of Rs. 5,00,000/- to him. The Sale Deed is a Registered one and shows that the sale consideration is Rs. 71,000/-. The land which is the subject matter of the Sale Deed admeasures only 202 sq. mts. The said land has also been sold by the respondents, who purchased it, to respondent No. 6. In the absence of any material on record to show that an additional amount of Rs. 5,00,000/- was to be paid to the petitioner, both the courts below have come to the conclusion that the petitioner has not been able to prove that a prima facie case exists in his favour or that the balance of convenience or factor of irreparable loss is also on his side. On the contrary, it has been observed by the lower Appellate Court in the impugned order that had the petitioner been cheated by the said respondents at an earlier point of time, as is being submitted, he would not have parted with the possession of the land by accepting Rs. 71,000/-, relying on the say of the respondents that the remaining amount of Rs. 5,00,000/- would be paid in two or three days. It has been rightly stated by both the Courts below that the case of the petitioner can only be decided, after leading evidence during trial and no mandatory interim injunction, of the nature prayed for, can be granted to him in the absence of a prima facie case in his favour.

If the prayers made in the application at Exh.5 are perused, it is evident that the first prayer is for interim injunction of a mandatory nature. In Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, the Supreme Court has laid down certain guidelines, clarifying in what circumstances such interim mandatory relief can be granted. The relevant paragraphs are reproduced herein-below:

The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

the plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

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

The balance of convenience is in favour of the one seeking such relief.

Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.

Applying the principles of law enunciated in the above-mentioned case to the facts and circumstances of the case in hand, it is clearly evident that the petitioner has not been able to prove that he has a prima facie case in his favour, leave alone a strong prima facie case. Similarly, there is nothing on record to indicate that the petitioner would suffer irreparable loss or injury which cannot be compensated in terms of money or that the balance of convenience is in his favour. In such circumstances and in view of the material on record, it cannot be said that any error of law or jurisdiction has been committed by the courts below in refusing to grant the prayers made by the petitioner.

As regards the second prayer restraining the respondents from transferring or alienating the land, this prayer has also not been granted for the same reasons, as above. As is rightly submitted by Mr. Satyam Y. Chhaya, learned Counsel for the respondents Nos. 1, 3, 4 and 5, the owners of the land cannot be restrained from enjoying the land in the absence of any material on record, which would justify the passing of a restraint order, such as prayed for by the petitioner.

There are concurrent findings of fact recorded by both the courts below against the petitioner. The said findings have been arrived at after proper scrutiny of the material on record and are supported by clear and cogent reasons. As no error of law or jurisdiction has been committed by the lower Appellate Court in passing the impugned order, confirming the order of the Trial Court, interference of this Court is not warranted. The petition, therefore, fails and is dismissed. Rule is discharged.