Sumit Kumar vs Avneet Patyal And Others

Sandeep Sharma, J

Being aggrieved and dissatisfied with the judgment dated 15.11.2017 passed by learned District Judge, Hamirpur, District Hamirpur, H.P., in Civil Misc. Appeal No.14 of 2015, affirming the order dated 9.4.2015 passed by learned Civil Judge (Junior Division) Court No.II, Hamirpur, H.P., in CMA No.25 of 2015 in Civil Suit No.17 of 2015, whereby an application having been filed by the applicant(hereinafter referred to as the plaintiff) under Order 39 Rules 1 and 2 CPC, restraining the respondents ( hereinafter referred to as the defendants) from changing the nature of the suit land or raising any construction and laying passage or road over the land in suit, came to be rejected.

Precisely, the facts of the case as emerge from the pleadings adduced on record by the respective parties are that the plaintiff filed a Civil suit under Sections 9, 26 Order 7 Rule 1 & 2 of Code of Civil Procedure read with Sections 38 and 39 of Specific Relief Act, for permanent prohibitory injunction and in alternative for mandatory injunction for possession against the defendants. Plaintiff averred in the suit that land comprised in Khata No.99min, Khatauni No.179min, Khasra No.283/2/1 area 95.00 Sq.Mts, Khasra No.283/1/3, area 271.17 Sq.Mts, Kita-2 in total area 366.17 Sq.Mts, situate in Tika Up Mahal Lalhri, Mauza Bajuri, Tehsil and District Hamirpur, H.P (hereinafter referred to as the suit land), is owned and possessed by the plaintiffs alongwith other co-sharers as per jamabandi for the year 2011-12. Plaintiff averred that defendants with an object to grab the suit land are threatening to cause interference, destroying the boundaries, removing earth/soil and digging the suit land by using JCB machine, changing its nature and raising forcible construction over the suit land to which they have no right, title or interest as they are strangers to the suit land. Alongwith the aforesaid suit, plaintiff also filed an application under Order 39 Rule 1 and 2 CPC, praying therein to restrain defendants from changing the nature of the suit land during the pendency of the suit. Plaintiff averred in the suit that defendant No.1 and 2 agreed to sell land/area of 154 Sq.Mts. at Rs.70,000/-per marla as per agreement to sell dated 26.9.2012 and it was undertaken by them to execute sale deed after partition. Plaintiff averred that since defendants No.1 and 2 alongwith other co-sharers have entered into a private partition and thereafter mutation of partition has been sanctioned in their favour, he is entitled to Specific performance of the agreement to sell dated 26.9.2012. Plaintiff claimed that he is still ready and willing to perform his part of the agreement, but defendants No.1 and 2 have failed to perform their part of agreement in order to deprive the plaintiff from his right and further alienated the land to defendant No.3, who has further executed sale deed in favour of defendants No.5 and 6 and defendants No.5 and 6 exchanged the land with defendant No.7 just to multiply the proceedings.

Aforesaid claim of the plaintiff came to be resisted on behalf of the defendants, who besides raising objection with regard to maintainability, cause of action and estoppel, has specifically denied the factum with regard to agreement to sell, if any, executed on 26.9.2012. Defendants No.1 and 2 claimed that the agreement dated 26.9.2012 is result of fraud and misrepresentation and same is not binding upon them. Defendants No.1 and 2 have further averred that since no prima-facie case exists in favour of the plaintiff, he is not entitled to discretionary relief of injunction as have been prayed for in the application. Defendants No. 3 to 7 while claiming themselves to be bona-fide purchaser have claimed that suit land in question was developed by them after spending huge money and they are in continuous possession since July, 2013.

On the basis of aforesaid pleadings adduced on record by the respective parties, learned Court below declined to grant ad-interim relief in favour of the plaintiff and dismissed the application under Order 39 Rule 1 and 2 PCP by way of order dated 9.4.2015. In the aforesaid background, plaintiff filed CMA before the learned District Judge, Hamirpur, District Hamirpur, H.P, but same was also dismissed. Being aggrieved and dissatisfied with the rejection of appeal by learned District Judge, Hamirpur, plaintiff has approached this Court in the instant proceedings, praying therein to quash and set-aside the impugned order/judgment passed by the learned Courts below.

I have heard learned counsel representing the parties and perused the material available on record.

While considering prayer for grant of injunction, court must be satisfied that the party praying for relief has a prima facie case and balance of convenience also lies in its favour. While considering prayer for injunction, if any, court is required to consider whether the refusal to grant injunction would cause irreparable loss to such a party. Besides above, conduct of the party seeking injunction is also of utmost importance, as has been held by Hon'ble Apex Court in case M/S Gujarat Bottling Co.Ltd. & Ors. v. The Coca Cola Co. & Ors., AIR 1995 2372. In case a party seeking injunction fails to make out any of the aforesaid ingredients, it would not be entitled to injunction. Phrases, "prima facie case", "balance of convenience" and "irreparable loss" has been aptly interpreted by Hon'ble Apex Court in Mahadeo Savlaram Shelke v. The Puna Municpal Corpn., J.T. 1995(2) S.C. 504,wherein Hon'ble Apex Court relying upon its earlier judgment in Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 has observed that the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima facie right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the Injury must be a material one, namely one that cannot be adequately compensated by way of damages. The balance of convenience must be in favour of granting injunction. The court while granting or refusing injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued.

This Court in case titled Roshan Lal versus Ratto , AIR 1977, Himachal Pradesh 10 has also very aptly interpreted the expression "prima-facie case" and "other injury of any kind". Having taken note of aforesaid judgments rendered by Hon'ble Apex Court as well as this Court, this Court finds that whenever the Court is called upon to examine whether the plaintiff has prima-facie case in a suit for the purpose of determining whether a temporary injunction should be granted, it must perforce examine the merits of the case and it will be compelled to consider whether there is likelihood of the suit being decreed. Though depth of investigation which the Court must necessarily pursue for that purpose will vary with each case. The Expression "other injury of any kind" is very wide.

It comprehends any kind of legal injury, and not necessarily an injury akin to a breach of contract.

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that suit land is owned and possessed by defendants No.1 and 2 alongwith other co-sharers and after private partition interse co-sharers land in suit comprised Khasra No.283/1 area 571/37 has come under the share of Avneet Patyal and Ajmer Patyal. Though, in the case at hand entire case of the plaintiff is based upon agreement to sell dated 26.09.2012, whereby allegedly defendants No.1 and 2 agreed to sell 154 Sq.Mts of land at the rate of Rs.70,000/ - per marla, but neither original agreement nor certified copy of the agreement ever came to be placed on record by the plaintiff, rather he filed Photostat copy of the agreement. Most importantly careful perusal of plaint, copy whereof has been placed on record, nowhere reveals that the plaintiff took any specific plea that agreement to sell has been misplaced or lost by him. True, it is that photo copy of document can be placed on record, but same is required to be proved in accordance with law and it is mandatory to aver in the plaint with regard to misplacement and loss of such document and intention to prove the same by way of secondary evidence

Pleadings available on record reveals that agreement to sell was executed on 26.9.2012 interse plaintiff and defendants No.1 and 2, whereafter sale deed qua the suit land was executed by defendants No.1 and 2 in favour of defendant No.3, who subsequently sold the same in favour of defendants No.4 to 7, whereas present suit has been filed on 17.1.2015. As per the averments contained in the plaint, defendants No. 4 to 7 are in possession of the suit property from the date of sale deed by defendants No.1 and 2 in favour of defendant No.3, who further sold the same to defendants No.4 to 7. In the case at hand, agreement to sell allegedly executed interse plaintiff and defendants No.1 and 2 never came to be produced in Court, rather plaintiff with a view to prove its existence averred that he lodged complaint to police, but same cannot be plausible explanation qua the misplacement of agreement from the possession of the plaintiff.

Leaving everything aside, no material worth credence has been led/placed on record to demonstrate that defendants No. 4 to 7 had prior knowledge with regard to agreement to sell allegedly executed by defendants No.1 and 2 in favour of the appellant. Moreover sale deeds were executed on 25.7.2013 and 4.4.2014 respectively, whereas suit at hand came to be filed on 17.1.2015. Since it stands specifically averred in the plaint that pursuant to sale deed executed by defendants No.1 and 2 in favour of defendant No.3, defendant No.3 came to be in possession of the suit land, who further sold the same to defendants No. 4 to 7, it is not understood that what prevented plaintiff to file suit immediately when defendants No. 4 to 7 were put to possession of the suit land. Though, factum with regard to execution of agreement to sell, if any, has been specifically denied by defendants No.1 and 2, but even otherwise perusal of Photostat copy of agreement to sell placed on record suggests that out of entire land only 154 Sq.Mts land was agreed to be sold by defendants No.1 and 2 in favour of the plaintiff and sale deed in pursuance to aforesaid agreement to sell is/was to be executed after partition of land interse co-sharers. Though, plaintiff claimed that defendants No.1 and 2 alongwith other co-sharers have entered into private partition and mutation of partition was sanctioned in their favour, but since he failed to place on record original agreement, it was incumbent upon him to plead specifically in the plaint that agreement to sell has been lost or same is in possession of defendants No.1 and 2 and as such, learned Court below rightly concluded that the plaintiff has failed to prove prima- facie case in his favour for grant of discretionary relief of injunction.

Mr. Sanjeev Kuthiala, learned Senior counsel representing the petitioner/plaintiff while admitting that there is no specific averment with regard to misplacement/lost, if any, of agreement to sell, contended that factum with regard to execution of sale deed can be safely inferred from the averments contained in the written statement, wherein defendants No.1 and 2 have stated that the plaintiff has withheld the original agreement to sell from the Court after he cancelled and revoked the same on 26.12.2012. Mr. Kuthiala, while placing reliance upon the averments contained in para-7 of the written statement, contended that once factum with regard execution of agreement to sell never came to be specifically refuted by defendants No.1 and 2 in their written statement, rather same came to be admitted in so many words, learned courts below wrongly held that the plaintiff failed to prove factum with regard to existence of agreement to sell.

Mr. Ramakant Sharma, learned Senior Counsel representing the respondents-defendants contended that averments contained in para-7 of the written statement cannot be read in isolation, rather same is to be read in conjunction with the averments contained in para-9, perusal whereof reveals that agreement to sell was got executed by the plaintiff alluring defendants to provide Government Job, but since he could not arrange/procure job to defendant No.2, defendant No.2 threatened him to launch criminal prosecution. Faced with aforesaid situation, plaintiff cancelled and revoked the agreement to sell dated 26.12.2012 by making entry at the back of the agreement that all his rights in the agreement stand hereby extinguished and he is no more entitled to claim anything under the said agreement.

Having carefully perused the averments contained in the written statement, especially in para -7 and 9, this Court finds that some agreement to sell was executed interse plaintiff and defendants No.1 and 2, but same was cancelled and revoked on 26.12.2012. As per the defendants, plaintiff revoked the aforesaid agreement to sell when they threatened to launch criminal prosecution against him. As per the defendants, plaintiff revoked the forged agreement on 26.12.2012 by making entry at the back of the agreement that all his rights in the agreement stand extinguished and he is not entitled to claim anything under the said agreement, copy of aforesaid agreement was not made available by plaintiff apprehending that defendants on the basis of the same can initiate criminal proceedings against him.

True, it is that written statement filed by defendants No.1 and 2 if read, especially para No.7 and 9 one can presume that some agreement to sell was executed interse plaintiff and defendants No.1 and 2, but once defendants No.1 and 2 by way of reply specifically claimed that such agreement to sell was cancelled/revoked by the plaintiff by making entry at the back of the agreement to sell, it was all the more important for the plaintiff to produce the original copy of the same in Court while claiming the order of injunction. There appears to be considerable force in the submissions made by learned senior counsel representing the respondents-defendants that since note in the handwriting of the plaintiff stood recorded at the back side of the agreement to sell, he deliberately withheld the same from the Court and as such, he is not entitled for discretionary relief on account of mis-concealment of material facts.

Very conduct of the plaintiff itself suggests that he was not ready and willing to perform part of his agreement and as such, chose to remain silent for considerable time till the time defendants No.4 to 7 were put into the possession pursuant to sale deed executed by defendant No.3 in their favour. Moreover, no reasonable explanation ever came to be rendered on record by plaintiff with regard to loss of the original agreement coupled with the fact that possession was never delivered to him at the time of alleged agreement. On the top of everything, plaintiff did not bother to institute the suit at the very outset when defendants No.1 and 2 further alienated the land in order to upset the alleged agreement. As per pleadings, sale deed was executed after final partition. Though, as per the pleadings suit land stands partitioned vide mutation No.939, but no record of the same ever came to be placed on record.

Grant of relief for specific performance is itself a discretionary remedy and as such, party seeking temporary injunction in a suit for specific performance is required to establish a strong prima-facie case on the basis of undisputed facts. Besides above, conduct of plaintiff will also be a very relevant consideration for the purpose of injunction. In a matter concerning grant of injunction, apart from the existence of a prima facie case, balance of convenience, irreparable injury, the conduct of the party seeking the equitable relief of injunction is also very essential to be considered.

Since grant of relief of specific performance is discretionary remedy, party invoking the jurisdiction of the Court is under obligation to show/demonstrate that he/she himself/herself was not at fault and he/she himself/herself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealing with the party against whom he was seeking relief. His conduct should be fair and honest. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Ambalal Sarabhai Enterprise Limited versus KS Infraspace LLP Limited and another alongwith other connected matters (2020) 5 Supreme Court Cases 410, wherein it has been held as under:-

Chapter VII, Section 36 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act') provides for grant of preventive relief. Section 37 provides that temporary injunction in a suit shall be regulated by the Code of Civil Procedure. The grant of relief in a suit for specific performance is itself a discretionary remedy. A plaintiff seeking temporary injunction in a suit for specific performance will therefore have to establish a strong prima-facie case on basis of undisputed facts. The conduct of the plaintiff will also be a very relevant consideration for purposes of injunction. The discretion at this stage has to be exercised judiciously and not arbitrarily.

The cardinal principles for grant of temporary injunction were considered in Dalpat Kumar vs. Prahlad Singh, (1992) 1 SCC 719, observing as follows :

"5...Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."

The negotiations between the plaintiff and the defendant is reflected in approximately 17 emails exchanged between them commencing from December 2017 to 31.03.2018. The file size of the attachment to the mails has varied from 4850-52485756 KBs indicating suggestions and corrections from time to time. The WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during trial by evidenceinchief and cross examination. The emails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not. The use of the words 'final draft' in the email dated 30.03.2018 cannot be determinative by itself. The email dated 26.02.2018 sent by the defendant at 11:46 AM had also used the same phraseology. The plaintiff was well aware from the very inception that the defendant was negotiating for sale of the lands simultaneously with two others. The plaintiff was further aware on 30.03.2018 itself that the deal with it had virtually fallen through as informed to the escrow agent. The fact that a draft MoU christened as 'finalfor discussion' was sent the same day cannot lead to the inference in isolation, of a concluded contract. There is no evidence at this stage that the acceptance was communicated to the defendant before the latter entered into a deal with defendant no.2 on 30.03.2018 and executed a registered agreement for sale on 31.03.2018. Defendant no.2 paid Rs.17.69 crores and Rs.2.20 crores towards the income tax dues of the defendant the same day, as part of the consideration amount. It is only thereafter the plaintiff purports to have communicated its acceptance to the defendant on 31.03.2018 at 01.13 PM. The prolonged negotiations between the parties reflect that matters were still at the 'embryo stage' as observed in Agriculture Produce Market Committee, Gondal and ors. vs. Girdharbhai Ramjibhai Chhaniyara and ors., (1997) 5 SCC 468. The plaintiff at this stage has failed to establish that there was a mutuality between the parties much less that they were ad idem.

The pleadings in the suit acknowledge the awareness of the plaintiff of the ongoing negotiations with defendant no.2. The advance of Rs.2.16 crores was refunded to the plaintiff in the evening on 31.03.2018 by RTGS. No effort was made by the plaintiff to again remit the sum by RTGS immediately or the next day. Only a public notice was published on 03.04.2018 refuted by the defendant on 04.03.2018. The suit was then filed seven months later on 01.10.2018. The explanation that the plaintiff waited hopefully for a solution outside litigation as a prudent businessman before finally instituting the suit is too lame an excuse to merit any consideration.

In a matter concerning grant of injunction, apart from the existence of a prima facie case, balance of convenience, irreparable injury, the conduct of the party seeking the equitable relief of injunction is also very essential to be considered as observed in Motilal Jain (supra) holding as follows :

"6. The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property:

(i) delay running beyond the period prescribed under the Limitation Act;

(ii) delay in cases where though the suit is within the period of limitation, yet:

(a) due to delay the third parties have acquired rights in the subjectmatter of the suit;

(b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief."

The defendant no.2, in addition to the dues of the Income Tax department as aforesaid, made further payments to the defendant of Rs.25,44,57,769/ by 16.01.2019 aggregating to a total payment of Rs.45,84,71,869/. The defendants had also proceeded to utilize a sum of Rs.36.20 crores also and had therefore materially altered their position evidently by the inaction of the plaintiff to institute the suit in time and having allowed third party rights to accrue by making substantial investments. In Madamsetty (supra) it was observed :

"12.....It is not possible or desirable to lay down the circumstances under which a court can exercise its discretion against the plaintiff. But they must be such that the representation by conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief." Similar view has been expressed in Mandali Ranganna (supra).

We are therefore of the considered opinion that in the facts and circumstances of the present case, and the nature of the materials placed before us at this stage, whether there existed a concluded contract between the parties or not, is itself a matter for trial to be decided on basis of the evidence that may be led. If the plaintiff contended a concluded contract and/or an oral contract by inference, leaving an executed document as a mere formality, the onus lay on the plaintiff to demonstrate that the parties were ad idem having discharged their obligations as observed in Brij Mohan (supra). The plaintiff failed to do show the same on admitted facts. The draft MoU dated 30.03.2018 in Clause C contemplated payment of the income tax dues of Rs.18.64 crores as part of the consideration amount only whereafter the agreement was to be signed relating back to the date 29.03.2008. Had this amount been already paid or remitted by the plaintiff, entirely different considerations would have arisen with regard to the requirement for execution of a written agreement remaining a mere formality. Needless to state the balance of convenience is in favour of the defendants on account of the intervening developments, without furthermore, interalia by reason of the plaintiff having waited for seven months to institute the suit. The question of irreparable harm to a party complaining of a breach of contract does not arise if other remedies are available to the party complaining of the breach. The High Court has itself observed that from the negotiations between the parties that "some rough weather was being reflected between the plaintiff and the defendant ..........". The Special Civil Judge failed to address the issue of delay. The High Court noticed the arguments of the defendants with regard to delay in the institution of the suit but failed to deal with it.

In M.P. Mathur vs. DTC, (2006) 13 SCC 706, this Court observed :

"14. The present suit is based on equity...In the present case, the plaintiffs have sought a remedy which is discretionary. They have instituted the suit under Section 34 of the 1963 Act. The discretion which the court has to exercise is a judicial discretion. That discretion has to be exercised on wellsettled principles. Therefore, the court has to consider-the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the court granting the decree. In such cases, the court has to look at the contract. The court has to ascertain whether there exists an element of mutuality in the contract. If there is absence of mutuality the court will not exercise discretion in favour of the plaintiffs. Even if, want of mutuality is regarded as discretionary and not as an absolute bar to specific performance, the court has to consider the entire conduct of the parties in relation to the subject-matter and in case of any disqualifying circumstances the court will not grant the relief prayed for (Snell's Equity, 31st Edn., p.366)...."

Wander Ltd. (supra) prescribes a rule of prudence only. Much will depend on the facts of a case. It fell for consideration again in Gujarat Bottling Co. Ltd. vs. Coca Cola Co., (1995) 5 SCC 545, observing as follows :

"47....Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest."

Needless to say, grant/refusal of relief of temporary injunction is purely an equitable relief and while refusing/granting same, court has to weigh several factors before coming to a definite conclusion. There are three basic ingredients, which are to be taken into consideration by a court while considering prayer, if any, for interim relief i.e. prima facie case, balance of convenience and irreparable loss and injury. All these factors are required to be comparatively examined by the court, but over and above, all these factors, conduct of a party seeking discretionary relief is of utmost importance. In the case at hand, material adduced on record by respective parties compels this Court to conclude that the plaintiff failed to approach the court with clean hands, as such, inference can be drawn that he, with a view to have interim order in his favour, suppressed material facts purposely and intentionally. In the case at hand, no irreparable loss and injury, which cannot be compensated in monetary terms, would be caused to the plaintiff in case injunction is not granted to him, rather, irreparable loss and injury would be caused to the defendant, in case interim injunction, as has been prayed for, is allowed.

Consequently, in view of the detailed discussion made hereinabove, this Court sees no illegality or perversity in the impugned judgment and order passed by learned Courts below, which otherwise appear to be based upon proper appreciation of facts and law, which are accordingly upheld. The petition is dismissed being devoid of merit alongwith all pending applications, if any. Record of Court below be sent forthwith. Needless to say, observations made herein above, shall not be deemed to be a reflection on the merits of the case, which shall be decided by learned court below on its own merit on the basis of evidence to be led by respective parties.