Vidhyaben Jagdishbhai Parihar vs Nitaben Bhupendrakumar Panchal

A.J. Shastri, J

The present appeal from order under Section 104 read with Order 43 Rule 1(r) of the Code of Civil Procedure is filed for the purpose of challenging

the legality and validity of the order dated 27.08.2018 passed below ExhibitÂ​5 whereby the injunction which has been prayed for came to be rejected.

The case of the appellant is that the appellant filed Special Civil Suit No. 201 of 2018 in the court of learned 10th Additional Senior Civil Judge, and

Additional Chief Judicial Magistrate, Surat for seeking declaration and permanent injunction and also file an application below ExhibitÂ5 for seeking

interim relief against the respondent. The suit property is situated in Ward No. 13, Revenue Survey no. 105 Paiki T.P. Scheme No. 5 Final wherein

Kinnari Flats CoÂoperative Housing Society Limited, PartÂ2 is organized and developed and residential apartment is constructed and parking garage

No. G/2 on the ground floor, having a built up area of 195 sq.ft. and the parking garage No. G/3 having builtÂup area of 195 sq.ft., and the carpet area

of 18.12 sq. mtrs. and 13.01 sq.mtrs., respectively situated in Village Athva, SubÂDistrict, Surat City, District Surat is of the ownership and

occupation of the appellant. It is further the case of the appellant that respondent no. 2 was working in Parihar Interial Consult Private Limited of the

husband of the appellant and respondent no. 1 is the wife of respondent no. 2 and respondent no. 2 had committed breach of trust and

misappropriation of the funds and immovable and movable properties of the Company of the husband of the appellant with an intent to cheat. It is

further the case of the appellant that respondent no. 2 had also forged and fabricated various documents and therefore, the services of the respondent

no. 2 were terminated and it has also come to the knowledge that the respondents jointly have forged and fabricated sale deed dated 14.09.2015 with

respect to the suit property of Rs.11,10,000/Â, in fact the said property is valued much more at Rs.55 lakhs. It is on account of this forged, fabricated

and fraudulent sale deed the appellant was construe to file the suit for seeking declaration and by that time, adÂinterim relief was sought below

ExhibitÂ​5 whereby after hearing the parties, on 27.08.2018 the application came to be dismissed.

2.1. It is further the case of the appellant that having being aggrieved and dissatisfied with the said order refusing ExhibitÂ5 application has preferred

Civil Misc. Appeal No. 63 of 2018 under Section 104 read with Order 43 Rule 1 of the Code of Civil Procedure, which also came to be dismissed on

13.12.2018 on the ground of pecuniary jurisdiction since the value of the suit property is more than Rs.10 lakhs and, therefore, the appeal would like

before the High Court and not before the District Court. As a result of this, the appellant has submitted the present appeal from order before this

Court.

3, Learned advocate Mr. N.A. Shaikh appearing for the appellant has vehemently contended that the learned trial court committed gross error in not

considering the request of the injunction and the reasons which are assigned by the court below are also not justiciable in the eye of law and

practically the learned trial court is at this stage examining the merit at length which is not expected. As a result of this, the very exercise of

jurisdiction is uncalled for. Hence, the impugned order be set aside. Learned advocate Mr. Shaikh has further submitted that the learned trial court

while passing the impugned order has also not considered the material which has been led before the court and on the basis of wrong appreciation of

material, exercise of discretion is made which according to the learned advocate for the appellant is not just and proper. Learned advocate Mr. Shaikh

has further submitted that the reasons which are assigned by the learned trial court are not sufficient enough to justify the conclusion. As a result of

this, the impugned order be set aside. No other submissions have been made.

To meet with the stand taken by the learned advocate for the appellant, learned advocate Mr. Arjun Padhiyar appearing for Ms. Natasha Sutaria,

learned advocate appearing for the respondents has vehemently objected and has contended that even the learned trial court has not committed any

error, in fact, a well reasoned order is passed in due exercise of discretion vested in law. Resultantly, such exercise of of jurisdiction with strong

application of mind cannot be substituted even if another view is possible. It has further been submitted that the appeal from order has got its limitation

and the scope of appeal against the interim relief is not so large which may call for any interference. In absence of any perversity or material

irregularity it is not open for the appellant to seek for discretionary relief. In any case, even the order of the learned trial court has a valid lengthy

discussion with submission which has been made by both the sides. Hence, exercise of jurisdiction requires no interference.

Having heard the learned advocates for the respective parties and having gone through the material on record, irrespective of the order of the

appellate court, even the learned trial Court which has passed the order is also on the basis of proper analysis of the fact so much so, that certain

admitted situation have been taken into consideration while exercising discretion and detailed discussion has been made on the documents which are

forming part of the record marked at MarkÂ14/3 which was executed on 13.04.2016, Even the sale deed registered before the authority has also been

taken note of which is dated 14.09.2015 and marked as MarkÂ14/1 and on the basis of the overall analysis, it has been found that there is no case

made out by the appellant for seeking any interim relief. It has further been found from the record that the learned trial court has applied its mind while

exercising the discretion. The court has perused and given anxious consideration to the reasons which are assigned by the learned trial court and in

relation has also examined the material, which has been discussed by the court below and the court has found that no perversity is reflecting from any

of the observations of the learned trial court and since this being the visible situation on record, the court would not like to disturb the discretion which

has been exercised. On the contrary, a detailed discussion which has taken place and the stand taken by the opponent in written submission requires

no interference. Since the court has considered the discussion made by the learned trial court at length, the situation which is narrated in the impugned

order is not possible to be ignored, since the same is considered and examined by this court, the conclusion found to be not erroneous in any form. As

a result of this, the observations which have been made by the court below and commented upon the conduct of the appellant are such circumstances

which are not possible to be ignored by the court. The relevant extract from the observations made by the learned trial court in its order needs to be

quoted herein after :Â​

“ On behalf of written statement filed produced vide Exh.13 in which they denied all the contentions and mainly contended that plaintiff making a

material suppression before this court because plaintiff herself remained present before the Registrar and executed a registered sale deed in favour of

defendant and before this sale deed an agreement with possession was executed in favour of defendant ad in which an amount is shown

Rs.10,65,000/Â and which was executed on 27.05.2010 and an amount which was paid by defendant by the cheque which was mentioned in written

statement, furthermore on the same day defendant also purchased a property of husband of the plaintiff G/1 which was adjoining property of G/2 and

G/3. And after that defendant purchased G/1 property from husband of the plaintiff and a suit filed by the defendant and son and husband of the

plaintiff vide SPCS No. 329 of 2017 after that present suit filed on behalf of plaintiff furthermore, a property which was given to the firm of plaintiff at

the rate of Rs.30,000/Â on live and license and notice issued by the defendant for vacate the possession of their property. Plaintiff filed present suit

furthermore, a complaint which was filed by the plaintiff is challenged by the defendant before the Hon’ble High Court under Special Criminal

Application vide No. 5906 of 2018 and in which a stay was granted by Hon’ble High Court and furthermore a sale deed which was executed by

the registrar and at the time of execution of sale deed finger print, photo and Identity proof of the plaintiff is also to be taken at that time cheque of

Rs.1,10,000/Â of HDFC Bank is to be given by the defendant to the plaintiff and in these circumstances, full consideration taken by the plaintiff and at

this stage plaintiff having no right to file such type of suit and furthermore, when the defendant proceed to enter their in the SMC record and at that

time also plaintiff taking an objection before SMC and which was also rejected and the name of the defendant entered in the SMC registered as well

as electricity bill also.

Suit which was filed by the defendant vide SPCS No. 329/2017 in which no written statement was filed on behalf of husband and son of the plaintiff

and suit filed by the defendant for the specific performance of the contract vide SCPS No. 346/2017 and from escaping this suit plaintiff filed a

present suit by making a material suppression before this Court. Document produced on behalf of defendant vide Ex.14 in which total 8 documents

produced.

Now, considering the pleading as well as document produced from both sides it is admitted that a registered sale deed executed in favour of defendant

in the year 2015 i.e. 14.09.2015 as per the say of plaintiff and admittedly present suit filed in 2018. Furthermore, considering mark 14/1 a document

produced on behalf of defendant which was an agreement with possession. It is executed on 27.05.2010 and it is also regarding a suit property and

plaintiff herself executed this deed and getting a consideration of Rs.10 lacs furthermore, plaintiff never challenged this deed in present plaint

furthermore, considering mark 14/3 which was an agreement regarding leave and license and it is executed on 13.04.2016 and it is also regarding a

suit property which was mentioned as para 1 of the plaint here plaintiff hiding this fact before this court furthermore, at one stage plaintiff admitted

that an amount deposited by the defendant in the account but plaintiff has not came before this court by making a contention that she is ready to repay

this amount to the defendant. It is also admitted that defendant filed a suits against the plaintiff in 2017 and an agreement with possession was

executed in 2010 if, contention of the plaintiff as per the plaint is bona fide and true then she also making a contention regarding this agreement with

possession and agreement with leave and license but plaintiff keep silence regarding this and trying to mislead this court by making a clever drafting.

In these circumstances, when the plaintiff executed a registered sale deed in 2015, agreement with possession in 2010 and leave and license

agreement executed by husband of the plaintiff having any objection then she filed a suit against the defendant in 2010 but nothing so happened but

after filing the suit by the defendant as a counter blast plaintiff present suit and injunction is discretionary relief and the person came before the court

must come with the clean hand and disclosed all facts before the court either it is in favour or against him but plaintiff failed and in these

circumstances, considering the above discussions, plaintiff having no prima facie case, so answer of Issue No. 1 as given in Negative.

Issue No. 2 & 3.

Both the issues are interconnected with each other so avoiding to the discussion of the facts both the issue discussed jointly.

Considering the discussion of Issue No. 1 and considering the facts of the case balance of convenience is in favour of defendants, if present

application allowed then injury caused to defendants because plaintiff failed to show her prima facie case and making a material suppression before

this court while a present application is rejected then no injury caused to the plaintiff considering all the discussion plaintiff failed to prove issue no. 2

and 3 so answers of issue no.2 and 3 are as negative.

On behalf of plaintiff Ld. Advocate relied on 2000 (3) GLR 2759 in which judgment Hon’ble High Court established a principle that need to

establish prima facie case not necessary for court to ascertain the whole merits of the case this court fully agreed with the principle established in it

but in the case on hand plaintiff making a material suppression before this court and it is also admitted that a judgment which was mentioned in the

written argument by the plaintiff no copy of the whole judgment produced on behalf of plaintiff in these circumstances this court unable to decide the

fact that whether the principle is became helpful or not because unless and until the whole copy produced before this court then court come to the

conclusion who the principle established the Hon’ble High Court or Hon’ble Apex Court became helpful to considering the fact of the case on

hand. In these circumstances, the principle on which plaintiff relied in her written argument not became helpful to the plaintiff.â€​

From the aforesaid discussion, and the observations which have been made, there appears to be no material irregularity nor any perversity, on the

contrary there appears to be a valid exercise of jurisdiction by the court below. Simply because the case of the appellant has not found favour, while

seeking equitable relief, there is hardly any reason to seek any interference by the appellant.

The Apex Court time and again has propounded the scope of Order 43 as well as about the scope of interference by the appellate court and looking

to some of the observations made in the decision, this Court is of the clear opinion that the discretion which has been exercised by the court below is

not required to be disturbed in the interest of justice. The following are such decisions and the relevant observations contained in the said decisions are

quoted herein after:Â​

In the case of Matrix Telecom Pvt. Ltd., v. Matrix Cellular Services Pvt. Ltd., reported in 2011(3) GLR 1951, this Court in para 6 and 6.1. has

observed as under :Â​

“6.0 Before proceeding further it is required to be noted that the present appeal is against the rejection of interim relief and the main suit is still

pending. If this court elaborately deals with the matter on merits it is likely that the same would prejudice the case of either side. Therefore, it is well

settled law that this Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the

appellantÂ​plaintiff has made out a prima facie case or not for grant of interim injunction.

6.1 It is required to be noted that it is well settled law that the Appellate Court may not interfere with the exercise of discretion of the court of first

instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely

or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of

discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one

reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be

justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would

have come to a contrary conclusion.â€​

In the case of Khimjibhai Harjivanbhai Patadia v. Patel Govindbhai Bhagvanbhai reported in 2006 (4) GLR 3058, this Court in para 16 has observed as

under :Â​

“16. Such type of litigation is required to be curbed, as it is noticed by the Court that in cities like Ahmedabad, Surat and Rajkot the land brokers

are entering into such transactions every day. It is also required to be noted that in Appeal under Order 43 of C.P.C., this Court would not like to

interfere with the discretionary order passed by the trial Court unless it is found that the discretion exercised by the Court is not based on evidence on

record or the order is passed contrary to the settled legal position in this behalf reference is required to be made to the decision of this Court in Mardia

Chemicals Limited v. Gujarat Electricity Board & Anr., reported in 2002 (2) GLR 1480, wherein it is held that discretion exercised by the trial Court in

the matter of interim injunction, normally is not required to be interfered with by the appellate Court unless the order is perverse or is passed against

the settled principles of law.â€​

In the wake of aforesaid circumstances even one another decision which cannot be lost sight of is the decision which is rendered in the case of

Dalpat Kumar & Anr. v. Prahlad Singh & Ors. reported in AIR 1993 SC 276. The Apex Court on analyzing the situation has clearly opined that there

is a clear distinction between prima facie title and prima facie case which may not be confused and in that context the observations which have been

made are very relevant, hence, quoted hereinafter:Â​

“5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is ""a prima facie case"" in his favour which

needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the 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 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 nonÂinterference 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 it 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 subjectÂmatter 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.

Undoubtedly, in a suit seeking to set aside the decree, the subjectÂmatter in the earlier suit, though became final, the Court would in an appropriate

case grant ad interim injunction when the party seeks to set aside the decree on the ground of fraud pleaded in the suit or for want of jurisdiction in the

Court which passed the decree. But the Court would be circumspect before granting the injunction and look to the conduct of the party, the probable

injuries to either party and whether the plaintiff could be adequately compensated if injunction is refused. This case demonstrates (we are not

expressing any opinion on the plea of fraud or their relative merits in the case or the validity of the decree impugned), suffice to state that the conduct

of the respondent militates against the bona fides. At present there is a sale deed executed by the Court in favour of the first appellant. If ultimately

the respondent succeeds at the trial. They can be adequately compensated by awarding damages for use and occupation from the date of

dispossession till date of restitution. Repeatedly the Civil Court and the High Court refused injunction pending proceedings. For any acts of damage, if

attempted to make, to the property, or done, appropriate direction could be taken in the suit. If any alienation is made it would be subject to doctrine of

lis pendence under Section 52 of the Transfer of Property Act. The High Court without adverting to any of these material circumstances held that

balance of convenience lies in favour of granting injunction with the following observations, ""keeping in mind the history, various facts which have

been brought to my notice, and looking to the balance of convenience and irreparable loss, I think it will be in the interest of justice to allow these

appeals and grant temporary injunction that the appellants may not be dispossessed from the suit property"". The phrases ""prima facie case""; ""balance

of convenience"" and ""irreparable loss"" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented

by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The

facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience. The

respondents can be adequately compensated on their success.â€​

In view of the aforesaid situation and in view of the circumstances which are considered by the court below, this Court is of the clear opinion that

no case is made out to call for any interference and the appeal from order being meritless, the same deserves to be dismissed.

Accordingly, the present appeal from order stands dismissed with no order as to costs.