A.N. Shivaprasad vs T. Venkatesh

R. Gururajan, J.—M.F.A. No. 4055 of 2000 is directed against the order dated 23.9.2000 in O.S. No. 148 of 1999 on the file of the Additional Civil Judge, Shimoga dismissing IA No. II.

M.F.A. No. 4484 of 2000 is again filed challenging the order dated 23.9.2000 passed in O.S. No. 148 of 1999 on the file of the Additional Civil Judge, Shimoga on IA No. I filed by the Petitioner and IA. No. V filed by the Respondent for vacating temporary injunction. Both the appeals can be disposed of by a common order since the facts and the grounds are common in both these cases.

The facts in brief are as under:

Both the appeals are filed by the Plaintiff. The Plaintiff A.N. Shivaprasad filed a suit in O.S. No. 148 of 1999. His case is that the Defendant-Respondent on 8.3.1998 executed a sale agreement for sale of the suit schedule properties to the Plaintiff for a sum of Rs. 7,75,000/- out of which the Respondent-Defendant received a sum of Rs. 4,62,800/- as advance on different dates. The balance was agreed to be paid on the date of registration of the sale. The Defendant did not keep up promise and went on postponing the date of registration. A legal notice was issued. A reply was received. Thereafter, the present suit was filed. The suit was contested by the Defendant. The Defendant denied having executed an agreement and he took up a contention of fraud and mis-representation in the case on hand. Initially injunction was granted. Thereafter, an IA was filed for vacating the same. IA-I was filed by the Plaintiff seeking for temporary injunction. IA- II was filed seeking temporary injunction to restrain the Defendant from alienating the suit schedule properties. IA-III was filed seeking for police protection. IA-IV was filed by the Defendant seeking to vacate the injunction granted in terms of IA-II. IA-V is filed by the Defendant seeking an order to vacate an ex-parte injunction. The learned Judge, after hearing the parties has chosen to dismiss the I As I to III filed by the Plaintiff and allowed I As IV and v. filed by the Defendant. The learned Judge vacated the injunction. Learned Judge in the order ordered impounding of the sale agreement dated 8.3.1998. He further ordered registration of miscellaneous case against the Plaintiff. This order is challenged in these two appeals. Records are called for and the records are made available.

Sri G. Balakrishna Shastri, learned Counsel argues that subsequently another suit has been filed in O.S. No. 206 of 2001 for redemption by the Defendant. His further argument is that the facts of the case require re-look of the order in question. The Counsel says that the impounding of the documents would not arise at this stage and the decision of the learned Judge has prejudged the whole issue. In so far as registration of the case is concerned, the Counsel says that the facts did not warrant any such direction. He relies on certain Judgments in his favour.

Per contra, Sri. R. Gopal, learned Counsel argues that a case of fraud has been played on his client. He says that taking advantage of the friendship between the parties, a false case has been foisted against him and the learned Judge rightly, according to him, has chosen to reject the I As in addition to impounding and in addition to registration of the case. He wants the order to be confirmed.

After hearing, I have carefully perused the material on record. Learned Judge after taking into consideration the material facts has chosen to vacate the injunction granted by the Court. He has noticed the various facts and thereafter by a detailed order he has chosen to hold that a case was not made out by the Counsel for continuation and the entire injunction. At the time of arguments, Sri. Shastri, learned Counsel invites my attention to a pending suit in O.S. No. 206 of 2001 filed by the Defendant for redemption of mortgage. In the given set of facts and in particular the case in O.S. No 206 of 2001, it is unnecessary to continue the injunction on the peculiar facts of this case. Therefore, the vacation of injunction is confirmed by me.

Learned Judge in the impugned order has chosen to impound the sale agreement. Impounding is serious in character. The Karnataka Stamp Act in particular Section 34 provides for impounding the document. The learned Judge in the impugned Judgment notices the deficiency in the matter of Stamp duty. Under those circumstances, he passed an order of impounding. In the light of the argument of the parties, I have perused the material on record. There is a contention and counter contention with regard to the forgery of the document in question. In fact, the learned Judge has chosen to order registration of a miscellaneous case against the Plaintiff after noticing certain features in the case on hand. If the document is found to be a forged one, the non payment of duty of payment of duty cannot validate the document obtained by fraud. Therefore, unless an appropriate finding is available with regard to the document, the impounding at this stage is unnecessary according to me. Therefore, the direction in so far as impounding is concerned is set aside. But at the same time, I deem it proper to reserve liberty to the parties to take up the contention of insufficient additional stamp duty with regard to validity of the document. That question is to be considered at the appropriate time.

In so far as registration of the case is concerned, Sri. Shastri, learned Counsel argues that this again is a pre-judged issue. According to him, the initiation of proceedings is done in accordance with Section 340 of Code of Criminal Procedure A detailed procedure is prescribed. According to the learned Counsel the given set of facts would not warrant any registration at this stage.

Per contra, Sri. Gopal, learned Counsel only says that a case is made out for registration.

Section 340 provides for a procedure after preliminary inquiry with regard to an offence u/s 195(1)(b) of the Act.

Section 195(1)(b) provides for an offence punishable under any one of the following Sections of IPC. 193-196, 199, 200, 205 to 211 and 228. Section 195 deals with public servants, for offences against public justice and for offences relating to documents. Section 195 r/w 340 provides for purity in justice system. Section 340 provides for a preliminary enquiry. Only after a finding in terms of Section 340 a complaint would be made in writing and then the same would be sent to the Magistrate. In the light of sufficient protection available u/s 340 it cannot be said that the learned Judge has pre-judged the issue as sought to be made out by Sri. Shastri, learned Counsel. Section 340 provides for an enquiry and only on an enquiry, if the learned Judge thinks it necessary after recording the findings, he can make a complaint and send it to the Magistrate. This cannot be diluted as otherwise justice system would be polluted by false document. The object as I mentioned earlier is to maintain purity in justice system. Pre-judge argument does not appeal to me.

Sri Shastri, learned Counsel however contends that if such registration is permitted then in every case the Court may have to register a case. Each case depends on the facts of that case. In the case on hand, prima facie the learned Judge has found some discrepancies and therefore, he has rightly, in my view, has chosen to pass an order of registration of a case. Therefore, I am unable to accept the argument of Sri. Shastri, learned Counsel.

In this regard, Sri. Shastri, learned Counsel relies on 1925 Lah 323 : Dr. Manjunath Vs. N.S. Nagarathna, & S. H. Taralagatti Vs. Director General, All India Radio, .

1925 Lah 323 (Harnam Singh and Anr. v. Atri abd itgers) stands on a different footing. That was a case of a final disposal and there was also a case of pendency in the Appellate Court. That was also a case with regard to stay of the proceedings. That case is not helpful to the Appellant.

S. H. Taralagatti Vs. Director General, All India Radio, provides for consideration of issue of process in Section 195(1)(b) of Code of Criminal Procedure It is again a case with regard to initiation of the proceedings. In the case on hand, the learned Judge is yet to give a finding and yet to report to the Magistrate. Therefore ILR 1997 Kar 3084 is wholly inapplicable to the given set of facts.

None of these cases apply to an order being passed in the matter of registration. Therefore, I am unable to accept the argument of Sri. Shastri, learned Counsel. His argument with regard to registration of a case is rejected. In the result, these appeals are partly allowed. The vacation of injunction is confirmed with the above findings.

Before parting with this case, I deem it proper to observe that any findings of the learned Judge or this Court is not to be taken as any finding on the merits of the matter. These findings are only for the purpose of consideration of the interim application.

The office is to send the records to the Trial Court and the documents are to be sent in a sealed cover to the Learned Judge. No.