Champalal Jain and Another vs Thattikunda Rajamannar Trust and Others

S.S. Subramani, J.—These Appeals are by the plaintiffs in C.S. No. 1031 of 1994, on the file of this Court. O.S.A. No. 4 of 1995 is

against the order in Original Application No. 773 of 1994, and O.S.A. No. 5 of 1995 is preferred against the order in Original Application No.

774 of 1994.

The suit filed by the appellants is for a permanent prohibitory injunction restraining the respondents herein or their men or agents from

dispossessing the plaintiffs from their occupation of their portions in the ground floor and in the first floor at No. 124, N.S.C. Bose Road, Madras-

79.

The relevant facts as set out in the plaint are as follows:

According to the plaintiffs they are sub-tenants who cause into occupation of the premises in the year 1978 and 1972 respectively. According to

them, they have taken those premises from the 11th defendant in the suit. The 1st defendant is the landlord. According to them, they came into

occupation of the premises in their possession on the basis of authorised sub lease and they are entitled to be in possession of the same until they

are dispossessed in accordance with law. It is contended by them further, that the 1st defendant has sold the property to defendants 2 to 10. It is

covered by six sale deeds. All these pertain to undivided shares of the land and building. It is further averred that by calculating the area covered

by these sale deeds, defendants 2 to 10 have purchased only a built up area of 1,800 sq.ft. in the ground floor out of a total extent of 5,800 sq.ft.

and 1,400 sq.ft. in the first floor out of 5,800 sq.ft. therein. It is also stated by them that in the second floor only 1,000 sq.ft. has been sold out of

4,000 sq.ft. On the basis of the said calculation the plaintiffs contend that the area in their occupation cannot be said to have been purchased by

defendants 2 to 10 or until it is finally determined as to the area purchased by them they are not liable to be dispossessed. It is further stated that

defendants 2 to 10 filed two Rent Control Petitions, viz., R.C.O.P. Nos. 776 of 1992 and 3297 of 1991 against the 11th defendant and they have

obtained an ex parte order of eviction. The same, according to the plaintiffs, is collusive and since they are in occupation of the premises as

authorised sub lessees, they are not liable to be evicted from these premises. It is also stated in the plaint that these plaintiffs have filed O.S. No.

9180 of 1992 and O.S. No. 4773 of 1994, on the file of the VIII Assistant City Civil Judge, Madras, seeking certain reliefs but subsequent to the

filing of the above suits, they came to know that the sale deeds in favour of defendants 2 to 10 are not for the entire area, but only for portions of

the building. Since defendants 2 to 10 are owners of only limited extent, they have no locus standi or title to the extent of 5,800 sq.ft. in the ground

floor or 5,800 sq. ft. in the first floor. So, the eviction ordered by the Rent Controller is invalid. It is on the above grounds they seek permanent

injunction. Along with the suit they filed O.A. Nos. 773 and 774 of 1994. In O.S. No. 773 of 1994, they wanted an injunction restraining the

defendants 2 to 10 from dispossessing them pursuant to the order passed in R.C.O.P. No. 3297 of 1991 on the file of the X Small Causes Court,

Madras. In O.A. No. 774 of 1994, they sought a similar relief namely, an injunction from being dispossessed from the premises pursuant to the

order passed in R.C.O.P. No. 776 of 1992 on the file of the same court.

In the Original Applications, the 1st defendant who is the owner, filed a common counter affidavit denying the allegations in the plaint. According

to the owner (Trust), it sold the entire property to defendants 3 to 10. Because the building is in the occupation of tenants, only approximate area is

given. But a reading of the description will show that the entire property and building have been conveyed to defendants 2 to 10 and they did not

retain any portion of the property for themselves. The 1st defendant (Trust) wanted dismissal of those two applications.

Defendants 2 to 10 also filed a common counter-affidavit. The main contention put forward by them is that the injunction applications have been

filed without any bona fides and also suppressing material facts. They also denied the claim of the petitioners that they are authorised sub-tenants.

According to them, the petitioners have no right to any portion of the building and they are not in possession on the basis of any valid lease deed.

They also contend that as per the six sale deeds, the entire land and building has been convened to them. Subsequent to the sale deed, they filed

R.C.O.P. No. 3183 of 1991 before the Rent Controller, for fixation of fair rent. Thereafter, they filed R.C.O.P. No. 3792 of 1992 against the

11th defendant in this case on the ground that he has unauthorisedly sub-let the building. An ex pane order was passed in that case even though the

11th defendant entered appearance and filed counter. They also filed another Application for eviction as R.C.O.P. No. 776 of 1992 on the ground

that the 11th defendant has committed wilful default in not paying the rent. In that proceeding also, an eviction order was passed. These petitioners

have no locus standi to file these applications. In R.C.O.P. No. 3297 of 1991, these plaintiffs filed M.P. No. 687 of 1992, for getting themselves

impleaded. That application was dismissed. Against the said order, these petitioners have filed R.C. A. No. 433 of 1994 and have obtained an

order staying the execution. The said order is still in force. In R.C.O.P. No. 776 of 1992, these petitioners filed M.P. Nos. 1057 and 1056 of

1992, for getting themselves impleaded and to declare the execution petition as in executable as against them. The said application was filed u/s 47

of the Code of Civil Procedure. The said application was also dismissed, against which these petitioners have filed R.C. A. Nos. 714 and 716 of

1994, and obtained an order staying all the proceedings.

It is also alleged by them that these petitioners along with others filed O.S. No. 9180 of 1992 before the City Civil Court, Madras for a

permanent injunction restraining these respondents from evicting them. Even though interim order was passed in I.A. No. 19222 of 1992, the same

was later on vacated. Another I.A. namely I.A. No. 1903 of 1994 was also filed by these petitioners for an injunction restraining the defendants

from interfering with the plaintiffs'' possession, and the injunction order was also vacated as per order dated 30.8.1994.

There was also another suit viz. O.S. No. 4773 of 1994 filed by the very same plaintiffs for a declaration that the eviction order passed in

R.C.O.P. No. 776 of 1994 is collusive, and for a permanent injunction from dispossession. In that suit, they filed I.A. No. 11041 of 1994. An

interim order was passed on 1.7.1994, which was later on vacated as per order dated 30.8.1994.

Other applications were filed by the very same petitioners as Application Nos. 1891 of 1993 and 262 of 1993 in O.P. No. 91 of 1969, for

setting aside the sale deeds in favour of these respondents. Both these applications were also dismissed. The affidavits filed in support of the

Applications do not make mention of any of the orders passed on the Interlocutory Applications. Hence the respondents contend that the

petitioners have filed these petitions suppressing material facts and, therefore, not entitled to seek the discretionary relief of injunction. They wanted

a dismissal of both these applications.

The learned single Judge who heard the original applications, dismissed the same. While dismissing the applications the learned Single Judge,

held, ""....They have exhausted all their remedies by filing suits one after another, and apparently they thought by filing this suit in this Court they can

get the injunction against the purchasers and they can be in possession of the property till the disposal of the suit. I am satisfied that the plaintiffs

have not made out any case at all for the grant of injunction and they are not entitled to any relief. Accordingly, Application No. 773 for interim

injunction is dismissed. Application No. 774 of 1994 for injunction restraining the respondents from dispossessing the applicants pursuant to the

decree in R.C.O.P. No. 776 of 1992 is also dismissed. No costs."" It is against this order of the learned single Judge the plaintiffs/petitioners have

filed these Appeals.

We have narrated the facts, and it is clear that the petitioners/appellants have moved from one court to another, for getting the same relief.

They have been defeated in all those proceedings. Either in the plaint or in the affidavits filed in support of the applications for injunction, they have

not stated anything about the previous proceedings which they have initiated, or the results thereof. In this suit the only contention that is put

forward is that the sale deeds do not cover the area in their occupation and the built-up area as per the sale deeds is only in a small portion.

According to the appellants they came to know about the contents of the sale deeds only at the time when they instituted this suit. The applications

are also lacking in good faith can be seen ""from the documents filed in this case.

Long before the institution of these proceedings, the petitioners themselves filed Application No. 18 j 1 of 1993 in O.P. No. 91 of 1969. In

O.P. No. 91 of 1969, order was passed probating the will executed by the owner of the property whereby he created a Trust. The 1st defendant

in the suit is a trust. It is that trust which executed the sale deeds in favour of defendants 2 to 10. Application No. 1891 of 1993 was filed on

6.4.1993 for setting aside the sale deeds. In paragraph 7 of the affidavit filed in support of that application, it is specifically stated that these

petitioners came to know about the sale deeds and the contents thereof. They wanted the sale deeds to be set aside on the ground that being a

public trust, the documents should have been executed after publication. In paragraph 7 of the affidavit, it is stated. Secondly as per the recitals in

the sale deed, it is said that the income that is being derived from the leasing of the property is very meagre."" So, from the above statement, it is

clear that these appellants were in possession of the sale deeds and they have come to know about the recitals in those documents long thereafter,

in the present suit they have said that they were not aware of the contents of the documents, and that they came to know about them only when

they instituted this suit. This suit was instituted on 19.8.1994, nearly one year later. That is the only change that is made in this suit, and the

allegation therein is absolutely false.

It is not disputed by the learned Counsel for the appellants that they initiated various proceedings for stalling the execution of the proceedings in

R.C.O.P. No. 776 of 1992 and R.C.O.P. No. 3297 of 1991. In none of the suits, they were successful. Their counsel was not in a position to

explain why these facts were not disclosed in the affidavit or in the injunction application.

The other ground that is averred in the plaint and also in the applications is that the 11th defendant has colluded with defendants 2 to 10 who

remained ex pane in the rent control proceedings and has suffered an order which is detrimental to the petitioners herein. Merely because the 1th

defendant remained ex pane, no inference can be drawn that it is collusive. In fact, no materials are placed before us to show that an order was

obtained due to collusion.

In this connection, the rights of the petitioners are also to be considered. According to the averments in the plaint both these appellants came

into occupation of the premises in 1978 and 1972 respectively arid they are in possession on the basis of the authorised sub lease. For the said

purpose, they rely on a copy of a letter dated 27.12.1979. It is set out in page 3 of the typed set. We have gone through the said letter. It is only

an offer by the landlords. Whether it was accepted by the 11th defendant is not in evidence. Even if we take that letter as true and genuine, the

same also cannot help the appellants herein. As stated earlier, the appellants claimed themselves to be in possession of the land and building from

1978 and 1972, respectively, But the letter on which the petitioners rely on is dated 27.12.1979. But we do not find anything in that letter that the

occupation of these petitioners was recognised by the landlords. When all the respondents dispute the right of the petitioners as authbrised sub-

lessees, there must be something on record to show that their sub-lease was recognised by the 1st respondent. We do not find anything in

evidence to support the claim of the appellants. For that reason also, we are not inclined to interfere with the order of the learned Judge.

In this connection, it is better to consider the law relating to the grant of injunction and the power of the appellate court to interfere in the

discretion exercised by the learned Judge.

In Dalpat Kumar and Another Vs. Prahlad Singh and Others, , which was a case similar to the one on hand, their Lordships of the Apex Court

have exhaustively dealt with the entire law on the subject. That is also a case where a person claiming to be a tenant wanted an injunction against

being dispossessed. Various proceedings were initiated by him, and at one stage of the proceedings, sought to set aside the order of two courts.

The High Court of Rajasthan allowed the injunction. The said order was questioned before the Apex Court. The Apex Court, in paragraphs 4 and

5 of the said Judgment, stated as follows:

Order 39, Rule 1(e) provides that temporary injunction may be granted where in any suit, it is proved by the affidavit or otherwise that the

defendant threaten to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to the property in dispute in the suit, the court may

by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing or dispossession of

the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the

suit or until further orders. Pursuant to the recommendation of the Law Commission Clause (c) was brought on statute by Section 86(1)(b) of the

Amending Act 104 of 1976 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power u/s 151,

C.P.C. to grant ad interim injunction against dispossession. Rule 1 primarily concerned with the preservation of the property in dispute till legal

rights are adjudicated, injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature

of preventive relief to a litigant to prevent future possible injury. In other words, the court, on exercise of the power of granting ad interim injunction

is to preserve the subject-matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief.

The exercise thereof is subject to the court satisfying that, (1) there is a serious disputed question to be tried in the suit and that an act, on the facts

before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant, (2) the court''s interference is necessary to

protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at

trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than

that would be likely to arise from granting it. 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 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 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.

In Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others, , also in paragraphs 30 and 31, their Lordships of the

Supreme Court indicated as to when an order of injunction should be granted. The relevant portion reads as follows:

A party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such

discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an

order of injunction an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction

is, thus to maintain the status quo. The court grants such relief according to the legal principles ex-debito justitiae. Before any such order is passed

the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit

and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. Further the court should be always

willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without

following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or

perpetuate a wrong committed by a person who approaches the court.

While dealing with the powers of the appellate court, to interfere with the exercise of the discretion of the trial court, it was held in Uttar

Pradesh Co-operative Federation Ltd. Vs. Sunder Brothers of Delhi, , thus:

Where the discretion vested in the court u/s 34 has been exercised by the lower court, the appellate court would be slow to interfere with the

exercise of their discretion. In dealing with the matter raised before it at the appellate stage, the appellate court would normally not be justified in

interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it may come to

a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a Judicial manner the fact that the appellate court

would have taken a different view may not justify such interference with the trial court''s exercise of discretion. If it appears to the appellate court

that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts, then it would be open to the

appellate court to interfere with the trial court''s exercise of discretion.

It was a case u/s 34 of the Arbitration Act. But it applies to all cases where discretionary orders are passed.

In Firm Ishardass Devichand and Anr. v. R.B. Parkashchand and Anr. AIR 1969 S.C. 338, their Lordships refused to interfere with the

discretion exercised by the trial court on the ground that the trial court has not exercised its power capriciously or arbitrarily.

In Mysore State Road Transport Corporation Vs. Mirja Khasim Ali Beg and Another, , in paragraph 18 (at page 755), it was stated thus:

This takes us to second limb of the fourth contention raised on behalf of the appellants. While it is true that the relief of declaration is discretionary,

it is well settled that it is only if the discretion is not exercised by the lower court in the spirit of the statute or fairly or honestly or according to the

rules of reason and justice, that the order passed by the lower court can be reversed by the superior court. Reference in this connection may

usefully be made to a decision of the Privy Council in Charles Osenton and Company v. Johnton, 1942 A.C. 130, where the legal position was

succinctly stated as follows:

There remains the question whether, assuming that in the circumstances of this case Tucker, J., had jurisdiction to make the order of reference, his

conclusion must stand on the ground that it was reached in the exercise of his discretion and that the exercise of such discretion should not be

interfered with on appeal. So the respondent contends while the appellants urge that even if the discretion to make the order existed, it was

wrongly exercised in view of the gravity of the charges made against them of the impossibility of appeal from an official referee''s finding of fact,

and in view of the practicability of the case being tried before a Judge, without a jury. The law as to the reversal by a court of appeal of an order

made by the Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well

settled principles in any individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion

already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have

exercised the original discretion had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has

been a wrongful exercise of discretion in that no weight or no sufficient weight has been given to relevant consideration such as those urged before

us by the appellant, then the reversal of the order on appeal may be justified. This matter was elaborately discussed in the decision of this House in

Evans v. Bartlam 1937 A.C. 473, where the proposition was stated by my noble and learned friend Lord Wright, as follows: It is clear that the

court of appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong.

But the court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him the court of appeal cannot review his

order unless he is shown to have applied wrong principle. The court must if necessary examine anew the relevant facts and circumstances in order

to exercise a discretion by way of review which may reverse or vary the order. Otherwise, in interlocutory matters, the judge might be regarded as

independent of supervision. Yet an interlocutory order of the Judge, may often be of decisive importance on the final issue of the case and one

which requires a careful examination by the Court of Appeal. Thus in Gardner v. Jay (1885) 29 Ch.D. 50, Bowen, J. in discussing the discretion of

the Judge as regards mode of trial says: ""That discretion, like other judicial discretion must be exercised according to commonsense and according

to justice and if there is a miscarriage in the exercise of it, it will be reviewed.

In Wander Ltd. and Another Vs. Antox India P. Ltd., , while dealing with a case under Copyright Act, their Lordships of the Apex Court held

thus:

The appellate court will 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. Appellate

court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it

had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court

reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial

court''s exercise of discretion.

This Court had occasion to consider the powers of the appellate court while interfering with the discretionary orders of the trial Judge. In

Proctor and Gamble Company v. Christian Hoden (India) Private Limited (1989) 1 L.W. 54, a Division Bench of this Court to which one among

us (Srinivasan, J.) was a party said thus:

The principles governing the circumstances in which the appellate court can interfere with a discretionary order of the trial court granting or refusing

injunction were laid down by Lord Diplock in Hadmer Productions Limited v. Hamilton and the other members of the house agreed with him. They

were reiterated by him in Gordon Cottage Limited v. Milk Marketing Board. The following passage, in the later judgment is relevant:

In an expedited appeal by the company against the Judge''s refusal to grant an interlocutory injunction, the Court of Appeal 1982 Q.B. 1114

delivered an extempore judgment on May 18, 1982, shortly the publication in the Weekly Law Reports (1988) 2 W.L.R. 322 of the decision of

this House in Hadmer Productions Limited v. Hamilton, in which this house took occasion at page 220, to point out that in appeal from the Judge''s

grant or refusal of an interlocutory injunction an appellate court, including your Lordships'' house, must defer to the Judge''s exercise of his

discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion

differently. The function of an appellate court is initially that of review only. It is entitled to exercise an original discretion of its own only when it has

come to the conclusion that the Judge''s exercise of his discretion was based on some misunderstanding of the law or of the evidence before him,

or upon an inference that particular, facts existed or did not exist, which although it was one that might legitimately have been drawn upon the

evidence, that was before the Judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal or

upon the ground that there has been a change of circumstances, after the judge made his order that would have justified his according to an

application to vary it. Since reasons given by Judges for granting or refusing interlocutory injunctions may sometimes, be sketchy there may also be

occasional cases where even though may no erroneous assumption of law or fact can be identified the judge''s decision to grant or refuse the

injunction is so abhorrent that as it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially could have

reached it. It is only if and after the appellate court had reached the conclusion that the Judge''s exercise of his discretionment be set aside for one

or other of these reasons, that it becomes entitled to exercise an original discretion of its own.

Taking into consideration all the above facts, we are of the view that the learned judge has properly exercised his discretion in refusing to grant

the injunction. The petitioners have not come to court with clean hands. There is no prima facie case so as to get the discretionary relief sought for.

The petitioners have not proved any of the ingredients under Order 19, Rules 1 and 2, C.P.C. The respondents 2 to 10 are seeking eviction

pursuant to an order validly obtained by them in their favour. The action taken to get possession of property on the basis of a validly obtained,

order cannot be said to be unlawful. The petitioners have not proved any irreparable injury. The balance of convenience is in favour of the

respondents 2 to 10, who have purchased the property for valuable consideration. The conclusion reached by the trial Judge cannot be said to be

capricious or arbitrary. It is supported by the Rules of reason and justice. Since the trial Judge has acted fairly and has not ignored the relevant

facts, it is not proper on our part to interfere with that discretion.

In the result, we dismiss the O.S. Appeals and also the original Applications, with costs. Counsel''s fee Rs. 3,000.

We have already stated that the appellants herein have filed R.C.A. Nos. 443 of 1994, 714 and 716 of 1994 and have also obtained interim

orders in their favour. Nothing in this judgment shall prejudice them in seeking appropriate remedies in those proceedings, if they are entitled to in

law.