Fakirasab vs Syedusab and Others

V.G. Sabhahit, J.—This appeal by the plaintiffs in O.S. No. 108/03 on the file of the Civil Judge (Sr. Dn.) Jamkhandi, is directed against the order passed on LA. I filed under Order 39 Rule 1 and 2 of CPC for temporary injunction.

The essential facts of the case leading up to this appeal with reference to the rank of the parties before the Tribunal are as, follows:-

The plaintiff has filed the suit for the purpose of his alleged 173rd share in Sy. No. 627/2 measuring 7 acres and 31 guntas as described in the schedule of the plaint contending that the plaintiffs and defendants were one family members, the suit property was their ancestral property and the same has been acquired and the Acquisition Officer has deposited the compensation amount. It is averred that the conferment of occupancy rights in favour of Rajesah father of defendants by the Land Tribunal in respect of the schedule property was on behalf of the members of the unit and therefore, the plaintiff is entitled to 1/3rd share in the compensation that is deposited in LAC No. 305/1997 pertaining to the acquisition of the suit schedule property Sy.No. 627/2 measuring 7 acres and 31 guntas. In the said suit, an application was filed under Order 39 Rule 1 and 2 seeking an order of temporary injunction to restrain defendant Nos. 1 and 2 from receiving compensation amount in Execution Petition No. 226/02 averring that defendants are likely to withdraw the amount that is deposited by the LAO in the said Execution Petition in respect of the acquisition of the schedule property and if the defendant Nos. 1 and 2 are permitted to withdraw the amount, the plaintiff would be put to irreparable loss and an order of temporary injunction be granted. The same was resisted by defendants 1 and 2. The defendants 3 and 4 have been placed ex-prate before the Trial Court. It is contended by defendant Nos. 1 and 2 that the father of the defendant Nos. 1 and 2 Rajesah was the individual tenant of the land and occupancy rights has been accordingly granted in his name on 13.10.1981 and Form No. 10 also has been issued and thereafter, land has been acquired and it was defendant Nos. 1 and 2 who made application for enhancement of compensation and thereafter, in the appeal filed by the State also they filed cross-appeal and compensation was enhanced and the plaintiff is not having any right or interest in the suit schedule property and therefore, the defendant Nos. 1 and 2 cannot be restrained from withdrawing the amount as the plaintiff would not be put to any loss or hardship if an injunction is not granted.

The Trial Court, after considering the material on record, by its order dated 16.4.04 held that the plaintiff has failed to make out a prima facie case for grant of temporary injunction and ultimately ordered that defendant Nos. 1 and 2 shall execute indemnity bond with bank guarantee for Rs. 10,00,000/- undertaking to obey the final verdict in the suit in respect of the compensation amount if they want to withdraw the amount that is in deposit in E.P. No. 226/02. Being aggrieved by the said order, the plaintiff has preferred this appeal. Defendant Nos. 1 and 2 have not preferred any appeal or cross-objections.

Notice of the appeal was issued to the respondents and they have appeared through their counsel. I have heard the learned Senior Counsel appearing for the appellant and the learned Senior Counsel appearing for the respondents 1 and 2 and also the learned Counsel appearing for respondents 3 and 4. Learned Senior Counsel appearing for the plaintiff submitted that the impugned order passed by the Trial Court refusing to grant an order of temporary injunction restraining defendants 1 and 2 from withdrawing the amount in deposit in E.P. No. 226/02 is perverse and arbitrary and the same is liable to be set aside. Learned Counsel submitted that the Trial Court was not justified in. holding that since the parties are Mohammedan, the rule pertaining to Hindu Joint Family cannot be applied since there is no presumption regarding possession of joint family properties. Learned Senior Counsel submitted that the Trial Court has overlooked the provisions of Section 2(17) of the Land Reforms Act wherein joint family has been defined and the Trial Court has committed an error in directing the defendant Nos. 1 and 2 to furnish indemnity bond with bank guarantee for Rs. 10,00,000/- by calculating l/3rd share of the plaintiff within the amount in deposit in E.P. No. 226/02. Learned Counsel further submitted that defendant Nos. 1 and 2 have already withdrawn an amount of Rs. 37,02,580/- on 6.3.1999 and Rs. 4,57,662/- on 16.12.2000 and the balance amount which they are trying to withdraw and the amount that is now deposited would be less than 173rd of the compensation awarded by the LAO and enhanced on reference application and therefore, the order passed by the Trial Court is liable to be set aside. He also submitted that there is a direction by this Court in MFA No. 1128704 disposed of on 19.3.04 to the Trial Court to dispose of the suit before the end of December, 2004 and therefore, the plaintiff is entitled to an order of temporary injunction restraining the defendant Nos. 1 and 2 from withdrawing the amount in deposit in E.R No. 226702. Learned Counsel further submitted that this Court has jurisdiction to interfere with an order that is perverse and arbitrary and has relied upon the decision of the Supreme Court in the case of '' Laxmikant V. Patel Vs. Chetanbhat Shah and Another, , whereby, the Hon''ble Supreme Court has laid down as follows:-

"17. We are conscious of the law that this Court would not ordinarily interfere with the exercise of discretion in the matter of grant of temporary injunction by the High Court and the Trial Court and substitute its own discretion therefore except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the order of the courts under scrutiny ignores the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of jurisdiction 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 soley 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. However, the present one is a case falling within the well accepted exceptions. Neither the Trial Court nor the High Court have kept in view and applied their mind to the relevant settled principles of law governing the grant or refusal of interlocutory injunction in trade mark and trade name disputes. A refusal to grant an injunction in spite of the availability of facts, which are prima facie established by overwhelming evidence and material available on record justifying the grant thereof, occasion a failure of justice and such injury to the plaintiff as would not be capable of being undone at a later stage. The discretion exercised by the Trial Court and the High Court against the plaintiff, is neither reasonable nor judicious. The grant of interlocutory injunction on the plaintiff could not have been refused, therefore, it becomes obligatory on the part of this Court to interfere."

Learned Counsel has also relied upon a decision of the Supreme Court in the case of '' Abubakar Abdul Inamdar (dead) by LRs. and others Vs. Harun Abdul Inamdar and Others, wherein it is held that even in respect of persons governed by Shariat law, where the property is held by a group of persons, they represent as co-heirs. He claimed that defendants also have a share in the properties having regard to the fact that they should be regarded as a group of members bound as members of a joint family as in Hindu Law and the eldest of them could be regarded as their representative and such group would be entitled to claim their respective shares in accordance with Shariat law. No distinction can be made in position from Hindu law. He also relied upon the decision of this Court in the case of LAKSHMINARASIMHAIAH v YALAKKI GOWDA, 1965(1) KLJ 370 wherein the power and scope of appeal under Order 43 against an order passed on interlocutory application under Order 39 Rule 2 has been considered. He has also relied upon the decision of the Division Bench decision of this Court in Patel Enterprises Vs. M.P. Ahuja, wherein it is held that even in appeal falling under Order 43 of the Code of Civil Procedure, application for production of additional evidence under Order 41 Rule 27 of CPC is maintainable.

The learned Senior Counsel appearing for the defendant Nos. 1 and 2 submitted that the order passed by the Trial Court is justified having regard to the material on record. The defendants 1 and 2 are the sons of Rajesah and the Trial Court has rightly held that having regard to the fact that occupancy right was conferred upon Rajesah individually by order dated 13.10.81 and Form No. 10 has also been issued and it was defendant Nos. 1 and 2 who participated in the acquisition proceedings and made an application for reference for enhancement of compensation and in the appeal No. 4853/98 filed by the State, they have filed cross appeal No. 27/98 as well and got the compensation enhanced and at this stage, when the execution petition numbered 226/02 for execution of the judgment and award passed in respect of enhanced compensation is pending, a frivolous suit has been filed only to protract the proceedings and deny the fruits of judgment awarded in favour of defendant Nos. 1 and 2. Learned Counsel has also relied upon the decision of the Yalakki Gowda''s case referred to above and submitted that when the Trial Court has exercised discretion in rejecting the application for temporary injunction, this Court cannot substitute its views by exercise of power under Order 43 of CPC as discretion exercised by the Trial Court is a judicious and reasonable one and is not capricious or arbitrary.

I have heard the learned Counsel appearing for respondent Nos. 3 and 4 who are defendant Nos. 3 and 4 in the suit. Learned Counsel submitted that on the date of the order impugned in this appeal ie., 16.4.04, defendant Nos. 3 and 4 have been placed ex- parte. However, since certain changed circumstances have taken place, an application to set aside the ex-prate order was filed and the same has been allowed by order dated 2.7.04. Now the defendant Nos. 3 and 4 have also filed the written statement and have sought for a decree for 1/3rd share by paying Court fee and they have also filed an application under Order 39 Rule 1 and 2 to restrain defendants 1 and 2 from withdrawing the amount in deposit in E.P.No. 226/02.

Having regard to the contentions urged by the learned Counsel appearing for the parties, the points that arise for determination in this appeal are:

Whether the impugned order passed by the Trial Court is capricious and arbitrary and calls for interference in this appeal?

What order?

I answer the above points for determination as follows:

Point No. l: in the affirmative

Point No. 2 : as per the final order for the following.

REASONS

It is well settled that while considering an application for grant of injunction under Order 39 Rules 1 and 2 CPC, the Court will be considering the case at the earliest point of time in the time frame and a detailed enquiry or mini trial is not expected to be undergone while considering the said application and the application will be decided on the basis of the prima facie case and broad probabilities, the Court would restrain from making any observation on the merits of the case, which would prejudice the case of the parties. The power of the Appellate Court under Order 43 Rule 1 CPC is also well settled in view of the observations of the Hon''ble Supreme Court in LAKSHMIKANT V. PATEL''S case referred to above. When the material on record is considered in the light of the above said observations and the decisions relied upon by the learned Counsel appearing for the parties, it is clear that the suit of the plaintiff is for 1/ 3rd share in the compensation awarded towards the acquisition of the suit schedule property, which according to the plaintiff, belongs to the plaintiff and the defendants. According to the plaintiff, the plaintiff represents a group of persons who are entitled to succeed to the property of Imam Sab. In view of the decision of the Hon''ble Supreme Court in Abubakar Abdul Inamdar (dead) by LRs. and others Vs. Harun Abdul Inamdar and Others, referred to above, it is clear that even though the parties are governed by Muslim law, when the brothers and sisters as co-heirs are claiming shares in the properties on the basis of inheritance, the claim is sustainable and though the claimants may not be members of a joint family as in Hindu Law, they would be a group of people and eldest of them can be regarded as their representative. The definition of ''joint family'' under the Karnataka Land Reforms Act, also shows that u/s 2(17), "joint family" means in the case of persons governed by Hindu law, an undivided Hindu family, and in case of other persons, a group or unit the members of which are by custom joint in estate or residence. Therefore, at this stage, having regard to the averments made in the plaint that the plaintiff represents a group of persons i.e, co-heirs, who have succeeded to the property of Imam Sab, it cannot be said that the suit is vexatious or perverse. The Trial Court was not at all justified in proceeding on the basis that the provisions of Hindu law pertaining to jointness and presumption therein would not arise. Further, it is also clear from the material on record that the prayer that is made in the application for Temporary Injunction is to restrain the defendants 1 and 2 from withdrawing the amount that is deposited in Execution petition No. 226/2002. The said amount represents the compensation in respect of the schedule property, which has been acquired. The material on record clearly shows that the amount that is in deposit in Execution Petition No. 226/2002 is not the only amount that is awarded in L.A.C. No. 305/1997. The proceedings in Execution Petition No. 17/1999 shows that in respect of the same award, an amount of Rs. 37,02,580A has been withdrawn by defendants 1 and 2 on 6.3.1999 and further, the proceedings in LAC Misc. Application No. 90/98 would show that in respect of the acquisition of the schedule property, an amount of Rs. 4,57,662/- has been withdrawn by defendants 1 and 2 on 16.12.2000, as is clear from the order sheets in the respective petitions and the amount that is now lying in deposit in execution petition No. 226/2002 amounting to Rs. 29,00,554/- is only the balance amount that is payable under the award in view of the enhancement of compensation. It is well settled that while considering an application for grant of temporary injunction, the right and need of respective parties should be considered and the schedule property should also be protected and preserved so that if ultimately, the plaintiff who is the initiator of the suit, succeeds in the suit, he would not be put to irreparable and un-commensurable loss. The object is to keep the property in status quo so that it would be available to the plaintiff if he ultimately succeeds in the suit. It is clear from a perusal of the order passed by the Trial Court itself that the Trial Court also felt that it is necessary to protect the interest of the plaintiff by ordering that in respect of the amount that is available in the execution petition No. 226/2002, in respect of l/3rd of the amount ie., approximately about Rs. 10,00,000/- defendants 1 and 2 should be directed to furnish bank guarantee. However, the Trial Court failed to note that the amount that is now available in Execution Petition No. 226/2002 is not the only amount that is awarded as compensation for acquisition of the suit schedule property as it is clear from the valuation made in the suit itself that the suit is valued at Rs. 70,00,OQO/- for the purpose of jurisdiction and what is sought for in the suit is l/3rd share in the compensation that is awarded in L.A.C. No. 305/1997, which would mean the compensation awarded in respect of the schedule property i.e., about Rs. 70,00,000/- which is calculated on the basis of the proceedings in the order sheets in the execution petition No. 17/99 and LAC Misc. Application No. 90/98, certified copies of which are produced by the learned Counsel appearing for the appellant. Further, it is clear that subsequent to passing of the order, defendants 3 and 4 had also filed an application for setting aside the exparte order passed against them and they have filed written statement claiming l/3rd share in the compensation awarded under the said L.A.C. No. 305/1997 and they have also filed an application under Order 39 Rules 1 and 2 CPC, to restrain defendants 1 and 2 from withdrawing the amount. Be that as it may, it is clear from the above said material on record that the order passed by the Trial Court holding that no prima facie case is made out for grant of injunction is perverse and arbitrary as it is not based upon the settled principles regarding the grant of temporary injunction and the material on record. It is also clear from the order passed by the Trial Court that the Trial Court has proceeded on the basis that the whole amount of compensation that is awarded in L.A.C. No. 305/1997 is only Rs. 29,00,554/- which is available in Execution Petition No. 226/2002. The Trial Court has overlooked the fact that the prayer of the plaintiff in the suit is for 1/3rd share in the entire compensation amount awarded in L.A.C. No. 305/1997 and the suit has been valued at Rs. 70,00,000/- and the said application for temporary injunction ought to have been considered in the light of the above said facts. It is clear that the amount that is already withdrawn by the defendants 1 and 2 out of the compensation awarded in respect of the schedule property i.e. Rs. 37,02,580/- on 6.3.1999 in Execution Petition N. 17/99 and Rs. 4,57,662/- on 16.12.2000 in LAC Misc. Appln. No. 90/98, would come to Rs. 41,60,242/- and the amount that is in deposit in Execution petition No. 226/2002 amounting to Rs. 24,32,992/- would be approximately l/3rd of the amount of compensation i.e. Rs. 70,00,000A awarded by the Land Acquisition Officer. Further, having regard to the fact that if the plaintiff ultimately succeeds in the suit, the plaintiff would be entitled to 173rd share and defendants 1 and 2 would be entitled to l/3rd share and defendants 3 and 4 would be entitled to 173rd share in the compensation that is awarded in L.A.C.No. 305/1997, if they are able to prove their case during trial. There is already a direction issued by this Court in M.F.A. No. 1128/2004 directing the Trial Court to dispose of the suit before December 2004. Under the circumstances, it is clear from the material on record that the plaintiffs have made out a prima facie case for granting of injunction as prayed for and balance of convenience is also in favour of the plaintiff and the interest of the parties can be safeguarded by directing that the amount that is now in deposit in Execution Petition No. 226/2002 shall be deposited in a nationalized Bank in a short term deposit so that the amount would earn interest, which would be available for the benefit of the successful party in the suit. Accordingly, I answer the points for determination and pass the following order:

The appeal is allowed. The order dated 16.4.2004 passed by the Prl.Civil Judge (Sr.Dn.) Jamkhandi, rejecting I.A.I in OS No. 108/ 2003, is set aside and I.A.I is allowed and defendants 1 and 2 are restrained from withdrawing the amount deposited in Execution Petition No. 226/2002 and it is directed that the amount deposited in Execution Petition No. 226/2002, shall be deposited by the Trial Court in a Nationalized Bank in a short term deposit and the same with accrued interest shall be made available to the successful party in the suit. It is also hoped that the Trial Court would dispose of the suit within the end of December 2004 as per the direction issued by this Court in M.RA. No. 1128/2004 dated 19.03.2004, if the parties co-operate in the disposal of the suit.