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Judgment
A.J. Shastri, J
The present Appeal from Order under Order 43 Rule 1 and 2 of the CPC is filed by the appellants — original defendant Nos.17 and 18, challenging the legality and validity of an order dated 29.10.2018 passed below Exh.5 in Special Civil Suit No.403 of 2015, by the learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural).
The facts which are giving rise to present Appeal from Order are that present appellants — original defendant Nos.17 and 18 claimed to have purchased the suit property at a consideration of Rs.3,50,26,750/ which comprised of even a payment of premium of Rs.1,40,10,700/ for releasing the land from restriction for the purpose of non-agricultural use. Pursuant to the said transaction lawfully made by the appellants, they have constructed 4 buildings — Block Nos.A, B, C and D under the name of Vishesh Residency, comprising around 91 residential units, 23 shops / offices and this construction has been put up after taking appropriate BU permission. So far as Block Nos.A, B and C are concerned, BU permission has been granted on 4.1.2017, wherein in actual 82 apartments have been sold to various parties, executed registered sale document and they are actually residing. So far as the case of plaintiff is concerned, the respondent No.1 herein, his claim is only with respect to 621 sq. mtrs. of land out of total area of 4961 sq. mtrs. comprising 1/8th of the total suit land, as admitted in the alleged registered Banakhat. The claim of the plaintiff is that out of aforesaid undivided land, without consent and without division of land, defendant Nos.1 to 16 could not have executed the registered sale deed in favour of defendant Nos.17 and 18, who are present appellants on 31.3.2015. In response to this registered sale document, the rights are crystallized in favour of present appellants. The claim of the plaintiff is that on 31.7.2012, in presence of witnesses, a registered Banakhat, after paying Rs.59,36,000/ is executed and towards it, fixation of price — Rs.5,01,000/ is already paid. It has further been submitted by the original plaintiff that respondent No.1 evaded the execution and wanted the double payment on account price rise as refrained himself from executing and concluding the transaction with the plaintiff which has given rise to give public notice on 16.3.2015 in Sandesh daily newspaper and in Divya Bhaskar on 16.3.2015 and as such, the suit came to be filed for the relief as prayed for in Para.8 which is reflecting on page 90, essentially for setting aside the sale deed which has taken place with present appellants. This suit has been filed in the month of August,2015 in which an application was already submitted at Exh.5 for the purpose of seeking interim relief. With this background, it appears that on 10.8.2015, the learned Judge i.e. 5th Additional Senior Civil Judge, Ahmedabad (Rural) has issued notice. But then, after hearing the parties, the same came to be decided only on 29.10.2018. In between, it appears that there was no injunction. Resultantly, the suit property appears to have been fully developed and the persons are actually residing.
2.1 With this background, Exh.5 application when taken up for hearing, the learned Judge allowed the same on a condition to maintain status-quo till final disposal of the suit. This decision has taken place on 29.10.2018 which is made the subject matter of present Appeal from Order.
2.2 This Court on 1.4.2019 issued notice and after receiving the same, Mr.Rajesh Savjani, learned advocate has appeared with Mr.Anvesh Vyas for the respondent No.1 — original plaintiff and with the request of learned advocates, since the contesting parties are present and ready to contest the Appeal from Order, the same is taken up for hearing by the Court under aforesaid background.
Ms.Megha Jani, learned advocate appearing on behalf of the appellants, has vehemently contended that granting of status-quo at this stage has got the far reaching consequences. This order of injunction ought not to have been passed in a situation where the property in question is fully developed and around more than 80 families are actually residing. Additionally, no prima facie case is made out by the plaintiff to seek any interim relief. On the contrary, a clear attempt is made to create a situation and thereby, to put the present appellants in a situation where something can be extracted and this is the reason why in a suit of 2015, though there was so called urgency for the original plaintiff i.e. respondent No.1, the said application has been allowed to be decided in the month of October,2018 and now, under the guise of status-quo, the occupiers are made to frightened. It has further been contended that there is no prima facie case made out by the plaintiff in any form, though there is a settled proposition of law that though injunction should be granted against the registered owner and though the property has been fully developed and claim of appellants is qua limited share, at the best in an omnibus manner, status-quo order is ordered while passing the impugned order. This exercise of jurisdiction is thoroughly uncalled for in a situation in which there is a material change already taken place, after registered sale transaction.
3.1 Ms.Megha Jani, learned advocate, has further submitted that appellants are the rightful owners and have paid sizable amount, as stated above and after becoming true owner of property in question, by incurring huge expenditure, the property has been fully developed and, therefore, in a situation like this, granting of status-quo order would seriously prejudicing the rights of the appellants — true owner. There is a clear distinction between prima facie title and prima facie case and prima facie case will have to be established during adjudicating process and, therefore, both cannot be confusion to grant any injunction. Here is a case in which the present appellants have become the absolute owners of the properties and rightfully dealt with and as such, the status-quo order would be warranted. Resultantly, no case is made out. Apart from that, while granting status-quo which means an injunction, three elements which are required to be established, namely, prima facie case, balance of convenience and irreparable loss. All the elements are to be concluded after arriving at a proper satisfaction which is completely missing and, therefore also, in the absence of any such satisfaction, no injunction could have been issued. Hence, this very exercise of jurisdiction is thoroughly uncalled for. Resultantly, the interim order dated 29.10.2018 deserves to be set aside.
3.2 Additionally, Ms.Megha Jani, learned advocate has further submitted that the suit which has been filed by the respondent is for seeking specific performance of an agreement and consequently, for setting aside the registered sale transaction and for permanent injunction. In this suit for specific performance, the readiness and willingness which is to be specifically averred, is completely missing and, therefore, the suit for specific performance itself is not maintainable. Resultantly, when the main suit proceedings are not tenable, the question of granting of interim relief ought not to have been dealt with. It has further been submitted that the cause of action has also been artificially created as it seems. The reason is that there is a registered sale transaction in favour of appellants and the rights are crystallized by virtue of said transaction in favour of the appellants. As a result of this, the litigation generated by respondent No.1 is appearing to be a speculative litigation. Hence, such an attempt deserves to be deprecated. Apart from this, to this subject land in addition to the registered sale transaction, a specific permission is also granted of non-agricultural from agricultural and this registered sale transaction has taken place after the registered Banakhat. So, it is not that surreptitious transaction has taken place with present appellants. The conjoin effect of overall documents which were before the Court for consideration clearly indicates that no prima facie case is made out for interim relief. About payment consideration if to be looked into as asserted, there is no material with regard to the sizable amount of cash from which source and how the same has been paid. Therefore, there is hardly any balance of convenience made out by respondent No.1 herein. In addition to this, in a written statement which has been filed by present appellants, the detailed circumstances are explained as to how and in what manner, a registered sale transaction has taken place. Para.22 of the written statement has clearly asserted the manner in which the transaction has taken place and the manner in which to what volume the amount of consideration is paid through cheque and when that be so, the plaintiff has got no right, title or interest over the land in question and apart from his so called right, claiming to be out of Banakhat against this huge payment which has been made, balance if to be equated between original plaintiff and the present appellants i.e. original defendant Nos.17 and 18, a strong case is made out in favour of the appellants. Resultantly, the learned Judge ought to have considered these circumstances before granting the interim stay. Apart from this, during the passage of time, the property has been fully developed and actually the persons are residing and carrying on their respective business. Page-F onwards are the photographs which are indicating the manner in which the construction is completed and along with that, BU permission has also been granted for low rise by Ahemdabad Municipal Corporation reflecting on page 21. These details are sufficient enough to indicate that at least at this stage of the proceedings, no case of injunction is made out. Still, however, the learned Judge has granted the status-quo appears to be in a circumstance which is not warranted at all. Even the conclusion with regard to the prima facie case, there is no valid reason assigned and this order impugned is reflecting a clear non-application of mind and against the material which indicates that the order also suffers from the vice of perversity.
3.3 Ms.Megha Jani, learned advocate appearing on behalf of the appellants, has submitted that even an additional affidavit is also filed by placing the report of Court Commissioner as on 12.2.2019 to indicate to this Court in a situation like this, no interim relief granted or allowed possible to be continued against the present appellants. By raising contention about maintainability, about prima facie case, balance of convenience and irreparable loss, learned advocate has submitted that the order in question deserves to be quashed and set aside. Ultimately, it has been submitted that at the best, if the original plaintiff succeeds in his litigation, his rights are always to be compensated in terms of money and, therefore, whenever any relief which is able to be compensated in terms of money, no interim relief may be granted in a routine manner. This being a position, Ms.Megha Jani, learned advocate, has vehemently submitted to set aside the impugned order. It has further been submitted that the reason which has been assigned is not just and proper which supports the conclusion. Resultantly, the order in question be quashed and set aside. No other submissions have been made.
To these submissions, Mr.Rajesh Savjani, learned advocate appearing with Mr.Anvesh Vyas, learned advocate appearing on behalf of the contesting respondent, has vehemently contended that the appellants have not made out any case to call for any interference. The transaction in question with original plaintiff is prior in point of time and, therefore, the trial court has rightly passed the order. It has further been submitted that owners of the land have not come-forward to challenge the impugned order of status-quo and since the present appellants were not party to the transaction between the plaintiff and erstwhile owners, the appellant cannot agitate. In fact, according to Mr.Savjani, learned advocate, all sequence of events the present appellants cannot take a plea of being bonafide purchaser, as they were aware about the transaction going on with respect to the same land with the plaintiff. It has further been submitted that despite the fact that a public notice was issued on 16.3.2015, the sale deed has been executed on 31.3.2015 in favour of present appellants by original defendant Nos.2 to 16. So, when the same is in specific knowledge, the plea of bonafide purchaser is not open for the appellants. It has further been submitted that at the time of alleged Banakhat which appellants entered into, at the time when land was not converted into non-agricultural land and as such also, it is not open for the appellants to derive any legal right. All these issues are the matters of trial and, therefore, till the disposal of the suit, the injunction has to operate to preserve the subject matter. It has further been contended that relinquishment deed which has been tried to be pressed into service, the same is just with a view to defeat the legitimate right. On the contrary, the transaction in question is hit by Sections 43 and 63 of the Bombay Tenancy Act and, therefore also, in such a situation, the learned Judge is justified in passing the order of status-quo. Mr.Savjani, learned advocate, has further submitted that here is a case in which the suit is yet to be tried and there are several facts to be adjudicated upon and here is a case in which the plaintiff was also registered Banakhat holder. As a result of this, when there is a clear conflict between two legal rights between the parties, the issue becomes a matter of adjudication at length and, therefore also, till it is decided, the parties are required to be directed to maintain the status-quo which has rightly been done. Additionally, even if mutation has taken place as per the say of the appellants, it is settled position of law that mutation in revenue record is not creating any legal right or title. When that be so, there is hardly any reason to believe the stand of present appellants.
4.1 Mr.Rajesh Savjani, learned advocate, has submitted that practically the order in question is just and proper and in consonance with the proposition of law laid down by the Apex Court that during litigation process, status-quo normally to be granted and, therefore also, when there is no error committed by the court below, simply because another view is possible, in an appellate jurisdiction, the view taken by the court below may not be substituted. It may be that the plaintiff’s right must be restricted to around 621 sq. mtrs. of land, but that does not mean that joint family undivided property can be allowed to be disposed of in the manner in which it has been disposed of here and, therefore also, when prima facie it has been shown that there is no necessity to execute the registered sale transaction and the plaintiff’s rights are also flowing out of registered Banakhat, the order passed by the court below requires no interference. To substantiate this, learned advocate appearing on behalf of contesting respondent No.1, has relied upon following decisions and has ultimately requested that appeal lacks merit, the same be dismissed, in the interest of justice.
(1) A decision dated 15.11.2017 rendered in First Appeal No.1845 of 2017.
(2) A decision dated 23.3.2018 rendered in SLP (C) No.11067 of 2017.
(3) Ghnshyambhai Dhirubhai Barvaliya v. Rasikbhai Dhiurubhai Ambaliya, reported in 2017 (0) AIJEL-HC 236938.
(4) A. Andisamy Chettiar v. A Subburaj Chettiar, reported in (2015) 17 SCC 713.
(5) Maharwal Khewaji Trust (Regd.) Farikkot v. Baldev Dass, reported in (2004) 8 SCC 488.
To controvert the stand taken by Mr.Rajesh Savjani, learned advocate, Ms.Megha Jani, learned advocate, in rejoinder plea, has clarified that relinquishment which is tried to be created as an issue, the same was in favour of his brother in the year 2013 and said defendant No.12 has sold the portion to the appellants. Said relinquishment was also specifically mutated in the revenue record and an entry to that effect has also been made in the month of January,2013 which has also been certified on 19.2.2013 and on the contrary, the suit filed by the respondent No.1 itself is barred by law of limitation, because the limitation would start from 24.1.2012. Since the limitation commenced from registration, this deemed knowledge has practically barred the suit filed by respondent No.1. Apart from this, there is no averment contained with regard to the willingness and the injunction has been granted after unreasonable period of 3 years practically. Ms.Megha Jani, learned advocate, has reiterated that here is a case in which the entire construction is allowed to be made; the panchnama is reflecting clearly that the suit property is fully developed, the same is fortified by the photographs which are attached herein and there is an additional affidavit also part of the record. In that view of the matter, the injunction which has been granted is not possible to continued, in the interest of justice. To support such contention, Ms.Megha Jani, learned advocate, has relied upon the decisions of the Apex Court in case of Dilboo (Smt.) (Dead) by Lrs & Ors. v. Dhanraji (Smt) (Dead) & Ors., reported in (2000) 7 SCC 702 and Mandali Ranganna & Ors. v. T. Ramachandra & Ors., reported in (2008) 11 SCC 1.
5.1 Yet another decision which is delivered by the Apex Court is also tried to be relied upon, is a decision in case of M. Gurudas v. Rasaramkam, reported in AIR 2006 SC 3275 and by referring to this decision, a request is made to set aside the impugned order, as no case is made out for seeking interim relief in any form.
Having heard the learned advocates appearing for the respective parties and having gone through the material on record, first of all, as held by the Apex Court in a decision in case of Dalpat Kumar & Anr. V. Prahlad Singh & Ors., reported in AIR 1993 SC 276 that prima facie case and prima facie title cannot be confused and the prima facie case will have to be adjudged during the course of adjudicating process. So, here is a case in which present appellants are armed with a registered sale deed which has at this juncture crystallized lawful right in favour of the appellants and, therefore, prima facie title is very much reflecting on record in favour of the present appellants and so far as the legal right which is tried to be claimed by contesting respondent is based upon Banakhat. An agreement to sell is not conferring any absolute right and, therefore, if these two situations are looked into, it would clearly suggest that the order passed by the learned Judge is not just and proper. Para.5 and 6 of the aforesaid decision since relevant deserve to be quoted hereinafter :
“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 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 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 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.
Undoubtedly, in a suit seeking to set aside the decree, the subject-matter 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.”
Yet another circumstance apparently if to be looked into that all the three aspects governing grant or refusal of injunction, namely, prima face case, balance of convenience and irreparable loss, are to be examined by arriving at a specific conclusion, because these aspects are to be dealt with in a case to case basis. In a given case, there may be a prima facie case, but may not be balance of convenience or irreparable loss and in that case, if only prima facie case is established it should not automatically follow the injunction. Here in the present case, a bare look at the order would clearly indicate that all these important aspects governing the exercise of discretion which is purely equitable in nature, no conclusion is possible independently on each issue. Therefore also, very exercise of discretion is uncalled for in view of settled position of law. Further, one another material circumstance which cannot be overlooked by the Court is that an injunction application which has been submitted in August,2015, on which on 10.8.2015 urgent notice was issued for dealing with interim relief. But this Exh.5 application got decided on 29.10.2018 and, therefore, here is a case in which the plaintiff has also shown complete lethargy in seeking preventive relief, if it was so serious as has now been projected. During this three years’ period, what has been developed is very much reflecting from the photographs which are attached to the compilation and the panchnama which has been carried out and submitted by way of additional affidavit by the appellants. This kind of construction cannot come overnight and these huge towers which are erupted over the suit property, for which present appellants have kept convenient silence for the reasons best known to them and, therefore also, for considering equitable relief, the conduct of the plaintiff is also playing a vital role. A perusal of the detailed photographs attached to the compilation reflects that residential units are fully developed; commercial activities are also humming in the building in question and actually more than 88 families are residing. In that view of the matter, when this fact is well supported by a court commission which is executed on 12.2.2019 which is made a part of present proceedings by way of additional affidavit by the appellants, this circumstance is certainly sufficient enough to conclude that there is no prima facie case nor any balance of convenience lies in favour of the plaintiff. On the contrary, granting of interim relief would create an irreversible situation not only for the present appellants, but for the persons who are occupying the premises as well. Hence, in a situation where the Court is confronted with a registered sale transaction, under normal circumstance, no interim relief deserves to be granted against true owner and it further appears that these buildings have come up after obtaining appropriate permission from the competent authority and so much so that persons are occupying after obtaining necessary building use permission from the corporation. So, here it appears that the present plaintiff i.e. respondent No.1 has allowed to come up the construction in such a manner that ultimately armed with an order of injunction, something can be extracted. This may be ultimate object behind seeking injunction which has rightly been agitated by present appellants. Resultantly, all these surrounding circumstances are not possible to be overlooked while coming to the ultimate conclusion.
Now, so far as the reasons which are assigned by the court below are concerned, despite knowing that there is a registered sale transaction in favour of original defendant Nos.17 and 18 on 31.3.2015 and despite the fact that in October,2018 the property has been fully developed, the learned Judge based upon the issue of registered Banakhat has held that at the relevant point of time, the agreement to sell when took place, conversion of land has not taken place in non-agricultural land and further, has given one common reason of avoiding multiplicity of proceedings. But, in a situation like this, when such a valuable power is being exercised by the learned Judge, this important circumstances which are reflecting hereinbefore cannot be overlooked and, therefore, practically the very exercise of jurisdiction is based upon the principles which are far relevant from Order 39 Rule 1 and
This basic power of Order 39 Rule 1 and 2 to be exercised keeping in view the parameters which are mentioned in it, whereas here is a case in which Para.11 which is to be looked into, is absolutely not supported by any independent reasons. On the contrary, in present suit of 2015, to grant an injunction of general nature of maintaining status-quo after a period of 3 years itself is relevant circumstance not to continue the order of status-quo.
As said earlier, some of the sequence of events which are already reflecting on record would clearly indicate that the discretion which has been exercised is thoroughly uncalled for. Resultantly, this material error in exercising jurisdiction deserves to be corrected. Hence, the order dated 29.10.2018 deserves to be quashed and set aside.
Additionally, it further appears that ultimate claim of the plaintiff even if to be allowed, the same can be adequately compensated in terms of money and further it appears that any apprehension which has been voiced out about alienation of property by virtue of Section 52 of the Transfer of Properties Act, since the said transaction if during the pendency of the proceedings, law will take its own course and can protect such situation. That being so, the appellants have made out a strong case for setting aside the impugned order, rather than to continue.
Now, in the light of aforesaid circumstance, the decisions which have been relied upon by Mr.Rajesh Savjani, learned advocate, as referred to above, no doubt the proposition of law is not disputable. But whether such propositions are directly applicable to the peculiar background of fact or not, is a central issue before analyzing the applicability of proposition. The first judgment which has been relied upon is a decision which is delivered by the Division Bench of this Court on 15.11.2017 in First Appeal No.1845 of 2017. But a close look at the same, it would clearly indicate that fact situation is altogether different than what is prevailing on hand. Here is a case in which such issue can be gone into about applicability of Section 43 of the Tenancy Act at the time of trial of the suit and, therefore, the Division Bench, at a relevant point of time, was dealing with an issue related to Order 7 Rule 11 of the CPC and not that of Order 39 Rule 1 and 2 and as such, on that count alone, the decision will have no application on the present fact situation.
Yet another decision which has been relied upon is a decision delivered by the Apex Court in SLP (C) No.11067 of 2017, decided on 23.2.2018, wherein the reliance is placed with respect to the observations made in Para.9 onwards. A bare reading of Para.10 would absolutely make it clear that what was to be considered is whether the document dated 9.9.1994 could have been accepted by the trial court in evidence or trial as admissible document. Now, that controversy has nothing to do with the present controversy on hand and as such, this judgment, no doubt, laying down a good law on such issue, but the applicability thereof to grant equitable relief of injunction is not possible to be taken in aid by the Court.
Yet another decision which has been tried to be relied upon is a decision delivered by the coordinate bench of this Court in case of Ghnshyambhai Dhirubhai Barvaliya (Supra), wherein also the Court was confronted with a different background than what is on hand and in the said decision, after dealing with Section 19(b) of the Specific Relief Act, the Court observed that after prior agreement to sell, a transaction cannot be said to be free owned and if any alienation is taking place, the same would be subject to the rights created under the prior agreement and what is to be looked and established has contained in Para.15 and after analyzing in that particular case, it has been observed that protection of Section 19(b) is not applicable to the subsequent purchaser. The Court also eventually discussing the scope of appellate jurisdiction, but in a given case if the discretion which has been shown to have been exercised arbitrarily or capriciously or perversely or where the Court has ignored the settled principle of law relating to grant or refusal of interim relief, the appellate court has got jurisdiction and discretion to reverse the order and that has exactly available here in the instant
case. The order in question is reflecting all these aforesaid elements by virtue of which it can reasonably and safely be said that impugned exercise is against the settled principle of law and as such, the above-referred decision, on the contrary, found in favour of the appellants in background of aforesaid peculiar set of circumstance.
The other decisions which are tried to be relied upon are the decisions which are generally reiterating the proposition of Order 39 Rule 1 and 2, whereas herein the instant case, the rightful registered owner is not possible to be injuncted in the manner in which it has been done by the learned Judge and, therefore, without disagreeing with the proposition laid down by the aforesaid two decisions reported in (2004) 8 SCC 488 and (2015) 17 SCC 713, the Court is of the opinion that respondent No.1 — original plaintiff is not justified in maintaining the order impugned in the appeal.
As against this, the decisions which have been cited by the learned advocate appearing on behalf of the appellants, have clearly supported the stand taken in the submission. The proposition is not in dispute and rather, reiterated on several occasions that whenever a document is registered, the date of registration becomes the date of deemed knowledge.
A further decision which has been relied upon by the learned advocate is about exercise of jurisdiction under Order 39 Rule 1 and 2 which is reported in (2008) 11 SCC 1, almost in an identical situation where certain joined family properties partition, but in a suit for partition and possession, huge construction has come out and in that situation, the relief is sought against alienating, restraining further construction during pendency of the petition, on facts the view taken by the High Court is affirmed by the Apex Court of refusal of grant of injunction. Relevant observations contained in Para.21 to 27 to the present controversy, are reproduced hereinafter :
“21. While considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties.
Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one. We are not however, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the courts is imperative. Contentions raised by the parties must be determined objectively.
This Court in M.Gurudas and Others v. Rasaranjan and Others [(2006) 8 SCC 367] noticed:
A finding on "prima facie case" would be a finding of fact. However, while arriving at such a finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. Rajeev Dhavan that the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd. would have no application in a case of this nature as was opined by this Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd., and S.M. Dyechem Ltd. v. Cadbury (India) Ltd. but we are not persuaded to delve thereinto.
Emphasis was also laid on the conduct of the parties while granting an order of injunction.
In Seems Arshad Zaheer and Others v. Municipal Corpn. Of Greter Mumbai and Others [(2006) 5 SCC 282], this Court held:
The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.
[See also Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd. (2006) 1 SCC 540]
Rightly or wrongly constructions have come up. They cannot be directed to be demolished, at least at this stage. Respondent No. 7 is said to have spent three crores of rupees. If that be so, in our opinion, it would not be proper to stop further constructions.
We, therefore, are of the opinion that the interest of justice would be subserved if while allowing the respondents to carry out constructions of the buildings, the same is made subject to the ultimate decision of the suit. The Trial Court is requested to hear out and dispose of the suit as early as possible. If any third party interest is created upon completion of the constructions, the deeds in question shall clearly stipulate that the matter is subjudice and all sales shall be subject to the ultimate decision of the suit. All parties must cooperate in the early hearing and disposal of the suit.
Respondents must also furnish sufficient security before the learned Trial Judge within four weeks from the date which, for the time being, is assessed at Rupees One Crore.”
Keeping the aforesaid proposition of law in mind, this Court is of the clear opinion that the impugned order dated 29.10.2018 passed below Exh.5 in Special Civil Suit No.403 of 2015, by the 2nd Additional Senior Civil Judge, Ahmedabad (Rural), is not sustainable. Resultantly, the same is hereby quashed and set aside.
However, while setting aside this order, since the suit proceedings are of 2015, the same are ordered to be expedited, for which liberty is granted to both the sides to request the learned Judge to deal with and decide the main suit on its own merit in accordance with law.
In the premise aforesaid and in view of peculiar facts and circumstances, the Appeal from Order stands allowed, with no order as to costs.