Patel Babubhai Dhulabhai vs Dharmendra Chaturbhai Patel

A.J. Shastri, J

[1] The present Appeal from Order under Order 43 Rule 1 and Section 104 of the Code of Civil Procedure is filed for the purpose of challenging the legality and validity of an order dated 14.12.2018 passed by the learned 8th Additional Senior Civil Judge, Gandhinagar, below Exh.5 refusing the temporary injunction as prayed for by the plaintiff.

[2] At the outset, when the matter is taken up for hearing, learned advocate Mr.Sunilsinh J.Chauhan for learned advocate Mr.Arpit P.Patel for the appellant has submitted that there is a clear error on the part of the learned trial Judge in passing the order. It has also been submitted that banakhat is prior in point of time and sizable amount is already been paid, still however, the sale deed has not been executed. It has further been submitted that simply because respondent Nos.5 to 11 have become registered sale deed holder, the injunction relief should not have been refused, more particularly, when there is a clear assertion reflecting in written statement in paragraph No.3, which is projected on page 18 of the paper book compilation. It has further been submitted that the execution of banakhat mark upon 3/13 has already been admitted and in that way of matter when document is admitted by the respective parties there was hardly justifiable reason for refusing the injunction. Resultantly, such material error in exercising of jurisdiction deserves to be corrected. Learned advocate for the appellant has submitted that he is ready and willing to deposit the balance amount of sale consideration and if the injunction is refused then serious prejudice will cause to him. No other submissions have been made.

[3] Having heard learned advocate for the appellant and having gone through the material on record, it appears clearly that the respondent Nos.5 to 11 have become the registered sale deed holder by virtue of transaction in question, which is not in dispute with respect to very same property, they have become bona fide purchaser of land in question with full consideration. As a result of this, to prevent registered holder of the property from lawful enjoyment is tantamount to allowing the speculative move of the original plaintiff. It further appears that even banakhat undisputedly is executed by only one of the co-owners and rest of the co-owners have not singed the banakhat, which is in question produced mark 3/13 and after all over examination, the learned trial Judge has found that there is some doubt with regard to execution of banakhat. In that view of the matter, simply because some amount at the time of agreement to sell paid, the trial court ought to have granted injunction against the registered sale deed holder. The observations contained in an order since are with application of mind, the Court would like to reproduce the same hereinafter:

“6.2] Heard both the sides before proceeding further application, on perusal of the record on hand, it is admitted position that the banakhat produced at Mark-3/13 is executed between plaintiff and defendant No.1 only and not by all the co-owners . The plaintiff has categorically averred that defendant No.1 is owner of the suit land admeasuring about '0‘-hecter and ‘24' aare and -'00' square meter (24 guntha) total land of block/ survey No.192/7, 192/5/1, 192/5/2. It is admission of plaintiff on record that registered sale deed respective suit land was to be executed after getting title clear by defendant No.1 to 4 on revenue record of rights. As such page No.2 of banakhat states that:

“The page No.2 of the banakhat states that the undivided and independent land admeasuring H.Are.Sqare Meter 2400 sqare meter (24 guntha), is self acquired, ancestral, independent possession ownership and occupation of the executor father.”

Further, the respective land is unpartitioned one. There is no description of land that comes in the share of defendant No.1. As such defendant No.1 to 4 are co-owner of the total land that is prima facie proved from the record on hand. Admittedly the signature of defendant No.2 to 4 are not in banakhat that is executed by defendant No.1 only. Further, if the respective banakhat is prima facie perused the same has been signed by —Mangaji Kanaji Thakor"" i.e. witness No.2. Respective banakhat was executed on 13th” February, 2013 and copy of Mangaji Kanaji Thakor's Election card has been produced along with respective banakhat that mentions date as 12.08.2015 that prima-facie raises doubt in respect to banakhat.

6 3] Plaintiff has filed present suit property on the basis of banakhat this is prima facie suspicious. Further, as the say of plaintiff he has paid Rs.18,51,000/- to the plaintiff and he is ready and willing to pay Rs.30,00,000/- to defendant N0.1. However he has prima facie failed to prove capacity to pay respective amount on hand. As such respective banakhat is not executed by co-owners of the suit property and further the share of the present defendant No.1 has stated by him is also not particular. Accordingly plaintiff came to be failed to prove his prima facie case and balance of convenience and irreparable loss, the three ingredients of temporary injunction that he must prove in his favour. The present Court has most respectfully perused the judgments produced by the defendant that helps the arguments advanced by them. Accordingly, issue no. 1 is answered in Negative and perused the judgment produced by defendant No.5 to 11, following order is passed in respect to issue no. 2 in the. interest of justice :—

[4] In the wake of aforesaid circumstances, the Court has an assistance of one of the such decisions delivered by the Apex Court governing for grant or refusal of injunction, which is in the case of Dalpat Kumar and another versus Prahlad Singh and others reported in AIR 1993 SC 276 wherein there is a clear assertion by the Apex Court that there has been a distinction between prima facie case and prima faice title, the same may not be allowed to be concluded. As a result of this, relying upon such observations in the background of present fact, the injunction which is appears to have been rightly refused from the trial Court, the same observations contained in paragraph Nos. 5 and 6 are reproduced 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 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.”

[5] In the wake of aforesaid circumstances and upon over all appreciation of material in close scrutiny of the stand of the appellant, it is not possible for this Court to construe the effect of discretion exercised by the learned trial Judge either perverse or suffers from any material irregularity. In the absence thereof, it is not possible for this Court to substitute the findings even if another view is possible. In view of this, since there is no other view is possible from the overall submissions and the material on record with regard to a validity of an order, this Court is not inclined to accept the Appeal from Order. Hence, the present Appeal from Order being devoid of merit, the same is disposed of with no order as to costs.

[6] In view of the order passed in Appeal from Order, Civil Application does not survive and stands disposed of accordingly.

[7] However, while parting with this order, it would be open for the appellant to request the learned Judge for expeditious disposal of the main suit proceedings.