Friday, 14 August 2015

Civil Lawyers in Saket District Court Delhi


Civil Litigation
Civil Law is known for civil procedure code, 1908, in India. There are three things in this Act by which this act is going on/functioning:
  1. SECTION
  2. ORDER
  3. RULES
  4. CIVIL PROCEDURE CODE: It is a complete code itself. Once proceedings are initiated there under, rights and remedies have to be looked into.
There are four modes to decide the matters under the civil procedure code by the courts:
  • CIVIL JUDGE
  • ADDITIONAL DISTRICT JUDGE
  • SMALL CLAUSES COURT
  • HIGH COURTS, IN CERTAIN CASES (WHERE THE JURISDICTION IS MORE THAN 2 Crore after amendment in Delhi High Court Rules 2015.)
We Deals in Certain Matters under This Laws and Act:-
  • CIVIL MONEY RECOVERY SUIT
  • CIVIL RIGHTS CASES
  • SUIT FOR INJUNCTION AND DAMAGES
  • MONEY RECOVERY SUIT UNDER SECTION XXXVII CIVIL PROCEDURE CODE
  • RENT SUIT
  • PROBATE OF WILL SUIT.
  • SUIT FOR DECLARATION & POSSESSION SUIT
  • ANTI INJUNCTION SUIT
  • SUIT FOR PERMANENT & MANDATORY INJUNCTION SUIT
  • SUIT FOR PARTITION & POSSESSION
  • SUIT FOR DIVISION,PARTITION AND POSSESSION OF PROPERTY
  • SUIT UNDER INDIAN SUCCESSION ACT
  • SUIT FOR PROBATE IN RESPECT OF WILL OF PROPERTY
  • SUIT FOR POSSESSION OF PROPERTY AND DECLARATION
  • SUIT FOR STAY IN RESPECT OF PROPERTY
  • SUIT FOR PARTITION AND DIVISION IN PROPERTY
  • ALL THE SUITS UNDER THE CIVIL PROCEDURE CODE AND CIVIL LAWS.

Sunday, 19 April 2015

suit for declaration and permanent injunction,

The respondent herein filed the suit against  the   appellants  seeking  for
the relief of declaration  of  his  title  to  the  suit  property  and  for
consequential  relief of permanent  injunction  restraining  the  appellants
herein from interfering with his physical possession. Briefly  the  case  of
the plaintiff is that the suit property belonged  to  Guramma  wife  of  the
first defendant and the mother of the plaintiff and on her death  the  first
defendant had given declaration before the  revenue  authorities  to  change
the Katha in the name of the plaintiff  in  respect  of  the  suit  schedule
property and mutation was effected accordingly and the revenue record  stood
in the name of the plaintiff for a long period of time.  It is  the  further
case of  the  plaintiff  that  the  first  defendant   entered  into  second
marriage with one Jayamma and defendants 2 to 5 are their children and  they
denied the ownership of the plaintiff in the suit  property  and  therefore,
the suit came to be filed.
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                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos. 3725-3726 OF 2015
    [Arising out of Special Leave Petition (Civil) Nos. 3377-3378 of2011]



H. Lakshmaiah Reddy & Ors.        ..       Appellants

                                       -vs-

L. Venkatesh Reddy                      ..    Respondent


                               J U D G M E N T

C. NAGAPPAN, J.

Leave granted.
These appeals are  preferred  against  judgment  dated  8.9.2010  in  R.S.A.
No.1500 of 2009 by which the High Court of Karnataka  at  Bangalore  allowed
the Second Appeal filed by the  respondent  herein  and  against  the  final
order dated 25.11.2010 in RP No.398/2010 by which the High  Court  dismissed
the Review Petition filed by the appellant.
The respondent herein filed the suit against  the   appellants  seeking  for
the relief of declaration  of  his  title  to  the  suit  property  and  for
consequential  relief of permanent  injunction  restraining  the  appellants
herein from interfering with his physical possession. Briefly  the  case  of
the plaintiff is that the suit property belonged  to  Guramma  wife  of  the
first defendant and the mother of the plaintiff and on her death  the  first
defendant had given declaration before the  revenue  authorities  to  change
the Katha in the name of the plaintiff  in  respect  of  the  suit  schedule
property and mutation was effected accordingly and the revenue record  stood
in the name of the plaintiff for a long period of time.  It is  the  further
case of  the  plaintiff  that  the  first  defendant   entered  into  second
marriage with one Jayamma and defendants 2 to 5 are their children and  they
denied the ownership of the plaintiff in the suit  property  and  therefore,
the suit came to be filed.
A common written statement was filed by the defendant stating that the  suit
property was purchased in the name of Guramma  under  registered  sale  deed
dated 14.11.1959 and sale consideration was paid by the first defendant  and
after the death of Guramma, the first defendant married Jayamma in 1973  and
defendants 2 to 5 were born out of the wedlock and the plaintiff as well  as
the first defendant being the legal heirs of Guramma had  succeeded  to  the
suit property and the first defendant  gifted a  portion  of  suit  property
measuring 5 acres in favour of defendants 2 to 5  by  registered  gift  deed
dated 12.12.2003 and the suit is liable for dismissal.
The trial court framed seven issues and after  consideration  of   oral  and
documentary evidence  dismissed the suit. On the  appeal  preferred  by  the
plaintiff, the lower appellate court held that the  plaintiff and the  first
defendant being class-I heirs of  deceased  Guramma  are  entitled  to  half
share each in the  suit property and decreed the suit in part.   Challenging
the same the plaintiff preferred second appeal and the  High  Court  allowed
the same by setting aside the judgment of  the  lower  appellate  court  and
decreed the suit  in  full  as  prayed  for.   Aggrieved  by  the  same  the
defendants have preferred the present appeals. For the sake of  convenience,
the parties are described in this judgment as arrayed in the suit.
6.    Mr. Basavaprabhu S. Patil, the learned senior  counsel  appearing  for
the appellants mainly contended that the High Court has failed to note  that
the plaintiff himself had never pleaded a  case  of  relinquishment  of  the
share by the first defendant in the suit property and what  was  pleaded  in
the plaint was  that  he  had  succeeded  to  the  property  of  his  mother
absolutely and his father namely the first defendant  has  consented  before
the revenue authorities for change of name in the Katha  in  favour  of  the
plaintiff in respect of the  suit  schedule  property  and  thus  the  first
defendant had acquiesced to the fact of the entire suit property  being  put
in the name of the plaintiff  and  according  to  the  learned  counsel  the
mutation entry can never be considered as relinquishment of right  or  title
and the High Court has committed a serious error in accepting  the  case  of
the plaintiff and in support of his submissions relied on  the  decision  of
this Court in  Balwant Singh and  another vs. Daulat Singh  (Dead)  by  Lrs.
And ors.  [(1997) 7 SCC 137].
7.    Per contra the learned  Senior counsel appearing  on   behalf  of  the
respondents contended  that pursuant  to  the  statement  made  by  the  1st
defendant to the Revenue Authorities, the entire suit property  was  put  in
the name of plaintiff, by effecting mutation entry  in   Katha  and  revenue
records and  thus the 1st defendant,  by his conduct had acquiesced  to  the
said fact, as rightly held by the  High  Court.  Alternatively  the  learned
senior counsel contended that even if this Court holds in law that  the  1st
defendant continues to be the title holder of   half  of  suit  property  as
class-I heir of deceased  Guramma, in view  of  special  circumstances,  the
justice of the case does not require interference or  the  relief  could  be
moulded in a different fasion.  In support of his submission  he  relied  on
 Taherakhatoon (D) By Lrs.  Vs. Salambin  Mohammad  (1999)  2  SCC  635  and
Chandra Singh & Ors.  Vs. State of Rajasthan & Anr. (2003) 6 SCC 545).
8.    We considered the rival  contentions.  There  is  no  dispute  in  the
factual matrix. Guramma  was  the  first  wife  of  1st  defendant  and  the
plaintiff was their only son and suit property was purchased by  Guramma  by
Exh. P-1 sale deed dated 14.11.1959 and the property stood in  her  name  in
revenue record.  The plaintiff was born on 1.10.1965  and  Guramma  died  on
20.1.1966. As per Section 15 of the Hindu Succession Act,  the  husband  and
the son of deceased Guramma, namely 1st defendant and the  plaintiff,  being
class-I heirs succeeded to the suit property. As per   Exh.  P-8,  Katha  of
suit property was changed to the  name  of  plaintiff  from  his  mother  on
9.1.1990 and  the endorsement therein made by  the  Tahsildar  reveals  that
the 1st defendant  accepted the  mutation  of  entry  in  the  name  of  the
plaintiff, being their only son and on the basis  of the  said  declaration,
the mutation was effected and it was not challenged.  Exh. D-10 is  the  RTC
extract covering the period from 1989 to 1992 and the  plaintiff  was  shown
as the owner of the suit property.
9.    As rightly contended by the learned senior counsel  apearing  for  the
appellants,  1st defendant did not  relinquish  or   release  his  right  in
respect of the half  share in the suit property at any  point  of  time  and
that is also not the case pleaded by the plaintiff.   The assumption on  the
part of the High Court that as a result of  the  mututation,  1st  defendant
divested himself   of the title  and  possession  of  half  share   in  suit
property is wrong.   The mutation entries do not convey  or  extinguish  any
title  and those entries  are relevant only for the  purpose  of  collection
of land   revenue.  The observations of this  Court in Balwant Singh's  case
(supra) are relevant and are extracted below  :
"21. We have considered the rival submissions and we are of  the  view  that
Mr Sanyal is right in his contention that the courts  were  not  correct  in
assuming that as a result of Mutation No. 1311 dated 19-7-1954,  Durga  Devi
lost her title from that date and possession also was given to  the  persons
in whose favour mutation was effected. In Sawarni  vs. Inder Kaur  (1996)  6
SCC 223,  Pattanaik,  J.,  speaking  for  the  Bench  has  clearly  held  as
follows: (SCC p. 227, para 7)
"7. ... Mutation of a property in the revenue  record  does  not  create  or
extinguish title nor has it any presumptive value on title. It only  enables
the person in whose favour mutation is ordered to pay the  land  revenue  in
question. The learned Additional District  Judge  was  wholly  in  error  in
coming to a conclusion that mutation in favour of Inder Kaur  conveys  title
in her favour. This erroneous conclusion has vitiated the entire judgment."

22. Applying the above legal position,  we  hold  that  the  widow  had  not
divested herself of the title in the suit property as a result  of  Mutation
No. 1311 dated 19-7-1954. The assumption on the part  of  the  courts  below
that as a result of the mutation, the widow divested herself  of  the  title
and possession was wrong. If that be so, legally, she was in  possession  on
the date of coming into force of the Hindu Succession  Act  and  she,  as  a
full owner, had every right to deal with the suit properties in  any  manner
she desired."

In the circumstances, we are of the opinion that the  High  Court  erred  in
concluding that the  1st  defendant  by  his  conduct  had  acquiesced   and
divested himself of  title of his  half  share  in  suit  property  and  the
said erroneous  conclusion is liable to be set aside.
10.   The learned senior counsel  appearing  for  the   respondent/plaintiff
strenuously contended that the 1st defendant is now 90 years  old  and  owns
lots  of properties as enumerated in the list furnished by him before   this
Court and the plaintiff is his only son through first  wife  and  litigation
pertains to only  one property namely the suit   property  and  though  this
Court  gave  ample  opportunities,  no    settlement  could  be  arrived  at
between the parties and considering the special  circumstances,  this  Court
in exercise of  jurisdiction under Article 142 of the Constitution  may  not
interfere with the High Court  judgment,  which will do complete justice  to
the parties and relied on the decisions cited  supra.
11.   We are not in a  position to appreciate this  contention.    The  High
Court misdirected  itself  and  committed   serious  error   warranting  our
interference with the impugned judgment.
12.   In the  result the impugned judgment and decree of the High Court  are
 set aside  and the judgment and decree of the  lower  appellate   court  is
restored and the appeals are allowed in  the above terms.  No costs.


                                        ..................................J.
                                                           (V. Gopala Gowda)

                                        ..................................J.
                                                               (C. Nagappan)
New  Delhi;
April  17 ,  2015



suit for declaration possession and damages on basis of will.

 In the instant case, the suspicious circumstance appears  to  be  that
when the Will was being executed, the  thumb  impression  over  the  alleged
Will was also taken by the beneficiaries and the document-writer  was  shown
to be scribe of the document, whereas the document was not scribed  by  him.
However, late Phoolbasa Bai although  filed  written  statement  before  her
death, but she did not whisper  anything  about  the  Will  in  the  written
statement.  Admittedly, the Will was allegedly executed in 1977 whereas  the
written statement was filed some time in 1987.   Taking  into  consideration
all these facts, we do not filed any error in the conclusion arrived  at  by
the High Court.  The said finding, therefore, needs no interference by  this
Court.
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                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        Civil Appeal No.3410 of 2007

DHANNULAL AND OTHERS              .....Appellant(s)

                                   versus

GANESHRAM AND ANOTHER             .....Respondent(s)

                                    WITH

                        Civil Appeal No.3411 of 2007
GANESHRAM                               .....Appellant(s)

                                   versus

DHANNULAL AND OTHERS              .....Respondent(s)



                                  JUDGMENT



M. Y. EQBAL, J.

      Aggrieved by the judgment and order passed by the High  Court,  partly
dismissing  First  Appeal  No.92  of  2001,   both  the  plaintiff  and  the
defendant have filed  the  aforementioned  two  appeals.   While  confirming
judgment and decree, the High Court reversed the  finding  recorded  by  the
trial court on the issue of will executed by the testatrix.



2.    The plaintiff-Ganeshram, appellant in Civil Appeal  No.3411  of  2007,
filed suit for declaration, possession and damages in relation  to  the  two
suit houses described in Schedule A & B of the plaint, pleading  inter  alia
that the registered sale deed of 1987, executed by Phoolbasa  Bai  (original
defendant no.1, who died during the pendency  of  the  suit)  in  favour  of
defendant no.5 Mukesh Kumar Chourasia, which  relates  to  some  portion  of
suit house, be declared illegal, void and not binding on him.



3.    To understand factual matrix and issue involved in the case, we  would
like to reproduce here the pedigree table as submitted before us:

                                   Shivram
                               (Died in 1932)
 ____________________________________|_____________________________
|                                                             |
Sumitrabai (Daughter)(died in  1976)             Chhatrapati(Son)  (died  in
1945)
   Husband of Sumitra-Mangal Prasad   Kept-wife: Phulbasabai (def.no.1)
      (Died in 1954)                               |
      |                                      Mannulal (son)(
      |                                 (died unmarried on 14.4.1967)
______|___________________________
|                                |
Shyamlal (son)               Radha Bai (daughter)
(died in 1973)
|
_______|____________________________________________________
|                            |                           |
Ganeshram (son)        Laxmi Bai (daughter)  Ganga Bai (daughter)
Plaintiff


4.    The suit property was originally owned by Shivram who had  a  daughter
Sumitrabai  and  a  son  Chhatrapati.  The  plaintiff,   the   grandson   of
Sumitrabai, filed a  suit  for  declaration  of  ownership,  possession  and
damages in relation to the suit property against defendant nos.1 to 5.   The
plaintiff challenged the validity of the Will dated 18.08.1977 purported  to
have been executed by Phoolbasa Bai in favour of the  sons  of  her  brother
Gayaprasad, defendant nos.1-4. The plaintiff also  challenged  the  validity
of the sale deed purported to have been executed by Phoolbasa  Bai  in  1987
in favour of defendant no. 5 in relation to a portion of the suit property.




5.    The plaintiff alleged that Sumitrabai  (plaintiff's  grandmother)  had
become the owner of the suit property by adverse  possession  having  stayed
therein, after the death of her husband  Mangal,  with  her  father  Shivram
till his death in 1932 and till her own death in 1976.   Phoolbasa  Bai  was
alleged to have been the  mistress  and  not  the  legally  wedded  wife  of
Chhatrapati and their son was alleged to have died unmarried  and  issueless
in 1967.  The sale deed and the Will purported  to  have  been  executed  by
Phoolbasa Bai were alleged to be illegal.





6.    The suit was contested firstly by filing joint  written  statement  by
the original defendants namely Phoolbasa Bai and Gaya  Prasad  stating  that
after  the  death  of  Shiv  Ram   the  entire  property  was  succeeded  by
Chhatrapati (his only son) as Sumitrabai was a  married  daughter.   It  was
further pleaded  that  Phoolbasa  Bai,  being  the  lawful  wedded  wife  of
Chhatrapati, became the owner  of  the  suit  property  after  Chhatrapati's
death in 1945.  During the pendency of the suit, when  Phoolbasa  died,  she
was substituted by defendant nos.1 to 4, who  also  filed  separate  written
statement in addition to earlier written statement  filed  by  the  original
defendants.  Defendant no.5 also filed separate written  statement  claiming
to be the owner of the  portion  of  property  by  virtue  of  a  sale  deed
executed in his favour in 1987.



7.    The trial court  dismissed  the  civil  suit  holding  that  the  Will
executed by Phoolbasa in the year 1977 in favour of defendants  nos.1  to  4
is legal and the sale effected by her during the pendency of the civil  suit
in favour of defendant no.5 is  also  legal  and  valid.   The  trial  judge
recorded the finding that  Sumitra  Bai  had  not  perfected  her  title  by
adverse possession and the plaintiff could not establish that Phoolbasa  Bai
was a concubine of late  Chhatrapati.   The  trial  court  also  recorded  a
finding that  the  plaintiff  failed  to  establish  that  the  Will  was  a
fraudulent and fabricated document.



8.    Aggrieved by the judgment and decree of  the  trial  court,  plaintiff
moved the High Court preferring First Appeal, which was partly dismissed  by
the learned Single Judge of the High Court.  Although learned  Single  Judge
set aside the finding of the trial court on the issue  of  validity  of  the
Will on the ground that the Will was not proved as per law, but  upheld  the
sale deed executed by Phoolbasa  Bai  in  favour  of  defendant  no.5.   The
concluding  paragraphs  of  the  impugned  order  are,   therefore,   quoted
hereinbelow:


"In the facts and circumstances, the sale in favour of defendant no.5 was  a
valid sale and the same cannot be held to be illegal, void and  not  binding
against the plaintiff.  The arguments advanced  in  this  regard  cannot  be
accepted.


Now the question arises, what should be the legal position after  the  death
of Smt. Phoolbasa and her son namely Mannulal when it  has  been  held  that
the alleged will executed in  favour  of  defendants  nos.1  to  4  was  not
proved.  Certainly these properties were succeeded by her from  her  husband
or from her father-in-law, therefore, according to Section 15(2)(b)  of  the
Hindu Succesion Act, this shall devolve,  in  the  absence  of  any  son  or
daughter of the deceased (including the children of any predeceased  son  or
daughter) upon the heirs of her husband.  In this case, if we  look  to  the
pedigree set forth in the  plaint,  the  succeeding  heir  of  her  husband,
namely Chhatrapati, would be sister's daughter which finds place  as  serial
no.4 in Entry IV of Class II of Schedule.   When  Radha  Bai,  the  sister's
daughter is said to be alive on the date  of  succession  according  to  the
plaint allegations itself, then the plaintiff,  in  the  reversionary  right
will not get the ownership of the property.


In the result, the appeal is dismissed.  The judgment and decree  passed  by
the trial court are hereby confirmed with  the  aforesaid  modifications  in
the finding regard the 'Will'."


9.    Hence, present cross appeals filed by both  side  against  each  other
including purchaser-defendant no.5.  Defendants nos.1 to  4  have  preferred
Civil Appeal No.3410 of 2007 and the plaintiff has  preferred  Civil  Appeal
No.3411 of 2007.


10.   Mr. Naveen Prakash,  learned  counsel  appearing  for  the  plaintiff-
appellant in C.A. No.3411 of 2007 assailed the finding on  the  relationship
of Chhatrapati and Phoolbasa  Bai  as  husband  and  legally  married  wife.
Learned counsel submitted that no witness from the  side  of  defendant  has
been examined to prove the marriage  of  Phoolbasa  Bai  with   Chhatrapati.
Learned counsel further submitted that no finding has been recorded  by  the
Trial Court or the Appellate Court as to when  Chhatrapati  died.   However,
in course of argument, learned counsel does not deny that Phoolbasa Bai  was
living with the joint family when Chhatrapati was  alive  for  the  last  20
years, but there is no evidence of valid marriage.


11.   We are unable to accept the submissions made by  Mr.  Naveen  Prakash,
learned counsel appearing for  the  plaintiff-appellant.  Indisputably,  the
first wife of Chhatrapati  died  in  the  very  early  age  and  immediately
thereafter the original defendant No.1 Phoolbasa  Bai  started  living  with
Chhatrapati as his second wife.  Out of the wedlock  of  Phoolbasa  Bai  and
Chhatrapati, one son was born, whose name was Mannu Lal.  The  said  son  of
Chhatrapati and Phoolbasa Bai died unmarried.  It is  also  not  in  dispute
that  the original owner Shiv Ram had only one son namely,  Chhatrapati  and
one daughter Sumitrabai. Phoolbasa Bai died during the pendency of the  suit
in the year 1992.  The relationship of Chhatrapati  and  Phoolbasa  Bai  has
not been denied.  It has also not been denied  that  they  had  been  living
together as husband and wife in a joint family.


12.   In the fact of the case there is strong presumption in favour  of  the
validity of a marriage and the legitimacy of its child for the  reason  that
the relationship of Chhatrapati and Phoolbasa  Bai  are  recognized  by  all
persons concerned.



13.   In the case of A. Dinohamy vs. W.L. Balahamy, AIR 1927 PC 185, it  was
held that where a man and  woman  are  proved  to  have  lived  together  as
husband and wife, the law will  presume,  unless  the  contrary  is  clearly
proved, that they were living together in consequence of a  valid  marriage,
and not in a state of concubinage.  The Court observed as follows-

"The parties lived together for twenty years in the same  house,  and  eight
children were born to them. The  husband  during  his  life  recognized,  by
affectionate provisions, his  wife,  and  children,  The  evidence'  of  the
Registrar of the District shows that for a long course of years the  parties
were recognized as married citizens,  and  even  the  family  functions  and
ceremonies, such as, in particular,  the  reception  of  the  relations  and
other guests in the family house by Don Andris  and  Balahamy  as  host  and
hostess--all such functions were conducted on the footing  alone  that  they
were man and wife. No evidence whatsoever  is  afforded  of  repudiation  of
this relation by husband or wife or anybody."



14.   In the case of Gokal Chand vs. Parvin Kumari, AIR 1952  SC  231,  this
Court observed that continuous co-habitation of woman as  husband  and  wife
and their treatment as such for a number of years may raise the  presumption
of marriage, but the presumption which may be drawn from long  co-habitation
is rebuttable and if there are circumstances which weaken and  destroy  that
presumption, the Court cannot ignore them.



15.   It is well settled that the law presumes in  favour  of  marriage  and
against concubinage, when a man and woman have cohabited continuously for  a
long  time.   However,  the  presumption  can   be   rebutted   by   leading
unimpeachable evidence.  A heavy burden  lies  on  a  party,  who  seeks  to
deprive the relationship of legal origin. In the instant  case,  instead  of
adducing unimpeachable evidence by the plaintiff, a plea was taken that  the
defendant has failed to prove the fact that Phoolbasa Bai  was  the  legally
married wife of Chhatrapati.  The High Court, therefore, came to  a  correct
conclusion by recording  a  finding  that  Phoolbasa  Bai  was  the  legally
married wife of Chhatrapati.



16.   For the aforesaid reason, we do not find any merit in C.A. No.3411  of
2007.



17.   So far the validity  of  will  is  concerned,  the  High  Court  after
considering a catena of decisions came to the following conclusion:-

"26. If we apply the above law in the present matter it  would  appear  that
the attesting witnesses were not examined because they were  not  alive  and
will has been proved by only examining the scribe as P.W.3.  Though  it  has
been stated by the Scribe that he has drafted and  typed  the  will  on  the
instructions of the testatrix, but this fact appears  to  be  false  on  the
face of  the  document  itself;  There  are  many  suspicious  circumstances
appearing on the face of document which go to suggest that in fact,  nothing
was drafted or typed by the scribe on the  instructions  of  the  testatrix,
but a typed matter was placed before him for getting it  registered  showing
as the will of the testatrix. First of all, it would appear that though  the
will has ended in the very second sheet but  there  is  no  space  left  for
signature of the scribe  and  the  scribe  has  inserted  his  signature  in
between the last two lines by using an ink pen.  Secondly  it  appears  that
the complete date like 18.8.1977 was not typed in the second page  and  only
-8-1977 was typed and figures like 18 have  been  inserted  by  an  ink  pen
showing as the document was executed on 18.8.1977.  EX.D-72  Muktarnama  was
also written and signed on the said date  and  the  suspicious  circumstance
appears that when this document (Muktarnama) was being executed,  the  thumb
impression over the alleged will was also taken  by  the  beneficiaries  and
the document writer was shown to be the Scribe of the document  whereas,  in
fact, the document was not scribed by him.  Another  important  circumstance
is that the original defendant namely Smt. Phoolbasa had died  on  20.9.1992
after filing of her written statement on 14.7.1987. The  date  of  execution
of the will is 18.8.1977 but there is no whisper of her will in her  written
statement which she had filed  on  the  said  date.  Though  it  was  not  a
requirement of law, but under a normal human nature if she has  pleaded  the
detailed administration of property, vide para 9 of her  written  statement,
right from its acquisition by Shiv Ram to the date of filing  of  the  suit,
(please see para 9 of the written  statement).  She  should  have  mentioned
something about the will, if this alleged will was in her knowledge and  she
in fact had executed the same in favour of  defendant  no.  1  to  4.  These
circumstances which are highly suspicious, have not been removed or  cleared
by the beneficiaries of the will and only by examining the  scribe,  who  is
not an attesting witness and whose statement is  not  very  satisfactory  in
appreciation on all above points, particularly in  the  situation  when  the
testatrix was residing in  the  dominion  of  the  beneficiaries  and  their
father and was keeping a fiduciary relations with them, it  cannot  be  held
that a  due  execution  of  will  has  been  proved  by  the  defendants  in
accordance with the provisions of section 68  or  other  provisions  of  the
Evidence Act. The finding recorded by the court below that due execution  of
the will is proved, is not in accordance  with  law  and  the  same  is  set
aside. The will is held to be not proved in this case."



18.   It is evident from the findings recorded by  the  High  Court  in  the
paragraph referred  to  hereinabove  that  the  Will  suffers  from  serious
suspicious circumstances.   The  execution  of  a  document  does  not  mean
mechanical act of  signing  the  document  or  getting  it  signed,  but  an
intelligent appreciation of the contents of the document and signing  it  in
token of acceptance of those contents.



19.   Proof of a Will stands in a  higher  degree  in  comparison  to  other
documents.  There must be a clear evidence of  the  attesting  witnesses  or
other witnesses that the  contents  of  the  Will  were  read  over  to  the
executant and  he,  after  admitting  the  same  to  be  correct,  puts  his
signature in presence of the witnesses.  It  is  only  after  the  executant
puts his signature, the attesting witnesses shall put  their  signatures  in
the presence of the executant.



20.   In the instant case, the suspicious circumstance appears  to  be  that
when the Will was being executed, the  thumb  impression  over  the  alleged
Will was also taken by the beneficiaries and the document-writer  was  shown
to be scribe of the document, whereas the document was not scribed  by  him.
However, late Phoolbasa Bai although  filed  written  statement  before  her
death, but she did not whisper  anything  about  the  Will  in  the  written
statement.  Admittedly, the Will was allegedly executed in 1977 whereas  the
written statement was filed some time in 1987.   Taking  into  consideration
all these facts, we do not filed any error in the conclusion arrived  at  by
the High Court.  The said finding, therefore, needs no interference by  this
Court.



21.   For the reasons aforesaid, we do not find any merit in  these  appeals
which are accordingly dismissed.



                                        ..................................J.
                                                                (M.Y. Eqbal)



                                        ..................................J.
                                                               (Amitava Roy)
New Delhi,
April 08, 2015.

Saturday, 7 March 2015

injunction order on property in india.

Order 39 Rule 1 & 2 of C.P.C. Cases in which temporary injunction may be granted.- Where in any Suit it is proved by affidavit or otherwise

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any 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 the wasting, damaging, alienation, sale, removal or disposition of the property 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.

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Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr. (2007) 14 SCC 721
Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra)
In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :
(i) Extent of damages being an adequate remedy;
(ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;
(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others;
(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;
(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case;
(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;
(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.”
In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-
“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 rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.”
This Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure.

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THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                OF 2009
(Arising out of SLP (Civil) No. 18934 of 2008)


Zenit Mataplast P. Ltd.                               ….Appellant

Versus

State of Maharashtra and Ors.                         ….Responde

JUDGMENT
Dr. B.S. Chauhan, J.
  1. Leave granted.
  2. This appeal has been filed against the order of the Bombay High Court dated 5.2.2008 rejecting the application for interim relief while admitting the Writ Petition No. 7245/2006 and expediting its hearing against the allotment of land by the respondent No.2 in favour of respondents nos.4 and 5.
  3. The facts and circumstances giving rise to this case are that appellant, a Private Ltd. Company, incorporated under the provisions of Companies’ Act 1956, is indulged in manufacturing of press components, moulded components, soft luggage, moulded luggage and other travel goods, tools, moulds jigs, dies fixtures and other engineering goods and carrying its business on a land measuring 4050 sq. meters on plot no.F-18 in the Satpur industrial Estate, Nasik. The appellant submitted an application dated 30.11.2005 (Annexure P-3) for allotment of 8000 sq. yards land from the adjacent vacant land on a prescribed form complying with other requirements. The said application was rejected by the respondent no.2, the Maharashtra Industrial Development Corporation (hereinafter referred to as `Corporation’), a Maharashtra Government Undertaking constituted under the provisions of Maharashtra Industrial Development Act, 1961 (for short 1961 Act). In fact, the Corporation has powers and duties to make allotment of land for industrial purposes. It appears that vide letter dated 14.3.2005 to the Hon’ble Chief Minister of Maharashtra, the respondent no.4, M/s. Mahendra & Mahendra Ltd., a leading industrial Company, asked for providing pending dues of incentives which were extended to it earlier. In the said letter it was also pointed out that the respondent no.4 has entered into a collaboration with automobile company Renault and intended to set up a joint venture for manufacturing of car, “The Logan” into India and the said respondent was locating the project at Nasik (Maharashtra) or Zahirabad (Andhra Pradesh) or at any other new place in Uttranchal. In the said letter, a demand for land measuring 5 to 8 acres for parking facilities at Satpur Industrial Estate, Nasik and 3 to 4 acres parking plot outside the existing factory gate at Nasik was also included. The Government of Maharashtra vide letter dated 10.6.2005 promised that the respondent no. 2 – Corporation would provide maximum possible vacant land in the existing area at the applicable rates and the Corporation would further facilitate acquisition of additional land identified by the Corporation for its project as well as for locating the cluster of industrial units (Annexure R.4/R.5). The Government of Maharashtra accorded the status of “Mega Project” to the forthcoming project of respondent no. 4 known as `Logan Car Project’ at Nasik vide letter dated 11.11.2005 (Annexure R.4/R.6). Respondent no. 4 submitted an informal application dated 23.11.2005 to the Respondent No. 2 to make the allotment of designated Open Space, Plot Nos. 8 and 9, in its favour. The user of land was changed from open space to Industrial Area vide resolution dated 10.2.2006 and plot was renumbered as 126, instead of Open Space No.9, by the respondent-corporation. The formal application was submitted for that purpose by the respondent no. 4 on 1.3.2006 to the respondent no. 2 (Annexure R.4/R.9). Respondent No. 2, vide letter dated 27.3.2006 (Annexure R.4/R.10), allotted the land measuring 17 acres in favour of the respondent no. 4 for a total premium of 7,51,14,600/- after changing the user of the land from vacant space to industrial. On the same date, namely, 27.3.2006, the respondent no. 4 was put in possession of the said land and an agreement for licence/lease was executed between respondent no. 2 and respondent no. 4 on 3.7.2006. A part of open space was also converted as a “parking space” and it was allotted in favour of respondent no.5 for parking of vehicles.
  4. The appellant made various representations to the Respondent No. 2, Corporation particularly, dated 15.3.2006, 3.4.2006, 25.8.2006, 3.10.2006 and 10.10.2006, pointing out that rejection of its application and allotment of huge area of land in favour of respondent Nos .4 and 5 was discriminatory and violative of laws and particularly the statutory requirement which provided for allotment of land to the neighbouring unit holders. The appellant asked that it may be allotted some part of the remaining land from the designated vacant land whose land user has been converted from open space to industrial Area. As no order was passed on its representations, the appellant filed the writ petition in October 2006 before the High Court. However, the Court admitted the writ petition, expedited the hearing of the writ petition but rejected the application for interim relief. Hence, this appeal.
  5. Shri Dushyant Dave, learned senior counsel appearing for the appellant has submitted that the application of the appellant has been rejected without assigning any reason whatsoever and probably the reason may be that on the date of passing the order the land was merely a designated vacant land and not meant for industrial purpose. However, in order to favour the respondent No.4, a big industrial house, the State authorities passed the directions to the respondent- Corporation to allot open space after change of user. Application of respondent no.4 was processed in haste and all consequential orders have been passed within a very short span of time. Land has been allotted to Respondent No.4 on the direction of the higher authorities, which is not permissible in law. Thus, such a course is violative of Article 14 of the Constitution of India. The writ petition filed by the appellant would become infructuous, if the respondent no.4 is permitted to develop the allotted land. The High Court ought to have granted the interim relief. Therefore, the appeal deserves to be allowed.
  6. On the contrary, Shri Bhaskar P. Gupta, learned senior counsel appearing for respondent No.4 has submitted that there had been large number of offers by various States to Respondent No.4 to set up the industry for the purpose of production of cars/jeeps and various incentives were offered, particularly, by the States of Madhya Pradesh and Andhra Pradesh. However, as it has several units in Maharashtra, the respondent No.4 made application to the Hon’ble the Chief Minister for allotment of land and after considering the facts, it was decided to make the allotment of land at Satpur Industrial Estate Nasik, as the appellant was having about four other units in close vicinity thereof. It is also submitted by Shri Gupta that no law has been violated and the authorities proceeded strictly in conformity with the statutory requirements. Respondent no.4 has already invested a huge amount in the project. Appellant did not approach the HighCourt promptly. Thus, the High Court has rightly refused to grant the interim relief. Impugned order does not require any interference.
  7. Shri Shyam Divan, learned senior counsel appearing for the respondent-Corporation has submitted that when the application of the appellant was rejected, the land in dispute was a designated vacant land and therefore, it could not be allotted for any industrial purpose. The land was allotted to the respondent no.4 after change of user, considering the requirement of respondent No.4 and taking into consideration various other factors, particularly, the development of the city keeping in mind that the industry of respondent No.4 would provide job to large number of persons and the people of the local area would be benefitted otherwise also. Appellant cannot be heard complaining against the allotment in dispute, as it is in consonance with all the statutory requirements. Interim relief could not be granted at a belated stage as the appellant had not filed the petition before the High Court immediately after allotment of the land. Thus, the interim application has rightly been rejected by the High Court.. The appeal has no merit, thus liable to be dismissed.
  8. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
  9. It is evident from the site plan that a large number of plots had been carved out from the huge area of land and in between, an open vacant space being No.9 was left. It is also evident from the said site plan that after plot Nos. F-13, F-14 and F-15, there was a vacant space and then, plot Nos. F- 18, F-19 etc. Thus, there must have been plot Nos. F-16 and F-17 between plotnos.F-15 and F-18, at one stage. The land in dispute was adjacent to said two plots also. The appellant had demanded the land from Plot Nos. F- 16 and F-17. However, there is nothing on record to show as to how these two plots bearing Nos. F-16 and F-17 could disappear from the site plan and become part of Open Space No.9.
  10. Application of the appellant has been rejected vide order dated 19.12.2005 without assigning any reason and it cannot be said as to whether the application was rejected merely on the ground that the land in dispute, at that time was a designated vacant land and not meant for the industrial purpose, thus, its application could not be entertained. On the contrary, admittedly in the year 2004, a part Plot No. F-17 (vacant space) measuring about 500 Sq.Mtrs. had been allotted to BSNL without the change of the user. No explanation could be furnished by the respondents as to under what circumstances such an allotment was permissible.
  11. So far as the allotment to respondent No.4 is concerned, this had been under the directions of the State Government to the Corporation. The Corporation changed the land user and made the allotment of land to the extent of 17 acres and the possession had been handed over immediately. The license deed had been executed and all the proceedings had been taken in close proximity of time. Letter written by respondent No.4 dated 14th March, 2005 (Annexure R4/4) to the Hon’ble Chief Minister suggests that some other States had offered the respondent No.4 various incentives for establishing an industrial unit. It is evident from the letter dated 10th June, 2005 (Annexure R4/5) written by the Secretary to the Ministry of Industries, Energy and Labour Department, Maharashtra to the Respondent No.4 that the State Government was willing to make various concessions and provide incentives including the allotment of land at Nasik for establishment of LOGAN cars project.
  12. The allotment of land is governed by the provisions of 1961 Act, Section 14 of which specifies the functions and powers of the Corporation and the Corporation has, in general power to promote and assist in the rapid and orderly establishment growth and development of industries in the State of Maharashtra. Section 15 thereof provides for general power of the Corporation which includes the power to acquire and hold the land and to dispose of the same by executing the lease, sale deeds, exchange or otherwise transfer any property. Section 31 of the 1961 Act, provides for acquisition and disposal of the land.
  13. The Maharashtra Industrial Development Corporation (Disposal of Land) Regulations, 1975 have been framed to give effect to the provisions of 1961 Act. Regulation 4 provides for disposal of the land covered by the lay out prepared by the Corporation by public auction or by entertaining individual applications. Regulation 6 provides for a particular form to be filled up where the allotment is to be made by applications and deposit of process fee etc. Regulation 10 provides that the Land Committee shall consider the application and pass appropriate orders for allotment of land.
  14. Government of Maharashtra had issued a Circular dated 25th January, 1994 regarding fixation of rate of industrial area in which allotment of plot has to be made by inviting tenders. Clause 4 thereof provided for “preferential right” of the unit holder for having allotment of “neighbouring land” for the purpose of factory expansion. It also provides that where there are more than one application for allotment, the plot may be disposed of by adopting the tender process.
  15. There had been claims and counter claims by the parties. The appellant claimed that it had preferential right for allotment of the part of the vacant land for expansion of its factory. However, its application has been rejected without giving any reason whatsoever, though the law requires giving the reasons for passing any order and the allotment in favour of respondent No.4 was passed in undue haste showing favouritism being a big industrial unit. The right of equality guaranteed under Article 14 of the Constitution stood violated. The application of the appellant had been made prior to the application made by respondent No.4. The respondent No.4 instead of making application to the Corporation started negotiations with the Government directly for allotment of land merely by writing a letter in June, 2005 and on 10th June, 2005 an understanding was arrived in between the Government of Maharashtra and respondent No.4 of commissioning of the Project at Nasik. The informal application was filed by respondent No.4 on 23.11.2005 for making allotment of land from Open Space No.9. The application of respondent No.4 was processed by Land Allotment Committee on 22nd December, 2005, wherein the observation was made that it was an important industry for the city land and its expansion would greatly benefit the industrial growth in Nasik.
  16. The user of land in Open Space No.9 was converted from Open Space to Industrial Area vide order/resolution dated 10th February, 2006 and it was re-numbered as Plot No.126. The first formal application was submitted by the respondent no.4 to the respondent-corporation only on 1.3.2006 and the allotment was made in favour of the respondent No.4 on 27.3.2006. Respondent no.4 was put in possession on 27.3.2006 itself. The license agreement was executed by the respondent corporation in favour of respondent no.4 on July 3, 2006. The demand of respondent No.4 had not been to the extent the area had been allotted.
In view of the above facts and circumstances, the sole question has arisen as to whether the High Court was justified in not granting the interim relief in favour of the appellant?
  1. Records reveal that the appellant had been bargaining with the respondent-Corporation making application after application for allotment of land from remaining vacant area and approached the Court at some belated stage. Even before the High Court the matter remained pending for long before it was admitted and the application for interim relief was rejected.
  2. The Regulation 1975 provides for allotment of land by public auction or by entertaining individual applications. Therefore, the question does arise as to whether without taking a decision that land is to be settled by negotiation, the process of auction or calling the tender can be dispensed with.
  3. In the instant case the appellant had been asking the respondent no.2 to grant the lease of plotnos.F-16 and F-17, which had earlier not been the part of the Open Space No.9, on the basis of being contiguous and adjacent to the appellant’s existing factory at plot no.F-18. It has been canvassed on behalf of the appellant that the action of the respondent no.2 is arbitrary and unreasonable and not in conformity with the statutory provisions.
  4. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism. The decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, but if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law (vide S.G.Jaisinghani Vs. Union of India & ors., AIR 1967 SC 1427; Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, AIR 1988 SC 157).
  5. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fide as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society. In I.R. Coelho (dead) by LRs Vs. State of Tamil Nadu, AIR 2007 SC 861, the Apex Court held as under:-
“The State is to deny no one equality before the law……..Economic growth and social equity are the two pillars of our Constitution which are linked to the right of an individual (right to equal opportunity), rather than in the abstract…….Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review.”
  1. In a case like this, when the applicant approaches the Court complaining against the Statutory Authority alleging arbitrariness, bias or favouritism, the court, being custodian of law, must examine the averments made in the application to form a tentative opinion as to whether there is any substance in those allegations. Such a course is also required to be followed while deciding the application for interim relief.
  2. Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (vide Anand Prasad Agarwalla v. State of Assam vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367; and Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694)
  3. Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr.(2007) 14 SCC 721.
  4. Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra).
  5. In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :
(i) Extent of damages being an adequate remedy;
(ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;
(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others;
(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;
(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case;
(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;
(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.”
  1. In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-
“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 rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.”
  1. This Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure.
  2. In Deoraj vs. State of Maharashtra & Ors. AIR2004 SC 1975, this Court considered a case where the courts below had refused the grant of interim relief. While dealing with the appeal, the Court observed that ordinarily in exercise of its jurisdiction under Art.136 of the Constitution, this Court does not interfere with the orders of interim nature passed by the High Court. However, this rule of discretion followed in practice is by way of just self-imposed restriction. An irreparable injury which forcibly tilts the balance in favour of the applicant, may persuade the Court even to grant an interim relief though it may amount to granting the final relief itself. The Court held as under:-
“The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice.”
  1. Such a course is permissible when the case of the applicant is based on his fundamental rights guaranteed by the Constitution of India. (vide All India Anna Dravida Munnetra Kazhagam vs. Chief Secretary, Govt. of Tamil Nadu & Ors. (2009) 5 SCC 452)
  2. In Bombay Dyeing & Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group & Ors. (2005) 5 SCC 61, this Court observed as under:-
“The courts, however, have to strike a balance between two extreme positions viz. whether the writ petition would itself become infructuous if interim order is refused, on the one hand, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that in such an event, the losses sustained by the affected parties thereby may not be possible to be redeemed.”
  1. Thus, the law on the issue emerges to the effect that interim injunction should be granted by the Court after considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party or, in case he looses the case, he cannot take any advantage of the same. The order can be passed on settled principles taking into account the three basic grounds i.e. prima facie case, balance of convenience and irreparable loss. The delay in approaching the Court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the Court may grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case.
  2. Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law.(Vide Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. V. Devendra Kumar Jain & Ors.(1995) 1 SCC 638; and Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia & Ors. AIR 2004 SC 1159).
  3. If the instant case is considered, in the light of the above settled legal propositions and admittedly the whole case of the appellant is based on violation of Article 14 of the Constitution as according to the appellant it has been a case of violation of equality clause enshrined in Article 14, the facts mentioned hereinabove clearly establish that the Corporation and the Government proceeded in haste while considering the application of respondent No.4 which tantamount to arbitrariness, thus violative of the mandate of Article 14 of the Constitution. Application of the appellant was required to be disposed of by a speaking and reasoned order. Admittedly, no reason was assigned for rejecting the same. There is nothing on record to show as on what date and under what circumstances, Plot nos.F-16 and F-17 stood decarved and became part of the Open Space No.9. The respondents could not furnish any explanation as in what manner and under what circumstances, the Bharat Sanchar Nigam Ltd. has been made allotment of land from plot no.F-16, (a part of Open Space No.9), without change of user of the land. The respondent no.4 had not initially asked for 17 acres of land which has been allotted to it. There is nothing on record to show as to why the land could not be disposed of by auction. All these circumstances provide for basis to form a tentative opinion that State and its instrumentalities have acted affectionately in the case of respondent no.4.
  4. Undoubtedly, there has been a delay on the part of the appellant in approaching the court but we cannot be oblivious of the fact that the appellant had been approaching the authorities time and again for allotment of the land. Admittedly, the entire land had not been developed by the respondent no.4 till this Court entertained the Special Leave Petition and directed the parties to maintain status quo with regard to the land measuring 2 acres adjacent to the appellant’s plotno.F-15 vide order dated 21.7.2008. Therefore, it is not only the appellant who is to be blamed for the delay. The land had been allotted to the respondent no.4 in undue haste and no development could take place therein for more than two years of taking the possession of the land. In such a fact-situation the submission made on behalf of the respondents that interim stay cannot be granted at a belated stage in preposterous.
  5. In view of above, we are of the considered opinion that the appeal deserves to be allowed and is hereby allowed. In the facts and circumstances of the case, the interim order passed by this Court on 21.7.2008 shall continue in operation till the writ petition is decided by the High Court. The Hon’ble High Court is requested to dispose of the writ petition expeditiously. Needless to say that any observation made herein either on facts or on law shall not adversely effect the case of either of the parties, for the reason that the only question before this Court has been as to whether the appellant deserves to be granted interim protection till his writ petition is decided by the High Court.
The appeal stands disposed of accordingly. No costs.
…………………………………..J.
(ALTAMAS KABIR) …………………………………J.
(Dr. B.S. CHAUHAN) New Delhi, September 11, 2009