{"id":135643,"date":"2007-12-12T00:00:00","date_gmt":"2007-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajay-mohan-ors-vs-h-n-rai-ors-on-12-december-2007"},"modified":"2017-05-24T22:12:42","modified_gmt":"2017-05-24T16:42:42","slug":"ajay-mohan-ors-vs-h-n-rai-ors-on-12-december-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajay-mohan-ors-vs-h-n-rai-ors-on-12-december-2007","title":{"rendered":"Ajay Mohan & Ors vs H.N. Rai & Ors on 12 December, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ajay Mohan & Ors vs H.N. Rai & Ors on 12 December, 2007<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Harjit Singh Bedi<\/div>\n
           CASE NO.:\nAppeal (civil)  5831 of 2007\n\nPETITIONER:\nAjay Mohan & Ors\n\nRESPONDENT:\nH.N. Rai & Ors\n\nDATE OF JUDGMENT: 12\/12\/2007\n\nBENCH:\nS.B. Sinha & Harjit Singh Bedi\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CIVIL APPEAL NO.    5831 OF 2007
\n(Arising out of SLP (C) No.13789 of 2007)<\/p>\n
S.B. Sinha, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tAppellants are aggrieved by and dissatisfied with the judgment and
\norder dated 16.6.2007 passed  in Appeal From Order No.320 of 2007 by a
\nDivision Bench of the Bombay High Court whereby and whereunder an
\nappeal from an order dated 12.4.2007 passed by City Civil Court, Bombay in
\nNotice of Motion No.944 of 2007 rejecting an application for injunction
\nfiled by them  was dismissed.\n<\/p>\n
3.\tAppellants are said to have become owners of the suit land by reason
\nof a deed of gift, which is said to have been executed by Mrs. Tara Sarup on
\n30.3.1968 in favour of the first appellant.  Indisputably, Respondents claim
\ntheir right, title, interest and possession on or over the land in suit in terms of
\nan agreement of sale purported to have been executed by the appellants
\nherein in their favour on or about 23.10.1969.\n<\/p>\n
4.\tAppellants’ case in relation to the said agreement for sale are :\n<\/p>\n
(a)\tIt is a forged document.\n<\/p>\n
(b)\tIn any event, the plaintiff No.1 being minor on the date of execution
\nof the agreement (his date of birth being 8.3.1952), the same is void in
\nlaw.\n<\/p>\n
5.\tThe claim of the respondents, on the other hand, is that out of the
\namount of consideration mentioned in the said agreement, namely
\nRs.90,000\/-, a sum of Rs.80,000\/- has already been paid and they were put in
\npossession thereover in part performance thereof, as envisaged under
\nSection 53A of Transfer of Property Act.\n<\/p>\n
6.\tVarious proceedings appear to have initiated before the Revenue
\nCourts in regard to inclusion of the name of the respondents in the Revenue
\nRecords.  It is further accepted that the first appellant herein had executed
\nthree deeds of assignment in favour of the second appellant herein on or
\nabout 29.6.1991.\n<\/p>\n
A suit was filed by the appellants before the City Civil Court, Bombay
\nwhich was marked as Suit No. 4962 of 2006 claiming, inter alia, for a decree
\nfor permanent injunction restraining the respondents from creating any right
\nin or over the suit land on the basis of revenue entries as also for a decree for
\npermanent injunction restraining them from interfering with their possession
\nand occupation thereupon.\n<\/p>\n
In the said suit, the appellants took out a notice of motion marked as
\nNotice of Motion No.3551 of 2006 and by order dated 13.10.2006, learned
\nJudge, City Civil Court, Bombay refused to grant an order of injunction,
\ninter alia, holding :\n<\/p>\n
(i)\tThe contentions advanced by the defendants are of much substance
\ninasmuch as in view of the execution of the agreement for sale, the
\nonus was upon the plaintiffs to get the said documents cancelled and
\ntreated as null and void.  Such a prayer having not been made, mere
\nrelief for injunction prayed for by the plaintiffs cannot give rise to
\nexistence of prima facie case for grant of relief at the interlocutory
\nstage.\n<\/p>\n
(ii)\tThe cardinal rule being that possession follows title, the plaintiff
\nproceeded under the assumption that he had assigned the suit property
\nto plaintiff No.2 who is a builder and developer and that plaintiff No.2
\nand plaintiff No.3 are said to be protecting the property.\n<\/p>\n
(iii)\tThe alleged threat of dispossession given by the defendants to the
\nplaintiffs being towards the end of May 2006, no details thereabout
\nhad been stated in the plaint and in that view of the matter also the
\nplaintiffs had failed to make out a prima facie case.\n<\/p>\n
(iv)\tAfter a report was prepared by the Revenue Officer, allegedly the
\ndefendants were found to be in possession.  As the plaintiffs had not
\nchallenged the agreement of sale dated 23.10.1969 whereunder only
\nthe defendants had been claiming their right, validity thereof or
\notherwise would be pre-judging the case at that stage.\n<\/p>\n
\tIt was also found that the plaintiffs had not approached the court with
\nclean hands.\n<\/p>\n
7.\tAppellants thereafter filed an application for amendment of plaint.
\nThey also preferred an appeal against the said order dated 13.10.2006 in the
\nHigh Court of Judicature at Bombay.  The said appeal, however, was
\nwithdrawn stating that they would move the trial court for amendment of the
\nplaint.  While allowing the said prayer, an observation was made that the
\ntrial court shall consider the question in regard to the amendment of plaint
\nwithout in any way being influenced by the observations made by the
\nlearned trial Judge in the impugned order.  Although, the High Court
\nallowed the appellants to withdraw the appeal, it directed the parties to
\nmaintain status quo for a period of two weeks.\n<\/p>\n
8.\tA chamber summons thereafter was taken by the appellants on or
\nabout 1.12.2006 wherein not only amendment of the plaint was prayed for
\nbut an interim order of injunction during the pendency of the said
\napplication was also prayed for.  We may notice the amendments sought for
\nby the appellants in the said Notice of Motion:
\n“(a)(i)\tThat it may be declared that the Defendants
\nor any of them have no right, title or interest
\nof any nature in respect of the plots of land
\nbearing at C.T.S. Nos.6A and 7\/1A of
\nvillage Powai, Taluka Kurla admeasuring
\nabout 37,673 sq. mtrs. and C.T.S. Nos.20
\nand 22 of village Tirandaz, Taluka Kurla
\nadmeasuring about 27,582 sq. mtrs. or any
\npart\/s thereof by virtue of the alleged
\nAgreement for Sale dated 23rd October,
\n1969, being Exhibit “A10” hereto or
\notherwise or at all;\n<\/p>\n
(a)(ii)\tthat the Defendants, their servants and
\nagents may be permanently restrained by an
\nOrder and injunction of this Hon’ble Court
\nfrom claiming any right, title or interest of
\nany nature in respect of the plots of land
\nbearing at C.T.S. Nos.A and 7\/1A of village
\nPowai, Taluka Kurla admeasuring about
\n37,673 sq. mtrs. and C.T.S. Nos.20 and 22 <\/span>
\nof village Tirandaz, Taluka Kurla
\nadmeasuring about 27,582 sq. mtrs. or any
\npart\/s thereof by virtue of the said alleged
\nAgreement for Sale dated 23rd October,
\n1969 being Exhibit “A-10” hereto or
\notherwise or at all.\n<\/p>\n
11.\tAdd in the prayer (a) in the Plaint after the
\nwords ‘pass an order of injunction’ add
\n“permanently”.\n<\/p>\n
12.\tAdd in prayer (a) after the words ‘Taluka:
\nKurla bearing ..’ delete the words
\n“CTS No.22 (Approx.) admeasuring 18,083
\nsq. mts.’ And instead add the following :\n<\/p>\n
\t“CTS Nos.20 and 22 admeasuring 27,582
\nsq. mts and at village Powai Taluka  Kurla
\nbearing CTS Nos.6A and 7-1A admeasuring
\n37,673 sq. mts. And”.\n<\/p>\n
13.\tAdd in the prayer (b) in the Plaint after the
\nwords ‘pass an order of injunction’ add
\n“permanently”.\n<\/p>\n
14.\t(i)\tAdd in prayer (b) after the words
\n‘Taluka : Kurla bearing ..’ delete the
\nwords “CTS No.22 (Approx.) admeasuring
\n18,083 sq. mts.’ And instead add the
\nfollowing :\n<\/p>\n
“CTS Nos.20 and 22 admeasuring 27,582
\nsq. mts and at village Powai Taluka  Kurla
\nbearing CTS Nos.6A and 7-1A admeasuring
\n37,673 sq. mts. And”.\n<\/p>\n
(ii)\tAdd in the Fourth line of prayer (b) after the
\nwords land occupation of the plaintiffs’ the
\nwords “Nos.2 and 3”.\n<\/p>\n
15.\tIn prayer clause (c) after the words prayer
\nclauses add ‘(a(i)’.”\n<\/p>\n
9.\tPrayer for interim relief was rejected by the learned judge, City Civil
\nCourt opining that the earlier order dated 13.10.2006 became final.\n<\/p>\n
10.\tAgainst the said order, the appellants again approached the High
\nCourt and by an order dated 10.1.2007, a learned Single Judge noticing that
\nthe proposed amendment fell short of relief of declaration that the suit
\nagreement was null and void and to be set aside, came to the conclusion :
\n“This indicates that the Appellants were conscious
\nthat such relief will have to be pressed in respect of
\nthe suit documents.  Obviously, that perception is
\non account of the fact that the said documents were
\nmade subject matter of proceedings before the
\nRevenue Authorities indeed, the Respondents have
\nstated on affidavit that the Original copy of the
\nsaid document has been lost in respect of which
\npolice complaint is already instituted.  In such a
\ncase, however, it is possible for the Respondents to
\nestablish the fact of existence of such Agreement
\nby relying on secondary evidence on fulfilling the
\nrequired norms in that behalf.  Be that as it may,
\nprima facie, it is seen from the record that the
\nexecution of the suit documents has been disputed
\nby the Appellants as back as in 1984, which stand
\nhas been dealt with by the Authorities.  Suffice it
\nto observe that the Appellants would succeed only
\nif they were to challenge the subject Agreement,
\ninasmuch as the Defendants were asserting rights
\nin respect of the suit land on the basis of the said
\nAgreement.  The fact that the Original copy of the
\nsaid Agreement is not in existence does not alter
\nthe situation so as to absolve the Appellants from
\nclaiming relief that the said Agreement is null and
\nvoid and to set it aside.”\n<\/p>\n
\tOn the said findings, the judgment and order of the City Civil Court
\nwas upheld.\n<\/p>\n
11.\tA Special Leave Application was filed before this Court against the
\nsaid order which was marked as SLP (C) No.1218 of 2007.  The same was
\ndisposed of by an order dated 2.2.2007, stating :
\n“Counsel for the respondent-defendants, on
\ninstructions, states that the defendants have no
\nintention to create third party rights till the disposal
\nof the amendment application filed by the
\npetitioners before the concerned City Civil Court,
\nwhich is coming up before the said Court for
\ndisposal on 7th February, 2007.  We direct the
\nconcerned Court to dispose of the Chamber
\nSummons on 7th February, 2007 and till then, as
\nstated on behalf of the counsel for the respondents-
\ndefendants, no third party interest shall be created.
\nThe Chamber Summons shall be decided
\nuninfluenced by any observations made by the
\nHigh Court in the impugned order.\n<\/p>\n
Counsel for the Petitioners submits that the prayers
\nmade in the Chamber Summons are for
\namendment of the plaint as well as for interim
\nreliefs.\n<\/p>\n
The Court will consider all the reliefs prayed for in
\nthe Chamber Summons and pass appropriate
\norders.\n<\/p>\n
The Special Leave Petition is disposed of
\naccordingly.”\n<\/p>\n
12.\tBy an order dated 28.2.2007, the application for amendment was
\nallowed.  Keeping in view the fact that the plaintiffs’ prayer for grant of
\ninterim injunction was confined in the earlier notice of motion till the
\ndisposal thereof, the plaintiff did not press for the second prayer expressing
\nhis desire to take out a separate notice of motion.
\nA notice of motion for grant of injunction was again taken out which
\nwas dismissed by reason of an order dated 12.3.2007 by the learned Judge,
\nCity Civil Court.  In regard to the order of this Court dated 2.2.2007, the
\nlearned Judge observed :\n<\/p>\n
“I have read and reread the order of the Supreme
\nCourt.  The Apex Court has said that this Court
\nwill consider all the reliefs prayed for in the
\nChamber Summons and pass appropriate order.
\nThe word “interim” is defined in Black’s Law
\nDictionary as “in the meantime”, “temporary” and
\n“occurring in intervening time”.  The relevant
\nmeaning here appears to be “occurring in
\nintervening time”.  Therefore, I am of the view that
\nthe Apex Court has referred to the period till the
\nhearing and disposal of the Chamber Summons.
\nNow the chamber summon, is disposed of.  It is
\nallowed and all amendments are incorporated in
\nthe plaint.  Therefore, there is no stage, which is
\n“occurring in intervening time”.  In this view of
\nthe matter, I do not find any substance in this
\nnotice of motion.  I, therefore, pass the following
\norder :\n<\/p>\n
ORDER
\nNotice of motion stands dismissed.  No order as to
\ncost.\n<\/p>\n
The same may be registered for statistical
\npurpose.”\n<\/p>\n
\tBy reason of the impugned judgment, the High Court has upheld the
\nsaid order.\n<\/p>\n
13.\tMr. R.F. Nariman, learned senior counsel appearing on behalf of the
\nappellant, inter alia, would submit that the appellants have never been heard
\non merit of the matter.  The learned counsel argued that keeping in view the
\nnature and  purport of the order of this Court dated 2.2.2007, the City Civil
\nCourt could not have relied upon its earlier order.  Consequently, the High
\nCourt had also committed a manifest error in applying the principles of res
\njudicata which have no application in the instant case.  It was contended that
\nthe purported finding of the learned Judge, City Civil Court to the effect that
\nthe defendants had been found to be in actual physical possession of the suit
\nproperty on the date of institution of the suit was clearly erroneous inasmuch
\nas no such finding had been arrived at by the said court while passing its
\norder dated 13.10.2006.  It was urged that the report of an officer appointed
\nby the Revenue Minister found the appellant to be in possession of the
\nproperty and in that view of the matter, it was not necessary for them to pray
\nfor a decree for cancellation and setting aside of the agreement for sale dated
\n23.10.1969.  In any event, having regard to the observations made by the
\nHigh Court, it was obligatory on the part of the courts below to consider the
\nmerit of the matter afresh.\n<\/p>\n
14.\tMr. Ashok Desai, learned senior counsel appearing on behalf of the
\nrespondents, on the other hand, contended that the learned City Civil Court
\nrejected the application for grant of injunction in favour of the appellants,
\ninter alia, holding that :\n<\/p>\n
(a)\tPlaintiffs do not have any prima facie case;\n<\/p>\n
(b)\tThey had not approached the Court with clean hands;\n<\/p>\n
(c)\tThe delay in questioning the validity of the said agreement of sale
\ndisentitles the plaintiffs from obtaining the order of injunction and
\nthey had not challenged the validity of the said agreement in the suit.
\n\tIt was contended that the very fact that the appellants had withdrawn
\nthe appeal without reserving their liberty to move the Trial Judge again for
\ninjunction would clearly attract the principles of res judicata, Mr. Desai
\nwould submit that although an opportunity had been granted to the
\nappellants to pray for a relief of cancellation of the said deed of sale, the
\nsame was not prayed for which would demonstrate speculative nature of the
\nlitigation resorted to by the plaintiffs.  A party to a suit, undoubtedly, may
\nfile an application for injunction if a change in the situation has been brought
\nabout but there being no said change, it was urged, the second application
\nfor injunction would not be maintainable.\n<\/p>\n
15.\tIt is a trite law that the principles of res judicata apply in different
\nstages of the same proceedings.  [See Satyadhyan Ghosal & Ors. v. Smt.
\nDeorajin Debi & Anr.<\/a> [AIR 1960 SC 941] _Arjun Singh v.Mohindra Kumar
\n& Ors. [(AIR 1964 SC 993]; and C.V. Rajendran & Anr. v. N.M.
\nMuhammed Kunhi<\/a> [(2002) 7 SCC 447] Ishwar Dutt v. Land Acquisition
\nCollector & Anr.<\/a>[(2005)7 SCC 190] and Bhanu Kumar Jain  v.  Archana
\nKumar & Anr.<\/a> [(2005) 1 SCC 787].\n<\/p>\n
\tThe entire claim of the plaintiff was based on their claim of
\npossession of the lands in suit.  Defendants, on the other hand, claimed their
\nright, title, interest and possession on the basis of the purported agreement
\nfor sale.  Whether possession had been delivered to them in part
\nperformance of agreement of sale or not  is essentially a question of fact.
\nGenuineness or otherwise of the said agreement also involves determination
\nof a disputed question.\n<\/p>\n
16.\tPlaintiffs, while praying for the relief of interim injunction, were
\nbound to establish a prima facie case.  They were also bound to show that
\nthe balance of convenience lay in their favour and unless the prayer is
\ngranted, they will suffer an irreparable injury.\n<\/p>\n
The learned Judge, City Civil Court clearly found that prima facie, the
\nplaintiffs’ suit was not maintainable in absence of any prayer for
\ncancellation and setting aside of the said agreement for sale having been
\nmade for in the suit.\n<\/p>\n
\tAppellants although had been contending that such a relief was not
\nnecessary as it was merely a defence of the respondents, why they did not
\nraise such a question in the original suit is a matter of guess.  We do not
\nknow as to why the plaintiffs, despite opportunities having been given to
\nthem, failed to make such a prayer even while seeking the Court’s ‘leave’ to
\namend the plaint.\n<\/p>\n
17.\tThe order of the City Civil Court dated 13.10.2006 may be bad but
\nthen it was required to be set aside by the Court of Appeal.  An appeal had
\nbeen preferred by the appellants thereagainst but the same had been
\nwithdrawn.  The said order dated 13.10.2006, therefore, attained finality.
\nThe High Court, while allowing the appellant to withdraw the appeal, no
\ndoubt, passed an order of status quo for a period of two weeks in terms of its
\norder dated 23.11.2006 but no reason therefor had been assigned.  It ex facie
\nhad no jurisdiction to pass such an interim order.  Once the appeal was
\npermitted to be withdrawn, the Court became functus officio.  It did not hear
\nthe parties on merit.  It had not assigned any reason in support thereof.
\nOrdinarily, a court, while allowing a party to withdraw an appeal, could not
\nhave granted a further relief.  [See G.E. Power Controls India & Ors. v. S.
\nLakshmipathy & Ors. [(2005) 11 SCC 509].\n<\/p>\n
18.\tEven then, the plaintiff preferred to file a fresh notice of motion.  It
\ndid not file any application for grant of injunction till the disposal of the suit.
\nIt, principally, in the said notice of motion asked for amendment of the
\nplaint.  The second relief prayed for in the said notice of motion was again
\nwithdrawn with liberty to file a fresh notice of motion.  Appellants,
\ntherefore, have been filing applications after applications without making
\nproper prayer therein at all stages.\n<\/p>\n
19.\tSo far as the order of this Court dated 2.2.2007 is concerned at the
\nfirst blush, it appears that this Court could not have granted any relief to
\nreagitate the questions of hearing the parties and interim relief once over
\nagain.  Even if that be so, the said interim relief having regard to the
\nadmitted facts was to be kept confined only for a short term, namely, till the
\napplication for amendment is considered.  This Court, therefore, did not
\ngrant any liberty to the plaintiffs to file a fresh application for injunction.  It
\ncould not comprehend thereabout at that time.  The Notice of Motion taken
\nout for grant of injunction was, therefore, required to be considered on its
\nown merit.  The plaintiffs had not brought out any new circumstances
\nwarranting grant of any injunction in their favour.  Only because a further
\nprayer had been made in the suit upon amending the plaint, the same by
\nitself did not bring about a situational change warranting application of mind
\nafresh by the learned Judge, City Civil Court.  The only argument which is
\navailable to the appellants was that the suit, by reason of amendment made
\nin the prayer, has become maintainable.  Maintainability of the suit itself
\ndoes not give rise to a triable issue.  The issues which arose for consideration
\nin the suit are the ones we would have noticed hereinbefore, namely, inter
\nalia, the validity of the agreement for sale and\/or grant of possession in
\nfavour of the defendants\/respondents.  How, by sheer amendment of the
\nplaint, the plaintiff could prove a prima facie case or show existence of a
\nbalance of convenience in their favour, has not been demonstrated.\n<\/p>\n
20.\tWe are, therefore, of the opinion that although learned Judge, High
\nCourt, while passing its order dated 13.10.2006 could have considered the
\nmerit of the application filed by the appellant in regard to the relief for
\ninjunction, the same by itself, in our opinion, did not warrant a direction to
\nconsider the matter afresh by the learned Judge, City Civil Court.
\n\tWe are, therefore, are of the opinion that the impugned judgment do
\nnot suffer from any in infirmity.  We would, however, having regard to the
\npeculiar facts and circumstances of the case, request the learned Judge, City
\nCivil Court to consider the desirability of disposing of the suit as
\nexpeditiously as possible preferably within a period of six weeks from the
\ndate of communication of this order.  The parties are directed to render all
\ncooperation to the learned Judge in early disposal of the suit.  If it is
\nconvenient to the learned Judge, the hearing of the suit may be taken up on
\nday to day basis.\n<\/p>\n
21.\tThis appeal is dismissed with costs.  Counsel’s fee quantified at
\nRs.25,000\/- (Rupees twenty five thousand only).<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ajay Mohan & Ors vs H.N. Rai & Ors on 12 December, 2007 Author: S Sinha Bench: S.B. Sinha, Harjit Singh Bedi CASE NO.: Appeal (civil) 5831 of 2007 PETITIONER: Ajay Mohan & Ors RESPONDENT: H.N. Rai & Ors DATE OF JUDGMENT: 12\/12\/2007 BENCH: S.B. Sinha & Harjit Singh Bedi JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-135643","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAjay Mohan & Ors vs H.N. 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