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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: J U D G M E N T

CIVIL APPEAL NO.    5831 OF 2007 (Arising out of SLP (C) No.13789 of 2007)

S.B. Sinha, J.

1.      Leave granted. 2.      Appellants are aggrieved by and dissatisfied with the judgment and  order dated 16.6.2007 passed  in Appeal From Order No.320 of 2007 by a  Division Bench of the Bombay High Court whereby and whereunder an  appeal from an order dated 12.4.2007 passed by City Civil Court, Bombay in  Notice of Motion No.944 of 2007 rejecting an application for injunction  filed by them  was dismissed. 3.      Appellants are said to have become owners of the suit land by reason  of a deed of gift, which is said to have been executed by Mrs. Tara Sarup on  30.3.1968 in favour of the first appellant.  Indisputably, Respondents claim  their right, title, interest and possession on or over the land in suit in terms of  an agreement of sale purported to have been executed by the appellants  herein in their favour on or about 23.10.1969.   4.      Appellants’ case in relation to the said agreement for sale are : (a)     It is a forged document. (b)     In any event, the plaintiff No.1 being minor on the date of execution  of the agreement (his date of birth being 8.3.1952), the same is void in  law. 5.      The claim of the respondents, on the other hand, is that out of the  amount of consideration mentioned in the said agreement, namely  Rs.90,000/-, a sum of Rs.80,000/- has already been paid and they were put in  possession thereover in part performance thereof, as envisaged under  Section 53A of Transfer of Property Act. 6.      Various proceedings appear to have initiated before the Revenue  Courts in regard to inclusion of the name of the respondents in the Revenue  Records.  It is further accepted that the first appellant herein had executed  three deeds of assignment in favour of the second appellant herein on or  about 29.6.1991.   A suit was filed by the appellants before the City Civil Court, Bombay  which was marked as Suit No. 4962 of 2006 claiming, inter alia, for a decree  for permanent injunction restraining the respondents from creating any right  in or over the suit land on the basis of revenue entries as also for a decree for  permanent injunction restraining them from interfering with their possession  and occupation thereupon.   In the said suit, the appellants took out a notice of motion marked as  Notice of Motion No.3551 of 2006 and by order dated 13.10.2006, learned  Judge, City Civil Court, Bombay refused to grant an order of injunction,  inter alia, holding : (i)     The contentions advanced by the defendants are of much substance  inasmuch as in view of the execution of the agreement for sale, the  onus was upon the plaintiffs to get the said documents cancelled and

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treated as null and void.  Such a prayer having not been made, mere  relief for injunction prayed for by the plaintiffs cannot give rise to  existence of prima facie case for grant of relief at the interlocutory  stage.   (ii)    The cardinal rule being that possession follows title, the plaintiff  proceeded under the assumption that he had assigned the suit property  to plaintiff No.2 who is a builder and developer and that plaintiff No.2  and plaintiff No.3 are said to be protecting the property. (iii)   The alleged threat of dispossession given by the defendants to the  plaintiffs being towards the end of May 2006, no details thereabout  had been stated in the plaint and in that view of the matter also the  plaintiffs had failed to make out a prima facie case.   (iv)    After a report was prepared by the Revenue Officer, allegedly the  defendants were found to be in possession.  As the plaintiffs had not  challenged the agreement of sale dated 23.10.1969 whereunder only  the defendants had been claiming their right, validity thereof or  otherwise would be pre-judging the case at that stage.  

       It was also found that the plaintiffs had not approached the court with  clean hands. 7.      Appellants thereafter filed an application for amendment of plaint.   They also preferred an appeal against the said order dated 13.10.2006 in the  High Court of Judicature at Bombay.  The said appeal, however, was  withdrawn stating that they would move the trial court for amendment of the  plaint.  While allowing the said prayer, an observation was made that the  trial court shall consider the question in regard to the amendment of plaint  without in any way being influenced by the observations made by the  learned trial Judge in the impugned order.  Although, the High Court  allowed the appellants to withdraw the appeal, it directed the parties to  maintain status quo for a period of two weeks.   8.      A chamber summons thereafter was taken by the appellants on or  about 1.12.2006 wherein not only amendment of the plaint was prayed for  but an interim order of injunction during the pendency of the said  application was also prayed for.  We may notice the amendments sought for  by the appellants in the said Notice of Motion: "(a)(i) That it may be declared that the Defendants  or any of them have no right, title or interest  of any nature in respect of the plots of land  bearing at C.T.S. Nos.6A and 7/1A of  village Powai, Taluka Kurla admeasuring  about 37,673 sq. mtrs. and C.T.S. Nos.20  and 22 of village Tirandaz, Taluka Kurla  admeasuring about 27,582 sq. mtrs. or any  part/s thereof by virtue of the alleged  Agreement for Sale dated 23rd October,  1969, being Exhibit "A10" hereto or  otherwise or at all; (a)(ii) that the Defendants, their servants and  agents may be permanently restrained by an  Order and injunction of this Hon’ble Court  from claiming any right, title or interest of  any nature in respect of the plots of land  bearing at C.T.S. Nos.A and 7/1A of village  Powai, Taluka Kurla admeasuring about  37,673 sq. mtrs. and C.T.S. Nos.20 and 22  of village Tirandaz, Taluka Kurla  admeasuring about 27,582 sq. mtrs. or any  part/s thereof by virtue of the said alleged  Agreement for Sale dated 23rd October,  1969 being Exhibit "A-10" hereto or  otherwise or at all. 11.     Add in the prayer (a) in the Plaint after the  words ’pass an order of injunction’ add  "permanently". 12.     Add in prayer (a) after the words ’Taluka:

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Kurla bearing \005\005\005..’ delete the words  "CTS No.22 (Approx.) admeasuring 18,083  sq. mts.’ And instead add the following :         "CTS Nos.20 and 22 admeasuring 27,582  sq. mts and at village Powai Taluka \026 Kurla  bearing CTS Nos.6A and 7-1A admeasuring  37,673 sq. mts. And". 13.     Add in the prayer (b) in the Plaint after the  words ’pass an order of injunction’ add  "permanently". 14.     (i)     Add in prayer (b) after the words  ’Taluka : Kurla bearing \005\005\005..’ delete the  words "CTS No.22 (Approx.) admeasuring  18,083 sq. mts.’ And instead add the  following : "CTS Nos.20 and 22 admeasuring 27,582  sq. mts and at village Powai Taluka \026 Kurla  bearing CTS Nos.6A and 7-1A admeasuring  37,673 sq. mts. And". (ii)    Add in the Fourth line of prayer (b) after the  words land occupation of the plaintiffs’ the  words "Nos.2 and 3". 15.     In prayer clause (c) after the words prayer  clauses add ’(a(i)’."

9.      Prayer for interim relief was rejected by the learned judge, City Civil  Court opining that the earlier order dated 13.10.2006 became final. 10.     Against the said order, the appellants again approached the High  Court and by an order dated 10.1.2007, a learned Single Judge noticing that  the proposed amendment fell short of relief of declaration that the suit  agreement was null and void and to be set aside, came to the conclusion : "This indicates that the Appellants were conscious  that such relief will have to be pressed in respect of  the suit documents.  Obviously, that perception is  on account of the fact that the said documents were  made subject matter of proceedings before the  Revenue Authorities indeed, the Respondents have  stated on affidavit that the Original copy of the  said document has been lost in respect of which  police complaint is already instituted.  In such a  case, however, it is possible for the Respondents to  establish the fact of existence of such Agreement  by relying on secondary evidence on fulfilling the  required norms in that behalf.  Be that as it may,  prima facie, it is seen from the record that the  execution of the suit documents has been disputed  by the Appellants as back as in 1984, which stand  has been dealt with by the Authorities.  Suffice it  to observe that the Appellants would succeed only  if they were to challenge the subject Agreement,  inasmuch as the Defendants were asserting rights  in respect of the suit land on the basis of the said  Agreement.  The fact that the Original copy of the  said Agreement is not in existence does not alter  the situation so as to absolve the Appellants from  claiming relief that the said Agreement is null and  void and to set it aside."

       On the said findings, the judgment and order of the City Civil Court  was upheld.   11.     A Special Leave Application was filed before this Court against the  said order which was marked as SLP (C) No.1218 of 2007.  The same was  disposed of by an order dated 2.2.2007, stating : "Counsel for the respondent-defendants, on

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instructions, states that the defendants have no  intention to create third party rights till the disposal  of the amendment application filed by the  petitioners before the concerned City Civil Court,  which is coming up before the said Court for  disposal on 7th February, 2007.  We direct the  concerned Court to dispose of the Chamber  Summons on 7th February, 2007 and till then, as  stated on behalf of the counsel for the respondents- defendants, no third party interest shall be created. The Chamber Summons shall be decided  uninfluenced by any observations made by the  High Court in the impugned order. Counsel for the Petitioners submits that the prayers  made in the Chamber Summons are for  amendment of the plaint as well as for interim  reliefs. The Court will consider all the reliefs prayed for in  the Chamber Summons and pass appropriate  orders. The Special Leave Petition is disposed of  accordingly."

12.     By an order dated 28.2.2007, the application for amendment was  allowed.  Keeping in view the fact that the plaintiffs’ prayer for grant of  interim injunction was confined in the earlier notice of motion till the  disposal thereof, the plaintiff did not press for the second prayer expressing  his desire to take out a separate notice of motion.   A notice of motion for grant of injunction was again taken out which  was dismissed by reason of an order dated 12.3.2007 by the learned Judge,  City Civil Court.  In regard to the order of this Court dated 2.2.2007, the  learned Judge observed : "I have read and reread the order of the Supreme  Court.  The Apex Court has said that this Court  will consider all the reliefs prayed for in the  Chamber Summons and pass appropriate order.   The word "interim" is defined in Black’s Law  Dictionary as "in the meantime", "temporary" and   "occurring in intervening time".  The relevant  meaning here appears to be "occurring in  intervening time".  Therefore, I am of the view that  the Apex Court has referred to the period till the  hearing and disposal of the Chamber Summons.   Now the chamber summon, is disposed of.  It is  allowed and all amendments are incorporated in  the plaint.  Therefore, there is no stage, which is  "occurring in intervening time".  In this view of  the matter, I do not find any substance in this  notice of motion.  I, therefore, pass the following  order : ORDER Notice of motion stands dismissed.  No order as to  cost. The same may be registered for statistical  purpose."

       By reason of the impugned judgment, the High Court has upheld the  said order.   13.     Mr. R.F. Nariman, learned senior counsel appearing on behalf of the  appellant, inter alia, would submit that the appellants have never been heard  on merit of the matter.  The learned counsel argued that keeping in view the  nature and  purport of the order of this Court dated 2.2.2007, the City Civil  Court could not have relied upon its earlier order.  Consequently, the High

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Court had also committed a manifest error in applying the principles of res  judicata which have no application in the instant case.  It was contended that  the purported finding of the learned Judge, City Civil Court to the effect that  the defendants had been found to be in actual physical possession of the suit  property on the date of institution of the suit was clearly erroneous inasmuch  as no such finding had been arrived at by the said court while passing its  order dated 13.10.2006.  It was urged that the report of an officer appointed  by the Revenue Minister found the appellant to be in possession of the  property and in that view of the matter, it was not necessary for them to pray  for a decree for cancellation and setting aside of the agreement for sale dated  23.10.1969.  In any event, having regard to the observations made by the  High Court, it was obligatory on the part of the courts below to consider the  merit of the matter afresh.  14.     Mr. Ashok Desai, learned senior counsel appearing on behalf of the  respondents, on the other hand, contended that the learned City Civil Court  rejected the application for grant of injunction in favour of the appellants,  inter alia, holding that :  (a)     Plaintiffs do not have any prima facie case; (b)     They had not approached the Court with clean hands; (c)     The delay in questioning the validity of the said agreement of sale  disentitles the plaintiffs from obtaining the order of injunction and  they had not challenged the validity of the said agreement in the suit.         It was contended that the very fact that the appellants had withdrawn  the appeal without reserving their liberty to move the Trial Judge again for  injunction would clearly attract the principles of res judicata, Mr. Desai  would submit that although an opportunity had been granted to the  appellants to pray for a relief of cancellation of the said deed of sale, the  same was not prayed for which would demonstrate speculative nature of the  litigation resorted to by the plaintiffs.  A party to a suit, undoubtedly, may  file an application for injunction if a change in the situation has been brought  about but there being no said change, it was urged, the second application  for injunction would not be maintainable. 15.     It is a trite law that the principles of res judicata apply in different  stages of the same proceedings.  [See Satyadhyan Ghosal & Ors. v. Smt.  Deorajin Debi & Anr. [AIR 1960 SC 941] _Arjun Singh v.Mohindra Kumar  & Ors. [(AIR 1964 SC 993]; and C.V. Rajendran & Anr. v. N.M.  Muhammed Kunhi [(2002) 7 SCC 447] Ishwar Dutt v. Land Acquisition  Collector & Anr.[(2005)7 SCC 190] and Bhanu Kumar Jain  v.  Archana  Kumar & Anr. [(2005) 1 SCC 787].         The entire claim of the plaintiff was based on their claim of  possession of the lands in suit.  Defendants, on the other hand, claimed their  right, title, interest and possession on the basis of the purported agreement  for sale.  Whether possession had been delivered to them in part  performance of agreement of sale or not  is essentially a question of fact.   Genuineness or otherwise of the said agreement also involves determination  of a disputed question. 16.     Plaintiffs, while praying for the relief of interim injunction, were  bound to establish a prima facie case.  They were also bound to show that  the balance of convenience lay in their favour and unless the prayer is  granted, they will suffer an irreparable injury.   

The learned Judge, City Civil Court clearly found that prima facie, the  plaintiffs’ suit was not maintainable in absence of any prayer for  cancellation and setting aside of the said agreement for sale having been  made for in the suit.

       Appellants although had been contending that such a relief was not  necessary as it was merely a defence of the respondents, why they did not  raise such a question in the original suit is a matter of guess.  We do not  know as to why the plaintiffs, despite opportunities having been given to  them, failed to make such a prayer even while seeking the Court’s ’leave’ to  amend the plaint.   17.     The order of the City Civil Court dated 13.10.2006 may be bad but  then it was required to be set aside by the Court of Appeal.  An appeal had  been preferred by the appellants thereagainst but the same had been

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withdrawn.  The said order dated 13.10.2006, therefore, attained finality.   The High Court, while allowing the appellant to withdraw the appeal, no  doubt, passed an order of status quo for a period of two weeks in terms of its  order dated 23.11.2006 but no reason therefor had been assigned.  It ex facie  had no jurisdiction to pass such an interim order.  Once the appeal was  permitted to be withdrawn, the Court became functus officio.  It did not hear  the parties on merit.  It had not assigned any reason in support thereof.   Ordinarily, a court, while allowing a party to withdraw an appeal, could not  have granted a further relief.  [See G.E. Power Controls India & Ors. v. S.  Lakshmipathy & Ors. [(2005) 11 SCC 509].

18.     Even then, the plaintiff preferred to file a fresh notice of motion.  It  did not file any application for grant of injunction till the disposal of the suit.   It, principally, in the said notice of motion asked for amendment of the  plaint.  The second relief prayed for in the said notice of motion was again  withdrawn with liberty to file a fresh notice of motion.  Appellants,  therefore, have been filing applications after applications without making  proper prayer therein at all stages.   19.     So far as the order of this Court dated 2.2.2007 is concerned at the  first blush, it appears that this Court could not have granted any relief to  reagitate the questions of hearing the parties and interim relief once over  again.  Even if that be so, the said interim relief having regard to the  admitted facts was to be kept confined only for a short term, namely, till the  application for amendment is considered.  This Court, therefore, did not  grant any liberty to the plaintiffs to file a fresh application for injunction.  It  could not comprehend thereabout at that time.  The Notice of Motion taken  out for grant of injunction was, therefore, required to be considered on its  own merit.  The plaintiffs had not brought out any new circumstances  warranting grant of any injunction in their favour.  Only because a further  prayer had been made in the suit upon amending the plaint, the same by  itself did not bring about a situational change warranting application of mind  afresh by the learned Judge, City Civil Court.  The only argument which is  available to the appellants was that the suit, by reason of amendment made  in the prayer, has become maintainable.  Maintainability of the suit itself  does not give rise to a triable issue.  The issues which arose for consideration  in the suit are the ones we would have noticed hereinbefore, namely, inter  alia, the validity of the agreement for sale and/or grant of possession in  favour of the defendants/respondents.  How, by sheer amendment of the  plaint, the plaintiff could prove a prima facie case or show existence of a  balance of convenience in their favour, has not been demonstrated.   20.     We are, therefore, of the opinion that although learned Judge, High  Court, while passing its order dated 13.10.2006 could have considered the  merit of the application filed by the appellant in regard to the relief for  injunction, the same by itself, in our opinion, did not warrant a direction to  consider the matter afresh by the learned Judge, City Civil Court.           We are, therefore, are of the opinion that the impugned judgment do  not suffer from any in infirmity.  We would, however, having regard to the  peculiar facts and circumstances of the case, request the learned Judge, City  Civil Court to consider the desirability of disposing of the suit as  expeditiously as possible preferably within a period of six weeks from the  date of communication of this order.  The parties are directed to render all  cooperation to the learned Judge in early disposal of the suit.  If it is  convenient to the learned Judge, the hearing of the suit may be taken up on  day to day basis.   21.     This appeal is dismissed with costs.  Counsel’s fee quantified at  Rs.25,000/- (Rupees twenty five thousand only).