Andhra Pradesh High Court - Amravati

Judgment vs State Bank on 30 September, 2022

       HON'BLE SRI JUSTICE SUBBA REDDY SATTI

              SECOND APPEAL No.298 of 2022

JUDGMENT:-

      Plaintiff in the suit filed the above second appeal

against the judgment and decree, dated 09.03.2022 passed in

A.S.No.60 of 2016 on the file of learned Principal District

Judge, Srikakulam, confirming the judgment and decree,

dated 25.01.2016 passed in O.S.No.469 of 2016 on the file of

learned Principal Junior Civil Judge, Srikakulam.

2.    The parties to the appeal shall be referred to as per

their status in O.S.No.469 of 2016.

3.    Plaintiff   filed   O.S.No.469   of   2016   against   the

defendants for permanent injunction restraining them from

interfering with the peaceful possession and enjoyment of

plaintiff over the suit schedule property to an extent of 30ft X

40ft in T.S.No.129 of Srikakulam District, within the

boundaries as mentioned in the suit schedule.

4.    The case of the plaintiff, in brief, is that Shiridi Sai

Enterprises is a firm engaged in the business of construction

of houses, letting out to tenants and collection of rents; that
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the firm took an extent of 30ft x 40ft in T.S.No.129 situated

opposite to forest office, on lease under an agreement, dated

13.02.1997 executed by Hamid Khan in favour of the firm;

that the firm constructed building measuring 30 x 30 feet;

that while so, after further negotiations, Hamid Khan leased

out further extent of site admeasuring 4ft x 96 ft to the

immediate East of the site, leased out earlier and another

extent of 30 ft x 50 ft, to the immediate South of the site

leased out earlier; that the said lease is evinced by lease deed,

dated 17.08.1997 executed by late Hamid Khan; that the

building constructed in part and it has been leased out to

tenants; that in the remaining site, the firm constructed a

building measuring 20 ft x 30 ft in the year, 1999; that

Municipality also prosecuted the Managing Partner in STC

No.437 of 1999 since the building was constructed without

permission; that in the remaining vacant site, shed was

raised with asbestos sheets and it was let out to one

Budumuru Damodara Rao on a monthly rent of Rs.100/-;

that entire property covered by two leases was in possession

and enjoyment of the firm; that the defendants claiming
                                3


distant relationship with Hameed Khan, trespassed into the

vacant site near the suit schedule property belonging to

Hameed Khan and constructed a building and let out the

same to a tenant, who is running "Daspalla Bar"; that

defendants are threatening to trespass into the vacant site of

the plaintiff firm; that there is no direct access to the vacant

site from the building owned by the defendants; that the

defendants accompanied by a gang of armed rowdies

threatened to dig trenches in the suit schedule property on

the evening of 06.07.2006 and the same was thwarted; that

in view of the imminent threat, the suit was filed for

permanent injunction.

5.    Defendants filed written statement and contended inter

alia that plaintiff firm, as can be seen from the instrument of

partnership filed along with the suit papers, was formed on

08.03.2000 and whereas it was mentioned that partnership

was orally formed on 13.02.1997; that there is no reference

about the said fact either in the plaint or in the alleged lease

agreements, dated 13.07.1997 or 17.08.1997; that the suit

schedule property was never in the possession of the plaintiff-
                                   4


firm; that defendants' mother got the property by way of Will,

dated 11.10.1998 and she has been in peaceful possession

and enjoyment of the suit schedule property; that prior to

filing of the suit, when Gajjana Krishna Rao unlawfully tried

to interfere with the suit schedule site, a Police report was

given by the defendants' mother; that the said Krishna Rao

got manipulated the lease agreements and got filed the

present suit; that the defendants' mother filed caveat before

the Court below in respect of the suit schedule site; that

plaintiff-firm is set up by said Krishna Rao by creating false

and frivolous documents; that suit schedule is vague as it

does not disclose the nature of the property; that there is no

cause of action for plaintiff-firm to file the suit. Hence,

eventually, the defendants prayed for dismissal of the suit.

6.      Basing on the above pleadings, the trial Court framed

the following issues for Trial:


     1. Whether plaintiff is entitled for permanent injunction as

        prayed for?


     2. To what relief?
                                      5


7.    During      trial,    husbands     of   alleged   partners        and

contractor in plaintiff-firm are examined as PWs1 to 3

respectively and Exs.A1 to A8 were marked. On behalf of the

defendants, defendant No.3 was examined as DW1 and

Exs.B1 and B2 were marked.


8.    After considering the material on record, the trial Court

dismissed    the     suit     by    judgment     and    decree,    dated

25.01.2016. The relevant findings recorded by the trial Court

are extracted hereunder:


      "... Though it appears from the record that the said
     instrument      of     partition,   dated   08.03.2000       and
     registration certificate of the firm, dated 16.03.2000 were
     filed along with the original plaint, but purposefully the
     plaintiff firm did not choose to get mark those documents
     as exhibits in this case. Because according to the
     contention of the plaintiff firm, under two lease deeds,
     dated 13.02.1997 and 17.08.1994, the plaintiff firm took
     the vacant site of late Hamid Khan in two spells for the
     construction of houses/shop rooms. ....

     As seen from the list of documents description as
     mentioned beneath the contents of original plaint, the
     said registration of plaintiff firm and instrument of
     partnership were subsequent to the said lease deed/lease
                                     6


     agreements alleged to have been executed by Hamid
     Khan, who was admitted to have died on 15.10.1998. ....

     Non examination of the any of the managing partners of
     plaintiff   firm   and   non   producing    the      registration
     certificate of plaintiff firm and the said instrument of
     partnership creates any amount of doubt in the mind of
     the Court."

9.    Regarding the vacant site, trial Court recorded finding

that the measurements of the suit schedule property as

described by the plaintiff in the plaint plan and plaint

schedule are not correct. The relevant portion reads thus:


     ...   the     said   document    does   not   reveal    anywhere
     specifically about delivery of vacant physical possession
     of vacant sites to the said Lalitha Kumari @ Leelavathi
     and it does not reveal the nature of business, for which
     Hamid Khan agreed to let out the said premises to wife of
     PW2.

     ... To show that lease agreement actually covered by
     Ex.A8 was actually acted upon, no document was
     produced by the plaintiff. ... Plaintiff failed to examine
     immediate neighbour to prove its actual possession.
     Ex.A8 is silent and not specific about the actual delivery
     of physical possession of property covered thereunder.
                                    7


10.   PW1, in his chief affidavit itself made a mention that it

is Hamid Khan, who constructed the building and thereafter

let out to the wife of PW2. However, in the plaint, it is pleaded

that vacant site was leased out and later constructions were

made. Therefore, the averments in the plaint that plaintiff-

firm entered into two lease deeds, dated 13.02.1999 and

15.02.1997 with Hamid Khan under Ex.A8 is unbelievable

and plaintiff came to the Court with unclean hands. The

bodafides   on   the   part   of       plaintiff-firm   are   doubtful.

Subsequent to the demise of Hamid Khan, who was admitted

to be an unmarried person, litigation arose with regard to the

property belonged to him by taking advantage of the

possession of premises belonging to said Hamid Khan by the

wife of PW2, under the name and style of plaintiff-firm. PW2

and others are claiming possession and right over the suit

schedule property though in fact at no point of time plaintiff

firm entered into lawful possession of suit schedule property

during the life time of Hamid Khan.


11.   The trial Court also considered evidence of PWs 2 and 3

and concluded that plaintiff is not entitled to the equitable
                                    8


relief of injunction. Plaintiff came to the Court with unclean

hands. Hence, the suit was dismissed. Against said judgment

and decree, plaintiff filed appeal.


12.   In the appeal, Managing Partners of the firm are added

as appellants 2 to 4. A perusal of the cause title would

indicate that all three partners of Shiridi Enterprises

representing Firm are arrayed as appellant Nos.1 to 3. The

appellate Court being final fact finding Court on a careful

consideration   of   both   oral       and   documentary   evidence

dismissed the appeal by judgment and decree,                 dated

09.03.2022. In the appeal, appellants filed application under

Order XLI Rule 27 CPC to receive additional document and

that application was also considered by the appellate Court.

While dismissing the appeal, I.A was also dismissed by

recording reasons.


13.   The appellate Court also recorded finding that no firm

existed in the year, 1997. The appellate Court also recorded

finding that lease deeds were not exhibited before the trial

Court since there is defect. The appellate Court having
                                 9


observed that there is inconsistency in documents between

the plan and the lease deeds and the registration certificate of

firm eventually dismissed the appeal.


14.      Against the said judgment the above second appeal is

filed.


15.      Heard Sri P. Veera Raju, learned counsel for the

appellant and Sri P. Veera Reddy, learned senior counsel for

the respondents.

16. Learned counsel for the appellants would contend that

Courts below ignored possession of the appellants. He would

also contend that since the appellants have been in

possession, they cannot be evicted except by due process of

law. He would also contend that both the Courts below failed

to appreciate the tax receipts paid by the appellants in their

name, which prove possession of the appellants over the suit

schedule property. He would also contend that the appellate

Court ought to have received document filed in the appeal

under Order XLI Rule 27 CPC.

17. Learned counsel for the respondents supported the

judgments of the Courts below and contended that no

interference of this Court is warranted.

18. In view of the pleadings and contentions raised by the

learned counsel for the appellants/plaintiff, the following

substantial questions of law would arise for consideration:

1. Whether the plaintiff/s, seeking equitable relief of injunction approached the Court with unclean hands? If so, the judgments under appeal are liable to be set aside.

2. Whether the Courts below wrongly appreciated the evidence and documents on record?

19. Undisputed facts are that suit schedule property

belongs to Hamid Khan, who is said to have died on

15.10.1998. The plaintiff pleaded agreements dated

30.02.1997 and 17.08.1997. However, unregistered lease

agreement dated 17.08.1997 was marked as Ex.A8 subject to

objection regarding admissibility.

20. Plaintiff firm was registered in the year, 2000. However,

lease deeds are of the year, 1997.

21. In Balakrishna Dattatraya Galande v. Balakrishna

Ram1, while considering the scope of Section 38 of the

Specific Relief Act, the Hon'ble Apex Court held that

permanent injunction can be granted to a person who is in

actual possession of the property. The burden of proof lies

upon the plaintiff to prove that he is in actual physical

possession of the property as on the date of the suit. An

injunction restraining defendant from disturbing plaintiff's

possession, may not be granted in favour of the plaintiff

unless he proves the possession on the date of filing of the

suit. The person who approaches the Court with unclean

hands is not entitled for equitable relief of permanent

injunction.

22. In Ammani vs. Tiruchengode Municpality2, the

Madras High Court held that one who comes to the court

with clean hands and acts in an inequitable and unfair

manner, is not entitled to the discretion relief of injunction.

1 AIR 2019 SC 933

AIR 2004 Mad 333

23. In M.P. Mathur vs. DTC3, the Hon'ble Supreme Court

held that the discretion under the Section which the court

has to exercise is a judicial discretion and has to be exercised

on well settled principles. The court has to consider as the

nature of the obligation in respect of which performance is

sought, circumstances under which the decision came to be

made, the conduct of the parties and the effect of the court

granting the decrees.

24. In Premji Ratansey vs. Union of India 4 the Hon'ble

Apex Court held that:

Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right. Under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence cannot be protected by injunction.

AIR 2007 SC 414

1994 (5) SCC 547

25. In M/s. Seemax Construction (P) Ltd. V. State Bank

of India5 the Delhi High Court observed as under:

"The suppression of material fact by itself is a sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief has to approach the court with clean hands and is required to disclose all material facts which may one way or the other affect the decision. A person deliberately concealing material facts from court is not entitled to any discretionary relief. The court can refuse to hear such person on merits. A person seeking relief of injunction is required to make honest to make honest disclosure of all relevant statements of facts otherwise it would amount to an abuse of the process of the court."

26. In S.P. Chengalvaraya Naidu v. Jagannath6, the

Hon'ble Supreme Court held as under:

"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abuse. Property grabbers, tax evaders, bank loan dodgers and other

AIR 1992 Delhi 197

1994 1 SCC 1

unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."

27. PW1, who was examined on behalf of the plaintiff,

deposed that his wife is one of the partners of the plaintiff-

firm. According to PW1 plots were taken for business

purpose. However, business was not recited in the lease deed,

whereas in the plaint it was contended that vacant land was

leased out. PW2, husband of appellant No.1 in the appeal

deposed in chief affidavit that Hamid Khan leased out 30 ft x

30 ft in 1987 and agreed to construct building in that site. He

would further contend in the chief affidavit that he spent

money for construction of building on behalf of his wife. The

partnership firm was registered on 18.03.2000.

28. PWs1 and 2 are government officials. PW1 worked as

Assistant Director of agriculture and PW2 is working as

Assistant Director, Projects, Srikakulam. In the cross-

examination, he deposed that there are no lease deeds

between his wife and Hamid Khan in respect of the suit

schedule property. Thus, a perusal of the evidence on the

record and other material available on record discloses that

after the death of Hamid Khan, the alleged deeds were

created as if Hamid Khan leased out the suit schedule

property in favour of the plaintiff firm. The findings of fact

recorded by the Courts below are based on appreciation of

facts.

29. The relief of injunction being equitable relief, the person

who approaches with unclean hands is not entitled to the

relief. As stated supra in this case on hand a perusal of the

entire material would discern that plaintiff invoked

jurisdiction of the Court by suppressing facts and with

unclean hands and hence, the plaintiff is not entitled for

equitable relief of injunction.

30. Before delving further into the matter, since the appeal

is filed under Section 100 CPC, this Court must see the scope

of Section 100 of CPC.

31. In Hero Vinoth Vs. Seshammal7, held thus:

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

It was furthermore held:

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a

AIR 2009 SC 1481

question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v.

Purushottam Tiwari MANU/SC/0091/2001).

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) ...

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position

is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."

32. In the light of the expressions of Hon'ble Apex Court in

various judgements qua the scope of interference of the High

Court in second appeal, this Court while exercising

jurisdiction under Section 100 of the CPC, must confine to

the substantial question of law involved in the appeal. This

Court cannot re-appreciate the evidence and interfere with

the findings of the Courts below where the Courts below

recoded the findings judicially by appreciating both oral and

documentary evidence. Further the existence of substantial

question of law is the sine qua non for the exercise of

jurisdiction. This Court cannot substitute its own opinion

unless the findings of the Court are manifestly perverse and