Bombay High Court
Abid Shiraz Merchant vs State Of Maharashtra Thr Government ... on 18 September, 2025
Author: N.J. Jamadar
Bench: N.J. Jamadar
2025:BHC-AS:39002
Varsha wp-8410-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8410 OF 2025
Abid Shiraz Merchant }
Age-50 years, Adult, Occu: Business, }
residing at A-601, Spring Time, }
rd
3 Road, TPS-3, Santacruz East, }
Mumbai-400 055. } .....Petitioner
V/s.
1.State of Maharashtra }
Through GP., High Court, Bombay. }
2. Ramprakash Ramdas Chowdhry }
76 years, Indian Inhabitant of }
Mumbai, Occu: Retired, residing at }
Room No. 5,6,7, Bachubhai Chawl, }
(Bachu Sheth Chawl) Kurla Andheri }
Road, Opp. Sakinaka Telephone }
Exchange, Sakinaka, Mumbai-72 }
Also At- }
Room No. 101, CTS No. 590/6, }
Village Eksar, I.C. Colony, Borivali }
(West), Mumbai-400 068. } Respondents.
}
-------------------
Mr. Surel Shah, Senior Advocate with Devesh Juvekar with Kavita
Chavan and Mithilesh Chalke i/by Rajani Associates, for the Petitioner.
Ms. Vaishali Nimbalkar, AGP, for the State.
Mr. Sunil Mishra, for the Respondent no. 2.
---------------------
CORAM : N.J. JAMADAR, J.
RESERVED ON : 27th JULY 2025.
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PRONOUNCED ON : 18TH SEPTEMBER 2025.
JUDGMENT:
1. Rule. Rule made returnable forthwith and, with the consent
of the counsel for the parties, heard finally.
2. The challenge in this petition is to a judgment and order
dated 5th April 2025, passed by the Appellate Bench of the Court of
Small Causes in Miscellaneous Appeal No. 86 of 2024, whereby the
Appellate Bench allowed the appeal preferred by the Respondent no.
2/Plaintiff by setting aside the order passed by the Trial Court rejecting
an application for temporary injunction (Exhibit-9) in RAD Suit No.
683 of 2023, and restraining the Petitioner/Plaintiff from forcefully
dispossessing or otherwise disturbing the peaceful use, occupation and
possession of the Plaintiff of the suit premises and transferring,
disposing of or otherwise creating any third party rights in the suit
premises, till the disposal of the suit.
3. Shorn of unnecessary details, the background facts can be stated
as under:
3.1 The Plaintiff claimed to be in lawful possession of
Room No. 5, Room No. 6 and Room No. 7 situated at
Bachubhai Chawl (Bachuseth Chawl), CTS No. 689, Kurla
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Andheri Road, Opp. Sakinaka Telephone Exchange, Sakinaka,
Kurla (W), (the suit premises) as a tenant thereof. The
Defendant is the representative of the landlady and has been
handling the day-to-day affairs of the said chawl. The rent
receipt in respect of Room No. 5 is in the name of Ramdas
Chowdhry, the late father of the Plaintiff, and the rent receipts
in respect of Room Nos. 6 and 7 are in the name of the Plaintiff.
3.2 A scheme to widen Andheri-Kurla Road came to be
implemented by the Brihanmumbai Municipal Corporation
(BMC). To unjustly avail the benefits of the said road widening
project to the extent it affects the suit premises, the Defendant
threatened to dispossess the Plaintiff and his family members.
Thus, the Plaintiff instituted a RAD Suit seeking a declaration
that the Plaintiff is a tenant in respect of the suit premises and
the consequential relief of prohibitory injunction.
3.3 In the said suit, the Plaintiff took out an application
for grant of temporary injunction (Exhibit-9). The said
application was resisted by the Defendant / the Petitioner
herein, contending inter alia that the Plaintiff is not the tenant
in respect of the suit premises, nor the Plaintiff has been in
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possession thereof. The Plaintiff has suppressed material facts
and vital documents. In fact, the Plaintiff had surrendered the
tenancy in respect of the suit premises in consideration of the
no objection given by the Defendant for the allotment of the
alternate premises in respect of Room Nos. 3 and 4, which were
acquired for the said road widening project. Thereafter, a leave
and licence agreement was executed between the Defendant
and Mr. Naresh Ramprakash Chowdhry, the son and the Power
of Attorney of the Plaintiff. The said Naresh Chowdhry had paid
the agreed licence fee for the occupation of the suit premises.
The Defendant had also instituted proceedings before the
Competent Authority for eviction of the said Naresh Chowdhry
from the suit premises, and an order of eviction was passed by
the Competent Authority. Therefore, the Plaintiff was not
entitled to any discretionary relief on account of gross
suppression of facts.
3.4 The learned Judge, Court of Small Causes, was
persuaded to reject the application for temporary injunction
primarily on the ground that the Plaintiff had suppressed the
material facts and did not approach the Court with clean hands.
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Neither a suit for cancellation of the documents which were
allegedly fraudulently obtained from the Plaintiff and his family
members was instituted nor any complaint was filed in respect
of the said allegedly forged and fabricated documents. On the
contrary, there was material to indicate that, Naresh Chowdhry,
the son of the Plaintiff, had paid licence fee in accordance with
the terms of the registered leave and licence agreement. Thus,
the Plaintiff was not entitled to the interim relief.
3.5 The Plaintiff carried the matter in appeal before the
Appellate Bench of the Court of Small Causes.
3.6 By the impugned order, the Appellate Bench was
persuaded to interfere with the order passed by the Trial Judge
principally for the reason that there were suspicious
circumstances surrounding the execution of the documents
propounded by the Defendant. The fact that all the documents,
including the deed of surrender and the registered leave and
licence agreement were executed on one and the same day i.e.
12th September 2022, weighed with the Appellate Bench in
doubting the genuineness and reliability of those documents.
3.7 Consistent with these findings, the Appellate Bench
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held that, the question whether the Plaintiff or his son Naresh
Chowdhry was in occupation of the subject premises and/or for
that matter, whether the possession of Naresh, the son of the
Plaintiff is referable to the tenancy rights or the leave and
licence agreement warranted adjudication at the trial.
Therefore, the Plaintiff could not be dispossessed till the said
issues were decided after the trial. Therefore, the Appellate
Court considered it necessary to grant interim injunction in the
terms indicated above.
4. Being aggrieved, the Defendant has invoked the writ
jurisdiction.
5. I have heard Mr. Surel Shah, the learned Senior Advocate
for the Petitioner, and Mr. Sunil Mishra, the learned counsel for the
Respondent no. 2, at some length. The learned counsel took the Court
through the pleadings, documents and material on record.
6. Mr. Surel Shah, the learned Senior Advocate for the
Petitioner, submitted that, the Appellate Bench committed a manifest
error in law in transgressing the jurisdictional limits in the matter of
interference with a discretionary order passed by the Trial Court. The
Appellate Bench completely lost sight of the fact that its jurisdiction to
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interfere in the discretionary order was circumscribed by limitations.
The Appellate Bench, however, approached the matter as if it was
entitled to re-appreciate and re-evaluate the material and take a
different view of the matter.
7. Mr. Shah would urge that, the order passed by the Trial
Court does not suffer from such perversity or unreasonableness as to
warrant interference by the Appellate Bench. In the process, according
to Mr. Shah, the Appellate Bench misdirected itself in completely
ignoring the material suppression of facts by the Plaintiff. The Plaintiff
had not approached the Court with a case that the Plaintiff and his
family members were coerced, or otherwise defrauded, to execute the
documents. The execution of documents, including the deed of
surrender of tenancy and registered leave and licence agreement, was
such a notorious fact that, the Plaintiff could not have missed to state
in the plaint, yet, the Plaintiff approached the Court with a bald
assertion that the Defendant threatened to dispossess him. In the
meanwhile, the Plaintiff obtained the advantage on the strength of the
no objection certificate given by the Defendant in obtaining the
alternate accommodation on account of the demolition of the shop
Nos. 3 and 4 in the said road widening project. Having obtained the
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benefits under the bargain and deliberately suppressed the vital facts
and documents, the Plaintiff could not have been granted the
discretionary relief, submitted Mr. Shah.
8. It was further urged that Naresh Chowdhry, the son of the
Plaintiff, himself claimed to be a tenant in respect of the suit premises
in the eviction proceedings filed before the Competent Authority under
Section 24 of the Rent Act, 1999. The Competent Authority passed an
order of eviction. The Revisional Authority dismissed the Revision
Application. What exacerbates the situation, according to Mr. Shah, is
the fact that, when the order was sought to be executed, it transpired
that the suit premises has been converted into three commercial units
and thus the order of eviction passed by the Competent Authority
could not be executed as the licenced premises could not be identified
at site. A copy of the panchnama in Execution Application No. 191 of
2022 before the Competent Authority was placed on the record of this
Court. All these factors were lightly brushed aside by the Appellate
Bench, submitted Mr. Shah.
9. Lastly, Mr. Shah urged, with a degree of vehemence that,
under no circumstances, the Appellate Bench could have restrained the
Defendant from transferring or otherwise creating any third party
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interest in the suit premises. The Plaintiff does not claim any
proprietary interest in the suit premises. In a suit for mere declaration
of the tenancy, the Defendant could not have been restrained from
transferring alienating, or otherwise creating any third party interest in
the suit premises, was the thrust of the submission of Mr. Shah.
10. Per contra, Mr. Sunil Mishra, the learned counsel for the
Respondent no. 2- Plaintiff would urge that, the Appellate Bench was
fully justified in interfering with the order passed by the Trial court.
The execution of the deed of surrender of tenancy and the leave and
licence agreement on one and the same day is frought with such
infirmities that suspicion about the genuineness and veracity of those
documents is writ large.
11. Mr. Mishra would urge that, there was no justifiable reason
for the tenant to surrender the tenancy without any apparent benefit.
Mr. Mishra submitted that, it defines comprehension that, after the
surrender of tenancy, the landlord would again execute a leave and
licence agreement in favour of the son of the Plaintiff on the very day.
Cumulatively, the explanation offered by the Plaintiff regarding the
said documents having been fraudulently obtained by the Defendant
on the pretext of assisting the Plaintiff in obtaining alternate
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accommodation is worthy of acceptance. The Appellate Bench was
therefore, within its right in holding that a very strong prima facie case
was made out by the Plaintiff. Mr. Mishra would urge that, the alleged
change in user of the premises sought to be established by pressing
into service, a copy of the panchnama in Execution Application No.
194 of 2024 cannot be delved into by this Court as the said document
was not tendered before the Appellate Bench. The change of user of
the premises has been effected in the year 2000 itself.
12. From the perusal of the material on record, prima facie, the
following factual position emerges.
a) Room No. 3,4,5,6 and 7 in the Bachubhai Chawl
were in the occupation of the Plaintiff and his family
members. Ramdas Chowdhry, the father of the Plaintiff
was original tenant in respect of Room Nos. 3, 4 and 5.
The Plaintiff was the tenant in respect of Room Nos. 6
and 7. The said chawl abutted Andheri-Kurla Road. As
the road widening project was implemented by the
MCGM, the portions of the said chawl were demolished.
It appears, the dispute has its genesis in the said
demolition of the portions of the chawl and allotment of
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alternate accommodation in lieu of the affected portion.
b). It is the case of the Defendant that, in the wake of
the said road widening project, the Plaintiff and his
family members executed a deed of surrender of the
suit premises on 12th September 2022. On the same day,
the Defendant had executed the affidavit cum-
declaration-cum-indemnity thereby giving no objection
for the allotment of a rehab accommodation to the
Plaintiff and his brother Prem Prakash Choudhry in lieu
of Room No. 3 and Room No. 4. Simultaneously, on the
very day the Defendant executed a registered leave and
licence agreement in favour of Naresh kumar Chowdhry
granting licence to Naresh kumar Chowdhry, son of the
Plaintiff, to use and occupy the suit premises i.e. Room
nos. 5, 6 and 7 for a term of eleven months on the
condition of payment of licence fee @ Rs. 3,000/- per
month.
c). It further appears that, upon the expiry of the
term of the said licence, the Petitioner/Defendant
instituted proceedings before the Competent Authority
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for eviction of Naresh Chowdhry from the suit premises
The Competent Authority passed an order on 17th
October 2024, directing the eviction of Naresh
Chowdhry. A Revision thereagainst was dismissed by the
Additional Divisional Commissioner, Konkan Division by
judgment and order dated 13th June 2025.
13. The situation which thus emerges is that, on the one
hand, the Plaintiff claims that, he continues to be a tenant in
respect of the suit premises i.e. Room Nos. 5, 6 and 7 and, on the
other hand, the Defendant contends that, the Plaintiff and his
family members had surrendered their tenancy rights in
consideration of no objection given by the landlord for the
allotment of the alternate accommodation in lieu of Room Nos. 3
and 4.
14. The learned Judge, Court of Small Causes, was of the
view that all the aforesaid developments and documents were
conspicuous by their absence in the plaint. Therefore, the Plaintiff,
having not approached the Court with clean hands was not entitled
to injunction. In contrast, the Appellate Bench held that the
learned Trial Judge was unduly influenced by the aforesaid
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documents without scrutinising their genuineness and reliability,
especially the execution of all those documents on one and the
same day, which alone was sufficient to raise significant doubts.
Holding thus, the Appellate Bench interfered with the discretion
exercised by the learned Trial Judge. Whether the aforesaid
approach of Appellate Bench is justifiable?
15. That brings to the fore contours of jurisdiction of the
Appellate Court in an appeal against the discretionary order. The
legal position is well recognised. Ordinarily, the Appellate Court is
not expected to interfere with the exercise of discretion in the
matter of grant or refusal of injunction by the Trial Court and
substitute its own discretion for the same, except in those cases,
where it could be demonstrated that, the discretion was exercised
by the Trial Court arbitrarily or perversely or the order impugned
before the Appellate Court was contrary to the settled principles of
law.
16. Arbitrariness in the exercise of discretion or perversity
in the order passed by the Trial Court can arise, where the
injunction has been granted sans material or the Trial Court has
declined to grant temporary injunction, despite existence of
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justifiable material.
17. An appeal against discretionary order is an appeal on
principle. It is not open for the Appellate Court to reassess and
reweigh the material so as to arrive at a different conclusion than
the one reached by the Court below, if that conclusion was
reasonably possible in the facts of the given case.
18. A profitable reference, in this context, can be made to
an often referred three Judge Bench decision of the Supreme Court
in the case of 'Wander Ltd and Anr. Vs. Antox India P. Ltd.1, wherein
the legal position was illuminatingly postulated as under:
"14. The appeals before the Division Bench were
against the exercise of discretion by the Single Judge.
In such appeals, the Appellate Court will not interfere
with the exercise of discretion of the court of first
instance and substitute its own discretion except where
the discretion has been shown to have been exercised
arbitrarily, or capriciously or perversely or where the
court had ignored the settled principles of law
regulating grant or refusal of interlocutory injunctions.
An appeal against exercise of discretion is said to be an
appeal on principle. Appellate Court will not reassess
the material and seek to reach a conclusion different
from the one reached by the court below if the one
reached by the court was reasonably possible on the
material. The appellate court would normally not be
justified in interfering with the exercise of discretion
under appeal solely on the ground that if it had
considered the matter at the trial stage it would have
1 1990 (Supp) SCC 727
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come to a contrary conclusion. If the discretion has
been exercised by the Trial Court reasonably and in a
judicial manner the fact that the appellate court would
have taken a different view may not justify interference
with the trial court's exercise of discretion. After
referring to these principles "Gajendragadkar, J. in
Printers (Mysore) Pvt. Ltd. V/s. Pothan Joseph".2 :
"... These principles are well established,
but as has been observed by Viscount Simon in Charles
Osention & Co. v. Johnston the law as to the reversal
by a court of appeal of an order made by a judge below
in the exercise of his discretion is well established, and
any difficulty that arises is due only to the application
of well settled principles in an individual case.
The appellate judgment does not seem to defer
to this principle."
(emphasis supplied)
19. In the case of 'Seema Arshad Zaheer and Ors Vs. Municipal
Corporation of Greater Mumbai and Ors.3, the Supreme Court
expounded the principles which govern the interference by the
Appellate Court in the discretionary order passed by the Trial Court.
The observations in Para No. 32 are instructive and, hence, extracted
below:
"32. Where the lower court acts arbitrarily, capriciously or
perversely in the exercise of its discretion, the appellate
court will interfere. Exercise of discretion by granting a
temporary injunction when there is 'no material', or
2 (1960) 3 SCR 713
3 (2006) 5 SCC 282
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refusing to grant a temporary injunction by ignoring the
relevant documents produced, are instances of action
which are termed as arbitrary, capricious or perverse.
When we refer to acting on 'no material' (similar to 'no
evidence'), we refer not only to cases where there are total
dearth of material, but also to cases where there is no
relevant material or where the material, taken as a whole,
is not reasonably capable of supporting the exercise of
discretion. In this case, there was 'no material' to make out
a prima facie case and therefore, the High Court in its
appellate jurisdiction, was justified in interfering in the
matter and vacating the temporary injunction granted by
the trial court."
(emphasis supplied)
20. Another three Judge Bench of the Supreme Court in the
case of 'Skyline Education Institute (India) Vs. S.L. Vaswani and Anr. 4 ,
culled out the principles in the following words.
"22. The ratio of the abovenoted judgments is that once
the court of first instance exercises its discretion to grant
or refuse to grant relief of temporary injunction and the
said exercise of discretion is based upon objective
consideration of the material placed before the court and
is supported by cogent reasons, the appellate court will be
loath to interfere simply because on a de novo
consideration of the matter it is possible for the appellate
court to form a different opinion on the issues of prima
facie case, balance of convenience, irreparable injury and
equity".
(emphasis supplied)
21. In a recent pronouncement in the case of 'Ramakant
Ambalal Choksi Vs. Harish Ambalal Choksi and Ors. 5, the Supreme
4 (2010) 2 SCC 142
5 (2024) SCC online SC 3538
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Court, after a survey of the authoritative pronouncements, enunciated
that, the principles of law expounded by the Supreme Court in the case
of "Wander" (supra) have been reiterated in a number of subsequent
decisions. However, over a period of time the test laid down by the
Supreme Court as regards the scope of interference has been made
more stringent. The emphasis is now more on perversity rather than a
mere error of fact or law in the order granting injunction pending the
final adjudication of the suit. In conclusion, the Supreme Court said,
as under:
"32. The appellate court in an appeal from an
interlocutory order granting or declining to grant
interim injunction is only required to adjudicate the
validity of such order applying the well settled principles
governing the scope of jurisdiction of appellate court
under Order 43 of the CPC which have been reiterated
in various other decisions of this Court. The appellate
court should not assume unlimited jurisdiction and should
guide its powers within the contours laid down in the Wander
(supra) case".
22. Reverting to the facts of the case, it has to be seen whether
the Appellate Bench kept in view the limits of jurisdiction in assessing
legality, propriety and correctness of the order passed by the Trial
Court. First and foremost, it is imperative to note that, the entire body
of documents i.e. the affidavit-cum-declaration-cum-indemnity, the
deed of surrender of tenancy, the registered leave and licence
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agreement and the affidavits of declaration giving no objection by the
Defendant / landlord for allotment of alternate premises to the tenant,
was not at all adverted to by the Plaintiff in the plaint. Instead, the
Plaintiff approached the Court as if these documents did not exist at
all. The plain case of the Plaintiff was that the Defendant was
threatening to dispossess the Plaintiff to obtain undue advantage of the
benefits that would be admissible to the occupants of the premises
affected by the said road widening project. This omission was of
critical salience.
23. The learned Judge, Court of Small Causes was justified in
drawing an inference against the Plaintiff for not adverting to those
documents in the plaint. It is true, after the documents were placed on
record, an endeavour was made on behalf of the Plaintiff to urge that,
those documents were obtained by the Defendant from the Plaintiff
and his family members on the pretext of assisting the Plaintiff in
getting the alternate accommodation. This stand implied that, the
execution, as such, of the aforesaid documents was not, prima facie,
put in contest.
24. It is true that there is an essential distinction between a
challenge to the character of the document and content of the
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document. A party is entitled in law to assert that the document which
is propounded by the adversary was not the document which the party
intended to execute, and the real transaction between the parties was
different from apparent tenor of the document. However, for that
purpose, such party must approach the Court with a positive case that,
he was made to execute the document under a mistaken belief about
the real character of the document and, wherever warranted, seek a
declaration in regard to such document. In the absence thereof, the
explanation sought to be offered by the Plaintiff after the documents
were propounded by the Defendant ought to have been accepted with
a pinch of salt by the Appellate Bench.
25. The Appellate Bench did not consider the consequences the
suppression of material facts entailed, especially in the matter of grant
of equitable relief. The principle that a litigant who suppresses material
facts cannot seeks relief from the Court applies with a greater force in
the matter of grant of equitable relief. The law has developed to the
point that the litigant who approach the Court with unclean hands are
not even entitled to be heard on the merits of their case. When a party
seeks equitable relief, the conduct of such party is required to be
decided on the touchstone of principle of uberrima fide .
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26. A profitable reference in this context can be made to the
judgment of the Supreme court in the case of 'Amar Singh Vs Union of
India and Ors.6 , where this principle was expounded in the matter of
grant of equitable relief of injunction.
27. The observations of the Supreme Court in Para No. 53 to
59 read as under:
"53. Courts have, over the centuries, frowned upon litigants
who, with intent to deceive and mislead the courts, initiated
proceedings without full disclosure of facts. Courts held that
such litigants have come with "unclean hands" and are not
entitled to be heard on the merits of their case.
54. In Dalglish v. Jarvie {2 Mac. & G. 231,238}, the Court,
speaking through Lord Langdale and Rolfe B., laid down:
"It is the duty of a party asking for an injunction
to bring under the notice of the Court all facts
material to the determination of his right to that
injunction; and it is no excuse for him to say
that he was not aware of the importance of any
fact which he has omitted to bring forward."
55. In Castelli v. Cook {1849 (7) Hare, 89,94}, Vice
Chancellor Wigram, formulated the same principles as
follows:
"A plaintiff applying ex parte comes under a
contract with the Court that he will state the
whole case fully and fairly to the Court. If he
fails to do that, and the Court finds, when the
other party applies to dissolve the injunction,
that any material fact has been suppressed or
not property brought forward, the plaintiff is
told that the Court will not decide on the merits,
and that, as has broken faith with the Court, the
6 (2011) 7 SCC 69
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injunction must go."
56. In the case of Republic of Peru v. Dreyfus Brothers &
Company {55 L.T. 802,803}, Justice Kay reminded us of the
same position by holding:
"...If there is an important misstatement,
speaking for myself, I have never hesitated, and
never shall hesitate until the rule is altered, to
discharge the order at once, so as to impress
upon all persons who are suitors in this Court
the importance of dealing in good faith with
the Court when ex parte applications are
made."
57. In one of the most celebrated cases upholding this
principle, in the Court of Appeal in R. v.Kensington Income
Tax Commissioner {1917 (1) K.B. 486} Lord Justice
Scrutton formulated as under:
"and it has been for many years the rule of the
Court, and one which it is of the greatest
importance to maintain, that when an applicant
comes to the Court to obtain relief on an ex
parte statement he should make a full and fair
disclosure of all the material facts- facts, now
law. He must not misstate the law if he can help
it - the court is supposed to know the law. But it
knows nothing about the facts, and the
applicant must state fully and fairly the facts,
and the penalty by which the Court enforces
that obligation is that if it finds out that the facts
have been fully and fairly stated to it, the Court
will set aside any action which it has taken on
the faith of the imperfect statement."
58. It is one of the fundamental principles of jurisprudence
that litigants must observe total clarity and candour in their
pleadings and especially when it contains a prayer for
injunction. A prayer for injunction, which is an equitable
remedy, must be governed by principles of `uberrima fide'.
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59. The aforesaid requirement of coming to Court with
clean hands has been repeatedly reiterated by this Court in
a large number of cases. Some of which may be noted, they
are: Hari Narain v. Badri Das - AIR 1963 SC 1558, Welcome
Hotel and others v.State of A.P. and others - (1983) 4 SCC
575, G. Narayanaswamy Reddy (Dead) by LRs. and another
v.Government of Karnatka and another - JT 1991(3) SC 12:
(1991) 3 SCC 261, S.P. Chengalvaraya Naidu (Dead) by LRs.
v. Jagannath (Dead) by LRs. and others - JT 1993 (6) SC
331: (1994) 1 SCC 1, A.V. Papayya Sastry and others v.
Government of A.P. and others - JT 2007 (4) SC 186: (2007)
4 SCC 221, Prestige Lights Limited v. SBI - JT 2007(10) SC
218: (2007) 8 SCC 449, Sunil Poddar and others v. Union
Bank of India - JT 2008(1) SC 308: (2008) 2 SCC 326,
K.D.Sharma v. SAIL and others - JT 2008 (8) SC 57: (2008)
12 SCC 481, G. Jayashree and others v. Bhagwandas S. Patel
and others - JT 2009(2) SC 71 : (2009) 3 SCC 141, Dalip
Singh v. State of U.P. and others".
28. In the case of Rekha Sharad Ushir Vs. Saptashrungi Mahila
Nagari Sahkari Patsansta Ltd.7, the following the pronouncement of the
Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by LRs
Vs. Jagannath (dead) by LRs and Ors.8 , the Supreme Court enunciated
that, it is settled law that a litigant who, while filing proceedings in the
court, suppresses material facts or makes a false statement, cannot
seek justice from the court. The facts suppressed must be material and
relevant to the controversy, which may have a bearing on the decision
making. Cases of those litigants who have no regard for the truth and
those who indulge in suppressing material facts need to be thrown out
7 (2025) SCC online SC 641
8 (1994) 1 SCC 1
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of the court.
29. The factor which primarily weighed with the Appellate
Bench was execution of the document on one and the same day i.e.
12th September 2022. Why Naresh Chowdhry was shown as a tenant in
deed of surrender? why on the very day a leave and licence agreement
was executed in favour of Naresh Chowdhry, when the tenancy was
surrendered and vacant possession of the suit premises was delivered
to the Defendant under the deed of surrender? These questions
persuaded the Appellate Bench to doubt the genuineness and veracity
of those documents.
30. From the perusal of those documents, it becomes evident
that, not only Naresh Chowdhry but other family members of the
Plaintiff were the executants to the affidavits-cum-declaration-cum-
indemnity. All the family members authorised the Plaintiff and his son
Naresh Chowdhry to execute the deed of surrender in favour of the
landlord. Prima facie, the mere fact that all the documents were
executed on the same day, by itself, does not create such suspicion as
to throw the Defendant's case overboard. Such a situation is not
inconceivable. It is quite possible and not uncommon that the jural
relationship between the parties is altered by executing simultaneous
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documents.
31. Mr. Surel Shah was justified in canvassing a submission
that the Appellate Bench in exercise of limited Appellate jurisdiction
was not justified in casting aside the documents on the ground that,
there were suspicious circumstances, in the absence of a positive case
of the Plaintiff.
32. The fact that the leave and licence agreement was acted
upon by the parties, especially Naresh, the son and the Power of
Attorney of the Plaintiff, prima facie becomes evident from the fact that
after the execution of the leave and licence agreement, Naresh
Chowdhry paid the license fee of Rs. 3,000/- every month, till the
month of May 2023. This conduct, prima facie, dents the case of the
Plaintiff that, the Plaintiff continued to be in the occupation of the suit
premises as a tenant thereof. It would be contextually relevant to note
that, in the proceedings before the Competent Authority, Naresh
claimed that, he was the tenant in the suit premises and had paid rent
of Rs.3,000/- p.m. to the landlord. Prima facie the payment is referable
to the leave and licence agreement.
33. In addition, there are documents which evidence the
allotment of the alternate accommodation as well as payment of
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compensation by the Municipal Corporation to the Plaintiff and his
family member in respect of the said road widening project. The letters
of allotment of alternate accommodation to the plaintiff and
Premkumar Naresh Chowdhry are placed on record at Exhibit-K (Page
191 to 196 of the petition). Documents evidencing the allotment of
monetary compensation are also placed on record at Exhibit-L (page
203 to 204).
34. The moot question that crops up for consideration is,
whether, in the face of the aforesaid material, the Appellate bench was
justified in interfering with the order passed by the Trial Court. In my
considered view, the Appellate Bench transgressed the jurisdictional
limits and unjustifiably interfered with discretionary order which was
sustainable in the light of the material on record. The Appellate Bench
reappreciated the evidence and arrived at a different conclusion. The
observations of the Appellate Bench that, tenant had no reason to
surrender the tenancy appeared to be against the weight of material on
record as, prima facie, it appeared that the Plaintiff had altered his
position in lieu of the benefits which were extended by the Municipal
Corporation in respect of the affected structures, on the basis of the no
objection given by the landlord.
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35. At any rate the Appellate Bench was clearly in error in
restraining the defendant / landlord from alienating or creating third
party interest in the suit premises. At best, the plaintiff had the tenancy
rights in the suit premises. A complete restraint on alienation or
creation of any third party interest in the suit premises which ordinarily
would not impinge on the tenancy right of the tenant, was wholly
unsustainable. In the absence of the assertion of any propriety rights
over the suit premise, plaintiff/ owner of the suit premises could not
have been restrained from exercising the incident of ownership over
the suit premises.
36. The conspectus of aforesaid consideration is that the
impugned order suffers from manifest infirmities and, therefore,
warrants interference in exercise of the supervisory jurisdiction.
Resultantly, the petition deserves to be allowed.
37. Hence, the following order:
ORDER
i) The petition stands allowed
ii) The impugned order stands quashed and set aside.
iii) The order passed by the Trial Court stands restored.
iv) The application (Exhibit-9) stands rejected.
v) Rule made absolute to the aforesaid extent.
No costs. (N.J. JAMADAR, J)
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