Vipulbhai Rasikbhai Patel vs M/S. Chanchal Hospitality Llp ...
2021 Latest Caselaw 3823 Guj

        C/AO/99/2020                                      CAV JUDGMENT




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/APPEAL FROM ORDER NO. 99 of 2020
                              With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                               In
               R/APPEAL FROM ORDER NO. 99 of 2020
                              With
          CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2020
                               In
               R/APPEAL FROM ORDER NO. 99 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

======================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

====================================== VIPULBHAI RASIKBHAI PATEL Versus M/S. CHANCHAL HOSPITALITY LLP (THE INDIAN CHANNEL) ====================================== Appearance:

MR RUTVIJ S OZA(5594) for the Appellant(s) No. 1,2,3 DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2 MR. PERCY KAVINA, SR. ADVOCATE WITH MR.D K.PUJ(3836) for the Respondent(s) No. 1.1,1.2,1.3,1.4 NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,1.5 ======================================

CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 05/03/2021

CAV JUDGMENT

1. Heard learned advocate Mr. Bhargav Bhatt assisted by learned advocate Mr. Rutvij Oza for the appellants and learned Senior Advocate Mr. Percy Kavina assisted by learned advocate Mr. D.K. Puj for the respondents through video conference.

2. Admit.

3. Learned advocate Mr. D.K. Puj, waives service of notice of admission for the respondents.

4. By this appeal under Order­43, Rule­1(r) of the Code of Civil Procedure, 1908 (for short 'the Code') the appellants­ plaintiffs have challenged the judgment and order dated 25.02.2020 passed by the Principal Senior Civil Judge, Ahmedabad (Rural) at Mirzapur below application Exh.5 for interim injunction in Special Civil Suit no.486 of 2019, whereby the application filed by the appellants­original plaintiffs under Order­39, Rules­1 and 2 of the Code was partly allowed.

5. The brief facts of the case are as under :­

5.1 The appellants­ plaintiffs filed Special Civil Suit no.486 of 2019 along with application for interim injunction at Exh.5 praying that the defendants - respondents be directed to handover the peaceful possession of the property as mentioned in the schedule of the leave and license agreement dated 8th February, 2018 being Final Plot no.88 paiki of Town Planning Scheme no.50 culminated from Revenue Survey no.36/1 of village Bodakdev, Taluka Ghatlodia, District Ahmedabad

admeasuring 1733 sq. meters Including temporary construction on ground floor, first floor and second floor, total construction being 2301.5 sq. meters over the non­agriculture land known as "Hetdiv­88" (for short "the suit premises") and to direct the respondents - defendants not to obstruct, interfere or disrupt the appellants­ plaintiffs from using the premises owned by the appellants­ plaintiffs and not to cause damage to the property owned by the appellants­ plaintiffs. The appellants­ plaintiffs also prayed to restrict the defendants­respondents from subletting the suit premises or to create any third party rights by mortgaging the same and further not to use suit premises for the purpose of restaurant, hotel or any such other purpose till the outcome of the suit.

5.2 The respondents­ defendants also have preferred Special Civil Suit no.148 of 2018 against the appellants­ plaintiffs wherein the daughter of the appellant no.1 was also joined as defendant and the said suit is filed along with the interim injunction application Exh.5 praying that the appellants­ plaintiffs be restrained from disturbing the enjoyment of possession of the suit premises as agreed orally between the parties for the period of 10 years or till further renewal of the oral agreement. The respondents­defendants in the said suit also sought different prayers against the appellants praying for declaratory relief and seeking specific performance to execute the lease agreement for 10 years as per the oral agreement and also prayed for permanent injunction not to dispossess the respondents from suit premises.

5.3 It appears that the Principal Senior Civil Judge, Ahmedabad (Rural) vide order dated 12th April, 2018 decided Exh.5 application in Special Civil Suit no.148 of 2018 and restrained the appellants­ plaintiffs from interfering with the possession and working of the restaurant by

the respondents till further orders or till final disposal of the suit, whichever is earlier. It was also observed in the operative portion of the order that the claim of the respondents­defendants for oral contract and renewal of the contract upto 10 years is not acceptable and to that effect the respondents have no right to retain the possession for further period in contravention of agreement of the suit premises. However, the appellants­ plaintiffs were restrained from taking or interfering with the possession of the respondents without due process of law.

5.4 Both the sides thereafter, preferred cross Appeal from Order being aggrieved by the aforesaid order dated 12th April, 2018. The respondents­defendants filed Appeal from Order no.94 of 2018 and appellants­ plaintiffs filed Appeal from Order no.200 of 2018 before this Court and both the appeals were heard together and disposed of by common order dated 30th July, 2019 quashing and setting aside the order dated 12th April, 2018 and the matter was remanded back to the trial Court for fresh adjudication for interim injunction application Exh.5 in Special Civil Suit no.148 of 2018 within a period of three months and both the sides were directed to maintain status­quo as on date till the final disposal of the application Exh.5.

5.5 It appears that the Principal Senior Civil Judge, Ahmedabad (Rural) after considering the written submissions and replies and rejoinders filed by both the sides reheard the matter on remand and vide order dated 14th October, 2019, partly allowed the interim injunction application Exh.5 preferred by the respondents­defendants and directed the plaintiffs­appellants not to take away the possession of the suit premises from the respondents forcefully and without following the due process of law.

5.6 The appellants­plaintiffs thereafter have filed the Appeal from Order challenging the order dated 14th October, 2019 passed in Special Civil Suit no.148 of 2018 before the District Court. The appellants­ plaintiffs also filed Special Civil Suit no.486 of 2019 with a prayer to handover the possession of the suit premises in view of the breach of the condition of the leave and license agreement by mandatory order and decree with other consequential prayers restraining the respondents from causing any hindrance in handing over the possession of the suit premises. The appellants­plaintiffs have also prayed for the cost and damages.

5.7 The appellants have preferred an application Exh.5 under Order­ 39, Rules­1 and 2 of the Code for temporary injunction during the pendency of the suit so as to handover the possession of the suit premises to the appellants in view of the breach of the terms and conditions of the leave and license agreement.

6. Learned advocate Mr. Bhargav Bhatt assisted by learned advocate Mr. Rutvij Oza for the appellants­plaintiffs submitted that the suit premises was given on leave and license basis to the respondents­ defendants for a period of 11 months and 29 days by executing the leave and license agreement on 8th February, 2018 and as such period is over, the respondents have no right to continue in possession of the suit premises in view of the breach of terms and conditions of the leave and license agreement. The learned advocate Mr. Bhatt invited attention of the Court to the various conditions of the leave and license agreement to point­out that the respondents­defendants have committed breach of such conditions by not paying the municipal tax of the property, as well as, the respondents - defendants are not using the property and such property is sealed by the Ahmedabad Municipal Corporation for not

paying the tax due which is the liability of the respondents­defendants as per Clause nos.8 and 9 of the leave and license agreement.

7. The learned advocate Mr. Bhatt submitted that the learned Judge failed to consider the three ingredients for granting interim injunction in favour of the plaintiffs­appellants i.e. prima facie case, balance of convenience and irreparable injury. It was submitted that the learned Judge has straight away relying upon the interim injunction order passed in Special Civil Suit no.148 of 2018 filed by the respondents­defendants and ignoring the reliance placed by the appellants­plaintiffs on the decision of the Apex Court in case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through legal representatives reported in (2012) 5 SCC 370 held that the judgment of the Apex Court is against the final judgment while in the facts of the case, there is an interim application and when there is a dispute with regard to the oral contract, it is required to be proved after recording the evidence and in view of the existence of the interim order in Special Civil Suit no.148 of 2018, the appellants­plaintiffs are not entitled to interim relief as prayed for during the pendency of the suit and therefore, it was submitted that such reasoning given by the Court below is contrary to the facts of the case.

8. The learned advocate Mr. Bhatt submitted that there is a prima facie case in favour of the plaintiffs­appellants as merely bare words of having oral agreement of lease for the period of 10 years believed by the Court below as against the two documents i.e. leave and license agreement and indemnity bond signed by the respondents­defendants which are admissible under Section 91 of the Evidence Act have been overlooked by the Court while rejecting the application Exh.5 of the plaintiffs­appellants. The learned advocate Mr. Bhatt submitted that the

case of the appellants­plaintiffs is squarely covered by the judgment of the Supreme Court in case of Maria Margarida Sequeria Fernandes and Others (supra) and relied upon the observations made by the Supreme Court in Para nos.71 to 101 to submit that the fact of existence of leave and license agreement for 11 months and 29 days is not disputed by the respondents­ defendants and therefore, once there is breach of the terms and conditions of the agreement, the balance of convenience would be in favor of the appellants­plaintiffs because the appellants­ plaintiffs are not able to use the suit premises which is in possession of the respondents and appellants­plaintiffs are deprived of the use of further FSI, which is available to them which is approximately 9269 sq. meters. The learned advocate Mr. Bhatt, thereafter, submitted that the continuous irreparable injury suffered by the appellants cannot be compensated in terms of money as the rent decided in the leave and license agreement is much less than the market rate. It was submitted that market rate of the property in the year 2018 was Rs.100/­ per sq. ft. for the ground floor, Rs.65/­ per sq. ft. for first floor and Rs.45/­ per sq. ft. for the second floor and as per the leave and license agreement, the entire rent decided was only Rs.4,12,500/­, which is much less than the market rent resulting into loss of more than Rs.3.80 crores for 11 months and 29 days of the leave and license period and results into continuous loss to the appellants­plaintiffs thereafter.

9. The learned advocate Mr. Bhatt relied upon the decision of this Court in Special Civil Application no.11977 of 2015 in case of Parthkumar Ramniklal Kalavadiya vs. Kantaben Dharmeshbhai Patel to submit that at the interim stage, the appellants­plaintiffs can be put into possession when there is a clear breach of terms and conditions of the leave and license agreement.

10. The learned advocate Mr. Bhatt submitted that the Court below has rejected the application for interim injunction without any further order with regard to the payment of mesne profits for the use of the premises during the pendency of the suit. It was submitted that in the order passed below Exh.5 in Special Civil Suit no.148 of 2018, there is categorical finding of the Court that the respondents­defendants are not entitled to continue in possession on the basis of oral agreement, however, the appellants­plaintiffs were restrained from taking the possession forcefully and without following due procedure of law. It was therefore, submitted that the Court below ought to have passed an order of handing over the possession to the plaintiffs­appellants in the present proceedings as that would be with due process of law. The learned advocate Mr. Bhatt, therefore, submitted that the Apex Court in the judgment of Maria Margarida Sequeria Fernandes and Others (supra) in para 81 has observed that due process of law means nobody ought to be condemned unheard and a person in settled possession will not be dispossessed except by due process of law and an opportunity to be given to the defendant to file pleadings including written statement and documents before the Court of law which does not mean the whole trial. It was submitted that "Due process of law" is satisfied the moment rights of the parties are adjudicated by a competent Court and hence, once the plaintiffs­appellants have filed the Special Civil Suit no.486 of 2019 so as to get the possession of the suit premises due to breach of the terms and conditions of leave and license agreement and the respondents­ defendants were heard after giving them opportunity, it would amount to "Due process of law" so as to handover the possession of the suit premises to the appellants­plaintiffs which would be subject to outcome of both the suits. The learned Mr. Bhatt, therefore, submitted that the Court below ought to have allowed the application Exh.5 in favour of the appellants­plaintiffs.

11. On the other hand, the learned Senior Advocate Mr. Percy Kavina assisted by the learned advocate Mr. D.K. Puj submitted that the respondents­defendants have filed Special Civil Suit no.148 of 2018 first in point of time and therefore, unless the oral agreement of executing the deed for 10 years is not adjudicated upon, the respondents­ defendants are required to continue in possession of the suit premises and therefore, the impugned order passed by the Court below is in consonance with the three cardinal principles for granting interim injunction as there is a prima facie case in favour of the respondents­ defendants, moreover, the balance of convenience is also in favour of the respondents because if the possession of the suit premises is handed over to the plaintiffs­appellants, the prayers made in the special civil suit filed by the respondents­defendants would be rendered nugatory. The learned Senior Advocate Mr. Kavina also invited attention of the Court to the facts in case of Maria Margarida Sequeria Fernandes and Others (supra) before the Apex Court to point­out that in the facts of the said case, Maria was the original owner having exclusive title of the plot and house in question and the person, who is in possession Erasmo Jack de Sequeria was a guardian and in that circumstances, the Apex Court came to the conclusion that the respondent in the said case was not able to establish family arrangement by which the premises in question was given for his residence, as the premises was given only in a capacity of a caretaker, whereas, in the facts of the case, it was pointed­out from the averments made in memo of the plaint of Special Civil Suit no.148 of 2018 that the respondents­defendants have specifically pleaded for decree of specific performance of oral agreement of giving the suit premises for 10 years on lease.

12. The learned Senior Advocate Mr. Kavina further pointed­out that originally the possession of the suit premises was handed over to the

respondents by the appellants­plaintiffs in the year 2016 with a view to construct the property over the land belonging to the appellants­ plaintiffs and commencement letter dated 3rd September, 2016 was also issued by the Ahmedabad Municipal Corporation, wherein the name of the respondent no.2 Chanchal Infrastructure Pvt. Ltd., is shown. The learned Senior Advocate Mr. Kavina further pointed­out that it is the case of the respondents that the B.U. permission was also given on 19 th July, 2017 by the Ahmedabad Municipal Corporation for the purpose of starting the restaurant and the suit premises was taken on a monthly rent of Rs.3,75,000/­ from the appellants­plaintiffs and accordingly, the respondents­defendants made construction over the land to start a restaurant in the name of the 'Indian Channel' for which it was orally agreed to execute lease deed for 10 years. It was also pointed­out from the averments made in the plaint of Special Civil Suit no.148 of 2018 that about more than Rs.7,00,00,000/­ have been spent by the respondents­defendants on construction of the restaurant. It was therefore, submitted by the learned Senior Advocate Mr. Kavina that the suit filed by the plaintiffs being Special Civil Suit no.486 of 2019 is barred by Order­2, Rule­2 of the Code and the judgment of the Apex Court in case of Maria Margarida Sequeria Fernandes and Others (supra) has no application. Reliance was placed on the decisions of Supreme Court in case of Hammad Ahmed Vs. Abdul Majeed and others reported in (2019) 14 SCC page 1 and in case of Tek Singh Vs. Shashi Verma and another reported in (2019) 16 SCC page 678 in support of his submissions .

13. The learned Senior Advocate Mr. Kavina, therefore, submitted that the impugned order passed by the Court below is in accordance with law and therefore, no interference is required to be made and at the most both the suits can be expedited.

14. At this juncture, it was pointed­out to the learned advocates for both the parties to find­out solution in the matter by the Court and following order was passed on 5th November, 2020.

"Heard learned advocate Mr. Bhargav Bhatt assisted by learned advocate Mr.Rutvij Oza for the appellant and learned Senior Advocate Mr. Percy Kavina assisted by learned advocate Mr. D.K. Puj for the respondent nos.1.1 to 1.4 through video conference.

Learned Senior Advocate Mr. Kavina submits that the respondents shall restore the status­quo ante as on 1.10.2000, the date on which the first order was passed by this Court. He further states that the respondents are agreeable for discussion for resolving the issues between the parties.

Mr. Bhatt has also shown his willingness, on instructions, from the appellants that the appellants are ready and willing to sit for the discussion for resolving the disputes between the parties.

In view of the above concession, the matter is adjourned for time being on 7th December, 2020, with a hope that both the parties would come to an amicable solution of the disputes which are mainly relating to the business rather than property issue, failing which, the matter shall be heard finally on 7th December, 2020.

Ad­interim relief granted earlier to continue till the next date of hearing."

15. However, on the next date of hearing, it was pointed­out by the learned advocates for both the sides that it was not possible to arrive at amicable solution between the parties.

16. In such circumstances, learned advocates of both the sides were heard extensively on merits and on conclusion of the arguments again it was put to the learned advocates for both the sides as to give their proposal with regard to the payment of mesne profit so as to permit the respondents to continue in possession in the eventuality, if it is decided in this appeal to allow the respondents­defendants to continue in possession as held by the Court below during the pendency of the suit. The learned Senior Advocate Mr. Kavina on behalf of the respondents submitted that the respondents are ready to pay mesne profit of Rs.4,12,500/­ plus increase of 10% every year till final disposal of the suit. Whereas, the learned advocate Mr. Bhatt for the appellants submitted that as per the market rate, the plaintiffs are entitled to receive monthly rent of Rs.37,00,000/­. Thus, there is a vast difference between both the figures so as to arrive for determination of any amount for the purpose of mesne profits to permit the respondents to continue in the possession of the suit premises. The learned advocate Mr. Bhatt also proposed that if the possession of the suit premises is handed over to the plaintiffs­appellants, the plaintiffs­appellants shall maintain the status­ quo with regard to the structure standing on the land so as to enable the plaintiffs­appellants to use the other part of the land which is open so as to use the FSI available on such land in accordance with law. Under such circumstances, the issue of interim injunction prayed by the appellants­plaintiffs is required to be adjudicated on merits.

17. On perusal of the material on record and after considering the submissions made by both the sides, it emerges from the record that the plaintiffs and respondents intended to develop the land of the ownership of the plaintiffs to start a restaurant in the year 2016. Accordingly, the B.U. permission etc. was obtained from the Municipal Corporation after sanction of the plan and it appears that the respondents have

constructed removable structure on the land in question. On the other hand, the respondents have also not paid the municipal tax and as such the premises is sealed by the municipal corporation. During the pendency of the present proceedings, it was revealed on behalf of the respondents that they have already made arrangement to pay tax and seal would be opened by the Corporation. In the Special Civil Suit no.148 of 2018 filed by the respondents­plaintiffs, the Court below came to the conclusion that the respondents­plaintiffs cannot retain possession on the basis of the oral agreement of having lease for 10 years of the suit premises. However, the respondents­defendants were protected from taking away possession by the plaintiffs­appellants herein forcefully without due procedure of law.

18. In such circumstances, when the plaintiffs have preferred Special Civil Suit no.486 of 2019 for mandatory injunction with a prayer to handover the possession of the suit premises with consequential reliefs so as to take the possession in due process of law, the observations made by the Supreme Court in case of Maria Margarida Sequeria Fernandes and Others (supra) are relevant. The Supreme Court in case of Maria Margarida Sequeria Fernandes and Others (supra) has held as under :­

"79. In dealing with a civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide the fate of the case.

Suit for Mandatory Injunction

80. It is a settled principle of law that no one can take law in his own hands. Even a trespasser in settled possession cannot be dispossessed without recourse of law. It must be the endeavour of the Court that if a suit for mandatory injunction is filed, then it is its bounden duty and obligation to critically examine the pleadings and documents and pass an

order of injunction while taking pragmatic realities including prevalent market rent of similar premises in similar localities in consideration. The Court's primary concern has to be to do substantial justice. Even if the Court in an extraordinary case decides to grant ex­parte ad interim injunction in favour of the plaintiff who does not have a clear title, then at least the plaintiff be directed to give an undertaking that in case the suit is ultimately dismissed, then he would be required to pay market rent of the property from the date when an ad interim injunction was obtained by him. It is the duty and the obligation of the Court to at least dispose off application of grant of injunction as expeditiously as possible. It is the demand of equity and justice.

Due process of Law

81. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.

82. The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial 2006 (88) DRJ 545 held as under:

"28. The expressions `due process of law', `due course of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing ­­ ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.

Now, this `due process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."

83. We approve the findings of the High Court of Delhi on this issue in the aforesaid case.

False claims and false defences

84. False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in

the hope that the other party will tire out and ultimately would settle with them by paying a huge amount.

This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent.

85. This Court in a recent judgment in Ramrameshwari Devi and Others (supra) aptly observed at page 266 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least be minimized if exemplary cost is imposed for instituting frivolous litigation.

The Court observed at pages 267­268 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

Grant or refusal of an injunction

86. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. In order to grant or refuse injunction, the judicial officer or the judge must carefully examine the entire

pleadings and documents with utmost care and seriousness.

87. The safe and better course is to give short notice on injunction application and pass an appropriate order after hearing both the sides. In case of grave urgency, if it becomes imperative to grant an ex­parte ad interim injunction, it should be granted for a specified period, such as, for two weeks. In those cases, the plaintiff will have no inherent interest in delaying disposal of injunction application after obtaining an ex­parte ad interim injunction. The Court, in order to avoid abuse of the process of law may also record in the injunction order that if the suit is eventually dismissed, the plaintiff undertakes to pay restitution, actual or realistic costs. While passing the order, the Court must take into consideration the pragmatic realities and pass proper order for mesne profits. The Court must make serious endeavour to ensure that even­handed justice is given to both the parties.

88. Ordinarily, three main principles govern the grant or refusal of injunction.

          a)    prima facie case;


         b)     balance of convenience; and


         c) irreparable injury, which guide the Court
in this regard.

89. In the broad category of prima facie case, it is imperative for the Court to carefully analyse the pleadings and the documents on record and only on that basis the Court must be governed by the prima facie case. In grant and refusal of injunction, pleadings and documents play vital role.

Mesne Profits

90. Experience has shown that all kinds of pleadings are

introduced and even false and fabricated documents are filed in civil cases because there is an inherent profit in continuation of possession. In a large number of cases, honest litigants suffer and dishonest litigants get undue benefit by grant or refusal of an injunction because the Courts do not critically examine pleadings and documents on record.

In case while granting or refusing injunction, the Court properly considers pleadings and documents and takes the pragmatic view and grants appropriate mesne profit, then the inherent interest to continue frivolous litigation by unscrupulous litigants would be reduced to a large extent.

91. The Court while granting injunction should broadly take into consideration the prevailing market rentals in the locality for similar premises. Based on that, the Court should fix adhoc amount which the person continuing in possession must pay and on such payment, the plaintiff may withdraw after furnishing an undertaking and also making it clear that should the Court pass any order for reimbursement, it will be a charge upon the property.

92. The Court can also direct payment of a particular amount and for a differential, direct furnishing of a security by the person who wishes to continue in possession. If such amount, as may be fixed by the Court, is not paid as security, the Court may remove the person and appoint a receiver of the property or strike out the claim or defence. This is a very important exercise for balancing equities. Courts must carry out this exercise with extreme care and caution while keeping pragmatic realities in mind and make a proper order of granting mesne profit. This is the requirement of equity and justice."

19. The Apex Court with regard to grant/refusal of injunction under Order 39 Rules 1 and 2 of the Code in the aforesaid decision has held that in the broad category of prima facie case, the Court is required to carefully analyse the pleadings and documents on record and only on that basis, the Court must be governed by the prima facie case. In grant

and refusal of injunction, pleadings and documents play a vital role.

In facts of the case, on perusal of leave and license agreement for 11 months and 29 days, the plaintiffs­appellants can be said to have a very good prima face case. However, considering the pleadings and documents on record, more particularly, the averments made in the memo of the plaint of Special Civil Suit No. 148/2018, prima facie it emerges from the record that possession of the suit premises was given to the respondents­defendants in the year 2016. In such circumstances, merely leave and license agreement dated 8.2.2018 cannot be the basis for arriving at a conclusion de­hors the past events which have taken place between the parties to hand over the possession of the suit premises during the pendency of the suit to the plaintiffs­appellants.

In view of above, it would be necessary to strike equity between the parties by awarding mesne profit to the appellants­plaintiffs during the pendency of the suit.

The Apex Court in the aforesaid decision has held that in such cases, a pragmatic view is required to be taken to grant appropriate mesne profit, by directing payment of a particular amount by the person continuing in possession must pay and on such payment, the plaintiff may withdraw after furnishing an undertaking and also making it clear that should the Court pass any order for reimbursement, it would be a charge upon the property and if such amount as may be fixed by the Court is not paid, the Court may remove the person and appoint a receiver of the property or strike out the claim or defence.

Therefore, it would be in the interest of justice, if the following order is passed :

(i) That the trial Court shall consolidate both the suits i.e. Special Civil Suit no.148 of 2018 and Special Civil Suit no.486 of 2019 and shall proceed with the hearing together.

(ii) In both the suits, issues shall be framed at the earliest and not later than 31st March 2021 and thereafter permit both the sides to lead oral evidence. The trial Court shall try to conclude the hearing latest by 30th June, 2021. In the meanwhile, the respondents are directed to deposit Rs.6,00,000/­ per month from February, 2019 till final disposal of the suit. The arrears from February, 2019 to February, 2021 shall be deposited on or before 31st March, 2021 and thereafter, Rs.6,00,000/­ per month from March, 2021 shall be deposited on or before the 7th day of each succeeding month.

(iii) The plaintiffs­appellants are permitted to withdraw the amount to be deposited by the respondents without prejudice to their rights and contentions.

(iv) Both the sides shall maintain status­quo with regard to the suit premises till final disposal of both the suits. If the amount as stipulated hereinabove is not deposited by the respondents­ defendants within the time fixed by this order, the respondents­ defendants shall handover the possession of the suit premises to the Receiver to be appointed by the Court below, who will manage the suit premises on behalf of the appellants­plaintiffs.

20. With the aforesaid directions, the Appeal from Order is disposed of and the order passed by the Court below on 25.02.2020 below Exh.5

application in Special Civil Suit no.486 of 2019 stands modified to the aforesaid extent. No order as to costs.

In view of the order passed in the main matter, connected Civil Applications stand disposed of.

(BHARGAV D. KARIA, J.) AMAR RATHOD...