Prakash Ramchandra Brahmbhatt vs Thakor Lalsinh Ramtuji
2021 Latest Caselaw 17162 Guj

    C/SCA/4362/2017                                 CAV JUDGMENT DATED: 15/11/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 4362 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. 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 ?

========================================================== PRAKASH RAMCHANDRA BRAHMBHATT Versus THAKOR LALSINH RAMTUJI & 6 other(s) ========================================================== Appearance:

MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1

MR TEJAS P SATTA(3149) for the Respondent(s) No. 1 RULE SERVED(64) for the Respondent(s) No. 2,3,4,5,6,7 ==========================================================

CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

Date : 15/11/2021

CAV JUDGMENT

1. Rule. Mr.Tejas P. Satta, learned advocate waives service

of notice of Rule for and on behalf of respondent no.1.

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2. Present petitioner has preferred this petition under

Articles 226 and 227 of the Constitution of India and under

the provisions of Order XXXVII Rule 4 of the Code of Civil

Procedure, 1908 (hereinafter referred to as "the CPC" for short)

and requested to quash and set aside the order dated

14.07.2010 passed below Exh.23 in Regular Civil Suit No.197

of 2007 as well as order dated 23.01.2017 passed in Civil

Misc. Appeal No.11 of 2015 by the learned 3 rd Additional

District Judge, Kalol.

3. Short facts leading to the filing of present petition are as

under:

3.1 Regular Civil Suit No.197 of 2007 was filed for

declaration and injunction by the original plaintiff before the

Trial Court on the basis of the agreement executed on

19.02.1998. The said suit was filed in the year 2007, wherein

injunction application Exh.5 was preferred by the plaintiff.

The Trial Court, after hearing the plaintiff, passed an order

dated 14.07.2010 restraining the original defendants to sell,

mortgage, gift or in any manner transfer the suit property

except the plaintiff and not to create any debt or charge upon

the same till the disposal of the suit. The present petitioner

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was not aware about the proceedings of Regular Civil Suit

No.197 of 2007 and interim injunction order dated

14.07.2010. The petitioner, who is the owner of the suit

property i.e. Survey/Block No.96, located at Village: Nasmed,

admeasuring 1-66-93 sq. mtrs. by registered sale deed

executed on 12.04.2010, came into knowledge of the aforesaid

proceedings on an entry of the injunction order in Village

Form No.7/12, and therefore, he filed an application for

joining him as party defendant in Regular Civil Suit No.197 of

2007 which was granted by the Court and the petitioner was

joined as defendant no.7. As the original suit and injunction

application were filed against defendant nos.1 to 6 and not

against the petitioner, after joining him as party defendant,

the petitioner applied under Order XXXVII Rule 4 for

modification of injunction by raising various grounds viz. (i)

limitation, (ii) under Section 34 of the Specific Relief Act as the

suit is not maintainable in absence of the prayer for

enforcement of rights under the agreement to sell, (iii)

agreement relied upon by the plaintiff is dated 19.02.1998 and

the suit was filed in the year 2007, (iv) agreement was also

challenged on the ground that it was a new tenure land, which

cannot be transferred and therefore, the agreement itself is

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bad, (v) registered document is a deemed notice, which was

not taken care of by any of the authorities including the Court

and several other grounds as stated in the said application

Exh.23 dated 12.03.2014. The learned Civil Judge, after

hearing the parties, was pleased to reject the prayer made in

the application Exh.23 holding that the petitioner has not

shown any change in the circumstances, and therefore,

injunction was properly granted and the Court cannot exercise

the power under Order XXXIX Rule 4 of the CPC. While

dismissing the application Exh.23, the learned Judge further

passed an order of injunction against defendant no.7-present

petitioner against whom no injunction was granted by the

Trial Court restraining him to transfer, alienate or create any

encumbrances whatsoever over the suit property till the final

disposal of the suit.

4. Being aggrieved and dissatisfied with the order passed

below Exh.23 by the learned Civil Court concerned and

passing interim injunction on 14.07.2010, the petitioner

preferred Civil Misc. Appeal No.11 of 2015 before the District

Court concerned. The learned 3rd Additional District Judge,

Kalol rejected the Civil Misc. Appeal No.11 of 2015 vide order

dated 23.01.2017 and confirmed the order passed below

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Exh.23 by the learned Civil Court concerned. Hence, this

petition.

5. Heard learned advocate for the petitioner and learned

advocate for the respondents.

6. Learned advocate appearing for the petitioner has

submitted that the Court-below has not taken into

consideration any of the submissions, which were made by the

petitioner. It is further submitted that the present petitioner

against whom there was no injunction and if he has moved

any application for vacating interim injunction under Order

XXXIX Rule 4 of the CPC, there cannot be a counter

injunction against him, and therefore, the impugned orders

are without jurisdiction. It is further submitted that the land

in dispute was a new tenure land and agreement was executed

for the new tenure land, and therefore, it was illegal. It is

further submitted that the original plaintiff filed the suit only

for injunction and declaration and no prayer for specific

performance of the contract was made, and therefore, the suit

itself is not maintainable in absence of possession with him

and subsequent sale deed was executed on 12.04.2010 and

the petitioner was in possession since then for which the Trial

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Court has not considered this aspect erroneously. It is further

submitted that the suit itself is time barred as the agreement

was executed in the year 1998 and the suit is filed in the year

2007. That on the ground of limitation, the suit is required to

be dismissed. That various grounds were pressed into service

at the time of hearing of the application Exh.23, but nothing

was considered by the Trial Court. It is further submitted that

on the basis of the registered sale deed executed in favour of

the present petitioner dated 12.04.2010, prima facie case

would be in favour of the present petitioner-defendant no.7

and against the plaintiff, and therefore, in view of the

aforesaid change in the circumstances and change in the

prima facie case, it is requested by learned advocate for the

petitioner to exercise the powers under Order XXXIX Rule 4 of

the CPC and to vacate interim injunction granted earlier by

the learned Civil Court concerned and confirmed by the First

Appellate Court by quashing and setting aside the impugned

order dated 14.07.2010 passed below Exh.23 in Regular Civil

Suit No.197 of 2007 and order dated 23.01.2017 passed in

Civil Misc. Appeal No.11 of 2015 by the learned 3 rd Additional

District Judge, Kalol.

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7. Per contra, learned advocate appearing for respondents

strongly objected the submissions made by learned advocate

for the petitioner and supported the order passed by the

Court-below. It is further submitted that interim injunction

granted in favour of the original plaintiff cannot be varied or

set aside by exercising the powers under Order XXXIX Rule 4

of the CPC. No false statement was made or misleading the

statement in relation to the material particulars. That notice

was duly served to the original defendants and after hearing

the plaintiff and considering the material produced on record,

interim injunction was granted below Exh.5. It is further

submitted that there is no change in the circumstances for

modification of the order, as prayed by the present petitioner,

nor it is necessary to do in the interest of justice as order of

interim injunction was passed after giving an opportunity of

being heard to a party. It is further submitted that there is no

illegality or error committed by the Trial Court or the First

Appellate Court in dismissing the application Exh.23 and

Misc. Civil Appeal No.11 of 2015. That the defendant no.7 is a

newly purchaser of the land in dispute, and therefore, he

should be restrained to transfer and alienate the suit property,

and therefore, the Trial Court has rightly passed the order of

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injunction against the present petitioner-defendant no.7. That

discretion exercised by the Trial Court, while passing the order

below Exh.5 in favour of the original plaintiff, cannot be

interfered by this Court by exercising the powers under

Articles 226 and 227 of the Constitution of India. Hence, it is

requested by learned advocate for respondents to dismiss the

present petition.

8. Having considered the submissions made by learned

advocates for the respective parties and perused the material

on record, it appears that Regular Civil Suit No.197 of 2007

filed by the original plaintiff was for declaration and injunction

based on an agreement dated 19.02.1998, wherein the

petitioner was not made a party and as such, there is no

injunction against the present petitioner. The suit property i.e.

Survey/Block No.96, located at Village: Nasmed, admeasuring

1-66-93 sq. mtrs. was purchased by registered sale deed

executed on 12.04.2010. When the petitioner came to know

about the proceedings i.e. Regular Civil Suit No.197 of 2007,

he filed an application for joining him as party defendant,

which came to be granted by the Court and he was joined as

defendant no.7. It also appears that after joining him as party

defendant, he filed an application Exh.23 under Order XXXIX

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Rule 4 of the CPC for modification of the order with various

grounds. The said application was rejected by the Trial Court,

and passed the injunction order against the present petitioner,

who was the applicant of the said application. The petitioner,

being aggrieved and dissatisfied with the order passed below

Exh.23 dated 14.07.2010, preferred Civil Misc. Appeal No.11

of 2015 before the District Court, Kalol which also came to be

dismissed vide order dated 23.01.2017. If we refer the

contents made in the plaint of Regular Civil Suit No.197 of

2007, it appears that the suit was based on an agreement

executed on 19.02.1998 and the suit was filed in the year

2007. The prayer in the suit was made for declaration and

injunction. Interim injunction was granted by the Trial Court

vide order dated 14.07.2010 restraining the original

defendants to sell, mortgage, gift or in any manner transfer

the suit property except the plaintiff and not to create any

debt or charge upon the same till the disposal of the suit. As

per the submissions made by learned advocate for the

petitioner, he was not known to the proceedings i.e. Regular

Civil Suit No.197 of 2007. When an entry of injunction was

effected in Village Form No.7/12, he came across the said suit

and filed an application for joining him as party defendant,

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which was granted by the Court as he was joined as defendant

no.7. As the suit and injunction application were filed against

defendant nos.1 to 6 and not against the petitioner, the

petitioner preferred an application Exh.23 before the Trial

Court under Order XXXIX Rule 4 of the CPC for modification

of the injunction on various grounds viz. (i) limitation, (ii)

under Section 34 of the Specific Relief Act as the suit is not

maintainable in absence of the prayer for enforcement of

rights under the agreement to sell, (iii) agreement relied upon

by the plaintiff is dated 19.02.1998 and the suit was filed in

the year 2007, (iv) agreement was also challenged on the

ground that it was a new tenure land, which cannot be

transferred and therefore, the agreement itself is bad, (v)

registered document is a deemed notice, which was not taken

care of by any of the authorities including the Court and

several other grounds as stated in the said application. The

learned Civil Judge concerned rejected the said application

observing that the agreement to sell was of the year 1998

executed before the Notary Public and original owner did not

appear inspite of the notice and temporary injunction was

already granted on 14.07.2010. From the order passed below

Exh.5, it appears that the summons and notice were issued by

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the Court. Defendant no.1 accepted the summons on behalf of

himself and on behalf of defendant nos.2 and 3. Summons

and notice were also duly served to defendant nos.4 to 6 on

09.03.2009, however, defendant nos.4 to 6 were not remained

present, and therefore, right to file written statement as well

as application for injunction was closed by the Court for all

the defendants. Hearing of learned advocate appearing for the

plaintiff was permitted. Neither written statement of the plaint

nor objection for application for interim injunction were

produced on record. The plaintiff's arguments were heard in

the suit and interim injunction was granted vide order dated

14.07.2010. An application Exh.23 preferred by the present

petitioner after joining him as defendant in the suit was filed

under Order XXXIX Rule 4 of the CPC raising various grounds

as stated therein. The Trial Court found that prima faice

balance of convenience was still in favour of the plaintiff and

irreparable loss may be caused to the plaintiff if the property

is further transferred. As the plaintiff has not misled or

knowingly put any statement before the Court falsely, the

defendant was not able to prove any false or misleading

statements made by the plaintiff, and therefore, an application

Exh.23 was rejected. The defendant was also ordered not to

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transfer, alienate or create any encumbrances over the

property, till the final disposal of the present suit. The First

Appellate Court in Civil Misc. Appeal No.11 of 2015 also

confirmed the order and dismissed the appeal vide order dated

23.01.2017. As per Order XXXIX Rule 4 of the CPC, any order

for an injunction may be discharged, or varied, or set aside by

the Court, on application made thereto by any party

dissatisfied with such order. Provided further that where an

order for injunction has been passed after giving to a party an

opportunity of being heard, the order shall not be discharged,

varied or set aside on the application of that party except

where such discharge, variation or setting aside has been

necessitated by a change in the circumstances, or unless the

Court is satisfied that the order has caused undue hardship to

that party. Under the circumstances, considering Order

XXXIX Rule 4 of the CPC, an injunction, which has been

passed after giving an opportunity of being heard to a party,

the order cannot be discharged, varied or set aside on the

application of that party except where such discharge,

variation or setting aside has been necessitated by a change in

the circumstances. Therefore, if a party against whom the

injunction has been granted satisfies on submitting

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application that there are change in the circumstances, the

Court may in exercise of powers under Order XXXIX Rule 4 of

CPC vary or set aside or discharge the injunction granted

earlier. This Court (Coram: M.R. Shah, J.), in the case of

Padmavati Paradise Vs. Kirtiben Dhaneshkumar Shah

reported in 2012 SCC Online Guj. 471 : (2012) 2 GLH 61,

has observed in Paragraph-16 as under:

"16. As per the settled proposition of law and even considering the provision of Order 39 Rule 1 while considering the grant of injunction under Order 39 Rule 1 of the Code of Civil Procedure, the Court is required to consider the prima facie case, balance of convenience and irreparable loss. While considering grant of injunction under Order 39 Rule 2 of the Code of Civil Procedure prima facie case plays an important role. If the Court finds that there is no prima facie case in favour of the plaintiffs, the Court may not even grant the injunction. At the relevant time the Court might have granted injunction considering the facts and circumstances prevailing at the relevant time and considering the prima facie case, balance of convenience and/or irreparable loss at the relevant time. However due to change in circumstance and in view of subsequent development, in a given case a prima facie case and/or balance of convenience and/or irreparable loss might change and if it is found that due to subsequent development prima facie case and balance of convenience is likely to be changed, the same can be

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said to be change in circumstances warranting exercise of powers under Order 39 Rule 4 of the Code of Civil Procedure and the Court may in exercise of powers under Order 39 Rule 4 of the Code of Civil Procedure may discharge or vary or set aside the injunction granted earlier. Therefore, any change in circumstance subsequent to grant of injunction due to the subsequent development by which prima facie case and/or balance of convenience is likely to be changed, the Court can exercise the powers under Order 39 Rule 4 of the Code of Civil Procedure and can discharge, vary or set aside the injunction granted earlier. However, while exercising such powers the Court is required to take great care and unless a strong case is made out of change in the circumstance, by which the relevant consideration for grant of injunction are likely to be changed, the Court may not exercise such powers, as earlier injunction has been passed after giving an opportunity to both the parties."

9. Admittedly, suit property was purchased by the present

petitioner, pursuant to the registered sale deed on 12.04.2010.

In Regular Civil Suit No.197 of 2007, interim injunction was

granted on 14.07.2010 after purchasing the suit property by

the present petitioner. He was joined as party defendant no.7

in the suit. Contention of limitation, non-maintainability of the

suit under Section 34 of the Specific Relief Act in absence of

the prayer for enforcement of rights under the agreement to

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sell, agreement relied upon by the plaintiff was dated

19.02.1998, the suit was filed in the year 2007, agreement

was also challenged on the ground that it was a new tenure

land, which cannot be transferred, the agreement itself is bad,

the registered document was a deemed notice, which was not

taken care of by any of the authorities and was not required to

be considered by the Trial Court while rejecting the

application Exh.23. Originally, interim injunction was granted

in absence of the defendant nos.1 to 6 as they have not

contested the suit nor an application Exh.5 for interim

injunction. Neither written statement was filed by any of the

defendants nor any objection against the application for

interim injunction. There was no injunction against the

present petitioner initially granted by the Court while deciding

the application Exh.5. When he moved an application Exh.23,

counter injunction was granted by the learned Civil Court

concerned without praying any relief of injunction by the

original plaintiff or the defendant which can be said to be

without jurisdiction. The other grounds raised by the present

petitioner in his application may be decided by the Trial Court

after recording evidence and hearing of the parties as interim

injunction is in force since 14.07.2010. However, interim

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injunction granted against the present petitioner by the Trial

Court concerned dated 21.04.2015 would require to be

interfered by this Court as it was without any prayer made by

any party in the suit.

10. In view of the above observations, present petition is

partly allowed. Rule is made absolute to the aforesaid

extent.

11. Interim injunction granted against the present petitioner-

defendant no.7 dated 21.04.2015 below Exh.23 in Regular

Civil Suit No.197 of 2007 shall be quashed and set aside,

which is confirmed in Civil Misc. Appeal No.11 of 2015 by an

order dated 23.01.2017 by the learned 3 rd Additional District

Judge, Kalol. As the suit is pending between the parties since

2007, it is necessary to direct the learned Trial Court

concerned to expedite the hearing of the suit and decide it on

merits, preferably within a period of one year from the date of

receipt of this order.

(B.N. KARIA, J) rakesh/