Thursday, 20 July 2017

Whether it is permissible for defendant to claim injunction?

 In any event of the matter, it is now settled law that injunctions can even be sought by the defendants and granted against the plaintiff under Order XXXIX Rule 1 read with Section 151 or Section 94(e) of the Code of Civil Procedure, in exercise of inherent powers of courts when circumstances warrant such exercise. Being an equitable relief, the grant or refusal of an injunction will ultimately rest in the sound judicial discretion of the courts, to be exercised on the facts and circumstances of each case. It is also now settled that the provisions of the Code of Civil Procedure are not exhaustive, because, the legislature is incapable of contemplating all possible circumstances which may arise in future and there is no expression in Section 94 of the CPC which prohibits the issue of temporary injunction in circumstances which are not even covered by Order XXXIX Rule 1. Further, Section 151 provides that nothing in the Code shall deem to limit or otherwise effect the inherent power of the Court to make necessary orders for ends of justice.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

F.A.O. Nos. 53 and 55 of 2017

Decided On: 29.06.2017

 K.P. Shibu
Vs.
P. Rajammal and Ors.

Hon'ble Judges/Coram:
P.N. Ravindran and Devan Ramachandran, JJ.



1. We are considering these two appeals together, since they are underpinned on the same set of causes of action and have been filed on the basis of allegations that are concatenated to each other. The reliefs sought are also dependent on each other and consideration of one inevitably will lead to the resolution of the other.

2. Both the above appeals have been filed by the plaintiff in O.S. No. 2 of 2017 on the files of the Sub Court, Kattappana.

3. The essential claim of the appellant in the plaint is that he had entered into an agreement dated 28.1.2016 with the respondents for the purpose of purchase of a cardamom estate comprised of an extent of 23.5 acres, out of which 15.5 acres is patta land and 8 acres is lease land. The appellant says that as per the agreement, the sale consideration fixed was Rs. 12,50,000/- per acre. He claims that an amount of Rs. 1,00,000/- was paid as advance and that certain other payments were made subsequently. We also notice that as per the case of the appellant, there was an original agreement dated 28.12.2015. viz., one executed one month before the agreement that is referred to above. He says that under the terms of the first agreement, he was to make payment of Rs. 59,00,000/- within a month. This led the parties to draw up another agreement which is the subject matter of the present suit, showing the amount of advance paid as Rs. 60,00,000/- in total, after taking into credit the amount of Rs. 1,00,000/- paid earlier under the original agreement. The appellant says that on 30.8.2016, he made a further payment of Rs. 40,00,000/- and that the receipt of the same by the respondents is endorsed on the reverse side of the first page of the agreement. The appellant then proceeds to assert that even before the amount of Rs. 40,00,000/- was paid to the respondents on 30.8.2016, he was put in possession of the plaint schedule property by the respondents on or some day after 31.4.2016 (sic), in anticipation of the payment of Rs. 40,00,000/- on 30.8.2016. On such asseverations, he claims that he was in continuous possession on or some time after 31.4.2016 (sic) and alleges that attempts were thereafter made by the respondents to dispossess him when he requested for execution of the sale deed under the terms of the agreement for sale.

4. On allegations as above, the appellant herein as plaintiff in the suit filed I.A. No. 99 of 2017 praying that the respondents/defendants be injuncted from encumbering the plaint schedule properties as also forcibly evicting him from it. It appears that along with the I.A., the appellant moved an application for appointment of an Advocate Commissioner, which was numbered as I.A. No. 98 of 2017. The court below allowed the said application and appointed an Advocate Commissioner who visited the plaint schedule properties on 28.1.2017 and filed a report which has been marked by the court below as Ext. C1. The respondents filed detailed objections against I.A. No. 99 of 2017 filed by the appellant herein and also filed I.A. No. 130 of 2017 seeking that the appellant herein be injuncted from trying to take forcible possession of the plaint schedule properties. Obviously, the case of the respondents in the said application was that the appellant had never been given possession of the plaint schedule property and that his attempt was to create a strategy under which he could attain possession of the property through unfair methods.

5. Before the court below the appellant produced and marked Exts. A1 to A36 in support of the allegations and the respondents herein produced Exts. B1 to B4 which were marked in such sequence. The court also marked the report of the Advocate Commissioner, dated 31.1.2017, as Ext. C1. After hearing the parties and after examination of the documents presented before it, the court below concluded that the case of the appellant that he was put in possession by the respondents on or after 31.4.2016 (sic) is not possible and, therefore, proceeded to dismiss I.A. No. 99 of 2017 and to allow I.A. No. 130 of 2017, thus injuncting the appellant herein from taking or attempting to take possession of the plaint schedule property from the respondents by force. The two applications referred to above were disposed of by order dated 14.3.2017 which has been assailed by the appellant in these appeals.

6. We have heard Sri T. Krishnanunni, learned Senior Counsel assisted by Smt. Meena Iyer appearing for the appellant in both these cases and Sri K. Jayakumar, learned Senior Counsel assisted by Sri Saji Mathew, appearing for respondents in the appeals.

7. When the hearing of these appeals commenced, Sri Krishnanunni, learned Senior Counsel pointedly referred to paragraph 7 of the judgment under appeal and contended that the court below had erred in concluding that the evidence attempted to be tendered by the appellant herein as the plaintiff, which were in the form of affidavits sworn to by certain other persons, was incapable of credence because they were not supported by the deposition of those who had allegedly sworn to the said affidavits. The learned Senior Counsel makes these submissions referring to six numbers of affidavits, alleged to have been sworn to by certain persons who claimed that the appellant was in possession of the plaint schedule properties and that they had personal information of such factum. The court below refused to accept those affidavits in evidence because they were not spoken to by the persons who had sworn to such affidavits. The court below appears to have noticed that serious objections were raised to the marking of those affidavits by the respondents who claimed that such affidavits cannot be taken on record without first examining the alleged deponents who had sworn to it and without them being offered an opportunity of cross examining such persons. Sri Krishnanunni, learned Senior Counsel alluded to Order XXXIX Rule 1 and asserts that, as per its terms, a fact can be proved by affidavit and that it is not necessary that it should be deposed to by the persons who had sworn to them.

8. We have examined this submission with great thought but are afraid that we do not find legal sustenance for this submission on account of the provisions contained in Order XIX of the Code of Civil Procedure relating to affidavits. As per the provisions of this Order, which is a general Order relating the all kinds of affidavits in lieu of evidence, the court may, at any time, for sufficient reason order that any particular fact or facts may be proved by affidavits on such condition that the court may think reasonable. That being so, what is material is the proviso to Order XIX Rule 1, which says that where it appears to the court that either party bona fide desires the production of a witness for cross examination and that such witness can be produced, an order shall not be made authorising the evidence by such witness to be given by affidavit.

9. In the case at hand it is undisputed that serious objections were raised by the respondents herein against the acceptance of the six affidavits produced by the appellant in support of his claim that he was in possession of the plaint schedule properties. When such serious objections were raised, it was incumbent upon the person, who produced such affidavits, to make available the deponents of such affidavits for cross examination under the proviso to Order XIX Rule 1. This not having been done and the appellant not having discharged the onus of producing the deponents of the affidavit, who could have easily spoken about those affidavits, we are certain in our view, that the court below was right in not accepting those affidavits on record.

10. That having been said, the court below thereafter went on to assess the evidence that was admitted by it, including the report of the learned Advocate Commissioner. The learned Advocate Commissioner, in his report dated 31.1.2017, reported before the court below that he had visited the plaint schedule property on 28.1.2017 at about 3 pm and that he was shown the plaint schedule properties by the plaintiff. It is pertinent that this was an ex-parte commission that was deputed by the court below without notice to the respondents. It is, therefore, obvious that the properties which were stated by the learned Commissioner as being the plaint schedule properties were shown to him by the appellant and certain facts were thereafter recorded by the learned Commissioner based on the information supplied by the appellant. The Commissioner has recorded in his report that at the time of the inspection, nine workers were found working in the cardamom estate and that all of them, as per the information given to the learned Advocate Commissioner by the appellant, were working as permanent employees of the appellant and that they were all living in the quarters allotted to the workers of the KPS Estate, Karithode. The Commissioner also reported that he found two buildings in the plaint schedule property which were numbered as Door No. 10/580 (old 10/588) and Door No. 10/581 (old 10/589) of Udumbanchola Gramapanchayath, one of which according to the appellant, was being used as store room, drier and firewood room and the other as the residence of the appellant. The learned Commissioner has further reported that the building bearing door No. 10/581 appeared to be used by the appellant and his family as their residence and that he had found circumstances inside the house to show that people were residing there. However, it is pertinent that the learned Commissioner did not meet or see the appellant's wife and children at the time of inspection but only reports that he was told by the appellant that they were residing there with him. The Commissioner saw and reported food articles, books and personal effects inside the said building, which the commissioner says he was told, belonged to the appellant and his family. Nothing more has been reported by the learned Commissioner and it is on the basis of these observations of the Commissioner that the appellant asserts with great vigour that the report would establish, without any cause of doubt, that said property was in his possession and the building therein is being used as the residence of his family. We will deal with the report in detail later in this judgment.

11. The appellant also relies on Exts. A3 to A19 documents, which have been produced by him to show that he had purchased manure and other essential requirements for the purpose of running the estate on the plaint schedule property and that these had been purchased by him after the date on which he took possession of the same. Based on these documents the appellant predicates that he was in possession of the estate and that he was taking care of it, using the manure and other essentials purchased by him, expending large amount of money.

12. We have considered all the materials that are available including the documents that are mentioned above. We have also examined Ext. C1 report of the learned Advocate Commissioner quite in detail.

13. The question before us, based on the opposing contentions of the parties, is whether the appellant had at any point of time obtained possession of the plaint schedule properties, as has been claimed by him. The fundamental basis of his claim is that even as per Ext. A2 agreement of sale entered into between the parties, he had been put in possession of the properties as early as on 31.4.2016 (sic) and that he had made a further payment of Rs. 40,00,000/- on 30.8.2016. However, we have to immediately point out that in paragraph 2 of the plaint, while the appellant says the he was in possession on a date after 31.4.2016 (sic), in paragraph 4 he asserts that he was given possession on 30.8.2016. This is not an inadvertent mistake as we can see. This is because, even as per Ext. A2, which is the agreement in question, what is endorsed on its reverse side is that the respondents had received Rs. 40,00,000/- on 30.8.2016. This endorsement is signed by two among the defendants, Sri P. Suresh and P. Rajammal. However, what is pertinent and which is virtually admitted by Sri Krishnanunni, learned Senior Counsel for the appellant is that after those endorsements were made, four words were added into it by his client subsequently, when allegedly possession was given to him. The four words in question are "and handover the possession". When these four words were added to the endorsement made, it would then read as thus:

"As per the agreement we have received Rs. 40,00,000/- (Forty lakhs only) on 30/8/2016. and handover the possession"
14. An examination of this endorsement makes it obvious that the words "and handover the possession" were interpolated subsequently in a different handwriting with different ink. Mr. Krishnanunni, learned Senior Counsel says the there is nothing unusual about it because, even according to the appellant, these four words were added to the endorsement only subsequently, and that the initial endorsement was only regarding the receipt of Rs. 40,00,000/-. He says that since the appellant was put in possession of the properties even before 30.8.2016, his client, who was in possession of this agreement, caused those four words to be added to the endorsement. We are afraid that these submissions, which are obviously in explication of the manner in which the endorsement was made in Ext. A2, are completely amorphous and without any rectitude. We are constrained to say so because, even as per the case of the appellant, he was put in possession as early as on 31.4.2016 (sic) or thereafter. If that be so, nothing prevented the parties from endorsing on the agreement initially itself, on 30.8.2016, that the plaintiff was in possession of the properties and that an amount of Rs. 40,00,000/- was paid on that day towards the next tranche of payment of sale consideration. This was not done.

15. The situation is much more suspicious because, Ext. A2 agreement, admittedly, was always in possession of the appellant and he could have made this interpolations in the endorsement at any point of time without the knowledge or concurrence or volition of the respondents. We, therefore, cannot, from the endorsement shown above, proceed to a conclusion that the appellant was put in possession of the properties either on 30.8.2016 or on 31.4.2016 (sic) or thereafter, as claimed by the appellant.

16. Certain other factors that relate to the agreement would also lend credence to what we have said above. This is because, as per one of the clauses of the agreement, it is specifically stipulated that on 30.8.2016 the plaintiff will have to make a subsequent payment of Rs. 40,00,000/- and that if that is not done on that day, the agreement itself will fail. It is much more pertinent that subsequent to this clause another clause is specifically entered in the agreement, to the effect that both the parties will, on or before 5.1.2017, buy the stamp papers required for the purpose of entering into a sale deed and execute the same, on which day the possession would be handed over to the appellant. It becomes, therefore, extremely difficult to believe that the appellant was put in possession of the property even before all these terms in the agreement had been honoured by him.

17. Of course, we are cognizant of the specific submission of Sri Krishnanunni, learned Senior Counsel that what was done by the parties on 31.4.2016 (sic) was virtually a novation of the contract under which the plaintiff was given possession even before the second tranche of Rs. 40,00,000/- was paid. We are unable to accept this submission for the reasons that we have recorded above and also because, there is nothing on record even as per the documents that are available, to show any such novation had been agreed to by the parties or to show that the agreement had, in any manner, been modified or altered by the parties by mutual consent. The mere fact that there is an endorsement in Ext. A2 as above would not be sufficient by itself to show that the plaintiff was put in possession of the properties.

18. Coming to the report of the learned Advocate Commissioner, which is the document that is now being relied on by the appellant with great amount of vehemence, we must notice straight away that all that the Commissioner had reported is what was informed to him by the appellant. The tenor of the Commissioner's report would show that the nine persons seen working in the estate at the time of inspection are claimed by the appellant to be his employees and it was also recorded by him that these employees are staying in the accommodation provided in the KPS Estate which is, admittedly, owned by the appellant. As regards the question of residence of the appellant is concerned, the Commissioner does not say that the appellant and his family are residing in one of the buildings, namely door No. 10/581, but only that he has been told by the appellant that he and his wife and children are staying there by showing certain personal effects, including books and some furniture therein to show that they had been residing there. The Commissioner could not have and has not rightly concluded that the appellant and the family are residing there, but has only said that the circumstances shown to him in the plaint schedule property would offer an inference that somebody is living in that accommodation.

19. Sri K. Jayakumar, learned Senior counsel appearing on behalf of the respondents pointed out that his clients had filed a very detailed objections to I.A. No. 99 of 2017, even though they had not filed specific objections to the report of the Advocate Commissioner. He says that the objections of the respondents to the report of the Commissioner is also incorporated in this objection and he points out the specific case of the respondents that what was shown to the Advocate Commissioner was, in fact, the residence occupied by the appellant himself, which is adjacent to the plaint schedule property and not the buildings available in the plaint schedule property.

20. Of course, we are in no position to test the relative validity or merits of the above two submissions made on behalf of the appellant and respondents respectively. All that we can say is that there is no conclusiveness, even in Ext. C1 report of the Advocate Commissioner, with respect to the question as to whether the appellant is in possession of the plaint schedule property or the buildings found therein.

21. We are also suspicious of certain other circumstances, which we record below only in a passing manner and as a prima facie view. This is because, we do not want our views to, in any manner, hamper the final conclusions that may be arrived at by the court after the suit is tried.

22. We must point out that in Ext. A2, the agreement between the parties, a building bearing No. 10/581 is not shown. Only a building bearing No. 10/580 is shown therein, which is defined to be a store house along with a residential accommodation. We say this, as we already indicated above, only to point out that the Advocate Commissioner was only reporting what was shown to him and stated to him by the plaintiff and not in an independent manner after evaluation of the plaint schedule averments or the schedule of the properties.

23. As regards Exts. A2 to A19 documents, these were produced by the appellant as being bills and invoices of manure, fertilizers and other chemicals, which he claims he had purchased for the purpose of curating the estate which is part of the plaint schedule properties that was allegedly put in his possession by the respondents. We have examined these documents and find that all except Exts.A9 and A10 pertain to the periods between September and November, 2016. It is significant that, even as per the appellant's case, he was put in possession of the estate as early as sometime in April, 2016. He has not shown even a single document wherein any manure, fertilizer or chemical have been purchased until September, 2016. Coming to Exts. A9 and A10, they are not of the year 2016 but of the year 2015, when admittedly he was not in possession of the plaint schedule properties or any portion thereof. In such view of the matter, we are not sure of if any credence can be given to these documents, at least at this point of time subject to evidence that may be let in by the parties in future, to establish and to show that the appellant was in possession of the plaint schedule properties and that he had purchased materials for the purpose of the maintenance of the estate.

24. The appellant, also relies on Exts. A20 and A36 which he claims are the copies of the title documents with respect to plaint schedule properties in support of his assertion that he was given possession of the property. We notice that the court below had, in fact, mistaken these to be original documents, whereas the documents on record are only photocopies or notarized photocopies. Needless to say, these documents will not in any manner obtain any benefit to the appellant in his assertion of physical possession of the properties. At best, it will only show that he had been given certain photocopies of the documents, perhaps in an attempt to execute a sale deed as expeditiously as possible between the parties, in terms of Ext. A2 agreement. We are certainly sure in our mind that, by no stretch of imagination can Ext. A20 to A36 notarized photocopies of the documents, even if they are relating to the plaint schedule properties, would obtain any benefit to the appellant's claim that he is in physical possession of the plaint schedule properties or the estate.

25. We must say that there are several other factors which had come into our mind while deciding against the appellant. However, we dissuade ourselves from going any further in our examination of these issues or in evaluation of the merits of the case of the appellant because we are of the view that anything that we say further would possibly have the effect of hampering or influencing the ultimate result of the suit. This is not our intention, and on the contrary, it is our intention that the suit should be tried unhindered by anything that we say here or anything that has been recorded by the court below in the orders under appeal.

26. Before we proceed to close this judgment, we must also point out that Sri Krishnanunni, learned Senior Counsel has an additional contention with respect to I.A. No. 130 of 2017, which has been filed by the respondents/defendants. According to the learned Senior Counsel, under the mandate of Order XXXIX Rule 1, no application can be entertained or countenanced by the court below at the hands of the defendants against the plaintiff. It is his specific contention that under Order XXXIX Rule 1, the power given to seek directions is only to the plaintiff and not to the defendants. We are afraid that this submission, would not now endure on account of several judgments that have already been delivered by this court and by the Honourable Supreme Court on this issue. We advert to the judgments of this court in In Re An Advocate (1985 KLT 813) and Sathyabhama Amma v. Vijaya Amma (MANU/KE/0016/1995 : 1994 (2) KLT 856). In the former judgment, this court has settled the law, without any reason for further confusion, that in particular circumstances, the court is also entitled to grant injunction against the plaintiff, if the defendants claimed such relief, which arose out of plaintiff's cause of action or was incidental to it. Similar is the view taken by this court in Sathyabhama Amma (supra) where it is reiterated that, in appropriate cases, the defendant can also seek an injunction to restrain the plaintiff in cases covered by clause (a) of Order XXXIX Rule 1 of the Code of Civil Procedure.

27. Adverting to the case at hand, we notice that, the reason why the respondents/defendants were constrained to file I.A. No. 130 of 2017 was because attempts were made by the appellant/plaintiff herein to trespass into the plaint schedule properties and to show that he was in possession of the same. According to the respondents, to a large extent the appellant was able to do so and to create a facade on 28.1.2017 when the Commissioner visited the premises. The fact that, at the time when the Commissioner visited the premises there were signals of residence in the property and that workers were being shown as being the workers of the appellant would go a long way in support of the apprehension of the respondents, that they would be evicted from the property by the appellant using force or otherwise, and they appear to be completely credible. To add to this, the confutative nature of the appellant's claims that he is in possession of the properties, based on the endorsement as we have seen above on Ext. A2, as also the steps taken by him to create a strategy of showing that he is in possession, at the time when the Commissioner came for inspection of the property, would irresistibly lead us to a conclusion that the prayer of the defendant for injunction would have to be found completely justified and permissible. In such view of the matter also, and in view of the precedents that we have seen above, we see no reason to hold that I.A. No. 130 of 2017, filed by the respondents/defendants, cannot be sustained or cannot be ordered.

28. In any event of the matter, it is now settled law that injunctions can even be sought by the defendants and granted against the plaintiff under Order XXXIX Rule 1 read with Section 151 or Section 94(e) of the Code of Civil Procedure, in exercise of inherent powers of courts when circumstances warrant such exercise. Being an equitable relief, the grant or refusal of an injunction will ultimately rest in the sound judicial discretion of the courts, to be exercised on the facts and circumstances of each case. It is also now settled that the provisions of the Code of Civil Procedure are not exhaustive, because, the legislature is incapable of contemplating all possible circumstances which may arise in future and there is no expression in Section 94 of the CPC which prohibits the issue of temporary injunction in circumstances which are not even covered by Order XXXIX Rule 1. Further, Section 151 provides that nothing in the Code shall deem to limit or otherwise effect the inherent power of the Court to make necessary orders for ends of justice.

29. We are of the view that the court below has considered all the factors that are relevant in its proper perspective and has entered into conclusion that are completely justified, probable and possible in the circumstances presented before it and to have then rightly injuncted the appellant from taking possession of the plaint schedule properties.

30. We have made these observations as above because, for the reasons that have been shown above, we feel that this is an imminently fit case where the court below was justified in exercising its discretion in granting an order in favour of the defendants against the plaintiff in an application made by them.

31. In an overview of what we have stated above, we find no reason to interfere with the view taken by the court below and we are inclined, for the reasons and observations above, to confirm the orders that are impugned by the appellant in these appeals. We therefore, dismiss these appeals confirming the orders of the court below, which are assailed in these appeals. However, in the peculiar facts and circumstances of these cases, we deem it appropriate not to make any order as to costs and leave the parties to suffer their respective costs in these appeals.

32. We clarify that even though we have made certain specific observations in this judgment, which we have been compelled in order to answer the issues that has been raised before us, it is not intended, in any manner, to influence or trammel the consideration of the various issues in the suit. For such reason we order that the court below will be obligated to continue with the suit, without being influenced or affected by any of our observations in this judgment or of any of the findings that have been entered into by the court below in the orders impugned in these appeals.

These appeals are thus ordered.



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