Whether conduct of defendant who is seeking vacation of interim order should also be fair and honest?

  The Wander Ltd. v. Antox India P. Ltd. (supra) fell for consideration in Gujarat Bottling Co. Ltd. v. Coca Cola Co. MANU/SC/0472/1995 : (1995) 5 SCC 545 wherein the Hon'ble Supreme Court observed that under Order 39 CPC the jurisdiction of the court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. It is relevant to reproduce paragraph No. 47 as under:

"47. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings". {Para 33}

34. In the present case, the trial court, while granting temporary injunction, has discussed that during the pendency of the suit the defendant No. 1, the appellant herein, transferred the suit schedule property in favour of defendants Nos. 2 and 3, and those defendants, in turn, transferred the part of the suit property in favour of third persons. The defendants/appellants invoking the jurisdiction of this court are therefore responsible for bringing about the state of things complained of by the plaintiff/respondent before the court below and cannot be prima facie said to be equitable in his dealings. In Gujarat Bottling Co. Ltd. v. Coca Cola Co. (supra) the Hon'ble Apex Court clearly laid down that the considerations of the conduct being fair and honest will arise not only in respect of an applicant seeking an order of injunction but also in respect of the party approaching the court for vacating the ad interim or temporary injunction already granted in the pending suit or proceeding.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Civil Miscellaneous Appeal Nos. 43 and 45 of 2021

Decided On: 25.01.2022

K. Ravi Prasad Reddy and Ors.  Vs.  G. Giridhar and Ors.

Hon'ble Judges/Coram:

C. Praveen Kumar and Ravi Nath Tilhari, JJ.

Author: Ravi Nath Tilhari, J.

Citation: MANU/AP/0075/2022.

Read full Judgment here: Click here

Print Page

Whether it is necessary for court to see conduct of plaintiff while deciding injunction application?

 Chapter VII, Section 36 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act') provides for grant of preventive relief. Section 37 provides that temporary injunction in a suit shall be regulated by the Code of Civil Procedure. The grant of relief in a suit for specific performance is itself a discretionary remedy. A Plaintiff seeking temporary injunction in a suit for specific performance will therefore have to establish a strong prima-facie case on basis of undisputed facts. The conduct of the Plaintiff will also be a very relevant consideration for purposes of injunction. The discretion at this stage has to be exercised judiciously and not arbitrarily.

16. The cardinal principles for grant of temporary injunction were considered in Dalpat Kumar v. Prahlad Singh, MANU/SC/0715/1991 : (1992) 1 SCC 719, observing as follows:

5...Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9346 of 2019 

Decided On: 06.01.2020

 Ambalal Sarabhai Enterprise Limited  Vs.  KS Infraspace LLP Limited 

Hon'ble Judges/Coram:

Ashok Bhushan and Navin Sinha, JJ.

Print Page

Whether court can refuse to set aside exparte decree considering previous conduct of defendant?

However, when the attention of the counsel for the petitioners was invited towards the observation of the trial Court that immediately after the stay order issued by the High Court came to an end, the petitioners thereafter immediately sold the property in question, then he fairly conceded that the petitioners have sold the property, but it is contended that the previous conduct of the petitioners cannot be taken into consideration and the Court must consider the conduct of the petitioners on the day when they were proceeded ex parte. It is further submitted that the attitude of the trial Court was nothing but "revengeful attitude of the Court".

8. Heard learned counsel for the petitioners.

9. It is really shocking that when the previous conduct of the petitioners was brought to the notice of the counsel for the petitioners, then he reacted by saying that if the previous conduct of a party is taken into consideration, then the same would amount to "revengeful attitude of the Court". The submission made by the counsel for the petitioners cannot be appreciated at all. It is well established principle of law that he who comes to the Court must come with clean hands. Just in order to find out that whether the grounds disclosed by the petitioners were bona fide or not, their previous conduct can very well be considered by the trial Court. The petitioners have not explained as to why they had sold the property in dispute immediately after the disposal of the writ petition, which was pending before this Court. It is fairly conceded by the counsel for the petitioners that the petitioners were appearing in the writ petition through their counsel. Once the petitioners were aware of the disposal of the writ petition and thereafter they immediately sold the property in dispute and thereafter not contacting their counsel specifically when their counsel had appeared on 12-9-2018 and under these circumstances, it clear that the conduct of the petitioners clearly shows that they were playing the game of hide and seek and thus, it can be safely said that they had not come to this Court with clean hands. Under these circumstances, this Court cannot ignore the previous conduct of the petitioners.

10. Considering the facts and circumstances of the case, this Court is of the considered opinion that no illegality has been committed by the trial Court by rejecting the application filed under Order IX, Rule 7, Civil Procedure Code.

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

M.P. No. 1325 of 2019

Decided On: 11.03.2019

 Guddi Bai  Vs.  Ramdas

Hon'ble Judges/Coram:

Gurpal Singh Ahluwalia, J.

Citation: AIR 2019 (NOC) 779 MP

Print Page

Whether the court can restore suit dismissed in default in the exercise of inherent powers?

Overruling the view taken by the learned Single Judge of this Court and answering the reference by declaring that Section 151 of the Code could be invoked to seek restoration of a Suit dismissed under Sub-Rule (1) of Rule 5 of Order IX of the Code, we lodge the caveat. The caveat would be that the Plaintiff would have to show a sufficient cause. The previous conduct of the Plaintiff would also require to be considered. The inconvenience and the prejudice caused to the served defendants or the defendant who was not served as a consequence of restoration of the Suit would also have to be kept in mind.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 896 of 2007, 7552 of 2009 and Civil Application Stamp No. 901 of 2019

Decided On: 16.10.2019

Hariba Tatyaba More  Vs.  Dada Ekhatnath More and Ors.

Hon'ble Judges/Coram:

Pradeep Nandrajog, C.J., M.S. Karnik and Bharati H. Dangre, JJ.

Citation: 2019(6) MHLJ 511(FB)

Print Page

How to ascertain whether a transaction is lease or mortgage?

The guidelines for deciding - whether a transaction is a lease or a mortgage contemplate that the name given to the document is not conclusive. The question has to be decided with reference to the predominant intention of the parties as gathered from the recitals and the terms of the documents and the surrounding circumstances including conduct of the parties. In the case of a mortgage, there is a transfer of interest to secure repayment of debt and in the case of a lease, there is a transfer of a right to enjoy the property [See: T.P. Act by Mulla - 9th Edn. Page 621]. In the case of Fuzhakkal Kuttappu v. C. Bhargavi and Ors.MANU/SC/0366/1976 : [1977]1SCR696 , it has been observed that the nomenclature given to a document by the writer or even by the parties is not always conclusive. In construing a document, it is necessary to find out the intention of the parties executing such document. Such intention has to be gathered from the recital, the terms in the document and from surrounding circumstances. When there is a document of a composite character disclosing features of mortgage and lease, the Court will have to find out the pre-dominant intention of the parties executing the document viewed from the essential aspect of the reality of the transaction. In that case, it was further observed that the mortgages are not always simple, English, usufructuary as defined in T.P. Act. They may be anomalous. Even so, the essential feature of a mortgage, which is not there in a lease, is that the property transferred is a security for repayment of a debt in a mortgage whereas in a lease, it is transfer of a right to enjoy the property. In the instant case, the suit property is a shop; the transferee was put in possession as he was to carry on his business; however, he had no power to lease or sell; no rate of interest was fixed; there is nothing to indicate as to how Rs. 16,200/- was to be appropriated. In the present matter there is no evidence to show that Ex.P5 was executed as security for the alleged loan. As slated above, the tenancy of the respondent continued even after 1969 and in the above circumstances the High Court was right in holding that Ex.P5 was a device to defeat the said Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4122 of 1999

Decided On: 22.07.2004

Kaveripatnam Subbaraya Setty Annaiah Setty Charities Trust

Vs. S.K. Viswanatha Setty

Print Page

Whether domestic arbitration award will be converted in foreign award due to conduct of parties?

In Roger Shashoua & Others v. Mukesh Sharma & Others (2017) 14
SCC 722, the Supreme Court has clearly held that even if a party has wrongly
approached the Court in India and accepted the applicability of Part-I of the
Act, the same would not confer jurisdiction on Indian Courts.
“64. The other ground of attack is that the Appellants
had themselves approached the courts in India and,
therefore, by their own conduct applicability of Part I
has been accepted by the Appellants and the right to
raise the issue of jurisdiction has been waived.
…6
6. In Kanwar Singh Saini (supra), this Court has laid
down that conferment of jurisdiction is a legislative
function and it can neither be conferred with the
consent of the parties nor by a superior court, and if
the court passes an order/or a decree having no
jurisdiction over the matter, it would amount to a
nullity as the matter goes to the root of the cause. For
the said purpose the two-Judge Bench has placed
reliance upon United Commercial Bank Ltd. (supra),
State of Gujarat v. Rajesh Kumar Chimanlal Barot
EX.P. 271/2014 Page 15 of 18
Kesar Singh v. Sadhu, Kondiba Dagadu Kadam v.
Savitribai Sopan Gujar and Collector of Central
Excise, Kanpur v. Flock (India) Pvt. Ltd.
67. In Zuari Cement Ltd. (supra), the Court ruled that
though the petitioner and the Corporation therein have
subjected themselves to the ESI Court, the same could
not confer jurisdiction upon the ESI Court to determine
the question of exemption from the operation of the
Act, for by consent, the parties cannot agree to vest
jurisdiction in a court to try the dispute which the court
does not possess.
68. In view of the aforesaid, there cannot be any trace
of doubt that any filing of an application by the
appellant in the courts in India can clothe such courts
with jurisdiction unless the law vests the same in
them.”
IN THE HIGH COURT OF DELHI AT NEW DELHI

Dated :1st November, 2018
 EX.P. 271/2014
DRAGER MEDICAL Vs  M/S ION BIO MED-I CARE PVT LTD 
CORAM:
JUSTICE PRATHIBA M. SINGH

Print Page

What are Basic principles for conduct of writ litigation?

On the basis of said Supreme Court judgments, following principles may be culled out:-

1. A writ remedy is an equitable one. While exercising extraordinary power a Writ Court certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court.

2. Litigant before the Writ Court must come with clean hands, clean heart, clean mind and clean objective. He should disclose all facts without suppressing anything. Litigant cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress (keep back)/ conceal other facts.

3. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or mis representation which has no place in equitable and prerogative jurisdiction.

4. If litigant does not disclose all the material facts fairly and truly or states them in a distorted manner and misleads the Court, the Court has inherent R.P.No.161/2015 (Central Ware House & Ano. v. Union of India & Ano.) power to refuse to proceed further with the examination of the case on merits. If Court does not reject the petition on that ground, the Court would be failing in its duty.

5. Such a litigant requires to be dealt with for Contempt of Court for abusing the process of the Court.

6. There is a compelling need to take a serious view in such matters to ensure purity and grace in the administration of justice.

7. The litigation in the Court of law is not a game of chess. The Court is bound to see the conduct of party who is invoking such jurisdiction.

Madhya Pradesh High Court

Gwalior bench

Central Warehouse Thr vs Union Of India Thr on 11 May, 2015

R.P.No.161/2015

Print Page

Whether any document can be interpreted on the basis of conduct of party even though there is no recital to that effect in the deed?

 Further, the argument that possession of the property was delivered immediately after the deed was executed also cannot be a ground to hold that mortgagee was in possession of the land in question as per the deed as there is no recital in the deed which delivers possession of the land to the mortgagee under the deed. In the case of Ramkishorelal & Anr. v. Kamal Narayan[3], it was held that the course of conduct of the parties is of no relevance for the construction of a document which is in itself, unambiguous. In the present case, the mortgage deed is unambiguous and it is patently clear that the mortgagor did not intend to deliver possession of the mortgaged property as he has clearly mentioned that he is paying interest but there is no delivery of possession of land as per the deed.

Supreme Court of India

Mathai Mathai vs Joseph Mary @ Marykkutty Jopseph & ... on 25 April, 2014

Bench: Gyan Sudha Misra, V. Gopala Gowda

Citation;(2015) 5 SCC 622

Print Page

Whether unambiguous document can be interpreted on the basis of course of conduct of parties?

Further, the mortgagor has agreed to pay interest at the rate of ‘half chakram per year for every hundred’ towards repayment of the loan amount and this is detailed in the mortgage deed itself and hence we can infer that there was no intention on the part of the parties to allow the mortgagee to appropriate the rents and profits accruing out of the mortgaged property. It is also stated in the mortgage deed that, on payment of the principal, this mortgage deed will be redeemed, and if the principal and interest are not repaid, then it was agreed ‘to realize it charged upon the security property and on me’, meaning the mortgagor. Thus, it is very clear that the mortgage deed only purports to be that of a simple mortgage. Merely the fact that the mortgagee herein happened to be in possession of the mortgaged property will not make it sufficient to rule that he/she was a mortgagee in possession under the deed. Further, the argument that possession of the property was delivered immediately after the deed was executed also cannot be a ground to hold that mortgagee was in possession of the land in question as per the deed as there is no recital in the deed which delivers possession of the land to the mortgagee under the deed. In the case of Ramkishorelal & Anr. v. Kamal Narayan[3], it was held that the course of conduct of the parties is of no relevance for the construction of a document which is in itself, unambiguous. In the present case, the mortgage deed is unambiguous and it is patently clear that the mortgagor did not intend to deliver possession of the mortgaged property as he has clearly mentioned that he is paying interest but there is no delivery of possession of land as per the deed.

Supreme Court of India

Mathai Mathai vs Joseph Mary @ Marykkutty Jopseph & ... on 25 April, 2014

Bench: Gyan Sudha Misra, V. Gopala Gowda

Citation;(2015) 5 SCC622

Print Page

Whether ground for divorce can be added on basis of subsequent conduct of parties ?

Family - Amendment - Whether on an amendment permitting prayer for grant of divorce in such proceedings being granted, same relates back to date of filing of proceedings - Held, relying on Suren Chandrakant Shah versus Rita Suren Shah it was held that granting such an amendment would not relate back to date of filing of Petition and ground sought to be raised would become available only from date of grant of such amendment - Ground of desertion was added by way of amendment during pendency of matrimonial proceedings - It was observed that ground that was initially not available could be permitted to be added on basis of subsequent conduct of parties and same would not relate back to date of filing of Petition but, said ground would become available from date of grant of amendment - Therefore amendment permitting raising of ground of divorce during pendency of proceedings would not relate back to date of filing of proceedings, but would become available from date it was granted - Appeal dismissed.

"Ground that is initially not available can be permitted to be added on basis of subsequent conduct of parties and same will not relate back to date of filing of Petition but, said ground will become available from date of grant of amendment."

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 308 of 1998

Decided On: 06.01.2014

 Smt. Uttara Praveen Thool

Vs.

Respondent: Praveen

Hon'ble 

Judges/Coram:B.P. Dharmadhikari and A.S. Chandurkar, JJ.

Citation: 2014(2)ABR1, 2014(3)ALLMR721, 2014(1)BomCR495, II(2014)DMC507Bom., 2014(2)MhLj321

Print Page