) ------ Manik Lal Ghosh, son of late Nityanand Ghosh, resident of Gunomoy Colony v. 1. Ramu Sarkar son of late Subodh Sarkar 2. Khuku Sarkar, daughter of late
Case Details
Second Appeal No. 366 of 2017 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.366 of 2017 (Against the Judgment and decree dated 25.03.2017 passed by the learned District Judge-V, Jamshedpur in Title Appeal No. 39 of 2012) ------ Manik Lal Ghosh, son of late Nityanand Ghosh, resident of Gunomoy Colony, Mango, P.O. & P.S.- Mango, Town- Jamshedpur, Dist.- Singhbhum East (Jharkhand) .... .... …. Appellant Versus 1. Ramu Sarkar son of late Subodh Sarkar 2. Khuku Sarkar, daughter of late Subodh Sarkar Both resident of House no. Nil, Contractor’s Area, P.O. & P.S.- Bistupur, Town- Jamshedpur, Dist. Singhbhum East (Jharkhand) 3. Kalidas Sarkar son of late Surya Kant Sarkar 4. Durga Sarkar son of late Surya Kant Sarkar 5. Bachchoo Sarkar son of late Surya Kant Sarkar Respondent Nos.3, 4 and 5, resident of Contractor’s Area, P.O. & P.S.- Bistupur, Town- Jamshedpur, Dist. Singhbhum East (Jharkhand) .... …. Respondent ... For the Appellants ------ : Mr. A.K. Das, Advocate : Ms. Swati Shalini, Advocate ------ PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 25.03.2017 passed by the learned District Judge-V, Jamshedpur in Title Appeal No. 39 of 2012 whereby and where under, by the said
Legal Reasoning
judgment of concurrence, the learned first appellate court has dismissed the Title Appeal No.39 of 2012. 3 The case of the plaintiff in brief is that the suit property belongs to the defendants. The father of the plaintiff was inducted as a tenant by the father of the defendants in respect of one room 1 Second Appeal No. 366 of 2017 situated on the ground floor in which the father of the plaintiff started a business and gradually two more rooms were let out to the plaintiff in which the brothers of the plaintiff are carrying on business as tenants of the defendants. Though all the four defendants are owners of the suit property but the defendant no.1 on behalf of the remaining defendants used to deal with the tenants including inducting tenants, executing tenant’s agreement with the tenant right from the beginning and the defendant nos.2, 3 and 4 never visited the suit premises nor they ever indulged themselves in the state of affairs of the suit property. The plaintiff was inducted as a monthly tenant by the defendant no.1 in respect of the six rooms of the second floor of the building also. From time to time, the plaintiff went on taking on rent further portion of the house. The plaintiff with the consent of defendant no.1 constructed asbestos roof by spending his own fund and entered into any agreement with defendant no.1 on 01.05.1985 in this respect. The plaintiff and the defendant no.1 again entered into an agreement on 16.05.1985 in which in para- (d), it was mentioned that the parties have agreed that during continuance of the possession of the plaintiff as a tenant of the said building, the first party being the defendant no.1 of the suit is bound to sell and convey absolute title to the plaintiff if the defendant no.1 ever feels necessity to sell the said property. The plaintiff and the defendant no.1 further entered into an agreement for sale dated 16.05.2006 for a total consideration of Rs.90,00,000/- out of aforesaid amount they paid Rs.5,00,000/- by account payee cheque as advance. In May, 2003, the plaintiff came to 2 Second Appeal No. 366 of 2017 learn from reliable sources that the defendants are contemplating to transfer the suit building in favour of 3rd party in violation of the terms and conditions of the agreement. The plaintiff contacted the defendant no.1 but the defendant no.1 avoided but later on admitted that the defendants are negotiating with the purchaser for transfer of the entire suit property. Hence, the plaintiff filed the suit for mandatory injunction restraining the defendants from executing and registering sale deed in favour of 3rd party. 4 The defendant nos.1 and 3 on the other hand in their written statement challenged the maintainability of the suit on various technical grounds. They denied that the plaintiff has ever been inducted as monthly tenant on the basis of six rooms on the second floor by the defendant no.1 and the plaintiff as well as Manik Lal and brothers were inducted as monthly tenant in respect of the four rooms of the second floor. The defendant no.1 never allowed the plaintiff to construct more rooms on the existing verandah on the western portion of the second floor and the plaintiff is in illegal occupation of two more rooms on the second floor. The defendant no.1 denied executing any agreement on 01.05.1985 and pleaded that one agreement prior to the year 1985 was executed but the contents of which were never read over and explained to the defendant no.1. 5 On the basis of the rival pleadings of the parties, the following six issues were settled by the trial court which is as under:- (I) Is the suit maintainable in its present form? (II) Has the plaintiff got valid cause of action? (III) Is the plaintiff entitled to get a decree for permanent injunction 3 Second Appeal No. 366 of 2017 restraining the defendants from executing and registering any deed of sale or any deed of conveyance, transferring their right in the suit property in favour of the 3rd party? (IV) Is the suit barred under the principles of estoppel, waiver, acquiescence, specific relief Act, Bihar Building (L,R &E) Control Act and Limitation Act? (V) (VI) Is the suit bad for non-joinder of necessary party? Is the plaintiff entitled to any other relief or reliefs? 6 Learned trial court considered the evidence in the record i.e. the oral testimonies of the one witness examined by the plaintiff and the documents which have been marked as Ext. 1 to 1/B as well as the oral testimony of two witnesses examined by the defendants. 7 Considering the evidence in the record, the learned trial court came to the conclusion that the description of the suit property in the plaint is vague as the same do not contain how many rooms, verandah, toilets, kitchen and godown are there in the suit property
Legal Reasoning
and in which floor they are situated and the size of such rooms. The learned trial court also considered that the plaintiff failed to produce any documents showing the payment of Rs.5,00,000/-. The learned trial court also considered that the agreement in question was entered into one out of the four brothers without there being explicit or tacit consent or to knowledge of the other brothers hence, the deeds are not operative and trustworthy and went on to conclude that the plaintiff has not been able to establish that he is entitled to get the decree for permanent injunction restraining the defendants from executing or registering deed of sale or any deed of conveyance, transferring the right in the suit property in favour of any 3rd party and decided the 4 Second Appeal No. 366 of 2017 issue no. (III) against the plaintiff and in favour of the defendants. Thereafter the learned trial court took up issue nos. (I), (II), (IV), (V) and (VI) together and found that the suit of the plaintiff is not maintainable in its present form and the plaintiff has no valid cause of action and the plaintiff is not entitled to the relief claimed or any other reliefs. Hence, dismissed the suit. 8 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff filed Title Appeal No.39 of 2012 in the court of Principal District Judge, Jamshedpur which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment. 9 The learned first appellate court formulated the following point for determination:- (i) Whether the plaintiff is entitled for a decree of permanent injunction to restrain the defendants from executing and registering any deed of sale or any deed of conveyance/ transferring their right in the suit property, in favour of the 3rd party. 10 The learned first appellate court considered that vide Ext. 1/B, the plaintiff admittedly entered into an agreement for sale dated 16.05.2006 for purchasing the suit property for a total consideration of Rs.90,00,000/- and paid Rs.5,00,000/- as advance as claimed by the plaintiff. Hence, the plaintiff is entitled to the equally efficacious relief of specific performance of contract and in view of Section 41 (h) of the Specific Relief Act, 1963 which envisages that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. 5 Second Appeal No. 366 of 2017 The learned first appellate court also relied upon the settled principle of law that subsequent event after institution of the suit can always be taken into consideration while deciding the matter for transfer as has been held by the Hon’ble Supreme Court of India in the case of Pasupuleti Venkateswarlu vs The Motor and General Traders reported in AIR 1975 SC 1409, paragraph no.4 of which reads as under :- the and propriety jurisdiction “4.We feel the submissions devoid of substance. First about vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly recovery of another later took accommodation by the landlord, during the pendency of the case has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into S. 10 (3) (iii) itself. We are not disposed to disturb this approach in law or finding of this view. The 6 Second Appeal No. 366 of 2017 fact.” (Emphasis supplied) and in view of the bar under Section 41 (h) of Specific Relief Act, 1963, the learned first appellate court was not inclined to grant a relief for permanent injunction under Section 38 of the Specific Relief Act, 1963 and also held that the plaintiff has not got a prima facie case and dismissed the appeal. 11 Mr. A.K. Das, learned counsel for the appellant submits that the learned first appellate court failed to consider the evidence in the record in its right perspective. It is next submitted by Mr. Das that both the courts below ought to have at least allowed the suit to the extent of share of the respondent no.1 in the suit property. It is next submitted by Mr. Das that both the courts below ought to have arrived at the conclusion that the rest of the defendants authorized the defendant no.1 to enter into the agreement with the plaintiff. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside after formulating appropriate substantial question of law and the suit of the plaintiff be decreed. 12 Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to refer to Section 38 of the Specific Relief Act, 1963 which reads as under :- 38. Perpetual injunctions when granted.—(1) Subject to the other provisions contained in or referred to by this Chapter a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the 7 Second Appeal No. 366 of 2017 plaintiff's right to, or enjoyment of, property the court may grant a perpetual injunction in the following cases, namely:— (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings. (Emphasis supplied) which envisages that a perpetual injunction may be granted to the plaintiff by the court subject to the other provisions contained in Chapter VIII of the Specific Relief Act, 1963. 13 Section 41 (h) of the Specific Relief Act reads as under:- 41. Injunction when refused.—An injunction cannot be granted— Xxxx xxxx xxxx xxxx (h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust; Xxxx xxxx xxxx xxxx” Which envisages that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust, an injunction cannot be granted by the court. 14 It is a settled principle of law that the provisions of Section 38 of the Specific Relief Act, 1963 have to be read along with Section 41 of that Act, therefore, when the plaintiff has an efficacious relief by any other usual mode of proceeding the plaintiff cannot be granted the relief of injunction as has been observed by the Hon’ble Supreme Court in the case of Sunil Kumar and another vs. Ram Parkash and 8 Second Appeal No. 366 of 2017 others reported in AIR 1988 SC 576, wherein the Hon’ble Supreme Court of India has the occasion to consider the bar under Section 41 (h) vis-à-vis the provision of Section 38 of the Specific Relief Act, 1963 paragraph no.28 of which reads as under:- 28.The provisions of Section 38 have to be read along with Section 41. Section 41 provides that an injunction cannot be granted in the cases falling under clauses (a) to (j). Clause (h) thereunder provides that an injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceeding (except in case of breach of trust). The coparcener has adequate remedy to impeach the alienation made by the karta. He cannot, therefore, move the Court for an injunction restraining the karta from alienating the coparcenary property. It seems to me that the decision of the Punjab and Haryana High Court in Jujhar Singh v. Giani Talok Singh, 1986 Pun LJ 346 : (AIR 1987 Punj and Har 34) has correctly laid down the law. There it was observed at p. 348 (of Pun LJ) : (at p. 36 of AIR) :"If it is held that such a suit would be competent the result would be that each time the manager or the karta wants to sell property, the coparcener would file a suit which may take number of years for its disposal. The legal necessity or the purpose of the proposed sale which maybe of pressing and urgent nature would in most cases be frustrated by the time the suit is disposed of. Legally speaking unless the alienation in fact is completed there would be no cause of action for any coparcener to maintain a suit because the right is only to challenge the alienation made and there is no right recognised in law to maintain a suit to prevent the proposed sale. The principle that an injunction can be granted for preventing waste by a manager or karta obviously would not be applicable to such a suit because the proposed alienation for an alleged need or the benefit of the estate cannot be said to be an act of waste by any stretch of reasoning. We are, therefore, of the considered view that a coparcener has no right to maintain a suit for permanent injunction restraining the manager or the karta from alienating the coparcenary property and his right is only to challenge the same and to recover the property after it has come into being." (Emphasis supplied) 15 So it is crystal clear that if an equally efficacious relief can be obtained by the plaintiff by any other usual mode of proceeding, the 9 Second Appeal No. 366 of 2017 permanent injunction is to be refused by the Court. 16 It is also a settled principle of law that the relief by way of injunction is granted at the discretion of the Court. 17 The word ‘efficacious’ appearing in Section 41 (h) of the Specific Relief Act means able to produce the intended effect or result in case the relief which can be obtained by any other usual mode is equally efficacious meaning thereby equally able to produce the result which was intended by the plaintiff then injunction can be refused. 18 Now coming to the facts of the case, undisputedly, the plaintiff has entered into an agreement for sale with the defendant no.1 and it is the case of the plaintiff that the defendant no.1 entered into any agreement for sale on behalf of and being authorized by all the defendants. 19 So under such circumstances, this Court do not find any fault; in the finding arrived at by the learned first appellate court that there was an equally efficacious relief available to the plaintiff and thereby invoking the bar under Section 41 (h) of the Specific Relief Act, 1963 to deny the discretionary relief of permanent injunction to the plaintiff. 20 After going through the materials in the record, this Court finds that the finding of fact arrived at by the learned first appellate court was not done by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material. Nor the finding of fact arrived at by the learned first appellate court being the final court of facts outrageously defies the logic as to suffer from the vice of 10 Second Appeal No. 366 of 2017 irrationality incurring the blame of being perverse. 21 Under such circumstances, in the absence of any perversity in the finding of facts and as there is absolutely no substantial question of law involved in this appeal, this Court do not find any merit in this appeal. 22 Accordingly, this appeal being without any merit is dismissed but under the circumstances without any costs. 23 Let a copy of this Judgment be sent to the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 5th April, 2023 AFR/ Sonu-Gunjan/- 11