Ajay Mohan and Ors. v. H.N. Rai and Ors.
S.B. Sinha, J. 1. Leave granted.
E 2. Appellants are aggrieved by and dissatisfied with the judgment
and order dated 16.6.2007 passed in Appeal From Order No.320 of
2007 by a Division Bench of the Bombay High Court whereby and
whereunder an appeal from an order dated 12.4.2007 passed by City
Civil Court, Bombay in Notice of Motion No.944 of2007 rejecting an
F application for injunction filed by them was dismissed.
3. Appellants are said to have become owners of the suit land by
reason of a deed of gift, which is said to have been executed by Mrs.
Tara Sarup on 30.3 .1968 in favour of the first appellant. Indisputably,
Respondents claim their right, title, interest and possession on or over
the land in suit in terms of an agreement of sale purported to have been
executed by the appellants herein in their favour on or about 23 .10.1969.
4. Appellants' case in relation to the said ag1eement for sale are:
(a) It is a forged document.
i
AJAY MOHAN AND ORS. v. H.N. RAIAND ORS. 303
[SINHA, J.]
(b) In any event, the plaintiff No. I being minor on the date of A
execution of the agreement (his date ofbirth being 8.3.1952),
the same is void in law.
5. The claim of the respondents, on the other hand, is that out of
the amount of consideration mentioned in the said agreement, namely B
Rs.90,000/-, a sum ofRs.80,000/-has already been paid and they were
put in possession thereover in part performance thereof, as envisaged
~, under Section 53A of Transfer of Property Act.
6. Various proceedings appear to have initiated before the Revenue
Courts in regard to inclusion of the name of the respondents in the C
Revenue Records. It is further accepted that the first appellant herein
had executed three deeds of assignment in favour of the second appellant
herein on or about 29.6.1991.
A suit was filed by the appellants before the City Civil Court, D
Bombay which was marked as Suit No. 4962 of2006 claiming, inter
alia, for a decree for permanent injunction restraining the respondents
from creating any right in or over the suit land on the basis of revenue
entries as also for a decree for permanent injunction restraining them
from interfering with their possession and occupation thereupon. E
In the said suit, the appellants took out a notice of motion marked
as Notice of Motion No.3551 of2006 and by order dated 13.l 0.2006,
learned Judge, City Civil Court, Bombay refused to grant an order of
injunction, inter alia, holding :
(i) The contentions advanced by the defendants are of much
substance inasmuch as in view of the execution of the
agreement for sale, the onus was upon the plaintiffs to get
the said documents cancelled and treated as null and void.
Such a prayer having not been made, mere relief for injunction G
prayed for by the plaintiffs cannot give rise to existence of
prima facie case for grant of relief at the interlocutory stage.
(ii) The cardinal rule being that possession follows title, the
plaintiff proceeded under the assumption that he had assigned H
the suit property to plaintiffNo.2 who is a builder and
developer and that plaintiffNo.2 and plaintiffNo.3 are said
to be protecting the property.
(iii) The alleged threat of dispossession given by the defendants
to the plaintiffs being towards the end of May 2006, no
details thereabout had been stated in the plaint and in that
view of the matter also the plaintiffs had failed to make out
a prima facie case.
(iv) After a report was prepared by the Revenue Officer,
C allegedly the defendants were found to be in possession. As
the plaintiffs had not challenged the agreement of sale dated
23.10.1969 whereunder only the defendants had been
claiming their right, validity thereof or otherwise would be
pre-judging the case at that stage.
It was also found that the plaintiffs had not approached the court
with clean hands.
7. Appellants thereafter filed an application for amendment of
plaint. They also preferred an appeal against the said order dated
E 13 .10.2006 in the High Court ofJ udicature at Bombay. 1l1e said appeal,
however, was withdrawn stating that they would move the trial court for
amendment of the plaint. While allowing the said prayer, mi observation
was made that the trial court shall consider the question in regard to the
amendment of plaint without in any way being influenced by the
F observations made by the learned trial Judge in the impugned order.
Although, the High Court allowed the appellants to withdraw the appeal,
it directed the parties to maintain status quo for a period of two weeks.
8. A chamber SUillffions thereafter was taken by the appellants on
G or about 1.12.2006 wherein not only amendment of the plaint was
prayed for but an interim order of injiinction during the pendency of the
said application was also prayed for. We may notice the amendments
sought for by the appellants iu the said Notice of Motion:
"(a) (i) That it may be declared that the Defendants or any of
' A •
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AJAY MOHAN AND ORS. v. H.N. RAI AND ORS. 305
[SINHA, J.]
them have no right, title or interest of any nature in respect A
, . "-. of the plots ofland bearing at C.T.S. Nos.6Aand 7/IAof
village Powai, Taluka Kurla admeasuring about 37 ,673 sq.
mtrs. and C.T.S. Nos.20 and 22 of village Tirandaz, Taluka
Kurla admeasuring about 27,582 sq. mtrs. or any part/s
thereof by virtue of the alleged Agreement for Sale dated B
23rd October, I 969, being Exhibit "AIO" hereto or otherwise
~i or at all;
(a)(ii) that the Defendants, their servants and agents may be
permanently restrained by an Order and injunction of this c
Hon'ble Court from claiming any right, title or interest of any
nature in respect of the plots ofland bearing at C.T.S. Nos.A
and 7 /IA of village Powai, Taluka Kuria admeasuring about
37,673 sq. mtrs. and C.T.S. Nos.20 and 22 of village
Trrandaz, Taluka Kurla admeasuring about 27,582 sq. mtrs. D
·~
or any part/s thereof by virtue of the said alleged Agreement
for Sale dated 23rd October, I969 being Exhibit "A-IO"
hereto or otherwise or at all.
I I. Add in the prayer (a) in the Plaint after the words 'pass an
order of injunction' add ''permanently". E
I2. Add in prayer (a) after the words 'Taluka: Kurla bearing
. ......... .' delete the words "CTS No.22 (Approx.)
admeasuring I 8,083 sq. mts.' And instead add the following
"'! F
"CTS Nos.20 and 22 admeasuring 27,582 sq. mts and at
village Powai Taluka- Kurla bearing CTS Nos.6A and 7-
IAadmeasuring 37,673 sq. mts. And".
13. Add in the prayer (b) in the Plaint after the words 'pass an G
order of injunction' add "permanently".
-1 I4. (i) Add in prayer (b) after the words 'Taluka : Kur la bearing
. ......... .' delete the words "CTS No.22 (Approx.) ,, admeasuring I 8,083 sq. mts.' And instead add the following:
~
<
' i
A "CTS Nos.20 and 22 admeasuring 27,582 sq. mts and at
:..-village Powai Taluka-Kurla bearing CTS Nos.6Aand 7-
lAadmeasuring 37,673 sq. mts.And".
(ii) Add in the Fourth line of prayer (b) after the words land
B occupation of the plaintiffs' the words "Nos.2 and 3".
15. In prayer clause ( c) after the words prayer clauses add
'(a(i)'." !-'
9. Prayer for interim relief was rejected by the learned judge, City
~
c Civil Court opining that the earlier order dated 13.10.2006 became
final
10. Against the said order, the appellants again approached the
High Court and by an order dated 10.1.2007, a learned Single Judge
noticing that the proposed amendment fell short of relief of declaration
D that the suit agreement was null and void and to be set aside, came to
the conclusion : tc•
"This indicates that the Appellants were conscious 1hat such relief
will have to be pressed in respect of the suit documen~. Obviously,
E that perception is on account of the fact that the sa~d documents
were made subject matter of proceedings before the Revenue
Authorities indeed, the Respondents have stated 01~ affidavit that
the Original copy of the said document has been 10st in respect of
which police complaint is already instituted. In such a case, however,
F it is possible for the Respondents to establish the fact of existence t
of such Agreement by relying on secondary evidence on fulfilling
the required norms in that behalf. Be that as it may, prima facie,
it is seen from the record that the execution of the suit documents
has been disputed by the Appellants as back as in 1984, which
G stand has been dealt with by the Authorities. Suffice it to observe
that the Appellants would succeed only if they were to challenge
the subjectAgreement, inasmuch as the Defendants were asserting )..-
rights in respect of the suit land on the basis of the said Agreement.
The fact that the Original copy of the said Agreement is not in
H existence does not alter the situation so as to absolve the Appellants
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AJAY MOHAN AND ORS. v. H.N. RAI AND ORS. 307
[SINHA,J.)
from claiming relief that the said Agreement is null and void and to A
-~ set it aside."
On the said findings, the judgment and order of the City Civil
Court was upheld.
11. A Special Leave Application was filed before this Court against B
the said order which was marked as SLP (C) No.1218 of2007. The
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same was disposed of by an order dated 2.2.2007, stating :
"Counsel for the respondent-defendants, on instructions, states
that the defendants have no intention to create third party rights till c
the disposal of the amendment application filed by the petitioners
before the concerned City Civil Court, which is coming up before
· the said Court for disposal on 7th February, 2007. We direct the
concerned Court to dispose of the Chamber Summons on 7th
February, 2007 and till then, as stated on behalf of the counsel for D
the respondents-defendants, no third party interest shall be created.
The Chamber Summons shall be decided uninfluenced by any
observations made by the High Court in the impugned order.
Counsel for the Petitioners submits that the prayers made in the E
Chamber Summons are for amendment of the plaint as well as for
interim reliefs.
The Court will consider all the reliefs prayed for in the Chamber
Summons and pass appropriate orders.
""' The Special Leave Petition is disposed of accordingly."
12. By an order dated 28.2.2007, the application for amendment
was allowed. Keeping in view the fact that the plaintiffs' prayer for grant
of interim injunction was confined in the earlier notice of motion till the
G disposal thereof, the plaintiff did not press for the second prayer expressing
his desire to take out a separate notice of motion.
-! . A notice of motion for grant of injunction was again taken out
which was dismissed by reason of an order dated 12.3.2007 by the
learned Judge, City Civil Court. In regard to the order of this Court H
A dated 2.2.2007, the learned Judge observed :
"I have read and reread the order of the Supreme Court. The
Apex Court has said that this Court will consider all the reliefs
prayed for in the Chamber Summons and pass appropriate order.
B The word "interim" is defined in Black's Law Dictionary as "in the
meantime", ''temporary" and "occurring in intervening time". The
relevant meaning here appears to be "occurring in intervening
time". Therefore, I am of the view that the Apex Court has referred
to the period till the hearing and disposal of the Chamber Summons.
c Now the chamber summon, is disposed of. It is allowed and all
amendments are incorporated in the plaint. Therefore, there is no
stage, which is "occurring in intervening time". In this view of the
matter, I do not find any substance in this notice of motion. I,
therefore, pass the following order :
D ORDER
Notice of motion stands dismissed. No order as to cost.
The same may be registered for statistical purpose."
E By reason of the impugned judgment, the High Court has upheld
the said order.
13. Mr. R.F. Nariman, learned senior counsel appearing on behalf
of the appellant, inter alia, would submit that the appellants have never
been heard on merit of the matter. The learned counsel argued that
F keeping in view the nature and purport of the order of this Court dated
2.2.2007, the City Civil Court could not have relied upon its earlier
order. Consequently, the High Court had also committed a manifest
error in applying the principles of res judicata which have no application
in the instant case. It was contended that the purported finding of the
G learned Judge, City Civil Court to the effect that the defendants had
been found to be in actual physical possession of the suit property on
the date of institution of the suit was clearly erroneous inasmuch as no
such finding had been arrived at by the said court while passing its order
dated 13.10.2006. It was urged that the report of an officer appointed
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