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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 02ND DAY OF AUGUST 2012

BEFORE

THE HON’BLE MR.JUSTICE N.ANANDA

M.F.A.No.3921/2012 (CPC)

BETWEEN:Sri SampangiS/o late NanjundappaAged about 61 YearsR/at No.1, Behind HaralikatteRayasandra Road, Naganathpura VillageElectronic City PostBangalore – 560 100. … Appellant

(By Sri N.Devhadass, Senior Advocate for M/s.Jayaraj &Associates, Advocates)

AND:Smt.N.PremalathaW/o Sri K.AshokAged about 31 YearsNo.106, Near Bangalore English SchoolNaganathpura VillageElectronic City Post, Begur HobliBangalore – 560 100. … Respondent(By Sri Ashok Harnahalli, Senior Advocate for Sri Ramesh Adithya,Advocate for Caveator-respondent)

This appeal is filed under order 43 Rule 1(r) C.P.C., againstthe order dated 10.04.2012, passed on I.A.No.II inO.S.No.1433/2011, on the file of the Principal Senior Civil Judge,Bangalore Rural District, Bangalore, dismissing I.A.No.II and etc.

This appeal having been heard and reserved for judgmenton 25.07.2012, coming on for pronouncement this day, the courtdelivered the following:-

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J U D G M E N T

The matter is listed for admission. The lower court

records are received. With the consent of learned counsel for

parties, the matter is taken up for final disposal.

The appellant is the plaintiff before trial court

(hereinafter referred to as ‘plaintiff’) and respondent is the

defendant (hereinafter referred to as ‘defendant’). The trial

court has dismissed the application filed by plaintiff for grant

of temporary injunction to restrain defendant from putting

up any further construction on suit schedule property.

2. I have heard Sri N.Devhadass, learned senior counsel

for plaintiff and Sri Ashok Haranahalli, learned senior

counsel for defendant.

3. In brief, averments of plaint and application (IA No.II)

are as follows:-

The plaintiff is the owner of suit schedule property viz

site No.1, measuring East to West 50 feet and North to South

80 feet, formed in Survey No.16, Naganathapura Village,

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Begur Hobli, Bangalore South Taluk. On 30.08.2011 one

Mr.Krishna @ Putani and his neighbour Mr.Chandra along

with defendant and husband of defendant contacted plaintiff

and requested him to attest a document as a witness. The

plaintiff is an illiterate and ignorant person and he does not

have worldly knowledge. On 02.09.2011, plaintiff was near

Ashwathakatte of Naganathapura Village. The defendant

along with aforestated persons took plaintiff in a car to

Panchami Bar at Sarjapur. In the bar, plaintiff was made to

consume alcohol. The plaintiff was in intoxicated and

unbalanced condition. When plaintiff was under such

condition, defendant and her henchmen induced plaintiff to

attest a document, purported to be a General Power of

Attorney. The plaintiff was not in a position to understand

anything. Under the guise of some attestation, defendant got

the document executed in respect of suit schedule property.

The plaintiff was taken in the same condition to the Office of

Sub-Registrar and aforstated document came to be executed

in favour of defendant. Thereafter, defendant and her

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henchmen dropped plaintiff near his residence. This fact

came to knowledge of plaintiff on 23.11.2011. Immediately,

plaintiff lodged a complaint with the jurisdictional police.

Unfortunately, police failed to take any action. As such,

plaintiff has filed a private complaint under section 200

Cr.P.C., in PCR No.26057/2011, on the file of IX ACMM at

Bangalore.

The defendant is totally a stranger. There were no

negotiations. Nothing had transpired between plaintiff and

defendant, prior to alleged sale deed. It is not the only sale

deed executed on 02.09.2011, but also two other sale deeds

came to be executed, wherein it is stated that entire sale

consideration was paid in cash on 02.09.2011. A suit for

partition in respect of suit schedule property amongst others

is pending before the competent court. Since the sale deed

executed in favour of defendant is a fraudulent document, it

is not open for defendant to claim any right, title or interest

over suit schedule property.

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4. The defendant asserting her rights under aforestated

fraudulent document has taken up construction and hastily

proceeding with construction. Therefore, plaintiff has sought

for following reliefs:-

a. To declare that the Sale Deed dtd.02.09.2011

registered as document No.BGR-1-04665-2010-11

of Book I in CD No.BGRD105 registered before the

Sub-Registrar, Begur, Bangalore South alleged to

have been executed by the plaintiff in favour of the

defendant in respect of the schedule property as

void ab initio and not binding on the plaintiff;

consequently, direct the defendant to deliver

possession of the suit schedule property in favour

of the plaintiff herein;

b. for mandatory injunction the defendant or her

agents, servants, administrators, henchmen or any

other persons claiming under or through her to

remove the illegal and unauthorized construction

put upon the schedule property.

c. For permanent injunction restraining the

defendant or her agents, servants, administrators,

henchmen or any other persons claiming under or

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through her from putting up further constructions

in the suit schedule property;

d. For permanent injunction restraining the

defendant or her agents, servants, administrators,

henchmen or any other persons claiming under or

through her from alienating the schedule property

in favour of the third party/s;

e. Grant cost of the suit; and

f. Grant such other relief/s as this Hon’ble court

deems fit under the facts and circumstances of the

case in the interest of justice and equity.”

5. In brief, averments of written statement and objections

filed by defendant are as follows:-

The defendant has denied that plaintiff was taken to a

bar and document was executed when plaintiff was under

the state of intoxication and in the same condition, plaintiff

was taken to the Office of Sub-Registrar and said document

was registered in the Office of Sub-Registrar. The defendant

has contended that plaintiff executed registered sale deed on

02.09.2011 in favour of defendant for valuable consideration

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of Rs.14,00,000/- and suit schedule property was delivered

to defendant and defendant has taken up construction of a

residential house and construction is halfway through. The

defendant has asserted that plaintiff had given an offer to

defendant, disclosing his intention to sell suit schedule

property to clear debts and the offer was accepted by

defendant. The negotiations were held and registered sale

deed was executed on 02.09.2011. The plaintiff executed

registered sale deed on 02.09.2011, without there being

fraud, coercion and undue influence. The defendant has

invested Rs.30 to 40 lakhs for putting up construction on

suit schedule property. The plaintiff has sought for

temporary injunction to restrain completion of construction

to coerce defendant and bring her to terms. The plaintiff has

not made out a prima facie case for grant of temporary

injunction. The balance of convenience lies in favour of

defendant. The plaintiff has sought for a mandatory

injunction and possession of suit schedule property. If

plaintiff were to succeed, he would be entitled to mandatory

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injunction and possession of suit schedule property. On the

other hand, if defendant is restrained from completing

construction, she would suffer irreparable loss and injury.

Thus, prayed for dismissal of application.

6. The learned trial Judge on consideration of pleadings

and documents filed by parties has held that averments of

plaint and application that defendant (a woman) took

plaintiff to Panchami Bar at 1.30 p.m., on 02.09.2011 and

plaintiff was induced to consume alcohol and execute the

document and in the same condition he was brought to the

Office of Sub-Registrar do not prima facie inspire confidence.

The learned trial Judge has noticed that on the same day,

plaintiff had executed three sale deeds; one in favour of

plaintiff and the other two sale deeds in favour of one

Smt.Chitra.E., and Smt.N.Shantha. The learned trial Judge

considering the contents of registered documents has held

that sale deed executed in favour of defendant and other two

sale deeds in favour of Smt.Chitra.E., and Smt.N.Shantha

were registered between 02.59 p.m and 02.55 p.m.,

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(afternoon) on 02.09.2011. As such, averments of plaint that

plaintiff was taken to Panchami bar at 1.30 p.m., cannot be

accepted. The learned trial Judge has held that defendant

has been in possession of suit schedule property and

defendant has taken up construction of a residential house

and construction is halfway through, plaintiff has sought for

a mandatory injunction and possession. Therefore,

defendant cannot be restrained from completing

construction. The learned trial Judge has held that if

plaintiff succeeds on merits of case, he would be entitled to

decree of mandatory injunction for demolition of house

constructed by defendant and delivery of possession of

vacant site, on the other hand, if defendant is restrained

from completing construction of house, defendant would be

put to irreparable loss and injury and balance of

convenience lies in favour of defendant.

7. Sri N.Devhadass, learned senior counsel for plaintiff

has made following submissions:-

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I. The fraud pleaded by plaintiff is apparent on the face

of registered sale deed dated 02.09.2011, as the Sub-

Registrar had not made an endorsement regarding

receipt of sale consideration by plaintiff.

II. The plaintiff has made out a case for trial and there

are serious questions to be tried.

III. The mere fact that construction is halfway through is

not a ground to refuse an order of temporary

injunction.

8. The learned senior counsel for plaintiff has relied on

following decisions of the Supreme Court:-

I. (2006) 8 SCC 367 (in the case of M.Gurudas and

others Vs. Rasaranjan and others);

II. AIR 1983 SC 742 (in the case of Gangubai Bablya

Chaudhary and others Vs. Sitaram Bhalchandra

Sukhtankar and others);

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III. (1995) 5 SCC 545 (in the case of Gujarat Botting Co.

Ltd. & Others Vs. Coca Cola Co. & others);

IV. (2006) 5 SCC 282 (in the case of Seema Arshad Zaheer

and others Vs. Municipal Corpn. of Greater Mumbai

and others)

9. Sri Ashok Haranahalli, learned senior counsel for

defendant has made following submissions:-

I. The averments of plaint that registered sale deed

executed in favour of defendant is fraudulent

document and it has come into existence in the

circumstances narrated in plaint cannot be accepted.

The document was presented and registered in the

Office of Sub-Registrar at Begur between 12.50 p.m

and 1 p.m., (afternoon) on 02.09.2011. Therefore,

averments of plaint and application that plaintiff was

taken to a bar near Sarjapur Road at 1.30 p.m., on the

same day are apparently false.

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II. The plaintiff has admitted that defendant is in

possession of suit schedule property and defendant is

constructing a residential house. The plaintiff has

sought for mandatory injunction for demolition of

construction and also for possession of suit schedule

property. If plaintiff were to succeed in suit, defendant

would demolish the constructed residential house and

deliver vacant possession of suit schedule property to

plaintiff, without claiming any equity. Therefore,

balance of convenience is not in favour of plaintiff. The

plaintiff does not suffer any irreparable loss or injury if

an order of temporary injunction is not granted.

III. The power to grant or refuse temporary injunction

lies with the sound discretion of trial court. The

appellate court can interfere with the order of trial

court if the order is capricious or perverse or illegal.

10. The learned senior counsel for defendant has relied on

following decisions of the Supreme Court:-

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I. 2010 (5) KCCR 4237 (in the case of Mandali Ranganna

& Others Vs. M.Ramachandra & Others);

II. (1995) 5 SCC 545 (in the case of Gujarat Bottling Co.

Ltd. & Others Vs. Coca Cola & Others);

11. In a decision reported in (1995) 5 SCC 545 (in the case

of Gujarat Bottling Co. Ltd. & Others Vs. Coca Cola & Others),

the Supreme Court has held:-

“43. The grant of an interlocutory injunction

during the pendency of legal proceedings is a

matter requiring the exercise of discretion of the

court. While exercising the discretion the court

applies the following tests - (i) whether the

plaintiff has a prima facie case; (ii) whether the

balance of convenience is in favour of the

plaintiff; and (iii) whether the plaintiff would

suffer an irreparable injury if his prayer for

interlocutory injunction is disallowed. The

decision whether or not to grant an interlocutory

injunction has to be taken at a time when the

existence of the legal right assailed by the

plaintiff and its alleged violation are both

contested and uncertain and remain uncertain

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till they are established at the trial on evidence.

Relief by way of interlocutory injunction is

granted to mitigate the risk of injustice to the

plaintiff during the period before that

uncertainty could be resolved. The object of the

interlocutory injunction is to protect the plaintiff

against injury by violation of his right for which

he could not be adequately compensated in

damages recoverable in the action if the

uncertainty were resolved in his favour at the

trial. The need for such protection has, however,

to be weighed against the corresponding need of

the defendant to be protected against injury

resulting from his having been prevented from

exercising his own legal rights for which he

could not be adequately compensated. The court

must weigh one need against another and

determine where the 'balance of convenience'

lies. [See:Wander Ltd. V.Antox India (P) Ltd.15,

(SCC at pp.731-32]. In order to protect the

defendant while granting an interlocutory

injunction in his favour the Court can require

the plaintiff to furnish an undertaking so that

the defendant can be adequately compensated if

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the uncertainty were resolved in his favour at

the trial.”

12. In a decision reported in 1977(2) Kar.L.J.266 (in the

case of Purna Investments Ltd. Vs. Southern Steelmet & Alloys

Ltd. Ors), this court has held:-

“11. … In the present case, we are at the stage of

interlocutory orders and trial is yet to

commence. Findings on matters such as mala

fides, fraud and bad faith cannot, generally, be

arrived at on mere affidavits. The matter has to

go for trial and I am, therefore, reluctant to take

into account the merits of the case at this stage

to come to a conclusion which detracts from

what an assessment of the balance of

convenience in the case suggests.”

(underlining supplied)

In the case on hand, we are at a stage of deciding

interlocutory applications. The plaintiff has filed an affidavit,

asserting that registered sale deed dated 02.09.2011 alleged

to have been executed by plaintiff in favour of defendant is a

fraudulent document. The plaintiff has alleged that he was

taken to a bar and he consumed alcohol and became

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intoxicated. When the plaintiff was under such condition,

defendant and her henchmen took plaintiff to the Office of

Sub-Registrar at Begur and got document executed by

plaintiff and it was registered in the Office of Sub-Registrar

in favour of defendant in the same condition. The defendant

has filed an affidavit, denying all these facts. Therefore, at

this stage, plea of fraud pleaded by plaintiff cannot be

decided on the strength of affidavit and counter affidavit. The

reliefs sought for by plaintiff are stated supra. The plaintiff

has sought for mandatory injunction for demolition of

construction put up by defendant and also sought for

possession of suit schedule property. The plaintiff has

admitted that defendant is in possession of suit schedule

property. The defendant has submitted that construction is

halfway through.

13. In a decision reported in (2006) 8 SCC 367 (in the case

of M.Gurudas & Others Vs. Rasaranjan & Others), the

Supreme Court has held that relevant factors to be

considered for grant of temporary injunction, are existence of

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prima facie case, balance of convenience and irreparable loss

and injury.

In the aforestated judgment, the Supreme Court has

held that finding on “prima facie case” would be a finding of

fact. However, while arriving at such a finding of fact, the

court not only must arrive at a conclusion that a case for

trial has been made out but also other factors requisite for

grant of injunction exist.

14. The law is fairly well settled that an order of temporary

injunction granted in favour of a party is a step in aid to the

main relief. In the case on hand, if plaintiff were to succeed

in the suit, he will be entitled to declaration that registered

sale deed dated 02.09.2011 is null and void; mandatory

injunction for demolition of construction put up by

defendant and possession of suit schedule property would be

delivered to plaintiff. It is not a situation where refusal of

temporary injunction would frustrate the suit. It is not a

situation where refusal of temporary injunction would lead

to multiplicity of proceedings.

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15. In a decision reported in (2006) 8 SCC 367 (in the case

of M.Gurudas and others Vs. Rasaranjan and others) the

Supreme Court has held:-

“19. A finding on 'prima facie case' would be a

finding of fact. However, while arriving at such

finding of fact, the court not only must arrive at

a conclusion that a case for trial has been made

out but also other factors requisite for grant of

injunction exist.”

As already stated, finding of facts such as malafides,

fraud and bad faith cannot, generally, be arrived at on mere

affidavit and counter affidavit. The learned trial Judge on

careful scrutiny of averments of plaint and contents of

registered sale deed dated 02.09.2011 has held that

averments of plaint and application do not make out a prima

facie case and they do not prima facie inspire confidence.

The law is fairly well settled when fraud is alleged, it is

for the party asserting fraud to prove the same just like any

other fact.

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16. The learned senior counsel for plaintiff taking me

through the contents of registered sale deed dated

02.09.2011 would submit that the Sub-Registrar had not

ensured payment of sale consideration to plaintiff.

17. From the contents of registered sale deed, we find that

sale consideration was not paid in the presence of Sub-

Registrar, but it was paid in the presence of witnesses.

Therefore, the contention of learned senior counsel for

plaintiff cannot be accepted.

18. In a decision reported in AIR 1983 SC 742 (in the case

of Gangubai Bablya Chaudhary and others Vs. Sitaram

Bhalchandra Sukhtankar and others), the Supreme Court

has held:-

“6. When an interim injunction is sought,

the Court may have to examine whether the

party seeking the assistance of the Court, was at

any time in lawful possession of the property

and if it is so established one would prima facie

ask the other side contesting the suit to show

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how the plaintiffs were dispossessed? We pin-

pointed this question and heard the submission.

We refrain from discussing the evidence and

recording our conclusions because evidence is

still to be led and the contentions and disputes

have to be examined in depth and any

expression of opinion by this Court may

prejudice one or the other party in having a fair

trial and uninhibited decision. Having given the

matter our anxious consideration, we are

satisfied that this is not a case in which interim

injunction could be refused. Similarly we are of

the opinion that if respondents are allowed to

put up construction by the use of the F.S.I. for

the whole of the land including the land involved

in dispute, the situation may become irreversible

by the time the dispute is decided and would

preclude fair and just decision of the matter. If

on the contrary injunction is granted as prayed

for the respondents are not likely to be

inconvenienced because they are in possession

of about 9,000 sq. meters of land on which they

can put up construction.”

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In the case on hand, defendant has relied on registered

sale deed dated 02.09.2011 to contend that she has been in

lawful possession of suit schedule property. The plaintiff has

contended that it is a fraudulent document. The plaintiff has

to establish that registered sale deed is a fraudulent

document and it has come into existence under the

circumstances narrated in plaint on merits of the case.

19. At this juncture, it is relevant to notice that plaintiff

had executed registered sale deed on 02.09.2011 not only in

favour of defendant, but he had also executed two registered

sale deeds in favour of two other persons namely

Smt.Chitra.E., and Smt.N.Shantha. The copies of these

documents would indicate that three documents were

executed by plaintiff and documents were registered during

the period when plaintiff was alleged to have been taken to a

bar. It is not the case of plaintiff that defendant and

aforestated persons had joined together and got executed

three registered sale deeds on 02.09.2011 in their favour.

The time of presentation and registration of sale deeds in

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favour of defendant, Smt.Chitra.E., and Smt.N.Shantha

would belie the contention of plaintiff that he had been taken

to a bar at about 1.30 p.m. on 02.09.2011.

20. In a decision reported in (1995) 5 SCC 545 (in the case

of Gujarat Bottling Ltd. & Others Vs. Coca Cola & Others),

the Supreme Court has held that grant of interlocutory

injunction being an equitable relief, conduct of party seeking

injunction or party seeking Court’s interference with the

order of injunction must be fair.

21. In a decision reported in (2006) 5 SCC 282 (in the case

of Seema Arshad Zaheer and others vs. Municipal Corpn. of

Greater Mumbai and others), the Supreme Court has held:-

“30. The discretion of the court is exercised to

grant a temporary injunction only when the

following requirements are made out by the

plaintiff : (i) existence of a prima facie case as

pleaded, necessitating protection of the plaintiff's

rights by issue of a temporary injunction; (ii)

when the need for protection of the plaintiff's

rights is compared with or weighed against the

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need for protection of the defendant's rights or

likely infringement of the defendant's rights, the

balance of convenience tilting in favour of

plaintiff; and (iii) clear possibility of irreparable

injury being caused to plaintiff if the temporary

injunction is not granted. In addition, temporary

injunction being an equitable relief, the

discretion to grant such relief will be exercised

only when the plaintiff's conduct is free from

blame and he approaches the court with clean

hands.”

22. Thus, on reconsideration of the matter, I find that

plaintiff has failed to establish primfa facie case. The balance

of convenience does not lie in favour of plaintiff and plaintiff

has also failed to prove that he would be put to irreparable

loss and injury, if an order of temporary injunction is not

granted. In the circumstances, the impugned order cannot

be called as perverse, capricious or illegal. Therefore,

impugned order does not call for interference.

23. The learned senior counsel for plaintiff has contended

that defendant is putting up construction, without obtaining

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licence and approved plan. Therefore, defendant cannot be

permitted to proceed with construction.

24. It is seen from the written statement, in paragraph 27,

defendant has stated that subsequent to purchase of suit

schedule property by her, she has paid up-to-date property

tax to Bruhath Bangalore Mahanagara Palike (for short,

‘BBMP’). The katha extract has been issued by BBMP.

25. It is needless to state that dismissal of application filed

by plaintiff for grant of temporary injunction cannot be

construed as permission granted to defendant to put up

construction, without licence or approved plan. If the

defendant has been constructing house without licence and

approved plan, it is for the competent authorities to take

action in accordance with law, notwithstanding the order of

dismissal of application for grant of temporary injunction in

favour of plaintiff.

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26. In the result, I pass the following:-

ORDER

The appeal is dismissed.

Sd/- JUDGE

SNN