2006 Supreme(SC) 840

2006(7) Supreme 289
SUPREME COURT OF INDIA
(From Karnataka High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
M. Gurudas & Ors.—Appellants
versus
Rasaranjan & Ors.—Respondents
Civil Appeal No. 4101 of 2006
(Arising out of SLP (Civil) No. 12 of 2006)
With
Civil Appeal No. 4102 of 2006
(Arising out of SLP (Civil) No. 843-844 of 2006)
Decided on 13-9-2006
Counsel for the Parties :
For the Appellants : Dr. Rajeev Dhawan, Sr. Advocate, Trideep Pais, Pratap Venugopal (for M/s K.J. John & Co. Advocate), Nikhil Nayyar] Ankit Singhal, Advocates.
For the Respondents : Mahabir Singh, Sr. Advocate, Anant Mandgi, Ajay Pal, Rakesh Dahiya, Nikhil Jain, D. Mahesh Babu, Advocates.

IMPORTANT POINT
While considering the prima facie case for grant of interim injunction, contention of plaintiff must be bona fide and question sought to be tried must be a serious question and not only a mere triable issue.

Headnote:Civil Procedure Code, 1908—Order 39 Rules 1 and 2—Suit praying partition and injunction—Reliefs were claimed on premise that mother of the plaintiffs was the adopted daughter of her father’s brother who were three brothers—Plaintiffs mother died in 1999 and her father’s brother had died in 1949—Purported adoption was in question in the suit—By interim injunction appellants were restrained in dealing with properties and High Court further directed by interim order that no alienation would take place save and except share of builders—Appeal—While arriving at a finding that prima facie case exists, Court not only must arrive at a conclusion that a case for trial had been made out but also other factors requisite for grant of injunction existed—Mother of plaintiff did not appear to have been adopted by her father’s brother who had died issueless—To prove valid adoption, it would be necessary to bring on record that there had been an actual giving and taking ceremony and performance of datta homam was imperative—Question arose also whether adoption of a daughter was permissible—Prima facie when adoption was not proved, plaintiff mother would inherit property which fell to share of her father died in 1961—Plaintiffs were not willing to furnish any security in event of dismissal of suit—In the facts and circumstances of the case, interest of justice would be subserved if appeals were disposed of with directions.

       Held : While considering an application for injunction, it is well-settled, the courts would pass an order thereupon having regard to:

       (i)Prima facie

       (ii)Balance of convenience

       (iii)Irreparable injury.

       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.(Paras 19 and 20)

       While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue.(Para 22)

       Even otherwise prima facie, Nirmala does not appear to have been adopted by Obalappa which is evident from the deed of gift executed by him. Even in the transfer deed executed by Kadarappa, Nirmala was described as a foster daughter of Obalappa and not as an adopted daughter. (Para 26)

       To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony. Performance of datta homam was imperative, subject to just exceptions. Above all, as noticed hereinbefore, the question would arise as to whether adoption of a daughter was permissible in law.(Para 27)

       Prima facie, therefore, Nirmala was not validly adopted daughter of Obalappa. If that be so, she would inherit only the property which fell to the share of Kadarappa on partition. Nirmala as a daughter of Kadarappa can claim interest in his share in the properties only. In terms of Section 8 of the Hindu Succession Act, as Kadarappa died in the year 1961, she will have 1/8th share but what was the extent of Kadarappas property would inevitably depend upon the effect of deed of partition executed by the parties in the year 1954. However, as the matter is required to be dealt with by the Trial Court finally, we do not intend to say anything further at this stage lest we may be understood to have expressed our views one way or the other.(Para 29)

       In this case, in our opinion, the courts below have not applied their mind as regards balance of convenience and irreparable injury which may be suffered by the Appellants. The question which may be posed is what would happen if the plaintiffs suit is to be dismissed or if their share is found only to be 1/64th ? Prima facie their share is not more than 1/8th in the properties in suit.(Para 33)

       The properties may be valuable but would it be proper to issue an order of injunction restraining the Appellants herein from dealing with the properties in any manner whatsoever is the core question. They have not been able to enjoy the fruits of the development agreements. The properties have not been sold for a long time. The commercial property has not been put to any use. The condition of the properties being remaining wholly unused could deteriorate. These issues are relevant. The courts below did not pose these questions unto themselves and, thus, misdirected themselves in law. (Para 34)

       Another question of some importance which was required to be posed and answered was as to whether in a situation of this nature the plaintiffs would be asked to furnish any security in the event of dismissal of the suit in respect of any of the properties would the defendants be sufficiently compensated? We have asked Mr. Mahabir Singh as to whether his clients were ready and willing to furnish any security. He responded in the negative.(Para 35)

       But, then conduct of the plaintiffs would also be relevant. The court while granting an order of injunction, therefore, would take into consideration as to whether the plaintiffs have pre-varicated their stand from stage to stage. Even this question had not been adverted to by the learned courts below.(Para 37)

       Having regard to the facts and circumstances of this case, we are of the opinion that the interest of justice would be subserved if these appeals are disposed of with the following directions:

       I.(i) The Appellants in Civil Appeal arising out of SLP (C) No. 12 of 2006 will be permitted to sell 18 flats in their possession. The plaintiffs- respondents would be shown all the 21 flats and they may choose any of the 3 flats, whereupon they may offer to purchase the said flats themselves. In the event such an offer is made, the same shall be sold at the price which is being offered by the Appellants to any other buyer. (ii) While transferring the flats, however, the Appellants must indicate to the buyer that the same shall be subject to the ultimate result of the suit. (iii) The Appellants may choose, in the event the Respondents fail and/or neglect to exercise their option, to keep 3 flats with themselves. (iv) They, however, may sell the same, if they choose to do so in presence of one of the officers of the court who may be appointed for the purpose of fixing the market price thereof. However, the price fetched by way of sale of three flats shall be invested in a fixed deposit in a nationalized bank and the interest accruing thereupon shall enure to the benefit of successful party in the suit..

       II.(i) The Appellants in Civil Appeal arising out of SLP (C) Nos. 843-44 of 2006 may let out the commercial property in their possession. However, as offered by the Appellants themselves, they shall deposit 50 of the amount after deducting expenditure therefrom and the requisite amount of tax in a fixed deposit in a nationalized bank as may be directed by the learned Trial Judge. (ii) Even for the said purpose, a receiver may be appointed by the learned Trial Judge.

       III. It would be open to the learned Trial Judge to pass any other or further order if and when any occasion arises therefor.

       IV.We are informed that the plaintiffs have filed affidavits of their witnesses. The learned Trial Judge may complete the hearing of the suit as expeditiously as possible. Save and except for cogent reasons, the hearing of the suit may not be adjourned. We would request the learned Trial Judge to dispose of the suit expeditiously and preferably within six months from the date of receipt of a copy of this order.

       The appeals are allowed to the extent mentioned hereinabove.(Paras 39 and 40)