1998 Supreme(Bom) 206

IN THE HIGH COURT OF BOMBAY
D.K. Deshmukh, J.
Madhav Narayan Mujumdar others ..... Applicants.
Versus
Southern Knitting Works Pvt. Ltd. another .... Respondents.
Civil Revision Application No. 1002 of 1997, decided on 4-2-1998.
Advocates appeared :
V.R. Manohar, S.A. with Anil V. Anturkar, for the applicants.
A.S. Bobade, S.A. with Nitin P. Deshpande, for the respondent
M.G. Heblikar, for the respondent No. 2.

Headnote:Sections 11 and 115-Scope fur revisional powers-Interference is called for in revision when lower courts are found to have committed material irregularity in granting injunction without considering the facts that matter is barred by res-judicata. This Court can interfere with the decision of the subordinate Court in exercise of its revisiortal jurisdiction if this Court comes to the conclusion that in reaching that decision the subordinate courts have committed material error in following the procedure. In the present case, it was found that for entertaining the application filed by the respondent No.1 for injunction, the consideration of the previous litigation between the parties in relation to the same subject-matter and the orders passed therein and as also the question whether the suit would be barred of the principles of constructive res judicata or not were necessary to be gone into by the courts below. The Court by refusing to go into such question in opinion of Court has committed material error in exercise of its juri6diction and, therefore, this Court would be entitled to interfere with the orders of the subordinate Court in exercise of its jurisdiction under Section 115 of the Code of Civil Procedure.

       Sections 11 and 115, Order XXXIX, Rules 1 and 2-Discretion for interim relief-In interlocutory matters relief is discretionary, Court has to be satisfy itself if prima facie case is made out, in case in hand the plaintiff are known to have suppressed facts of previous litigation and similar relief was refused to them, they lose their right for any interim relief.- The counsel appearing for the petitioners submitted that the orders impugned in the revision, are absolutely illegal. He submitted that the very basis of the suit, as can be seen from the plaint, was that the petitioner is in possession of the suit land. In the submission of the learned Counsel this basis is totally non-existent and contrary to the stand taken by the petitioners in the previous litigation. He further submitted that filing of the present suit without disclosing in the plaint and in the application for temporary injunction the various litigations between the parties in relation to the same subject-matter and the same controversy and the orders passed by the Court in those proceedings amounts to indulgence in vexatious litigation and, therefore, the courts below have transgressed limits of their jurisdiction in entertaining such applications and granting such applications. He submitted that the plaintiff had again made claim that the consent terms are bad in law and that the consent terms were never acted upon while the same controversy was raised in Civil Suit No. 748/1979. He pointed out that it is not disclosed in . the plaint that the same controversy was raised in a Civil Suit No. 748/79. The plaintiff respondent No. 1 has claimed that the respondent No.1 is in physical possession of the suit premises since 1952.

       The counsel, therefore, submitted that the very basis on which the suit has been filed did not exist.

       The Counsel submitted that whether the respondent No.1 is legally in possession to the property or not, whether it is entitled to be continued in the possession of the property or not are the questions that are to be decided at the trial of the suit and, therefore, this Court could not interfere with the interim orders passed by the two courts below in its jurisdiction under Section 115 of the Code of Civil Procedure.

       Now if in the light of the rival submissions the record of the case is perused, it becomes clear that in the present civil suit the respondent No. 1 was claiming that the consent terms are bad in law and that the consent terms were never acted upon and, therefore, the respondent No.1 continues to be in possession of the suit property and as he was in possession of the suit property as a sub-lessee and as the sub-lessee by a subsequent amendment in the Bombay Rent Act created before 1st February, 1973, have been legalised, he is in possession of the suit properly lawfully as a lessee and, therefore, he claimed a declaration that he is tenant of the suit property and an injunction that his possession as a tenant of the suit property should not be disturbed by the petitioners.

       It is thus clear that the question whether this suit would be barred by principle of res judicata arises and that question was also raised before granting temporary injunction it is necessary for the Court to consider whether the plaintiff has made out a prima facie case in his favour or not. The question, therefore, whether the same issues which arise for consideration in the present suit, were raised in the suit previously instituted between the same parties, was necessary to be considered for deciding the question whether the plaintiff had prima facie case in its favour or not.

       In any case it was necessary for the Court to consider the observations made in the judgment of the trial Court in Civil Suit No. 748/79 before arriving at the conclusion whether a plaintiff has made out a prima facie case or not. However, the perusal of the judgment of both the courts below shows that both the courts below have not appreciated the conclusion reached and the findings recorded by the Civil Judge, Jr. Dvn. in the above referred suito after full trial. It is further to be seen here that the relief of injunction is clearly in the discretion of the Court. Any person who approaches the Court for such a discretionary relief is under a duty to place before the Court full facts. It is an admitted position before this Court that though the respondent No. 1 had approached for identical relief, the Appellate Court in Civil Appeal No.1 had approached for identical relief, the Appellate Court in Civil Appeal No. 766/94 by an order dated 4th May, 1996 has declined to grant that relief. The fact that the Appellate Court was approached for the same relief, which was declined by the Appellate Court was suppressed. It is further clear that the perusal of the order of the Second Additional Judge, Pune dated 4.5.1996 shows that while deciding the application filed by the respondent No. 1 for temporary injunction in the same terms as it claimed in the present proceedings the learned Second Additional District Judge has recorded a categorical finding that the respondent No.1 has failed to prove that it is in possession of the entire field Survey No. 707 admeasuring 12 acres and six gunthas. In it was necessary for the respondent No. 1 to disclose to the Court this fact. Non disclosure of such an important aspect of the matter which was relevant for consideration by the courts below. Courts does not entitle the respondent No. 1 to the discretionary relief of injunction from the Court.

       Section 115-Exparty injunction granted by trial Court and maintained by Appellate Court-Extra power can be exercised under Section 115, CPC to set aside exparty order-Vacation of injunction order-Proper. This Court can interfere with the decision of the subordinate Court in exercise of its revisional jurisdiction if this Court comes to the conclusion that in reaching that decision the subordinate courts have committed material error in following the procedure. In the present case, Court found that for entertaining the application filed by the respondent No. 1 for injunction the consideration of the previous litigation between the parties in relation to the same subject- matter and the orders passed therein and as also the question whether the suit would be barred of the principles of constructive res judicata or not were necessary to be gone into by the courts below. The Court by refusing to go into such question in this Courts opinion has committed material error in exercise of its jurisdiction and, therefore, this Court would be entitled to interfere with the orders of the Subordinate Court in exercise of its jurisdiction under Section 115 of the Code of Civil Procedure.