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2023 Supreme(Online)(Bom) 3005
HIGH COURT OF BOMBAY
SANDEEP V. MARNE, J
Shr. Kanhaiyalal Nathulal Joshi, of Mumbai (since Deceased) by his legal heirs and representatives – Appellant
Versus
Jagdish Harkishan Sharma – Respondent
APPEAL FROM ORDER NO.742 OF 2019 | CONTEMPT PETITION NO.275 OF 2018 | INTERIM APPLICATION NO.2149 OF 2023 | CIVIL APPLICATION NO.884 OF 2019 | CONTEMPT PETITION NO.59 OF 2020
For the Respondents:Mr. Simil Purohit a/w Mr. Arshil Shah, Mr. Vishal Raman, Ms. Parisha Shah, Mr. Smita Durve, Mr. Rasesh Shah i/by Mr. Atul Singh, Advocates in AO/742/2019 & CP/275/2018
Mr. Vaibhav Joglekar, Senior Advocate a/w Ms. Mily Ghoshal i/by Mily Ghoshal, Advocates for the Applicant in IA/2149/2023
Mr. Vishal Kanade i/by Mr. Shashank C. Thatte, Mr. Yuvraj Takale, Advocates for Petitioner in CP/275/2018
Mr. J.M. D'Silva a/w Ms. Jacqueline D'Silva, Advocates for Petitioner in CP/59/2020
Ms. Smita Tondwalkar, Advocate for MCGM.
A party cannot seek a second injunction on the same grounds previously denied unless substantial changes in circumstances are demonstrated; previous findings must guide subsequent rulings.
Headnote:(A) Civil Procedure Code, 1908 - Order 39 Rule 4 - Property Law - Temporary injunction - Appeal against Order allowing interim injunction in favor of Plaintiff restraining Defendant from dealing with property - City Civil Court's Order set aside - Court held no prior injunction existed hence Order 39 Rule 4 cannot apply - Finality of earlier order rejected similar relief not to be revisited without substantial change in circumstance - New developments in property ownership and Tenant rights warranting reconsideration approved by the Court. (Paras 14, 27, 48-54)
(B) Judicial propriety - Previous findings determining facts of the case to be respected and followed in further applications unless substantial change occurs which was not present here. (Paras 36-39)
(C) Parties' obligations under undertaking - Plaintiff's breach of undertaking to pay tenants rent weighs against continuance of injunction granted in his favor. (Paras 42-50)
Facts of the case:
The Appeal arises from the City Civil Court's decision to grant a temporary injunction to the Plaintiff, preventing the Defendant from claiming rights over the property. The Plaintiff, asserting ownership based on a previous Deed of Conveyance, and the Defendant claiming through an alleged unfair Deed of Confirmation, present conflicting ownership claims affecting several tenants. The earlier injunction was denied due to lack of proof of ownership but later sought again after new developments including an unlawful Deed of Assignment raised concerns.
Findings of Court:
The Court recognized no injunction existed following the principles of finality established by earlier rulings, and that the Plaintiff’s failure to fulfill his obligations under the previous undertaking disqualified him from requesting continued relief.
Issues: Questions involved whether the Plaintiff could seek a similar injunction after denial in prior actions, and if changes in property ownership justified anew the original plea.
Ratio Decidendi: The Court maintained that while substantial changes in circumstance allow the re-examination of injunction applications, the foundational elements of earlier decisions must be adhered to unless overturned via proper legal channels.
Result: Appeal permitted; City Civil Court's injunction order vacated.
| Table of Content |
|---|
| 1. temporary injunction ordered by city civil court. (Para 1 , 2 , 3 , 4 , 5 , 8) |
| 2. defendant's actions challenged in the suit. (Para 6 , 9 , 10) |
| 3. judicial propriety and review of prior decisions. (Para 11 , 12 , 18 , 19 , 20) |
| 4. validity of ownership claims and implications. (Para 24 , 27 , 29 , 30 , 35 , 39) |
| 5. final order set aside; trial expedited. (Para 54 , 55) |
JUDGMENT
1. The Appeal challenges the Order dated 24 August 2017 passed by the City Civil Court allowing Notice of Motion No. 3929 of 2016 filed by Plaintiff-Respondent for grant of temporary injunction. By the impugned order, the City Civil Court has restrained the Appellant- Defendant from dealing with, disposing of or creating any third party rights/interests or encumbrances in the suit property or allowing any third party to enter upon the suit property and from collecting rent from the tenants. The City Civil Court has further restrained the Appellant- Defendant from acting upon the Deed of Assignment and Transfer dated 21 October 2013. The Municipal Corporation is directed to stay the process of issuing development permission in favour of the Appellant- Defendant during the pendency of the suit. The City Civil Court has however recorded an undertaking on behalf of the Plaintiff that he would pay monthly temporary accommodation amounts and other statutory amounts to the tenants during the pendency of the suit.
2. The dispute between the parties is with regard to property bearing Plot No.169, Jawahar Nagar Road No.2 Goregaon (West), Mumbai 400 062 admeasuring 790.90 square meters bearing CTS No. 600, 600/1 to 16 together with building standing thereon known as ‘Sharda Niwas’ consisting of ground plus one floor having carpet area of 8255 square feet with 5 shops and 23 rooms / tenements in occupation of tenants/occupants (Suit Property). Mr. Shyamlal Ramswaroop Sharma was a registered lessee in respect of the suit property and after his death his legal heirs Smt. Ramrati, Subhash, Navin and Anil had agreed to sell the suit property to the Appellant- Defendant for consideration of Rs. 21,75,000/- and accordingly Articles of Agreement dated 01 March 2000 was executed. Defendant had issued 4 cheques of Rs. 2,50,000/- towards earnest money and according to the Plaintiff, one out of the 4 cheques was dishonoured. It is Plaintiff’s case that despite Smt. Ramrati writing to the Defendant to pay the amount of dishonoured cheque and also the balance amount of consideration, Defendant failed to do so. Smt. Ramrati, therefore, terminated the Articles of Agreement dated 01 March 2000 and called upon Defendant to take back the earnest money of Rs. 7,15,000/-. Later, the heirs of late Shyamlal Ramswaroop Sharma (Ramrati, Subhash, Navin and Anil), who were by then armed with Letters of Administration issued by this Court, executed registered Deed of Conveyance in respect of the suit property in favour of the Plaintiff on 28 August 2001.
3. It is Plaintiff’s case that in March 2002, he was abducted by the Defendant and by giving a threat of life, his signatures and initials were taken on blank papers. In similar manner, signatures and initials of Plaintiff’s wife were also taken on blank papers. That no consideration was paid to the Plaintiff. In the meantime, Plaintiff applied for transfer of Share Certificate in his name in the records of the society, which issued a Public Notice in the newspapers. Defendant’s Advocate raised an objection to the Public Notice stating that Deed of Conveyance- cum-Assignment and Power of Attorney, both dated 15 March 2002, were executed by Plaintiff in Defendant’s favour in respect of the suit property. It is Plaintiff’s case that despite requisition by the society, Defendant failed to produce Deed of Conveyance-cum-Assignment and Power of Attorney before the society, which therefore transferred the membership in respect of the suit property in the name of the Plaintiff. It is Plaintiff’s case that he started collecting rent from th
