R. Dilip Kumar Vs. S. Ramu - Court Judgment

Mirdhe, J.

1. This Miscellaneous First Appeal is preferred by the appellant who is the plaintiff in the Court below under Order 43 Rule 1(r) C.P.C. against the order dated 12-7-1991 passed by the XVI Additional City Civil Judge, Bangalore City, Bangalore, in O.S. No. 348 of 1990 dismissing I.A.No. 1 filed by the appellant under Order 39 Rules 1 and 2 C.P.C. for grant of temporary injunction.

2. I have heard the learned Counsel for the appellant and the learned Counsel for the respondent fully and perused the records of the case.

3. The plaintiff has filed the suit against the respondent and another defendant for partition and separate possession of his share in the suit schedule properties. The case of the plaintiff is that he is the eldest son of defendant-1 and the respondent is the second son of defendant-1 and the plaintiff's brother. As the respondent has refused to effect partition in the joint family properties since they are standing in his name, the plaintiff has filed the suit. The appellant also filed I.A.No. 1 under Order 39 Rules 1 and 2 C.P.C. read with Section 151 C.P.C. praying for issue of an order of temporary injunction against the respondent restraining him from constructing any structures in the suit schedule properties or from alienating, mortgaging or causing any injury to the water pipe line leading to the plaintiff's house and to the electrical supply of the plaintiff's house, until the disposal of the suit. The said I.A. was resisted by the respondent on various grounds. After hearing both sides and perusing the material on record, the learned Additional City Civil Judge, Bangalore, dismissed the I.A. filed by the appellant for temporary injunction. Hence, this Appeal,

4. In RANGAMMA v. KRISHNAPPA, 1968 (1) Mys. L.J. 552 this Court has laid down as to what should be the scope of the appeal preferred by a party against the granting or refusal of temporary injunction by the lower Court. In that Ruling, it is held as follows:

'Granting or refusal of temporary injunction rests on the sound exercise of discretion by the Court. Such exercise of discretion cannot be lightly interfered with by the appellate Court, unless it is shown that such exercise of discretion is unreasonable or capricious. That a different view was possible on the facts and circumstances of the case by itself will not be sufficient to interfere with the order.'

Now it will have to be seen in this Appeal whether the lower Court has properly exercised the discretion vested in it in dismissing the application of the appellant for grant of temporary injunction. The relationship between the parties is not disputed in this case. The appellant is the eldest son of the respondent-1 who has been deleted in this Appeal and the respondent No.2 is the brother of the appellant and second son of defendant-1. It is also an admitted fact in this case that the suit schedule properties are purchased in the year 1979 and they stand in the name of the respondent. The appellant contended that though the properties are standing in the name of the respondent, they are in fact purchased for and on behalf of the joint family property. In substance, the case of the appellant is that the properties are standing benami in the name of the respondent though, in fact, they are the joint family properties. The lower Court has relied on Section 4 of the Benami Transactions (Prohibition) Act, 1988, (which will hereinafter be referred to as 'the Act'). Section 4 of the Act reads as follows:

'4. Prohibition of the right to recover property held benami.-

(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the properly is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

(3) Nothing in this Section shall apply,

(a) Where the person in whose name the property is held is coparcener in a Hindu undivided family and the property in held for the benefit of the coparceners is the family; or

(b) Where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.'

The learned Counsel for the appellant submitted that the lower Court has not properly interpreted and applied this Section to the facts of the case. According to him, the case of the plaintiff will come under Exception (a) to Sub-section (3) of Section 4 of the Act. He submitted that the property standing in the name of the respondent who is a coparcener of a Hindu undivided family is held for the benefit of the coparceners in the family and, therefore, Section 4 will not be attracted to this case. It is an admitted fact that the properties are standing in the name of the respondent since 1979. Though there is a presumption in Hindu law that a particular family is a joint family till it is proved otherwise, there is no presumption that any particular property held by a member of the joint family is the property of the undivided Hindu Joint family. From the admitted facts of the case, it is clear that the property is standing in the name of the respondent since the time of its purchase in 1979. It is for the plaintiff to show that Section 4 of the Act will not be applicable to the facts of this case and he will have to prove that the property was purchased for the benefit of the coparceners in the family. But, no, such material has been produced at the stage of the hearing of I.A.No. 1. Therefore, the Court below was right in holding that prima facia Section 4 of the Act will come to the aid of the respondent and the contention of the appellant that the property is held benami by the respondent for the benefit of coparceners in the family cannot be entertained at this stage.

5. The learned Counsel for the appellant further argued that the respondent himself had filed a previous suit at O.S.No. 134 of 1988 and in his plaint he has admitted that these properties are the joint family properties.

6. In BASANT SINGH v. JANAKI SINGH : [1967]1SCR1 it has been held as follows:

'Evidence Act (1872), Sections 21, 17 and 18 - Admission by party in plaint signed and verified by him - Admission may be used as evidence against him in other suits - Such admission cannot, however, be regarded as conclusive and party can show it as not true: AIR 1960 Bombay 153 (explaining AIR 1941 Bombay 144), Approved: A.F.O.D, Nos. 30 and 40 of 1953. D/-31-7-1959 (pat.) Reversed.'

This point has been dealt with by the Supreme Court in para 5 its Judgment as follows:-

'(5) The High Court also observed that an admission in a pleading can be used only for the purpose of the suit in which the pleading was filed. The observations of Beaumont C.J. in Ramabai Shrinivas v. Bombay Government A.I.R. 1941 Bombay 144, lend some countenance to this view. But these observations were commented upon and explained by the High Court in D.S. Mohite v. S.I. Mohite, A.f.R. 1960 Bombay 153. An admission by a party in a plaint signed and verified by him in a prior suit is an admission within the meaning of Section 17 of the Indian Evidence Act, 1872, and may be proved against him in other litigations. The High Court also relied on the English Law of Evidence. In Phipson on Evidence, 10th Edn., Article 741, the English law is thus summarised:

'Pleadings, although admissible in other actions, to show the institution of the suit and the nature of the case put forward, are regarded merely as the suggestion of Counsel, and are not receivable against a party as admissions, unless sworn, signed or otherwise adopted, by the party himself. Thus, even under the English law, a statement in a pleading sworn, signed or otherwise adopted by a party is admissible against him in other actions. In Marianski v. Cairns, (1852) 1 Macs 212, the House of Lords decided that an admission in a pleading signed by a party was evidence against him in another suit not only with regard to a different subject matter but also against a different opponent. Moreover, we are not concerned with the technicalities of the English law. Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suit. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true.'

7. The learned Counsel for the appellant relied on NAGINDAS RAMDAS v. DALPATRAM ICCHARAM ALIAS BRIJRAM AND ORS. : [1974]2SCR544 . In that Ruling also, it is held as follows:

'Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.'

This Ruling is consistent with the earlier Ruling of the Supreme Court. It cannot be said to be laying down any Rule contrary to the earlier Ruling of the Supreme Court quoted above. According to this Ruling also, evidentiary admissions which include the admissions made by a party in the pleadings in a previous suit are receivable at the trial as evidence, but by themselves they are not conclusive. They can be shown to be wrong. Therefore, merely on the basis of the admissions alleged to have been made by the respondent in his plaint in O.S.No. 134 of 1988, it cannot be said that the plaintiff's case stands proved because the said admission by itself will not be conclusive and the respondent will be at liberty to show under what circumstances he has made it and even to show that it is wrong.

8. The learned Counsel for the appellant relied on PURNA INVESTMENTS LTD. v. SOUTHERN STEELMET AND ALLOYS LTD., 1977 (2) KLJ 266 wherein this Court has held as follows:

'Held, in the case of interlocutory injunctions, the Court will first consider whether the applicant has established a prima facie case, in the sense that it is not a frivolous or vexatious claim bat involves a serious matter to be investigated.

Assuming that the applicants have made out a prima facie case, the question that arises then is, as to the balance of convenience between the parties and the imminent and uncompensatable disadvantage or some irreversible detriment that may result to the applicants by the denial of the relief. At this stage the Court cannot proceed on the assumption which would amount to pre-judging the matter in issue. If the balance is fairly even then it may not be improper to take into account, in tipping the scales, the relative strength of each party's case.

The burden of establishing that the inconvenience which the applicants will suffer by refusal of the injunction is greater than that the respondents will suffer, if it is granted, lies on the applicant.'

The learned Counsel for the appellant also relied on LIFE INSURANCE CORPORATION v. BANGALORE L.I.C. EMPLOYEES HOUSING CO-OP, SOCIETY LTD. : ILR1988KAR2817 wherein this Court has held as follows:

'The preventive remedy of injunction is granted as an instant antidote to stop or prevent the invasion of the plaintiff's rights in regard to which a complaint is made. The Court having regard to the expediency involved should not embark upon a nit-picking operation at that stage by holding a Mini-trial to lay thread-bare the case of the plaintiff to find out if a prima facie case is made out or not. It would be sufficient if the Court is assured that questions raised by the plaintiff are not vexatious or too casual, but are such as to merit serious consideration at a subsequent stage. However, in a case where predicting of a possible result for the plaintiff (as things now stand) being some-what hazardous, it would be very necessary to tread with great caution the ground for grant of temporary injunction. But at the same time in exercising its discretion the Court must be totally circumvent and exercise extreme caution being unmindful of the fact either grant or refusal of the remedy will cause some harm or inconvenience to one-side or the other.'

9. In LAKSHMINARASIMHIAH AND ORS. v. YALAKKI GOWDA 1965(1) Mys.L.J. 370 what are the considerations on the basis of which the Court is required to decide granting or refusal of temporary injunction has been dealt with. His Lordship has also dealt with as to what should be the scope of the appeal against such an order. His Lordship has held that the appellate Judge has not approached the case as if he is a trial Judge. His Lordship has further held as follows:

'The granting or refusing of injunctions is a matter resting in the sound discretion with the trial Court and consequently no injunction will be granted whenever it will operate oppresively, or inequitably or contrary to the real justice of the case. Besides, there are certain equitable principles also which g6vern the Courts in granting or withholding of the relief of injunction. One of the main considerations is the fairness or good conduct of the party invoking the aid of the Court. The Court denies the relief to suitor who is himself guilty of misconduct in respect of the matter in controversy. The wrong conduct of the plaintiff in the particular matter or transaction with respect to which he seeks injunctive relief precludes him from obtaining such relief. Injunction will not be granted in aid of a possession secured by strength or trick.'

His Lordship has quoted a para from Story's Equity Jurisprudence, 14th Edn. Vol. II, p. 639-640 which deals as to what should be the guiding principles in exercising the discretionary powers of granting of refusal of the temporary injunction. The said para is very instructive and illuminating and it reads as follows:

'There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, than the issuing an injunction. It is the strong arm of equity, that never ought to be extended unless to cases of great injury, where Courts of Law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction. But that will not be awarded in doubtful cases, or new ones not coming within well-established principles; for if it issues erroneously, an irreparable injury is inflicted for which there can be no redress, it being the act of a Court, not of the party who prays for it. It will be refused till the Courts are satisfied that the case before them is of a right about to be destroyed, irreparably injured, or great and lasting injury about to be done by an illegal act. In such a case the Court owes it to its suitors and its own principles to administer the only remedy which the law allows to prevent the commission of such act. The discretionary power must be exercised with extreme caution and applied only in very clear cases; otherwise, instead of becoming an instrument to promote the public as well as private welfare, it may become a means of an extensive and perhaps an irreparable injustice.'

His Lordship has also quoted from Vol. 28 American Jurisprudence p. 217 as to what are the cautions that are to be exercised by the Court in granting an injunction as follows:

'Caution in Granting: Necessity of Clear Case:

The extraordinary character of the injunctive remedy and the danger that its use in improper cases may result in serious loss or inconvenience to an innocent party require that the power to issue it should not be lightly indulged in, but should be exercised sparingly and cautiously, only after thoughtful deliberation, and with a full conviction on the, part of the Court of its urgent necessity. In other words, the relief should be awarded only to clear cases, reasonably free from doubt, and, when necessary, to prevent great and irreparable injury. The Court should therefore be guided by the fact that the burden of proof rests upon the complainant to establish the material allegations entitling him to relief.'

The principles regarding granting or refusal of an injunction are well settled now. It cannot be disputed that in order to entitle to a temporary injunction, the plaintiff must have a clear prima facie case. Where there is doubt about the case of the plaintiff or when the case of the plaintiff is not clear, this extraordinary relief of temporary injunction cannot be granted to him. When judged in the light of the principles discussed in the Ruling cited above, it will have to be held that the lower Court was right in coming to the conclusion that the plaintiff has not been able to establish any prima facie case to entitle him to temporary injunction. The suit schedule properties are standing in the name of the respondent and the plaintiff himself has averred in his plaint that he went out of the family in the year 1975. The suit schedule properties are purchased in the year 1979. The appellant will have to prove that his case falls under Exception (a) to Sub-section (3) of Section 4 of the Act. Till that is proved, it cannot be said that the property that is standing in the name of the respondent since 1979 is the joint family property of the appellant and the respondent. The suit of the appellant is only for partition and separate possession of the property, the appellant is claiming only 1/3rd share in the suit schedule properties. Even if he is able to prove his case ultimately he will be entitled to his 1/3rd share irrespective of any alienation that might have been made by the respondent during the pendency of- the suit. Therefore, there is no question of any irreparable loss also being caused to the appellant. Therefore, the Court below was justified in coming to the conclusion that the appellant has failed to make out a prima facie case for an injunction restraining the respondent from alienating or mortgaging the suit schedule property. The appellant has also prayed for an injunction restraining the respondent from causing any injury to the water pipe line leading to the appellant's house and to the electrical supply of the appellant's house, until the disposal of the present suit. The respondent himself has filed a counter claim in the Court below praying for a mandatory injunction to demolish the construction which has been made by the appellant. In view of the prayer of the respondent for a mandatory injunction directing the demolition of the construction made by the appellant, the appellant's apprehension that the respondent is likely to tamper with his construction or the amenities does not appear to be well founded. The learned Counsel for the respondent also submitted that the respondent undertakes not to cause any injury to the water pipe line and the electrical supply of the house in which the appellant is residing. In view of these circumstances, I do not think that there is any case to issue a temporary injunction restraining the respondent from disturbing the amenities enjoyed by the plaintiff in his house.

10. The learned Counsel for the appellant also submitted that the lower Court has not considered at all the balance of convenience and irreparable injury in this case. No doubt it is true that the lower Court has dismissed the I.A. of the appellant only on the point of prima facie case. It has not discussed the question of irreparable loss or balance of convenience in this case. Even though the lower Court has not discussed this point in its order, no prejudice is caused to the appellant as it is seen by this Court that there is no question of any irreparable loss or injury being caused to the appellant for the reasons which are discussed above. There are no grounds to interfere with the order that is challenged in this Appeal.

11. Hence, I proceed to pass the following order:

The Appeal is dismissed. No order as to costs.