MASOOD AHMAD
v.
ARIF AHMAD SHAH

(High Court Of Jammu And Kashmir)

CIMA No. 28 of 2012 | 06-08-2012




Mansoor Ahmad Mir, J. - This Civil First Miscellaneous Appeal by defendants 1 to 3 is directed against the order dated 29th December, 2011 (for short 'impugned order' herein) passed by the Learned Additional District Judge, Srinagar, in an application moved by the Plaintiffs, Respondents 1 & 2 herein, in a suit titled Arif Ahmad Shah and another v. Masood Ahmad Shah and others.

2. It appears that respondents 1 & 2 filed a suit for injunction and recovery of rent. Along side the suit, an application was made for grant of ad interim relief, on the ground that the defendants-appellants and plaintiffs respondents 1 & 2 are joint owners of a three storied house with attic and the land underneath and appurtenant, thereto measuring about three Kanals, bearing Plot No. 41, situate at Gogji Bagh, Srinagar, which is in possession of defendant No. 4 on rent basis in terms of the lease deed dated 06.10.1989 executed by plaintiff No. 1 and defendants 1 and 2. The pleadings reveal that plaintiffs and defendants are having fifty percent share each in the suit property in terms of registered sale deed and gift deed. Fifty percent of the said property was acquired by respondent No. 1 and the remaining was acquired by defendants 1 & 2, i.e., appellants herein. Lease in favour of the defendant-Bank (defendants 4 and 5) was extended from time to time. In the year 2002, while extending the lease, defendants 1 and 2 inducted defendant No. 3 as one of the lessors and plaintiff No. 1 inducted his mother, i.e., plaintiff No. 2, as one of the lessors. In terms of Gift deed and sale deed, plaintiff No. 1 and defendant Nos. 1 & 2, i.e., the original lessors alone, are entitled to profits of the leased property to the extent of fifty percent each as per their shares in the property, but defendants 4 to 6, i.e., respondents 3 to 5 herein have in an arbitrary manner released the rent of the property to the extent of only 40% in favour of the plaintiffs, i.e., respondents 1 & 2, and sixty percent in favour of defendants No. 1 to 3, i.e., appellants herein. Plaintiffs objected to the same and requested defendant Nos. 4 to 6 to release 50 percent of the rent in their favour and, on their failure to abide by the request, they filed the instant suit for a decree of permanent injunction against defendants 4 to 6, i.e., respondents 3 to 5 herein, not to disburse the rent in excess of fifty percent in favour of defendants 1 & 2, i.e., appellants 1 & 2 herein, and also for a decree of permanent injunction directing the defendants-respondents 4 to 6 to pay fifty percent of the rent to the defendants 1 to 3 and further for a decree of recovery of rent of 10 percent paid in excess to defendants 1 to 3, i.e., the appellants herein from the year 2002 till date.

3. The defendants, i.e., appellants herein have resisted the suit on the ground that the plaintiffs, i.e. respondents 1 & 2 herein, cannot claim recovery of unpaid rent from the year 2002 as the same is time barred and that, in terms of the mandate of the limitation Act, a suit for recovery of money can be brought within three years and any suit brought after the time frame is time barred. It is stated that since the plaintiffs, respondents 1 & 2 herein, have made a claim to the unpaid rent from 2002, the suit, therefore, is time barred. It is further stated that the defendants-appellants are owners in possession of the suit property to the extent of 66.66 percent and the plaintiffs, respondents 1 & 2 herein, to the extent of 33.34 percent thereof. The rent was being paid to the plaintiffs and defendants by a single advice who used to apportion the same in-between. In the year 1992, plaintiff No. 2 was inducted as one of the lessor along with defendant No. 3 and it was agreed that the rent shall be proportionately divided among all the five lessors and the plaintiffs would jointly receive 33.34 percent and remaining 6.66 percent was also agreed to be paid to the plaintiffs out of love and affection and thus the plaintiffs were paid forty percent and the defendants 1 to 3 were paid 60 percent of the rent. This arrangement continued / continues till date to which plaintiffs never objected to before.

4. The defendants 4 to 6, i.e., respondents 4 to 6 herein, have filed their written statement stating therein that, as regards the payment of rent to the plaintiffs, it is immaterial for them as to the extent of the shares of the plaintiffs and the defendants therein. The suit property being jointly owned by the plaintiffs and defendants in equal proportions, the defendants 4 to 6 have been paying rentals to the plaintiff No. 1 to the extent of 20 percent to plaintiff No. 2 to the extent of 20 percent.

5. Admittedly the plaintiffs and defendants are receiving rentals in the ratio of 40%: 60% and after the year 2002, once the parties inducted their mothers as lessors in the subsequent renewal/lease deeds, the plaintiffs were receiving 20 percent rentals each equally.

6. The question that arises for consideration is whether the plaintiffs have made out a case for ad interim relief. It is relevant to reproduce paragraph 1 of the impugned order at page 7 thereof, hereunder:

"The merits in the case can be gone into during trial and as regards the arrangement existing between the parties, the parties have been admitting that each of the plaintiffs and the defendants is receiving 20 percent share in the rentals which thereby means that 60% share is being received by the defendants and 40% by the plaintiff."

7. Thus, admittedly the plaintiffs-respondents 1 & 2 are receiving forty percent of the rentals and defendants-appellants are receiving sixty percent. The ancillary question that arises is whether this can be disturbed at this stage, when this arrangement has been in place from the year 2002. Further, admittedly, the suit has been filed nine years after the aforesaid arrangement has been introduced by and between the parties. Whether the suit is time barred or not, I leave this question to be decided by the trial court at the trial of the suit. I would restrict my view to the legality of the impugned order.

8. Law is settled that for grant of an ad interim relief, the court has to be satisfied about three ingredients, i.e., about the existence of a prima facie case in favour of the party seeking the interim relief; whether balance of convenience lies in favour of grant or refusal of the relief, and if relief prayed for is not granted, whether the party would suffer irreparable loss.

9. In the instant case, what is gathered from the pleadings of the parties, it is an admitted fact that it is a suit for recovery of money. Therefore, the relief claimed, if they succeed in the suit, can be measured by money and the plaintiffs can be compensated in terms of money. In terms of the mandate of Specific Relief Act read with mandate of Order 39, Rule 1 & 2 of the Code of Civil Procedure, when amount is ascertained and can be calculated, no ad interim relief can be granted. This is so for the simple reason that if tomorrow the plaintiffs succeed in the suit, they can be properly compensated by directing the defendants concerned to pay the amount of compensation, if at all, it is found that they have received the rent in excess of their entitlement. I am fortified in my aforesaid view by the apex Court judgments reported in United Commercial Bank v. Bank of India, AIR 1981 SC 1426 (paragraph 50 & 51); Mandali Ranganna & ors. v. T. Ramachandra & ors., 2008 AIR SCW 3817 (paragraph 18) and M/s. Best Sellers Retail (India) Pvt. Ltd. v. M/s. Aditya Birla Nuvo Ltd. & ors., 2012 AIR SCW 320 (paragraph 14), wherein the Supreme Court has held as under:

United Commercial Bank v. Bank of India, AIR 1981 SC 1426 (paragraph 50 & 51);

"50. No injunction could be granted under Order 39, Rules 1 & 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether in the facts and circumstances of the case, there is a prima facie case and, if so, as between whom? In view, of the legal principles applicable, it is difficult for us to say on the material on record that the plaintiffs have a prima facie case. It cannot be disputed that if the suit were to be brought by the Bank of India, the High Court would not have granted any injunction as it was bound by the terms of the contract. What could not be done directly cannot be achieved indirectly in a suit brought by the plaintiffs.

51. Even if there was a serious question to be tried, the High Court had to consider the balance of convenience. We have no doubt that there is no reason to prevent the appellant from recalling the amount of Rupees 85,84,456/-. The fact remains that the payment of Rs. 36,52,960/- against the first lot of 20 document made by the appellant to the Bank of India was a payment under reserve while that of Rs. 49,31,496/- was also made under reserve as well as against the letter of guarantee or indemnity executed by it. A payment under reserve' is understood in banking transactions to mean that the recipient of money may not deem it as his own but must be prepared to return it on demand. The balance of convenience clearly lies in allowing the normal banking transactions to go forward. Furthermore, the plaintiffs have failed to establish that they would be put to an irreparable loss unless an interim injunction was granted."

Mandali Ranganna & ors. v. T. Ramachandra & ors., 2008 AIR SCW 3817 (paragraph 18)

18. While considering an application for grant of injunction, the Court will not only take into consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take who consideration the conduct of the parties.

Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entities to an order of injunction. The Court will not interfere only because the property is a very valuable one. We are not however, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The Courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the Courts is imperative. Contentions raised by the parties must be determined objectively."

M/s. Best Sellers Retail (India) Pvt. Ltd. v. M/s. Aditya Birla Nuvo Ltd. & ors., 2012 AIR SCW 320 (NB)

"14. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. In Dalapat Kumar and Anr v. Prahlad Singh & ors., (1992) 1 SCC 719 : AIR 1993 SC 276 : 1992 AIR SCW 3128 this Court held:

"Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury' to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages."

10. While going through the plaint and the application for grant of ad interim relief, it is crystal clear that the plaintiffs have specifically prayed for a decree of recovery of money to the tune of rupees one lac and have further prayed for direction on defendants 4 to 6, i.e., the tenants of the suit property, to make the payment of rent in the ratio of fifty : fifty percent inter se the parties. If the plaintiffs succeed they can, as already observed, be sufficiently compensated by way of money. Thus the direction of the trial Court, in so far as excess of 10 percent of rent, i.e., the disputed portion of the rentals, should be kept in fixed deposit, is unwarranted. However, in the facts and circumstances of this case, I deem it proper to direct the defendants, appellants herein, to execute an undertaking before the trial Court to the effect that in case the plaintiffs succeed in the suit, they shall reimburse the money, i.e., amount of ten percent of rent, received by them from institution of suit. Accordingly, the order passed by the learned Additional District Judge, Srinagar; is modified. Any observations made by the trial Court in the impugned order or by this Court herein shall not cause prejudice to the rights of the parties, in any way.

11. In view of the above, this Civil First Miscellaneous Appeal is disposed of.

12. Registry is directed to send a copy of this order to the trial Court.

Advocates List

Jahangir Iqbal Ganaie, Advocate, for the Appellants; Hakim Aman Ali, Advocate, for the Respondent Nos. 1 and 2; None, for the Respondents

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

Mansoor Ahmad Mir J.

Eq Citation

(2012) 4 JKJ 231 : (2012) 10 RCR(Civil) 747