Learned counsel for the appellants has laid much emphasis on the inadmissibility of photocopies filed by the opposite parties and has cited Saudul Azeez versus District Judge, Gorakhpur and Smt. J.Yashoda versus Smt. K. Shobha Rani (supra) in support. On the other hand, it has been held that in Shri Sarveshwari Samooh Kushta Ashram versus Sri Siddartha Gautam (supra) relied upon by the learned Counsel for the opposite parties that omission to file original documents is not fatal, if photocopy is on record. It has also been held that the power under Order 39 Rule 1 CPC is a special power. We, therefore, hold that the Court below did not commit any error in considering the photocopies filed by the opposite parties, while passing the impugned order. Case :- FIRST APPEAL FROM ORDER No. - 519 of 2012 Dt.29.5.2012
Petitioner :- Mateen Ahmed Khan And Ors.
Respondent :- Nazmi Khan And Another
ALLAHABAD HIGH COURT
Hon'ble Rajiv Sharma,J.
Hon'ble Vinay Kumar Mathur,J.
The instant First Appeal From Order has been preferred by plaintiffs-appellants against the order dated 15.5.2012 passed by Civil Judge (Senior Division), Mohanlal Ganj, Lucknow in Regular Suit No. 41 of 2012 whereby the application 6-C for temporary injunction filed by the plaintiffs has been rejected, while 10-C application filed by the defendants seeking temporary injunction against plaintiffs has been allowed and the plaintiffs have been restrained from evicting the defendants without adopting due course of law and have been further ordered not to take possession over the disputed house.
Brief facts leading to the filing of the instant FAFO are that the plaintiffs have filed a suit for perpetual prohibitory injunction against the defendants praying that the defendants be restrained from transferring the disputed House No. 308/29, Jauhari Mohalla, Chowk, Lucknow and further not to interfere in the possession of the plaintiffs.
The case of plaintiffs-appellants, bereft of details, is that the disputed house was owned by Smt. Kubra Begam, widow of late Khalil Ahmed Khan, who executed a Will of the disputed house on 10.4.1997 in favour of the plaintiff, who are children of the said Kubra Begum. It has also been contended that Smt. Kubra Begum did not give any share in the house to her son Rehan Ahmad, husband of defendant No.1 in the Will; instead, she gave Rs.8 lacs cash, jewellery, an Ambassador Car and movable property to Rehan Ahmad. The disputed house, on the death of Smt. Kubra Begum, was inherited by the plaintiffs-appellants and they owners in possession thereof. It has been stated that the said Rehan Ahmad had died. The defendant had lodged an FIR against Rehan under Section 498-A prior to his death. Smt. Kubra Begum died on 6.1.1999. On 27.1.2012, the defendants came to the disputed house and started measurements. They intend to sell it to some Contractor. The plaintiffs have prayed for injunction restraining the defendants to sell the disputed house and also from dispossessing them. They also moved 6-C application for temporary injunction, claiming their prima facie case and also balance of convenience in their favour. They have pleaded that they will suffer irreparable loss in case interim relief is not granted.
The defendants filed counter-claim that Smt. Kubra Begum had purchased the disputed house from one Narain Das through Sale Deed dated 20.7.1964 and sold it to her son Rehan Ahmad vide a Sale Deed dated 18.8.1992, executed by Shri Vakil Ahmad duly holding Power of Attorney on her behalf. The Sale Deed is stated to have been registered at Bombay. The alleged Will in favour of plaintiffs-appellants has been challenged on the ground that Smt.Kubra Begum has never executed the Will as she has already sold the disputed property to the husband of defendant No.1 Rehan Ahmad. The defendants claimed their possession over the disputed house since 1991 and in support, they have filed Municipal Tax Receipts, Gas connection, Electric Connection receipts/bills etc. They have prayed that the plaintiffs be restrained perpetually from forcibly evicting them. The defendants also filed 10-C application seeking temporary injunction against the plaintiff, claiming that they have a prima facie case and the balance of convenience is in their favour and they will suffer irreparable injury if temporary injunction is not granted to them.
The Court below vide its order dated 15.5.2012 has rejected 6-C application for temporary injunction and allowed 10-C application which was moved by the defendants wherein a prayer was made for restraining the plaintiffs from dispossessing them without adopting due course of law.
Aggrieved from the order and its formal order, the instant FAFO has been preferred by the plaintiffs-appellants praying that the impugned order dated 15.5.2012 may be set aside and defendants-opposite parties may be restrained through interim injunction from disturbing their possession over the disputed house.
We have heard Sri P.K. Khare, learned Senior Counsel for the appellants and Sri M.E. Khan, learned Counsel for the opposite parties and have also perused the record.
Learned Counsel for the appellants has submitted that defendant no. 1 had filed criminal proceedings under Section 498-A IPC against her husband, Rehan Ahmad and since her relations with him were strained, there was no question of defendants-opposite parties residing at the disputed house. The alleged sale-deed in favour of the Rehan Ahmad has not been filed in original and its copy is not admissible in view of Section 64 of the Evidence Act. The primary evidence ought to have been filed. Further submission is that the said sale deed is stated to have been registered at Bombay in respect of disputed property situated at Lucknow and the documents were never sent to the office of Sub-Registrar, Lucknow for registration, therefore, no title can pass through such a document. The plaintiffs-appellants had a prima facie case, the balance of convenience was also in their favour and they would suffer irreparable loss if the temporary injunction is not granted in their favour. Learned counsel for the appellants has further contended that no injunction could have been granted against the plaintiffs-appellants, on the application of the defendants. Further submission is that photocopies of documents/papers are inadmissible in evidence and such documents cannot be looked into in view of Rule 53 General Rules (Civil) also. It has also been contended that even if the case of the plaintiffs is considered on the ground of inheritance alone, a prima facie case for grant of temporary injunction is still made out in favour of plaintiffs. Reliance has been placed upon Saudeul Azeez versus District Judge, Gorakhpur [1999 (17) LCD 1356], Smt. J. Yashoda versus Smt. K.Shobha Rani [AIR 2007 SC 1721] and Kalyan Singh versus Smt. Chhoti and others [AIR 1990 SC 396].
Learned counsel for the opposite parties has submitted that as per Section 30 (2) of Indian Registration Act, as it stood on 18.8.1992, the date on which it was registered at Bombay, provided that the Registrar of Presidency Towns could register a transaction relating to property even outside its jurisdiction. Therefore, the document in question relied upon by the opposite parties was duly executed and registered at Bombay, which was a Presidency Town. Further submission is that in case the document was not endorsed for registration to the Sub-Registrar, Lucknow, then the defendants cannot be penalized for any ministerial lapse, if any, on the part of Bombay Authorities.
Further submission is that reliable documentary proof of possession and title has been filed by the opposite parties, while the plaintiffs have not filed any document to show that they are in possession. The Will is unregistered and fake. It has been contended that Smt. Kubra Begum had not inherited the disputed property from her husband, it was her self-acquired property which was rightfully sold by her through Shri Vakil Ahmad, holder of her general Power of Attorney. After purchasing the house Rehan Ahmad started residing in the disputed house and the copies of Ration Card, Tax Payment Receipts, Electricity and Telephone Bills etc., have been filed and the defendants have inherited the disputed house from Rehan Ahmad. The relations of defendant No.1 with her husband had become normal because a compromise had been arrived at and the proceedings under Section 498-A IPC were dropped.
It is submitted that the defendants can also legally seek temporary injunction in a Suit for injunction and since the defendants have filed a counterclaim and have paid Court Fees, they had every right to claim interim relief of temporary injunction. The plaintiffs have challenged two orders through the instant appeal, while they should have filed separate appeals against the order of rejection of 6-C and grant of injunction against them. Lastly, it has been submitted that the only requirement under Order 39 Rule 1 CPC is the satisfaction of the Court on affidavit or otherwise, therefore, photocopies are admissible, at the stage of consideration of temporary injunction application, as this is a special provision and the impugned order has been rightly passed. Learned Counsel has placed reliance on Jagdish versus Rajendar [AIR 1975 Allahabad 395], U.P. State Sugar Corporation versus M/s Raza Buland Sugar Company Ltd. [1985 ALJ 1017], Shri Sarveshwari Samooh Kushta Seva Ashram versus Sri Siddratha Gautam Ram and others [1993 (2) ALJ 1241], Krishnapada Roy versus Parimal Chandra Shaba and another [AIR 2000 Gauhati 117], Krishna Ram Mahale versus Mrs. Shobha Venkat Roy [AIR 1989 SC 2097] and Rame Gawda (dead) by L.Rs. Versus M. Varadappa Naidu [2005 (23) LCD 740].
From the perusal of the impugned order, it is apparent that the Court below has considered the respective claims of the parties in support of their contentions in detail. It appears that the Court below, while considering the prima facie case, balance of convenience and irreparable injury elements of respective parties, has not relied upon the 'Will' paper No.9-C because at the time of disposal of the temporary injunction application, the Will in absence of any probate or proof as required by law cannot be relied upon. It can be considered the basis of title only after it is proved duly in accordance with Section 68 of the Evidence Act as has been held in Jagdish versus Rajendra (supra) relied upon by the opposite parties. As regards the sale deed in favour of Rehan Ahmad, we are of the view that since the Court below was not deciding the case finally and was supposed to record a prima facie finding, on the basis of assertions made by both parties, the observations made are not conclusive and final.
Section 28 of the Registration Act, 1908 provides for place of registering documents relating to land, while Section 30 is in relation to registration by Registrar in certain cases. It may be noted that Sub-section (2) of Section 30 was omitted by Act No.48 of 2001 w.e.f. 24.9.2001. Sub-section (2) of Section 30 which was in vogue at the time of the registration of the sale-deed at Bombay provided power of registration to the Sub-Registrars of Presidency Town, even outside their jurisdiction. Section 67 which too has been omitted vide U.P. Act 27 of 1994 provided a copy of the document will be sent to the Registrar within whose jurisdiction the property is situated. In this view of the matter, Sub-Registrar, Bombay was prima facie competent to register the Sale Deed which was alleged to have been executed on behalf of Smt. Kubra Begum through her Power of Attorney, though the property sold was not within the jurisdiction. The Court below has correctly interpreted the legal provisions. We find substance in the submission of learned Counsel for the opposite parties that prima facie non-transmission of the copy of the document appears to be a ministerial lapse for which the opposite parties cannot be held responsible and the Sale Deed does not become invalid or inoperative as has also been held in Krishna Pada Roy versus Parimal Chandra Saha (supra) relied upon by the learned Counsel for the defendants.
It also appears from perusal of the impugned order that in support of the contention of the opposite parties that there are in possession of the disputed house. Various papers and documents were filed, which include Ration Card of Rehan Ahmed Khan and Tax Receipts, bills and other receipts etc., while, on the other hand, no documentary proof of their alleged possession has been filed. The contention of the appellants-plaintiffs that the relation of the opposite party No.1 with her husband Rehan Ahmed Khan was strained as a criminal case had been filed by the opposite party No.1 prima facie do not affect the right of inheritance. The Court below has rightly held that the defendants have a prima facie case and the balance of convenience is also in their favour as they claim to be in possession of the disputed house and in support have filed papers/documents showing their names. There is no error apparent in the interference drawn in the impugned order by the Court below that the plaintiffs-appellants have no prima facie case and will not suffer irreparable loss in case the temporary injunction is not granted in their favour.
In our view, there is no legal impediment in granting temporary injunction to the defendants. Further the defendants-opposite parties have filed a counterclaim and have paid Court Fees, as such they were entitled to apply for the grant of temporary injunction and the argument of learned Counsel for the appellants that no interim relief could be claimed by the opposite parties has no substance.
Learned counsel for the appellants has laid much emphasis on the inadmissibility of photocopies filed by the opposite parties and has cited Saudul Azeez versus District Judge, Gorakhpur and Smt. J.Yashoda versus Smt. K. Shobha Rani (supra) in support. On the other hand, it has been held that in Shri Sarveshwari Samooh Kushta Ashram versus Sri Siddartha Gautam (supra) relied upon by the learned Counsel for the opposite parties that omission to file original documents is not fatal, if photocopy is on record. It has also been held that the power under Order 39 Rule 1 CPC is a special power. We, therefore, hold that the Court below did not commit any error in considering the photocopies filed by the opposite parties, while passing the impugned order.
The appellants have paid requisite Court Fees today in view of the objection of the opposite parties that they cannot challenge two orders by filing a single Appeal. Therefore, the objection has become overruled.
We do not find any illegality or infirmity in the impugned order whereby 6-C application of the plaintiffs-appellants has been rightly rejected, while 10-C application of defendants-opposite parties has been duly allowed. The appeal is devoid of merit and deserves to be dismissed.
While dismissing the appeal, we deem it appropriate that for the preservation and protection of the Suit property, the operative portion of the impugned order be slightly modified by adding that both the parties shall maintain status quo, till disposal of the Suit. Costs easy.
Dt.29.5.2012
Petitioner :- Mateen Ahmed Khan And Ors.
Respondent :- Nazmi Khan And Another
ALLAHABAD HIGH COURT
Hon'ble Rajiv Sharma,J.
Hon'ble Vinay Kumar Mathur,J.
The instant First Appeal From Order has been preferred by plaintiffs-appellants against the order dated 15.5.2012 passed by Civil Judge (Senior Division), Mohanlal Ganj, Lucknow in Regular Suit No. 41 of 2012 whereby the application 6-C for temporary injunction filed by the plaintiffs has been rejected, while 10-C application filed by the defendants seeking temporary injunction against plaintiffs has been allowed and the plaintiffs have been restrained from evicting the defendants without adopting due course of law and have been further ordered not to take possession over the disputed house.
Brief facts leading to the filing of the instant FAFO are that the plaintiffs have filed a suit for perpetual prohibitory injunction against the defendants praying that the defendants be restrained from transferring the disputed House No. 308/29, Jauhari Mohalla, Chowk, Lucknow and further not to interfere in the possession of the plaintiffs.
The case of plaintiffs-appellants, bereft of details, is that the disputed house was owned by Smt. Kubra Begam, widow of late Khalil Ahmed Khan, who executed a Will of the disputed house on 10.4.1997 in favour of the plaintiff, who are children of the said Kubra Begum. It has also been contended that Smt. Kubra Begum did not give any share in the house to her son Rehan Ahmad, husband of defendant No.1 in the Will; instead, she gave Rs.8 lacs cash, jewellery, an Ambassador Car and movable property to Rehan Ahmad. The disputed house, on the death of Smt. Kubra Begum, was inherited by the plaintiffs-appellants and they owners in possession thereof. It has been stated that the said Rehan Ahmad had died. The defendant had lodged an FIR against Rehan under Section 498-A prior to his death. Smt. Kubra Begum died on 6.1.1999. On 27.1.2012, the defendants came to the disputed house and started measurements. They intend to sell it to some Contractor. The plaintiffs have prayed for injunction restraining the defendants to sell the disputed house and also from dispossessing them. They also moved 6-C application for temporary injunction, claiming their prima facie case and also balance of convenience in their favour. They have pleaded that they will suffer irreparable loss in case interim relief is not granted.
The defendants filed counter-claim that Smt. Kubra Begum had purchased the disputed house from one Narain Das through Sale Deed dated 20.7.1964 and sold it to her son Rehan Ahmad vide a Sale Deed dated 18.8.1992, executed by Shri Vakil Ahmad duly holding Power of Attorney on her behalf. The Sale Deed is stated to have been registered at Bombay. The alleged Will in favour of plaintiffs-appellants has been challenged on the ground that Smt.Kubra Begum has never executed the Will as she has already sold the disputed property to the husband of defendant No.1 Rehan Ahmad. The defendants claimed their possession over the disputed house since 1991 and in support, they have filed Municipal Tax Receipts, Gas connection, Electric Connection receipts/bills etc. They have prayed that the plaintiffs be restrained perpetually from forcibly evicting them. The defendants also filed 10-C application seeking temporary injunction against the plaintiff, claiming that they have a prima facie case and the balance of convenience is in their favour and they will suffer irreparable injury if temporary injunction is not granted to them.
The Court below vide its order dated 15.5.2012 has rejected 6-C application for temporary injunction and allowed 10-C application which was moved by the defendants wherein a prayer was made for restraining the plaintiffs from dispossessing them without adopting due course of law.
Aggrieved from the order and its formal order, the instant FAFO has been preferred by the plaintiffs-appellants praying that the impugned order dated 15.5.2012 may be set aside and defendants-opposite parties may be restrained through interim injunction from disturbing their possession over the disputed house.
We have heard Sri P.K. Khare, learned Senior Counsel for the appellants and Sri M.E. Khan, learned Counsel for the opposite parties and have also perused the record.
Learned Counsel for the appellants has submitted that defendant no. 1 had filed criminal proceedings under Section 498-A IPC against her husband, Rehan Ahmad and since her relations with him were strained, there was no question of defendants-opposite parties residing at the disputed house. The alleged sale-deed in favour of the Rehan Ahmad has not been filed in original and its copy is not admissible in view of Section 64 of the Evidence Act. The primary evidence ought to have been filed. Further submission is that the said sale deed is stated to have been registered at Bombay in respect of disputed property situated at Lucknow and the documents were never sent to the office of Sub-Registrar, Lucknow for registration, therefore, no title can pass through such a document. The plaintiffs-appellants had a prima facie case, the balance of convenience was also in their favour and they would suffer irreparable loss if the temporary injunction is not granted in their favour. Learned counsel for the appellants has further contended that no injunction could have been granted against the plaintiffs-appellants, on the application of the defendants. Further submission is that photocopies of documents/papers are inadmissible in evidence and such documents cannot be looked into in view of Rule 53 General Rules (Civil) also. It has also been contended that even if the case of the plaintiffs is considered on the ground of inheritance alone, a prima facie case for grant of temporary injunction is still made out in favour of plaintiffs. Reliance has been placed upon Saudeul Azeez versus District Judge, Gorakhpur [1999 (17) LCD 1356], Smt. J. Yashoda versus Smt. K.Shobha Rani [AIR 2007 SC 1721] and Kalyan Singh versus Smt. Chhoti and others [AIR 1990 SC 396].
Learned counsel for the opposite parties has submitted that as per Section 30 (2) of Indian Registration Act, as it stood on 18.8.1992, the date on which it was registered at Bombay, provided that the Registrar of Presidency Towns could register a transaction relating to property even outside its jurisdiction. Therefore, the document in question relied upon by the opposite parties was duly executed and registered at Bombay, which was a Presidency Town. Further submission is that in case the document was not endorsed for registration to the Sub-Registrar, Lucknow, then the defendants cannot be penalized for any ministerial lapse, if any, on the part of Bombay Authorities.
Further submission is that reliable documentary proof of possession and title has been filed by the opposite parties, while the plaintiffs have not filed any document to show that they are in possession. The Will is unregistered and fake. It has been contended that Smt. Kubra Begum had not inherited the disputed property from her husband, it was her self-acquired property which was rightfully sold by her through Shri Vakil Ahmad, holder of her general Power of Attorney. After purchasing the house Rehan Ahmad started residing in the disputed house and the copies of Ration Card, Tax Payment Receipts, Electricity and Telephone Bills etc., have been filed and the defendants have inherited the disputed house from Rehan Ahmad. The relations of defendant No.1 with her husband had become normal because a compromise had been arrived at and the proceedings under Section 498-A IPC were dropped.
It is submitted that the defendants can also legally seek temporary injunction in a Suit for injunction and since the defendants have filed a counterclaim and have paid Court Fees, they had every right to claim interim relief of temporary injunction. The plaintiffs have challenged two orders through the instant appeal, while they should have filed separate appeals against the order of rejection of 6-C and grant of injunction against them. Lastly, it has been submitted that the only requirement under Order 39 Rule 1 CPC is the satisfaction of the Court on affidavit or otherwise, therefore, photocopies are admissible, at the stage of consideration of temporary injunction application, as this is a special provision and the impugned order has been rightly passed. Learned Counsel has placed reliance on Jagdish versus Rajendar [AIR 1975 Allahabad 395], U.P. State Sugar Corporation versus M/s Raza Buland Sugar Company Ltd. [1985 ALJ 1017], Shri Sarveshwari Samooh Kushta Seva Ashram versus Sri Siddratha Gautam Ram and others [1993 (2) ALJ 1241], Krishnapada Roy versus Parimal Chandra Shaba and another [AIR 2000 Gauhati 117], Krishna Ram Mahale versus Mrs. Shobha Venkat Roy [AIR 1989 SC 2097] and Rame Gawda (dead) by L.Rs. Versus M. Varadappa Naidu [2005 (23) LCD 740].
From the perusal of the impugned order, it is apparent that the Court below has considered the respective claims of the parties in support of their contentions in detail. It appears that the Court below, while considering the prima facie case, balance of convenience and irreparable injury elements of respective parties, has not relied upon the 'Will' paper No.9-C because at the time of disposal of the temporary injunction application, the Will in absence of any probate or proof as required by law cannot be relied upon. It can be considered the basis of title only after it is proved duly in accordance with Section 68 of the Evidence Act as has been held in Jagdish versus Rajendra (supra) relied upon by the opposite parties. As regards the sale deed in favour of Rehan Ahmad, we are of the view that since the Court below was not deciding the case finally and was supposed to record a prima facie finding, on the basis of assertions made by both parties, the observations made are not conclusive and final.
Section 28 of the Registration Act, 1908 provides for place of registering documents relating to land, while Section 30 is in relation to registration by Registrar in certain cases. It may be noted that Sub-section (2) of Section 30 was omitted by Act No.48 of 2001 w.e.f. 24.9.2001. Sub-section (2) of Section 30 which was in vogue at the time of the registration of the sale-deed at Bombay provided power of registration to the Sub-Registrars of Presidency Town, even outside their jurisdiction. Section 67 which too has been omitted vide U.P. Act 27 of 1994 provided a copy of the document will be sent to the Registrar within whose jurisdiction the property is situated. In this view of the matter, Sub-Registrar, Bombay was prima facie competent to register the Sale Deed which was alleged to have been executed on behalf of Smt. Kubra Begum through her Power of Attorney, though the property sold was not within the jurisdiction. The Court below has correctly interpreted the legal provisions. We find substance in the submission of learned Counsel for the opposite parties that prima facie non-transmission of the copy of the document appears to be a ministerial lapse for which the opposite parties cannot be held responsible and the Sale Deed does not become invalid or inoperative as has also been held in Krishna Pada Roy versus Parimal Chandra Saha (supra) relied upon by the learned Counsel for the defendants.
It also appears from perusal of the impugned order that in support of the contention of the opposite parties that there are in possession of the disputed house. Various papers and documents were filed, which include Ration Card of Rehan Ahmed Khan and Tax Receipts, bills and other receipts etc., while, on the other hand, no documentary proof of their alleged possession has been filed. The contention of the appellants-plaintiffs that the relation of the opposite party No.1 with her husband Rehan Ahmed Khan was strained as a criminal case had been filed by the opposite party No.1 prima facie do not affect the right of inheritance. The Court below has rightly held that the defendants have a prima facie case and the balance of convenience is also in their favour as they claim to be in possession of the disputed house and in support have filed papers/documents showing their names. There is no error apparent in the interference drawn in the impugned order by the Court below that the plaintiffs-appellants have no prima facie case and will not suffer irreparable loss in case the temporary injunction is not granted in their favour.
In our view, there is no legal impediment in granting temporary injunction to the defendants. Further the defendants-opposite parties have filed a counterclaim and have paid Court Fees, as such they were entitled to apply for the grant of temporary injunction and the argument of learned Counsel for the appellants that no interim relief could be claimed by the opposite parties has no substance.
Learned counsel for the appellants has laid much emphasis on the inadmissibility of photocopies filed by the opposite parties and has cited Saudul Azeez versus District Judge, Gorakhpur and Smt. J.Yashoda versus Smt. K. Shobha Rani (supra) in support. On the other hand, it has been held that in Shri Sarveshwari Samooh Kushta Ashram versus Sri Siddartha Gautam (supra) relied upon by the learned Counsel for the opposite parties that omission to file original documents is not fatal, if photocopy is on record. It has also been held that the power under Order 39 Rule 1 CPC is a special power. We, therefore, hold that the Court below did not commit any error in considering the photocopies filed by the opposite parties, while passing the impugned order.
The appellants have paid requisite Court Fees today in view of the objection of the opposite parties that they cannot challenge two orders by filing a single Appeal. Therefore, the objection has become overruled.
We do not find any illegality or infirmity in the impugned order whereby 6-C application of the plaintiffs-appellants has been rightly rejected, while 10-C application of defendants-opposite parties has been duly allowed. The appeal is devoid of merit and deserves to be dismissed.
While dismissing the appeal, we deem it appropriate that for the preservation and protection of the Suit property, the operative portion of the impugned order be slightly modified by adding that both the parties shall maintain status quo, till disposal of the Suit. Costs easy.
Dt.29.5.2012
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