SUIT FOR DECLARATION AND INJUNCTION - REQUIREMENT OF EVIDENCE - DUTY OF THE COURT - HELD - Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted.
Karnataka High Court
T.L. Nagendra Babu vs Manohar Rao Pawar on 16 December, 2004
Equivalent citations: ILR 2005 KAR 884
ORDER 6 RULE 15 - Verification of pleadings under - HELD - Pleadings should be verified by the party who is acquainted with the facts of the case - A party must also specify the number of paragraphs and his knowledge, information and belief with regard to the paragraphs - Verification must be signed by the concerned party by mentioning the date and place.
(B) EVIDENCE ACT, 1872 - SECTION 85 - PRESUMPTION AS TO POWERS OF ATTORNEY UNDER - HELD - Presumption operates in favour of the party relying on a document, provided he must prove that the document is duly executed and authenticated.
(C) SUIT FOR DECLARATION AND INJUNCTION - REQUIREMENT OF EVIDENCE - DUTY OF THE COURT - HELD - Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted.
Held:
In the light of these Judgments, what is clear to this Court is that to have a presumption underSection 85 of the Evidence Act, the document in question namely the power of attorney has to be to the satisfaction of the. Court in the matter of maintainability. The Court has already referred to the various infirmities in terms of the original power of attorney itself. Evidence is also sketchy from the plaintiff side. Though the defendant has argued at great length by pointing out the various infirmities, the learned Judge unfortunately has not chosen to give a proper finding and instead has chosen to reject the same on the ground of no issue. The learned Judge again in pars 15 notices the plea of maintainability and after noticing the same, he has brushed aside the crucial issue raised by the appellant. In the given circumstances and on the basis of the material placed on record, I am satisfied that the requirement of the pleadings and the signature in terms of Order 6 Rules 14 and 15 is not made out by the plaintiff.
When the plaintiff" approached a Court of law with serious allegations, he must give some details which compelled him to file the suit in question.
The learned Judge has not taken the case seriously and has chosen to give several findings contrary to the evidence on record. Learned Judge himself notices that there is no evidence but despite the same he answers the same in favour of the plaintiff. The entire approach of the learned Judge to say the least is totally unwarranted on the facts and circumstances of this case. There is no proper evidence with regard to maintainability of the suit; there is no proper evidence with regard to court fee; there is no proper evidence with regard to cause of action; there is no evidence with regard to possession, but despite the same, the learned Judge has chosen to grant an injunction relief in the case on hand. Grant of injunction is serious in nature. It affects the rights of the parties. The Court must be very careful in evaluating the pleadings and evidence in the matter of injunction. Unfortunately, this basic principle has not been properly noticed/ appreciated by the learned Judge in the case on hand.
R.S.A. 386/02 allowed and R.F.A. 495/02 dismissed.
JUDGMENT R. Gururajan, J.
1. These three appeals are disposed of by this common order. All these three appeals arise out of an order passed in O.S.No.3421/ 2000 dated 8.2.2002 by the learned Addl. City Civil Judge, Bangalore.
2. R.F.A. No. 386/2002 is filed by Nagendra Babu. Facts" in brief are as under:
One Mr. Manohar Rao Pawar, the plaintiff-respondent filed a plaint in O.S.No, 3421/2000. According to the petition averments, he is the absolute owner and possession of the suit schedule site. It is a portion of the larger area bearing Corporation No. 10. Properties stood in the name of late Shivaramanand Bharathi. The plaintiff purchased the same for valuable consideration by a registered sale deed dated 8.7.1987. The defendant is a stranger to the suit property. He has no manner of right, title or interest. He started a school called Kids Convent located at the North-East corner of No. 10 of the Corporation. The suit schedule property/ site and location of the school in No. 10 are shown in the sketch annexed to the plaint. The plaintiff is temporarily outside the country. His G.P.A. holder looks after the property. G.P.A, holder received information that some one is digging the storm water drainage on the northern side of the suit schedule property. The G.P.A. holder of the plaintiff and the younger brother of the plaintiff traced the defendant and enquired him thereafter. With these facts the plaintiff sought for a declaration and a consequential injunction in terms of the plaint averments.
3. Suit was contested. The defendant states that the property described in the alleged sale deed by the plaintiff is different from the suit schedule property. In the year 1887, late Sri Shivaramanand Bharathi was not in possession of any immovable -property in his personal capacity. Property stood in his name and it was in the capacity as a Matadhipathi of Sri Gosai Mutt, Gavipuram, Bangalore. The Government took over the management, with all its properties. This was challenged in O.S.NO.338/1973 by late Sri Shivaramanand Bharathi. Suit was finally disposed of on 11.8.1987. Late Sri Shivaramanand Bharathi filed execution petition for possession of the immovable property, as per Judgment and Decree. Execution petition was closed for default on 4.10.1991. Thereafter, Execution Petition No. 786/1996 was filed and the same is pending. The defendant is in possession of the property in his own right. He purchased the property under the registered sale deed dated 5.3.1990. Sri Gosai Mutt filed the suit in O.S.No.2372/ 1999 against the defendant. A counter suit was filed by the defendant-appellant in O.S.No.2400/I999. Both the suits were compromised on 7.2.2000. Defendant is in possession of the property. Learned Trial Judge framed 13 issues.
4. Three witnesses were examined on behalf of the plaintiffs. One witness was examined on behalf of the defendant. 12 documents were marked for plaintiff and 26 documents were marked for defendants. Learned Trial Judge heard the matter and thereafter, he by the impugned order dismissed the suit filed by the plaintiff. He granted injunction against the defendant. Aggrieved by the said order, the defendant is before this Court in R.F.A.No.386/2002.
5. R.F.A.No.664/2002 is filed by this very appellant-defendant seeking for lodging a complaint for fabrication and forgery of Ex.P2 and for sending the same to the jurisdictional Metropolitan Magistrate at Bangalore City for action in accordance with law.
6. R.F.A.No.495/2002 is filed by the plaintiff challenging the findings regarding the title of the plaintiff in the case on hand.
7. Heard Sri S.P.Dondale, learned Counsel at great length. He took me through the pleadings and evidence on record to contend that the suit itself is not maintainable in the light of the suit having been filed by a person not having an acceptable power of attorney. He relies on the evidence and also the Judgment of the Court in support of his submissions. He further argues that there, is no cause of action at all in the case on hand in terms of the pleadings. Learned Counsel also says that the plaintiff is out of possession and that therefore, there cannot be any injunction. Even otherwise, he says that there is a dispute with regard to identity of the property and in such circumstances, the learned Judge could not have granted injunction in the case on hand. He refers to various pleadings and the evidence on record to contend that the impugned order requires my interference. He has referred to me the provisions of C.P.C. and other relevant laws in support of his submissions. He relies on various Judgments to which I would be adverting to at the relevant point of time. He also says that the Court fee is not properly paid and the Court has failed to notice this aspect of the matter. Ultimately, he wants the appeals to be allowed. In so far as the other appeal is concerned, learned Counsel says that he wants action to be taken in the given circumstances.
8. Per contra, Sri Bhat, learned Counsel says that G.P.A has been properly executed and the evidence on record is in support of his submissions. Learned Counsel also says that the plaintiff has a better title as rightly held by the learned Judge. In so far as possession is concerned, he says that the learned Judge is right in his finding in this regard. Learned Counsel also says that in terms of the written statement, the argument of cause of action has to be rejected. In so far as identity is concerned, learned Counsel refers to the material evidence and the material pleadings in support of his submissions. He wants his appeal to be allowed and the counter appeal filed by the defendant to be dismissed.
9. After hearing, I have carefully perused the material on record.
10. At the outset, it is to be noticed of an essential argument advanced by the appellant. Material on record would reveal that the plaintiff-respondent filed a suit for declaration and permanent injunction through the power of attorney holder Eshwar Sindhe. The same was seriously contested by the appellant-defendant. 13 issues have been framed by the learned Judge. Three witnesses have been examined in addition to production of 12 documents. The appellant examined one witness and produced 26 documents. Learned Trial Judge has passed a detailed order in terms of his findings.
11. I will be dealing the case in terms of the findings given by the learned Judge and in terms of the relevant issues/arguments advanced before me by the parties.
1. Power of Attorney/Verification of pleadings:
12. Though there was no issue as such has been framed with regard to general power of attorney, the same was pressed into service at the time of arguments. Learned Counsel pointed out various infirmities with regard to the right of Mr.Manohar Rao Pawar in filing the present suit as a power of attorney holder.
Ex.Pl is the xerox copy of the G.P.A.
Ex.P2 is the original of the G.P.A.
13. It is seen from the material on record that the plaintiff admits that G.P.A. is dated 15.2.1998 and that he was present when Ex.P2 was executed. It was done before the Notary. He expressed his ignorance with regard to the name of the Notary and that with regard to identification while executing G.P.A. P.W.2, younger brother of the plaintiff has denied the suggestion that his brother did not execute G.P.A in the case on hand. DW1 has stated that about 4 months prior to 12.10.2001, he enquired the Notary Sri Sangameshwar, who said, such name and signature was not there, thereby referring to the plaintiff. He has also stated that Sri Sangameshwar has not given him anything in writing with regard to G.P.A.
14. Learned Judge, after noticing these materials has chosen to reject the same only on the ground that there is no specific issue on this aspect of the matter. While attacking these findings, learned Counsel invites my attention to various provisions of C.P.C. He also showed me from the records that the power of attorney cannot be relied upon in the case on hand.
15. It is to be noticed at this stage that no specific issue as such was raised with regard to this aspect of the matter.
16. Learned Counsel for the appellant places before me a Judgment of the Supreme Court in 1971 SC 2018. In the said Judgment, the Supreme Court in para 6 has ruled as under:
"Though this issue is not very specific but undoubtedly it covers the plea taken by the respondent in paragraph 1 of his written statement. That apart: the plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable, the fact that no specific pleas were taken or no precise issues were framed is of little consequence."
In the light of the Judgment of the Supreme Court, this being a legal plea and also in the light of the findings of the learned Judge, I deem it proper to give my findings despite there being no issue as such in the case on hand. Learned Trial Judge has disposed of this serious argument at page 32 in para 9 by holding that the fact remained with the GPA was executed before the Notary and registration thereof is not compulsory. Besides, there is no issue on the said point. He has disposed of this legal plea in a casual way.
17. Let me see as to whether the argument of the appellant is tenable in the case on hand. Order VI deals with pleading and Order 6 Rule 15 provides for verification of pleadings. It reads as under.
15. Verification of pleadings- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
18. Similarly Order 3 Rule 2 provide for recognised agents and Order 6 Rule 14 provides for signing of the pleadings. According to the appellant all these legal necessities are not complied with in this case. To consider this plea let me notice the material facts. Admittedly, the plaint is filed and signed by the G.P.A holder of Manohar Rao Pawar. The Power of Attorney Holder's name is Eshwar Shinde. The original document was made available to me. It is at Ex.P2. It is dated 15.2.1996. The power of attorney holder has signed it on 15.2.1996. But the stamp papers seem to have been purchased on 15.6.1996. A look of original Ex.P2 would show that the stamp paper did not bear the name and the licence number of the stamp vender in question. It is seen that the power of attorney has not signed at pages 1, 2 and 3. Though there is a seal of the Notary, there is no signature or initials of Sri Sangameshwar, a Notary in the case on hand. It is also seen that there is no identification of the signature of the executant. There is also no acceptable endorsement that the Notary was satisfied with regard to the identity of executant. There is also no date by the notary. With these prime deficient materials available on record with regard to the document, let me see the evidence on record also.
19. PW1 was examined and he says that the plaintiff was the son-in-law of the executant GPA. He was cross-examined and in the cross-examination, he admit that his son-in-law was in Australia in 1990. Ex.P2 was executed on 15.2.1996. He was present when Ex.P2 was executed. It was done before the Notary. But he does not know the name of the Notary. He has not noticed who executed the notary while executing G.P.A. One S.R.Muralidhar was the witness to Ex.P2. He cannot remember his name now. He has denied that he has no competency to file the suit. PW2 was examined and he has stated that PW1 was looking after on behalf of his brother. It was executed in February 1996. On that day, his brother was present along with him. He has signed as a witness. PW3 was also examined. DW1 was examined. At this stage, I must also notice theNotaries Act. In terms of the Notaries Act, the document requires signature. In this connection, it is to be noticed that in terms of Section 85 of the Evidence Act as to whether the plaintiff has been properly represented and this Court has to see as to whether the pleadings are in conformity with C.P.C.
20. Mohanshet Purushottam Gujar V. Mrs. Jayashri Vasantrao Mahagaonkar , is the Judgment under Section 85 of the Evidence Act. In the said Judgment, the Court noticed the presumption as to authentication in terms of Section 85. After noticing the same, the learned Judge rules as under-
"Section 85 contains a presumption, a presumption which may operate in favour of the party relying on a document and to the prejudice of the party alleging that the document is not a genuine one. For the purpose of such presumption to operate, particularly in the background of the facts above ascertained, the authentication must be clear, specific, more decisive and bereft of the features which I have indicated earlier. If there is the slightest doubt, then the Court must be equally loathe to rely on the presumption contained in Section 85 and must be equally loathe in applying such presumption in favour of the party relying on the document. In my opinion this was a case in which the presumption under Section 85 should not have been raised in favour of the respondent. It was not difficult for the respondent to have proved the execution of the power of attorney by calling Konde or some other person who might have been present at the time when Gokule had put his thumb impression on the power of attorney. That was not sought to be done. The advocate who identified Gokule must certainly have been available to the respondent; he was also not called. In this view of the matter, it is clear that the presumption under Section 85was wrongly made available to the respondent for exhibiting Exhibit 89, the power of attorney; and if that power of attorney is held to be not properly proved, no title would pass to the respondent by reason of the registered sale-deed, Exhibit 90, which is executed not by Gokule but by Gokule's purported attorney Konde."
21. In (Dy. General Manager, Re-designated As Dy.Director, Isb Etc., v. Sudarshan Kumari and Ors., .), the Supreme Court has noticed Section 8 of the Notaries Act. After noticing, the Supreme Court has ruled as under:
"We have seen original rejoinder affidavit filed in this Court. They have approached one Notary who had initially attested it and later he had cancelled it without even verifying- the valid ground on which the earlier attestation came to be cancelled, same was again attestation came to be cancelled, same was again attested by one Sundersham Kumar on November 1, 1994. In view of the admitted position that she herself had not signed and asked someone who had signed it, it would be obvious that the person who had signed before him was not the respondent nor even the person was known to the Notary. None identified her before the Notary, yet he attested the affidavit. This would show that some Notaries are absolutely misusing the licence granted to them without any proper verification of the persons who has signed the document and are attesting false affidavits of impersonators."
22. In Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah and Anr., , the Bombay High Court has considered once again Section 8 of the Notaries Act, This is what the Bombay High Court says:"
"A notary has to make entry in the notarial register in respect of the notarial act of certifying copy of document as true copy of the original. Even if one or two columns of the said form is not applicable, entries must be made in the said register filling up remaining columns as are applicable and adapting the format accordingly. He has to place his signature and seal on the copy of the document and keep the copy on his record. It is the responsibility of a notary to satisfy himself that the original document intended to be executed before him was executed by the person concerned and not by someone else in the name of a different person i.e, about the identity of the executant of the original document by making all reasonable inquiries including insistence of identification of a member of the public by a legal practitioner known to the notary. Unless the executant is known to the notary personally, the notary must insist on written identification of the executant by an advocate and take signatures of both of them in token thereof in the notarial register in order to minimise the possibility of cheating by personification. Negligence of a notary in the discharge of his notarial functions may jeopardise the interest of third parties and public interest itself. Notaries enjoy high status throughout the country and the Courts take judicial notice of the seal of the notary and presume that the document in question must have been certified as true copy after taking of all possible care by the notary in comparing the copy with its original and due verification of the identity of the executant and the person appearing before the notary for the certification."
23. In the light of these Judgments, what is clear to this Court is that to have a presumption underSection 85 of the Evidence Act, the document in question namely the power of attorney has to be to the satisfaction of the Court in the matter of maintainability. 1 have already referred to the various infirmities in terms of the original power of attorney itself. Evidence is also sketchy from the plaintiff side. Though the defendant has argued at great length by pointing out the various infirmities, the learned Judge unfortunately has not chosen to give a proper finding and instead has chosen to reject the same on the ground of no issue. The learned Judge again in pars 15 notices the plea of maintainability and after noticing the same, he has brushed aside the crucial issue raised by the appellant. In the given circumstances and on the basis of the material placed on record, I am satisfied that the requirement of the pleadings and the signature in terms of Order 6 Rule 14 and 15 is not made out by the plaintiff. The findings of the learned Judge in this regard requires to be noticed for setting aside by this Court. This Court has to observe that the learned Judge has chosen to brush aside a serious plea without proper consideration of the controversy between the parties as he has done in the case of Court fee. When serious arguments are advanced with serious materials, the Judge cannot brush aside the said contention in a casual way as has been done in the case on hand. I am sorry to see that a District Judge with experience has chosen to give a go-bye to a serious issue. The argument of the appellant in these circumstances is accepted.
Cause of Action:
24. The next contention that was raised by the learned Counsel is that there is no cause of action that has occurred in the case on hand.
25. Order 7 Rule 5 reads as under:
"Defendant's interest and liability to be shown: The plaint shall show that the defendant is or claims to be interested in the subject matter, and that he is liable to be called upon to answer the plaintiff's demand."
26. When the plaintiff approached a Court of law with serious allegations, he must give some details which compelled him to file the suit in question.
27. Learned Counsel for the appellant invites my attention to the pleadings to contend that there is no cause of action at all In the light of the submission of the learned Counsel, I have carefully perused the plaint and in the plaint, it is stated that on 14.5.2000, the GPA holder received some information that someone is digging the storm water drainage on the northern side of the suit schedule property. After visiting the site, the labourers only informed that the contractor had engaged them and they do not know at whose instance the work is undertaken. There is absolutely no allegation with regard to the defendant seeking for a declaration or an injunction as has been done in the case on hand. Unfortunately, this aspect of the matter has also been not properly adverted to by the learned Judge in the case on hand.
Issues framed in the case/findings by the learned Judge Issue No. 1:
Identity of property:
28. Let me now deal with the findings of the learned Judge in terms of the issues framed by him. The first issue is with regard to identity of the suit schedule property. The learned Trial Judge while considering issue No. 1 has noticed the pleadings of the parties and thereafter he has chosen to give a finding that there are two separate properties concerning to plaintiff and defendant and that he holds that the defendant has put up a claim on the plaintiff property as contended by the plaintiff and hence, he holds issue No. 1 in favour of the plaintiff.
29. Let me see the material on record that this finding is an acceptable one in the light of the argument advanced by either of the parties. In the plaint, the details of the property has bet n described in schedule. In the plaint, the property described at para 9, the boundaries are described as under:
East by : Property of the Ashrama West by : Property of some other person North by : Property of the Ashrama South by : Corporation Road
30. Ex.P3 is the lease deed dated 8.7.1997 executed by Shivaramananda Bharathi in favour of Manohar Rao Pawar. The details in the plaint and Ex.P3 are one and the same. Witness was cross-examined and in cross-examination, the witness has given the details as under:
"His evidence is that the boundaries are that towards East there is Ashram property, towards West there is house, towards North, road and towards South Ashram property."
31. PW3 was examined. He has chosen to say that the properties bounded, by East : Datta Muktha Ashrama property, by West : Private Property by North: property of Datta Muktha Ashrama by South: Corporation property.
32. Ex.P5 is the sketch that was filed before the Court. The boundaries given thereof is:
by East : Ashram property by West : Private property by North : Ashram property by South : Road
33. From the reading of all these materials, what is clear to this Court is that the plaintiff is not sure of the details of the property. Learned Judge in the impugned Judgment notices this argument but however, he has answered the same in favour of the plaintiff. He has noticed the submission by holding at para 9 that "It is no doubt true that PW1 has admitted that he does not know with whom Ex.P5 the sketch prepared; that he does not know the correctness of Ex.P5. Thus Ex.P5 cannot be given much importance.
34. After noticing this, the learned Judge also notices that there is infirmity with regard to identity of the property in question but still the oral evidence of PWs. i to 3 is consistent and taking into consideration the evidence of DW1 also, identity of the suit schedule property can be fixed and it is clearly identifiable. Those findings to say the least is totally not acceptable to me. The learned Judge himself is not satisfied that Ex.P5 and the very learned Judge is of the view that he could not have ordered injunction and he could not have ordered declaration in a matter like this. Unless the Judge is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property no declaration and no injunction can be granted as has been done by the learned Judge. It is rather unfortunate again that the learned Judge has chosen to give a finding in favour of the plaintiff despite his own findings of non-acceptance of Ex.P5 and infirmities in the case on hand. In these circumstances, the argument of the appellant is well founded. I accept his argument. The findings on this issue is reversed in the light of non availability of sufficient material in terms of evidence and pleadings.
Issues Nos. 2 and 7:
Validity of Title:
35. Learned Trial Judge has framed issue No. 2 with regard to a valid title in terms of his findings. He has answered the same in para 20 by combining issue No. 7. Issue No. 7 also is with regard to a title and that therefore both the issues rightly in my view is clubbed and a common finding is given. Let me see as to whether this finding is unsustainable in law.
36. Issue No. 2 deals with a valid title in favour of the plaintiff. Issue No. 7 deals with a proof by the defendant with regard to title in favour of the plaintiff. A common finding is given in paras 20 by the learned Judge. The plaint averments would show that the plaintiff Manohar Rao Pawar purchased the property from Shivaramananda Bharati in the year 1987. PW-1 examined the original sale deed in terms of Ex.P3. Learned Judge, after noticing the pleadings has ruled in para 20 that "Looking at the pleadings and the evidence of PW1, absolutely there is no evidence with regard to the bona fide enquiries made by the plaintiff prior to the purchase. There is also no evidence as to how the Shivaramananda Bharathi Swamiji had title and conveyable title." The evidence is totally wanting on this aspect. He further says in evidence that he did not enquired the previous title deeds of Shivaramananda Bharathi Swamiji and that he does not know the enquiry made by the plaintiff. No documents are produced with regard to the title in favour of Swamiji. He admits that he has not discussed with the plaintiff about the title deeds. On the other hand, the defendant relies upon a Judgment in O.S.No.398/80, Ex.Dl. An execution case was also filed. With these evidence, the learned Judge holds that the evidence of PW 1 is void and skeleton. He also noticed the ignorance on the part of PW1. He also holds that Ex.P3 was executed in favour of the plaintiff. The said sale deed is not legal and no title is derived thereunder. In the order, he holds rightly against the plaintiff in the absence of any acceptable evidence with regard to title in his favour. These findings of the learned Judge has to be accepted in the absence of any acceptable evidence.
Issue No. 3:
Possession:
37. Issue No. 3 is with regard to proof that from 8.7.1987 till 23.5.2000, the plaintiff has not sold or encumbered any portion of the suit schedule property. The learned Judge has given a finding at para 28. No serious argument has been advanced in this regard.
Issue Nos. 4 and 5.
Possession and Injunction:
38. Issue No. 4 is with regard to possession by the plaintiff. Learned Trial Judge has given findings on issue No. 4 in paragraph 25. He has answered issue Nos. 4 and 5 together. As I mentioned earlier, issue No. 4 deals with possession and issue No. 5 deals with injunction.
39. Learned Judge while giving findings notices the same on 8.7.1987 and the same in favour of the defendant in 1990. In evidence, PW1 has admitted that he has no document with regard to his possession. In fact, the evidence of the plaintiff at pages 86 and 87, PW1 states that "From the date of Ex.P3, I have not produced documents to evidence that the plaintiff was doing vahivat of the suit property. He was, not in possession of the suit property. On the suit property, there was a house. It was in the possession of another person. He further says that he has in possession of another person. He further says that he has given a complaint that the defendant has taken possession of the suit property." Not- withstanding this categorical evidence, the learned Judge holds based on the photographs that the plaintiff is in possession. This finding, in my view, is certainly unwarranted particularly in the light of a clear admission by the plaintiff. This finding therefore requires reversal and I do so in the case on hand. While considering the plea of injunction, the learned Trial Judge notices that the plea of obstruction is necessary. When the photograph was sought to be relied, the same has been denied by the plaintiff. The defendant, on the other hand, stated that he is in possession in the matter. Learned Judge in the light of this evidence has come to a conclusion that the interference in possession of the plaintiff is clearly proved. In fact, the plaint, as I mentioned earlier, is very silent with regard to this aspect of the matter. There is also no prayer with regard to possession. Even according to the plaintiff's evidence, he is out of possession. If he is out of possession, then he ought to ask for a declaration for possession as well that has not been done. In these circumstances, as rightly pointed out by the learned Counsel for the appellant that the grant injunction in this state of affairs is wholly, unwarranted. At this stage, I must refer to a couple of Judgments cited by the appellant.
40. The Supreme Court in (Vinay Krishna v. Keshav Chandra and Anr.) has categorically ruled that in the absence of the plaintiff claiming relief of possession a discretion of Court for granting decree for declaration is barred.
41. This Court in ILR 1974 Kar 664 has ruled as-under.
"Where the plaintiff, who has sought a declaratory relief, could have asked for a relief, of possession, but has omitted to do so, the provisions of Section 34 of the Specific Relief Act will be attracted to such a suit and, consequently, such a suit has to be dismissed in its entirety for omission to ask for the consequential relief of possession."
42. Therefore, in my view, the learned Judge has committed a serious error in granting an injunction, in the absence of a prayer of possession and in the absence of any acceptable evidence in the case on hand. The argument of the appellant in this regard requires admission by this Court and I do so in the case on hand.
Issue Nos. 6 and 8:
Proof of Properties/Title of Swamiji:
43. Issue N0.6 deals with regard to proof that the property did not belong to Shivaramananda Bharathi but belongs to Gosai Mutt.
44. Issue N0.8 is also with regard to the capacity of the swamiji in the matter of property. Material on record would reveal that the plaintiff according to the plaint averments purchased the property from Shivaramananda Bharathi. The evidence on record would reveal that PW2 is ignorant with regard to the details of the Swamiji.
45. O.S.No.390/90 in terms of Ex.Dl was filed by the defendant. The defendant has given a detailed evidence at page 109 of the paper book. Ex.D7 is the sale deed in the matter. He purchased this property. The signature of the swamiji is seen on his document. He has also produced various documents in this regard. In fact, he has referred to a suit in the year 1999 in the matter. He filed O.S.No.2499 and the same was compromised in terms of Ex.D23 and Ex.D24. An elaborate evidence has been provided by the defendant but none the less, unfortunately, the learned Judge without looking into the evidence has ruled that the evidence on this aspect is highly wanting. This finding in the light of copious evidence is not only unwarranted but unsustainable in law. At any rate, in the light of the earlier findings of the learned Judge with regard to proof of the plaintiff, nothing much need be said with regard to issues 6 and 8. The finding on this issue become redundant in the light of the finding of no title in favour of the plaintiff in the light of the findings of the learned Judge.
46. Issues 9 and 10 are wholly unnecessary in so far as this matter is concerned.
47. Relief is separately dealt with.
Issues 12 and 13:
Court Fee:
48. Issues 12 and 13 are relevant issues with regard to lesser Court fee. A common finding is given by the learned Judge. It is well settled that Court fee has to be decided since it goes to the route of the matter. It is seen from the plaint that the plaintiff has not chosen to enclose the valuation slip. He has chosen to purchase the property in the year 1987. DW1 admits that the value of the property is roughly about Rs. 4 lakhs. Learned Judge notices this admission and thereafter holds that the plaintiff is not alert of the implication of his admission. It is human tendency to agree with the property valued at the higher rate. When the witness steps into the witness box and he does not explain with regard to his answer to valuation, the findings of the learned Judge with regard to alertness or human tendency cannot be accepted in the given circumstances.
49. In fact, the officer has raised an objection with regard to court fee in terms of the original records. Order sheet dated 13.11.2001 would evidence his fact In the said order sheet, the learned Judge has ruled that "the deficit Court fee would be paid. Sufficiency of court fee kept open". When the matter of court fee was again raised, the learned Judge notices the evidence on record and thereafter at page 36 he holds that "the question of Court fee cannot be decided in a golden scale. If the plaintiff pays reasonably the sufficient court fee that serves the purpose of law. This finding of the learned Judge is shocking to me. There is no question of payment of reasonable sufficient Court fee. Court fee-is to be made over in terms of the Statute and unless necessary Court fee is paid, the Court cannot proceed in a manner known to law in terms of the Statute. Unfortunately, the learned Judge has chosen to accept the theory of reasonable sufficient court fee when there being any factual foundation, what so ever. Let me see as to how the learned Judge has chosen to fix the court fee in the case on hand. He notices at para 12 of the Judgment that a fresh memo of valuation is filed at the end of the arguments. He notices the submission of the learned Counsel for the plaintiff that the suit property of the revenue land and not a site formed by BDA or Housing Society. The total expansion of suit schedule property is 554 sq. ft. On that basis, the value would come to Rs. 300 per sq.ft. Thus along with the memo, deficit court fee has been paid. This was accepted by the learned Judge. The learned Judge notices that no evidence was placed by the plaintiff and he notices the submission of the Counsel for the plaintiff and he accepts the same as sufficient. The finding in this regard on the facts of this case requires my interference in the light of the casual approach by the learned Judge. Such casual approach to such a serious issue requires to be deprecated by this Court in the case on hand. The findings of the learned Judge in these circumstances is set aside.
50. This Court in AIR 1999 Kar 268 has ruled that where the plaintiff had filed the suit for declaration that ex-parte decree was not binding on him and for consequential relief of injunction and he had paid the Court fee as required under Section 24(c) and fd) on the objections raised by the defendant, the Trial Court merely passed an order stating that the valuation and the Court fee paid is not correct without stating what should have been the valuation and the Court fee that was required to be paid. The High Court held that such an order is not order at all as the Trial Court had not applied its mind. The Court had to record evidence on the question of valuation of the subject matter and determine the value of the property and Court fee payable thereon. If there is any deficiency, the Court would specify the quantum to be made given by the plaintiff.
This Judgment would fairly go to show that the- duty cast on the Court in the matter of court fee that duty has not been properly discharged by the learned Trial Judge in accepting the court fee in terms of the submission made by the learned Counsel for the plaintiff.
Relief:
51. Before concluding, I am satisfied that an overall reading of the Judgment would show that the learned Judge has not taken the case seriously and has chosen to give several findings contrary to the evidence on record. Learned Judge himself notices that there is no evidence but despite the same he answers the same in favour of the plaintiff. The entire approach of the learned Judge to say the least is totally unwarranted on the facts and circumstances of this case. There is no proper evidence with regard to maintainability of the suit; there is no proper evidence with regard to court fee; there is no proper evidence with regard to cause of action; there is no evidence with regard to possession, but despite the same, the learned Judge has chosen to grant an injunction relief in the case on hand. Grant of injunction is serious in nature. It affects the rights of the parties. The Court must be very careful in evaluating the pleadings and evidence in the matter of injunction. Unfortunately, this basic principle has not been properly noticed/ appreciated by the learned Judge in the case on hand.
52. In the given circumstances, I have reversed the several findings of the learned Judge in the case on hand. The grant of injunction by the learned Judge in these circumstances is set aside and the suit is dismissed in its entirety.
53. R.RA.No.386/2002 in terms of my earlier findings is allowed. The suit is dismissed in its entirety.
54. R.F.A.No.495/2002 is filed challenging the relief of declaration of title by the learned Judge. I have already accepted the findings of the learned Judge while considering the relief issues with regard to declaration in the earlier paragraphs. In these circumstances RF.A.No.495/2002 gets dismissed.
55. R.F.A.No.664/2002 is filed seeking for an order in the matter of lodging a complaint with regard to Ex.P2. Ex.P2 is the original of G.P.A. in favour of Sri Pawar. The appellant-defendant wants this Court to issue an order in the matter of taking action under Section 340 of Cr.P.C fabrication of false document and using them in judicial proceedings. In the given circumstances, I am satisfied that no case as such is made out in terms of the provisions of Section 340 of Cr.P.C. Moreover, I have rejected the plaint in the light of the various omission and commission pointed out by the plaintiff. In the given circumstances, I am satisfied that the said R.F.A requires no further order in the light of allowing of the connected appeal by me in the case on hand.
56. In the result, R.RA.No.386/2002 filed by the defendant is allowed. R.F.A.No.495/2002 filed by the plaintiff is dismissed. R.F.A.No.664/2002 is disposed of as unnecessary. The suit filed by the plaintiff in its entirety is rejected. The defendant-appellant is entitled for his costs throughout the proceedings.
57. Ordered accordingly.
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