Suppression Of Material Facts Ground To Refuse Temporary Injunction: Bombay High Court

Justice Sandeep Kumar C. More of the Aurangabad bench set aside a temporary injunction restraining the appellants from alienating the suit land in a property dispute as the respondents had suppressed prior litigation related to the dispute from the court.

The court referred to various judgements in which Supreme Court observed that discretion of the lower court should not be interfered with in an appeal. The court stated, "all these observations will be applicable to the party who has come with clean hands before the court. It is a principle of law that who seeks equity, must do the same."

There were three shares in a land situated at village Shepwadi. One Gulam Dastgir and Gulab Gouse had 25% each and one Ahmed Ali had half of the land. In 1958, Ahmed Ali sold his half i.e., the suit land to Umaji Satwaji Shep and Madhavrao Satwaji Shep. In 1963, Ghulam Dastgir filed a suit against Umaji and Madhav and others for partition of the land. In that suit, Ahmed Ali via written statement stated that he had sold his property to Umaji and Madhav via registered sale deed. Ahmed Ali died during the pendency of the suit. His daughters Azeemunisa Begum and Sayeda Begum along with other legal heirs were brought on record. They adopted the written statement filed by Ahmed Ali.

Azeemunisa and Sayeda filed another suit in 1994 for ownership over the suit property under a hibanama (gift deed). That suit was dismissed in 2016. Appeal against the judgement is pending before the District Judge (appellate court). In this appeal, the legal heirs of Gulam Dastgir, Azeemunisa and Sayeda filed applications for restraining the present appellants, i.e., legal heirs of Umaji and Madhav from creating third party rights over the suit property and alienating the same till final disposal of the appeal. The appellate court allowed the applications. The present appellants approached the High Court against this order.

Legal heirs of Azeemunisa filed another suit in 2001 which was decided prior to Azeemunisa's 1994 suit. In that suit, the court rejected the hibanama theory.

Counsel for the appellants contended that legal heirs of Azeemunisa and Sayeda had earlier filed applications before the District Judge for grant of status quo which was rejected. Hence there was a bar for the court to decide the subsequent applications for similar relief when earlier applications were rejected.

Counsel for the legal heirs of Azeemunisa and Sayeda pointed out that the applications for status quo filed by them were not decided on merits. Res judicata is not applicable to the applications to restrain the alienation as every such application can be made on fresh cause of action and by considering the change in circumstances.

The District Judge had specifically observed while rejecting the applications for status quo that the pending applications for restraining relief were to be decided on merit.

The court noted that principle of res judicata is not confined to section 11 of the CPC but also applies to different stages of the same proceedings. The court said that applications for status quo were not rejected on merits by the appellate court. Hence, there is no bar for the appellate court to decide the application for grant of temporary injunction, the court said.

The court said that such a temporary injunction can be granted only if prima facie case, balance of convenience, and irreparable loss are established by the applicant. Further, it has to be seen whether there was any suppression of material facts by the persons claiming the relief of temporary injunction against the present appellants.

The court noted that in the 1994 suit, Azeemunisa and Sayeda claimed that their father Ahmed Ali orally gifted the land to them and thereafter executed an agreement of memorandum of oral gift to that effect.

However, Azeemunisa and Sayeda did not raise any objection to Ahmed Ali's written statement in Gulam Dastgir's 1963 suit by mentioning the oral gift, the court observed.

The court perused the judgment in Gulam Dastgir's 1963 suit and noted that the civil court settled the right of Umaji and Madhav as the owners of the land. Hence, the High Court refused to entertain a criminal writ petition filed by legal heirs of Gulam Dastgir in 1977.

The court said that Azeemunisa and Sayeda were parties in the 1963 suit wherein a competent court crystallized the civil rights of Umaji and Madhav. Further, they have admitted that their father sold the land to Umaji and Madhav by adopting his written statemen in the 1963 suit. Azeemunisa and Sayeda suppressed the entire proceeding of that suit and even the observations of High Court about legal right of Umaji and Madhav over the land while filing the 1994 suit, the court stated.

The court said that this suppression of material facts needs to be taken seriously and Azeemunisa can even be thrown out from the proceedings for that reason.

The present respondents relied on many judgements which said that a temporary injunction has to be granted to restrain alienation of land during pendency of cases to avoid multiplicity of proceedings. Those judgements also observed that discretion of the lower court is not to be interfered with in appeal.

The court said that these observations will be applicable to the party who has come with clean hands before the court. The record indicates that ownership of Umaji and Madhav over the land was established twice before which remained unchallenged and attained finality. Azeemunisa gave a complete go-by to the proceedings while filing another suit knowing well that Umaji and Madhav were declared owners of the land by competent civil courts, the court stated.

Hence, the court did not find a prima facie case established by the Azeemunisa in these circumstances.

The court concluded that the appellate court wrongly restrained the appellants from alienating the land till decision of appeal.

Case no. – Appeal From Order No. 15 of 2021

Case title – Umaji s/o Satwaji Shep (Died) by L.Rs. and Ors. v. Gulam Mohmood s/o Gulam Dastgir (Died) By L.Rs. and Ors.

Citation- 2022 LiveLaw (Bom) 431