Hon'ble Surendra Kumar, J.
(Delivered by Hon'ble Surendra Kumar, J.) Heard Sri Sharad Mandhyan, learned counsel for the plaintiffs-appellants and Sri U.K. Saxena, learned counsel for the defendant-respondent No. 1 and Sri Udai Chandani, learned counsel for the defendant-respondent No. 2.
This first appeal from order has been preferred by Mahendra Singh and Braham Pal Singh, plaintiffs-appellants against the judgment and order dated 24.12.2010 passed by Sri Jai Singh Pundir, Civil Judge (Senior Division), Gautam Budh Nagar in Original Suit No. 833 of 2010 (Mahendra Singh & another Vs. Senior Citizen Home Complex Welfare Society and another), by which the application for temporary injunction, 6C-2, filed by the plaintiffs-appellants was dismissed.
The brief facts of the case are that the plaintiffs-appellants filed Original Suit No. 833 of 2010 for permanent injunction for restraining the defendants-respondents from interfering in their possession over the Flat No. F-15, Senior Citizen Home Complex Welfare Society, Builders Area, Pocket-P-4, Greater Noida, District Gautam Budh Nagar (hereinafter referred to as the flat in dispute). In the suit, the plaintiffs moved an application under Order 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code (Paper No. 6C-2) along with affidavit 7C-2 on the same averments as made in the plaint. The averments made in the application for temporary injunction 6C-2 are that the defendant no. 1 is a registered Society. Sohan Lal, who was father of the plaintiff no. 1 Mahendra Singh, was a member of the Society having membership No. 624. Sohan Lal and defendant no. 1 executed an agreement on 25.11.1997 for allotment of Type -1 flat in Residential Complex Pocket-P-4, Greater Noida, Gautam Budh Nagar raised by the Society defendant no. 1. The aforesaid Sohan Lal made payment of all the installments by the year 2000 in pursuance of the agreement executed on 25.11.1997 for allotment of Unit Type-1 flat. Accordingly, Sohan Lal was allotted the flat in dispute in the lottery and was handed over its possession on 29.9.2000. On this basis, Sohan Lal claimed to be owner and in possession of the flat in dispute. The plaintiff no. 2 Braham Pal Singh being husband of the real sister of Sohan Lal (Phoopha) along with his family, was allowed to reside in the flat in dispute. Since beginning of the year 2001, the plaintiff no. 2 along with his family has been residing in flat in dispute. The society, defendant no. 1 has been providing all the facilities and amenities like supply of water, electricity and maintenance etc. Thus the plaintiff no. 1 claimed peaceful possession of his Phoopha, plaintiff no. 2 and family of plaintiff no. 2 on his behalf over the flat in dispute. It is averred that Smt. Dropadi Amar, defendant no. 2 came over the flat in dispute on 3.8.2010 and just then the defendant no. 2 claimed to be allottee of the flat in dispute and the defendants threatened to evict the plaintiffs from the flat in dispute in an illegal manner.
The defendant no. 2 Smt. Dropadi Amar by way of filing objections, 16C-2, along with counter affidavit 17C-2 averred that the flat in dispute was allotted to her and the plaintiffs had in an illegal way taken possession of the flat in dispute. Since the plaintiffs are unlawful occupants of the flat in dispute, they are not entitled to obtain any injunction against the true owner. It has further been averred in the objections that the plaintiffs had not come to the court with clean hands and filed the said suit concealing the true and real facts. They are not entitled to get the relief from the court. The defendant no. 2 has further averred that the document dated 29.9.2000, upon which the plaintiffs claimed to have obtained possession of the flat in dispute, is prima-facie a fabricated and forged paper. The plaintiffs had not paid the complete allotment money. The plaintiffs claimed allotment in their favour on 29.9.2000 and on the same day, they claimed to have obtained possession of the flat in dispute, which is not practically possible. According to defendant no. 2, she applied by way of presenting application No. 11075 on 15.10.1997 to the Society defendant no. 1. On the basis of her application, she executed an agreement with the Society defendant no. 1 on 25.11.1997. The Society defendant no. 1 allotted membership number 596 to the defendant no. 2 on 28.11.1997. The Society defendant no. 1 made a draw for the said flats on 7.6.2000 at India Habitant Center, Delhi and then the defendant no. 2 was allotted flat no. F-15 in the said Society. Thus, the defendant no. 2 was allotted the flat in dispute namely F-15. According to defendant no. 2, she had deposited a sum of Rs. 8,20,000/- through cheques between 15.10.1997 to 29.9.2000. The Society defendant no. 1 after receiving whole amount, issued receipts of the payment made by the defendant no. 2. When the actual and physical possession of the flat in dispute was to be handed over to the defendant no. 2, she could not obtain the same as she was in America at the relevant time. The defendant no. 2 is Non-Resident Indian and is aged about 80 years. The plaintiffs entered into an unauthorized possession of the flat in dispute taking advantage of the absence of the defendant no. 2. When the defendant no. 2 tried to contact Surendra Uppal, the Secretary of the Society defendant no. 1 for the purpose of evicting the plaintiffs, she came to know that Sri Uppal had absconded due to apprehension of his arrest in some criminal cases. Due to absence of Sri Uppal for a long time, the plaintiffs in collusion with the employees of the Society have succeeded in getting prepared the forged and fabricated documents relating to allotment/possession of the flat in dispute. Thereafter the defendant no. 2 moved an application before the Deputy Collector, Sadar, Gautam Budh Nagar, who after an inquiry and inspection of all the concerned flats, found that the plaintiffs had illegally removed the demarcating wall between flat Nos. 15 and flat nos. 16 and illegally turned two flats into a big one. The Deputy Collector convened a meeting of all the concerned allotees, builders etc. The plaintiffs by way of filing rejoinder affidavit 52C-2 repeated the same facts saying that the allotment of the flats was scheduled to be made on 13.7.2000, which due to some reasons did not take place and draw was made on 29.9.2000. The plaintiffs in the rejoinder affidavit have challenged the authority of the Deputy Collector saying that the Deputy Collector had no legal right to convene the meeting regarding the disputed flats of the allottees etc. and also to take any action. The plaintiffs have thoroughly been claiming themselves to be owners and in legal possession of the flat in dispute.
The learned trial court dismissed the application for temporary injunction 6C-2 on the following main grounds;
(1)That the date on which Sohan Lal became member of the Society and also the date on which he gave application intending allotment therein, could not be clarified by the plaintiffs.
(2) That the agreement between Sohan Lal and the Society was executed on 25.11.1997 whereas he was allotted membership on 28.11.1997.
(3) That the signatures of Sohan Lal were made at the place meant for signatures of witness no. 2 and the signatures of Sohan Lal were not found at the relevant place of the agreement dated 25.11.1997.
(4) That the agreement between Sohan Lal and the Society was executed first and membership to him was subsequently allotted.
(5) That the letter of possession regarding flat in dispute was prepared on 29.9.2000 and possession was delivered to Sohan Lal on the same date. The draw of lots was also held on 29.9.2000. The delivery of possession of the flat in dispute on the very day of completion of draw was not at all possible because the allottees are issued letters intimating them the fate of draw and requiring them to be present on the specified date for getting possession.
(6) That the defendant no. 2 had paid a sum of Rs. 8,20,000/- to the Society through cheques between 15.10.1997 to 9.10.1000.
(7) That the defendant no. 2 had already acquired citizenship of United States of America.
(8) That the Registrar, Societies had cancelled the registration of the Society defendant no. 1 and the Deputy Collector in order to maintain law and order had to convene a meeting of all concerned on 5.8.2010 and then suspicion about the genuine allotment came to light.
(9) That the the defendant no. 2 showing her intention to purchase the flat in the Society gave application, entered into an agreement with the Society and made full payment through cheques as per terms and conditions of the agreement dated 25.11.1997, she was legally entitled to get the flat in dispute in the said Society and at the relevant time of getting possession, she was in United States of America and in spite of her being Non-Resident Indian and senior citizen, she could not obtain possession of the flat in dispute due to her absence in India.
(10) That the aforesaid Sohan Lal had died on 17.10.2006 and after his death, his son plaintiff no. 1 is claiming his ownership over the flat in dispute as legal heir. The plaintiff no. 1 has claimed constructive possession over the flat in dispute through his Fufa, plaintiff no. 2. It is in dispute as to which of the plaintiffs is in real possession of the flat in dispute. The receipts of the payment dated 11.8.2009, 21.7.2009 and 10.6.2009 were issued in the name of Sohan Lal, though he had died three years back. If Sohan Lal had died in the year 2006, the plaintiff no. 1 could have get his name entered in the records of the Society regarding flat in dispute but he did not prefer to do so and preferred to get the receipts issued in the name of his father Sohan Lal, not only this, some of the receipts issued by the Society are in the name of the plaintiff no. 2.
(11) That the said Society was fully dedicated to the cause of senior citizens and further preservation of their rights. If Sohan Lal remained alive till 2006, then he was never in possession of the flat in dispute. It is not clear from the material on record that during his life time Sohan Lal was in actual and physical possession of the flat in dispute. The possession of the defendant no. 2 over the flat in dispute cannot be said to be legal one and the case of the plaintiffs is against public policy and is contrary to the objects for which the Society was constituted.
(12) That the plaintiffs have no prima-facie case and even the balance of convenience is not in their favour. In case temporary injunction is not granted, there is no possibility for the plaintiffs to suffer irreparable loss.
The first submission of the learned counsel for the plaintiffs/appellants is that the plaintiffs proved the prima facie case, balance of convenience, irreparable injury in their favour even then the trial court has dismissed the injunction application moved under Order XXXIX Rule 1 and 2 CPC vide impugned order on the ground that it is not covered within the purview of these provisions. On this ground, the learned counsel for the plaintiffs/appellants has assailed the impugned order as being without jurisdiction, illegal and perverse. The learned counsel for the plaintiffs/appellants while elaborating on this point has further submitted that the conditions required for granting temporary injunction are the prima facie case, balance of convenience and irreparable injury whereas inspite of the existence of all these three conditions, the learned trial court has rejected the application on the ground that the allotment made in favour of the plaintiffs/appellants was against the public policy. According to the learned counsel for the plaintiffs/appellants, if the allotment made in favour of the appellants was against the public policy then this allotment ought to have been cancelled by the relevant authority and till the allotment order was surviving, it was fit case for grant of interim or temporary injunction.
The learned counsel for the plaintiffs/appellants has further argued that since defendant/respondent no.2 failed to prove that the flat in dispute was allotted to her or she was ever given possession and in case the possession is taken by the defendants, the plaintiffs/appellants would suffer irreparable injury. According to the learned counsel for the plaintiffs/appellants, the defendant/respondent no.2 was not alloted Flat No. F-15 (flat in dispute) and was never in possession thereof. The defendant/ respondent no.2 has been trying to take forceful possession of the flat in dispute of which the plaintiffs/appellants are in possession since 2000. According to the learned counsel for the plaintiffs/appellants, the flat in dispute was alloted to Sohan Lal ( father of the plaintiff/appellant no.1) and Sohan Lal was given possession thereof. He has assailed the finding of the trial court on the ground that source of income by which consideration money was paid by Sohal Lal could not be disclosed.
The last leg of the contention of the learned counsel for the plaintiffs/appellants is that if there was any irregularity in the allotment of the flat in dispute committed by the society defendant no.1, the plaintiff/appellant no.1 was not responsible for the same and unless the allotment is cancelled, the defendant/respondent no.2 has no right to interfere with the peaceful possession of the plaintiffs over the flat in dispute.
From the records, we find that as per agreement dated 25.11.1997, the lease deed was executed between society through its Secretary Shri Surendra Uppal and Sri Sohan Lal father of plaintiff/appellant no.1 Mahendra Singh. The cost of the flat in dispute was Rs.8,20,000/-. Second party (alleged allottee) Sohan Lal agreed to the cost of this flat and deposited Rs.70,000/- as booking amount. It was also agreed that second party shall pay a sum of Rs.7,00,000/- in ten quarterly instalments of Rs.70,000/- each to the first party only on receipt of the information from the first party of their completing the task of each quarter as given in the brochure. It was also condition in the agreement that second party shall make all the payment through cheque, pay order or draft payable at Delhi and on completion of the said unit, the first party shall communicate to the second party to have a conveyance deed registered in his or her favour on making payment of balance sale consideration of Rs.50,000/- within a period of one month. All the expenses of execution of conveyance deed shall be paid and borne by second party and possession will be delivered to the second party. It was also stipulated that the first party will complete the said unit within a period of two and half years (thirty months) from the date of its registration by the second party. The second party shall not sublet the said unit to any person except with prior written consent of the first party and then only second party shall allow senior citizens to occupy the said unit by himself/herself or his/her family.
The Secretary of the society sent a letter dated 21.12.2001 to the defendant no.2, Smt. Dropadi Amar with membership No.596 regarding Flat No.F-15 requesting her to deposit registration fee because the society had already alloted her the said Flat No.F-15 in the said society and the said flat needed to be registered with the State Government by way of paying stamp duty. Since the State Government had asked the society to intimate to the allottees for the execution of the lease deed of their respective alleged flats, registration of the flat is essential to become lawful owner. The separate calculation sheet indicating the amount to be deposited with the society to enable it to purchase the stamp duty and do other formalities, were attached with the letter dated 21.12.2001.
The Sub-Divisional Magistrate, Sadar, Gautambudh Nagar, on receiving the complaint regarding allotment in the said society convened a meeting of the said society and the said allottees on 5.8.2010 and heard all concerned and perused their respective documents. As per report dated 7.8.2010, Sohan Pal and Smt. Dropadi Amar applied on separate application form under separate file for the allotment of the flats in the said society. As per society, draw was made on 7.6.2000 at India Habitant Center, Delhi. The society did not produce any document of the possession. There is a clear finding of Sub-Divisional Magistrate, Sadar, Gautambudh Nagar, in his report that it was Braham Pal Singh, plaintiff/appellant no.2 who had removed the wall intervening Flat No.F-15 and Flat No.F-16 and Braham Pal Singh converted these two flats into one without permission from the society or competent authority. Braham Pal Singh was again directed by Sub-Divisional Magistrate, Sadar, Gautambudh Nagar to produce the document relating to the flat in dispute in the meeting scheduled to be held on 7.8.2010. The Sub-Divisional Magistrate, Sadar, Gautambudh Nagar, in his report had clearly concluded that the said society made twice draw of the same flat showing allotment of the same flat to the two allottees and on this basis the Sub-Divisional Magistrate, Sadar, Gautambudh Nagar found that two draws of the same flat and the allotment of the same flat to the two different persons had created doubt in the genuineness and veracity of the draw in question. The Sub-Divisional Magistrate, Sadar, Gautambudh Nagar after making proper inquiry into the matter came to the conclusion that in the aforesaid circumstances new allottees be restrained from taking possession of the so-called allotted flats in the said society and then all the record relating to the said society in respect of the allotment, payment, account book, bank account etc. of the society were ordered to be seized with the direction that the news about seizing of the record of the said society be published in the newspapers. These relevant facts find place in the two reports dated 4.8.2010 and 7.8.2010 prepared by Sub Divisional Magistrate/Up Ziladhikari. Copies of which were sent to the District Magistrate/Collector, Gautambudh Nagar and S.S.P. Gautam Budh Nagar and Smt. Dropadi Amar defendant/ respondent no.2 and Braham Pal Singh plaintiff/appellant no.2.
According to the counter affidavit of Sri Surendra Uppal, Secretary of the said society, after filing of original suit, no notice was ever served upon the society till date and the society came to know about pendency of the said suit only through Smt. Dropadi Amar defendant/respondent no.2. The society has denied payment of the entire amount by Sohan Lal father of the plaintiff/appellant no.1 with regard to the flat in dispute. Sohan Lal was asked by the society vide letter dated 20.7.2000 to deposit the entire dues as draw of lots in respect of the flats booked by the various members was going to take place very soon and inspite of the reminder sent by the society, Sohan Lal did not deposit the entire dues of the society. Consequently, the name of Sohan Lal was not included in the draw of lots and flat No.F-15 (flat in dispute) was alloted to Smt. Dropadi Amar defendant/respondent no.2 and thereafter the entire amount deposited by Sohan Lal was refunded to him deducting 10% as per byelaws of the society. Since the society which was defendant no.1 in the original suit was not served with the notice, the society could not file any objection or written statement in the original suit pending in the trial court. It has further been made clear by the society through this counter affidavit that after draw of lots which took place on 29.9.2000 in which flat in dispute was allotted to Smt. Dropadi Amar defendant no.2, she did not turn up to take physical possession of the flat while the society duly prepared a letter of possession in her favour.
According to the society, the society duly acknowledged and admitted the receipt of the payment from Sohan Lal on 6.11.1997, 16.3.1998, 11.5.1998, 14.11.1998. According to the society, the documents namely receipts dated 17.5.1999, 21.8.1999, 27.12.1999, 30.10.2000 and 29.2.2000 are wholly forged and no such amount was received by the Society. The society has supported non deposit of the amount calling some receipts as forged on the basis of notice dated 20.7.2000, by which fourth instalment was demanded by the society from Sohan Lal. According to the society, receipts regarding payment of some amount and also letter of the possession said to be issued by the society in favour of Sohan Lal are forged and fabricated one. According to the society, since name of Sohan Lal was not included in the draw of lots due to non payment of the dues held on 29.9.2000, there was no question of issuing letter of possession to Sohan Lal on the said date. According to the Society, Sub-Divisional Magistrate, Sadar, Gautambudh Nagar during verification on spot found that the plaintiffs were not only in illegal possession of the flat in dispute but also in illegal occupation of Flat No. F-16 and included the same in flat No. F-15 by demolishing intervening wall. According to the society, documents prepared in favour of Smt. Dropadi Amar, defendant-respondent no. 2 are genuine documents. She is true allottee. The society has further made it clear through counter affidavit that the scheduled date for draw of lots was 13.7.2000. On the said date, a number of members had not deposited the dues of the society, hence the same was postponed to 29.9.2000 in order to give opportunity to the defaulting members to pay their dues and subsequently those members who were defaulters in payment of complete dues, were not included in draw of the lots including Sohan Lal and thereafter entire deposit made by such defaulting members was returned after deducting 10%.
According to the Society, the plaintiffs-appellants herein are unauthorized occupants in the aforesaid Flat No.F-15 (flat in dispute) as well as Flat No. F-16. The society has clearly denied allotment of any flat in the said society to Sohan Lal and further denied handing over of the possession of the said flat to Sohan Lal claiming the said letter of possession and receipts of payment as forged and fabricated.
Smt. Dropadi Amar defendant-respondent no. 2 through her supplementary counter affidavit has stated that the society had lodged a first information report against plaintiffs-appellants alleging that they had encroached/trespassed in Flat No. F-15 and Flat No.F-16 by demolishing the intervening wall. She has also stated that she is Non Resident Indian aged about 85 years and plaintiffs-appellants are trespassers who had forcibly taken the possession of the flat in dispute without any right or title over the same. Copy of the said F.I.R. lodged against the plaintiffs has been filed along with supplementary counter affidavit. A letter was issued by the District Magistrate/ Collector, Gautam Budh Nagar requiring all the allottees of the society to produce the letters of allotment and possession and other documentary evidence before the Sub-Divisional Magistrate, Sadar, Gautambudh Nagar. The district administration of Gautam Budh Nagar had to interfere in the matter as anti-social elements like plaintiffs were creating law and order problem in the said society by creating anarchy and entering into unauthorized possession of the same flat which was truly allotted to genuine person like Smt. Dropadi Amar, defendant/respondent no. 2.
There are three ingredients for granting temporary injunction:-
(1) Prima facie case of the plaintiff.
(2) Balance of convenience and (3) Irreparable loss/injury.
The plaintiff for obtaining injunction must establish his prima facie case, balance of convenience and must prove that he will suffer irreparable loss in case injunction is refused.
If any one of these ingredients does not find favour with the plaintiff then he is not entitled to obtain an order of temporary injunction.
In Shiv Nath Vs. District Judge, reported in 1991 A.W.C. page 301, this Court observed that if a person fails to make out any one of the three ingredients, he cannot be granted temporary injunction. The Court does not help a person who himself is guilty of doing wrongful things. The Court further observed that trespasser in possession is not entitled to obtain any temporary injunction against true owner.
A Division Bench of this Court in the case of Sri Kailashpat Sugar Industries Vs. Smt. Kamla Gupta, 1990 (1) C.L.J., 19, laid down the aforesaid three ingredients for granting temporary injunction in favour of a person seeking relief of temporary injunction.
The Hon'ble Apex Court in the case of Union of India Vs. Era Education Trust, 2000 Alld.L.J. 958 (S.C.), observed that even if Order 39 of the Civil Procedure Code would not be applicable at the stage of granting interim relief in a petition under Article 226 or 227 of the Constitution of India but at the same time, various principles laid down under Order 39 of the Civil Procedure Code for granting ad-interim or interim reliefs are required to be taken into consideration.
In the case of Nigam Das Vs. Additional District Judge Ist, Jaunpur 2000 (1) A.R.C., 617, this Court held that grant of injunction under Order 39 Rule 1 and 2 of the Civil Procedure Code is a discretionary relief and exercise thereof is subject to the following tests-
(i)that there is a serious disputed question to be tried in the suit and that on the facts before it, there is a probability of being entitled to the relief asked for by the party.
(ii) that the Court's interference is very necessary to protect the party from the species of injuries. In other words, an irreparable injury or damage would ensue before the legal right in established at the trial, and
(iii) that the comparative hardship or mischief or inconvenience which is likely to occur for withholding the injunction will be greater than that would be likely to arise from granting it.
In Rahmullah Vs. District Judge, Siddharth Nagar reported in 1999 Revenue Decisions Vol. (90) page 1, this Court observed that before any injunction is granted, the question in dispute need not be examined or its decision anticipated. To make out a prima facie case, it is not required that the plaintiff should establish his title but it is enough if he can show that he has fair question to raise as to the existence of the right alleged and the property in the meantime be preserved in status quo.
In the case of Laxmi Vs. Rajender, 2000 (40) A.L.R. 487, this Court held that injunction under Order 39 of the Civil Procedure Code can be granted only when the party is able to establish a prima facie case. It is also not relevant that order of status-quo will not prejudice the defendant or that the defendant could not be aggrieved if the order of status-quo is passed.
The Hon'ble Supreme Court in the case of Hanuman Thappa Vs. Muninarayanappa, 1997 (88) R.D. 41 (S.C.), laid down an important law on the point that the injunction under Order 39 Rule 1 and 2 of the Civil Procedure Code cannot be issued against a lawful owner of the property.
The Hon'ble Apex Court in Dalpat Kumar Vs. Prahlad Singh reported in AIR 1993 S.C., 276 : 1992 AIR SCW 3128, observed in paragraph 5 as under:-
"5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is 'a prima facie case' in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title, which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bonafide, which needs investigation and a decision of merits..................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. The third condition also is that 'the balance of convenience' must be in favour of granting injunction..........................."
The Hon'ble Apex Court in the case of S.P. Chengalvaraya Naidu (Dead) by L.Rs. Vs. Jagannath (Dead) by L.Rs. reported in AIR 1994 SC, 853 in paragraph 5 observed as under:-
"5..........................The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."
The principles for grant of temporary injunction and matters to be taken into consideration at the time of deciding the interlocutory application had been laid down in Israil Vs. Samser Rahman, AIR 1914 Cal 362 and Gangubai Bablya Chaudhary Vs. Sitaram Bhalchandra Sukhtankar.
The Hon'ble Apex Court in Mandali Ranganna Vs. T. Ramchandra (2008) 11 SCC, 1, observed that while considering an application for grant of injunction, the court has not only to take into consideration the basic elements regarding existence of a prima facie case, balance of convenience and irreparable injury, it has also to look into consideration the conduct of the parties since grant of injunction is an equitable relief. The observation made in the case of Mandali Ranganna (supra) was reiterated/approved by the Hon'ble Apex Court in Kishorsinh Ratansinh Jadeja Vs. Maruti Corporation, reported in (2009) 11 SCC, 229. The Hon'ble Apex Court in Narendra Kante Vs. Anuradha Kante and others, (2010) 2 Supreme Court Cases, 77 has observed that where question of balance of convenience and irreparable loss and injury is considered in favour of respondent-defendant, denial of interim injunction in favour of appellant-plaintiff is completely justified.
Hon'ble Apex Court in the case of Kashi Math Samsthan and another Vs Shrimad Sudhindra Thirtha Swamy and another (2010) 1 SCC 689, has observed in paragraph no.16 which is quoted hereinbelow:
"It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court."
Now, we deal with the arguments advanced by the learned counsel for the parties one by one.
It is evident from the perusal of the averments made in the counter affidavit filed on behalf of the respondents and documentary evidence available on record that Sohal Lal was asked by the society vide letter dated 20.7.2000 to deposit the entire dues before the draw of lots of the flats of the society. Inspite of sending the reminder by the society to Sohan Lal, he did not deposit the entire dues of the society, consequently the name of Sohan Lal was not included in the draw of lots and Flat No.F-15 (flat in dispute) was allotted to Smt. Dropadi Amar and thereafter the entire amount deposited by Sohan Lal was refunded to him after deducting 10% as per byelaws of the society.
The learned counsel for the defendants/respondents taking us through counter affidavit filed in this Court, has submitted that after draw of the lots which took place on 29.9.2000, the flat in dispute was allotted to Smt. Dropadi Amar, defendant/respondent no.2 and she was issued the letter of possession but she did not turn up to take physical possession of the flat as she was in U.S.A. at the relevant time. The society/defendant-respondent no.1 has duly acknowledged and admitted the receipt of the part payment from Sohan Lal made in the year 1997-98 submitting that some of the receipts showing payment in the year 1999-2000 are wholly forged as no such amount was received by the society.
According to the learned counsel for the defendants/ respondents, the letter of possession said to be issued by the society in favour of Sohan Lal is also forged and fabricated because the name of Sohan Lal was not included in the draw of lots due to non-payment of the dues, hence there was no question of issuing letter of possession in favour of Sohan Lal on 29.9.2000. The learned counsel for the defendants/respondents has elaborated this point drawing our attention to the counter affidavit filed on behalf of the respondents stating that since the name of Sohan Lal was not included in the draw of lots held on 29.9.2000, there was no question of allotment of any flat in the society in favour of Sohan Lal, hence the letter of possession in favour of Sohan Lal could not be issued.
Learned counsel for the society/respondent no.1 has further submitted that the documents prepared in favour of the defendant/respondent no.2 are genuine and she is true allottee. These facts and circumstances are sufficient to conclude that the plaintiffs have failed to establish the prima facie case in their favour so as to entitle them to get interim or temporary injunction. Sohan Lal was not allotted the flat in dispute and possession thereof was not handed over to Sohan Lal. If the plaintiffs are in possession of the flat in dispute as claimed by them, they are unauthorized occupant and trespasser of the flat in dispute. According to the catena of the decisions referred to above, the injunction cannot be granted in favour of the trespasser or illegal occupant against the true owner. Since the defendant/respondent no.2 Smt. Dropadi Amar was real allottee of the flat in dispute hence the plaintiffs are not entitled to the grant of any kind of the injunction over the flat in dispute.
In view of the facts and circumstances of the case discussed above, the balance of convenience is also not in favour of the plaintiffs/appellants but is clearly in favour of the defendants-respondents. Since the flat in dispute was not allotted to Sohan Lal, father of the plaintiff-appellant no.1, no irreparable loss or injury is likely to be suffered by the plaintiffs/appellants in case no interim or temporary injunction is granted. It is necessary for the Court to curb this tendency of making unauthorized occupation or encroachment like the present case. The plaintiffs have entered into unlawful possession of the flat in dispute without any title or documentary evidence and such persons should not be granted protection by the Court.
We have no hesitation to say that the plaintiffs/appellants have not come to the Court with clean hands. They have just come on the basis of their possession over the flat in dispute. Their possession can not be said to be lawful and authorized as they are not supported by any genuine documentary evidence. They have no title or right over the flat in dispute. Sohan Lal, father of the plaintiff/appellant no.1 became defaulter in payment of the required sum and inspite of the reminder, he did not pay the same. Consequently, the name of Sohan Lal was not included in the list of the draw of lots of the said society. Since his name was not included in the said list, there was no question of the allotment of any flat in the said society in favour of Sohan Lal. Since the proceedings in the trial court are going on, it is not proper for us to go into details about the genuineness of the documents adduced by the plaintiffs/appellants in the trial court. We hold that since the plaintiffs/appellants have not come with clean hands in the Court, they are not entitled to any kind of injunction over the flat in dispute against the defendants/respondents.
We may however observe that any findings recorded herein shall not prejudice any of the parties and the suit shall be decided in accordance with law on the basis of material and evidence on record which may be adduced by the parties.
In view of the above discussions, we are of the opinion that the impugned order is perfectly just, legal and is based on correct appreciation of the evidence and requires no interference by this Court at this stage. The First Appeal From Order fails and is dismissed.
No order as to costs.
Dt/-14.11.2011 Rmk/rkg.