IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NO. 3702/2019 (GM-TEN) BETWEEN M/S. STREET SMART MEDIA SOLUTION NO.1258, ‘B’ WING, 14TH FLOOR MITTAL TOWERS, M G ROAD BANGALORE-560 001 REP BY ITS MANAGING PARTNER MRS. SAVITHA B M …APPELLANT (BY SRI SURESH S LOKRE, ADVOCATE) AND 1. THE MINISTRY OF DEFENCE REPRESENTED BY ITS SECRETARY NEW DELHI 2. ARMY WELFARE HOUSING ORGANIZATION, SOUTH HUTMENTS KASHMIR HOUSE, RAJAJI MARG NEW DELHI-110 011 ALSO OFFICE AT :
YANDAHALLI NEXT TO LAL BAHADUR SHASTRI NAGAR, VARUNA HOBLI MYSORE TALUK AND DISTRICT …RESPONDENTS THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDERS PASSED UNDER I.A.NO.1 OF 2019 IN WRIT PETITION NO.30706/2019 DATED 05.09.2019 AND RESTORE THE INTERIM ORDER OF STAY GRANTED IN THE AFORESAID WRIT PETITION.
THIS WRIT APPEAL COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellant.
2. The appellant is the writ petitioner. By the impugned order, the learned Single Judge has vacated the interim order granted by him on 23rd July 2019 and 30th August 2019. It is not in dispute that in a civil suit filed on 8th July 2019 by the appellant, the Trial Court by an order dated 17th July 2019 refused to grant ex-parte injunction restraining the respondents from holding further auction of the property subject matter of the writ petition. The writ petition was filed by the appellant on 20th July 2019 in which, the fact of filing of the civil suit and the order of rejection of the prayer for ex-parte injunction was suppressed. This is the main reason given by the learned Single Judge for vacating the interim relief.
3. The appellant participated in the e-auction of the schedule land. The appellant was accepted as the highest bidder. The appellant filed a writ petition praying for quashing of Annexure-A by which, the schedule land was again put to e-auction. The second reason why the learned Single Judge has vacated the interim relief is that as per the terms and conditions of auction, two post dated cheques for a sum of Rs.2.52 crores and 1.37 crores were issued by the appellant which were dishonoured.
4. The submission of the learned counsel appearing for the appellant is that though it may be true that the same interim relief which was sought by the appellant in the writ petition was prayed for in the suit and the prayer for grant of ex-parte injunction was rejected by the Trial Court, the appellant moved the learned Single Judge for grant of interim relief only after the suit was withdrawn. The learned counsel accepted that the fact of filing of the suit and the fact that the prayer for ex-parte injunction was rejected by the Trial Court were not pointed out in the writ petition filed on 20th July 2019. However, he relied upon a decision of the Apex Court in the case of S.J.S. BUSINESS ENTERPRISES (P)
LTD. vs STATE OF BIHAR AND OTHERS1. He submitted that the alleged suppression on which the learned Single Judge has relied upon is not a material suppression and unless there was a material suppression, that is no ground to deny the relief to the appellant in the writ petition. He invited our attention to what is held by the Apex Court in paragraphs 13 to 16 of the said decision. He submitted that the reasons why the appellant issued instructions for withholding the payment under the two post dated cheques were pointed out to the learned Single Judge. He further submitted that requisite documents were not furnished to the appellant and therefore, the appellant had to withhold the payment under the said two cheques.
5. We have carefully considered the submissions. It is an admitted position that the interim relief which was sought by the appellant by filing a writ petition under Article 226 of the Constitution of India was also sought in the suit filed by the appellant before filing the writ petition. It is an admitted position that the Trial Court refused to grant ex-parte injunction. It is also an accepted fact that these two facts were neither mentioned in the writ petition nor pointed out to the learned Single Judge when 1 (2004) 7 SCC 166 he was moved for the grant of interim relief. The Apex Court in the case of S.J.S. BUSINESS ENTERPRISES (P) LTD. (supra) was dealing with a case where filing of the civil suit was suppressed by the petitioner who filed a petition before the learned Single Judge of Patna High Court. The writ petition was dismissed by the learned Single Judge holding that the petitioner had suppressed the fact that it had filed a suit prior to the institution of the writ proceedings. The Apex Court was not dealing with a case where the same interim relief which was sought in the writ petition was sought before the Civil Court and was refused. Moreover, the Apex Court was dealing with an issue whether after filing a civil suit and after suppressing the fact of filing the suit, a writ petition can be entertained after the suit is withdrawn. The Apex Court was dealing with a situation where it was called upon to decide whether the writ petition could have been rejected only on the ground that the fact of filing a suit was suppressed though subsequently, it was withdrawn.
6. In the present case, the learned Single Judge was not concerned with the issue whether the writ petition should be entertained on the ground of suppression of material facts. The learned Single Judge was dealing with the question of granting discretionary relief of temporary injunction during the pendency of the writ petition. The learned Single Judge has not dismissed the writ petition filed by the appellant on the ground of suppression of facts.
7. When an interim relief is sought in a writ petition under Article 226 of the Constitution of India, if the petitioner suppresses the fact that a similar interim relief was sought in a civil suit and the Trial Court has refused to grant the similar relief, there is every justification for the writ Court to exercise discretion and reject the prayer for grant of interim relief. Writ jurisdiction under Article 226 of the Constitution of India is said to be a discretionary and equitable jurisdiction. In any case, when an equitable relief of temporary injunction is sought from the writ Court, the fact that a similar relief was sought from the Civil Court and was refused by the Civil Court and also the fact that refusal of such relief was suppressed from the writ Court are certainly sufficient to reject the prayer for interim relief. This is not a case where the appellant, by filing an affidavit or by amending the petition, pointed out the true and correct fact regarding refusal of similar relief by the Trial Court to the learned Single Judge. Even at the stage of praying for interim relief, the appellant could have brought the true and correct facts to the notice of the learned Single Judge. Moreover, in clause (b) of paragraph (V) of the writ petition, the appellant has pleaded that there is no other alternative or urgent remedy available to the appellant except filing a writ petition. The case made out in the writ petition was that the appellant had sought various documents of title from the respondents and without providing the documents of title, the notice at Annexure-A was issued of fresh auction.
8. According to us, the ground of suppression of material fact was sufficient to vacate the interim relief especially when the fact that a similar interim relief was sought before the Trial Court and the said relief was refused, was suppressed by the appellant. The other ground set out by the learned Single Judge is that two post dated cheques for a sum of Rs.2.52 crores and 1.37 crores issued by the appellant towards earnest money were dishonoured. Prima facie, it appears to us that there is no clause in the terms and conditions of auction that either the appellant could have refused to pay the balance amount within the stipulated time on the ground that documents of title were not supplied or that the appellant was entitled to extension of time.
We, therefore, concur with the view taken by the learned Single Judge when on the grounds set out in paragraph 7 of the impugned order, he vacated the earlier interim relief. There is no reason to interfere with the discretionary and equitable order passed by the learned Single Judge. Accordingly, the writ appeal is dismissed.
The pending interlocutory application does not survive and is accordingly disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv