Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

reported/published in http://judis.nic.in/judis_andhra/filename=9747

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE              

C.M.A.No.54 of 2013

01.04.2013

Peta Radha Reddy and another

C.V. Manoharan and others

Counsel for the appellant: Sri Dammalapati Srinivas

Counsel for respondent No.1: Sri K. Saikrishna Mohan Rao

<Gist :

>Head Note :

?Citations:

JUDGMENT : (Per Hon'ble Sri Justice LNR,J)

The 1st respondent herein filed O.S.No.101 of 2011 in the Court of III
Additional District Judge, Tirupati against the appellants and respondents 2 to
5 herein, for the relief of perpetual injunction in respect of the suit schedule
property, a hotel at Srikalahasti, Chittoor District.  He pleaded that the land
on which the hotel was constructed was owned by the appellants and respondents 2
and 3, and his wife by name Saroja, and all of them gave the property on lease
to M/s. Swarna Restaurant Private Limited, 4th respondent herein, under a
document dated 17-04-2002.  The 1st respondent further pleaded that the hotel
was given on lease to him under a document dated 01-01-2005 upto 31-12-2031 on a
rent of Rs.1,00,000/- per month.  Alleging that the appellants and respondents
2, 4 and 5 were interfering with his possession and enjoyment, he filed the
suit.  He has also filed I.A.No.381 of 2011 under Order 39 Rules 1 and 2 CPC.
The Andhra Pradesh State Financial Corporation, Tirupati, 5th respondent herein,
which is said to have advanced finances, was impleaded as defendant No.6 in the
suit.

The appellants filed a counter in the I.A.  They pleaded that the Managing
Director of the 4th respondent-company is one Smt Anuradha and the so-called
lease obtained by the 1st respondent is untenable in law.  It was stated that
basically the document is inadmissible since it was not registered, though it is
said to have been executed for a period of about 25 years.  Another plea raised
by the appellants was that it was typed on a stamp paper said to have purchased
from a person who died long back.  The authority of the person, who is said to
have executed the document, was also questioned.  The trial Court allowed the
I.A through its order, dated 02-01-2013.  The same is challenged in this appeal.

Sri D. Srinivas, learned counsel for the appellants submits that the 1st
respondent was not consistent in his stand and resorted to the fabrication of
several documents.  He submits that taking advantage of the fact that his wife
was one of the signatories to the lease deed executed in favour of the 4th
respondent, in the year 2002, he manipulated the entire issue and sought to
occupy the property.  He further submits that the trial Court has placed a
totally distorted interpretation on the affidavit filed by Smt Anuradha, the
Managing Director of the 4th respondent and it was not clear as to who was the
Managing Director of the 4th respondent either at the time, when the so-called
lease deed was executed or when the order was passed.  He submits that the
document relied upon by the 1st respondent is not only inadmissible, but is also
fabricated, on the face of it.

Sri K. Sai Krishna Mohan Rao, learned counsel for the 1st respondent on the
other hand submits that the trial Court recorded a finding as to prima facie
case and balance of convenience in favour of his client and the same does not
warrant interference.  He further submits that one Smt Saroja became the
Director of the company at a later point of time and it was under her guidance,
that a resolution was passed leading to execution of the lease deed.  He also
submits that the various objections raised by the appellants as to legality of
the document need to be examined in detail at the trial.  It is also stated that
even if the document is inadmissible, it can be taken into account, in relation
to the question of possession.

The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property.  He has also filed an application under Order 39 Rules 1 and 2 CPC.  Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.

Before the trial Court, on behalf of the 1st respondent Exs.P.1 to Ex.P.49 were
filed and on behalf of the appellants herein Exs.R.1 to R.3 were filed.  The 4th
respondent herein filed Exs.R.4 to R.12.

It is a matter of record that the land on which the hotel was constructed, was
held by five partners including the wife of the 1st respondent.  
The lease deed
dated 17-04-2002 executed in favour of the 4th respondent was marked as EX.P.2.
A perusal of the same discloses that one Smt. Anuradha, was the Managing
Director of the 4th respondent company and the transaction was finalized with
the participation of one of its directors by name Murugananda Raju.
Being a
private limited company, the 4th respondent has every right to adjust its
affairs and there is every likelihood of change in the composition of its Board
of Directors.

The 1st respondent claimed the rights over the property as a lessee under an
agreement of lease, dated 01-01-2005, which was not received in evidence,
because it was not registered.
The same is filed as one of the documents before
this Court.
A perusal of the same discloses that it was executed in favour of
the 1st respondent, by Sri Murugananda Raju, in his capacity as Director.
However, in the course of arguments, it was urged by the 1st respondent that his
wife Saroja was the Managing Director and on the basis of authorization given by
her, lease deed came to be executed.  
The questions as to whether the lease
deed was properly stamped and whether the stamp paper on which it was typed can  be said to have been procured through proper source, need to be dealt with at the stage of trial.

The appellants strongly objected to the very execution of the so-called lease
deed in favour of the 1st respondent.  
According to them, it was not executed by a competent person.
 Obviously to meet that contention, the 1st respondent filed
the affidavit of Smt Anuradha, which reads :

"1. I am deponent herein.
2. I humbly submit that I am Managing Director of M/S. Swarna Restaurant (p)
Ltd., Srikalahasti.  I came to know that Sri C.V. Manoharan filed the above suit
basing on the alleged un-registered lease deed dated 01-01-2005 as if the said
lease deed is executed in pursuance of the alleged Resolution dated 01.12.2004
as if duly signed by the Board of Directors showing as if I am also one of the
alleged signatories.  In fact no such Resolution dated 01-12-2004 was passed and
I never put my signature in the said Resolution.  The plaintiff C.V. Manoharan
was once the Manager having maintained the Hotel, he created those documents for 
the purpose of filing of this case to have wrongful gain.  I reserve my right to
take appropriate legal steps at the appropriate stage against him.  The facts
stated above said are true and correct."

From this, it is clear that Smt Anuradha asserted that she continues to be the
Managing Director of the 4th respondent- company, she did not authorize anyone
and the so-called resolution or arrangement leading to lease of the property is
a fabricated one.
The trial Court, however, gathered a totally different impression from the affidavit.  
In Paragraph No.22 of its order, the trial Court
made the following observation :

22. "In the counter filed by 2nd respondent, 
it is mentioned that M/s.Swarna
Restaurant Pvt. Ltd., was managed by 
T. Anuradha as Managing Director of M/s. Swarna Restaurant Pvt. Ltd., and it
leased out the hotel and lodge to M. Murugananda Raju who is one of the
directors of the company.  
Further according to the respondents, Murugananda
Raju is a lessee and lease period is till 2021.  
Therefore, according to
respondents 1 to 4 it was T. Anuradha that was the Managing Director of
M/s.Swarna Restaurant Pvt. Ltd. 
 The said
T. Anuradha filed third party affidavit before this court stating that on 01-01-
2005 there was a Board meeting at their Registered Office, 46/49, Car Street,
Srikalahasti at 2.30 P.M.  
Further it is stated in the third party affidavit
filed by
T. Anuradha that in the said meeting herself and other Directors passed a
resolution in favour of petitioner in the place of then lessee cum Director P.
Murugananda Raja. 
 It is further stated in the third party affidavit filed by T.
Anuradha that petitioner has taken possession of the petition schedule property
as a lessee and he has been running the same and also paying the loan amount 
regularly to the APSFC and other creditors.  
Third party affidavit of T.
Anuradha also show that she was ex-managing director of M/s. Swarna Restaurant  
Pvt. Ltd., 
This third party affidavit clearly goes to show that there was a
Board meeting on 01-01-2005 and in the said Board meeting, suit property was
leased out to the petitioner.  
The third party affidavit also discloses that T.
Anuradha was Ex-Managing Director of M/s. Swarna Restaurant Pvt. Ltd." 
It does not at all accord with the text of the affidavit.  

To clear our doubt,
we asked learned counsel for the 1st respondent as to 
whether any other affidavit, sworn to by Anuradha was placed before the trial Court.  
He stated
that the one, which is extracted above, is the only affidavit.
Therefore, it is
just un-understandable as to how the trial Court gathered the impression that
Anuradha stated that there was a meeting of Board of Directors, where it was
decided to lease the property to the appellants.  
Added to that, the trial Court
itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement.
That is clear from paragraph 27 of the order, which reads
"Even according to the petitioner 
it is M/s. Swarna Restaurant Pvt. Ltd., that
leased out the schedule property to him under the rental agreement dated 01-01-
2005 and the said rental agreement said to have been executed by Managing 
Director of M/s. Swarna Restaurant Pvt. Ltd. 
 It is prima-facie establish that
Saroja was Managing Director of M/s. Swarna Restaurant Pvt. Ltd.  
Therefore,
although in a strict sense, it cannot be said that petitioner is a tenant
inrespect of M/s.Swarna Restaurant Pvt. Ltd. but it can be said that petitioner
was inducted into possession or Management of the M/s. Swarna Restaurant Pvt.  
Ltd and petitioner has been running hotel business in srikalahasti may be in the
name of Saravana Bhavan or Chennai Saravana Bhavan."   

 The important findings that have a bearing upon the valuable rights of the
parties cannot be based upon such uncertain and unverified facts. 
 One of the
cardinal principles in the matter of examining the applications filed under
Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the
Court with clean hands.  
Prima facie, we find that there are no bona fides, much
less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. 
The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

 Hence, the appeal is allowed and the order under appeal is set aside.  There
shall be no order as to costs.
The miscellaneous petition filed in this appeal shall also stand disposed of.

_________________________  
L. NARASIMHA REDDY, J.    
_______________________  
K.G.SHANKAR, J.  
Dt:01.04.2013

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