The Commissioner of Income Tax-IV vs. M/s OCV Reinforcement Manufacturing Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU FRIDAY, THE 12TH DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943 RSA NO. 290 OF 2014 AGAINST THE ORDER/JUDGMENT IN AS 24/2009 OF III ADDITIONAL SUB COURT, KOZHIKODE OS 338/2004 OF ADDITIONAL MUNSIFF COURT-II, KOZHIKODE APPELLANTS/APPELLANTS/PLAINTIFFS: 1 LEELA.T.V, AGED 65 YEARS, W/O RAMANKUTTY @ BALAN, KOZHIKKAL VEEDU, KUTTIKATTUR AMSOM DESOM & (P.O), KOZHIKODE TALUK 673008 2 PRABHAVATHI T.P, AGED 41 YEARS, D/O RAMANKUTTY @ BALAN,KOZHIKKAL VEEDU, KUTTIKATTUR AMSOM DEOSM & (P.O), KOZHIKODE TALUK, PIN-673008 3 HARI.T.V, AGED 36 YEARS, S/O RAMANKUTTY @ BALAN,KOZHIKKAL VEEDU, KUTTIKATTUR AMSOM DEOSM & (P.O), KOZHIKODE TALUK, PIN-673008 BY ADVS. SRI.K.SANEESH KUMAR SMT.V.B.SANTHINI RESPONDENTS/RESPONDENTS/DEFENDANTS: 1 PADMAVATHY AMMA,, AGED 75 YEARS W/O GOVINDA PANICKER, KOZHIKKAL VEEDU, KUTTIKATTUR AMSOM DEOSM & (P.O), KOZHIKODE TALUK, PIN-673008 2 LOHIDAKSHAN, AGED 53 YEARS, S/O GOVINDA PANICKER, KOZHIKKAL VEEDU, KUTTIKATTUR AMSOM DEOSM & (P.O), KOZHIKODE TALUK, PIN-673008 3 SASI, AGED 47 YEARS, S/O GOVINDA PANICKER, KOZHIKKAL VEEDU, KUTTIKATTUR AMSOM DEOSM & (P.O), KOZHIKODE TALUK, PIN-673008

R.S.A Nos.290 of 2014 2 4 VIJAYAN, AGED 42 YEARS, S/O GOVINDA PANICKER, KOZHIKKAL VEEDU, KUTTIKATTUR AMSOM DEOSM & (P.O), KOZHIKODE TALUK, PIN-673008 BY ADVS. SRI.P.A.HARISH SRI.V.V.SURENDRAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

R.S.A Nos.290 of 2014 3 'C.R' K.BABU, J. -------------------------------------- R.S.A No.290 of 2014 --------------------------------------- Dated this the 12th day of November, 2021 JUDGMENT This Regular Second Appeal emanates from the judgment and decree dated 19.11.2008 passed by the Additional Munsiff-II, Kozhikode in O.S.No.338/2004. The First Appellate Court, the III Additional Sub Court, Kozhikode confirmed the judgment of the Trial Court in A.S.No.24/2009. 2. Material facts relevant for the adjudication of this appeal are briefly narrated below: 2.1. The plaintiffs instituted the suit for prohibitory and mandatory injunctions against the defendants in respect of the plaint schedule properties. The plaintiffs are residing in the plaint item No.2 property. Item No.1 property lies abutting the public road on the western side. According to the plaintiffs, the 'B' schedule way, which starts from the western public road, runs towards the east and enters item No.2 property, where the residential building

R.S.A Nos.290 of 2014 4 of the plaintiffs is situated. The defendants have property on the immediate north of the plaint schedule properties. They are residing in the tharavad house. The plaintiffs also have a joint right over the tharavad house. Access to the property of the defendants is through a lane that originates from the public road and runs along the northern and eastern sides of their property. Plaintiffs can also access their properties from the said lane, which runs along the eastern side of the plaint schedule property. Defendant No.2 constructed a new house in his property to which access can be had from the aforesaid lane. The defendants have no right over the plaint schedule properties. 'B' schedule way that runs through the plaint item No.1 property exclusively belongs to the plaintiffs. Defendants attempted to trespass upon the plaint schedule properties with the intent to obliterate the lie and nature of the way. The attempt of defendants was resisted by the plaintiffs. 2.2. The defendants resisted the claim of the plaintiffs. They pleaded that the plaintiffs had suppressed material facts from the knowledge of the Court. The description of the way, its length, width etc., as stated in the plaint is against the truth. There is a

R.S.A Nos.290 of 2014 5 way, having an average width of 10 feet, that starts from the western public road, leading towards the east, and reaches the tharavadu house of the parties, namely 'Kozhikkal Paramba'. The tharavadu house is situated in the middle of the entire property. The tharavadu house is in the common ownership of the members of the Family. All members of the Kozhikkal family have got a right of residence and right of entry in the tharavadu house. The way, which commences from the western public road and reaches the tharavadu house, is a common way enjoyed by all members of the family to access the tharavadu house. The cause of action pleaded in the plaint is not correct. The way in dispute has been in existence from the very inception of the tharavadu house. 3. During the course of proceedings, the plaintiffs amended the plaint incorporating 'B schedule', which is described as a 3 feet wide way having a length of 30 feet which starts from the western public road and reaches the residence of the plaintiffs in the item No.2 property. Amendments were later incorporated in the plaint as per order dated 12.12.2007, nearly after three years of the institution of the suit by which the plaintiffs pleaded that the

R.S.A Nos.290 of 2014 6 defendants were permitted to access the tharavadu house through the property indicated as 'TJ' lane in Ext.C3(a) sketch. The defendants resisted the amended pleadings raising the contention that they have acquired the right of easement by prescription over the way in dispute. 4. The evidence in this case consists of the oral evidence of PW1 and DW1, Exhibits.A1 to A10 series marked on the side of the plaintiffs and Ext.B1 marked on the side of the defendants. Exhibits C1 to C4 series were marked as Court Exhibits and Exts.X1 to X2 series were marked as third party Exhibits. 5. The Trial Court dismissed the suit, holding that the plaintiffs suppressed material facts from the knowledge of the Court. The Trial Court also negatived the claim of the defendants regarding the right of easement in respect of the disputed pathway. 6. The plaintiffs challenged the decree and judgment passed by the Trial Court before the First Appellate Court, which confirmed the findings of the Trial Court. The plaintiffs are now before this Court in second appeal invoking Sec.100 of the Code of Civil Procedure, 1908. On 12.03.2014, this Court admitted the second

R.S.A Nos.290 of 2014 7 appeal and issued notice on the following substantial question of law: “1. Whether the courts below were justified in declining relief to the plaintiffs when the finding regarding the existence and the right of way went in favour of the plaintiffs and when it was found that the defendants had not established any manner of right to use the way, on the ground that the plaintiffs had suppressed material facts.” 7. Heard Sri.Saneesh Kumar K, the learned counsel appearing for the appellants/plaintiffs and Sri.Harish P.A, the learned counsel appearing for the respondents/defendants. 8. Plaint 'A' schedule property, consisting of three items, belongs to the plaintiffs. Kuttikattur-Mundupalam road runs in the north-south direction on the west of plaint 'A' schedule property. Item No.1 property in 'A' schedule abuts the western Kuttikattur- Mundupalam road. The residential building of the plaintiffs is situated in item No.2 property which lies on the immediate south of item No.1 property. Item No.3 property lies on the immediate east of item No.2 and on the south of another part of item No.1 property. Kozhikkal tharavadu house is on the north-east of the plaint 'A' schedule property. The defendants are residing in the Kozhikkal tharavadu. 9. The parties belong to Kozhikkal tharavadu. The admitted

R.S.A Nos.290 of 2014 8 case of the parties is that the tharavadu house is set apart in common. It is further admitted that the plaintiffs and defendants have right over the said house. 10. The case of the plaintiffs is that the disputed way which commences from the western road goes to the house of the plaintiffs situated in item No.2 property. The challenge of the defendants is that the disputed way which commences from the western public road reaches Kozhikkal tharavadu. The specific plea of the plaintiffs is that the pathway ends in their property. Though they pleaded, by way of amendments incorporated after three years, to the effect that they permitted the defendants to pass through the way to access the tharavadu house, a close perusal of the description of the schedule 'B' (incorporated by way of amendment) makes it clear that the plaintiffs essentially maintains the plea that the disputed way ends in the residence of the plaintiffs situated in item No.2 property. 11. The Trial Court and the First Appellate Court recorded the following findings: (a) The disputed way, shown in Ext.C3(a), having an

R.S.A Nos.290 of 2014 9 approximate length of 72 metres, was in existence even as on the date of the suit and the same reaches the Kozhikkal tharavadu house. (b) The contention of the plaintiffs that the disputed way as noted in Ext.C3(a) was formed by the defendants after the institution of the suit cannot be sustained. (c) At the time of institution of the suit there was no slab on the western side, so as to access the way from the western road as construction of the drainage was going on there. (d) The plaintiffs suppressed the material fact that the disputed way, which starts from the western road and reaches the Kozhikkal tharavadu house, was in existence as on the date of the suit. Plaintiffs pleaded that the way ends in their residence in the plaint item No.2 property. (e) The plaintiffs also suppressed the fact that prior to the institution of the suit, on the basis of a complaint preferred by the plaintiffs before the Police, they entered into an agreement regarding the provision for a way to

R.S.A Nos.290 of 2014 10 access the tharavadu house. (f) The plaintiffs approached the Court with oblique motive. They have a definite intention to make it appear that no slab was put up over the aforesaid drainage and the disputed way does not touch the public road. (g) The very existence of the pathway to the tharavadu house, wherein the defendants are residing, was suppressed by the plaintiffs and after Ext.C1 report by the Commissioner when it was found that the way was in existence even on the date of institution of the suit, to wriggle out from the situation, amendments were incorporated in the plaint stating that the plaintiffs had given permission to the defendants to use the disputed way. (h) The conduct of the plaintiffs is in such a way as to dis- entitle the claim as provided in Sec.41(i) of the Specific Relief Act. 12. The learned counsel for the appellants contended that the plaintiffs had not suppressed any material facts from the knowledge of the Court and the facts allegedly suppressed by the

R.S.A Nos.290 of 2014 11 plaintiffs are not material so as to decline the discretionary relief of injunction. Per contra, the learned counsel for the respondents contended that the facts touching upon the existence of the way and the transaction that transpired in connection with the complaint before the police station are material facts affecting the rights of the defendants. 13. The crux of the dispute is whether the way which commences from the western public road was in existence as on the date of institution of the suit or whether the defendants have been using that way to access the tharavad house. As mentioned earlier, the specific case of the plaintiffs is that the disputed way ends in their residence, which is situated in item No.2 property. The pleadings in the plaint together with the description of 'B' schedule way make it candid that the plaintiffs have put up a definite case that the disputed way ends in their property and it does not connect the tharavadu house. 14. The Trial Court as well as the First Appellate Court negatived the claims of the defendants that they have acquired right of easement by prescription over the disputed way. The question

R.S.A Nos.290 of 2014 12 that falls for consideration is whether the Courts below were justified in refusing to grant injunction even when the defendants were found to have not acquired any right of easement over the disputed way. 15. The Trial Court as well as the First Appellate Court non- suited the plaintiffs on the ground that they suppressed material facts. On the question of material fact in the discretionary jurisdiction, the Apex Court in Arunima Baruah v. Union of India & others [2007 (6) SCC 120, para.12] held thus: “It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.” 16. In Paul v. Varghese and another [2016 (1) KHC 739] this Court, while dealing with the grant of an interim prohibitory injunction, held that the non disclosure of the fact that the property therein extends up to the highway, which runs at a length of 150

R.S.A Nos.290 of 2014 13 feet along its eastern boundary, in their pleadings is a material suppression sufficient to dis-entitle the claim of the plaintiffs therein. In the backdrop of the principles discussed above in Arunima Baruah's case and Paul's case (supra) I may consider whether the suppression allegedly made by the plaintiffs is material or not. The plaintiffs sought for relief of permanent prohibitory injunction and mandatory injunction in respect of the disputed way based on the specific claim that the disputed way which commences from the western public road ends in their property. Admittedly, the defendants are residing in the tharavadu property over which the plaintiffs, defendants and other members of the tharavadu have a common right. It has come out in evidence that the way, which commences from the western way, extends up to the tharavadu house, where the defendants are residing. The Trial Court as well as the First Appellate Court relying on the evidence, including the reports of the Commissioner, recorded the finding that as on the date of institution of the suit the disputed way was in existence and the same connects the tharavadu house. But the plaintiffs suppressed the fact that the way reaches the

R.S.A Nos.290 of 2014 14 tharavadu house. This is a 'material fact' for the determination of the lis between the parties. 17. The learned counsel for the appellants further contented that the agreement allegedly entered into between the parties before the Police regarding the provision of a way, has no direct bearing on the rights of the parties in a suit for injunction as the agreement stated to have been entered into between the parties before the Police has no binding effect on them in civil proceedings. 18. The learned counsel for the defendants contended that even though the agreement stated to have been entered into between the parties in the Police Station based on a complaint has no binding effect on the parties in the civil litigation, the averments in the plaint that the Police warned the defendants whereas the evidence would go to show that the parties agreed for a provision for way before the Police amounts to suppression of material fact. 19. In view of the fact that the agreement allegedly entered into between the parties before the Police has no evidentiary value in a civil dispute, this Court is of the view that the alleged suppression of the transactions that transpired in the Police Station

R.S.A Nos.290 of 2014 15 is not a material suppression. 20. However, this Court finds that the very existence of the way to the tharavad property of the defendants is a material fact, the suppression of which will directly affect the rights of the parties. Hence, this Court is of the view that the suppression of the existence of the way as on the institution of the suit and user of the same by the defendants and further fact that it extends up to the Kozhikkal tharavadu is a material suppression having direct bearing on the adjudication of the issues raised. 21. It is settled law that a person who approaches the Court for a relief, equitable or otherwise, is under a solemn obligation to candidly and correctly disclose all material and important facts, which have a bearing on the adjudication of the issues raised in the case. Truth constitutes an integral part of justice delivery system. In Rex. v. Kensington Income Tax Commissioner [1917 (1) KB 486] Scrutton L.J. held that one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief he should make a full and fair disclosure of all the material facts. 22. In M/s.Tilokchand and Motichand & Ors. v. H.B. Munshi &

R.S.A Nos.290 of 2014 16 Another [(1969) 1 SCC 110] and A.Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam [(2012) 6 SCC 430] the Apex Court held that a person seeking equity must do equity. The Apex Court further held that truth is the basis of the justice delivery system and it is imperative that pleadings and all other presentations before the Court should be truthful. 23. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the Court with clean hands. Suppression or concealment of material facts is impermissible to a litigant. 24. In Ram Preeti Yadav v. U.P Board of High School and Intermediate Education and Others [2003 (Supp.) 3 SCR 352], the Apex Court held that fraud, misrepresentation and concealment of material fact vitiate all solemn acts. In Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody [AIR 1964 SC 345], it was held that if there appears on the part of a person, who has approached the Court, any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which

R.S.A Nos.290 of 2014 17 would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion. 25. In Amar Singh v. Union of India and others [(2011) 7 SCC 69] the Apex Court held that it is one of the fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings and especially when it contains a prayer for injunction. A prayer for an injunction, which is an equitable remedy, must be governed by the principles of “uberrima fides”. 26. In S.P.Chengalvaraya Naidu (dead) by L.Rs v. Jagannath (dead) by L.Rs. and others [AIR 1994 SC 853], the Apex Court has elucidated this doctrine thus: “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 .” 27. This Court is of the view that the Courts below were justified in declining reliefs to the plaintiffs even when the finding regarding the right of way pleaded by the defendants went against them and they failed to establish any manner of right. The

R.S.A Nos.290 of 2014 18 substantial question of law is answered against the plaintiffs. The learned counsel for the appellants submitted that the plaintiffs may be given the liberty to approach the appropriate forum to further redress their grievances in accordance with law. Needless to say, the parties are at liberty to redress their grievances when a cause of action arises. The Regular Second Appeal stands dismissed. Sd/- K.BABU, JUDGE KAS