Commissioner of Income Tax-II, vs. Inventaa Chemicals Ltd.,

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 17TH DAY OF NOVEMBER 2021 / 26TH KARTHIKA, 1943 RSA NO. 744 OF 2006 AGAINST THE ORDER/JUDGMENT IN AS 55/2003 OF SUB COURT, HOSDRUG OS 551/1999 OF MUNSIFF COURT, HOSDRUG APPELLANT/APPELLANT/PLAINTIFF: K.KRISHNAN, S/O.KARTHAMBU, BEKAL, PALLIKKARE VILLAGE, P.O.BEKAL, HOSDURG TALUK. BY ADVS. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENTS/RESPONDENTS/DEFENDANTS: 1 VADAKKE PURAYIL LAKSHMI, D/O.LATE RAMAN, PALAKKUNNU, PALLIKKARE VILLAGE, P.O.BEKAL, HOSDURG TALUK. 2 VADAKKEPURAYIL KAMALAKSHY, W/O.MADHAVAN, DO. DO. 3 A.MADHAVAN, S/O.AMBU, DO. DO. 4 K.JANARDANAN, S/O.KARTHAMBU, DO. DO. BY ADV SRI.KODOTH SREEDHARAN- FOR R1 TO R3 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

R.S.A No.744 of 2006 2 K.BABU, J. -------------------------------------- R.S.A No.744 of 2006 --------------------------------------- Dated this the 17th day of November, 2021 JUDGMENT This Regular Second Appeal emanates from the judgment dated 16.10.2003 passed by the Munsiff's Court, Hosdurg in O.S.No.551/1999. The First Appellate Court confirmed the judgment of the Trial Court in A.S.No.55/2003. 2. The plaintiff is the appellant. The plaintiff instituted the suit seeking a permanent prohibitory injunction against the defendants from trespassing upon the plaint schedule property and other reliefs. 3. The Trial Court dismissed the suit holding that the plaintiff suppressed material facts from the knowledge of the Court and failed to establish that the defendants trespassed upon the plaint schedule property. The First Appellate Court confirmed the judgment of the Trial Court. 4. On 09.09.2006, this Court admitted the appeal and issued

R.S.A No.744 of 2006 3 notice on the following substantial question of law: “In the light of the finding of the trial Court in paragraph 10 of the judgment that the plaintiff’s possession over the entire suit property is established and in the light of the specific finding in paragraph 9 of the judgment of the Lower Appellate Court that the plaintiff is in exclusive possession and peaceful enjoyment of the plaint schedule property extending to 36 cents, were the Courts below justified in dismissing the suit for injunction on the wrong premise that the plaintiff was laying claim over 10 cents of property possessed by defendants in R.S.No.249/3B and C of Pallikkara Village?” 5. Heard Sri.N.K.Subramanian, the learned counsel appearing for the appellant/plaintiff and Sri.Kodoth Sreedharan, the learned counsel appearing for the respondents/defendants. 6. The learned counsel for the appellant/plaintiff contended that the Courts below were not justified in declining the relief of permanent prohibitory injunction in favour of the plaintiff in respect of the plaint schedule property, even when the Courts concurrently found that the plaint schedule property was in possession of the plaintiff. 7. Per contra, the learned counsel for the defendants contended that as the plaintiff failed to establish the cause of action pleaded and that the plaintiff suppressed material facts from the knowledge of the Court, the Courts below were justified in refusing the discretionary relief of permanent prohibitory injunction.

R.S.A No.744 of 2006 4 8. The plaint schedule property is 36 cents of land in Resurvey No.249/3 of Pallikkara Village. The plaintiff is the absolute owner in possession of the property. Defendant Nos.1 to 3 are the owners of the property that lies on the immediate south and west of the plaint schedule property. 9. The Advocate Commissioner, who prepared Exts.C1 report and C3 plan, identified the plaint schedule property as ‘ABCDEFGA' and the property of the defendants as ‘GFHEIJKLG'. 10. Relying on Exts.C2 report and C3 plan the Trial Court found that there were no physical or natural boundaries separating the plaint schedule property from the property of the defendants. The Trial Court and the First Appellate Court held that the plaintiff suppressed the material fact that a foundation was constructed on the property of the defendants. The Courts below also recorded that the plaintiff failed to establish that the defendants had trespassed into the suit property and were trying to put up structures in the property encroaching upon it. The Courts below found that while giving evidence the plaintiff raised claim over the property of the defendants contending that a portion of the

R.S.A No.744 of 2006 5 foundation constructed on the defendants' property fell in the plaint schedule property. 11. The Courts below after appreciating the pleadings and evidence, recorded that the plaintiff is in possession of the suit property as identified by the Commissioner in Ext.C1 report and Ext.C3 sketch and the defendants are in possession of the property on the immediate west and south of the plaint schedule property. The Courts below specifically found that the plaintiff has no right over the property in possession of the defendants. 12. The foundation of the suit is discernible from paragraphs 5 and 6 of the plaint, which are extracted below: “5. The defendants have no manner of right, title or possession over the suit property. The defendants 1 to 3 are having property on the western side of the suit property. Taking advantage of the possession of the boundary property and with the active leadership of the 4th defendant, the defendants are trying to trespass over the suit property and they are also trying to put up structures in the suit property. On 22.10.1999 the defendants with their men tried to trespass over the suit property was resisted by the plaintiff. The defendants and their men retreated from the suit property threatening that they will trespass again with ample force. Hence the suit. 6. The cause of action for the suit arose on and since 22.10.1999 when the defendants and their men attempted to trespass into the suit property in Pallikkara Village within the jurisdiction of this Court, where the property is situate”. In paragraph 5 of the plaint, the plaintiff has specifically pleaded that the defendants are trying to trespass upon the suit property

R.S.A No.744 of 2006 6 and trying to put up structures therein. The plaintiff further pleaded that on 22.10.1999, the defendants with their men tried to trespass over the suit property. 13. While giving evidence, the plaintiff developed a case that he has right over a portion of the property in possession of the defendants. 14. The finding of the Courts below that the plaintiff suppressed material fact is to be assessed in the light of the above extracted pleadings of the plaintiff. 15. In Arunima Baruah v. Union of India & others [(2007) 6 SCC 120], the Apex Court has described what would be a material fact the suppression of which would dis-entitle a party to claim a discretionary relief. On the question of what is the material fact while dealing with the discretionary jurisdiction, the Apex Court in Arunima Baruah's case (supra) held thus: “I2. 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

R.S.A No.744 of 2006 7 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. A fact would be 'material' for grant or denial of relief if the fact suppression of which is material for the determination of the lis and then the Court may refuse to exercise its discretion in favour of the plaintiff. 17. In the present case, the specific pleading of the plaintiff is that the defendants were trying to put up structures in the plaint schedule property. The fact that the defendants had constructed a foundation in the property in their exclusive possession has been suppressed while instituting the plaint, which was found to be 'material' for determining the lis by the Courts below. While granting or refusing injunction sought for from the part of the plaintiff, the fact so suppressed is vital and significant. 18. It is settled law that a person who approaches the Court for 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 the justice delivery

R.S.A No.744 of 2006 8 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 full and fair disclosure of all the material facts. 19. In M/s.Tilokchand and Motichand & Ors. v. H.B. Munshi & 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. 20. 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. 21. In Ram Preeti Yadav v. U.P Board of High School and Intermediate Education and Others [2003 (Supp.) 3 SCR 352], the

R.S.A No.744 of 2006 9 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 would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion. 22. 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”. 23. 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-

R.S.A No.744 of 2006 10 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 .” 24. The plaintiff failed to establish that the defendants invaded or threatened to invade his right or enjoyment over the suit property. 25. The Courts below also recorded the finding that the plaintiff failed to establish the cause of action for seeking the relief of permanent prohibitory injunction. As per Sec.38 of the Specific Relief Act, the plaintiff is entitled to the relief of prohibitory injunction, when the defendant invades or threatens to invade the plaintiff’s right or enjoyment of the property. 26. In the present case, the plaintiff failed to establish the requirements for getting the relief of prohibitory injunction as provided in Sec.38 of the Specific Relief Act. 27. The resultant conclusion is that even when the Courts below found that the plaintiff was in possession over the entire suit property, the Courts below were justified in refusing to grant the relief of prohibitory inunction, as the plaintiff suppressed material fact from the knowledge of the Court and failed to establish the

R.S.A No.744 of 2006 11 cause of action pleaded. The question of law is answered against the appellant. The appeal lacks merits. The Regular Second Appeal stands dismissed. The parties are directed to bear their respective costs. Sd/- K.BABU, JUDGE KAS