Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nKarnataka High Court\nMr Bipin G Patel vs Sri J Motilal (Huf) on 2 December, 2021Bench: K.S.Mudagal\n                                   M.F.A.No.4787/2021\n\n                         1\n                                                     M\n\n\n\n\nIN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n    DATED THIS THE 2ND DAY OF DECEMBER 2021\n\n                      BEFORE\n\n       THE HON'BLE MRS JUSTICE K.S.MUDAGAL\n\n MISCELLANEOUS FIRST APPEAL NO.4787/2021(CPC)\n\nBETWEEN:\n\nMR. BIPIN G PATEL\nS/O SRI GOPAL BHAI PATEL\nAGED ABOUT 36 YEARS\nPRESENTLY R/AT H.NO.9\nBALAJI KRUPA LAYOUT\nPHASE-II, MUNICIPAL COUNTY ROAD\nSINGASANDRA, BENGALURU - 560 068\nNOW AT NO.302-E\nARUNVILLA APARTMENTS\nARUNODAY SOCIETY\nALKAPURI, VADODRA - 390 007              ...APPELLANT\n\n(BY SRI H.N.SHASHIDHARA, ADVOCATE)\n\nAND:\nSRI J.MOTILAL (HUF)\nS/O LATE SRI JEEVRAJ\nAGED ABOUT 75 YEARS\nR/AT NO.262-A, LYOIDS ROAD\nCHENNAI - 400 086\n\nALSO AT: NO.105/1\nSITUATED AT SINGASANDRA VILLAGE\nBEGUR HOBLI, BENGALURU SOUTH TALUK\nPRESENTLY 2ND MAIN ROAD\nSINGASANDRA, BENGALURU - 560 068       ...RESPONDENT\n\n(BY SRI B.S.SATYANAND, ADVOCATE FOR C/RESPONDENT)\n\n     THIS MFA IS FILED UNDER ORDER XLIII RULE 1(R) OF\nCPC PRAYING TO SET ASIDE THE ORDER DATED 30.08.2021\n                                         M.F.A.No.4787/2021\n\n                            2\n                                                         M\n\n\n\n\nPASSED ON I.A.NO.1 IN O.S.NO.561/2021 ON THE FILE OF\nTHE VI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,\nBENGALURU CITY (CCH-11) ALLOWING I.A.NO.1 FILED U/O\nXXXIX RULES 1 AND 2 R/W SECTION 151 OF CPC.\n\n      THIS MFA COMING ON FOR FURTHER HEARING THIS\nDAY, THE COURT DELIVERED THE FOLLOWING:\n\n                    JUDGMENT\n\n      Aggrieved by the order of injunction passed\n\nagainst him, the defendant in O.S.No.561/2021 on the\n\nfile of VI Additional City Civil and Sessions Judge, (CCH-\n\n11) has preferred the above appeal.\n\n\n      2.    The    respondent   filed    O.S.No.561/2021\n\nagainst the appellant for decree of permanent injunction\n\nrestraining the appellant or anybody claiming through\n\nhim from interfering with his peaceful possession of the\n\nsuit schedule property.\n\n\n      3.    For the purpose of convenience, parties will\n\nbe referred to henceforth according to their ranks before\n\nthe trial Court.\n                                        M.F.A.No.4787/2021\n\n                            3\n                                                           M\n\n\n\n\n     4.    The subject matter of the suit is as follows:\n\n     All part and parcel of the Converted Immovable\n\nProperty bearing Sy.No.105/1, situated at Singasandra\n\nVillage, Begur Hobli, Bangalore South Taluk, presently\n\n2nd Main Road, Singasandra, Bangalore- 560 068, to an\n\nextent of 9 guntas, presently measuring 186'5" Ft. on\n\nthe Eastern Side, 195'6" Ft. on the Western Side, 50'6"\n\nFt. on Northern side and 50' Ft. on Southern Side, all\n\naggregating to 9,633 Sq.Ft., and bounded to the entire\n\nProperty on:\n\n     East by : 28 Ft., wide Road and Private Property;\n     West by: Remaining portion of Sy.No.105/1,\n               presently owned by Auranazeb;'\n\n     North by: Southern portion of Factory premises of\n                BPL Sanyo Ltd., bearing Sy.No.96/2-4;\n     South by: Private Property.\n\n     5.    The case of the plaintiff in brief is as follows:\n     One Gangadharappa S/o Dodda Narasimahaiah\n\nwas the absolute owner of the suit schedule property.\n\nOn 22.01.1996 Gangadharappa executed an agreement\n\nof sale and registered General Power of Attorney in\n                                                  M.F.A.No.4787/2021\n\n                                    4\n                                                                   M\n\n\n\n\nfavour of one Mohammed Sadiq Pasha S/o Abdul Rahim.\n\nThe said Mohammed Sadiq Pasha sold the suit schedule\n\nproperty i.e., 9 guntas out of 28 guntas in Sy.No.105/1\n\nto the plaintiff under the registered sale deed dated\n\n19.05.2001. After the said sale, khatha was changed in\n\nthe name of the plaintiff. He got converted the land for\n\nnon-agricultural use and he is in possession of the\n\nproperty. The defendant without any manner of right,\n\ntried to trespass into the property and excavate the\n\nland.    Therefore,       he   seeks     decree     for   permanent\n\ninjunction.\n\n\n        6.    In    the    suit,    he   filed   I.A.No.1   seeking\n\ntemporary injunction. The defendant appeared and\n\ncontested the case by filing written statement and\n\nstatement of objections to I.A.No.1.              Before service of\n\nsummons,      the     trial    Court     had      granted   exparte\n\ntemporary      injunction.         Therefore,     defendant    filed\n\nI.A.No.2 under Order XXXIX Rule 4 of CPC for vacating\n\nsaid exparte temporary injunction.\n                                          M.F.A.No.4787/2021\n\n                              5\n                                                             M\n\n\n\n\n       7.    Case of the defendant in brief is as follows:\n\n       The entire land in Sy.No.105/1 of Singasandra\n\nVillage belonged to one Kambaiah. In a partition dated\n\n28.05.1947 effected between Dodda Narasimhaiah and\n\nChikka Narasimhaiah. Dodda Narasimhaiah got 3 acres\n\n19 guntas in Sy.No.105/1.         After his death, his sons\n\nS.N.Gangadharappa and S.N.Nagaraj succeeded to the\n\nsaid property.      Gangadharappa and his sons sold 33\n\nguntas + 3½ guntas + 3½ guntas in Sy.No.105/1 to\n\none G.Nandakumar S/o Guruswamy Naidu under the\n\nregistered   sale    deed   dated    10.08.1994.      Chikka\n\nNarasimhaiah's share in Sy.No.105/1 devolved on his\n\nsons    S.N.Shivananjegowda,        S.N.Gopalakrishna     and\n\nS.N.Chandrashekar. They jointly sold 1 acre 2 guntas in\n\nthat to one G.Nandakumar under the registered sale\n\ndeed dated 22.06.1995.            G.Nandakumar formed a\n\nlayout in the land purchased by him. The said layout\n\nconsisted of site Nos.24, 25 and 28 and others. He sold\n\nsite No.24 to one M.Bhaskar under a registered sale\n\ndeed    dated    06.09.1995   and     site   No.28   to   one\n\nB.Rathnadeepa under a registered sale deed dated\n                                          M.F.A.No.4787/2021\n\n                            6\n                                                          M\n\n\n\n\n06.09.1995. G.Nandakumar gifted site No.25 to his son\n\nN.Sunil Kumar under the registered gift deed dated\n\n28.02.2013.      Rectification   dated     01.03.2013   was\n\nexecuted to gift deed dated 28.02.2013. One K.Raju\n\nand P.V.Venkatesha Iyer purchased site Nos.24 and 28\n\nfrom B.Rathnadeepa and M.Bhaskar under registered\n\nsale deed dated 27.09.2013. They also purchased site\n\nNo.25 from N.Sunil Kumar under the registered sale\n\ndeed     dated    11.10.2013.       Thus      K.Raju    and\n\nP.V.Venkatesha Iyer became absolute owners of site\n\nNos.24, 25 and 28 in all measuring 16,200 sq.ft. They\n\namalgamated all those sites and formed several sites in\n\nthat.   Out of such newly formed sites, they sold site\n\nNos.10 and 11 to the defendant under registered sale\n\ndeed dated 13.10.2020 in all measuring 50 ft. X 50 ft.\n\nformed out of 9 guntas in Sy.No.105/1. That has\n\nnothing to do with the suit property. The identity of the\n\nsuit schedule property was disputed. The possession of\n\nthe plaintiff was disputed. The defendant claimed that\n\nhe was in possession of the property and the plaintiff\n\ntried to obstruct his possession.\n                                      M.F.A.No.4787/2021\n\n                           7\n                                                        M\n\n\n\n\n     8.    The trial Court on hearing both side, by the\n\nimpugned order allowed the application of the plaintiff\n\ngranted temporary injunction against the defendant\n\nrestraining him from interfering with the plaintiff's\n\npossession and rejected I.A.No.2 filed by the defendant\n\nfor vacating injunction, on the ground that plaintiff has\n\na prima facie case and the balance of convenience lies\n\nin his favour. The said order is challenged in the above\n\nappeal.\n\n     9.    Sri H.N.Shashidhara, learned Counsel for\n\nthe appellant seeks to assail the impugned order on the\n\nfollowing grounds:\n\n     (i)   The land bearing Sy.No.105/1 measuring 2\n\nacres 25 guntas fallen to the share of Gangadharappa,\n\nwas acquired by the Government for the purpose of\n\nforming residential layout for Aircraft Employees Co-\n\nOperative Society (for short 'AECS').    The award was\n\npassed on 04.05.1990.     Gangadharappa received the\n\naward amount.\n                                               M.F.A.No.4787/2021\n\n                                   8\n                                                                    M\n\n\n\n\n      (ii)    Out of the property allotted to the share of\n\nGangadharappa, he and his sons sold remaining extent\n\nof 33 guntas on 10.08.1994.              The defendant acquired\n\nsite Nos.10 and 11 from K.Raju and P.V.Venkatesha\n\nIyer who had purchased that out of share allotted to\n\nChikka Narasimhaiah and they are in possession all\n\nalong.\n\n      (iii)   The plaintiff having run into several issues\n\nconcerning title over the suit schedule property, filed\n\nO.S.No.17108/2005           against      AECS    for    permanent\n\ninjunction before IV Additional City Civil and Sessions\n\nJudge, Mayo Hall Unit, Bangalore.\n\n      (iv)    The said suit came to be dismissed on\n\n23.05.2011     holding      that   the    plaintiff    was   not   in\n\npossession of the suit schedule property.              Suppressing\n\nthe said fact, the plaintiff filed the present suit. He was\n\nguilty of suppressing the material fact which disentitles\n\nhim to seek equitable relief of injunction.\n\n      (v)     The   trial     Court      overlooked      the   said\n\njudgment and decree on a letter dated 03.08.2012 said\n\nto be issued by the then President of AECS. That\n                                                     M.F.A.No.4787/2021\n\n                                    9\n                                                                       M\n\n\n\n\ndocument         was    disputed    by        the   purported    author\n\nhimself. He filed criminal case against the plaintiff\n\nalleging forgery. The trial Court overlooked that on\n\nuntenable grounds and the order of the trial Court is\n\nperverse.\n\n        (vi)     The title of the plaintiff to the property was\n\nnot established.        The defendant's documents show his\n\nclear        title.    The    judgment              and    decree     in\n\nO.S.No.17108/2005 which has attained finality show\n\nthat the plaintiff was not in possession. Therefore the\n\nrevenue records produced by the plaintiff have no\n\nsanctity. The trial Court committed error in relying on\n\nsuch documents.\n\n        (vii) Having regard to the finding of the Court in\n\nO.S.No.17108/2005            that       the    plaintiff   is   not   in\n\npossession, present suit for bare injunction was not\n\nmaintainable.         He ought to have sought declaration of\n\nhis title.\n\n        (viii) When the suit itself is not maintainable, the\n\ntrial Court was not justified in holding that the plaintiff\n\nhas made out a prima facie case.\n                                        M.F.A.No.4787/2021\n\n                             10\n                                                           M\n\n\n\n\n      10.   In support of his contention, he relies upon\n\nthe following judgments:\n\n      1.    Mirza Mohammed Yousuf Baig vs Deccan\n            Enterprises1\n      2.    Abbaiah vs Byrappa2\n      3.    Ajay Mohan vs H.N. Rai3\n      4.    M/s.Alliance University vs Sudhir4\n      5.    Jharkhand State Housing Board vs Didar\n            Singh5\n      6.    Gowrishankara Ashrama Trust vs M/s.\n            Amruth Educational and Cultural Society6\n\n      7.    T.V.Ramakrishna Reddy vs M.Mallappa7\n      11.   Justifying       the     impugned         order,\n\nSri.B.S.Satyanand,       learned     Counsel    for     the\n\nplaintiff/respondent makes the following submissions:\n\n      (i)   The trial Court referring to the pleadings\n\nand   analyzing   the    documents    has   come   to   the\n\nconclusion that the plaintiff has made out a prima facie\n\ncase. Such findings cannot be interfered by this Court.\n\n\n\n\n1\n  ILR 1996 KAR 1618\n2\n  2007 SCC ONLINE KAR 488\n3\n  2008 (2) SCC 507\n4\n  2017 SCC ONLINE KAR 1084\n5\n  2019 17 SCC 692\n6\n  2015 SCC Online KAR 2435\n7\n  2021 SCC Online 674\n                                        M.F.A.No.4787/2021\n\n                             11\n                                                            M\n\n\n\n\n      (ii)    The defendant in his pleadings did not raise\n\nthe issue of suppressing the material fact or the\n\nproceedings in O.S.No.17108/2005. Therefore that plea\n\nis not sustainable.\n\n      (iii)   The documents produced by the plaintiff\n\nshow that after dismissal of the said suit, the joint\n\nsurvey was conducted and AECS conceded that the\n\nplaintiff's property does not fall in the property acquired\n\nfor AECS.\n\n      (iv)    The complaint was not filed by the Society\n\ndenying the letter dated 03.08.2012. Therefore, the\n\ntrial Court rightly suspected bonafides of the said\n\ncomplaint.\n\n      (v)     All the revenue records produced by the\n\nplaintiff show that he was in possession of the property.\n\n      (vi)    The said complaint of the then President of\n\nAECS was manipulated at the instance of the defendant.\n\nIn vacating or granting injunction, the Court shall see\n\nnot only the conduct of the applicant but also the\n\nopponent.\n                                                  M.F.A.No.4787/2021\n\n                                  12\n                                                                     M\n\n\n\n\n      12.      In support of his contention, he relies upon\n\nthe following judgments:\n\n      1.       M/s. Gujarat Bottling Co. Ltd. vs Coca Cola\n               Company8\n      2.       Skyline Education Institution (Pvt.) Ltd. vs\n               S.L.Vaswani9\n      3.       Jose Vs. Johnson10\n\n      13.      No doubt the order granting or refusing to\n\ngrant injunction is discretionary order, therefore the\n\nAppellate Court cannot interfere with the same unless it\n\nis shown that the order suffers the vice of perversity,\n\narbitrariness or capriciousness.\n      14.      In para 16 of the judgment in Skyline\n\nEducation Institution's case referred to supra it was\n\nheld as follows:\n\n              "16.      The   ratio   of   the   above       noted\n     judgments is that once the court of first instance\n     exercise its discretion to grant or refuse to grant\n     relief   of     temporary   injunction      and   the    said\n     exercise of discretion is based upon objective\n     consideration of the material placed before the\n     court and is supported by cogent reasons, the\n\n     appellate court will be loath to interfere simply\n8\n  AIR 1995 SC 2372\n9\n  AIR 2010 SC 3221\n10\n   (2020) 3 SCC 780\n                                         M.F.A.No.4787/2021\n\n                              13\n                                                         M\n\n\n\n\n    because on a de novo consideration of the matter\n    it is possible for the appellate court to form a\n    different opinion on the issues of prima facie\n    case, balance of convenience, irreparable injury\n    and equity."\n                        (Emphasis supplied)\n\n    15.     Reading of the above judgment shows that\n\nthe discretionary order of injunction should be passed\n\non the objective consideration of the materials placed\n\nbefore the Court and must be supported by cogent\n\nreasons.   That excludes hypothetical consideration of\n\nthe materials produced before the Court.\n\n    16.     It is settled principle of law that ignoring\n\nany materials placed before the Court in considering\n\napplication for temporary injunction and the cardinal\n\nprinciples for granting injunction amounts to perversity.\n\nThe Court should not act contrary to the materials\n\nplaced before it or the settled legal position.\n\n\n    17.     The principles of law governing injunction\n\nare well settled. In considering the application for\n\ntemporary injunction, the applicant has to satisfy the\n\nfollowing conditions:\n                                             M.F.A.No.4787/2021\n\n                              14\n                                                              M\n\n\n\n\n      (i)     The applicant has the prima facie case.\n\nPrima facie case means prima facie case of his legal\n\nright and injury to such right.\n\n\n      (ii)    That his case is not vexatious and there is\n\nserious issue to be decided at trial.\n\n\n      (iii)   That balance of convenience lies in his\n\nfavour.\n\n\n      (iv)    If temporary injunction is not granted, he\n\nwill be put to irreparable injury.\n\n\n      (v)     The relief of injunction being equitable relief\n\napplicant has approached the Court with clean hands.\n\n\n      18.     Admittedly, the land bearing Sy.No.105/1 of\n\nSingasandra     Village   measuring     5     acres   1   gunta\n\noriginally belonged to one Kambaiah.          His sons Dodda\n\nNarasimhaiah and Chikka Narasimhaiah acquired the\n\nsaid property under a partition deed dated 28.05.1947.\n\nThe plaintiff traces his title to Gangadharappa, who was\n\nson of Dodda Narasimhaiah. According to the plaintiff,\n\nin the partition Gangadharappa got 2 acres 31 guntas in\n                                              M.F.A.No.4787/2021\n\n                                15\n                                                                   M\n\n\n\n\nSy.No.105/1. The plaintiff claims to have purchased 9\n\nguntas out of the share of Gangadharappa through his\n\npower of attorney holder one Mohammed Sadiq Pasha\n\non 19.05.2001.\n\n\n       19.    In the plaint, the plaintiff did not whisper\n\nanything about he filing suit in O.S.No.17108/2005\n\nagainst AECS. But it was argued before this Court that\n\nthe    defendant    did    not       raise   any     plea   about\n\nO.S.No.17108/2005, therefore, the contention that the\n\nplaintiff    suppressed   all    material    facts    cannot     be\n\ncountenance. To buttress the said contention, provisions\n\nof Order VIII Rules 2 to 5 of CPC are sought to be\n\nrelied. Notwithstanding the said provisions the plaintiff\n\nhas the duty of pleading all the material facts in the\n\nplaint.\n\n\n       20.    Undisputedly,          the      plaintiff        filed\n\nO.S.No.17108/2005 against AECS before IV Additional\n\nCity Civil and Sessions Judge, Mayo Hall Unit, Bangalore\n\nfor permanent injunction.         The copy of the judgment\n\nand decree in the said suit shows that the subject\n                                            M.F.A.No.4787/2021\n\n                             16\n                                                              M\n\n\n\n\nmatter of the said suit was also Sy.No.105/1 of\n\nSingasandra Village measuring 9 guntas. The very\n\nproperty is the subject matter of this case also. In that\n\nsuit also the plaintiff claimed title and possession on the\n\nbasis of same facts and records. The Court dismissed\n\nO.S.No.17108/2005      recording     the   finding   that   the\n\nplaintiff has failed to prove his possession over the\n\nproperty. The plaintiff did not challenge that judgment.\n\nTherefore the said judgment attained finality. Though\n\nthe said fact was very well within the knowledge, he did\n\nnot plead that fact in the plaint.\n\n\n      21.   This Court in para 14 of the judgment in\n\nMirza Mohammed Yusuf Baig's case referred to supra\n\nheld that in order to invoke the jurisdiction of the Court\n\nof equity the plaintiff shall disclose all the material facts\n\nwhich are within his knowledge. It was further held that\n\nit is well recognized principle that for granting equitable\n\nrelief, the plaintiff must come to the Court with clean\n\nhands and he must disclose all the facts against him in\n\norder to get the discretionary relief of injunction.\n                                           M.F.A.No.4787/2021\n\n                                17\n                                                              M\n\n\n\n\n        22.    In Abbaiah's case referred to supra, this\n\nCourt referring to several earlier judgments of the\n\nHon'ble Supreme Court held that suppression of the\n\nmaterial facts will loom large in seeking a relief. It was\n\nfurther held that the question of suppression of material\n\nfacts or not coming before the Court with clean hands\n\nwill have to be considered at interlocutory stage as well\n\nas at the final stage. It was further held that in view of\n\nmaxim that he who comes into equity must come with\n\nclean hands or who committed inequity shall not have\n\nequity are well known maxims of equity. The wrong\n\nconduct of the plaintiff in the particular matter or\n\ntransaction with respect to which he seeks injunctive\n\nrelief will preclude him from getting such relief.\n\n\n        23.    Having regard to the aforesaid fact, this\n\nCourt does not find any merit in the contention that the\n\ndefendant had not raised plea of suppression of material\n\nfacts   in    the   written   statement   with   reference   to\n\nO.S.No.17108/2005, therefore the said aspect cannot\n\nbe considered.\n                                        M.F.A.No.4787/2021\n\n                            18\n                                                            M\n\n\n\n\n      24.   Relying on same documents i.e. sale deeds,\n\nkhata, revenue entries, conversion order etc., the\n\nplaintiff sought decree for permanent injunction in\n\nO.S.No.17108/2005. On full fledged trial, the Court in\n\nthat suit held that the said land formed part of the\n\nproperty acquired for AECS and the plaintiff failed to\n\nprove his possession over the said property. The\n\nplaintiff did not file any appeal and accepted those\n\nfindings.\n\n\n      25.   It was contended that in that suit, the\n\nplaintiff failed to produce Power of Attorney, therefore\n\nthat suit was dismissed, in the present suit, those\n\ndocuments were produced, therefore the trial Court was\n\njustified in granting temporary injunction.\n\n\n      26.   When    there   was    finding    in   a   solemn\n\njudgment on full fledged trial, that cannot be diluted\n\nlater by filing another suit. In such later suit counsel for\n\nplaintiff cannot seek to overcome such judgment on the\n\nground that the documents which were not produced in\n                                            M.F.A.No.4787/2021\n\n                             19\n                                                               M\n\n\n\n\nthe earlier suit were produced in the later suit. The trial\n\nCourt relied upon the letter dated 03.08.2012 said to\n\nhave been issued by the then President of AECS to the\n\neffect that after dismissal of O.S.No.17108/2005, the\n\nplaintiff approached AECS and on his request, joint\n\ninspection was conducted and it was found that the\n\ndisputed property did not belong to the society. The\n\nletter says that in the meeting of the society held on\n\n07.06.2012, they have decided to issue 'no objection\n\ncertificate' to the plaintiff permitting him to deal with\n\nthe property without any hindrance from the society.\n\nBefore the trial Court, the defendant disputed the\n\ngenuineness of the said document. It was even brought\n\nto the notice of the trial Court that the alleged author of\n\nthe said document has filed police complaint that the\n\ndocument is forged one.\n\n\n      27.    It was contended that the defendants in the\n\nsaid suit was different, therefore the judgment has no\n\nbearing     on   the   present    suit.   The   issue   is   not\n\nqua-defendant but qua possession of the plaintiff of the\n                                             M.F.A.No.4787/2021\n\n                                20\n                                                                M\n\n\n\n\nsuit schedule property. In that suit, after full fledged\n\ntrial, the trial Court held that the plaintiff has not proved\n\nhis possession.\n\n\n      28.     The requirement in exercising discretionary\n\nrelief is that the Court should objectively access the\n\nmaterial produced before it. Before the trial Court there\n\nwas    solemn       judgment     of   competent       Court    in\n\nO.S.No.17108/2005 and a disputed letter. So far as\n\ngenuineness of the letter dated 03.08.2012, strangely,\n\nthe trial Court found fault with the complainant on the\n\nground      that    the   complaint   was    filed   only   after\n\nproduction of the document before the Court.\n\n\n      29.     The     trial   Court   suspected      source   of\n\nknowledge of the complainant. That was not at all the\n\nsubject matter of the suit. When the complaint was\n\nfiled, it was for the Investigating Officer to examine the\n\ngenuineness or bonafides of the complaint. The trial\n\nCourt instead of deciding the issue in the application\n\nventured to investigate the bonafides and genuineness\n\nof the complaint which is absurd. Basing on its\n                                       M.F.A.No.4787/2021\n\n                               21\n                                                         M\n\n\n\n\nhypothetical doubts about the complaint, trial Court\n\naccepts the letter produced by the plaintiff and nullifies\n\nthe effect of solemn judgment in O.S.No.17108/2005.\n\nThen comes to the conclusion that the plaintiff has\n\nmade out prima-facie case.\n\n\n      30.   If at all AECS has given up the rights\n\naccrued to it under the decree, the plaintiff could have\n\nfiled affidavit of at least one of the office bearers of\n\nAECS. Even that was not done. Therefore in the\n\nconsidered opinion of this Court, the trial Court acted\n\nperversely in nullifying the effect of solemn judgment in\n\nO.S.No.17108/2005 on the basis of the questioned\n\nletter.\n\n\n      31.   There was already the finding of the Court\n\nthat the plaintiff was not in possession. The title of the\n\nplaintiff was disputed as long back as in the year 2005\n\nand no declaration was sought on the present suit.\n\nTherefore there is much force in the contention of the\n\ndefendant's Counsel that maintainability of the suit for\n\nbare injunction is doubtful.\n                                          M.F.A.No.4787/2021\n\n                              22\n                                                              M\n\n\n\n\n        32.   Prima-facie    case     includes    prima-facie\n\nmaintainability   of   the   suit.   Having   regard   to   the\n\naforesaid facts and judgments in M/s.Gujarat Bottling\n\nCo.Ltd., Skyline Education Institution (Pvt.) Ltd., and\n\nJose's cases referred to supra relied on by learned\n\nCounsel for the respondent in no way advances his\n\ncase.\n\n        33.   For the aforesaid reasons, this Court finds it\n\na fit case to interfere with the order of the trial Court.\n\nTherefore the appeal is allowed with costs.\n\n        The impugned order is hereby set aside. I.A.No.1\n\nfiled by the plaintiff before the trial Court is hereby\n\ndismissed with costs.\n\n\n                                               Sd/-\n                                              JUDGE\n\npgg/KSR