Ajit Kaur vs Phuman Singh

A.N. Jindal, J.—The trail court as well as the first appellate court granted injunction against the Petitioner from alienating the suit property,

therefore, the Defendant- Petitioner has again come to challenge those orders by way of the present petition.

The case of the Plaintiff- Respondent (herein referred as, ''the Respondent'') is that the Petitioner- Defendant (herein referred as, ''the

Petitioner'') being the owner in possession of the land as detailed in the head note of the plaint agreed to sell the same in his favour for a sum of Rs.

15,25,000/- vide agreement dated 9.2.2007 after making the payment of earnest money to the tune of Rs. 8,25,000/- entered into an agreement

and he was to execute and get the sale deed registered in favour of the Respondent by 11.6.2007. Having failed to perform his part of contract,

the Respondent had to file the suit. Along with the suit an application for adinterim injunction was filed restraining the Petitioner from alienating the

suit property. The usual plea raised by the Petitioner is that he never entered into the agreement to sell and the same is the result of fraud. He has

explained in his written statement that the Respondent had managed to forge the said agreement to sell in connivance with the attesting witnesses,

scribe and one Milkha Singh son of Nihal Singh resident of village Gillanwala Tehsil Ferozepur, who was earlier owner in possession of the suit

land. The said Milkha Singh had lost litigation regarding the suit land up to the level of High Court against Rupinder Kumar from whom the

Petitioner had purchased the suit land. Earlier the suit filed by Rupinder Kumar was decreed against Milkha Singh. Milkha Singh had also lost in

appeal and also in the Regular Second Appeal before the High Court. Thereafter, he (the Respondent) in connivance with Milkha Singh concocted

this agreement purported to have been executed by the Petitioner in favour of the Respondent. Both the courts below decided the application for

ad-interim injunction against the Petitioner.

Learned Counsel for the Petitioner has contended that since the principles of lis-pendens could apply, therefore, no injunction could be granted

and in support of his contentions he has relied upon the judgment delivered in case Hari Singh v. Nishan Singh and Ors. Civil Revision No. 4879 of

2009 decided on 19.5.2010 and Hari Singh v. Banta Singh and Ors. Civil Revision No. 4967 of 2009, decided on 1.9.2009. As a matter of fact,

both these judgments do not discuss the provisions of Section 52 of Transfer of Property Act, 1882 (herein referred as, ''the Act'') in minute. The

provisions of Section 52 of the Act came for discussion before the Calcutta High Court in case Muktakesi Dawn and Others Vs. Haripada

Mazumdar and Another, wherein it was observed as under:

It is true that the doctrine of lis pendens as enunciated in Section 52 of the Transfer of Property Act takes care of all pendente lite transfers; but it

may not always be good enough to take fullest care of the Plaintiffs interest vis-a-vis such a transfer. The suit giving rise to the impugned order is

one for specific performance of sale in respect of the suit property and if the Defendant is not restrained from selling the property to a third party

and accordingly, a third party purchases the same bona fide for value without any notice of the pending litigation and spends a huge sum for the

improvement thereof or for construction thereon, the equity in his favour may intervene to persuade the court to decline, in the exercise of its

discretion, the equitable relief of specific performance to the Plaintiff at the trial and to award damages only in favour of the Plaintiff.

It must be noted that Rule 1 of Order 39 of the Code clearly provides for interim injunction restraining the alienation or sale of the suit property and

if the doctrine of lis pendens as enacted in Section 52 of the Transfer of Property Act was regarded to have provided all the panacea against

pendente lite transfers, the Legislature wold not have provided in Rule 1 for interim injunction restraining the transfer of suit property. Rule 1 of

6.39, in our view, clearly demonstrates that, notwithstanding the Rule of lis pendens in Section 52 of the Transfer of Property Act, there can be

occasion for the grant of injunction restraining pendente lite transfers in a fit and proper case.

Order 39 Rules 1 & 2 CPC had been enacted by the legislature in the interest of preservation and against loss or damage to the property during

the pendency of the suit, whereas, the effect of Section 52 of the Act could be seen at the final stage of the suit. If the property changes hands

during the pendency of the suit then it may give rise to the multiplicity of suits and subject matter of the suit is likely to be change many hands if a

person not party to the lis changes nature of property by spending huge money and he had no notice of the litigation then equity may stand in the

way of the court to grant the relief of specific performance which is purely a discretionary in nature. The proposed vendee though does not have

any clear title over the property but he having parted with the huge amount creates a vested right in it to get it transferred in his favour and could

come forward to prevent the mischief of proposed vender in transferring the same to some body else and request him not to alienate it further till

his rights are established. It is also pertinent to mention here that such sale further multiplies the litigation if the subsequent vendee, on the strength of

such document of transfer further pledges or mortgages the said land and obtains a huge loan, then the person or institution so advancing the loan

would feel cheated. The court at the time of grant of injunction is not to see the effect of such sale but examine the comparative loss. The balance

between the convenience and inconvenience of the parties and to save the suit property from being changed, damaged or destroyed. The Calcutta

High Court in Muktakesi Dawn''s case (supra) while discussing the role and scope of Section 52 of the Act as well as the intention of the

legislature to enact the provisions of Order 39 Rules 1 & 2 CPC observed as under:

.... We accordingly reject this contention of Mr. Roy Choudhury that the impugned order of injunction restraining pendente lite transfer ought not to

have been granted as the rule of lis pendens, as enacted in Section 52 of the T.P. Act, is there to take care of such transfer.

The Apex Court in case Julien Educational Trust Vs. Sourendra Kumar Roy and Others, dealt with the scope of Order 39 Rules 1 & 2 of CPC

in case of such alienation. It was also a suit for specific performance and the court while granting injunction against the Defendants from alienating

and encumbering the suit property and changing the nature and character thereof till the disposal of the suit observed as under:

We are satisfied from the materials on record that a prima facie case has been made out by the Appellant Trust as to the agreement for sale,

which has to go to trial. Whether there was a concluded contract or not between the Appellant Trust and, the Respondent Nos. 1 to 8 is a matter

of evidence and can only be gone into during the trial of the suit. This brings us to the all important question as to whether the balance of

convenience and inconvenience lay in favour of the grant of an interim order of injunction in favour of the Appellant Trust and as to whether, the

Appellant Trust would suffer irreparable loss and injury, if no such interim order was passed.

Although, it has been submitted by Mr. Nariman as well as Mr. Bondopadhyaya that loss, if any, to the Appellant Trust could be compensated

in terms of money, the said submission does not appear to hold good in the instant case. Equally important is the question of balance of

convenience and inconvenience since the principal object of the Appellant Trust is wanting to acquire the suit property was to extend its school unit

at Kolkata. If the suit property is allowed to be commercially exploited by raising multi-storeyed structures thereupon, the entire object of the suit

filed by the Appellant Trust will be rendered meaningless and the purpose for which the suit had been filed would be completely defeated.

The Apex Court in the aforesaid judgment wanted to convey that not only the balance of convenience but inconvenience of the parties is also to

be seen. The proposed vendee who with a hope to extend his business entered into a commercial transaction; parted with huge money cannot

allow the Petitioner to enter into subsequent transactions of sale qua the same property with other people. If the Petitioner further transfers the

property and the said property is allowed to be commercially exploited by raising multi-storeyed structure thereon, then the entire object of the suit

filed by the Respondent would be rendered meaningless and it would also be difficult for the Respondent to execute the decree for specific

performance. It has also been observed by the Apex Court in case Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, as under:

Be that as it may, Mr. Sachhar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the

court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss

or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings....

Notwithstanding the fact, where injunction is being designedly sought on the basis of a frivolous or fabricated documents and court feels satisfied

that on grant of such injunction lawful rights of the Plaintiff would be infringed then the court may consider the factum of inconvenience in favour of

the Plaintiff but in case where a party has parted with a huge amount and there is a danger of suit property being damaged, wasted or its nature

changed or the court is satisfied that in case the injunction is not granted there would be multiplicity of suits and it would be difficult for the court to

enforce performance of the decree, the injunction shall be granted.

In the instant case also, if the property is allowed to change hands and exploited for the use by the vendees then the Respondent would certainly

suffer an irreparable loss. The crux of the issue is that the provisions of Section 52 of the Act, though may be used in cases of sales which came in

existence during the pendency of suit or in other fit and appropriate cases but that does not make the provisions of Order 39 Rule 1 CPC as

redundant and the same could be put into operation keeping in view the peculiar circumstances of each case. The courts below while examining the

facts and circumstances of the present case appear to have taken correct view of the matter.

No. ground to interface.

Dismissed.