Jamnabai vs Narmadashankar

Samvatsar, J.—The appellant No, 1 Jamnabai is the widow of one Manoharlal Jaiswal who died on 27-2-1955 and the appellant No. 2 Kamlabai is his predeceased son''s widow. On 4-2-1956 they brought a suit against the Respondent Narmadashankar who is the surviving son of deceased Manoharlal for partition of property alleged to belong to the joint family consisting of themselves and the Defendant. The suit is filed in the Court of District Judge, Ujjain and the claim is valued at Rs. 3,05,375/3/4. Along with the plaint the Plaintiffs filed a special application under the previsions of Order 39 Rules 1 & 2 and Section 151 CPC Code. The application was summarily rejected by the trial Court as It was of opinion that the Plaintiffs'' Interest was sufficiently protected by the principle of lis pendens, and it was not necessary to issue a temporary injunction in this case. Aggrieved by this order the Plaintiffs have preferred this appeal under the provisions of Order 43 Rule 1, C.P.C.

In the application for temporary injunction, the Plaintiffs alleged that the Defendant was treating the property in suit as his exclusive property and was alienating it; that he bad already sold four houses and realized a sum of Rs. 18,7 00/-, and was likely to sell other property; that he should therefore be restrained from making any further alienations and be directed to maintain proper accounts of the shop and the income of the property.

The suit is not one to obtain an injunction and on this short ground the Plaintiffs'' application cannot be considered under Order 39 R. 2. S. 151 CPC also cannot be invoked as there is express provision in the Code to deal with this matter. This Plaintiffs'' application can be considered only under Order 39 Rule 1 Civil Pro. Code.

The question is, whether on the facts alleged In the application and the claim set out in the plaint, this is a fit case for granting temporary injunction under Order 39 R. 1.

The property involved in this suit Is quite a substantial property and the Plaintiffs only claim an undivided interest therein. On Plaintiffs'' own case the Defendant has considerable interest in it. Besides movable and immovable property the Defendant is also in-charge of extensive business which he has to carry on from day to day. Under the circumstances if an order of injunction is issued, it will not only affect the Defendant''s right to property but it is also likely to cause serious inconvenience to him in the management of the business. The balance of convenience is clearly against taking any such step unless there are special circumstances for doing so. No such special circumstances are proved to exist in this case. The Respondent has filed an affidavit in this Court in which he has stated that regular accounts are maintained with respect to the income of the houses and the dealings in the shop.

No order of injunction can be issued which would operate only to the extent of Plaintiffs'' undivided interest. In my opinion the Plaintiffs'' interest is sufficiently protected by the principle of lis pendens underlying Section 52 of the Transfer of Property Act and issue of injunction will only complicate matters.

It was urged by Mr. Newaskar, learned Counsel for the Plaintiff-appellants that the principle of lis pendens underlying Section 52 of the Transfer of Property Act will not afford the Plaintiffs a sufficient protection. He contended that in case further alienations were made by the Defendants, the Plaintiffs will have to implead the alienees as parties to the suit and this would cause unnecessary complications and hardship to the Plaintiffs. I do not think this, by itself, would be a sufficient ground for issue of an order of injunction and restraining the Defendant from dealing with the property.

This aspect of the matter has been considered by a Division Bench of the Calcutta High Court In Man Mohinee Dossee v. Ichamoyee Dossee, 13 Sutherland''s Weekly Reporter (Civil Rulings) 60. That was also a suit for partition of property in which there was a prayer made for issuing a temporary injunction. The Plaintiff''s prayer was granted by the trial Court and injunction was issued to restrain the Defendant from alienating property pendente lite. In appeal filed by the Defendants, the High Court vacated the injunction order and held that:

The power of issuing injunctions and appointing receiver pendente lite, which is given by the CPC Code, ought to be most cautiously exercised. It is only in cases where property, which it is essential should be kept in its existing condition during the pendency of the suit, is in danger of being destroyed, damaged, or put beyond the power of the Court, that the Court ought to interfere so as to restrain persons who may turn out in the final event of the litigation to be the actual owners of the property from proper enjoyment and possession of it.

The principle laid down in the aforesaid Calcutta case is directly applicable to the facts of the present case.

It was stated before us by Mr. Sanghi, learned Counsel for the Respondent that on the application of the Plaintiffs, the lower Court has got an inventory of all the property in dispute prepared and kept on record of the case. Under the circumstances he submitted that if the Defendant alienated any item of the property and failed to account for it, he could be suitably dealt with even at a later stage. He also submitted that the Plaintiffs had applied for appointment of a receiver also and that matter is pending in appeal in this Court.

Considering all these circumstances, we are of opinion that no case for an order of temporary injunction has been made out by the Plaintiff-appellants.

Mr. Newaskar, learned Counsel for the appellants placed considerable reliance on the decision of the Calcutta High Court in Pramath Nath Roy v. Jagannath Kishore Lal, 16 Indian Cases 359. That was a case where a suit for specific performance of an agreement to grant lease of certain property was filed by the Plaintiff and during the pendency of this suit, he applied to restrain the Defendant from leasing out the property to another person till the suit was disposed of. The prayer was allowed by the learned judges as they held

The rule in such cases is that if there is a clear valid contract for transfer, the Court will not permit the transferor afterwards to transfer the legal estate to a third person, although such third person, would be affected by lis pendens.

That was a suit based on a contract and the learned udges did not want to permit the vendor to back out from it and to transfer the legal estate to a third person. That is not the case here. The rule laid down by the Calcutta High Court in Pramath Nath Roy v. Jagannath Kishore Lal, therefore has no application to this case.

In my opinion there is no force in this appeal. It is therefore dismissed with costs.

Dixit, J.

I agree.