Mohan Lal vs Havaldar, Birda Ram Burdak and Another

Jitendra Ray Goyal, J.—Vide this order the application under Order 41 Rule 5 of the CPC (in short the ''Code'') is being disposed of.

The relevant facts in brief are that the plaintiff filed a civil suit for specific performance of the written agreement dated 4/4/2005 and permanent injunction against the defendant-respondent No. 1 Havaldar Birdaram Burdak with the averments that the defendant Havaldar Birdaram, Ex-Army person, requested the plaintiff to arrange the payment of the plot in question with the understanding that in case the defendant succeeds for allotment of the plot from the Jaipur Development Authority under Ex-Service Men''s quota, he shall transfer the plot to the plaintiff in proportion of the amount deposited by the plaintiff. Here it is not necessary to narrate the details of the oral agreement.

In 1992 the plot in question bearing No. C-1/28 measuring 252 sq.mtrs. was allotted in the name of the defendant Havaldar Birdaram Burdak and entire payment of Rs. 1,97,000/- was arranged by the plaintiff Mohan Lal and thereafter vide written agreement dated 4/4/2005 the defendant agreed for transfer of half portion of the plot in the name of the plaintiff. Lateron the defendant declined to perform his part of the agreement to transfer the half portion of the plot to the plaintiff, hence the plaintiff prayed for specific performance of the agreement dated 4/4/2005 and further prayer of permanent injunction was made.

The defendant in written statement denied all the averments with regard to oral as well as written agreement with the plaintiff and he further pleaded that the suit is barred by the provisions of the Benami Transactions (Prohibition) Act, 1988 (in short the Act of 1988).

The application under Order 7 Rule 11 of the Code was moved by the defendant that the suit stands barred by the Act of 1988 and the same is liable to be dismissed.

Learned Additional District Judge having heard the Counsel for the parties dismissed this application vide detailed order dated 7/12/2007 with specific observations that it is case of none that plaintiff has purchased the plot in the name of the defendant, rather it is a clear case of specific performance of the agreement dated 4/4/2005 and thus the provisions of the Act of 1988 are not attracted in the instant case.

The order dated 7/12/2007 was challenged by the defendant by filing the S.B. Civil Revision Petition No. 6/2008 titled as Havaldar Birda Ram Burdak v. Mohan Lal. This Court vide order dated 8/1/2008 while dismissing the said revision petition observed that trial court would frame the issues including the issue regarding transaction being Benami and may decide the said issue as preliminary one.

Thereafter issues were framed by the trial court including issue No. 4 with regard to applicability of the Act of 1988.

Learned Additional District Judge No. 7, Jaipur City, Jaipur vide impugned judgment decided issue No. 4 in favour of the defendant-respondent No. 1 and thus dismissed the suit for specific performance but passed money decree of Rs. 1,97,000 in favour of the plaintiff. Hence, this regular appeal by the plaintiff.

A perusal of the memo of appeal reveals that after dismissal of the suit for specific performance on 5/9/2008 the defendant Havaldar Birdaram sold the plot in question to respondent No. 2 Dr. Arvind Kumar Sharma vide registered sale deed dated 15/9/2008 i.e. just after 10 days of the passing of the impugned judgment and decree and in view of this background the respondent No. 2 Dr. Arvind Kumar Sharma has been impleaded as party in this appeal.

The aforesaid application under Order 41 Rule 5 of the Code has been filed with the appeal with the prayer that the plaintiff has got strong prima facie case and the balance of convenience also lies in his favour and in case the respondents are not restrained, as prayed, he would suffer irreparable injury.

I have heard the learned Counsel for the parties and perused the entire material available on the record.

It was argued by Shri Rastogi, learned Counsel for the appellant-plaintiff, that it is a case for specific performance and permanent injunction restraining the defendant No. 1 from transferring the plot, based on written agreement dated 4/4/2005 and not the case of ''Benami'' transaction. It was then contended that within a period of 10 days of the passing of the impugned judgment and decree the defendant-respondent No. 1 Havaldar Birda Ram Burdak sold the disputed plot to Dr. Arvind Kumar Sharma, respondent No. 2 herein, who immediately started construction for expanding his hospital and that too with zero set-back and without any proper permission for the construction of the commercial building from the competent local authority and therefore, such transfer is not only melafide but also null and void in view of Section 52 of the Transfer of Property Act and in case the defendant No. 2 Dr. Arvind Kumar Sharma is not restrained from raising the construction a number of complications would arise between the parties. Learned Counsel for the appellant placed reliance on the judgment delivered in the case of Bhupatlal Govindji v. Bhanumati Dayalal reported in AIR 1984 Guj 10, wherein the plaintiff was in possession even during the pendency of the suit and after dismissal of the suit even within 9 days before filing of the appeal the defendant by locking the doors prevented the plaintiff from entering the premises and in these facts and circumstances it was held that appeal is a continuation of the suit and the appellate court was correct in granting mandatory injunction with delivery of possession without any formal prayer.

Per contra, Shri P.C. Jain, learned Counsel appearing for the respondent No. 2 contended that at the time of sale of the plot to him there was no litigation pending; that the respondent No. 2 is a bonafide purchaser and has already spent a huge amount in raising the construction of the plot after taking loan from the bank; that no such stay as prayed can be granted under Order 41 Rule 5 of the Code, hence the construction may be allowed subject to ultimate decision of appeal. He placed reliance upon the judgment delivered in the case of Mandali Ranganna and Others etc. Vs. T. Ramachandra and Others,

Shri R.K. Agrawal, learned Counsel appearing for defendant-respondent No. 1, argued that suit was rightly dismissed by the trial court, therefore, appellant has no prima facie case in his favour. He also submitted that defendant-respondent No. 1 is prepared to deposit the decreetal amount.

I have considered the rival submissions made at the bar. So far the objection with regard to propriety of granting temporary injunction on an application under Order 41 Rule 5 of the Code is concerned, I do not see any weight in the submissions made by Shri P.C. Jain, learned Counsel for the defendant-respondent No. 2, since in the instant case all the required ingredients of temporary injunction provided under Order 39 Rule 1 & 2 of the Code have been incorporated in the application filed by the appellant.

Therefore, in my views, appropriate injunction order can be granted by the appellate court on such application.

So far merit of this matter is concerned, this appeal arises from the suit for specific performance of the written agreement dated 4/4/2005. From the perusal of the written statement, it transpires that the defendant-respondent No. 1 categorically denied from any oral agreement as well as from written agreement and only in his special pleas he took the plea in regard to bar of the suit on account of Section 4 of the Act of 1988 without detailing in regard to any ''Benami'' transaction in between the parties. Therefore, a serious question in this regard is to be decided in this appeal. It would not be appropriate to make any observation on the submissions made on behalf of the parties regarding application of relevant provisions of the Act of 1988 since it may prejudice the case of either party, however, keeping in view all the facts of the instant case it can be observed that the plaintiff-appellant has a good prima facie case and the balance of convenience also lies in his favour and in case further construction is allowed to be raised a number of complications would arise between the parties which may cause irreparable loss to the plaintiff-appellant. The judgment delivered in Mandali Ranganna and Ors. case (supra) relied upon by the learned Counsel Shri P.C. Jain does not help to the defendant-respondent No. 2 being distinguishable on facts since in the cited judgment the appellant kept quiet for a long time and allowed another to deal with the property exclusively who spent about Rs. 3 crores during the pendency of the suit and huge construction came up on disputed land. Therefore, in this factual scenario the Hon''ble Apex Court allowed the respondent to carry out the construction of building subject to ultimate decision of the suit, whereas in the instant case the stay order was in force during the pendency of the suit and the plaintiff-appellant immediately approached to this Court after dismissal of the suit and only some construction has been raised during the period when the undertaking given by respondent No. 2 Dr. Arvind Kumar Sharma not to raise further construction could not be continued by the Court. Therefore, in view of the entire discussion made here-in-above, this application deserves to be allowed.

Consequently, the application is allowed and the respondents are hereby restrained from transferring in any manner half of the disputed plot and from raising any construction thereon till decision of this appeal.