Sharad Mor vs Arjun Dhanwatey and Yeshwantrao Dhanwatey

R.C. Chavan, J.—This appeal is directed against order passed by learned Civil Judge Senior Division, Nagpur below Exh.5 in Special Civil Suit No. 1100/2007, whereby the learned Judge rejected appellant''s application for injunction to restrain the respondents from creating third party rights over the suit property by way of sale, lease, gift, mortgage etc.

The facts, which are material for deciding this appeal are as under : Respondent No. 1 Arjun is recorded owner of the property wherein his father respondent No. 2 Yashwant has relinquished his right by a deed dated 31st October, 1974. Arjun entered into an agreement on 19th October, 2004 with the appellant/ plaintiff for sale and development of the property for a consideration of Rs. 1,71,63,000/out of which a sum of Rs. 95,63,000/was to be paid in cash and the balance of Rs. 76,00,000/was to be spent by the appellant/ plaintiff on providing two apartments of specifications, mentioned in the annexure to the agreement, to the vendor. Since the vendor resiled from his liabilities under the agreement the appellant filed a suit and by application Exh.5 claimed an injunction.

Respondent No. 1 took a defence that the transaction was one of loan for Rs. Two Lacs, while respondent No. 2 took a defence that he continued to have interest in the property and that the Deed of Relinquishment was executed in favour of his son on the advise that it was necessary for saving taxes.

After considering the contentions of the parties the learned Civil Judge passed the impugned order. Aggrieved thereby the appellant is before this Court.

I have heard Advocate Shri Deo, learned Counsel for the appellant. He submitted that though his client has either already taken, or is about to take, steps to get the lis registered in order to ensure the benefit of provisions of Section 52 of the Transfer of Property Act, that does not protect the interest of his client in entirety. He submitted that it would be necessary to restrain the respondents from creating third party interest in order to ensure that the property remains intact and his client is not thrown to the fate of fighting interminable litigation with those who may enter the property, or for securing restoration of the property to its present form. He submitted that he was aware of the view taken by this Court in Appeal Against Order No. 58 of 2009 that refusal of temporary injunction by the trial Court in such circumstances need not be interfered with, but pointed out that apart from what was considered in that case, there is a judgment of the Supreme Court in Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, which would support his claim for grant of an injunction.

I have carefully considered the arguments advanced, as also the judgment of the Apex Court on which the learned Counsel places reliance. In that case, the plaintiff had not filed a suit for specific performance of the contract. He had filed suit for possession, presumably on the basis of the title which he claimed in himself, and had sought an injunction therein to restrain the respondents from putting up any construction on the property. The trial Judge had granted an injunction, but the learned District Judge held that alienation, if any, made was subject to the law of lis pendens and constructions, if any put up will have to be removed by the defendants at their own risk and cost in the event of suit being decreed. The High Court recorded oral undertaking of the learned Counsel and dismissed the petition challenging the District Judge''s order. This is how the parties reached the Supreme Court. In the context of these facts, the observations of the Court in paragraph 10 of the judgment, reproduced below, have to be read:

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. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate Court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done.

( Emphasis supplied)

The learned Counsel for the appellant submitted that, from paragraph 10 of the judgment it can be gathered that unless extraordinary loss is shown to be caused to the defendant, the burden for showing which lies on the defendant, an injunction should not ordinarily be refused. This contention has to be rejected because, first, an injunction can be issued only if the party seeking injunction shows that it is going to suffer an irreparable loss if an injunction is not issued. The proposition of the learned Counsel is exactly opposite of this settled principle and he seems to want the defendant to show, he would suffer an irreparable loss if injunction is issued. Secondly, as the portion underlined by me in paragraph 10 quoted above would show, the observations of the Supreme Court are in the facts and circumstances of that case. They have not changed the law that an injunction cannot be granted only because it is not going to hurt the defendant. It is for the person seeking injunction to show that he would suffer irreparably, and not merely suffer, if an injunction is not issued. At the cost of repetition it has to be pointed out that the observations came in the context of suit for possession and not a suit for specific performance of the present type, where the appellant has parted with consideration of only Rs. Two Lacs out of the total consideration of Rs. 1,73,63,000/.

It has to be further pointed out that in that case, the trial Court had granted an injunction and the appellate Judge i.e. District Judge modified it. It is settled principle of law that in matters resting in discretion of the trial Court an appellate Court should be extremely slow in disturbing exercise of such discretion, unless it is shown that such exercise was unwarranted, perverse or was likely to cause such harm as may not be reversible. Therefore, in the present case, since the learned trial Judge has refused injunction and since it is not shown that the appellant''s interest cannot be protected otherwise than by grant of injunction, it is not necessary to interfere in the exercise of discretion by the trial Court, in refusing injunction.

The appeal is therefore, rejected with no order as to costs.