IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23454 of 2010(O)
1. THOMAS MATHEW, MATTATHIL,
... Petitioner
Vs
1. KOSHY VARGHESE, THAVALATHIL
... Respondent
For Petitioner :SRI.V.V.ASOKAN
For Respondent :SRI.T.M.ABDUL LATHEEF
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :28/09/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P.(C).No.23454 of 2010
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Dated this 28th day of September, 2010
JUDGMENT
This writ petition is in challenge of Ext.P6, judgment dated
24-06-2010 in C.M.A.No.15 of 2010 of the court of learned
District Judge, Pathanamthitta confirming Ext.P4, order dated
05-03-2010 on I.A.No.8 of 2010 in O.S.No.5 of 2010 of the court
of learned Sub Judge, Pathanamthitta. Petitioner filed O.S.No.5 of
2010 for a decree for specific performance of an agreement for
sale dated 25-08-2009 describing the suit property as about 5
cents. Vide I.A.No.8 of 2010 petitioner prayed for an order of
injunction to restrain respondent from alienating the property,
inducting 3rd parties into, or committing waste in the property.
That application was resisted by respondent on various grounds.
Learned Sub Judge dismissed the application which was
confirmed by the learned District Judge. Hence this writ petition.
Learned counsel for petitioner contends that courts below went
wrong in not granting injunction to preserve the property which
is the subject matter of the agreement for sale and the suit for
specific performance. Learned counsel contends that though a
pendente lite transfer under Section 52 of the Transfer of
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Properties Act, a sale if effected by the respondent may involve
claims by third parties and even multiplicity of suits and to
prevent that, an order of injunction is necessary. Learned counsel
for respondent contends that courts below have exercised the
discretionary jurisdiction in a proper manner and there is little
scope to invoke the supervisory jurisdiction under Article 227 of
the Constitution. Learned counsel contends that petitioner has
come to court with unclean hands as found by the courts below.
He is not entitled to the discretionary relief of injunction.
2. It is not disputed that there was an agreement for sale
describing the property to be sold as 7 and odd cents.
Consideration stipulated in the agreement is Rs.5,00,000/- per
cent. It is not dispued that petitioner paid Rs.5 lakhs to the
respondent by way of advance sale consideration. There was a
further payment of Rs.5,00,000/- to the respondent, he claims,
and petitioner obtained a cheque for the said payment. It is the
case of respondent that based on that cheque petitioner
preferred a complaint against him for offence punishable under
Section 138 of the Negotiable Instruments Act, that complaint
ended in a dismissal and that matter is pending in revision in the
Sessions court. There appears to be some dispute regarding the
extent of property. Though the agreement stated 7 and odd cents
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as the extent of property, in the plaint schedule extent of
property stated is 5 cents. Petitioner has an explanation for that-
the property on measurement was found to have only that much
extent. Courts below have considered the respective contentions
and found on facts that prayer for injunction cannot be allowed.
3. In Abdul Razak Vs. Mangesh Rajaram Wagle
(2010(1) KLT SN 33 (C.No.42) SC) the Supreme Court has
stated the circumstance under which the High Court could
interfere under Article 227 of the Constitution. When a
subordinate court is found have acted without jurisdiction by
assuming jurisdiction where there exists none, or in excess of its
jurisdiction by overstepping or crossing the limits of jurisdiction,
or acting in flagrant disregard of law or the rules of procedure or
acting in violation of principles of natural justice where there is
no procedure specified, and thereby occasioning failure of
justice, supervisory jurisdiction under Article 227 of the
Constitution is exercised to keep the subordinate courts within
the bounds of their jurisdiction. In the present case courts below
exercised the discretion and found that petitioner is not entitled
to the injunction prayed for. In Fareeda Vs. Rajan Babu (1992
(1) KLT 162) and Seema Arshad Zaheer Vs. Municipal
Corporation (2006(4) KLT 65-SC) it is held that where the
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trial court has exercised judicial discretion and refused
injunction, even the appellate court has no jurisdiction to grant it,
even if it is assumed that a different view is possible. The
situation here is still worse, as the appellate court also confirmed
the order of trial court referring to grant injunction and this court
is called upon to take a different view in exercise of tis
supervisory jurisdiction under Article 227 of the Constitution. I
am not persuaded to think that courts below have refused to
exercise their jurisdiction while refusing to grant injunction. I
must also bear in mind that the interest of petitioner is protected
by Section 52 of the Transfer of Properties Act and a pendente
lite transferee, bonafide or otherwise and with or without notice
of pendency of the suit is bound by any decree that may be
passed in the case. Assuming that the court in its discretion
grants a decree for recovery of advance money, the property
would bear a statutory charge for that amount. Right to alienate
is part of proprietory title. Circumstances brought on record do
not require that right of respondent to be prevented for any
reason. he is bound by the decree that is passed in this case.
Alienating the property and inducting 3rd parties into the property
cannot be accepted. At the same time there is no reason why
respondent should alter the present condition of the property and
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commit waste therein.
5. Learned counsel for respondent undertakes that
present condition of the property will not be altered or waste
committed in the said property. In case respondent wants to
make any alteration to the property, he shall obtain permission of
the trial court for the same purpose.
The Writ petition is disposed of in the following lines:
(i) The undertaking made by learned
counsel for respondent that the present condition
of the property will not be altered and no waste
will be committed thereon is accepted and
recorded.
(ii) In case respondent seeks to make any
alteration in the property, it shall do so with the
prior permission of the trial court.
(iii) It is made clear that the undertaking
made above does not prevent respondent from
alienating the property and putting the alienee in
possession but the alienee will be bound by the
undertaking made by the respondent as stated
above.
(THOMAS P JOSEPH, JUDGE)
Sbna/-