Posted On by &filed under Bombay High Court, High Court.


Bombay High Court
Sunil vs Jawaharlal on 20 August, 2011
Bench: S. S. Shinde
                        1                             A.O.107.11+ca

                                           
          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                            
              APPEAL FROM ORDER NO. 107 OF 2011
                            WITH




                                    
             CIVIL APPLICATION NO. 7177 OF 2011


          Sunil S/o Madanlal Agrawal,




                                   
          Age : 40 Years, Occup.: Agriculture
          and Business, R/o Raja Bazar,
          Aurangaad.                 ...APPELLANT 




                           
            VERSUS             

     1.           
          Jawaharlal S/o Nandlal Chittarke,
          Age: 53 Years, occup.: Agriculture,
          and Business R/o Kannad, Tq. And
          District Aurangabad.
                 
     2.   Madhukar S/o Trimbak Jadhav,
          Age : 50 Years, Occup. Agriculture
          and Business, R/o Bahirgaon, 
      

          Taluka Kannad, District Aurangabad.
                                     ...RESPONDENTS
   



                          ...
     Mr.A.D.Kasliwal,Advocate for Appellant.
     Mr.K.F.Shingare,Advocate for respondents.       





                          ...

                              CORAM: S.S. SHINDE, J.

                              DATE : 20TH AUGUST, 2011





                                       

     JUDGMENT :

1. This Appeal from Order is filed challenging

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the order passed below Exh.21 in Special Civil

Suit No. 510 of 2010, dated 17th June, 2011.

. With the consent of the parties Appeal from

Order is taken up for final hearing.

2. Background facts for filing this Appeal from

Order are as under:

. On 04.10.2010, appellant herein filed Special

Civil Suit NO. 510 of 2010 for mandatory

injunction regarding agreement of re-conveyance

dated 21th June 2005, executed by respondent NO.1

in favour of appellant and for recovery of

possession of the suit property from respondent

No.1 and further for perpetual injunction

restraining respondent No.2 from creating any sort

of third party interest in the suit property.

3. It is contention of the appellant that

financial condition of respondent NO.1 is good,

therefore, appellant in the year 2005 on or about

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second week of June, 2005 approached to the

respondent NO.1 for an amount of Rs. 1,50,000/-

(Rupees one Lakh Fifty Thousand) for his household

and domestic needs. Accordingly, registered sale

deed was executed by the appellant in favour of

respondent No.1 on 21st June, 2005 registered at

serial No. 3438.

. On 21st June, 2005 sale deed came to be

executed and the said sale deed according to the

appellant was for security of the loan amount of

Rs.1,50,000/-(Rupees one Lakh Fifty Thousand) and

as transaction was loan transaction, a Kararnama

was executed on the date of execution of the

aforesaid sale deed by respondent No.1 in favour

of appellant and thereby respondent No.1 has

agreed to re-convey the suit property in favour of

the appellant. It is further case of the appellant

that respondent NO.1 thereafter changed his mind

and deprived the appellant of his property by

selling the suit property for consideration of

Rs.4,21,000/-(Rupees Four Lakhs Twenty One

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Thousand) to respondent NO.1 vide sale deed dated

31st August,2010. The appellant got knowledge

regarding execution of the sale deed on or before

first week of September, 2010 when respondent NO.1

came to the suit property with 10 to 15 persons

and by force unlawfully dispossessed the appellant

from the suit property.

. It is further case of the appellant that on

6th October, 2010, appellant moved an application

for temporary injunction in the pending suit. The

trial Court was pleased to grant ad-interim ex-

parte injunction against present respondent No.2

vide order dated 6th October, 2010 and thereby

restrained respondent No.2 from creating third

party interest over the suit property and further

restrained from alienating the suit property till

further orders.

4. It is further case of the appellant that in

response to the suit summons and show cause notice

issued by the trial Court, respondent No.2 filed

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written statement and thereby contended that sale

deed executed by appellant in favour of respondent

NO.1 is out and out sale and further denied

execution of Kararnama dated 21st June, 2005 and

thereby prayed for dismissal of the suit and

rejection of the application Exh.5.

5. On 17th June, 2011 after hearing arguments of

parties, the trial Court was pleased to reject the

application filed by the appellant at Exh.5 by his

judgment and order dated 17th June, 2011. On the

same day, the appellant herein, after rejection of

the application at Exh.5 by the trial Court, moved

an application at Exh.21 and thereby prayed for

extension of ad-interim order. The trial Court was

pleased to pass the order on the said application

and thereby continued ad-interim ex-parte order

passed on 6th October, 2010, till 24th June, 2011.

Hence, Appeal from Order challenging the order

dated 17th June, 2011 passed below Exh.21 in

Special Civil Suit NO. 510 of 2010.

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6. Learned counsel appearing for appellant

submits that appellant has placed on record

affidavit of one of attesting witness of the

Kararnama dated 21st June, 2005 executed by

respondent No.1 in favour of appellant. According

to the learned counsel for appellant, the lower

Court ought to have taken into consideration the

affidavit of attesting witness of the Kararnama

dated 21st June, 2005, however, the trial Court

failed to appreciate the said affidavit. It is

submitted that, an application filed by the

appellant for temporary injunction ought to have

been allowed by the trial Court.

7. It is further submitted that trial Court

while passing impugned order observed that, the

appellant has failed to demonstrate that this case

falls under the caption of ‘rear cases’ where the

protection under section 52 of the Transfer of

Property Act, is inadequate to protect his right

and interest. However, trial Court while making

such observations has not considered the fact that

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the respondents have to make out the case that

there is irreparable loss or damage to them in

case interim relief is granted in favour of the

plaintiff. It is further submitted that the trial

Court ought to have taken into consideration that

in the event of appellant’s claim being found

baseless ultimately, it is always open to

respondent No.2 to claim damages, or in

appropriate case the Court itself can award for

damages for the loss suffered, if any.

8. Learned counsel appearing for appellant

invited my attention to grounds in the Appeal from

Order and submitted that since respondent No. 2

was restrained from creating third party right

during pendency of the application and the said

order has been continued by the trial Court even

after rejection of application and thereafter this

Court on 21st June, 2011, while issuing notice in

Appeal From Order and on Civil Application has

directed the parties to maintain status quo as to

the suit property as on today, therefore,

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according to learned counsel for appellant, said

interim order needs to be continued till disposal

of the suit.

9. On the other hand, learned counsel appearing

for respondents submits that reasons recorded by

the trial Court, while rejecting the application

for temporary injunction are based upon proper

appreciation of evidence and after appreciating

rival contentions, therefore, this court may not

interfere in this Appeal from Order. It is

further submitted that, the appellant herein

failed to establish his case. He invited my

attention to the sale deed dated 21st June, 2005

and submitted that said sale deed is registered

and executed on 21st June, 2005 and nothing has

been mentioned in the said sale deed about any

Kararnama. After execution of the said sale deed

mutation entry is taken in the name of defendant

No.1. Defendant No.1 has sold the property to

original defendant No.2 in the year 2010. It is

further submitted that, even if Kararnama at

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Exh.”C” of this petition is considered, in that

case also within three years from 21st June, 2005,

the appellant should have returned the entire

amount of Rs. 1,50,000/-(Rupees one Lakh Fifty

Thousand) with interest @ 24%, however, the

appellant has not taken any steps, therefore, such

period of three years come to an end on 21 st June,

2008. Therefore, according to the learned

counsel for respondents, original defendant NO.1

has sold the property to original defendant NO.2

in the year 2010 by executing sale deed, therefore

no interference in the impugned order is

warranted.

10. Learned counsel appearing for respondents

invited my attention to impugned order passed by

the trial Court and submitted that the Court has

taken into consideration all the aspects of the

matter including possession and also Kararnama,

hence he prays that application filed by original

plaintiff/appellant may not be entertained.

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     .       Learned counsel further invited my attention 

to the reported judgment of this Court in the case

of Kacchi Properties, Satara Vs. Ganpatrao

Shankarrao Kadam and others reported in 2010(5)

Mh.L.J.903, and submitted that provisions of

section 52 of the Transfer of Property Act

provides adequate protection to parties to lis.

Therefore, there is no occasions for invoking

powers under order 39 Rule 1 and 2 of the Code of

Civil Procedure. According to the learned counsel

for respondents, the Court has rightly placed

reliance on the aforesaid judgment and rejected

the application of the original

plaintiff/appellant, therefore, this Court may not

interfere in this Appeal from order.

11. I have given due consideration to the rival

submissions of the learned counsel for the

parties. Perused the entire compilation placed on

record and also other documents and judgments

cited by the counsels appearing for respective

parties.

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     .     On careful perusal of the impugned order, it 

appears to me that, the trial Court mainly placed

reliance upon the reported decision of this Court

in the case of Kacchi Properties, Satara Vs.

Ganpatrao Shankarrao Kadam and others reported in

2010(5) Mh.L.J.903 and has come to the conclusion

that provisions under section 52 of the Transfer

of Property Act provides adequate protection to

the appellant, and therefore it is not necessary

to entertain the application filed by the

appellant for temporary injunction. On reading of

para No. 22 of the impugned judgment/order, it

appears that the trial Court has recorded finding

that, the plaintiff has failed to demonstrate that

his case falls under the caption of ‘rare cases’

where the protection under section 52 of the

Transfer of Property Act is inadequate to protect

his rights and interest. In fact, such

observation/findings recorded by the trial Court

arecontrary to the judgment of the Hon’ble Supreme

Court in the case of Maharwal Khewaji Trust(Regd)

Faridkot Vs. Baldev Dass, reported in 2004(8) SCC

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488. In fact, as per aforementioned Judgment of

the Hon’ble Supreme Court, respondents have to

make out case that there is irreparable loss or

damage to them if such injunction is granted to

the plaintiff.

12. This Court had an occasion to consider the

judgment in Kacchi Properties, Satara Vs.

Ganpatrao Shankarrao Kadam and others reported in

2010(5) Mh.L.J.903, in the case of Pralhad

Jaganath Jawale and others Vs. Sitabai Chander

Nikam and others, reported in 2011(4) Mh.L.J.137.

This Court in para NO.14 held that, “as far as

Section 52 of the said Transfer of Property Act,

1882 is concerned, it is apparent that the same

does not put any restraint on a party to the suit

from alienating the suit property, but it provides

for legal effect of the transfer pendente lite.

Such pendente lite without permission of the Court

is neither illegal nor void.”

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     .       In   para   No.17,   it   is   further   held   that,"the 

order of prohibitory injunction grants protection

which is not available under section 52 in the

event of transfer pending a suit. Moreover, the

party who breaches the order of temporary

injunction may have to face the drastic

consequences provided in Rules 2A and 11 of Order

XXXIX of the said Code The consequences are in the

nature of an order of detention or striking out

the defence.” (emphasis added)

13. In para No. 24 of the said Judgment, this

Court has considered the Judgment of Apex Court in

the case of Maharwal Khewaji Trust(Regd) Faridkot

Vs. Baldev Dass, cited supra, in which it is

observed that, “A defendant is required to make

out a case that irreparable loss or damage will be

caused to him during the pendency of the suit if

he is not allowed to alter the status

quo.”(emphasis added)

14. In para No.25 and 26, it is further observed

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that, “where there is apprehension established

that defendant may create third party rights and

all three ingredients are satisfied, if temporary

injunction is not granted, it may result into

multiplicity of proceedings in as much as the

alienee pendente lite may apply for impleadment,

which will result in delay in proceedings of the

suit.”(emphasis added)

15. In the present case defendants i.e.

respondents herein have not made out any case that

irreparable loss or damages will be caused to them

during pendency of the suit if they are not

allowed to alter the status-quo.

16. In that view of the matter, in my opinion,

during pendency of the suit interest of the

appellant is required to be protected, therefore,

interim order granted by the trial Court during

pendency of the application and which was

continued even after rejection of the application

of the appellant deserves to be continued till

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disposal of the suit.

17. In the result, respondent NO.2 herein is

restrained from creating third party

rights/interest in the suit property till disposal

of the suit bearing Special Civil Suit No. 510 of

2010. Appeal From order and Civil Application are

allowed to above extent and same stand disposed of

accordingly.

Sd/-

[S.S. SHINDE, J.]

MTK

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