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
::: Downloaded on – 09/06/2013 17:39:42 :::
2 A.O.107.11+ca
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
::: Downloaded on – 09/06/2013 17:39:42 :::
3 A.O.107.11+ca
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
::: Downloaded on – 09/06/2013 17:39:42 :::
4 A.O.107.11+ca
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
::: Downloaded on – 09/06/2013 17:39:42 :::
5 A.O.107.11+ca
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.
::: Downloaded on – 09/06/2013 17:39:42 :::
6 A.O.107.11+ca
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
::: Downloaded on – 09/06/2013 17:39:42 :::
7 A.O.107.11+ca
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,
::: Downloaded on – 09/06/2013 17:39:42 :::
8 A.O.107.11+ca
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
::: Downloaded on – 09/06/2013 17:39:42 :::
9 A.O.107.11+ca
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.
::: Downloaded on – 09/06/2013 17:39:42 :::
10 A.O.107.11+ca
. 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.
::: Downloaded on – 09/06/2013 17:39:42 :::
11 A.O.107.11+ca
. 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
::: Downloaded on – 09/06/2013 17:39:42 :::
12 A.O.107.11+ca
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.”
::: Downloaded on – 09/06/2013 17:39:42 :::
13 A.O.107.11+ca
. 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
::: Downloaded on – 09/06/2013 17:39:42 :::
14 A.O.107.11+ca
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
::: Downloaded on – 09/06/2013 17:39:42 :::
15 A.O.107.11+ca
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
::: Downloaded on – 09/06/2013 17:39:42 :::
