Agarwal & Co. v. State of Rajasthan — 1985 DIGILAW 624 (RAJ)

K.S. LODHA, J.—This is a plaintiffs revision against the order of the learned Addl. District Judge No. 1, Hanumangarh dismissing his appeal against the order of the learned Civil Judge, Hanumangarh dated 3.7.84, dismissing the application under O. XXXIX rules 1 and 2 C.P.C. 2. The facts giving rise to this revision briefly stated are that the plaintiff-applicant filed a suit for specific performance of a contract as also for permanent injunction against the defendants-respondents. The case of the plaintiff was that the brick-kiln was auctioned on 15.11.79, where at the highest bid of Rs. 9000/- was of the plaintiff and he deposited the 1/4th amount of the bid, viz., Rs. 2250/- at the spot. The remaining amount was to be paid when the bid was to be sanctioned by the Collector under rule 9 of the Rajasthan Colonisation (Project Area) Brick Kiln (leases) Conditions, 1966. It was further alleged that for a long time he did not receive any intimation about the sanction of the lease by the Collector. Ultimately it appears that the lease was sanctioned on 27.9.80 but no intimation of this sanction was ever sent to the plaintiff and, there fore, he could not deposit the remaining amount in time. Later, on 31.8.82 the Tehsildar concerned gave him a notice intimating that as he has failed to deposit the outstanding amount the 1/4th amount deposited by him was forfeited and if he had any objection to this, he should appear and make the same. It further appears that thereafter the brick-kiln was put to auction again on 29.7.82. It is not disputed that along with other persons, the present petitioner also gave bid at this auction. Then in June, 1983 the plaintiff filed a suit for injunction restraining the authorities concerned from re-auctioning the brick-kiln and in that suit he applied for grant of temporary injunction which was refused by the trial court on 4.6.83 and this order was maintained in appeal as well as in revision by the orders dated 17.1.84 and 6.3.84 3. On the dismissal of this application, the plaintiff gave a notice under section 80 C.P.C. on 14.3.84 and later filed the present suit for specific performance of the contract on 8.5.84 as the auction was fixed on that day. 4. On the dismissal of this application, the plaintiff gave a notice under section 80 C.P.C. on 14.3.84 and later filed the present suit for specific performance of the contract on 8.5.84 as the auction was fixed on that day. 4. He also moved an application under O. XXXIX rules 1 and 2 C.P.C. and on that very day notice was ordered to be issued. The Tehsildar was served on that very day but the Collector was served on 10.5.84 and in the meantime the auction was completed on 8.5 84. The possession of the kiln was handed over to the auction purchaser on 7.9.84. The plaintiffs application under O. XXXIX rule 1 C.P.C. was rejected by the trial court by its order dated 3.7.84 and that order has been maintained by the appellate court by its order dated 2.3.85, Hence this revision. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the petitioner urges that the two courts below have acted illegally and material irregularity in dismissing the plaintiffs application under O. XXXIX rules 1 C.P.C. by ignoring the provisions of sec. 52 of the Transfer of Property Act which give a negative mandate against the transfer of immovable property pending any suit relating to any right to that property and as in this case the right to the kiln on account of the earlier auction is a matter in dispute, the second auction and thereby transfer of the kiln to a third party would be hit by sec. 52 of the Transfer of Property Act. In support of this contention he placed reliance upon Hiranya Bhusan Mukherjee vs. Gouri Dutt Maharaj (1) and Gouri Dutta Maharaj vs. Sukur Mohammed (2). He laid great stress on the words the property cannot be transferred or otherwise dealt with by any part to the suit or the proceeding appearing in sec. 52 of of the Transfer of Property Act and urges that this was a clear negative mandate. He further added that the section further provides for transfer with the authority of the court, and on such terms as it may impose which according to him further go to show that without such authority of the court, the transfers, pending the suit would be against law and void. 7. I have given my careful consideration to this contention. He further added that the section further provides for transfer with the authority of the court, and on such terms as it may impose which according to him further go to show that without such authority of the court, the transfers, pending the suit would be against law and void. 7. I have given my careful consideration to this contention. Before I come to the question raised by the learned counsel for the petitioner, it may be stated at the out set that both the courts below have considered the three ingredients necessary for the grant or refusal of temporary injunction and have found all the three to be against the plaintiff. Sitting in revision I do not feel persuaded to take a different view. 8. Now, I come to the question whether the courts have acted illegally and material irregularity in the exercise of their jurisdiction by ignoring the principle laid down under sec. 52 of the Transfer of Property Act. In the first place, I am of the opinion, that the courts below cannot be said to have acted in this manner because the illegality or irregularity must be in the manner of exercise of jurisdiction and not in taking a view which may not be correct in law. In the second place, I am also of the opinion that the view taken by the learned Add. district Judge in respect of sec. 52 of the Transfer of Property Act does not appear to be wrong. What the learned counsel wants to be read in sec. 52 of the Transfer of Property Act does not appear to be in that section. According to him sec. 52 completely debars a further transaction in respect of the immovable property regarding which, same right is in dispute before a court. All that sec. What the learned counsel wants to be read in sec. 52 of the Transfer of Property Act does not appear to be in that section. According to him sec. 52 completely debars a further transaction in respect of the immovable property regarding which, same right is in dispute before a court. All that sec. 52 lays down is that the transferor cannot transfer or otherwise deal with the property so as to affect the rights of any other party to the suit In other words it means that if a suit is pending in which any right to immovable property is directly and specifically in question, that property cannot be transferred or other wise dealt with by any party to such suit so as to affect the rights of any other party to that suit and if such a transfer takes place the subsequent transferee will be bound by the ultimate decree that may be passed in that suit and he cannot claim any right to the property in preference to the earlier transferee if the suit is decreed. The two authorities relied upon by the learned counsel also do not take a contrary view and do not lay down, as purposed by the learned counsel that such a subsequent transfer is altogether barred by s. 52 of the Transfer of property Act. They also do not lay down that the said sec. completely debars any such transaction pending the suit in which the right to that property is in question, In Hiranya Bhusan Mukherjees case (supra) sec. 52 has been explained by saying "The doctrine with which this sec. They also do not lay down that the said sec. completely debars any such transaction pending the suit in which the right to that property is in question, In Hiranya Bhusan Mukherjees case (supra) sec. 52 has been explained by saying "The doctrine with which this sec. is concerned rests upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendents lite were permitted to prevail (emphasis added)." Reference was also made to Faiyaz Hussin Khan v. Munshi Prag Narain (3) wherein the Privy Council had said "pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent " So also in Gouri Dutta Maharajs case (supra), their Lordships observed that "the broad purpose of S. 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination." None of these two authorities has laid down that subsequent transaction relating to the property in dispute is void ab-inito or is totally prohibited under Sec. 52 of the Transfer of Property Act. 9. Placed with this situation the learned counsel for the petitioner urges that in a suit for specific performance of a contract temporary injunction should be granted as a rule to prevent any further transfer of the property by the same transferor and in this connection be placed reliance upon Begum vs. Seth Dooli Chand (3) and Pramatha Ray vs. Jagannath Kishore Lal Singh (5). 10. I have given my careful consideration to this contention also and I am of the opinion that the principle cannot be so broadly stated. It may be stated that generally in a suit for specific performance of a contract the court may grant an injunction preventing further transfer inspite of the fact that the plaintiff may be affected by the doctrine lis pendens but it can not be said that in such cases temporary injunction has to be granted as a matter of course or routine. Even in the cases cited by the learned counsel all that has been stated is that if there is clear valid contract for transfer, the court will not permit the transfer afterwards to transfer the legal estate to a third person, although such third person would be affected by lis pendens. Even in the cases cited by the learned counsel all that has been stated is that if there is clear valid contract for transfer, the court will not permit the transfer afterwards to transfer the legal estate to a third person, although such third person would be affected by lis pendens. Thus it would depend on the facts and circumstances of each case. In the present case, as already pointed out above, the two courts below have found that there is no prima-facie case in favour of the plaintiff inasmuch as his contract cannot be said to be a clear valid contract for sale inasmuch as he not did deposit 3/4th amount of the contract, but had already made applications for the withdrawal of the 1/4th amount deposited by him before the lease was sanctioned by the Collector in his favour and he had also participated in giving bids at the subsequent auction and treating his earlier agreement to have come to an end. It would not be proper for me to deal with this aspect of the matter in detail, lest it should prejudice the parties at trial. 11. I am clearly of the opinion that the orders passed by the two courts below do not call for any interference. The revision petition, therefore, fails and is hereby rejected. 12. Looking to the circumstances of the case I shall leave the parties to bear their own costs.