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2010 DIGILAW 4734 (MAD)

Ist Petitioner v. Ist Respondents

2010-10-27

M.VENUGOPAL

body2010
Judgment : 1. The Petitioners/Appellants/Plaintiffs have filed this Miscellaneous Petition praying for issuance of an order of injunction, restraining 1 to 4 Respondents/ Defendants from alienating or encumbering the suit property. 2. The Learned Counsel for the Petitioners/ Appellants/ Plaintiffs submits that the Petitioners on the basis of Sale Agreement dated 19.12.2004 have agreed to purchase the suit property from the Respondents/Defendants for a total Sale Consideration of Rs.8,50,000/- and paid a sum of Rs.1,50,000/- towards advance as part of Sale Consideration. 3. It is the contention of the Learned Counsel for the Petitioners/ Appellants/ Plaintiffs that the trial Court has committed an error in coming to the conclusion that the Sale Agreement is not a concluded contract etc., and has rejected the relief of specific performance and granted the alternative relief of refund of advance amount and as against the trial Courts Judgment and Decree, the Petitioners/ Appellants/ Plaintiffs have preferred the present Appeal before this Court. 4. The core contention put forward on the side of the Petitioners/ Appellants/ Plaintiffs is that pending disposal of the present Appeal, the Respondents/ Defendants are taking emergent steps to alienate and encumber the suit property and if they are allowed to do so, the Petitioners/ Appellants/ Plaintiffs will suffer irreparable loss and hardship and they will not be in a position to enjoy the fruits of the Decree and also that if the Petitioners/ Appellants/ Plaintiffs succeed in the Appeal, then the interest of the 3rd parties will come into picture and therefore, prays for issuance of an order of injunction in favour of the Petitioners/ Appellants/ Plaintiffs. 5. Per contra, it is the contention of the Learned Counsel for the Respondents 1 to 4 that the trial Court categorically held that the Agreement has not been concluded and has not come into force etc., and in regard to the Decree relating to the payment of advance, a Cross-objection has been filed and it is utter falsehood to state that the Respondents are taking emergent steps to alienate and encumber the suit properties. At any rate the Petitioners/ Appellants/ Plaintiffs cannot proceed to stall the right of the Respondents in alienating the property as the Petitioners/Appellants/ Plaintiffs have no semblance of right in the suit property and therefore, prays for dismissal of the injunction petition. 6. At any rate the Petitioners/ Appellants/ Plaintiffs cannot proceed to stall the right of the Respondents in alienating the property as the Petitioners/Appellants/ Plaintiffs have no semblance of right in the suit property and therefore, prays for dismissal of the injunction petition. 6. The Learned Counsel for the Petitioners/Appellants/Plaintiffs cites the decision of Honourable Supreme Court Maharwal Khewaji Trust (regd.), Faridkot V. Baldev Dass AIR 2005 SC 104 whereby and whereunder it is observed as follows: "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, and therefore, the respondent should be permitted to put the scheduled property to better use. In the facts and circumstances of the case, the lower appellate Court and the High Court were not 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. In the event of the appellants claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, Courts below erred in making the impugned orders. The said orders are liable to be set aside." 7. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, Courts below erred in making the impugned orders. The said orders are liable to be set aside." 7. He also relies on the decision of Honourable Court A.Abdul Rashid Khan (dead) and others V. P.A.K.A.Shahul Hamid and others 2001 AIR SCW 2361 wherein it is laid down as follows: "In a suit for specific performance even where any property is held jointly, and once any party to the contract has agreed to sell such joint property by agreement, then, even if other co-sharer has not joined, at least to the extent of his share, he is bound to execute, the sake deed. And there is no bar for passing the decree for specific performance with regard to share owned by the contracting parties for which co-sharer execute the sale deed. However, in the absence of other co-sharers there could not be any decree of any specified part of the property to be partitioned and possession given. The decree could only be to the extent of transferring the share of the co-sharer in such property to other such contracting party. The Vendee on the date of filing the suit has yet not become the owner of the property, as he merely seeks right in the said property through the decree of specific performance. When the sale deed itself has yet to be executed, and the purchasers right in the property has yet not matured, he cannot claim partition and possession over it. Even after decree is passed, his right will only mature when he deposit the balance consideration and the sale deed is actually executed. That apart there could not be any partition in the property, without other co-sharers joining, who are not parties to the disputed agreement of sale." 8. Even after decree is passed, his right will only mature when he deposit the balance consideration and the sale deed is actually executed. That apart there could not be any partition in the property, without other co-sharers joining, who are not parties to the disputed agreement of sale." 8. However, the Learned Counsel for Respondents 1 to 4 seeks in aid of the decision of Honourable Supreme Court Sanjay Verma V. Manik Roy and others (2006) 13 Supreme Court Cases 608 wherein it is held that the principle under lying Section 52 of the Transfer of the Property Act is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation and mere pendency of the suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. 9. It is to be noted that the provisions of Order 41.Rule 5 of Civil Procedure Code is a discretionary jurisdiction conferred upon a Court of Law and an interim order may be granted if sufficient cause is made out and the party invoking it satisfies the Court that it will sustain substantial loss as per decision of Honourable Supreme Court Moolchand Yadav V. Raga Buland Sugar Co Ltd (1982) 3 SCC 484 . 10. That apart, this Court pertinently points out that the Appellate Court has discretion to grant an order of stay or to refuse the same as per decision of Honourable Supreme Court Atma Rama Properties (P) Litd., V. Federal Motors (P) Ltd., (2005) 1 Supreme Court Cases 705. 11. Admittedly, the Petitioners/ Appellants/ Plaintiffs have preferred the present Appeal being aggrieved against the Judgment and Decree dated 31.08.2009 passed by the trial Court in O.S.No.336 of 2006. 12. Inasmuch as an Appeal is a continuation of trial Courts original proceedings and taking note of the fact that the Petitioners/ Appellants/ Plaintiffs have filed the present A.S.No.1089 of 2009 before this Court and the same is pending as on date, this Court exercising its discretionary power directs the Respondents/ Defendants to maintain status-quo till the disposal of main Appeal and the petition is accordingly disposed of.