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2014 DIGILAW 1126 (MP)

Satish Kumar Khandelwal v. Rajendra Jain

2014-09-08

J.K.JAIN, SHANTANU KEMKAR

body2014
ORDER 1. Heard on I.A.No.8329/2008 an application under Order XXXIX rule 1 and 2 read with section 151 of the Code of Civil Procedure. 2. Brief facts of this case are that the appellant/plaintiff had filed a suit for specific performance of the contract and permanent injunction in respect of agricultural land belonging to respondent No.1 and 2. After trial, learned District Judge, Indore vide judgment and decree dated 28.8.2008 declined to grant the relief of specific performance of the contract and ordered for refund of money of Rs.66.00 lacs. Being aggrieved with this judgment and decree, plaintiff/appellant filed appeal before this Court. In this appeal the appellant filed this application praying that the defendants be restrained from alienating or creating third party interest on suit land during pendency of the appeal. 3. Learned counsel for the appellant submits that the respondents are trying to alienate the suit property and if the property is alienated then it will create multiplicity of proceedings. Earlier also during the pendency of suit, the respondents No.1, 2, 4 and 5 executed the sale-deed in favour of respondents No.6 to 8. The appellant will be deprived of to get the fruits of the decree in the event of success. The appellant has a prima facie case and balance of convenience is also in his favour. In case injunction is not granted, then it would cause irreparable loss to the appellant; whereas the respondents are unable to show that in case the application is allowed they have to sustain irreparable loss. The Hon’ble Supreme Court reported in the case of Maharwal Khewaji Trust v. Baldev Dass [2005 (1) MPLJ 447] held that unless and until a case of irreparable loss or damage is made out by a party, Court should not permit the alienation or transfer of the property. 4. On the other hand, Shri M. L. Agrawal, learned senior counsel appearing for the respondents No.1 and 2 submits that the learned District Judge gave a finding that plaintiff Satish Kumar Khandelwal is an imaginary name. The transaction was a Benami transaction and no particulars of the land are mentioned in the agreement. Thus, the agreement is for uncertain land and such agreement is void. For this purpose, he relied upon the judgment of this Court in the case of Kanhialal and other v. Bhura and others [1978(1) MPWN 135]. The transaction was a Benami transaction and no particulars of the land are mentioned in the agreement. Thus, the agreement is for uncertain land and such agreement is void. For this purpose, he relied upon the judgment of this Court in the case of Kanhialal and other v. Bhura and others [1978(1) MPWN 135]. Injunction cannot be granted for individed and unspecified share for this purpose cited the judgment of this Court in the case of Heeralal and others v. Mannalal and another [Civil Revision No.527/1980] passed on 1.9.1982 by Indore Bench. The appellant has no prima facie case and he has not to suffer any irreparable injury or loss. On the other hand if the order is passed, the respondents have to sustain irreparable injury and loss. 5. Shri B. L. Pavecha, learned senior counsel appearing for the respondents No.4 and 5 submits that the learned District Judge gave a clear finding that the agreement is void. Thus the appellant has no case. Learned senior counsel cited the judgment of Hon’ble Supreme Court reported in the case of Vinod Seth v. Devinder Bajaj and another [ (2010)8 SCC 1 ] and submits that the suit prima facie extremely unlikely to succeed. In such a case the Court has not only refused to grant the injunction, but should exempt the suit property from the operation of section 52 of the Transfer of Property Act. Thus, the appellant is not entitled for any injunction. 6. Shri S. C. Bagadiya, learned senior counsel appearing for the respondents No.6 and 7 vehemently opposed the application and submits that the respondents should not be deprived of from enjoying their property. He submits that the rights of the appellant are protected under section 52 of the Transfer of Property Act. In such circumstances, the appellant is not entitled for any injunction in respect of alienating the suit land. 7. After hearing learned counsel for the parties, we have gone through the record. It is true that the learned trial Court gave a finding that the agreement is uncertain and the identity of the plaintiff is doubtful, but it is pertinent to note that the suit is not vexatious or malicious as trial Court partly decreed the suit in favour of the appellant. 8. We have considered the facts of this appeal. During the pendency of the suit, the trial Court declined to grant temporary injunction. 8. We have considered the facts of this appeal. During the pendency of the suit, the trial Court declined to grant temporary injunction. The appellant has challenged the order in Misc. Appeal. At that time respondents submitted undertaking to the effect that they shall not further alienate the suit land. On this undertaking, the appeal was disposed of. In the present appeal on 2.9.2008 an interim order has been passed against the respondents not to alienate the suit land till further orders. In our considered view in case the temporary injunction is not granted against the alienation f the suit land and appeal would be allowed, then it would create multiplicity of the proceedings. 9. Therefore, in the light of the judgment of Hon’ble Supreme Court reported in the case of Maharwal Khewaji Trust (supra), the application is allowed and the respondents are directed not to alienate the suit land or create third party interest till the pendency of the appeal. 10. List the case for final hearing under the caption “High Court Expedited Cases”. ..................