Allahabad High Court
Omkar Singh And Another vs Surendra Pal Singh And 6 Others on 3 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:1542
Court No. - 36
Case :- FIRST APPEAL FROM ORDER No. - 1103 of 2024
Appellant :- Omkar Singh And Another
Respondent :- Surendra Pal Singh And 6 Others
Counsel for Appellant :- Maha Prasad
Counsel for Respondent :- Manoj Kumar Maurya,Ravi Anand Agarwal,Shreya Gupta
Hon'ble Kshitij Shailendra,J.
1. Heard Sri S.F.A. Naqvi, learned Senior Counsel, assisted by Sri Maha Prasad, for the appellants and Ms. Shreya Gupta for the respondents no.1 and 2.
2. Affidavits have been exchanged between the parties and, therefore, the Court proceeds to decide the appeal finally.
3. The first appellant was defendant no.4 in Original Suit No.35 of 2024, whereas second appellant was subsequently impleaded as defendant no.6 on account of a sale deed executed in his favour. Both the appellants have assailed the order dated 24.05.2024 whereby the learned Civil Judge (Senior Division), Hathras has restrained first and third sets of defendants from changing nature of the suit property, raising constructions thereon, causing damage to the same and from further alienating it.
4. Learned Senior Counsel submits that a registered agreement for sale dated 04.01.2023 was executed in favour of four persons, i.e. respondents no.1 and 2, appellant no.1 and respondent no.7, which contained a stipulation that the sale deed would be executed within a period of one year. Before expiry of the period of one year, executant Ram Kishan died on 05.09.2023 and his successors, i.e. respondents no.3 and 4, denied execution of the sale deed by refusal pursuant to a notice issued by the plaintiffs as regards execution of the sale deed and, subsequently too, by issuing notice dated 30.12.2023 to the plaintiffs disclosing their intention not to sell the property to the plaintiffs but to cancel the agreement. It is further contended that the suit was instituted on 13.02.2024 and four days prior thereto, a registered sale deed was executed in favour of the appellant no.2 and he became owner thereof and, therefore, the trial court was not justified in granting injunction against true owner in the totality of the facts and circumstances of the case.
5. Per contra, Ms. Shreya Gupta submits that three sale deeds were executed in the instant case, one in favour of the appellant no.2 and other two sale deeds in favour of respondents no.5 and 6 and all the purchasers are relatives of appellant no.1 who was one of the persons in whose favour agreement was executed. It is further contended that a registered agreement for sale cannot be cancelled by a notice simplicitor and there has to be either a registered document cancelling the same or a decree passed by the civil court. Further, attention of the Court has been drawn towards second paragraph of joint written statement filed by the defendants no.1 and 2 wherein there is an admission regarding execution of the agreement for sale and payment of advance money of Rs.17,10,000/- out of total sale consideration of Rs.50,00,000/- In support of plea of injunction, reliance has been placed upon a recent decision of Supreme Court dated 22.11.2024 passed in Civil Appeal No.13001 of 2024 (Ramakant Ambalal Choksi Vs. Harish Ambalal Choksi and others) and another judgment dated 22.03.2018 passed by coordinate Bench of this Court in Smt. Sapna Tiwari Vs. Special Judge (Prevention of Corruption Act), Court No.3, Lko and another: 2018 SCC Online 6751.
6. Having heard learned counsel for the parties, I find that only two of the persons in whose favour agreement for sale had been executed are plaintiffs in the suit in question. Remaining two persons were arrayed as defendants and one of them has become appellant in the present appeal. Second appellant is purchaser through one sale deed executed prior to institution of the suit. All the purchasers have already been impleaded in the suit. The sale deed having been executed in between execution of agreement for sale and the institution of suit, the provisions of Section 19(b) of the Specific Relief Act, 1963 would come into picture and the purchasers would be bound by the decree drawn in the suit and the defence available to them is the plea of bona fide purchase without notice of the agreement which may or may not be established during the course of trial of the suit.
7. The adjudication by this Court is confined to examine the challenge to the order impugned by which a temporary injunction has been granted. The Court finds that merely because a notice was issued by the heirs of deceased Ram Kishan disclosing their intention not to execute the sale deed in favour of the plaintiffs and some other document on same lines, in the opinion of the Court, would not defeat the claim for temporary injunction. At this stage, the provisions of Section 37 of the Indian Contract Act, 1872 need to be referred. The same is quoted as under:-
"37. Obligation of parties to contracts.?The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law.
Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract."
8. The provisions of Section 37 show that representatives of the promisors, in case of the death of such promisors before performance of the contract, would be bound by the promise made by their predecessors. Therefore, denial on the part of the legal representatives of Ram Kishan is hit by Section 37 of the Contract Act and has no value.
9. As regards injunction against alienation in a suit for specific performance of an agreement, the Supreme Court, in Ramakant Ambalal Choksi (supra), set aside the order of the High Court by which placing reliance upon Section 52 of the Transfer of Property Act, injunction was refused in a suit for specific performance. Interpreting the doctrine in the light of the provisions of Order 39 Rule 1 CPC, the Supreme Court, in paragraphs 43 and 45 of the report, held as under:-
"43. It is also pertinent to observe that immediately after the High Court set aside the order of the trial court granting interim injunction, the defendant no. 3 entered into a transaction which created a third party right on the suit property. A perusal of the impugned order indicates that although a specific request was made by the plaintiffs before the High Court to stay the operation of the impugned order to enable them to file an appeal before this Court, yet the request was not accepted. It is beyond our comprehension as to why such urgency was exhibited by the High Court in vacating the status quo on the suit property, more so when the suit was still pending before the trial court and the rights of the parties were yet to be crystallized. The sequence in which events have transpired in the present case best illustrates how the exercise of appellate jurisdiction by the High Court in a casual manner can have a cascading effect, which only prolongs litigation and counter-serves the interest of justice.
45. Quite often, in these types of litigations, it is sought to be argued that an injunction restraining the defendant from transferring the suit property was absolutely unnecessary as no post-suit transfer by the defendant can adversely affect the result of the suit because of the provisions of Section 52 of the T. P. Act whereunder all such transfers cannot but abide by the result of the suit. It is true that the doctrine of lis pendens as enunciated in Section 52 of the T. P. Act takes care of all pendente lite transfers; but it may not always be good enough to take fullest care of the plaintiffs interest vis-a-vis such a transfer. We may give one appropriate illustration of a suit for specific performance of contract based on an agreement of sale. In a suit wherein the plaintiff prays for specific performance and if the defendant is not restrained from selling the property to a third party and accordingly a third party purchases the same bona fide for value without any notice of the pending litigation and spends a huge sum for the improvement thereof or for construction thereon, the equity in his favour may intervene to persuade the Court to decline, in the exercise of its discretion, the equitable relief of specific performance to the plaintiff at the trial and to award damages only in favour of the plaintiff. It must be noted that Rule 1 of Order 39 of the Code clearly provides for interim injunction restraining the alienation or sale of the suit property and if the doctrine of lis pendens as enacted in Section 52 of the T. P. Act was regarded to have provided all the panacea against pendente lite transfers, the Legislature would not have provided in Rule 1 for interim! injunction restraining the transfer of suit property. Rule 1 of Order 39, in our view, clearly demonstrates that, notwithstanding the Rule of lis pendens in Section 52 of the T. P. Act, there can be occasion for the grant of injunction restraining pendente lite transfers in a fit and proper case. (See: Sm. Muktakesi Dawn and Ors. v. Haripada Mazumdar and Anr. reported in AIR 1988 Cal 25)."
10. Further, in Smt. Sapna Tiwari (supra), after placing reliance upon judgment of Supreme Court in M/s Julian Educational Trust Vs. Sourendra Kumar Roy and others: AIR 2009 SC (Supp) 2180, it was held, in paragraph No.17, as under:-
"17. In Samra v. Mittal Landscape Development Pvt. Ltd. & Ors. (First Appeal From Order No.2417 of 2013) wherein during the pendency of a suit for specific performance, the property in dispute was alienated to third parties, a Division Bench of this Court relying upon the judgment of the Apex Court in M/s Julien Education Trust upheld the injunction order granted by the courts below by observing as under: -
"Considering the plaint allegation, the findings given by the trial court and the arguments placed by the learned counsel for the appellant, this court finds that there is no dispute with regard to the execution of the registered agreement to sell dated 16.6.2008. The suit for specific performance was filed on the basis of this agreement to sell. The question whether there was a concluded contract or not is matter of evidence and can only be gone into at the stage of trial. Further question as to whether the time was essence of the contract is also to be decided by the trial court on the basis of evidence of both the parties. Question of readiness and willingness on the part of the plaintiff can not to be seen at the stage of the interim injunction. The fact that the defendant no.1 had entered into an agreement to execute the sale deed for a portion of the suit property during pendency of the suit and interim injunction filed by the plaintiff respondent itself is sufficient to conclude that there is every likelihood of change in the nature of the suit property. On the one hand the defendant no.1 in his objection submitted that he is in possession of the land in question which is Bhumidhari land and his only source of income, and on the other hand he had executed sale deed dated 28.5.2012 in favour of defendants no. 2 and 3 during pendency of the injunction application. Thus, from the material on record, prima facie case has been made out by the plaintiff respondent for grant of interim injunction. Balance of convenience and inconvenience lay in favour of the plaintiff and the trial court is justified in concluding that he would suffer irreparable loss and injury if no such interim injunction was granted. It may be noted that the trial court has rightly relied upon the judgement of Apex court in 2010 (78) ACR 898, M/s Julien Education Trust Vs. Sourendra Kumar Roy and others, in granting interim injunction."
(emphasis supplied)"
11. In view of the above judicial precedents, it cannot be said that in a suit for specific performance, injunction cannot be granted merely because property has been sold in favour of third parties or there is only an agreement for sale existing in favour of the plaintiffs. It is the prima facie case that has to be given importance in such matters and Section 52 of the Transfer of Property Act would not take away the power of the court to grant injunction under order 39 and Rule 1 CPC as held in Ramakant Ambalal Choksi (supra).
12. In the instant case, existence of agreement as on today, compliance of the stipulations regarding execution of sale deed, that is to say issuance of notice just before expiry of the term fixed for performance and institution of suit immediately thereafter, would establish a prima facie case in favour of the plaintiffs, particularly when there is an admission contained in the joint written statement filed by the defendants no.1 and 2 regarding payment of advance money and execution of the agreement. Admittedly, three sale deeds have been executed in the case and purchasers of two sale deeds have not come before this court.
13. This Court finds that the trial court has dealt with the rival contentions and has also given thoughtful consideration to the documents filed before it and dealing with three basic ingredients necessary for grant of temporary injunction, i.e. prima facie case, balance of convenience and irreparable loss, it has passed the impugned injunction order. The order impugned preserves the nature of the property and rival claims and considering the submissions advanced and material placed as well as following the decisions as referred to above, this Court does not find any error in the order impugned.
14. The appeal fails and is, accordingly, dismissed.
Order Date :- 3.1.2025
AKShukla/-
