Harish Bulchand Tejwani vs Nandlal Hakikatrai Motwani
2015 Latest Caselaw 119 Bom

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    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
               NAGPUR BENCH, NAGPUR




                                                      
               APPEAL AGAINST ORDER NO.8 OF 2015

    Harish Bulchand Tejwani,




                                                     
    Aged - Adult, R/o Harish Niwas,
    Kacchi Kholi, Sindhi Camp,
    Akola, Tahsil and District Akola.                      ..... Appellant.




                                         
                                 ::  VERSUS  ::
                         
    Nandlal Hakikatrai Motwani,
    Aged about 55 years,
    R/o Sindhi Camp, Akola,
                        
    Tahsil and District Akola.                                ..... Respondent.

    ================================================================
              Shri S.A. Saoji , Counsel for the Appellant.
      

              Ms Pinky Jagtap, Adv. H/f N.A. Lalwani, counsel for the 
              Respondent.
   



    ================================================================


                            CORAM : A. P. BHANGALE, J.  

DATE : AUGUST 14, 2015

ORAL JUDGMENT

1. By this appeal against order preferred under Order

XLIII Rule 1(r) of the Code of Civil Procedure, the legality and

validity of grant of interim injunction passed below order Exh.5

on 26.9.2014, in Special Civil suit No.83 of 2013, by learned Civil

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Judge Senior Division, Akola is questioned before this Court.

2. According to learned counsel for the

appellant/defendant, interim injunction order restraining the

appellant/defendant, his agents, servants, representatives or any

other persons claiming through him from alienating, transferring

or creating third party interest in the suit property pending

disposal of Special Civil suit No.83 of 2013 ought not to have

been passed

3. It appears that the suit property as alleged by the

respondent/plaintiff was owned and possessed by the

appellant/defendant who shifted to Ulhasnagar, District Thane.

The appellant/defendant was searching prospective purchaser for

the suit property whereas respondent/plaintiff needed to

purchase the same. Thus, there was suit transaction in the

nature of agreement to sell (Isar Chitthi). The sum of Rs.1.51

Lacs was paid as earnest money by way of Cheque as the

appellant/defendant agreed to execute the sale deed of the suit

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property within six months. It also appears that there was prior

legal notice from the respondent/plaintiff on 29.8.2013 whereby

the appellant/defendant was called upon to execute the sale deed

after receiving the notice and after accepting the balance

consideration in the sum of Rs.4.49 Lacs but the said notice was

returned as "Not Claimed".

Under these circumstances, according to learned

counsel for the respondent/plaintiff, the appellant/defendant was

likely to create third party interest while transferring the suit

property at higher rate in order to defeat the claim of the

respondent/plaintiff. Therefore, interim injunction was sought

restraining the appellant/defendant, his agents, servants,

representatives or any other persons claiming through him from

alienating, transferring or creating third party interest in the

suit property pending disposal of the civil suit.

4. It appears that learned Trial Judge considered the

ground for grant of interim injunction and passed the reasoned

order whereby the appellant/defendant, his agents, servants,

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representatives, or any other persons claiming through him were

restrained from alienating, transferring or creating third party

interest in the suit property pending disposal of the suit.

5. Learned counsel for the appellant/defendant made

reference to the oral judgment of learned Single Judge of this

Court in the case of Mukhtar Khan Akram Khan ..vs.. Abdul

Talib Abdul Wahed in Appeal Against Order No.109 of 2014

decided on 25.3.2015 contending that since Section 52 of the

Transfer of Property Act is in operation, such temporary

injunction could not have been granted. As according to him,

this Court while passing the oral judgment in Appeal Against

Order No.109 of 2014 on 25.3.2015 considered the effect of

Section 52 of the Act as sufficient to protect the party to the suit

from alienation pending disposal of the suit.

6. I have seen the copy of the oral judgment pointed out to

me. In the case cited (supra) there was a case of the appellant

therein that an agreement to purchase the house property was

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entered into for consideration of Rs.14.00 Lacs while earnest

money in the sum of Rs.4.00 Lacs was paid to the respondent. As

the respondent did not execute the sale deed as agreed, the

appellant filed the suit for specific performance of agreement in

which interim injunction was sought. The Trial Court holding

that the appellant failed to make out a prima facie case had

rejected the application for grant of interim injunction.

7. The facts in the present case are different than the

facts which appear in the case cited (supra). The interim

injunction was granted by the Trial Court in this case to ensure

that suit property must not change its hands pending disposal of

the special civil suit and the Trial Court was satisfied upon

consideration of prima facie case to restrain the

appellant/defendant, his agents, servants, representatives or any

other persons claiming through him from alienating, transferring

or creating third party interest in the suit property pending

disposal of the suit. Merely because Section 52 of the Transfer of

Property Act is existing and operative, it does not mean that the

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plaintiff is not entitled to pray for and get interim injunction

when there is clear prima facie case in favour of the

respondent/plaintiff to protect the suit property pending disposal

of the suit. The discretionary relief of interim injunction is

granted on the basis of prima facie case, balance of convenience,

and consideration of irreparable loss with a view to protect the

suit property as it is and not to allow creation of irreversible

situation whereby legal and valid claim of the plaintiff is likely to

be defeated by transfer/alienation of the suit property by the

defendant in the case. Dishonesty of litigant intending to defeat

the probable decree, can be prevented by appropriate interim

order, when necessary in the facts and circumstances of the case.

8. In view of above discussion, I find that no interference

is warranted in the impugned order in this appeal against order

since well reasoned order has been passed below order Exh.5 on

26.9.2014, in Special Civil suit No.83 of 2013, by learned Civil

Judge Senior Division, Akola upon prima facie consideration of

the matter. Hence, the appeal needs to be dismissed.

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9. In the result, the appeal against order is dismissed. The

parties shall appear and co-operate with the trial Court for

expeditious final disposal of the pending suit. The trial court

shall endeavour to dispose of the suit finally as expeditiously as

possible on its own merits according to law.

JUDGE

!! BRW !!

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