Bombay High Court
Kedu Ratan Aher Decd. Through Lhr vs Bhausaheb Bapurao Deshmukh Decd. ... on 16 November, 2021
Bench: Nitin W. Sambre
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BDP-SPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARAT
DASHARATH
PANDIT
CIVIL APPELLATE JURISDICTION
Digitally signed
by BHARAT
DASHARATH
PANDIT
Date: 2021.11.16
WRIT PETITION NO. 2034 OF 2020
14:38:34 +0530
1] Shri Kedu Ratan Aher
(Deceased, through his Legal Heir)
1-A) Uday Kedarnath Aher ..... Petitioner
V/s
1] Bhausaheb Bapurao Deshmukh (Deceased)
Through his legal heirs (Nos. 1 to 3)
1.1. Smt. Shalinibai Bhausaheb Deshmukh
and Others ..... Respondents.
----
Mr. Milind M. Sathaye for the Petitioner.
Mr. G.S. Godbole i/b Mr. Rahul Motkari for Respondent No.3.
----
CORAM: NITIN W. SAMBRE, J.
DATE : NOVEMBER 16, 2021.
P.C.
1] This Petition is by the Plaintiff to Special Civil Suit No.60 of
1994 pending on the file of 6 th Jt. Civil Judge, Senior Division, Nashik
questioning the order dated 21/1/2020 passed by Ad-hoc District
Judge-1, Nashik in Misc. Civil Appeal No.17 of 2019, thereby
confirming the order passed by the learned Court of 6th Jt. Civil Judge,
Senior Division, Nashik on 10/12/2012, thereby rejecting the Misc.
Civil Appeal preferred by the Petitioner/Plaintiff pursuant to the
provisions of Order 39 Rule 11 of the Civil Procedure Code.
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2] Brief facts necessary for deciding the present Petition are as
under:-
3] Petitioner instituted aforesaid suit for declaration, claiming that
he became an owner by adverse possession and also for injunction.
Application for temporary injunction came to be allowed on
24/2/1994, thereby restraining Respondents/Defendants from
creating third party interest. In defiance of aforesaid injunction order,
Defendant Nos. 1 to 3 entered into Development Agreement and also
executed Power of Attorney in favour of Defendant No.5. As such,
prayer for striking out defence of Defendant Nos. 1 to 3 pursuant to
the provisions of Order 39 Rule 11 came to be allowed on 12/2/2009.
The said order was confirmed upto this Court.
4] On 03/05/2002, Lakhan Karbhari Sonawane (the original
Defendant No. 5), who is Respondent No.3 herein, was proceeded
against under Order 39 Rule 2A of the Civil Procedure Court by
alleging breach of injunction for which he came to be added as
Defendant No.5.
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5] An attempt on the part of Petitioner/Plaintiff in seeking deletion
of Defendant No.5 was rejected and confirmed upto this Court in Writ
Petition No.4945 of 2011 vide order dated 10/10/2011.
6] In the backdrop of general Power of Attorney executed by
Defendant Nos. 1 to 3 on 23/4/2002 and Development Agreement of
the very same date in favour of Defendant No.5 by Defendant Nos. 1
to 3, Application-Exhibit-212 dated 29/10/2012 was taken out,
praying for striking out defence of Defendant No.5. The said prayer
was rejected vide impugned order dated 10/12/2012 which was
confirmed vide impugned order dated 21/1/2020 by the Ad-hoc
District Judge-1 Nashik in Misc. Civil Appeal No.17 of 2019. As such,
this Petition.
7] Mr. Sathaye, learned Counsel for the Petitioner would urge that
order of injunction passed on 24/2/1994 by the learned Judge in the
suit, thereby issuing ex parte injunction against Defendant Nos. 1 to 3
and order dated 6/12/2000, thereby restraining Defendant Nos. 1 to 3
from alienating the suit property are matter of record and not in
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dispute. None of the Defendants to the suit, till this date, has
questioned the said orders of injunction. Execution and registration
of general Power of Attorney, so also of Development Agreement
dated 23/4/2002 is not under dispute. As such, according to
Mr. Sathaye, apart from Defendant Nos. 1 to 3 even Defendant No.5
himself acknowledgeded knowledge about aforesaid order of
injunction. Once Defendant No.5 has accepted to have been
impleaded as Defendant to the suit, order of injunction shall
automatically apply to Defendant No.5. In the aforesaid backdrop,
since defence of Defendant No. 1 to 3 was ordered to be struck off,
having violated order of injunction, Defendant No.5 who is
Respondent No.3 herein also ought to have been dealt with in a
similar manner. According to Mr. Sathaye, attempt on the part of
Defendant Nos. 1 to 3 in executing aforesaid documents is nothing less
than showing complete disrespect/disregard to the order of civil court.
He would further claim that transfer of immovable property i.e.
execution and registration of Development Agreement and General
Power of Attorney in violation of the order of injunction issued by the
court of law, confers no right, title and interest in Defendant No.5 and
Defendant No.5 cannot be allowed to reap advantages or benefits from
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such illegal transfer, even if Defendant No.5, at the relevant time, was
not party to the proceedings. He would also draw support from
judgment of this court in the matter of Pralhad Jaganath Jawale and
Ors. Vs. Sitabai Chander Nikam and Ors. reported in 2011 (4) Mh.L.J
137 on the aforesaid issue. According to him, such transfer cannot be
termed as transfer in the eyes of law, as same is in violation of the
order of injunction. He would claim that both the courts below have
committed an error and failed to appreciate very legal obligation of
Defendant No.5. That being so, orders impugned are liable to be set
aside, thereby allowing the Application-Exhibit-212, ordering striking
out defence of Defendant No.5.
8] Countering aforesaid submissions, Mr. Godbole, learned Counsel
for Respondents/Defendants would urge that Order 39 Rule 11 was
inserted by Bombay Amendment, whereby provision is made for
procedure to be adopted on parties defying orders of court and
committing breach of undertaking to the Court. He would further
claim that Defendant No.5, at no point of time, intentionally has
engaged in defying orders of the Court. He would invite attention of
this Court to the principle of lis pendens, so as to claim that, in case, if
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suit is decreed, necessary consequences will follow. According to him,
provision is draconian and as such, courts below have concurrently
held that since nature of the provision is directory, same need not be
exercised against Defendant No.5.
9] Further contention of Mr. Godbole is, lis pendens doctrine does
not anull transfer/transaction made during pendency of lis between
the parties and transaction between Defendant Nos. 1 to 3 and
Defendant No.5 is always subject to right of the parties to the suit. He
would further claim that transfer of the property made, contrary to
orders of injunction dated 24/2/1994, 6/12/2000 have attained
finality till this date against the Respondents/Defendants, whereby
Defendants are restrained from creating third party interest in relation
to the suit property. Both the documents i.e. general Power of
Attorney and Development Agreement speak of recitals about
pendency of suit and as such, orders of injunction were very much
made known to Defendant No.5. The violation of the orders of
injunction referred to above by Defendant Nos. 1 to 3 and the order
dated 12/2/2009 by the Court of Civil Judge, Senior Division, Nashik
in exercise of powers under Order 39 Rule 11, directing striking out of
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defence is also not in dispute and the said order has attained finality
before this Court in A.O. No.102 of 2010.
10] As far as the prayer of the Petitioner of striking out defence of
Defendant No.5 is concerned, both the courts below while rejecting
such prayer were sensitive to the Bombay Amendment to the Code of
Civil Procedure i.e. Order 39 Rule 11.
11] The Court below observed that Bombay High Court in Ramavtar
Surajmal Modi vs. Mulchand Surajmal Modi reported in 2004(2)
Mh.L.J. page 1 has held that aforesaid provisions are directory in
nature and as such refused to exercise discretion thereby refusing to
order striking of defence. Similarly, lower Appellate Court has
observed that there is nothing on record to infer that Defendant No.5
has committed any act which has seriously prejudiced rights and
interest of the Plaintiff/Petitioner or has undermined any order of the
court. As such, lower Appellate Court refused to exercise powers
under Order 39 Rule 11 in favour of the Petitioner.
12] It appears that both the Courts below committed an error of law
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apparent on the face of record in refusing to exercise power under
Order 39 Rule 11 of the Code of Civil Procedure. The fact remains
that Defendant Nos. 1 to 3 in defiance of the order of injunction have
created third party interest in favour of Defendant No.5. The orders of
injunction were within the knowledge of Defendant No.5 which can be
inferred not only from recitals of general Power of Attorney and the
Development Agreement but also from conduct of the parties. Once
Defendant No.5 in view of aforesaid documents and having regard to
the fact that he is impleaded as party-defendants, orders in suit are
automatically made applicable to Defendant No.5 as he has stepped
into the shoes of Defendant Nos. 1 to 3. As a consequence, orders of
injunction with euqal force applies to Defendant No.5. Fact remains
that neither Defendant No.5 nor Defendant Nos. 1 to 3 have
questioned the orders of injunction. The order of striking out of the
defence of Defendant Nos. 1 to 3 under Order 39 Rule 11 has been
confirmed upto this Court. The defence which is not permitted to be
raised by Defendant Nos. 1 to 3 cannot be permitted to be raised by
Defendant No.5. Defendant No.5 cannot claim to have better case
than Defendant Nos. 1 to 3. Having observed that Defendants have
acted in defiance of the orders of injunction to the benefit of
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Defendant No.5, merely because relief claimed under Order 39 Rule
11 is discretionary and directory in nature that by itself does not give
lever to the courts below not to exercise such powers. In the facts and
circumstances of the present case viz defiance of orders of injunction
by all the Defendants and order of striking down defence of Defendant
Nos. 1 to 3 rather prompts this Court to treat Defendant No.5 similar
to that of Defendant Nos. 1 to 3 in the matter of ordering striking of
defence.
13] Mr. Sathaye, in my opinion, was justified in inviting attention of
this Court to the observations of Division Bench of this Court in the
matter of Keshrimal Jivji Shah and another vs. Bank of Maharashtra
and others reported in 2004(3) Mh.L.J. 893. This Court in the said
judgment has held that if parties act in defiance of the orders of the
Court particularly when the Court intends a particular state of suit
property to exist, parties are not only bound to maintain the position
as was directed but it has to be presumed to exist till court orders
otherwise.
14] The Court further observed that principles of lis pendens are
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altogether on different footing and same have no applicability to the
facts of the present case.
15] The Court in the matter of Pralhad Jaganath Jawale cited supra
has rightly held that transfer of property in violation of injunction or
prohibition issued by the court of law confers no right, title or interest
in the transferee. Transferee cannot be allowed to reap
advantage/benefit from such transfer particularly because he is not
party to the proceedings in which order of injunction or other
prohibitory directions or restraint came to be issued.
16] In the aforesaid backdrop, contention of Mr. Godbole that in
spite of order of injunction even if transfer is effected i.e. by
execution of Power of Attorney and Development Agreement, at the
most parties can be held guilty for breach of the order of injunction in
lieu of order of striking out defence cannot be accepted. By inserting
Rule 11 to Order 39 by Bombay Amendment, an additional remedy is
given to parties to the suit, particularly in this case to Plaintiff when
violation of order of injunction is noticed so as to claim striking out
defence.
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17] In the aforesaid backdrop, observations made by both the
Courts below, thereby refusing to exercise discretion as the provisions
of Order 39 Rule 11 are directory in nature and not mandatory are
without any legal basis as narrated in the aforesaid paras. Present
one is a fit case in which the Courts below should have exercised
discretion, thereby ordering striking out defence of Defendant No.5,
particularly when he has acted contrary to the orders of injunction of
which he was having knowledge. The Defendants to the suit have
aggravated the suit cause, thereby not cancelling the documents
during pendency of suit viz. Power of Attorney and Development
Agreement.
18] In that view of the matter, present Writ Petition needs to be
allowed.
19] The order impugned passed by the Court of 6th Jt. Civil Judge,
Senior Division, Nashik below Exhibit-212 in Special Civil Suit No.100
of 2012 on 10/12/2012 and order dated 21/1/2020 passed in Misc.
Civil Appeal No.17 of 2019 by Ad-hoc District Judge-1, Nashik are
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hereby quashed and set aside. Application-Exhibit-212 stands allowed
and it is ordered that defence of Defendant No.5 is struck off.
20] Writ Petition is accordingly disposed of.
(NITIN W. SAMBRE, J.)
