Shri.Allabaksha S/O Suleman Auti vs Shri.Roshan S/O Javeed Inamdar
2021 Latest Caselaw 7123 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

      DATED THIS THE 23RD DAY OF DECEMBER, 2021

                          BEFORE

            THE HON'BLE MRS.JUSTICE M.G.UMA

                    MFA.NO.102344/2019
BETWEEN

SHRI.ALLABAKSHA S/O SULEMAN AUTI
AGE:83 YEARS, OCC:RETIRED,
R/O 5TH CROSS, AZAM NAGAR,
BELAGAVI 590010
                                                   ...APPELLANT
(BY SRI:G.BALAKRISHNA, ADVOCATE FOR
SRI.VITTAL S.TELI., ADVOCATE)

AND

1.    SHRI.ROSHAN S/O JAVEED INAMDAR
      AGE:27 YEARS, OCC:STUDENT and AGRICULTURE,
      R/O CTS NO.2383, HAFEEZA MANSION,
      AZAD GALLI, BELAGAVI 590001

2.    SHRI NAKHIL S/O JAVEED INAMDAR
      AGE:22 YEARS, OCC:STUDENT and AGRICULTURE,
      R/O CTS NO.2383, HAFEEZA MANSION,
      AZAD GALLI, BELAGAVI 590001

3.    SHRI SAYYAD JAVED PASHA
      S/O MUSTAFA PASHA KHASEKHAN INAMDAR
      AGE:64 YEARS, OCC:NIL,
      R/O CTS NO.2633/1, INAMDAR COMPLEX
      MALI GALLI, BELAGAVI 590001

4.    SHRI SAYYAD MUBIN PASHA
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       S/O MUSTAFA PASHA KHASEKHAN INAMDAR
       AGE:61 YEARS, OCC:NIL,
       R/O CTS NO.2633/1, INAMDAR COMPLEX
       MALI GALLI, BELAGAVI 590001

5.     SHRI SAYYAD IQBAL PASHA
       S/O MUSTAFA PASHA KHASEKHAN INAMDAR
       AGE:59 YEARS, OCC:NIL,
       R/O CTS NO.2633/1, INAMDAR COMPLEX,
       MALI GALLI, BELAGAVI 590001

6.     SHRI SAYYAD MASARRAT BEGUM
       W/O SAYYAD MOINUDDIN PEERZADE
       AGE:62 YEARS,OCC:HOUSEWIFE,
       R/O HASHIMPEER DARGA,
       NAR GULGUMBAZ, STATION ROAD,
       VIJAYPUR 586101

7.     SMT. ZUBEDA KHATOON W/O ALLABAKSHA AUTI
       AGE:72 YEARS, OCC:HOUSEWIFE,
       R/O 5TH CROSS, AZAM NAGAR, BELAGAVI 590010

8.     SHRI NOORULAMIN S/O ALLABAKSHA AUTI
       AGE:42 YEARS, OCC:BUSINESS,
       R/O 5TH CROSS, AZAM NAGAR, BELAGAVI 590010

9.     SHRI WASIULLA S/O ALLABAKSHA AUTI
       AGE:48 YEARS, OCC:BUSINESS,
       R/O 5TH CROSS, AZAM NAGAR, BELAGAVI 590010

10 .   SHRI ARIF JAMEEL S/O ALLABAKSHA AUTI
       SINCE DECEASED BY HIS LRS D-9 TO 13
       SMT. NAOUSHEEN FARUKI
       WD/O ARIF JAMEEL AUTI, AGE:42 YEARS,
       OCC:HOUSWIFE, R/O FLAT NO.702, 7TH FLOOR,
       BLOCK NO.10, YOUSED A1 BADAR STREET,
       SALMIYA KUWAIT, NOW R/AT 5TH CROSS,
       AZAM NAGAR, BELAGAVI 590010

11 .   SHRI MOHAMMAD MOAAZ
       S/O ARIF JAMEEL AUTI
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       AG:17 YEARS, OCC:STUDENT,
       R/O 5TH CROSS, AZAM NAGAR,
       BELAGAVI 590010

12 .   SHRI MOHAMMAD MINHAJ
       S/O ARIF JAMEEL AUTI
       AGE:15 YEARS, OCC:STUDENT,
       R/O 5TH CROSS, AZAM NAGR,
       BELAGAVI 590010

13 .   MISS MEHVISH D/O ARIF JAMEEL AUTI
       AGE:13 YARS, OCC:STUDENT,
       R/O 5TH CROSS, AZAM NAGAR,
       BELAGAVI 590010

14 .   MISS MOHEB D/O ARIF JAMEEL AUTI
       AGE:13 YARS, OCC:STUDENT,
       R/O 5TH CROSS, AZAM NAGAR,
       BELAGAVI 590010
       (THE RESPONDENT NOS 11 TO 14 ARE MINORS
       REPRESENTED BY THEIR NEXT
       FRIEND RESPONDENT NO.10 MOTHER
       SMT. NAUSHEEN FARUKI WD/O ARIF JAMEEL AUTI)

15 .   SHRI QARSHAD AHMED
       S/O MOHAMMAD SHARIF MOMIN
       AGE:52 YEARS, OCC:TRADE,
       R/OC TS NO.3189, MOMIN GALLI, BELAGAVI 590001

                                                 RESPONDENTS
(BY SRI.F.V.PATIL., ADV FOR R1 AND 2;
SRI.SANGRAM.S.KULKARNI., ADV FOR R3 TO 5;
SRI.SOURABH.A.SONDUR., ADV FOR R7;
SRI.A.S.PATIL., ADV FOR R9
NOTICE TO R6-SERVED;
R11 TO 14, 8, 10 ARE MINORS, R/BY R10)
      THIS APPEAL IS FILED U/O.43 RULE 1(r) OF CPC R/W SEC.104
OF CPC, AGAINST THE ORDER DATED:18.04.2019, PASSED IN
O.S.NO.44/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI, ALLOWING THE
IA NO.4 FILED U/O. 39 RULES 1 AND 2 R/W SEC.151 OF CPC.
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     THIS APPEAL HAVING BEEN HEARD THE RESERVED FOR
JUDGMENT ON 23.11.2021 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

The appellant being defendant No.5 in O.S.No.44/2019 on

the file of the II Additional Senior Civil Judge and CJM Court

Belagavi (hereinafter referred to as 'the trial court" for short) is

before this court, impugning the order dated 18.04.2019 passed

by the trial court allowing the application I.A.No.4 filed by

plaintiff No.2 under Order 39 Rule 1 and 2 r/w Section 151 of

CPC and restraining the appellant/defendant No.5, his agents,

servants or anybody acting on his behalf from alienating the suit

properties either by way of sale, gift, charge, mortgage, lien

agreement etc., till disposal of the suit.

2. Brief facts of the case are that, respondent Nos.1

and 2 as plaintiffs filed O.S.No.44/2019 before the trial court

against defendant Nos.1 to 14 seeking directions to them to

execute the registered sale deed in respect of the suit land in

favour of the plaintiffs and to complete the sale transaction as

per the agreement of sale dated 29.12.2011 and Memorandum

of Understanding (MOU) dated 18.12.2017 referred to in the

plaint and also to direct the defendants to handover the actual

and vacant possession of the suit land, free from any

encumbrance, charge, lien, claim, dispute etc. to the plaintiffs

and in case the defendants fail to execute the registered sale

deed, to get the sale deed registered by appointing a Court

Commissioner and alternatively to direct refund of the advance

sale consideration amount of Rs.2.4 crores to the plaintiffs,

together with interest at the rate of 18% p.a. from the date of

receipt of the advance amount till realization and also to pay

damages of Rs.1 crore along with similar interest and further to

grant permanent injunction against defendant Nos.1 to 4, their

agents, servants, anybody acting on their behalf by restraining

them from alienating the suit land in any manner like, sale, gift,

mortgage, charge lien etc. till the suit land is legally transferred

in the name of the plaintiffs.

3. It is contended that the plaintiffs are the intending

purchasers of the suit land bearing R.S.No.1222/3 and

R.S.No.1222/4 more fully described in the plaint from defendant

Nos.1 to 4 by paying consideration amount at the rate of

Rs.1,45,000/- per gunta entered into an agreement of sale dated

29.12.2011. Defendant Nos.1 to 4 are the owners in possession

of the suit land and defendant Nos.5, 7 and 8 and late Arif

Jameel alleged to be the intending purchasers. Defendant No.8 is

the GPA holder for defendant Nos.5, 7 and the said Arif Jameel.

Defendant Nos.9 to 13 are the legal heirs of the deceased late

Arif Jameel. Defendant No.14 is one the signatories to the MOU.

4. It is stated that defendant Nos.1 to 4 being the

owners in possession of the suit land expressed their readiness

and willingness to sell the same in favour of the plaintiffs and

plaintiffs agreed to purchase the land after mutual negotiations.

Defendant Nos.1 to 4 agreed to sell the property for

consideration amount of Rs.1,45,000/- per gunta. As per the

agreement, Rs.25,00,000/- was paid by the plaintiffs to

defendant Nos.1 to 4 through cheques, which was acknowledged

by defendant Nos.1 to 4. In that regard an agreement of sale

dated 29.12.2011 was entered into between plaintiff No.1 and

defendant Nos.1 to 4 and required stamp duty is paid on the said

document and the document was regularized by the competent

authority by receiving the deficit stamp duty as per the order

dated 25.01.2019.

5. Defendant Nos.1 to 4 demanded for payment of the

sale consideration to meet their financial necessities. Therefore,

the plaintiffs paid further consideration amount through cheques

and also cash as mentioned in the schedule, which was also

acknowledged by defendant Nos.1 to 4. Thus, the plaintiffs have

paid a sum of Rs.2.4 crores.

6. The plaintiffs came to know during November, 2017

that, suit in O.S.No.14/2011 was pending between defendant

Nos.1 to 4 and 5 to 14 and the same was decided in favour of

defendant Nos.1 to 4 on 15.12.2012. The judgment and decree

passed by the trial court was challenged before this court in RFA

No.4016/2013. This fact was not disclosed by defendant Nos.1 to

4 while the plaintiffs entered into the agreement of sale on

29.12.2011 or at the time of receiving advance sale

consideration. The plaintiffs were kept in dark about the earlier

agreement of sale, pendency of the suit. Thus, the plaintiffs

under the bona fide belief entered into an agreement of sale and

went on paying sale consideration amount. Therefore, defendant

Nos.1 to 4 are bound by the agreement of sale referred to

above. When this fact was discussed with defendant Nos.1 to 4,

they assured to settle the matter and to complete the sale

transaction with the plaintiffs as per the terms and conditions of

agreement of sale. Believing the words of defendant Nos.1 to 4,

defendant No.8 and defendant No.14 entered into an

understanding with regard to the suit land by entering into

memorandum of understanding (for short 'MOU') dated

18.12.2017. The plaintiffs and defendants have agreed that

defendant No.1 to 4 shall sell the suit land bearing

R.S.No.1222/3 to the plaintiffs and the land in R.S.No.1222/4 in

favour of defendant Nos.5 to 14 at the same rate as agreed and

report the matter to this court in RFA No.4016/2013. Under the

MOU, the defendants acknowledged the receipt of Rs.2.4 crore

from the plaintiffs and agreed to sell R.S.No.1222/3 by receiving

balance consideration amount. Accordingly, a compromise

petition was drafted and submitted to this court. Similarly,

defendant Nos.1 to 4 agreed to receive Rs.41,65,982/- which

was deposited in the court. Defendant No.14 paid Rs.8,34,018/-

through cheque to defendant Nos.1 to 4 as advance sale

consideration. Defendant Nos.1 to 4 agreed to complete the sale

transaction before 15.03.2018. The MOU dated 18.12.2017 was

certified by the competent authority on 12.12.2018. Therefore,

defendant Nos.5 to 14 are also bound by the agreement of sale

dated 29.12.2011. The plaintiffs and defendant No.8 being the

GPA holder of other defendants and defendant No.14 have

entered into an agreement to develop their respective lands, as

per the Joint Development Agreement (for short 'JDA') entered

into between them. It is stated that as per the MOU, the

plaintiffs filed an application in RFA No.4016/2013 for getting

themselves impleaded for the purpose of reporting settlement.

Defendant No.5 objected the said application and as a result of

which, the application came to be dismissed with a direction to

the plaintiffs to get their grievance redressed by filing a separate

suit before the competent court of law for the relief of specific

performance of the contract vide order dated 07.01.2019.

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7. It is stated that the plaintiffs were ready and willing

to pay the balance sale consideration to defendant Nos.1 to 4

and get the sale deed registered. The plaintiffs have already paid

major portion of the sale consideration amount, but defendant

Nos.1 to 4 failed to perform their part of the contract as per the

agreement dated 29.12.2011 and also MOU dated 18.12.2017.

Defendant Nos.1 to 4 assured that they will abide by the terms

of Memorandum of Understanding and complete the sale

transaction.

8. It is stated that plaintiffs came to know that

defendant Nos.1 to 4 and defendant Nos.5 to 14 have colluded

with each other for the purpose of deceiving the plaintiffs and

trying to alienate the suit land in favour of a third party for

making wrongful gain. Therefore, the plaintiffs published a notice

cautioning the public not to enter into any kind of transaction

with the defendants in respect of the suit land. Defendant No.5

filed a caveat petition and defendant No.4 revoked and

terminated the general Power of Attorney given in favour of

defendant Nos.1 to 3 by issuing publication in the newspaper on

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30.01.2019. Therefore, the plaintiffs were forced to institute a

suit for specific performance of the contract with consequential

relief.

9. It is stated that the cause of action arose on

29.12.2011 when defendant Nos.1 to 4 entered into an

agreement for sale with plaintiff No.1, when the advance sale

consideration amount was paid, on 18.12.2017 when the MOU

was entered into and on 07.01.2019 when this court directed the

plaintiffs to initiate separate suit for getting their grievance

redressed. During the pendency of the suit, I.A.No.4 was filed

seeking temporary injunction restraining defendant No.5 and his

agents, servants, or anybody acting on his behalf from alienating

the suit property in any manner as stated above. The said

application was allowed under the impugned order, which is

under challenge before this court.

10. Heard the learned counsel for the appellant

Sri.Vitthal Teli, learned counsel Sri.F.V.Patil for respondent Nos.1

and 2, learned counsel Sri.Sangram S.Kulkarni for respondent

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Nos.3 to 5 and learned counsel Sri.Mrutyunjaya Tata Bangi for

respondent No.15.

11. Learned counsel for the appellant impugning the

order dated 08.04.2019 passed by the trial court contented that

defendant Nos.1 to 4 have entered into an agreement of sale

with defendant Nos.5, 7, 8 and also one Arif Jameel, who is now

represented by defendant Nos.9 to 14 agreeing to execute the

sale deed in respect the suit land for total consideration of

Rs.1.28 crore. When defendant Nos.1 to 4 failed to execute the

sale deed as agreed in the agreement dated21.08.2009, the

appellant and others filed O.S.No.14/2011 seeking specific

performance of the contract on 20.01.2011. The trial court

granted an order to maintain status-quo in respect of the suit

property. In spite of the said order of status-quo, defendant

Nos.1 to 4 entered into an agreement of sale with plaintiff No.1

on 29.12.2011. The suit O.S.No.14/2011 came to be decreed in

part as per the judgment and decree dated 14.12.2012, but

instead of ordering for specific performance of the contract, the

court directed the defendants to refund the earnest money of

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Rs.28 lakhs with interest at 18% p.a. Defendant Nos.5, 7 and 8

to 10 being aggrieved by refusal to grant the specific

performance of the contract, preferred the appeal in RFA

No.4016/2013. The said RFA came to be decreed for specific

performance of the contract in terms of the compromise petition

that was entered into between the contesting parties. In

pursuance of the decree passed in the RFA, the registered sale

deed was executed in favour of the appellant by defendant Nos.1

to 4 on 26.02.2019.

12. During the pendency of the RFA, MOU dated

18.12.2017 was said to have been entered into between plaintiff

Nos.1 and 2 and defendant Nos.8 and 14. But the appellant is

not a party to the said MOU. An agreement for development of

the land between defendant Nos.1 to 4 and the plaintiffs was

also said to have been entered into on the same day. But by that

time, Arif Jameel had died on 26.03.2017. The plaintiffs have

filed an application seeking themselves to implead in RFA

No.4016/2013 on 09.11.2018, but the said application came to

be dismissed vide order dated 07.01.2019. It is thereafter, on

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04.02.2019, the present suit in O.S.No.44/2019 came to be filed

by the plaintiffs.

13. Learned counsel for the appellant contended that,

when the specific performance of the contract was ordered by

this court, in terms of the decree dated 22.02.2019 and in

pursuance of the same, registered sale deed was executed by

defendant Nos.1 to 4, the suit filed by the plaintiffs seeking

specific performance of their agreement entered into during the

pendency of the litigation between defendant Nos.1 to 4 and 5

and other defendants, is not maintainable. The appellant is not a

party to the MOU said to have entered into between the plaintiffs

with defendant Nos.8 to 14 and late Arif Jameel. He has also not

party to the development agreement entered into between

defendant Nos.1 to 4 and the plaintiffs. The application for

impleading the plaintiffs in RFA No.4016/2013 is already

dismissed by this court. Under such circumstances, the plaintiffs

cannot maintain the suit itself. But ignoring all these facts and

circumstances, the trial court proceeded to allow I.A.No.4

restraining the appellant by way of temporary injunction from

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alienating the suit property in any manner till disposal of the

suit. The impugned order passed by the trial court is erroneous,

perverse and the same is liable to be set aside. If at all, it is

defendant Nos.1 to 4 who are answerable to the plaintiffs for

entering into various agreements, after entering such agreement

with the appellant, getting the decree in RFA No.4016/2013 by

this court on the basis of compromise petition, and also executed

registered sale deed in favour of the appellant on 26.02.2019.

Therefore, when the suit itself is not maintainable against

defendant No.5, the trial court could not have granted the

temporary injunction in favour of the plaintiffs. Therefore, he

prays for allowing the appeal by setting the impugned order.

14. Per contra, learned counsel for respondent Nos.1 and

2-plaintiffs supporting the impugned order submitted that,

admittedly, there is an agreement of sale entered into between

the plaintiffs and defendant Nos.1 to 4. Defendants have also

entered into a MOU with the plaintiffs on 18.12.2017 and a JDA

was also entered into on the same day. While dismissing the

application for impleading filed by the plaintiffs in RFA

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No.4016/2013, it is specifically observed that plaintiffs to get

their grievance redressed by filing a separate suit before the

competent court of law for the relief of specific performance of

contract. Therefore, the appellant cannot contend that the suit is

not maintainable. The defendants are answerable to various

agreements that are entered into. The plaintiffs paid huge

amount as earnest money and therefore, they are entitled for

the specific performance of the contract. There is collusion

between other defendants with the appellant in entering into a

compromise and getting a decree in RFA No.4016/2013. Within

four days from the date of decree, defendant Nos.1 to 4

executed sale deed in favour of the appellant which is apparently

against the terms and conditions of the compromise decree

passed by this court. As per the decree passed by this court in

RFA No.4016/2013, the sale deed is required to be executed in

favour of the plaintiffs who are agreement holders, but

surprisingly, the sale deed was executed only in favour of the

appellant. Therefore, the said sale deed is not valid in the eye of

law and the plaintiffs are entitled to ignore the same. Since the

sale deed in question was got executed during the pendency of

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the suit before the trial court, the same is hit by the principles of

lis pendence. Therefore, the trial court has rightly granted

temporary injunction against the appellant from alienating the

suit land during the pendency of the suit, otherwise, it will lead

to multiplicity of the proceedings. Hence, he prays for dismissal

of the appeal with costs.

15. Learned counsel for respondent Nos.1 and 2 placed

reliance on the decision of the Hon'ble Apex Court in Seema

Arshad Zaheer and Others Vs Municipal Corpn. of Greater

Mumbai and Others1 to contend that, when the trial court

exercised its discretion and granted temporary injunction by

following the requirements, such as, existence of a prima facie

case, balance of convenience and greater hardship that would

cause to the plaintiffs, such an order cannot be interfered with

lightly. He also contended that, the order of temporary injunction

being an equitable relief granted by exercising the discretion

judiciously after satisfying with the conduct of the plaintiffs, is

free from blamish. Therefore, the same is not liable to be

interfered with by this court.

(2006) 5 SCC 282

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16. Learned counsel further submitted that the MOU was

entered into between the parties, wherein the appellant is also a

party represented by his POA holder Sri.Wasifulla-defendant

No.8. The General POA deed is produced as per Annexure-R1.

Under the terms of the document, the MOU in question is

entered into between the parties during the pendency of RFA

No.4016/2013. Since the appellant is also a party to the MOU,

before he is going to purchase the property under a registered

sale deed, he is bound by the terms of the document.

Considering all these facts and circumstances, the trial court

proceeded to pass the impugned order. There is no illegality or

perversity in the order passed by the trial court. Hence, it does

not call for any interference by this court.

17. Learned counsel for respondent Nos.3 to 6 who are

original owners contended that, by mistake these respondents

have entered into a compromise with the appellant and signed

the compromise petition, without knowing the contents of the

same. Thereafter, they have also signed the sale deed dated

26.02.2019 that was in the name of the appellant. It was a bona

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fide mistake committed by respondent Nos.3 to 6. So neither the

decree passed in RFA No.4016/2013 passed by this court nor

sale deed dated 26.02.2019 executed in favour of the plaintiffs

are binding on these respondents. Learned counsel also

submitted that appellant has not paid entire sale consideration

amount before getting the sale deed executed. Therefore, the

impugned order passed by the trial court restraining defendant

No.5 from alienating the property in favour of third party was

just and proper. The same does not call for any interference by

this court. Hence, he prays for dismissal of the appeal with

costs.

18. Learned counsel for respondent No.15 who is

defendant No.14 before the trial court supporting the impugned

order passed by the trial court contended that, the MOU dated

18.12.2017 was entered into between the plaintiffs, defendant

Nos.1 to 4, defendant No.8 as General Power of Attorney holder

for defendant Nos.5 to 7 and also defendant No.14. Since the

appellant who is defendant No.5 before the trial court is also a

party to the MOU, he is bound by the terms of the same.

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Learned counsel submitted that even though respondent No.15

is not a party to any of the agreement to sell, he is a party to

the MOU, which was entered into during the pendency of RFA

No.4016/2013 before this court. If defendant No.5 who

purchased the property subsequent to execution of the MOU,

proceeds to alienate the property or creates third party rights

during the pendency of the suit O.S.No.14/2011, that will lead to

multiplicity of proceedings. The schedule property is to be

preserved till disposal of the suit. Considering all these facts and

circumstances, the trial court passed the impugned order by

exercising its judicial discretion and such judicial discretion

cannot be interfered with casually. He further submits that, if

the appellant alienates the suit property in favour of others, the

suit itself will become infructuous. Therefore, he prays for

dismissal of the appeal.

19. In reply, learned counsel for the appellant submitted

that the sale deed dated 26.02.2019 executed pursuant to the

judgment and decree passed by this court in RFA No.4016/2013

was produce before this Court, as per the directions issued in

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that regard. On 06.12.2019, this court considered the said sale

deed in the light of the directions given and passed an order to

the effect that the sale deed is read and recorded by the court.

Copy of the sale deed was thus taken on record.

20. Learned counsel also submitted that respondents

who have nothing to do with the judgment and decree passed by

this court in RFA No.4016/2013 cannot dispute the execution of

the sale deed in favour of the appellant alone. It is immaterial as

to whether the appellant alone purchased the property or all the

agreement holders jointly purchased it. Defendant Nos.1 to 4

who are respondent Nos.3 to 6 have in fact received additional

amount of Rs.1 crore through cheque in terms of the agreement

to sell and even encashed the said cheque. Thus, they have

received Rs.2.28 crores instead of Rs.1.28 crores as mentioned

in the agreement to sell.

21. Learned counsel further submitted that appellant is

not at all a party to the MOU or to the JDA dated 18.12.2017.

The appellant had filed the suit for specific performance of the

contract on 20.01.2011. If the MOU produced before this court is

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verified, it was said to have been entered into between

defendant Nos.1 to 4, defendant No.8 and plaintiffs in the suit.

Defendant No.8-Wasiulla signed the said document in his

individual capacity and not as a Power of Attorney holder.

Plaintiffs-Respondent Nos.1 and 2 have entered into an

agreement to sell, also entered into MOU knowing fully well

regarding earlier agreement to sell executed in favour of the

appellant, suit filed in O.S.No.14/2011 by the appellant and also

pendency of RFA No.4016/2013 before this court. There is

reference to these proceedings in the MOU. Therefore,

respondents have taken the risk of entering into such

agreements which are not valid in the eye of law.

22. Learned counsel further submitted that principles of

lis-pendence is applicable in favour of the appellant and not in

favour of respondent Nos.1 to 4 or any other respondents. Since

the compromise was entered into between the plaintiffs and

defendants in the suit in O.S.No.14/2011 filed by the appellant,

respondent Nos.7 and 8 and husband of respondent No.10 for

specific performance of the contract, when the same was

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pending in RFA No.4016/2013. Pursuant to the decree passed in

RFA No.4016/2013 vide judgment dated 22.02.2019, a

registered sale deed was executed by respondent Nos.3 to 6

being the executants of agreement to sell in favour of the

appellant on 21.08.2009. Under such circumstances, so called

agreement to sell dated 29.12.2011 said to have been executed

by respondent Nos.3 to 5 in favour of respondent Nos.1 and 2

during the pendency of the suit, on is clearly hit by the principles

of lis-pendency. Respondent Nos.1 and 2 who entered into such

an agreement to sell and subsequently entered into a MOU dated

18.12.2017 knowing full well about the agreement to sell, the

decree passed in favour of the appellant and pendency of RFA

No.4016/2013 cannot seek the benefit of lis-pendency.

Respondent Nos.3 to 5 who played mischief in entering into

various agreements with respondent Nos.1 and 2 when they

were parties to the suit O.S.No.14/2011, after executing the

agreement to sell in favour of the appellant, cannot claim any

equity. If at all, the plaintiffs in O.S.No.44/2011 may be entitled

for damages from defendant Nos.1 to 4, but no other reliefs

could be sought by them. When the appellant is the owner in

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possession of the suit property, on the basis of the decree

passed by this court, as well as the registered sale deed

executed pursuant to the said decree, he is entitled to protect

his ownership over the property. He will be free to exercise the

rights of ownership. The trial court ignoring these factual aspects

of the matter proceeded to pass the impugned order without any

basis. The finding of the trial court that the principle of lis-

pendency operates in favour of respondent Nos.1 and 2 is

erroneous. Therefore, the impugned order is liable to be set

aside by allowing the appeal. Accordingly, he prays for allowing

the appeal.

23. Perused the material on record. The point that would

arise for my consideration is:

Whether the order dated 18.04.2019 passed by the trial court on I.A.No.4 allowing the application filed by plaintiff No.2 under Order 39 Rule 1 and 2 r/w Section 151 of CPC calls for any interference by this court?

24. My answer to the above point is in the 'affirmative'

for the following:

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REASONS

25. The undisputed facts of the case are that defendant

Nos.1 to 4 agreed to sell the schedule property in favour of

defendant Nos.5, 7, 8 and one Arif Jameel, who is now

represented by defendant Nos.9 to 14, for Rs.1,28,00,000/-

under an agreement of sale dated 21.08.2009 where under an

advance amount of Rs.28,00,000/-was received by defendant

Nos.1 to 4. It is stated that defendant Nos.1 to 4 have not

executed registered sale deed in terms of agreement of sale and

therefore, the suit in O.S.No.14/2011 was filed on 20.01.2011

by the above said defendants seeking specific performance of

contract. The said suit was came to be decreed in part vide

judgment and decree dated 15.12.2012 where under the claim

of the defendants for specific performance of contract was

rejected but, defendant Nos.1 to 4 were directed to refund the

earnest money of Rs.28,00,000/- to defendant Nos.5, 7, 8 and

deceased Arif Jameel.

26. Aggrieved by the rejection of the specific

performance of contract defendant Nos.5, 7, 8 and Arif Jameel

- 26 -

preferred R.F.A.No.4016/2013 before this Court, which was

admitted and an interim order was passed on 26.12.2013.

Subsequently, a compromise petition was came to be filed by

the parties to the appeal, which was accepted by this Court in

the R.F.A and the R.F.A was came to be disposed of in terms of

the compromise petition, vide judgment and decree dated

22.2.2019. As per the compromise decree, defendant Nos.1 to 4

have executed registered sale deed dated 28.02.2019 in favour

of defendant No.5 by accepting Rs.2 crore i.e., with additional

consideration amount of Rs.1 crore. The said sale deed was

produced before this Court in R.F.A and the same was recorded

therein.

27. Now it is the contention of defendant Nos.1 and 2,

who are the plaintiffs before the trial Court that defendant Nos.1

to 4 have entered into an agreement of sale in respect of the

very same land in question, agreeing to sell the same in their

favour under an agreement of sale dated 29.12.2011, by

accepting advance amount of Rs.25,00,000/-. Strangely, no

steps were taken by plaintiff Nos.1 and 2 against defendant

- 27 -

Nos.1 to 4 seeking specific performance of the said agreement of

sale from 29.12.2011 till filing of the suit on 04.02.2019. It is

stated that the said agreement of sale was recognized by

receiving the deficit stamp duty only on 09.01.2014 and further

consideration amount was paid on 25.1.2019.

28. It is the contention of the plaintiffs that they were

not aware of the transaction entered into between defendant

Nos.1 to 4 as vendors and defendant Nos.5, 7, 8 and deceased

Arif Jameel and therefore, the plaintiffs are the bona-fide

agreement holder for value. It is stated that defendant Nos.1 to

4 herein have agreed to settle the matter and complete the sale

transaction as per the sale agreement. It is their contention that

believing the words of defendant Nos.1 to 4, they entered into

the MOU on 18.12.2017 and on the same day a JDA was also

entered into between the plaintiffs, defendant Nos.1 to 4,

defendant Nos.8 and 14. It is stated that defendant No.8

represented defendant Nos.5, 7 and the legal representatives of

Arif Jameel as General Power of Attorney holder. As per the

terms of this document, defendant Nos.1 to 4 agreed to sell

- 28 -

R.S.No.1222/4 in favour of defendant Nos.5 to 14 and report the

matter in R.F.A.No.4016/2013 and agreed to sell R.S.No.1222/3

in favour of plaintiffs by receiving balance consideration amount.

29. It is pertinent to note that the plaintiffs have filed an

application under Order 1 Rule 10 of CPC seeking to implead

them as parties in R.F.A.No.4016/2013. The said application was

came to be rejected vide order dated 07.01.2019 wherein, it is

held that "if the impleading applicants have any grievance

against plaintiffs in the suit, they could ventilate the same

independently in accordance with law". On the basis of these

observations made by the Division Bench of this Court, plaintiff

Nos.1 and 2 have filed suit O.S.No.14/2019 on 04.02.2019

seeking specific performance of contract against the defendants.

But the facts remain that by that time R.F.A was pending before

this Court and defendant Nos.1 to 4 knowing fully well about all

these developments entered into a compromise with defendant

No.5 and others and filed compromise petition in the R.F.A and

accordingly, appeal was came to be decreed in terms of the

compromise petition. It is also pertinent to note that in

- 29 -

pursuance of said compromise decree passed by the Division

Bench of this Court, defendant Nos.1 to 4 have executed

registered sale deed by receiving Rs.2 crore by way of cheque

and said to have encashed the same. Thus they have received

additional amount of Rs.1 crore than it was agreed under the

agreement to sell. Therefore, it is clear that a competent Civil

Court granted the decree for specific performance of the contract

as per the terms of compromise petition filed by the parties

concerned and in pursuance of the same, registered sale deed

was also executed in favour of defendant No.5 by accepting

consideration amount as agreed under the compromise petition.

30. Now it is interesting to note that the learned counsel

for defendant Nos.1 to 4 contends that these defendants have

entered into compromise with the appellants in

R.F.A.No.4016/2013 by mistake, without knowing the contents

of the compromise petition and it was a bona-fide mistake

committed by them that they signed the compromise petition

and admitted the terms of the same before the Division Bench of

this Court. It was also a mistake committed by defendant Nos.1

- 30 -

to 4 that they executed registered sale deed in favour of

defendant No.5 by accepting the additional consideration amount

of Rs.1 crore. The contention taken by defendant Nos.1 to 4 that

by mistake they entered into compromise, signed the

compromise petition, admitted the same before the Division

Bench of this Court and executed registered sale deed by

accepting additional consideration amount, cannot be accepted

at any cost. Defendant Nos.1 to 4 were very well aware of they

executing the agreement for sale in favour of defendant No.5

and others after accepting part consideration, filing suit

O.S.No.14/2011, filing of the R.F.A and pendency of the same

before this Court. But still proceeded to enter into compromise,

filed compromise petition and admitted its contents before the

Division Bench of this Court and also executed registered sale

deed by accepting additional consideration amount. Therefore, it

is clear that defendant Nos.1 to 4 have deliberately acted in that

manner for the reasons best known to them. But, now they

turned around and say that as per the compromise petition, the

sale deed was agreed to be executed in favour of the plaintiffs in

O.S.No.14/2011. But defendant No.5 alone got executed

- 31 -

registered sale deed, which is bad under law. When defendant

Nos.1 to 4 with their eyes wide open executed the sale deed

after entering into a compromise and accepting additional sale

consideration, it would not lie in their mouth to contend that

defendant No.5 was not entitled to get the sale deed executed in

his favour. Therefore, as on the date of passing the impugned

order as i.e., 18.04.2019, defendant Nos.1 to 4 were not the

owners of the property in question. But it was defendant No.5 in

whose favour the registered sale deed was executed and he was

in actual possession and enjoyment of the property under the

registered sale deed.

31. With these background in mind, let me consider the

contention of the parties with regard to the impugned order in

question.

32. Plaintiff Nos.1 and 2 have filed application-I.A.No.4

before the trial Court under Order 39 rule 1 and 2 read with

Section 151 of CPC, praying for grant of temporary injunction

restraining defendant No.5, his agents, servants or anybody

acting on his behalf from alienating the suit properties in any

- 32 -

manner like sale, gift, charge, mortgage, lien, agreement etc.,

till disposal of the suit. The said application was came to be

allowed vide order dated 18.04.2019 by the trial Court, which is

impugned in this appeal. Now the question arises as to whether

the trial Court was right in allowing I.A.No.4 and restraining

defendant No.5 from alienating the suit properties in any manner

till the disposal of the suit. When the facts and circumstances of

the case and the materials placed before the Court disclose that

defendant No.5 was the absolute owner on the basis of the

registered sale deed that was executed by defendant Nos.1 to 4

after getting compromise decree in R.F.A.No.4016/2013, he

could not have been restrained from exercising his rights over

the property in question as its lawful owner.

33. The learned counsel for the plaintiffs contended that

the trial Court considered and passed order exercising its

discretion judiciously. The trial Court proceeded to form an

opinion that the sale deed executed by defendant Nos.1 to 4 in

favour of defendant No.5 in terms of the compromise decree

passed in R.F.A.No.4016/2013 is hit of doctrine of lis-pendence.

- 33 -

The principles of lis-pendence is governed by Section 52 of the

Transfer of Property Act (for short T.P.Act), which reads as

under.

Section 52: Transfer of property pending suit relating thereto.--During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

[Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or

- 34 -

discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.

34. This principles of lis-pendence based on the doctrine

that the administration of justice requires decision of the Civil

Court in a suit, which is pending should be binding not only on

the litigating parties but on those who derive title pendelite. This

doctrine stipulates that during the pendency of any suit or

proceedings in which any right to immovable property is, directly

or specifically in question, the property, which is subject-matter

of such suit or proceeding cannot be "transferred or otherwise

dealt with", so as to affect the rights of any other party to such

suit or proceeding. Any such transfer during the pendency of the

suit will be subject to the result of the suit. Any transaction

during the pendency of the suit will not automatically become

void or illegal but party entering into contract during such

pendency would be bound by the decision of the Court in

pending litigation.

- 35 -

35. In the present case, the facts discussed above

disclose that defendant No.5 along with defendant Nos.7 and 8

and deceased Arif Jameel, who is now represented by defendant

Nos.9 to 14 had agreed to purchase the land in question from

defendant Nos.1 to 4, for a valuable consideration, under an

agreement dated 21.08.2009. The suit O.S.No.14/2011 was filed

by them against defendant Nos.1 to 4 on 20.01.2011, seeking

relief of specific performance of contract, which is partly

decreed, directing to refund the earnest money vide judgment

and decree dated 15.12.2012. The said judgment and decree

rejecting the prayer for grant of specific performance of contract

was challenged before this Court by defendant Nos.5, 7, 8 and

legal representatives of deceased Arif Jameel in

R.F.A.No.4016/2013, which was admittedly came to be decreed

in terms of the compromise entered into between the parties and

further execution of the registered sale deed dated 28.02.2019

by defendant Nos.1 to 4 in favour of defendant No.5. In the

meantime, plaintiffs herein said to have entered into an

agreement for sale with defendant Nos.1 to 4 in respect of same

property on 29.12.2011 i.e, during the pendency of the suit

- 36 -

O.S.No.14/2011. But admittedly, they have not taken any action

on the basis of said agreement to sale till 04.02.2019 when they

filed the suit O.S.No.44/2019, seeking specific performance of

contract.

36. The contention of the plaintiffs that cause of action

for the suit arose in view of the liberty reserved in their favour in

R.F.A vide order dated 07.01.2019 also cannot be accepted for

the simple reason that no absolute right was reserved by the

Division Bench of this Court to file a suit for specific performance

of contract against defendant No.5 or other defendants except

defendant Nos.1 to 4 as it is held that "any impleadment would

only result in misjoinder of causes of action. The object and

purpose of impleadment is in order to vindicate their rights in a

transaction said to have taken place between the

plaintiffs/defendants and the impleading applicants, which is

categorically denied by the applicants/plaintiffs. If impleadment

is permitted, the focus and attention on the cause of action

between plaintiffs and defendants would be lost and would be

tangled in another controversy between plaintiff on the one side

- 37 -

and defendants and impleading applicants on the other. Such a

misjoinder of causes of action in the suit is impermissible. If the

impleading applicants have any grievance against the plaintiffs in

the suit, they could ventilate the same independently and in

accordance with law."

37. By no stretch of imagination, the order extracted

above would give a right in favour of the plaintiffs in the present

case to stall effect of the registered sale deed that was executed

by defendant Nos.1 to 4 in favour of defendant No.5, as per the

terms of the compromise decree passed in R.F.A.No.4016/2013.

38. The grievance of the plaintiffs and defendant Nos.1

to 4 that the registered sale deed executed in favour of

defendant No.5 was not in accordance with the compromise

decree passed by this Court, as per the decree, the sale deed

should have been executed jointly in favour of defendant Nos.5,

7, 8 and 9 to 12, cannot be accepted as defendant Nos.7 to 14

have not raised any objection for getting the sale deed in favour

of defendant No.5 and defendant Nos.1 to 4 have also never

raised any objection while executing the registered sale deed

- 38 -

only in favour of defendant No.5. If at all defendant Nos.7 to 14

should have raised their objection in getting the registered sale

deed only in the name of defendant No.5. But either defendant

Nos.1 to 4 or the plaintiffs can raise any objection in that regard.

Moreover, the document placed before the Court discloses that

defendant No.5 has produced copy of the registered sale deed

before the Division Bench of this Court in R.F.A.No.4016/2013 as

per the direction issued in this regard and the said sale deed was

noted and recorded by this Court. Under such circumstances, I

do not find any merits in the contention taken by the plaintiffs

and defendant Nos.1 to 4 in that regard, when no steps were

taken by any of them to annul the sale deed executed in favour

of the appellant.

39. It is the contention of the plaintiffs and defendant

Nos.1 to 4 that MOU and JDA were entered into between the

plaintiffs, defendant Nos.1 to 4, 8 to 14 on 18.12.2017. It is

their contention that even though defendant No.5 is not a

signatory to any of these documents, he was represented by

defendant No.8 as his power of attorney holder. Those

- 39 -

documents styled as memorandum of understanding and joint

development agreement dated 18.12.2017 are produced before

this Court. In none of these documents, defendant No.8 had

signed on behalf of defendant No.5 as his power of attorney

holder. Under such circumstance, the documents dated

18.12.2017 would not bind defendant No.5 in any manner. When

there is no valid reasons as to why defendant No.5 is not a party

to any of these documents and as to why defendant Nos.1 to 4

have entered into a compromise with appellant in

R.F.A.No.4016/2013 agreeing to execute the sale deed by

accepting the additional amount and as to why they executed

registered sale deed in favour of defendant No.5 alone and

accepted the sale consideration amount as agreed under the

compromise decree, the contention taken by them is liable to be

rejected out rightly.

40. When defendant No.5 is the owner of the property in

question under a registered sale deed, he cannot be restrained

from exercising his right as absolute owner of the property

simply because the plaintiffs have chosen to file the suit seeking

- 40 -

specific performance of the agreement dated 29.12.2011 only on

04.02.2019 that too after rejection of their application filed in

R.F.A.No.4016/2013. Therefore, I am of the opinion that the trial

Court has committed an error in passing the impugned order

restraining defendant No.5 from alienating the property in

question in any manner. Even on equity defendant No.5 cannot

be restrained from exercising his right of ownership over the

property, till final decision in the suit filed by the plaintiffs, as

they have chosen to slept over their rights for a period of more

than 7 years, without seeking specific performance of contract

against defendant Nos.1 to 4.

41. Learned counsel for the respondent Nos.1 and 2 has

placed reliance on the decision in Seema Arshad Zaheer and

Others Vs Municipal Corporation of Greter Mumbai.

wherein Hon'ble Apex Court held in 2Para No.30 as under;

The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded,

(2006) 5 Supreme Court 282

- 41 -

necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.

(emphasis supplied)

42. The facts and circumstances of the present case, if

considered in the light of the principles highlighted above, it is

clear that plaintiffs, who are claiming right to seek specific

performance of contract against defendant Nos.1 to 4 is relying

on the document dated 29.12.2011 and the suit was filed on

04.02.2019 i.e., after laps of more than 7 years. Before

executing the agreement for sale dated 29.12.2011 in favour of

the plaintiffs, defendant Nos.1 to 4 have executed similar

- 42 -

agreement in favour of defendant Nos.5, 7, 8 and deceased Arif

Jameel, who have filed the suit O.S.No.14/2011 for seeking

specific performance of contract on 20.1.2011 i.e, much before

the agreement in favour of the plaintiffs. Defendant Nos.1 to 4

have entered into the compromise with defendant Nos.5, 7, 8

and deceased Arif Jameel and the Regular Fist Appeal was came

to be decreed in terms of the agreement to sale. Thereafter,

defendant Nos.1 to 4 have sold the property in question under a

registered sale deed in favour of defendant No.5. When the

agreement to sell relied on by the plaintiff was entered into by

them with defendant Nos.1 to 4 during the pendency of the suit

O.S.No.14/2011 filed by appellant herein and others, the

principles of lis pencence will protect the rights of appellant

herein. Under such circumstances, it cannot be said that the

plaintiffs in the present suit are having prima-facie case and they

need protection of their right. When the need of protection of the

plaintiffs right is compared with the right of defendant no.5, who

acquired absolute right, title, interest under a valid registered

sale deed, it cannot be said that the balance of the convenience

lies with the plaintiffs. But on the other hand, it is in favour of

- 43 -

defendant No.5. Even hardship when considered, more hardship

will be caused to defendant No.5 if he is restrained from

exercising his right of ownership over the land in question, which

was conferred on him, as per the decree passed by this Court in

R.F.A.No.4016/2013. When all the 3 basic requirements for

grant of temporary injunction is not satisfied, the plaintiffs are

not entitled for grant of temporary injunction. Even though it is

contended by the learned counsel for the respondents that the

trial Court exercised its discretion judiciously, the impugned

order discloses that the trial Court has not considered any of

these facts while passing the impugned order. When the

impugned order passed by the trial Court is apparently

erroneous ignoring the material facts and circumstances, such

order is required to be interfered with.

43. The impugned order passed by the trial Court is

perverse and the same is liable to be set-aside. Accordingly, I

answer the above point in the affirmative and proceeded to pass

the following;

- 44 -

ORDER

The appeal is allowed.

The impugned order dated 18.04.2019 passed on I.A.No.4

under Order 39 Rule 1 and 2 read with Section 151 of Code of

Civil Procedure in O.S.No.44/2019 by the II Additional Senior

Civil Judge and CJM., Belagavi, is set-aside.

Sd/-

JUDGE

MBS/AM