Madhya Pradesh High Court

Geeta Bai vs Dipak Pamnani on 6 January, 2025

Author: Pranay Verma

Bench: Pranay Verma

                              NEUTRAL CITATION NO. 2024:MPHC-IND:36945    --1--

                          IN THE             HIGH COURT                  OF MADHYA PRADESH



                                                          AT I N D O R E
                                                              BEFORE
                                          HON'BLE SHRI JUSTICE PRANAY VERMA



                                                 MISC. APPEAL No. 8845 of 2024

                                                     GEETA BAI AND OTHERS

                                                           Versus
                                                 DIPAK PAMNANI AND OTHERS
                         _________________________________________________________________
                         Appearance:
                              Shri Mahendra Kumar Jain - Advocate for the appellants.

                         _______________________________________________________________

                                                               ORDER

(RESERVED ON 11/10/2024)

(PRONOUNCED ON 06/1/2025)

1. This appeal under Order 43 Rule (1) (r) of the CPC has been

preferred by defendants No.1 and 3/appellants being aggrieved by

the order dated 7/8/2024 passed in Civil Suit No.51-A/2024, by the

7th District Judge, Ujjain whereby application under Order 39 Rule 1

and 2 of the CPC preferred by plaintiffs/respondents No.1 to 3 for

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issuance of temporary injunction has been allowed.

2. As per the plaintiffs, Sukhram, husband of defendant No.1 and

father of defendants No.2 to 10, was the owner of the suit land

bearing Survey No.3107/3 area 1.725 hectare Gram Kasba Ujjain.

On 14/9/2022 he had entered into an agreement to sale with respect

to the suit land in their favour for a total consideration of

Rs.1,10,63,250/- upon payment of earnest money of Rs.23,00,000/-.

The remaining amount of sale consideration was to be paid by

9/5/2023. Sukhram expired on 28/4/2023. The plaintiffs have

performed their part of the contract and have carried out all the

necessary formalities as stated therein. On 28/4/2023 two sale deed

were also executed by Sukhram's power of attorney holder defendant

No.2 in favour of plaintiffs. However, due to death of Sukhram the

sale deeds could not be got registered. Thereafter the plaintiffs

requested the defendants for registration of the sale deeds in their

favour but they have not done so despite issuance of a legal notice to

them in that regard.

3. On such contentions the plaintiffs have instituted an action

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before the trial Court for specific performance of contract dated

14/9/2022. Along with the plaint, they also filed an application under

Order 39 Rule 1 and 2 of the CPC praying for issuance of temporary

injunction restraining the defendants from alienating the suit land in

favour of any third person submitting that defendants are attempting

to create third party interests therein.

4. The defendants No.1 to 3 filed their reply to the application

submitting that Sukhram was in need of money hence plaintiff No.1

had advanced a sum of Rs.15,00,000/- to him by way of loan. For

security of the same, plaintiff No.1 had got a thumb impression

affixed from Sukhram on a blank paper but has thereafter misused

the same and has prepared an agreement to sale thereupon. No such

agreement was ever executed by Sukhram in favour of plaintiffs

which is a forged and fabricated document. Subsequently a similar

type of document was got executed by plaintiff No.1 from defendant

No.2 for repayment of the loan.

5. The trial Court has allowed plaintiff's application for issuance

of temporary injunction observing that prima facie it appears that

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agreement to sale was executed by Sukhram in favour of plaintiffs

upon receiving earnest money of Rs.23,00,000/- and that if the suit

land is alienated during pendency of suit it would cause irreparable

injury to the plaintiffs.

6. Learned counsel for defendants No.1 to 3 has submitted that

the trial Court has erred in allowing plaintiffs application for

issuance of temporary injunction. Though it was contended by

plaintiffs that a slot was booked for registration of sale deed

allegedly executed by defendant No.2 but the same is wholly false.

The slot was booked for 1/5/2023 but Sukhram had expired on

28/4/2023 itself. The plaintiffs have not come with clean hands. No

agreement to sale was ever executed by Sukhram in favour of

plaintiffs which is a forged and fabricated document. He was in

need of money hence had taken loan from plaintiff No.1 who had

fraudulently got executed an agreement to sale in favour of

plaintiffs. Likewise the document got executed from defendant No.2

was also on the pretext of advancing further loan. The interests of

plaintiffs are very well protected by provisions of Section 52 of the

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Transfer of Property Act in view of which no injunction ought to

have been issued. The impugned order hence deserves to be set

aside.

7. I have considered the submissions of the learned counsel for

defendants No.1 to 3 and have perused the record.

8. As per defendants No.1 to 3 themselves on the document dated

14/9/2022 signatures of Sukhram are available. Whether the same

were put by him on a blank paper at the behest of plaintiff No.1

which has later on been prepared as an agreement to sale or whether

the same were put by him on the agreement to sale itself is a

disputed question of fact which can only be decided after recording

of evidence of the parties. Even defendants No.1 to 3 have admitted

payment of an amount of Rs.15,00,000/- by plaintiffs to Sukhram.

The plaintiffs contend the amount paid to be Rs.23,00,000/-. What is

the exact amount paid and whether the same was paid by way of

earnest money or by way of loan by plaintiff No.1 to Sukhram would

also be a matter required to be decided upon merits. For the present a

debatable question has been raised by plaintiffs which requires

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consideration and determination. It cannot be said that the case of

plaintiffs is so preposterous that the same does not deserve any

consideration. On the other hand, a triable issue has very much been

raised by plaintiffs.

9. On the record there is also a document which is a power of

attorney executed by Sukhram in favour of his son defendant No.2

for execution of the sale deed in favour of plaintiffs. Though this

document is also contended by defendants No.1 to 3 to have been

got executed from defendant No.2 by playing fraud, it cannot at this

stage be discarded altogether particularly since it is a registered

document. The same gives credence to the contention of plaintiffs

that agreement to sale was in fact executed. A slot was booked in the

Office of Sub Registrar for 1/5/2023 for registration of the sale deed

but Sukhram died prior to that itself on 29/4/2023. It would be

wholly immaterial whether the parties appeared in the Office of Sub

Registrar on that day or not.

10. Recently the Apex Court in Ramakant Ambalal Choksi V/s.

Harish Ambalal Choksi and Ors., 2024 SCC On-line SC 3538 has

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held that in a suit seeking specific performance of a sale agreement,

notwithstanding Section 52 of Transfer of Property Act there can be

occasion for grant of injunction restraining pendente lite transfers in

a fit and proper case. It has been held as under :-

"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 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 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. Vs. Haripada Muzumdar & Anr. Reported in AIR 1988 Cal