Telangana High Court
Om Narayan Sahu vs M/S. Vijaya Infratech on 22 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
C.M.A.No.493 of 2023
JUDGMENT:
This appeal is filed by the appellants/defendant Nos.2, 3, 5
and 6 challenging the order and decree dated 04.04.2023, passed
by the IV Senior Civil Judge, City Civil Court, Hyderabad, in
I.A.No.358 of 2021 in O.S.No.660 of 2021.
2. The appellants herein are defendant Nos.2, 3, 5 and 6
respectively, respondent Nos.1 to 5 are the plaintiffs and
respondent Nos.6 and 7 are defendant Nos.1 and 4 in the suit.
3. The facts of the case, in brief, are that the
respondents/plaintiffs filed the suit vide O.S.No.660 of 2021 on
the file of the IV Senior Civil Judge, City Civil Courts,
Hyderabad, against the appellants/defendants and respondent
Nos.6 and 7, seeking permanent injunction restraining the
defendants from inducting any third party into the suit schedule
property viz., 14,726 square yards, bearing Municipal Nos.9-1-
44/1/2, 9-1-44/2/1/A and 9-1-44/1, falling in Survey Nos.140,
141 (Old No.144/1), situated at Langer House, Hyderabad. The 2 LNA, J CMA No.493 of 2023
plaintiffs also filed an Interlocutory Application vide I.A.No.358
of 2021 under Order XXXIX Rules 1 and 2 read with Section 151
C.P.C. to grant ad-interim injunction restraining the
appellants/defendants and respondent Nos.6 and 7 from
inducting any third party into the petition schedule property.
4. In the Interlocutory Application i.e., I.A.No.358 of 2021, the
respondents/plaintiffs stated that the father of the
appellants/defendants and respondent Nos.6 and 7 was owner of
the suit schedule property i.e., 14,726 Square Yards and on
demise of their father, the defendants succeeded to the suit
schedule property. The appellants/defendants and respondent
Nos.6 and 7 jointly executed an unregistered Development
Agreement-cum-General Power of Attorney dated 02.11.2009
with regard to the development of entire suit schedule property
i.e., 14,726 Square Yards in favour of the plaintiffs and the
plaintiffs paid an amount of Rs.2.00 Crores in cash to the
defendants as interest free refundable advance for the schedule
property. Later, the appellants/defendants and respondent Nos.6
and 7 executed two Registered Development Agreements-cum- 3
LNA, J CMA No.493 of 2023
General Power of Attorney bearing document Nos.614 of 2010
and 615 of 2010, dated 30.11.2009, in respect of the lands
admeasuring 3829 square yards and 3441.11 square yards
respectively.
5. It is contended that the appellants/defendants and
respondent Nos.6 and 7 have not complied with the clauses of the
agreement, and therefore, the respondent/plaintiffs could not
undertake development of the land. In the meanwhile, the
defendants filed O.S.No.1648 of 2011 on the file of the IV Senior
Civil Judge, City Civil Courts, Hyderabad, for cancellation of the
Registered Development Agreements-cum-General Power of
Attorney vide document Nos.614 of 2010 and 615 of 2010 dated
30.11.2009. The respondents/plaintiffs did not choose to contest
the said suit and they remained ex parte. However, the said suit
was dismissed by the trial Court vide order dated 11.07.2012 on
the ground that Clause No.31 of the said Development
Agreement was not complied with by the appellants/defendants
and respondent Nos.6 and 7. Aggrieved by the order dated
11.07.2012, the appellants/defendants and respondent Nos.6 and 4 LNA, J CMA No.493 of 2023
7 filed an appeal vide C.C.C.A.No.159 of 2018 and the same is
pending adjudication before this Court.
6. While the matter stood thus, on 20.10.2021 and 22.10.2021,
the defendant Nos.3 and 4 came to the schedule property along
with third parties with an intention to alienate the schedule
property to third parties without cancelling the registered deeds.
7. The appellants/defendant Nos.2,3,5 and 6 filed counter
denying the allegations made in the Interlocutory Application.
However, they admitted that they entered into two Registered
Development Agreements-cum-General Power of Attorney
bearing document Nos.614 of 2010 and 615 of 2010 dated
30.11.2009 in respect of 3829 square yards and 3441.11 square
yards respectively. They also denied that they jointly executed
Unregistered Development Agreement-cum-General Power of
Attorney dated 02.11.2009 for an extent of 14,726 square yards
and further denied receipt of Rs.2.00 Crores as refundable interest
free security deposit. They further denied that under Clause 13 of
the Registered Development Agreements bearing document 5 LNA, J CMA No.493 of 2023
Nos.614 of 2010 and 615 of 2010 dated 30.11.2009, possession was
delivered to the respondents/plaintiffs. They stated that physical
possession of the schedule property is still with them, as they are
running petrol pump and school in the schedule property and
collecting the rents from the tenants.
8. On behalf of the respondents/plaintiffs, though none were
examined, Exs.P.1 to P.8 were marked. On behalf of the
appellants/defendants and respondent Nos.6 and 7, no oral or
documentary evidence was adduced.
9. Initially, the trial Court granted status quo vide order dated
29.11.2021. Subsequently, the trial Court, after hearing both sides
and considering the entire material available on record, allowed
the I.A by granting temporary injunction restraining the
defendants from inducting any third party into the petition
schedule property pending disposal of the suit to avoid the
multiplicity of proceedings vide impugned order dated
04.04.2023. Hence, this appeal.
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LNA, J CMA No.493 of 2023
10. Heard Sri Vivek Jain, the learned counsel for the appellants
and Sri K. Venu Madhav, the learned counsel for the respondents.
Perused the record.
11. The learned counsel for the appellants/defendants
submitted that the trial Court erred in granting temporary
injunction in respect of the entire extent of 14,726 square yards of
land basing on unregistered Development Agreement-cum-
General Power of Attorney dated 02.11.2009. He further
submitted that the trial Court ought to have seen that the two
Registered Development Agreements were entered only in
respect of 3829 square yards and 3441.11 square yards, totally
admeasuring 7270.11 square yards, and they are under challenge
in C.C.C.A.No.159 of 2018 before this Court. He further
submitted that the trial Court failed to consider the provisions of
Sections 14 and 41 of the Specific Relief Act,1963 and granted the
temporary injunction mechanically.
12. The learned counsel for the appellants/defendants further
submitted that Clause 13 of the Registered Development 7 LNA, J CMA No.493 of 2023
Agreements-cum-General Power of Attorney bearing document
Nos.614 of 2010 and 615 of 2010, dated 30.11.2009, was only
intended for the respondents/plaintiffs to enter into the property
to carry on development works and as such, it was only a
permissive possession and the developer was only a lincesee of
the property. He further submitted that the
respondents/plaintiffs have filed the suit for mere injunction
simpliciter and no other reliefs for specific performance, money
recovery or damages have been claimed, therefore, the suit is
untenable in law. Further, there is no prayer for grant of leave to
sue for a comprehensive relief under Order II Rule 2 C.P.C; that
since the development agreement is unregistered, the same is hit
by Section 17 of the Registration Act, 1908 and Section 47 of the
Indian Stamp Act, 1899. Finally, he prayed to set aside the
impugned order dated 04.04.2023.
13. In support of his contentions, the learned counsel for the
appellants relied upon the judgments of the Hon'ble Supreme
Court as well as united High Court of Andhra Pradesh in Kashi
Math Samsthan & Anr. V. Shrimad Sudhindra Thirta Swamy & 8 LNA, J CMA No.493 of 2023
Anr., 1 Balram Singh v. Kelo Devi 2, Mohd. Jahangir v.
Mallikarjuna Co-op Housing Society Ltd., 3 and Burra Anitha
v.Elagari Mallavva 4,
14. Per contra, the learned counsel for the
respondents/plaintiffs submitted that all the contentions raised
by the appellants/defendants have to be settled in trial and that if
the appellants/defendants enter into third party agreements, the
respondents/plaintiffs would suffer irreparable loss and it will
create multiplicity of litigation, and therefore, the trial Court has
rightly granted temporary injunction. He further submitted that
as per Clause 31 of the Registered Development Agreements-
cum-General Power of Attorney bearing document Nos.614 of
2010 and 615 of 2010, dated 30.11.2009, the owners undertook to
level the entire site admeasuring 3829 square yards and 3441.11
square yards respectively, by removing the stones and pebbles
and also by leveling the ground to look even and also for fixing
1 (2010) 1 SCC 689 2 2022 SCC Online SC 1283 3 1991 SCC ONLINE AP 416 4 2010 SCC Online AP 518 9 LNA, J CMA No.493 of 2023
poles for boundaries; that there are no merits in the appeal and
prayed for dismissal of the same.
Consideration:
15. A perusal of the record would show that there is serious
dispute with regard to execution of the unregistered
Development Agreement-cum-General Power of Attorney dated
02.11.2009 and payment of Rs.2.00 Crores towards refundable
advance to the appellants/defendants. However, the
appellants/defendants admitted that they entered into two
Registered Development Agreements-cum-General Power of
Attorney bearing document Nos.614 of 2010 and 615 of 2010,
dated 30.11.2009, in respect of 3829 square yards and 3441.11
square yards respectively. The appellants/defendants contended
that only symbolic possession was delivered to the
respondents/plaintiffs for obtaining permission for construction.
16. Clause 13 of the Registered Development Agreements-
cum-General Power of Attorney bearing document Nos.614 of
2010 and 615 of 2010, dated 30.11.2009, reads as under: 10
LNA, J CMA No.493 of 2023
"13. THAT the OWNERS agreed to sign the affidavits, declarations, applications maps, plans, etc., wherever it is required at the instance of DEVELOPER to approvals, sanctions, permissions from the government authorities or its agencies, departments at the cost of the Developer. Further, the OWNERS shall produce all original documents pertaining to the Schedule Property before the concerned authorities as and when it is required for the said purpose. That today all the Owners have delivered the vacant physical position of the Schedule Property to the Developer." (emphasis supplied)
17. Clause 31 of the Registered Development Agreement-cum-
General Power of Attorney bearing document No.614 of 2010
dated 30.11.2009 reads as under:
"31. That the Owners hereby undertake to level the entire site admeasuring 3,829.00 Sq. Yards by removing the stones & pebbles and also by leveling the ground to look even and also for fixing of poles for boundaries."
18. Similarly, Clause 31 of the Registered Development
Agreement-cum-General Power of Attorney bearing document
No.615 of 2010, dated 30.11.2009 reads as under:
"31. That the Owners hereby undertake to level the entire site admeasuring 3,441.11 Sq. Yards by removing the stones & pebbles 11 LNA, J CMA No.493 of 2023
and also by leveling the ground to look even and also for fixing of poles for boundaries."
19. The above Clauses clearly disclose that the
appellants/defendants and respondent Nos.6 and 7 have
delivered vacant possession of the schedule property to the
respondents/plaintiffs under Clause 13 and that the
appellants/defendants and respondent Nos.6 and 7 undertook to
level the sites covered by the said Registered Development
Agreements by removing the stones and pebbles and by leveling
the ground to look even and also for fixing poles for boundaries,
as per Clause 31.
20. A perusal of the record discloses that there is no material to
prove that the appellants/defendants and respondent Nos.6 and
7 complied with Clause 31 and therefore, there is considerable
force in the contention of the respondents/plaintiffs that they
could not take steps to develop the land and obtain permission
for construction.
21. Admittedly, the appellants/defendants filed O.S.No.1648
of 2011 for cancellation of the Registered Development 12 LNA, J CMA No.493 of 2023
Agreements-cum-General Power of Attorney bearing document
Nos.614 of 2010 and 615 of 2010, dated 30.11.2009, and the said
suit was dismissed on 11.07.2012. Aggrieved by the same, the
appellants/defendants and respondent Nos.6 and 7 filed
C.C.C.A.No.159 of 2018 and the same is pending adjudication
before this Court. Therefore, as on date, the two Registered
Development Agreements-cum-General Power of Attorney
bearing document Nos.614 of 2010 and 615 of 2010, both dated
30.11.2009, are still in force and are binding on the parties.
22. Interestingly, the respondents/plaintiff filed the present
suit vide O.S.No.660 of 2021 for injunction restraining the
appellants/defendants and respondent Nos.6 and 7 from
inducting any third party into possession of the suit schedule
property i.e., the land to an extent of 14,726 square yards covered
by the Unregistered Development Agreement-cum-General
Power of Attorney dated 02.11.2009. However, the respondents/
plaintiffs have neither sought any further relief for specific
performance of unregistered Development Agreement dated 13 LNA, J CMA No.493 of 2023
02.11.2009 nor the leave of the Court under Order II Rule 2 CPC
to file a comprehensive suit subsequently.
23. Insofar as the decisions relied upon by the learned counsel
for the appellants is concerned, in Kashi Math Samsthan's case (1
supra), the Hon'ble Supreme Court held that when a party fails to
prove prima facie case to go for trial, question of considering the
balance of convenience or irreparable loss and injury to the party
concerned would not be material at all, that is to say, if that party
fails to prove prima facie case to go for trial, it is not open to the
court to grant injunction in favor even if, he has made out a case
of balance of convenience in his favor and would suffer
irreparable loss if no injunction is granted.
24. In Balram Singh's case (2 supra), the Hon'ble Supreme
Court, while considering the facts of that case, observed that the
plaintiff might not succeed in getting the relief of specific
performance of such agreement to sell as the same was
unregistered, the plaintiff filed a suit simplicitor for permanent
injunction only. It may be true that in a given case, an 14 LNA, J CMA No.493 of 2023
unregistered document can be used and/or considered for
collateral purpose. However, at the same time, the plaintiff
cannot get the relief indirectly which otherwise he/she cannot get
in a suit for substantive relief, namely, in the present case the
relief for specific performance.
25. In Mohd. Jahangir's case (3 supra), the erstwhile Hon'ble
High Court of Andhra Pradesh held that in view of the fact that
the relief of injunction is an equitable relief, the same cannot be
granted when the plaintiff has not shown readiness and
willingness to perform his part of the contract by seeking specific
performance of agreement of sale. Accordingly, the Court partly
allowed the CRP by partly setting aside the order of temporary
injunction in I.A. and partly confirming to the extent of plots
comprised in the plaint schedule. The Court further held that as
the suit is pending and dispute between the parties has to be
resolved in the suit, it will be expedient to restrain the petitioners
from alienating the suit during the pendency of the suit.
26. In Burra Anitha's case (4 supra), this Court held as under: 15
LNA, J CMA No.493 of 2023
"12. The principle laid down by His Lordship in S. RAVINDER's case (4 supra) has to be understood with reference to such distinction and His Lordship was disinclined to permit undertaking an independent enquiry into the admissibility of a document at the stage of interlocutory enquiry when the agreement of sale was objected to be admitted into evidence for want of registration, whereas His Lordship himself recognized the right of the party to raise an objection even at the stage of consideration of an interlocutory application if the document suffers from any basic legal infirmity or illegality. This distinction is lost sight of by the trial Court. When the objection to the document in question was not only on the ground of want of registration, but also on the ground of want of sufficient stamp, the party producing the document was not stated either to have offered or to have made any attempt to pay required stamp duty and penalty on the document to en- able consideration of the admissibility of the document for any collateral purpose and in view of the absolute prohibition under Section 35 of the Stamp Act, looking into the document, even for the purposes of an interlocutory application, will be overlooking a basic legal infirmity or illegality.
The trial Court went wrong in appreciating the ratio of the precedents cited before it as permitting the marking of an unstamped and unregistered document in an interlocutory enquiry and opining that the objections will be considered while disposing of the interlocutory application. Section 60 of Civil Rules of Practice provides for marking of the documents in interlocutory proceedings in the same manner as in a suit and under the circumstances, the impugned order is liable to be set aside and the trial Court is to be directed to determine the objections of the Revision Petitioner/plaintiff against the admissibility of the document on the ground of insufficiency of stamp and want of registration."
27. In Punjab National Bank v. Iqbal Ahmed 5, the High Court
of Delhi held as under:
"5. It may be pointed out that no suit for specific performance of unregistered agreements dated 31.3.1965 and 16.10.1965 was filed nor have the respondents sought cancellation of the registered sale deed dated 31.03.1965 and 19.10.1965. This would lead to a situation where the respondents are not avoiding the transaction in the registered
5 2003 SCC Online Del 1060 16 LNA, J CMA No.493 of 2023
instrument but are seeking to use the unregistered agreements dated 31.3.1965 and 16.10.1965 to seek mandatory and permanent injunction as also possession. Such is impermissible and any interim order in furtherance thereof cannot be granted. It has been held by the Supreme Court in S.Saktivel (dead) by LRs. vs. M.Venugopal Pillai and ors., 2000(7) SCC 104, that unregistered document cannot be rescinded, varied or altered by unregistered document. Therefore, no final relief can be granted on the basis of unregistered agreement in the teeth of the registered sale deed. Consequently, where a final relief cannot be granted, an interim relief to the same effect is also barred."
28. It is pertinent to note that in the present case the
respondents/plaintiffs did not seek specific performance of
Unregistered Development Agreement dated 02.11.2009 and no
leave was sought under Order II Rule 2 CPC. Further, the
Unregistered Development Agreement dated 02.11.2009 was not
marked before the trial Court.
29. The trial Court came to the conclusion that the
respondents/plaintiffs made out prima facie case, balance of
convenience and irreparable loss for grant of injunction and to
avoid multiplicity of litigation. However, the trial Court erred in
granting injunction in respect of the entire extent of 14,726 square
yards, which is covered by the Unregistered Development 17 LNA, J CMA No.493 of 2023
Agreement dated 02.11.2009, since there is a serious dispute with
regard to execution of Unregistered Development Agreement
dated 02.11.2009. Therefore, the trial Court ought to have
confined the injunction only to 3829 square yards and 3441.11
square yards, totally admeasuring 7270.11 square yards, covered
by Registered Development Agreements-cum-General Power of
Attorney bearing document Nos.614 of 2010 and 615 of 2010,
dated 30.11.2009, which are in force and binding on the parties.
30. In the light of the above factual background and the legal
position, the impugned order dated 04.04.2023 is modified and
restricted to the extent of the land admeasuring 7270.11 square
yards covered by the Registered Development Agreements-cum-
General Power of Attorney bearing document Nos.614 of 2010
and 615 of 2010, dated 30.11.2009, as under:
"Temporary Injunction is granted restraining the
defendants from inducting any third party in respect of the land
admeasuring 3829 square yards and 3441.11 square yards, totally
admeasuring 7270.11 square yards, pending disposal of the suit."
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LNA, J CMA No.493 of 2023
31. Accordingly, the Second Appeal is partly allowed to the
extent indicated above. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand
closed.
__________________________________ LAXMI NARAYANA ALISHETTY, J Date: 22.01.2024 va
