Madhya Pradesh High Court
Smt. Maya Soni vs Ajay Soni on 16 December, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:62870
1 MP-6556-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 16th OF DECEMBER, 2024
MISC. PETITION No. 6556 of 2024
SMT. MAYA SONI
Versus
AJAY SONI
Appearance:
Shri N.K. Patel - Advocate for petitioner.
ORDER
The present petition has been filed by the defendant/petitioner
assailing the order dated 24.05.2024 passed in MCA No.162/2023 by the
Twenty Seventh District Judge, Jabalpur, whereby the appeal filed by the
plaintiff/respondent was allowed and the order of learned Fourth Civil Judge,
Senior Division, Jabalpur, dated 25.08.2023 in Civil Suit No.793A/2023 was
interfered with, with a direction that the defendant/petitioner shall not raise
any construction and shall not transfer or alienate the property in question till
the decision of the civil suit.
2. The case of the petitioner/defendant is that the respondent/plaintiff has
filed a civil suit for declaration, possession and permanent injunction against
the petitioner/defendant on the ground that the petitioner/defendant made a
fake relinquish deed (Hak-Tyaag Patra) receipt of 2004 and on the basis of
the same took the respondent/plaintiff to the registry office on 10.12.2022.
The respondent/plaintiff has also filed an application under Order 39 Rules 1
and 2 of the CPC. The petitioner/defendant has filed a reply and denied the
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 23-12-24
11:52:32 AM
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averments pleaded in the civil suit as well as application under Order 39
Rules 1 and 2 R/w Section 151 of the CPC. During the pendency of the suit,
the learned trial Court has decided the application under Order 39 Rules 1
and 2 R/w Section 151 of the CPC and being aggrieved by the same, an
appeal was preferred by the respondent/plaintiff which was allowed and the
order of the trial Court dated 25.08.2023 was interfered with by directing the
petitioner/defendant not to raise any type of construction over the disputed
property and also directed to not to sale/transfer the disputed property till the
pendency of the civil suit. Hence, this petition.
3. Learned counsel for the petitioner/defendant has argued that the
learned Court below has failed to consider the aspect that the
respondent/plaintiff has never resided in the disputed property and is living
separately. As per the documents which are presented along with the plaint
relating to relinquish deed which is a registered document in which the
signature and photograph of the respondent/plaintiff itself shows that he
entered into an agreement by his own will and transfer the rights of the
disputed property in favour of the petitioner/defendant. The construction
work in the disputed property had already been done. However, the appeal
has been filed only for the purpose of harassing the petitioner by the
respondent with malafide intention. The learned appellate Court has allowed
the appeal interfering the order of learned Fourth Civil Judge, Senior
Division, Jabalpur, dated 25.08.2023 directing the defendant/petitioner not to
raise any construction and not to transfer or alienate the property in question
till the decision of the civil suit. Hence, this petition.
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 23-12-24
11:52:32 AM
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4. Heard the counsel for the petitioner/defendant and perused the record.
5. It is not in dispute that the civil suit with respect to the disputed
property in question is pending adjudication. The learned trial court has
decided the injunction application and being aggrieved, the
respondent/plaintiff preferred an appeal wherein, the learned appellate Court
has allowed the appeal with a direction that the defendant/petitioner shall not
raise any construction and shall not transfer or alienate the property in
question till the decision of the civil suit. During the pendency of the civil
suit normally the parties are required to maintain the status quo or to create a
third party interest in the property just to avoid multiplicity of the
proceedings. As the property in dispute is the same as in the civil suit which
is pending adjudication, parties should maintain status quo and should not
create any third party interest.
6. Under these circumstances, no illegality is committed by the learned
appellate Court in passing the impugned order. The order passed the Court
below being just and proper does not call for any interference.
7. The Hon’ble Supreme Court recently in case of Ramakant Ambalal
Choksi Vs. Harish Ambalal Choksi and Others, 2024 LiveLaw (SC) 939 has
observed that in a suit for specific performance of contract, it is proper for
the Court to grant injunction restraining party to create third party right over
the said property. The Hon’ble Supreme Court has further observed that
provision of Section 52 of Transfer of Property Act, 1952 is not sufficient to
refuse injunction. The Supreme Court in the said case has observed as
under:-
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 23-12-24
11:52:32 AM
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“44. We need not say anything as regards the subsequent transfer of the
suit property at this stage for the simple reason that if it has been transferred
pending any proceedings, it is for the trial court to see whether the transaction
is hit by lis pendence or not. This aspect shall be looked into by the trial court
at the time when the suit is taken up for final adjudication as regards the rights
of the parties.
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 of 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 in 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. v. Haripada
Mazumdar and Anr. reported in AIR 1988 Cal 25).
46. In the aforesaid context, we may refer to one old decision of the
Calcutta High Court in Promotha Nath Roy v. Jagannath Kisore Lal Singh Deo
reported in (1912) 17 Cal LJ 427 where it has been observed that a Court will
in many cases interfere and preserve property in status quo during the
pendency of a suit in which the rights to it are to be decided and though the
purchaser pendente lite would not gain title, the Court will prevent by
injunction the embarrassment that would be caused to the original purchaser in
his suit against the vendor. And it has been ruled there on the authority of
Turner, LJ in Hadley v. London Bank of Scotland, reported in (1865) 3 De GJ
& S 63 at 70 that if there is a clear valid contract for transfer, the Court will not
permit the transferor afterwards to transfer the legal estate to third person,Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 23-12-24
11:52:32 AM
NEUTRAL CITATION NO. 2024:MPHC-JBP:628705 MP-6556-2024
although such third person would be affected by lis pendens. Mr. Muhkerjee
has drawn our attention to Dr. S. C. Banerji’s Tagore Law Lectures on Specific
Relief (2nd Edition, page 592) where the decision in Promotha Nath (supra) has
been approvingly referred to and also to Fry’s Treatise on Specific Performance
(6th Edition) where the same rule has been enunciated as a general principle on
the authority of Turner, L.J., in Hadley (supra).
47. Today, all that we say is that having regard to the nature of dispute
between the parties and the materials on record, the property should not change
hands any further.
xxx xxx xxx
49. The respondents herein shall maintain status quo as regards the suit
property as on date and shall not create any further encumbrances over the
same in any manner.”
8. Moreover, this is a petition under Article 227 of the Constitution of
India having a limited scope of interference as has been held by the Hon’ble
Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar
Patil reported in (2010) 8 SCC 329, wherein certain guidelines have been
framed by the Supreme Court, which are as under:-
“The scope of interference under Article 227 of the Constitution is limited.
If order is shown to be passed by a Court having no jurisdiction, it suffers from
manifest procedural impropriety or perversity, interference can be made.
Interference is made to ensure that Courts below act within the bounds of their
authority. Another view is possible, is not a ground for interference.
Interference can be made sparingly for the said purpose and not for correcting
error of facts and law in a routine manner.”
9. Accordingly, the misc. petition deserves to be and is hereby dismissed.
No order as to costs.
(VISHAL MISHRA)
JUDGE
THK
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 23-12-24
11:52:32 AM