1 AO 136 of 2010.sxw vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.136 OF 2010 WITH CIVIL APPLICATION NO.197 OF 2010. Smt. Janabai Jaiwanta Sandbhor . Appellant -versus Shri Bhimaji Jijaba Katore and ors .. Respondents. Mr. P. B. Shah, for appellant. Mr. N. V. Walawalkar, with Mr. A.B. Tajane for Respondent No.1. CORAM: R. C. CHAVAN, J. DATED: 9th AUGUST, 2010 P.C. 1. This appeal questioning order passed by the learned 7th Jt. Civil Judge, Senior Division, Pune in S.C.S No.86 of 2007, restraining the appellant from creating third party interest to the suit property, is taken up for final hearing at the admission stage, in view of the orders passed by this Court on 19th April,2010. 2. The learned counsel for the appellant, points out that the respondents have filed suit for specific performance of an agreement of sale dated 13.12.2006 which was executed during the pendency of Second Appeal between the parties which was decided on 17th April,2007. He submits that the fact that such 2 AO 136 of 2010.sxw agreement was executed between the parties, in order to settle the dispute was not brought to the notice of the Bench hearing the Second Appeal. He states the appellant has already filed complaint to the police whereupon the chargesheet for forgery has been filed against the persons who had created that document dated 13th December, 2006. 3. That apart, recently in AO No.540 of 2010, after hearing several advocates, representing the parties, in those appeals, question of grant of temporary injunction to restrain creation of third party interest pending suit was examined and the following conclusions have been drawn in para 30:- “(a) Section 52 of the TP Act provides adequate protection to the parties from transfers pendente lite and such transferees are neither required to be impleaded nor can claim impleadment. They cannot even resist execution proceedings. (b) In Mumbai (as also elsewhere as and when amended provisions are made applicable) plaintiffs could (or rather ought to) have notices of their suits registered under Section 18 of the Indian Registration Act, in view of the amended provisions of the TP Act and the Registration Act. They cannot seek to restrain adversary by an injunction by refusing to go in for registration of the lis. (c) Rule 1 of Order XXXIX of the Civil Procedure Code enabling Court to grant temporary injunctions to restrain 3 AO 136 of 2010.sxw transfers pendente lite is only an enabling provision, recognizing the power in the Court to issue such injunction and does not imply that because there is power, it must be exercised. The provision could be invoked only if protection provided by Section 52 of the TP Act is shown to be inadequate. (d) In the face of protection provided by Section 52 of the TP Act, Courts should be cautious in examining the claims by plaintiffs of irreparable loss if injunction to restrain alienations is refused. (e) In suits for specific performance/right to develop against the recorded/rightful owners, Courts may consider if an injunction would cause greater inconvenience to a rightful owner by being deprived the right to deal with his property for the sake of a claim which is yet to mature into right and which metamorphosis rests in the discretion of the Court and is not certain. (f) Courts may consider necessity of imposing suitable conditions to protect plaintiffs’ interests short of granting injunction – like seeking undertaking that no equities would be claimed, on account of sale/development of properties; effecting sales only after putting transferees to notice that their rights would be subject to suit etc. Interests of prospective purchasers would also be protected if plaintiffs in such cases register the lis though it may be optional”. 4 AO 136 of 2010.sxw 4. It is not shown by the learned counsel for the respondent No.1 as to how protection u/s 52 of the Transfer of Property Act would be inadequate for the plaintiffs in the suit and why additionally injunction would be required restraining the appellant from creating third party interest. 5. In view of this there was no question of such injunction being granted against the persons who are the owners of the property on the basis of a right which is yet to mature since relief of specific performance is in the discretion of the Court and cannot be claimed as a matter of right. The appeal is allowed. The impugned order is quashed and set aside. 6. The learned counsel for the respondent No.1 states that the order granting injunction was in force till now. That order shall continue for a period of 8 weeks. (R.C. CHAVAN, J.)