1 AO 620-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.620 OF 2009 Ghanshyam R. Bhandari & ors ..Appellants Vs. Namdeo G. Bhandari & ors. ..Respondents Mr.Sunil Dubey, Advocate, for the Appellants Mr.M.G.Gawade, Advocate, for Respondents CORAM : R.C. CHAVAN, J. RESERVED ON : JULY 20, 2010 PRONOUNCED ON : AUGUST 3, 2010 P.C: 1. This appeal is directed against the order passed by the learned trial Judge refusing injunction to restrain creation of third party interests pending the suit. 2. By the judgment pronounced today in Appeal From Order No.542 of 2010 and connected Appeals, the question of insisting on granting a temporary injunction to restrain the defendants from creating third party 2 AO 620-09 interests/alienating the property pending suit, in the face of the provisions of Section 52 of the Transfer of Property Act, 1882, has been decided. It has been held as under : (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 provision 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 620-09 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 is not certain. 4 AO 620-09 (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. 3. These principles would have to be applied to the facts of the present case. The case pertains to a plot of land which originally belonged to one Gaurabai Bhandari, who died long ago. Appellants-Plaintiffs claim to be her heirs. They allege that taking advantage of same surname the Defendants forcibly dispossessed Plaintiff's father, getting an ex-parte decree in suit No.1260 of 1987 which has subsequently been set aside and 5 AO 620-09 the suit is now pending. Apprehending that the Defendants would dispose of the property or start construction thereon, the Plaintiffs filed the suit and by taking Notice of Motion sought temporary injunction to restrain the Defendants only from carrying out any construction of structure on the plot, as also for appointment of a receiver. 4. The Defendants too claim to be the only heirs of Gaurabai in whose name the property was recorded in the year 1929. They state that suit No.1260 of 1987 has been decreed in their favour and therefore, resisted the Notice of Motion. Also, they stated that suit was beyond pecuniary jurisdiction of the City Civil Court. 5. The learned Trial Judge held against the Plaintiffs and rejected Notice of Motion, which findings too cannot be prima facie 6 AO 620-09 assailed in face of decree in suit No.1260 of 1987 (albeit ex-parte). 6. As is the practice in Mumbai, the Notice of Motion does not give any clue as to why the Defendants ought to be restrained by an injunction from creating third party interests and raising construction. Notice of Motion is after all a notice indicating that a motion would be made before the Court. This Notice of Motion is supported by a cryptic 2 page Affidavit confirming that what is stated in the plaint and stating that the Plaintiffs would suffer irreparably if reliefs sought in Notice of Motion are not graned, without elaborating as to how they would suffer irreparably. Averments in paragraph 19 of the plaint repeat the apprehensions without any reasons for such apprehension. Thus, there is nothing to show as to why the Plaintiffs should not have recourse to provisions of Section 52 of the 7 AO 620-09 Transfer of Property Act to set at rest their apprehensions, by registering the lis, if not already registered, since the property is situated in Mumbai. As to the construction that may be raised, suffice it to observe that the Defendants/Respondents would not be entitled to claim any equities, on account of their activities in r/o suit plot during the pendency of the suit. 7. In view of the aforegoing the Appeal is dismissed. (R.C. CHAVAN, J.)