1 AOR-91.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.91 OF 2010 Mrs. Maya Ramesh Lalwani, Age: 56 years, Occ: Agri. & Commerce, r/o Opp. Collector Office, Nagala Park, Kolhapur. .... Appellant - Versus - 1. Bhupal Narsu Sangave, Age: 56, Occ: Nil, r/o Chokar, Taluka Hatkanangale, Dist: Kolhapur. 2. Sagar Ramesh Lalwani, Age: 32, Occ: Commerce, r/o 250B-33, Nagala Park, Kolhapur. .... Respondents S/Shri D.S. Sawant with Rajesh Parab for the Appellant. S/Shri Sagar Mane i/b N.V. Bandivadekar for Respondent No.1. Shri Chetan Patil for Respondent No.2. 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 2 AOR-91.10 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 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 3 AOR-91.10 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 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 4 AOR-91.10 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. (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. Applying these parameters to the facts of the present case, it would be clear that the appellant has not made out a case for grant of injunction. 5 AOR-91.10 4. In this case, Appellant had claimed specific performance of an agreement of sale under which the Appellant had also been placed in possession of lands. The Appellant had simply prayed for injunction pending suit, to restrain the Defendant from creating third party interests. The learned Trial Judge refused injunction on the ground that the Appellant had suppressed material facts about notices exchanged and also did not adduce any evidence to prove that any supplementary agreements were executed by the Defendants. 5. Since the injunction sought is only to restrain the Defendant from creating third party interests, without showing as to how protection of Section 52 of the Transfer of Property Act would not be adequate, Appellant cannot make out a case of irreparable loss. If necessary, Appellant could get the lis registered and have her interests secured. 6 AOR-91.10 Hence, there is no merit in the Appeal and it is dismissed. (R.C. CHAVAN, J.)