10-AO.1151-08 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1151 OF 2008 Shri Thomas George. ..Appellant. Versus Smt. Radhabai Kondiba Raut, and others. ..Respondents. .......................... Mr.Sanjiv A. Sawant, Advocate for the Appellant. Mr.P.S. Gote, Advocate for Respondent Nos.1 to 13. .......................... CORAM : A.R. JOSHI, JJ. DATE : 24 th SEPTEMBER, 2009. P.C. :- 1. Rule. Rule made returnable forthwith. By consent of parties, the present Appeal From Order is being disposed of finally. 2. Heard rival submissions for some time. What is impugned in the present Appeal From Order is an order passed by the IV th Additional Judge, Small Causes Court, Pune and Jt. Civil Judge, Senior Division Pune dated 21 st August, 2008. By the said order, application below Exhibit-5 in Special Civil Suit No.1206 of 2007 for temporary injunction was rejected with costs in cause. 10-AO.1151-08 2 3. Apparently the Special Civil Suit was filed by the appellant/plaintiff for specific performance of the agreement dated 26 th April, 2006, by which an amount of Rs.5.7 lakhs and odd was given to the owners of the immovable property i.e. respondents/defendants out of the total consideration of Rs.7 lakh. It was brought to the notice of the trial Court on behalf of the respondents/defendants that prior to this agreement there was another agreement dated 2 nd March, 2005 in which total consideration of Rs.14 lakhs was fixed between the parties for the same immovable property. Admittedly, the said earlier agreement though not produced and brought to the notice of the trial Court by the appellant/plaintiff, he agreed having executed such agreement and passing part of consideration to the defendants. Admittedly, in the said agreement there are only four owners named. Whereas in the agreement dated 26 th April, 2006, specific performance of which is sought, mentioned that there are 13 owners of the property and all have signed. It is apparent that certain conditions were mentioned in the said agreement by which the defendants were to get permissions from the Competent Authority i.e S.D.O., Pune under Section 43 of 10-AO.1151-08 3 Bombay Tenancy and Agricultural Lands Act. Infact according to the appellant/plaintiff such steps were taken and such permission was already obtained. Even required application was made by the defendants for proceeding further with the execution of conveyance for and on behalf of minor owner (defendant No.12) and such an application was made before the Civil Court, Pune. It appears that according to the respondents/defendants they never took any such steps for getting the certificate as contemplated by Section 43 of Bombay Tenancy and Agricultural Lands Act and for making any application before the Sessions Court for and on behalf of the minor defendant No.12. According to them, all such documents are false and fabricated. 4. The trial Court while considering the aspect of granting equitable relief of injunction mainly emphasized the aspect that the appellant/plaintiff had suppressed earlier execution of the agreement dated 2 nd March, 2005 in which consideration was fixed at Rs.14 lakhs and odd. It is pertinent to note that though such agreement was not specifically brought to the notice of the Court by the plaintiff, during the arguments on Exhibit-5 there was no denial by the plaintiff 10-AO.1151-08 4 of execution of such agreement. However, the fact remains that the said agreement was between the plaintiff and only four owners of the property, out of total 13 joint owners. Infact part of the consideration Rs.1 lakh as mentioned in the said earlier agreement is also mentioned in the agreement dated 26 th April, 2006. Under these factual circumstances, the view taken by the trial Court in holding that the appellant/plaintiff had not approached the Court with clean hands due to suppression of the earlier agreement dated 2 nd March, 2005 cannot be endorsed. In other words, considering the scope of grant or otherwise of the injunctive relief and mainly in order to avoid multiplicity of proceedings, it would have been appropriate for the trial Court to have given much weightage on the terms and conditions of the agreement dated 26 th April, 2006 which is sought to be specifically enforced and under which an amount of more than Rs. 5.7 lakhs has been passed over to the owners of the property. It must be mentioned that the trial Court had ignored the steps taken by the defendants in obtaining the certificate under Section 43 of the Bombay Tenancy and Agricultural Lands Act and steps taken before the Civil Court, Pune for the purpose of execution of the conveyance 10-AO.1151-08 5 for and on behalf of then minor defendant No.12. On the contrary, the trial Court was influenced by the defence of the defendnat as to alleged fabrication of such documents and taking of such steps by the plaintiff himself instead of defendants. 5. It is apparent that only one point was considered by the trial Court as to suppression of the earlier document dated 2 nd March, 2005 and only on that count, the trial Court has refused the relief of injunction. In support of such impugned order, the following authorities are cited before this Court on behalf of the respondents/defendants and it is strongly submitted that in the event of such suppression of such earlier document, the appellant/plaintiff is not entitled for equitable relief of injunction : [i] AIR 2001 SUPREME COURT 2783 (A.C. Arulappan v. Ahalya Naik) [ii] AIR 2002 DELHI 151 (Rohit Dhawan v. G.K. Malhotra & another) [iii] AIR 2003 BOMBAY 392 (Rajendraprasad R. Singh v. Municipal Corpn. of Gr. Bombay) 10-AO.1151-08 6 6. Considering the above submissions and considering the factual position and still considering the ratios propounded by the cited authorities, it would be in the fitness of situation to restrain the defendants from creating any third party interest with respect to the suit property which is mentioned in the agreement dated 26 th April, 2006 which is sought to be specifically enforced by the appellant/plaintiff. In the opinion of this Court, till the merits of the Suit filed by the plaintiff before the trial Court are decided and till the time whether the plaintiff is entitled for specific performance or other alternate relief of compensation or otherwise, it would be just to stop creation of any third party interest with respect to the suit property, and hence the present Appeal From Order is allowed with following order : :: O R D E R :: [i] Appeal from Order is allowed and is disposed of as such. Rule made absolute. [ii] Impugned order dated 21 st August, 2008 below Exh.5 in Special Civil Suit No.1206 of 2007 is set-aside. The relief as prayed in Exhibit-5 in Special Civil Suit No.1206 of 2007 is 10-AO.1151-08 7 granted. [iii] It is made clear that the trial Court should not be influenced by the observations made in this order, while deciding the Suit on its own merits and trial Court shall dispose of the said Suit as expeditiously as possible and as far as possible within six months from receipt of the order of this Court. [iv] Civil Application, if any, is also disposed of. [A.R.JOSHI,J.]