1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Appeal against Order No.84 of 2009 (Shriram s/o Rambhau Bhange v. Yadaorao Bhaurao Yenurkar) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri M.R. Joharapurkar, Advocate for Appellant. Coram : R.C. Chavan, J. Dated : 22 nd July, 2009 1. This appeal by the plaintiff in Special Civil Suit No.301 of 2006 is directed against the order passed by the learned Civil Judge, Senior Division, Nagpur, below Exhibit 5 rejecting the said application for an injunction to restrain the respondent from creating third-party interest or alienating the suit property during the pendency of the suit. 2. The plaintiff had filed the suit for specific performance of agreement of sale, consideration whereof was Rs.10,40,000/-, out of which a sum of Rs.3 lacs was stated to have been paid. The learned counsel for the appellant states that the lis has already been registered. The learned Trial Judge held that the appellant had not made out a prima facie case for grant of injunction. 3. I have heard the learned counsel for the appellant. 4. The learned counsel for the appellant submitted that 2 registering a lis or the doctrine of lis pendens embodied in Section 52 of the Transfer of Property Act may not be adequate for protecting interest of a party and, therefore, merely because protection of Section 52 of the Transfer of Property Act is available, an injunction may not be refused. He drew my attention to a judgment of this Court in Venkat Dharmaji v. Vishwanath, reported at AIR 1983 Bom. 413. In that case, the plaintiff was a prospective purchaser of the property under an agreement of sale and has been placed in possession of the property. He had sought an interim injunction to protect his possession. The observation of the Court in relation to suit for specific performance of agreement to sale came in that context. There can be no doubt that if the prospective purchaser has been placed in possession, he can seek injunction to protect his possession, since loss of possession would itself be irreparable loss. 5. The learned counsel for the appellant next relied on a judgment of Division Bench of High Court of Calcutta in Muktakesi Dawn v. Haripada Mazumdar, reported at AIR 1988 Calcutta 25, in which case too, the question of grant of injunction to prevent transfers pendente lite has been raised. It may be useful to reproduce the observations in paragraphs 4 and 5 of the judgment as under : “4. ... It is true that the doctrine of lis pendens as enunciated in S. 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. The suit giving rise to the impugned order is one for specific performance of sale in respect of the suit property and if the defendant is not restrained from selling the property to a third party and accordingly a third party purchase the same bona fide for 3 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 R. 1 or O. 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 S. 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 R.1 for interim injunction restraining the transfer of suit property. R. 1 or O. 39, in our view, clearly demonstrates that, notwithstanding the Rule of lis pendens in S. 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. 5. ... We accordingly reject this contention of Mr. Roy Choudhury that the impugned order of injunction restraining pendente lite transfer ought not to have been granted as the rule of lis pendens, as enacted in S. 52 of the T.P. Act, is there to take care of such transfer.” (Emphasis supplied). 6. The learned counsel for the appellant, therefore, submitted that in spite of existence of provisions of Section 52 of the Transfer of Property Act, the Legislature has chosen to provide under Rule 1 Order 39 of the Code of Civil Procedure that an 4 injunction to restrain transfer of the suit property pending suit could be issued and, therefore, it could not be said that an injunction should not be issued when a person approaches the Court for specific performance of agreement of sale. It may be seen that even Calcutta High Court observes that doctrine of lis pendens takes care of all pendente lite transfers. It then goes on to observe that it may not always be good enough to take fullest care of the plaintiff’’s interest vis-a-vis such a transfer without notice of the pendency of the lis. Therefore, the Court held that there can be occasions for grant of injunction restraining pendente lite transfers in a fit and proper case. In order to make out such a case, the plaintiff could have to show as to why the doctrine of lis pendens or protection of Section 52 of the Transfer of Property Act is inadequate. In this case, lis has has already been registered. So prospective purchasers have notice and question of balancing interest of bona fide purchasers for value without notice would not arise. 7. It may also be seen that Calcutta High Court was considering a challenge to an injunction issued by the Trial Court restraining transfer pendente lite. It has to be realised that grant of injunction is a remedy in the discretion of the Court and the Appellate Court should be extremely slow in interfering in exercise of the said discretion. Though Calcutta High Court has not spelt out in so many words that it was refusing to interfere with an injunction granted by the Trial Court for this reason, it is obvious that when an injunction is granted, the Appellate Court would be slow to interfere with it. In the case at hand, injunction has been refused and, therefore, if the learned Trial Judge has chosen to refuse to exercise his discretion, the Appellate Court should be slow to interfere with such refusal. 5 8. The learned counsel for the appellant next submitted that the Hon’ble Supreme Court in Maharwal Khewaji Trust v. Baldev, reported at 2005(1) Mh.L.J. 1043, held that unless and until a case of irreparable loss is made out by a party to the suit, the Court should not permit the property to be changed, which also includes alienation or transfer of the property, which may lead to loss or damage being caused to the party, who may ultimately succeed. 9. I have carefully considered the arguments advanced, as also the judgment of the Apex Court on which the learned counsel places reliance. In that case, the plaintiff had not filed a suit for specific performance of the contract. He had filed suit for possession, presumably on the basis of the title, which he claimed in himself, and had sought an injunction therein to restrain the respondents from putting up any construction on the property. The Trial Judge had granted an injunction, but the learned District Judge held that alienation, if any, made was subject to the law of lis pendens and constructions, if any, put up will have to be removed by the defendants at their own risk and cost in the event of suit being decreed. The High Court recorded oral undertaking of the learned counsel and dismissed the petition challenging the District Judge’s order. This is how the parties reached the Supreme Court. In the context of these facts, the observations of the Court in paragraph 10 of the judgment, reproduced below, have to be read : “10. Be that as it may, Mr. Sachhar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused 6 to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate Court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done.” (Emphasis supplied). 10. The learned counsel for the appellant submitted that, from paragraph 10 of the judgment, it can be gathered that unless extraordinary loss is shown to be caused to the defendant, the burden for showing, which lies on the defendant, an injunction should not ordinarily be refused. This contention has to be rejected, because, first, an injunction can be issued only if the party seeking injunction shows that it is going to suffer an irreparable loss if an injunction is not issued. The proposition of the learned counsel is exactly opposite of this settled principle and he seems to want the defendant to show that he would suffer an irreparable loss if injunction is issued. Secondly, as the portion underlined by me in paragraph 10, quoted above would show, the observations of the Supreme Court are in the facts and circumstances of that case. They have not changed the law that an injunction cannot be granted only because it is not going to hurt the defendant. It is for the person seeking injunction to show that he would suffer irreparably, and not merely suffer, if an injunction is not issued. At the cost of 7 repetition, it has to be pointed out that the observations came in the context of suit for possession and not a suit for specific performance of the present type. 11. Lastly, the learned counsel for the appellant relied on a judgment of this Court in Shaikh Sikandar v. Sarswati Education Society, reported at 2007(4) Mh.L.J. 185. The facts of the case are quite complicated. There is a trust as well as a bank which had claims over the property and in this context, the Court observed in paragraphs 33 to 36 as under : “33. This Court has to recognize defendant No.9’s right to wait and choose the security it would like to liquidate. It seems that by not filing the execution and by preferring to proceed against suit property, the defendant No.9 has preferred to wait, instead of taking recourse to other securities, this fact by itself is a ground which would weigh in favour of granting injunction and asking the defendant No.9 to wait, if it is keen on security which is a subject-matter of present suit. When parties come with a plea that the market price of the suit property is increasing day by day, the irreparable loss, if any, will be suffered by the plaintiffs and not at all by the defendants.” “34. This Court, therefore, reaches the conclusion that the points (b), (c) and (d), namely whether plaintiffs have made out a prima facie case for grant of injunction?, whether balance of convenience lies in favour of plaintiffs?, and have plaintiffs shown that if injunction is not granted, they shall suffer irreparable 8 loss? All three are liable to be answered in favour of plaintiffs.” “35. This Court finds that the trial Court seemed to have carried a scare of the fact of existence of the decree passed by the Debts Recovery Tribunal, and thought that it would be gravely inappropriate to pass an order of temporary injunction. It is seen that the trial Court simply took brief resume of facts and without recording reasons, whatsoever, passed the order of dismissal of application (Exh.37). This Court is of the opinion that considering the nature of contest, it was certainly necessary for the trial Court to have addressed upon the issues involved and recorded the findings thereon.” “36. This Court, therefore, reaches a conclusion that as the plaintiffs have made out a strong case for grant of injunction, Exh.37 is liable to be allowed by setting aside the order under appeal.” 12. Needless to mention that these observations come in the peculiar facts of the case, and, therefore, cannot be infered to mean that in every case of specific performance, the plaintiff would be entitled to an injunction to restrain the respondent from alienating the property or creating third-party interest. It may be reiterated that, as observed by Division Bench of Calcutta High Court, an injunction can be granted in spite of protection of Section 52 of the Transfer of Property Act, but for that purpose the plaintiff would have to show that the protection under Section 52 of the Transfer of Property Act would not take care of his apprehension. 9 13. The appeal is, therefore, dismissed. Judge. pdl