IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 23454 of 2010(O) -------------------------- CMA.15/2010 of DISTRICT COURT, PATHANAMTHITTA OS.5/2010 of SUB COURT, PATHANAMTHITTA .................... PETITIONER: --------------- THOMAS MATHEW MATTATHIL, MUTTATHIL BETHEL HOUSE, VETTIPPURAM MURI, PATHANAMTHITTA VILLAGE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER THOMAS MATHEW. BY ADV. SRI.V.V.ASOKAN SRI.K.S.SAJEEV KUMAR RESPONDENT: --------------- KOSHY VARGHESE, THAVALATHIL PUTHENVEETTIL HOUSE, VETTIPPURAM MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK. ADV. SRI.T.M.ABDUL LATHEEF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23454 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.NO.5/2010 BEFORE THE SUB COURT, PATHANAMTHITTA EXHIBIT P2 : I.A.NO.8 OF 2010 IN O.S.NO.5/2010 BEFORE THE SUB COURT, PATHANAMTHITTA EXHIBIT P3 : OBJECTION FILED BY THE respondent EXHIBIT P4 : ORDER IN I.A.NO.8 OF 2010 IN O.S.NO.5/2010 BEFORE THE SUB COURT, PATHANAMTHITTA EXHIBIT P5 : DRAFT SALE DEED PRODUCED BY THE respondent BEFORE the trial court EXHIBIT P6 : JUDGMENT IN CMA NO.15/2010 BEFORE THE DISTRICT COURT, PATHANAMTHITTA EXHIBIT P7 : EYE SKETCH SHOWING THE LIE OF the PROPERTY RESPONDENT'S EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.(C).No.23454 of 2010 --------------------------------------- Dated this 28th day of September, 2010 JUDGMENT This writ petition is in challenge of Ext.P6, judgment dated 24-06-2010 in C.M.A.No.15 of 2010 of the court of learned District Judge, Pathanamthitta confirming Ext.P4, order dated 05-03-2010 on I.A.No.8 of 2010 in O.S.No.5 of 2010 of the court of learned Sub Judge, Pathanamthitta. Petitioner filed O.S.No.5 of 2010 for a decree for specific performance of an agreement for sale dated 25-08-2009 describing the suit property as about 5 cents. Vide I.A.No.8 of 2010 petitioner prayed for an order of injunction to restrain respondent from alienating the property, inducting 3rd parties into, or committing waste in the property. That application was resisted by respondent on various grounds. Learned Sub Judge dismissed the application which was confirmed by the learned District Judge. Hence this writ petition. Learned counsel for petitioner contends that courts below went wrong in not granting injunction to preserve the property which is the subject matter of the agreement for sale and the suit for specific performance. Learned counsel contends that though a pendente lite transfer under Section 52 of the Transfer of W.P(C).No.23454 of 2010 : 2 : Properties Act, a sale if effected by the respondent may involve claims by third parties and even multiplicity of suits and to prevent that, an order of injunction is necessary. Learned counsel for respondent contends that courts below have exercised the discretionary jurisdiction in a proper manner and there is little scope to invoke the supervisory jurisdiction under Article 227 of the Constitution. Learned counsel contends that petitioner has come to court with unclean hands as found by the courts below. He is not entitled to the discretionary relief of injunction. 2. It is not disputed that there was an agreement for sale describing the property to be sold as 7 and odd cents. Consideration stipulated in the agreement is Rs.5,00,000/- per cent. It is not dispued that petitioner paid Rs.5 lakhs to the respondent by way of advance sale consideration. There was a further payment of Rs.5,00,000/- to the respondent, he claims, and petitioner obtained a cheque for the said payment. It is the case of respondent that based on that cheque petitioner preferred a complaint against him for offence punishable under Section 138 of the Negotiable Instruments Act, that complaint ended in a dismissal and that matter is pending in revision in the Sessions court. There appears to be some dispute regarding the extent of property. Though the agreement stated 7 and odd cents W.P(C).No.23454 of 2010 : 3 : as the extent of property, in the plaint schedule extent of property stated is 5 cents. Petitioner has an explanation for that- the property on measurement was found to have only that much extent. Courts below have considered the respective contentions and found on facts that prayer for injunction cannot be allowed. 3. In Abdul Razak Vs. Mangesh Rajaram Wagle (2010(1) KLT SN 33 (C.No.42) SC) the Supreme Court has stated the circumstance under which the High Court could interfere under Article 227 of the Constitution. When a subordinate court is found have acted without jurisdiction by assuming jurisdiction where there exists none, or in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice, supervisory jurisdiction under Article 227 of the Constitution is exercised to keep the subordinate courts within the bounds of their jurisdiction. In the present case courts below exercised the discretion and found that petitioner is not entitled to the injunction prayed for. In Fareeda Vs. Rajan Babu (1992 (1) KLT 162) and Seema Arshad Zaheer Vs. Municipal Corporation (2006(4) KLT 65-SC) it is held that where the W.P(C).No.23454 of 2010 : 4 : trial court has exercised judicial discretion and refused injunction, even the appellate court has no jurisdiction to grant it, even if it is assumed that a different view is possible. The situation here is still worse, as the appellate court also confirmed the order of trial court referring to grant injunction and this court is called upon to take a different view in exercise of tis supervisory jurisdiction under Article 227 of the Constitution. I am not persuaded to think that courts below have refused to exercise their jurisdiction while refusing to grant injunction. I must also bear in mind that the interest of petitioner is protected by Section 52 of the Transfer of Properties Act and a pendente lite transferee, bonafide or otherwise and with or without notice of pendency of the suit is bound by any decree that may be passed in the case. Assuming that the court in its discretion grants a decree for recovery of advance money, the property would bear a statutory charge for that amount. Right to alienate is part of proprietory title. Circumstances brought on record do not require that right of respondent to be prevented for any reason. he is bound by the decree that is passed in this case. Alienating the property and inducting 3rd parties into the property cannot be accepted. At the same time there is no reason why respondent should alter the present condition of the property and W.P(C).No.23454 of 2010 : 5 : commit waste therein. 5. Learned counsel for respondent undertakes that present condition of the property will not be altered or waste committed in the said property. In case respondent wants to make any alteration to the property, he shall obtain permission of the trial court for the same purpose. The Writ petition is disposed of in the following lines: (i) The undertaking made by learned counsel for respondent that the present condition of the property will not be altered and no waste will be committed thereon is accepted and recorded. (ii) In case respondent seeks to make any alteration in the property, it shall do so with the prior permission of the trial court. (iii) It is made clear that the undertaking made above does not prevent respondent from alienating the property and putting the alienee in possession but the alienee will be bound by the undertaking made by the respondent as stated above. (THOMAS P JOSEPH, JUDGE) Sbna/-