1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Appeal against Order No.58 of 2009 1. Shri Govindlal s/o Mohanlal Mohata, aged about 49 years, Occupation Business. 2. Shri Daulal s/o Mohanlal Mohata, aged about 47 years, Occupation Business. Both residents of Naik Galli, Itwari, Nagpur. ... Appellants/ Ori. Appellants Versus Shri Dilip @ Aniruddha s/o Mukundrao Buty, Aged about 43 years, Occupation Business, R/o Laxmi Vilas Palace, Jail Road, Rahate Colony, Wardha Road, Nagpur. ... Respondent/ Ori. Respondent Shri Avinash Gharote, Advocate for Appellants. Shri Moharil, Advocate for Respondent. CORAM : R.C. Chavan, J. DATED : 16th June, 2009 2 Oral Order : 1. This appeal is directed against the order passed by the learned Civil Judge, Senior Division, Nagpur, rejecting the appellant-plaintiffs’ application Exhibit 5 in Special Civil Suit No.1126 of 2008 for an injunction to restrain the defendant from creating any third party interest in the property. 2. Facts, which are necessary for deciding this appeal, are as under : On 2-4-2001, the defendant, owner of the property, entered into an agreement of development with the plaintiffs, in pursuance of which, the owner received a sum of Rs.5 lacs. A general power of attorney was also executed in favour of the plaintiffs. However, the defendant brands these documents as merely security for a loan which he had taken. On 2-8-2006, the owner entered into a registered agreement of development with M/s. Goel Ganga Infrastructure and Real Estate Private Limited for development of the same property. On 4-10-2008, the plaintiffs filed a suit and therein filed an application Exhibit 5 for injunction to restrain the defendant from creating any third party interest. The 3 learned Trial Judge rejected this application on the ground that M/s. Goel Ganga Infrastructure and Real Estate Private Limited was a necessary party. The learned counsel for the appellants points out that the defendant had given an undertaking that he would not create any third party interest, which was in force till the injunction application was rejected. 3. I have heard the learned counsel for the appellants as also the learned counsel for the respondent. 4. The object of securing appellant’s interest could be achieved by registering the lis under Section 52 of the Transfer of Property Act. The learned counsel for the appellants submitted that such a lis could not have been registered in view of the judgment of this Court in Murlidhar s/o Bhima Vaidya and another v. Nababbi Yousufkhan, deceased through legal heirs and others, reported at 2001(1) Bom.C.R. 670. In para 12 of the judgment, the Court has referred to amendment in Section 52 of the Transfer of Property Act brought about by 1939 Act. The Court has found that because of the amendment, it had become necessary for the parties to the suit or proceedings to register the said suit or the proceedings 4 under Section 18 of the Indian Registration Act. Even if this necessity or compulsion to register the lis is held not applicable to the present lis, a bare reading of Section 52 of the Transfer of Property Act would show that it is permissible and open to the plaintiffs to register the lis in order to secure their interest. Therefore, the judgment has really no bearing on the question as to whether the registration would secure plaintiffs’ interest or not. 5. The learned counsel for the appellants also drew my attention to the judgment of the Supreme Court in Anand Nivas Private Ltd. v. Anandji Kalyanji’s Pedhi and others, reported at AIR 1965 SC 414(1). I could not gather from that judgment any proposition to show that a lis could not be registered in respect of the property situated outside Bombay or that registration of such lis would not secure the interest of the plaintiffs. 6. The learned counsel for the appellants relied on a judgment of Calcutta High Court in Sm. Muktakesi Dawn and others v. Haripada Mazumdar and another, reported at AIR 1988 Calcutta 25, where the Court held that notwithstanding Section 52 of the Transfer of Property Act, an injunction pendente lite transfer can be granted. There 5 could be no doubt about the proposition that a Civil Court in appropriate circumstances has power to grant injunction to restrain such transfer pendente lite in spite of existence of Section 52 of the Transfer of Property Act. The question is whether it would be proper to do so. 7. First, grant of a temporary injunction or its refusal is in the discretion of the Trial Court. Unless it is shown that the discretion is capriciously exercised, it would not be open to an appellate Court to interfere in exercise of such discretion. Secondly, in this case, as rightly pointed out by the learned counsel for the respondent, there had already been a transfer in favour of M/s. Goel Ganga Infrastructure and Real Estate Private Limited on 2-8-2006, of which the plaintiffs have not denied information. In fact, the learned counsel for the appellants pointed out from letter dated 1-3-2007 at page 58 itself that the appellants have come to know about the transaction with M/s. Goel Ganga Infrastructure and Real Estate Private Limited. In spite of this, the appellants chose to file the suit after almost one year and seven months, i.e. on 4-8-2008. 8. The learned counsel for the respondent, relying 6 on a judgment of the Supreme Court in Mandali Ranganna and others v. T. Ramchandra and others, reported at (2008) 11 SCC 1, submitted that in such circumstances, refusal to exercise discretion by not granting injunction would not be incorrect. 9. The learned counsel for the appellants submitted that in this case, injunction has been refused not because of availability of avenue to secure the plaintiffs’ interest under Section 52 of the Transfer of Property Act, but on the incorrect conclusion that M/s. Goel Ganga Infrastructure and Real Estate Private Limited was a necessary party to the suit. It need not be restated that sometimes reasons may be wrong, but the order may be right. In this case, may be for wrong reasons, the learned Trial Judge has rightly refused to grant injunction. 10. In view of this, the appeal is dismissed. JUDGE Lanjewar