WP3998.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 3998 OF 2011 BHAGWAN NATHA TARGE ... PETITIONER. VERSUS UDHAV RAMBHAY YEUL AND ANR. ... RESPONDENTS. ... Advocate for Petitioners : Mr.Deshpande Milind K. Advocate for R.No.1: Mr.G.k.kshirsagar. ... CORAM : S.S. SHINDE, J. 29th NOVEMBER, 2011. PER COURT: 1. Heard learned Counsel for the parties. 2. From perusal of the impugned judgment and order of the lower appellate Court, it appears that the Court, relying upon the judgment of this Court in case of Kachhi Properties vs. Ganpatrao Shankarrao Kadam (2010(5) BOM.C.R. 43), has taken a view that section 52 of the Transfer of Property Act grants WP3998.11 2 sufficient protection to the plaintiff and, therefore, order of temporary injunction passed by the trial Court was not necessary in the facts of the case. 3. The learned Counsel for the petitioner invited my attention to the reported judgment ofo this Court in case of Pralhad Jaganath Jawale and others vs. Sitabai Chander Nikam and others (2011(4) Mh.L.J. 137). Relying on the said judgment, the learned Counsel for the petitioner would submit that the order of injunction is an equitable relief and therefore, merely because protection is available under Section 52 of the Transfer of Property Act, is not a ground to interfere in the order of the trial Court granting temporary injunction in favour of the petitioner. Therefore, the learned Counsel would submit that the petition may be allowed. 4. On the other hand, the learned Counsel for respondent submits that the case was made out WP3998.11 3 before the lower appellate Court that the petitioner wishes to sell out the suit property and in view of the provisions of Section 52 of the Transfer of Property Act, adequate protection is available to the original plaintiff - petitioner. Therefore, this Court may not interfere in the order passed by the District Judge, Jalna. 5. Upon hearing the learned Counsel appearing for the parties and upon perusal o the impugned judgment and order passed by the lower appellate Court, it appears that the main ground on which the order of the trial Court has been interfered with is in para 12 wherein there is reference to the judgment of this Court in case of Kachhi Properties (supra). This Court in case of Pralhad Jaganath Jawale (supra) had occasion to deal with the provisions of Order 39, Rules 1 and 2 of the Code of Civil Procedure. Upon considering the provisions of Order 39, Rules 1 and 2 of the Code, this Court in para 26 has taken a view that where there is an apprehension WP3998.11 4 established that the defendant may create third party rights and all three ingredients are satisfied, if temporary injunction is not granted, it may result into multiplicity of proceedings inasmuch as the alienee pendente lite may apply for impleadment, which will result in delay in proceedings of the suit. However, in para 27 of the said judgment, this Court has observed as under: "27. It must be observed that clauses (d) to (f) of paragraph No.30 of the said decision lay down mere guidelines. It is obvious that the guidelines cannot affect the powers of the Court, which are conferred by Rules 1 and 2 of Order XXXIX of the said Code." 6. This Court in case of Pralhad Jaganath Jawale (supra) further held in para 25 that a transaction effected in breach of section 52 is not rendered illegal or void, but a transaction entered into in breach of order of temporary injunction is held as illegal by the Division Bench of this Court. Apart from WP3998.11 5 this, the breach of injunction can visit the offending party with very serious consequences under Rule 2-A of Order XXXIX and Rule 11 of Order XXXIX of the said Code. 7. Therefore, from perusal of the impugned judgment of the lower appellate Court, it appears that, unaware of the judgment of this Court in case of Pralhad Jaganath Jawale (supra), the Court below has passed the impugned judgment and order. 8. The learned Counsel for the respondents fairly concedes that there was no pleading before the lower appellate Court to the effect that if temporary injunction order is allowed to sustain, in that case, the defendants would suffer irreparable loss. Therefore, in normal course, the order of temporary injunction should have been allowed to be continued by the lower appellate Court. However, only relying upon the judgment of this Court in case of Kachhi Properties (supra), the impugned judgment and WP3998.11 6 order has been passed by the lower appellate Court, which cannot be sustained. The interest of the petitioner is required to be protected during the pendency of the Regular Civil Suit No.296/2009. 9. Accordingly, the impugned judgment and order is set aside. It is ordered that the respondents should not create any third party rights in the suit property during pendency of the R.C.S. NO.296/2009. Hearing of the said suit is expedited. The concerned Court shall make endeavour to dispose of the R.C.S. No. 296/2009, as expeditiously as possible and in any case, within seven months from today. Writ Petition allowed accordingly and stands disposed of. [ S.S. SHINDE ] JUDGE. ... PLK/*