1 Spb/- IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL SIDE JURISDICTION APPEAL NO. 191 OF 2010 IN NOTICE OF MOTION NO. 3389 OF 2009 IN Suit NO. 2440 OF 2009 Hemant Krishna Waradkar .. Appellant. (Org.Plaintiff) V/s. 1. Housing Development & .. Respondents. Infrastructure Ltd.,& others (Org.Defendants) --- Mr. Ram Jethmalani, Sr. Advocate with D.D. Madon, Sr. Advocate, Kevic Setalwad, Santosh Paul, Dhiren Shah, Rohit Pandey, Ms. Mani Bajpai i/by Vimla & Co. for the Appellant. Mr. Pravin Samdani, Sr. Advocate with Mr. Rajesh Shah, Markand Ghandhi, Satyen Vora, Prashant Ghelani i/by M/s. Markand Ghandhi & Co. for Respondent No.1. Mr. Nitin Thakkar, Sr. Advocate with Gaurav Joshi, Gobind Mohanty i/by M/s. Kirit Damania & Co. for Respondent No.2. Mr. T.N. Subramaniam with Vijay Dhingrecha i/by Vijay Dhingrecha for Respondents/Defendant Nos. 4(a) to 4(d). Mr. Ravi Kadam, Advocate General i/by Vijay Dingrecha for Respondent/Defendant Nos. 5(a) & (b). --- 2 CORAM: D.K.DESHMUKH AND V.R.KINGAONKAR,JJ. DATED: 20th APRIL, 2010 P.C.: 1. By this Appeal, the appellant challenges the order passed by the learned single Judge of this court dated 30 th November, 2009, rejecting the notice of motion taken out by the plaintiff/ appellant. The plaintiff claims to be the sole and exclusive owner of the suit land. He claims that he has purchased the suit land from defendant no.2 by a sale deed of the year 1979. According to him he immediately lodged it for registration but it was registered in the year 2004. Defendant No.1 claims to be the purchaser of a part of the property from defendant no.2 and other defendants. The transfer in favour of defendant no.1 is of the year 2008. The learned single Judge after examining the material on record has prima facie found that the case of the plaintiff that he has purchased the property by a registered sale deed of the year 1979 cannot be accepted. The learned single 3 Judge has prima facie found that the document of sale deed is a doubtful document. There is also controversy about identity of the person who is supposed to have executed sale deed in favour of the appellants. 2. We have heard the learned counsel appearing for the appellant and the respondents in detail. After having gone through the entire record, we do not find any reason to take a view different from the one taken by the learned single Judge. We find that the conduct of the plaintiff of not even paying property taxes right from the year 1979, when he claims to have purchased the property, is strange to say the least. In our opinion, the fact that the taxes of the property were paid by the second defendant till the year 2008 when the property was transferred in favour of defendant no.1 gives credence to the case of the defendants that the sale deed relied on by the plaintiff is a dubious document. In our opinion, therefore, the order passed by the learned single Judge is not liable to 4 be interfered with. However, the suit is pending and apparently the document which is the basis of the suit is a copy of the registered document and, therefore, in our opinion, though the plaintiff is not entitled to any temporary injunction, it would be in public interest to direct the defendants to intimate to any person in whose favour third party rights may be created in relation to the suit property about pendency of the suit and also communicate the plaintiff the names and address of those persons in whose favour third party rights are created so that if so advised, the plaintiff can make an application to the court for permission to join them as defendants in the suit. The suit land is large piece of land and in the construction that will be put up on the land third party rights would be created in favour of a very large section of the public. However, when we disclosed to the parties that we propose to make such an order, it was opposed by the defendants. It was submitted on behalf of the defendants that section 52 of the Transfer of Property Act incorporates the doctrine of lis pendens 5 and it gives protection to the rights of the plaintiff. The learned counsel appearing on behalf of the defendants relied on the Privy Council judgment in the case of Parmeshari Din vs. Ram Charan. He submitted that if the order that we propose to make is not made and the plaintiff registers lis pendens, the defendants have a remedy of applying for cancellation of that registration. According to the learned counsel if we make the order that we propose to make, then the rights of the defendants would be adversely affected. Order 39 of the Civil Procedure Code incorporates the provisions, empowering the court to make or issue temporary injunction. The court exercises its power of granting temporary injunction on being satisfied on three aspects, namely, (i) prima facie case, (ii) balance of convenience and (iii) irreparable injury. However, if the court is satisfied that there is no prima facie case made out, the court cannot grant any order of temporary injunction in favour of the plaintiff. Section 52 of the Transfer of Property Act incorporates principles of doctrine of lis 6 pendens, which is quoted hereunder : 52. Transfer of property pending suit relating thereto.__ During the [pendency] in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] of [any] suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. It is clear from the provisions of section 52 that neither party to the suit or proceedings because of the doctrine of lis pendens can alienate the property so as to affect the rights of his opponent. This provision is for the protection of the interest of the plaintiff. If the court finds that the interest of persons who are not before the court is also required to be protected, in view of the pendency of the litigation, in our opinion, the court is not powerless. Section 94 of the Civil 7 Procedure Code confers on the court power to make such interlocutory order as may appear to the court to be just and convenient. By section 151 of the C.P.C. inherent powers of the court to make such order as may be necessary in the interest of justice is saved. Therefore, if we find that it is in public interest and in order to prevent any prejudice being caused to the interest of unsuspecting third parties that they should be informed specifically by the defendants about the pendency of the suit, it cannot be said that we are powerless to do so even after finding that the plaintiff has not made out a case for grant of temporary injunction under order 39 of the CPC. It was submitted on behalf of the defendants that direction to disclose names of the persons in whose favour the defendants may create third party interest to the plaintiff will cause prejudice to the interest of the defendants because then the plaintiff may make an application to the court to permit the plaintiff to join them as defendants and may threaten them. In our opinion, the grievance is meaningless. We propose to make 8 that order not only to protect the interest of parties to the litigation but to ensure that the defendants do communicate to the persons in whose favour third party interest is created during the pendency of the suit about pendency of the suit. It is true that the persons in whose favour third party interest is created by the defendants will be persons claiming through the defendants and any decree that would be passed would be binding on them. When the plaintiff moves the court for joining them as defendants, whether the court permits them to be joined as defendants or not would be decided by the court when the plaintiff makes an application for that purpose. It was also submitted that the direction that we propose to make against the defendants is contrary to our finding that the plaintiff does not have a strong prima facie case in his favour. In our opinion, this submission has also no force. The finding that the plaintiff does not have strong prima facie case does not rule out the possibility that at the final hearing the court may pass a decree in favour of the plaintiff after 9 appreciating the evidence produced on record. It depends on what evidence is produced before the court at the final hearing. Therefore, during the pendency of the suit/ proceedings the court is always under a duty to make interim orders which would protect the interest of both the sides and would also be in public interest. In this situation, therefore, in our opinion, following order would meet ends of justice : i. The appeal is dismissed. ii. It is, however, directed that in case the defendants alienate or create third party rights in the suit property, within two weeks thereof the fact that the third party rights have been created would be communicated by the defendants to the plaintiff with the names of the persons in whose favour third party rights are created on the address given or communicated to the defendants by the plaintiff. 10 iii. At the time of creating third party rights in the suit property, it shall be specifically be informed to the persons in whose favour third party rights are created that the suit is pending as also the reliefs that have been claimed in the suit. 3. The Appeal is disposed of. In view of this order, nothing survives in the Notice of Motion No. 1177/ 2010 and the same is also disposed of as such. (D.K.DESHMUKH,J.) (V.R.KINGAONKAR,J.)