TMI Blog2011 (4) TMI 1546X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and order dated 4th December, 2009 passed by the learned trial Judge by which the application made by the Appellants (the Plaintiffs) at Exhibit - 61 for temporary injunction has been rejected. In Appeal from Order No. 857 of 2010, the challenge is to the judgment and order dated 22nd July 2009 by which the application made by the Appellants Plaintiffs at Exhibit 5 for temporary injunction has been rejected. 3. These two appeals are taken up together for hearing as to admission as both involve the question of interpretation of the judgment of this Court in the case of Kachhi Properties, Satara v. Ganpatrao Shankarrao Kadam 2010 (5) Mh. L.J. 903. As far as Appeal from Order No. 857 of 2010 is concerned, the same will have to be admitted and ad interim relief will have to be continued. Therefore, I am dealing in detail only with the facts of the case in Appeal from Order No. 884 of 2010. The suit is filed by the Appellants for declaration that compromise decree passed in Special Civil Suit No. 379 of 1996 is void and that on the basis of the compromise decree, no rights have been acquired by the Respondent Nos. 1 to 10. The second prayer is for perpetual injunction. The third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced on record a copy of the order passed in the Special Leave Petition. He submitted that the said decision in the case of Kachhi Properties (supra) is per incuriam. He relied upon a decision of the Apex Court in the case of Kunhayammed and Ors. v. State of Kerala and Anr. (2000) 6 SCC 359. 6. Thus, in short, the submission is that the decision of this Court in the case of Kachhi Properties (supra) cannot be read as a binding precedent. By order dated 1st October 2010, the Apex Court dismissed the Special Leave Petition against the said decision by passing the following order: Special Leave Petitions are dismissed. In the case of Kunhayammed and Ors. v. State of Kerala and Ors. (2000) 6 SCC 359, the Apex Court observed thus: 27. A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions are made applicable) Plaintiffs could (or rather ought to) have notices of their suits registered under Section 18 of the Indian Registration Act, in view of the amended provision of the TP Act and the Registration Act. They cannot seek to restrain adversary by an injunction by refusing to go in for registration of the lis. (c) Rule 1 of Order XXXIX of the Code of Civil Procedure enabling Court to grant temporary injunctions to restrain transfers pendente lite is only an enabling provision, recognizing the power in the Court to issue such injunction and does not imply that because there is power, it must be exercised. The provision could be invoked only if protection provided by Section 52 of the TP Act is shown to be inadequate. (d) In the face of protection provided by Section 52 of the TP Act, Courts should be cautious in examining the claims by Plaintiffs of irreparable loss if injunction to restrain alienations is refused. (e) In suits for specific performance/right to develop against the recorded/rightful owners, Courts may consider if an injunction would cause greater inconvenience to a rightful owner by being deprived the right to deal with his propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. 10. The portion highlighted and printed in italics above is the amendment made by Bombay Act XIV of 1939. It will be also material to note the other provisions of Bombay Act XIV of 1939. Section 2 of the said Act provides that the provisions of the said Amending Act shall apply to the property situated wholly or partly only in the city of Bombay from the date of publication of the notification in official gazette. It is further provided therein that the substituted Section 52 will apply to the other areas provided there is a notification issued extending applicability of the said provision to the other areas. It is not in dispute as noted in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Registration Act. 12. Section 17 of the Registration Act deals with the documents, which are compulsory registrable. The consequences of non registration of the documents which are compulsorily registrable are provided in the Registration Act. Section 18 of the Registration Act deals with the documents of which the registration is optional. As far as Registration Act is concerned, non registration of a document governed by Section 18 will not visit a person with any adverse consequences as the registration of the document is itself optional. As far as substituted Section 52 is concerned, the only consequence of failure to register notice of lis pendens is that the constraint imposed by Section 52 will not apply. On conjoint reading of the provisions of the said Act of 1882 and the Registration Act, in so far as the property in city of Bombay is concerned, even if notice of lis pendens is not registered, no other consequence is provided except the fact that Section 52 will have no application to the transaction effected during the pendency of the suits and the proceedings in respect of the property concerned. As far as the properties situated in the other parts of the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent that the same does not put any restraint on a party to the suit from alienating the suit property, but it provides for the legal effect of the transfer pendente lite. Such pendente lite transfer without permission of the Court is neither illegal nor void. 15. As far as the scope of Section 52 of the said Act of 1882 is concerned, the Apex Court had an occasion to consider the same in a very recent decision, in the case of T.G. Ashok Kumar v. Govindammal and Anr. (2011) (1) All MR 462. In fact, in this decision, the Apex Court has again reiterated that Section 52 of the said Act of 1882 does not declare a pendente lite transfer by a party to the suit as void or illegal and the only effect of such transfer is that the transferee is bound by the decision in the pending litigation. The Apex Court has noted certain deficiencies in Section 52 and the Apex Court has made several suggestions including a suggestion that registration of notice of lis pendens should be made compulsory. The Apex Court has suggested that even the registration of an agreement for sale should be made compulsory to avoid large number of property litigations. Paragraph Nos. 13 to 15 of the said decision cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraph No. 26, the Division Bench of this Court held thus: 26 We cannot accept Shri Naphade's contention that observations of the Supreme Court in the case of Surjeet Singh should be as restricted to proceedings under Order 22, Rule 10 of Code of Civil Procedure and the same cannot be extended to defiance of injunction order issued under Order 39, Rule 1of Code of Civil Procedure Code. Once the issue is placed on the pedestal of public policy and the very faith of litigants in Rule of law and administration of justice, then it is not possible to make the distinction or bifurcation suggested by Shri Naphade. It would mean that consequences of nullifying such transaction not being provided by the Statute, it would not lose its legal efficacy even if it is in utter disregard to or in violation of or breach of prohibitory order or order of injunction issued by a Court of law. It would mean that parties can breach and violate Court orders openly and with impunity and neither they nor the beneficiaries suffer any consequences. It is time that we recognise the principle that transfer of immovable property in violation of an order of injunction or prohibition issued by Court of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil Procedure, 1908 (hereinafter referred to as the said Code ) cannot be exercised as a matter of course or simply because its exercise is unlikely to hurt a Defendant. Even Clause (c) of the paragraph No. 30 has to be read with paragraph No. 15. 19. Clause (a) of paragraph No. 30 records that transferees pendente lite are neither required to be impleaded nor can claim impleadment. On this aspect, it appears that the attention of the learned Judge of this Court was not invited to a decision of the Apex Court in the case of Amit Kumar Shaw and Anr. v. Farida Khatoon and Anr. (2005) 11 SCC 403. The Apex Court had an occasion to consider the effect of Section 52 of the said Act of 1882 in the context of the provisions of Rule 10 of Order I, Rule 10 of Order XXII and Section 146 of the said Code. The Apex Court has reiterated that an alienee pendente lite is bound by the final decree that may be passed in the suit. In paragraph No. 14 of the said decision, the Apex Court has observed that such an alienee can be brought on record both under Rule1Rule 10 of Order XXII as well as Rule 10 of Order I. In paragraph No. 14, the Apex Court has observed that since under the doctrine of lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative in interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor in interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. (Emphasis and underlines supplied) 20. No doubt, the Apex Court has observed that as far as joining of the parties is concerned, it is the discretion of the Court. But again, the Apex Court has reiterated that an alienee pendente lite would ordinarily be joined as party to enable him to protect his interest as he is bound by the decree passed in the suit. The Apex Court has noted a possibility that a Defendant, who has effected the transfer pendente lite may not contest the litigation and the result will be that the alienee who is not a party to the suit will be bound by the decree. In fact, the Apex Court has categorically observed that under Rule 10 of Order XXII, the alienee is entitled to be impleaded in the suit or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 2 of Order XXXIX of the said Code cannot be mechanically exercised unless existence of three ingredients is established. 23. In the first part of Clause (a) of paragraph No. 30 it is observed that Section 52 provides adequate protection to the parties. The last part of Clause (c) of paragraph No. 30 records that Rule 1 of Order XXXIX of the said Code can be invoked only if protection provided by Section 52 of the Act of 1882 is shown to be inadequate. As far as this aspect is concerned, I find that the attention of this Court was not invited to the decision of the Apex Court in the case of Maharwal Khewaji Trust (Redg.), Faridkot, Appellant v. Baldev Das, Respondent AIR 2005 SC 104. This was a case where original Plaintiff had approached the Apex Court, who had sought temporary injunction restraining the Defendant from alienating the suit property and from putting up any construction thereon. The trial Court held in favour of the Plaintiff, but in appeal, the District Court interfered and held that alienation made during the pendency of the suit will be subject to law of lis pendens and construction carried out will be at the risk of the Defendant and the same will have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hasis added) 24. It must be noted here that in the subsequent decision in the case of N. Srinivasa v. Kattukaran Machine Tools Ltd. AIR 2009 SC 2217, the Apex Court has quoted with approval what is held by the said Court in paragraph No. 10 of its earlier decision in the case of Maharwal Khewaji Trust (supra). After quoting the said earlier decision with approval, the Apex Court observed thus: Going by the ratio of the abovementioned decision, it is clear that the VIth Additional City Civil Judge, Bangalore, was justified in directing the parties to maintain status quo in the matter of transferring, alienating or creating any third party interest as prima facie it has been proved that the Respondent was trying to sell the property in dispute to a third party thus alienating the rights of the property in dispute, which would have caused irreparable damage to the Appellant. (Emphasis added) Looking to the law laid down by the Apex Court, it is apparent that the Apex Court has not accepted the proposition that the principles incorporated in Section 52 of the said Act of 1882 offer adequate protection to the parties to a substantive civil suit or other proceedings. Wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order XXXIX of the said Code. 26. Where there is an apprehension 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. 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 Rules 1 and 2 of Order XXXIX of the said Code. 28. The conclusion drawn from the aforesaid discussion are: (i) as far as right of impleadment of transferee pendente lite is concerned, what will bind this Court is what is held by the Apex Court in the case of Amit Kumar Shaw and Anr. (supra) ; (ii) in view of the binding precedents of the Apex Court, the observation in Clause (c) of paragraph No. 30 that the provision of Rule 1 of Order XXXIX could be invoked only if protection provided by Section 52 is shown to be inadequate cannot bind this Court. Even the observation in first par ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
