Karnataka High Court
Shri.Allabaksha S/O Suleman Auti vs Shri.Roshan S/O Javeed Inamdar on 23 December, 2021
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
MFA.NO.102344/2019
BETWEEN
SHRI.ALLABAKSHA S/O SULEMAN AUTI
AGE:83 YEARS, OCC:RETIRED,
R/O 5TH CROSS, AZAM NAGAR,
BELAGAVI 590010
...APPELLANT
(BY SRI:G.BALAKRISHNA, ADVOCATE FOR
SRI.VITTAL S.TELI., ADVOCATE)
AND
1. SHRI.ROSHAN S/O JAVEED INAMDAR
AGE:27 YEARS, OCC:STUDENT and AGRICULTURE,
R/O CTS NO.2383, HAFEEZA MANSION,
AZAD GALLI, BELAGAVI 590001
2. SHRI NAKHIL S/O JAVEED INAMDAR
AGE:22 YEARS, OCC:STUDENT and AGRICULTURE,
R/O CTS NO.2383, HAFEEZA MANSION,
AZAD GALLI, BELAGAVI 590001
3. SHRI SAYYAD JAVED PASHA
S/O MUSTAFA PASHA KHASEKHAN INAMDAR
AGE:64 YEARS, OCC:NIL,
R/O CTS NO.2633/1, INAMDAR COMPLEX
MALI GALLI, BELAGAVI 590001
4. SHRI SAYYAD MUBIN PASHA
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S/O MUSTAFA PASHA KHASEKHAN INAMDAR
AGE:61 YEARS, OCC:NIL,
R/O CTS NO.2633/1, INAMDAR COMPLEX
MALI GALLI, BELAGAVI 590001
5. SHRI SAYYAD IQBAL PASHA
S/O MUSTAFA PASHA KHASEKHAN INAMDAR
AGE:59 YEARS, OCC:NIL,
R/O CTS NO.2633/1, INAMDAR COMPLEX,
MALI GALLI, BELAGAVI 590001
6. SHRI SAYYAD MASARRAT BEGUM
W/O SAYYAD MOINUDDIN PEERZADE
AGE:62 YEARS,OCC:HOUSEWIFE,
R/O HASHIMPEER DARGA,
NAR GULGUMBAZ, STATION ROAD,
VIJAYPUR 586101
7. SMT. ZUBEDA KHATOON W/O ALLABAKSHA AUTI
AGE:72 YEARS, OCC:HOUSEWIFE,
R/O 5TH CROSS, AZAM NAGAR, BELAGAVI 590010
8. SHRI NOORULAMIN S/O ALLABAKSHA AUTI
AGE:42 YEARS, OCC:BUSINESS,
R/O 5TH CROSS, AZAM NAGAR, BELAGAVI 590010
9. SHRI WASIULLA S/O ALLABAKSHA AUTI
AGE:48 YEARS, OCC:BUSINESS,
R/O 5TH CROSS, AZAM NAGAR, BELAGAVI 590010
10 . SHRI ARIF JAMEEL S/O ALLABAKSHA AUTI
SINCE DECEASED BY HIS LRS D-9 TO 13
SMT. NAOUSHEEN FARUKI
WD/O ARIF JAMEEL AUTI, AGE:42 YEARS,
OCC:HOUSWIFE, R/O FLAT NO.702, 7TH FLOOR,
BLOCK NO.10, YOUSED A1 BADAR STREET,
SALMIYA KUWAIT, NOW R/AT 5TH CROSS,
AZAM NAGAR, BELAGAVI 590010
11 . SHRI MOHAMMAD MOAAZ
S/O ARIF JAMEEL AUTI
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AG:17 YEARS, OCC:STUDENT,
R/O 5TH CROSS, AZAM NAGAR,
BELAGAVI 590010
12 . SHRI MOHAMMAD MINHAJ
S/O ARIF JAMEEL AUTI
AGE:15 YEARS, OCC:STUDENT,
R/O 5TH CROSS, AZAM NAGR,
BELAGAVI 590010
13 . MISS MEHVISH D/O ARIF JAMEEL AUTI
AGE:13 YARS, OCC:STUDENT,
R/O 5TH CROSS, AZAM NAGAR,
BELAGAVI 590010
14 . MISS MOHEB D/O ARIF JAMEEL AUTI
AGE:13 YARS, OCC:STUDENT,
R/O 5TH CROSS, AZAM NAGAR,
BELAGAVI 590010
(THE RESPONDENT NOS 11 TO 14 ARE MINORS
REPRESENTED BY THEIR NEXT
FRIEND RESPONDENT NO.10 MOTHER
SMT. NAUSHEEN FARUKI WD/O ARIF JAMEEL AUTI)
15 . SHRI QARSHAD AHMED
S/O MOHAMMAD SHARIF MOMIN
AGE:52 YEARS, OCC:TRADE,
R/OC TS NO.3189, MOMIN GALLI, BELAGAVI 590001
RESPONDENTS
(BY SRI.F.V.PATIL., ADV FOR R1 AND 2;
SRI.SANGRAM.S.KULKARNI., ADV FOR R3 TO 5;
SRI.SOURABH.A.SONDUR., ADV FOR R7;
SRI.A.S.PATIL., ADV FOR R9
NOTICE TO R6-SERVED;
R11 TO 14, 8, 10 ARE MINORS, R/BY R10)
THIS APPEAL IS FILED U/O.43 RULE 1(r) OF CPC R/W SEC.104
OF CPC, AGAINST THE ORDER DATED:18.04.2019, PASSED IN
O.S.NO.44/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI, ALLOWING THE
IA NO.4 FILED U/O. 39 RULES 1 AND 2 R/W SEC.151 OF CPC.
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THIS APPEAL HAVING BEEN HEARD THE RESERVED FOR
JUDGMENT ON 23.11.2021 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant being defendant No.5 in O.S.No.44/2019 on the file of the II Additional Senior Civil Judge and CJM Court Belagavi (hereinafter referred to as 'the trial court" for short) is before this court, impugning the order dated 18.04.2019 passed by the trial court allowing the application I.A.No.4 filed by plaintiff No.2 under Order 39 Rule 1 and 2 r/w Section 151 of CPC and restraining the appellant/defendant No.5, his agents, servants or anybody acting on his behalf from alienating the suit properties either by way of sale, gift, charge, mortgage, lien agreement etc., till disposal of the suit.
2. Brief facts of the case are that, respondent Nos.1 and 2 as plaintiffs filed O.S.No.44/2019 before the trial court against defendant Nos.1 to 14 seeking directions to them to execute the registered sale deed in respect of the suit land in favour of the plaintiffs and to complete the sale transaction as per the agreement of sale dated 29.12.2011 and Memorandum -5- of Understanding (MOU) dated 18.12.2017 referred to in the plaint and also to direct the defendants to handover the actual and vacant possession of the suit land, free from any encumbrance, charge, lien, claim, dispute etc. to the plaintiffs and in case the defendants fail to execute the registered sale deed, to get the sale deed registered by appointing a Court Commissioner and alternatively to direct refund of the advance sale consideration amount of Rs.2.4 crores to the plaintiffs, together with interest at the rate of 18% p.a. from the date of receipt of the advance amount till realization and also to pay damages of Rs.1 crore along with similar interest and further to grant permanent injunction against defendant Nos.1 to 4, their agents, servants, anybody acting on their behalf by restraining them from alienating the suit land in any manner like, sale, gift, mortgage, charge lien etc. till the suit land is legally transferred in the name of the plaintiffs.
3. It is contended that the plaintiffs are the intending purchasers of the suit land bearing R.S.No.1222/3 and R.S.No.1222/4 more fully described in the plaint from defendant -6- Nos.1 to 4 by paying consideration amount at the rate of Rs.1,45,000/- per gunta entered into an agreement of sale dated 29.12.2011. Defendant Nos.1 to 4 are the owners in possession of the suit land and defendant Nos.5, 7 and 8 and late Arif Jameel alleged to be the intending purchasers. Defendant No.8 is the GPA holder for defendant Nos.5, 7 and the said Arif Jameel. Defendant Nos.9 to 13 are the legal heirs of the deceased late Arif Jameel. Defendant No.14 is one the signatories to the MOU.
4. It is stated that defendant Nos.1 to 4 being the owners in possession of the suit land expressed their readiness and willingness to sell the same in favour of the plaintiffs and plaintiffs agreed to purchase the land after mutual negotiations. Defendant Nos.1 to 4 agreed to sell the property for consideration amount of Rs.1,45,000/- per gunta. As per the agreement, Rs.25,00,000/- was paid by the plaintiffs to defendant Nos.1 to 4 through cheques, which was acknowledged by defendant Nos.1 to 4. In that regard an agreement of sale dated 29.12.2011 was entered into between plaintiff No.1 and defendant Nos.1 to 4 and required stamp duty is paid on the said -7- document and the document was regularized by the competent authority by receiving the deficit stamp duty as per the order dated 25.01.2019.
5. Defendant Nos.1 to 4 demanded for payment of the sale consideration to meet their financial necessities. Therefore, the plaintiffs paid further consideration amount through cheques and also cash as mentioned in the schedule, which was also acknowledged by defendant Nos.1 to 4. Thus, the plaintiffs have paid a sum of Rs.2.4 crores.
6. The plaintiffs came to know during November, 2017 that, suit in O.S.No.14/2011 was pending between defendant Nos.1 to 4 and 5 to 14 and the same was decided in favour of defendant Nos.1 to 4 on 15.12.2012. The judgment and decree passed by the trial court was challenged before this court in RFA No.4016/2013. This fact was not disclosed by defendant Nos.1 to 4 while the plaintiffs entered into the agreement of sale on 29.12.2011 or at the time of receiving advance sale consideration. The plaintiffs were kept in dark about the earlier agreement of sale, pendency of the suit. Thus, the plaintiffs -8- under the bona fide belief entered into an agreement of sale and went on paying sale consideration amount. Therefore, defendant Nos.1 to 4 are bound by the agreement of sale referred to above. When this fact was discussed with defendant Nos.1 to 4, they assured to settle the matter and to complete the sale transaction with the plaintiffs as per the terms and conditions of agreement of sale. Believing the words of defendant Nos.1 to 4, defendant No.8 and defendant No.14 entered into an understanding with regard to the suit land by entering into memorandum of understanding (for short 'MOU') dated 18.12.2017. The plaintiffs and defendants have agreed that defendant No.1 to 4 shall sell the suit land bearing R.S.No.1222/3 to the plaintiffs and the land in R.S.No.1222/4 in favour of defendant Nos.5 to 14 at the same rate as agreed and report the matter to this court in RFA No.4016/2013. Under the MOU, the defendants acknowledged the receipt of Rs.2.4 crore from the plaintiffs and agreed to sell R.S.No.1222/3 by receiving balance consideration amount. Accordingly, a compromise petition was drafted and submitted to this court. Similarly, defendant Nos.1 to 4 agreed to receive Rs.41,65,982/- which -9- was deposited in the court. Defendant No.14 paid Rs.8,34,018/- through cheque to defendant Nos.1 to 4 as advance sale consideration. Defendant Nos.1 to 4 agreed to complete the sale transaction before 15.03.2018. The MOU dated 18.12.2017 was certified by the competent authority on 12.12.2018. Therefore, defendant Nos.5 to 14 are also bound by the agreement of sale dated 29.12.2011. The plaintiffs and defendant No.8 being the GPA holder of other defendants and defendant No.14 have entered into an agreement to develop their respective lands, as per the Joint Development Agreement (for short 'JDA') entered into between them. It is stated that as per the MOU, the plaintiffs filed an application in RFA No.4016/2013 for getting themselves impleaded for the purpose of reporting settlement. Defendant No.5 objected the said application and as a result of which, the application came to be dismissed with a direction to the plaintiffs to get their grievance redressed by filing a separate suit before the competent court of law for the relief of specific performance of the contract vide order dated 07.01.2019.
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7. It is stated that the plaintiffs were ready and willing to pay the balance sale consideration to defendant Nos.1 to 4 and get the sale deed registered. The plaintiffs have already paid major portion of the sale consideration amount, but defendant Nos.1 to 4 failed to perform their part of the contract as per the agreement dated 29.12.2011 and also MOU dated 18.12.2017. Defendant Nos.1 to 4 assured that they will abide by the terms of Memorandum of Understanding and complete the sale transaction.
8. It is stated that plaintiffs came to know that defendant Nos.1 to 4 and defendant Nos.5 to 14 have colluded with each other for the purpose of deceiving the plaintiffs and trying to alienate the suit land in favour of a third party for making wrongful gain. Therefore, the plaintiffs published a notice cautioning the public not to enter into any kind of transaction with the defendants in respect of the suit land. Defendant No.5 filed a caveat petition and defendant No.4 revoked and terminated the general Power of Attorney given in favour of defendant Nos.1 to 3 by issuing publication in the newspaper on
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30.01.2019. Therefore, the plaintiffs were forced to institute a suit for specific performance of the contract with consequential relief.
9. It is stated that the cause of action arose on 29.12.2011 when defendant Nos.1 to 4 entered into an agreement for sale with plaintiff No.1, when the advance sale consideration amount was paid, on 18.12.2017 when the MOU was entered into and on 07.01.2019 when this court directed the plaintiffs to initiate separate suit for getting their grievance redressed. During the pendency of the suit, I.A.No.4 was filed seeking temporary injunction restraining defendant No.5 and his agents, servants, or anybody acting on his behalf from alienating the suit property in any manner as stated above. The said application was allowed under the impugned order, which is under challenge before this court.
10. Heard the learned counsel for the appellant Sri.Vitthal Teli, learned counsel Sri.F.V.Patil for respondent Nos.1 and 2, learned counsel Sri.Sangram S.Kulkarni for respondent
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Nos.3 to 5 and learned counsel Sri.Mrutyunjaya Tata Bangi for respondent No.15.
11. Learned counsel for the appellant impugning the order dated 08.04.2019 passed by the trial court contented that defendant Nos.1 to 4 have entered into an agreement of sale with defendant Nos.5, 7, 8 and also one Arif Jameel, who is now represented by defendant Nos.9 to 14 agreeing to execute the sale deed in respect the suit land for total consideration of Rs.1.28 crore. When defendant Nos.1 to 4 failed to execute the sale deed as agreed in the agreement dated21.08.2009, the appellant and others filed O.S.No.14/2011 seeking specific performance of the contract on 20.01.2011. The trial court granted an order to maintain status-quo in respect of the suit property. In spite of the said order of status-quo, defendant Nos.1 to 4 entered into an agreement of sale with plaintiff No.1 on 29.12.2011. The suit O.S.No.14/2011 came to be decreed in part as per the judgment and decree dated 14.12.2012, but instead of ordering for specific performance of the contract, the court directed the defendants to refund the earnest money of
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Rs.28 lakhs with interest at 18% p.a. Defendant Nos.5, 7 and 8 to 10 being aggrieved by refusal to grant the specific performance of the contract, preferred the appeal in RFA No.4016/2013. The said RFA came to be decreed for specific performance of the contract in terms of the compromise petition that was entered into between the contesting parties. In pursuance of the decree passed in the RFA, the registered sale deed was executed in favour of the appellant by defendant Nos.1 to 4 on 26.02.2019.
12. During the pendency of the RFA, MOU dated 18.12.2017 was said to have been entered into between plaintiff Nos.1 and 2 and defendant Nos.8 and 14. But the appellant is not a party to the said MOU. An agreement for development of the land between defendant Nos.1 to 4 and the plaintiffs was also said to have been entered into on the same day. But by that time, Arif Jameel had died on 26.03.2017. The plaintiffs have filed an application seeking themselves to implead in RFA No.4016/2013 on 09.11.2018, but the said application came to be dismissed vide order dated 07.01.2019. It is thereafter, on
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04.02.2019, the present suit in O.S.No.44/2019 came to be filed by the plaintiffs.
13. Learned counsel for the appellant contended that, when the specific performance of the contract was ordered by this court, in terms of the decree dated 22.02.2019 and in pursuance of the same, registered sale deed was executed by defendant Nos.1 to 4, the suit filed by the plaintiffs seeking specific performance of their agreement entered into during the pendency of the litigation between defendant Nos.1 to 4 and 5 and other defendants, is not maintainable. The appellant is not a party to the MOU said to have entered into between the plaintiffs with defendant Nos.8 to 14 and late Arif Jameel. He has also not party to the development agreement entered into between defendant Nos.1 to 4 and the plaintiffs. The application for impleading the plaintiffs in RFA No.4016/2013 is already dismissed by this court. Under such circumstances, the plaintiffs cannot maintain the suit itself. But ignoring all these facts and circumstances, the trial court proceeded to allow I.A.No.4 restraining the appellant by way of temporary injunction from
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alienating the suit property in any manner till disposal of the suit. The impugned order passed by the trial court is erroneous, perverse and the same is liable to be set aside. If at all, it is defendant Nos.1 to 4 who are answerable to the plaintiffs for entering into various agreements, after entering such agreement with the appellant, getting the decree in RFA No.4016/2013 by this court on the basis of compromise petition, and also executed registered sale deed in favour of the appellant on 26.02.2019. Therefore, when the suit itself is not maintainable against defendant No.5, the trial court could not have granted the temporary injunction in favour of the plaintiffs. Therefore, he prays for allowing the appeal by setting the impugned order.
14. Per contra, learned counsel for respondent Nos.1 and 2-plaintiffs supporting the impugned order submitted that, admittedly, there is an agreement of sale entered into between the plaintiffs and defendant Nos.1 to 4. Defendants have also entered into a MOU with the plaintiffs on 18.12.2017 and a JDA was also entered into on the same day. While dismissing the application for impleading filed by the plaintiffs in RFA
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No.4016/2013, it is specifically observed that plaintiffs to get their grievance redressed by filing a separate suit before the competent court of law for the relief of specific performance of contract. Therefore, the appellant cannot contend that the suit is not maintainable. The defendants are answerable to various agreements that are entered into. The plaintiffs paid huge amount as earnest money and therefore, they are entitled for the specific performance of the contract. There is collusion between other defendants with the appellant in entering into a compromise and getting a decree in RFA No.4016/2013. Within four days from the date of decree, defendant Nos.1 to 4 executed sale deed in favour of the appellant which is apparently against the terms and conditions of the compromise decree passed by this court. As per the decree passed by this court in RFA No.4016/2013, the sale deed is required to be executed in favour of the plaintiffs who are agreement holders, but surprisingly, the sale deed was executed only in favour of the appellant. Therefore, the said sale deed is not valid in the eye of law and the plaintiffs are entitled to ignore the same. Since the sale deed in question was got executed during the pendency of
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the suit before the trial court, the same is hit by the principles of lis pendence. Therefore, the trial court has rightly granted temporary injunction against the appellant from alienating the suit land during the pendency of the suit, otherwise, it will lead to multiplicity of the proceedings. Hence, he prays for dismissal of the appeal with costs.
15. Learned counsel for respondent Nos.1 and 2 placed reliance on the decision of the Hon'ble Apex Court in Seema Arshad Zaheer and Others Vs Municipal Corpn. of Greater Mumbai and Others1 to contend that, when the trial court exercised its discretion and granted temporary injunction by following the requirements, such as, existence of a prima facie case, balance of convenience and greater hardship that would cause to the plaintiffs, such an order cannot be interfered with lightly. He also contended that, the order of temporary injunction being an equitable relief granted by exercising the discretion judiciously after satisfying with the conduct of the plaintiffs, is free from blamish. Therefore, the same is not liable to be interfered with by this court.
1(2006) 5 SCC 282
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16. Learned counsel further submitted that the MOU was entered into between the parties, wherein the appellant is also a party represented by his POA holder Sri.Wasifulla-defendant No.8. The General POA deed is produced as per Annexure-R1. Under the terms of the document, the MOU in question is entered into between the parties during the pendency of RFA No.4016/2013. Since the appellant is also a party to the MOU, before he is going to purchase the property under a registered sale deed, he is bound by the terms of the document. Considering all these facts and circumstances, the trial court proceeded to pass the impugned order. There is no illegality or perversity in the order passed by the trial court. Hence, it does not call for any interference by this court.
17. Learned counsel for respondent Nos.3 to 6 who are original owners contended that, by mistake these respondents have entered into a compromise with the appellant and signed the compromise petition, without knowing the contents of the same. Thereafter, they have also signed the sale deed dated 26.02.2019 that was in the name of the appellant. It was a bona
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fide mistake committed by respondent Nos.3 to 6. So neither the decree passed in RFA No.4016/2013 passed by this court nor sale deed dated 26.02.2019 executed in favour of the plaintiffs are binding on these respondents. Learned counsel also submitted that appellant has not paid entire sale consideration amount before getting the sale deed executed. Therefore, the impugned order passed by the trial court restraining defendant No.5 from alienating the property in favour of third party was just and proper. The same does not call for any interference by this court. Hence, he prays for dismissal of the appeal with costs.
18. Learned counsel for respondent No.15 who is defendant No.14 before the trial court supporting the impugned order passed by the trial court contended that, the MOU dated 18.12.2017 was entered into between the plaintiffs, defendant Nos.1 to 4, defendant No.8 as General Power of Attorney holder for defendant Nos.5 to 7 and also defendant No.14. Since the appellant who is defendant No.5 before the trial court is also a party to the MOU, he is bound by the terms of the same.
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Learned counsel submitted that even though respondent No.15 is not a party to any of the agreement to sell, he is a party to the MOU, which was entered into during the pendency of RFA No.4016/2013 before this court. If defendant No.5 who purchased the property subsequent to execution of the MOU, proceeds to alienate the property or creates third party rights during the pendency of the suit O.S.No.14/2011, that will lead to multiplicity of proceedings. The schedule property is to be preserved till disposal of the suit. Considering all these facts and circumstances, the trial court passed the impugned order by exercising its judicial discretion and such judicial discretion cannot be interfered with casually. He further submits that, if the appellant alienates the suit property in favour of others, the suit itself will become infructuous. Therefore, he prays for dismissal of the appeal.
19. In reply, learned counsel for the appellant submitted that the sale deed dated 26.02.2019 executed pursuant to the judgment and decree passed by this court in RFA No.4016/2013 was produce before this Court, as per the directions issued in
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that regard. On 06.12.2019, this court considered the said sale deed in the light of the directions given and passed an order to the effect that the sale deed is read and recorded by the court. Copy of the sale deed was thus taken on record.
20. Learned counsel also submitted that respondents who have nothing to do with the judgment and decree passed by this court in RFA No.4016/2013 cannot dispute the execution of the sale deed in favour of the appellant alone. It is immaterial as to whether the appellant alone purchased the property or all the agreement holders jointly purchased it. Defendant Nos.1 to 4 who are respondent Nos.3 to 6 have in fact received additional amount of Rs.1 crore through cheque in terms of the agreement to sell and even encashed the said cheque. Thus, they have received Rs.2.28 crores instead of Rs.1.28 crores as mentioned in the agreement to sell.
21. Learned counsel further submitted that appellant is not at all a party to the MOU or to the JDA dated 18.12.2017. The appellant had filed the suit for specific performance of the contract on 20.01.2011. If the MOU produced before this court is
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verified, it was said to have been entered into between defendant Nos.1 to 4, defendant No.8 and plaintiffs in the suit. Defendant No.8-Wasiulla signed the said document in his individual capacity and not as a Power of Attorney holder. Plaintiffs-Respondent Nos.1 and 2 have entered into an agreement to sell, also entered into MOU knowing fully well regarding earlier agreement to sell executed in favour of the appellant, suit filed in O.S.No.14/2011 by the appellant and also pendency of RFA No.4016/2013 before this court. There is reference to these proceedings in the MOU. Therefore, respondents have taken the risk of entering into such agreements which are not valid in the eye of law.
22. Learned counsel further submitted that principles of lis-pendence is applicable in favour of the appellant and not in favour of respondent Nos.1 to 4 or any other respondents. Since the compromise was entered into between the plaintiffs and defendants in the suit in O.S.No.14/2011 filed by the appellant, respondent Nos.7 and 8 and husband of respondent No.10 for specific performance of the contract, when the same was
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pending in RFA No.4016/2013. Pursuant to the decree passed in RFA No.4016/2013 vide judgment dated 22.02.2019, a registered sale deed was executed by respondent Nos.3 to 6 being the executants of agreement to sell in favour of the appellant on 21.08.2009. Under such circumstances, so called agreement to sell dated 29.12.2011 said to have been executed by respondent Nos.3 to 5 in favour of respondent Nos.1 and 2 during the pendency of the suit, on is clearly hit by the principles of lis-pendency. Respondent Nos.1 and 2 who entered into such an agreement to sell and subsequently entered into a MOU dated 18.12.2017 knowing full well about the agreement to sell, the decree passed in favour of the appellant and pendency of RFA No.4016/2013 cannot seek the benefit of lis-pendency. Respondent Nos.3 to 5 who played mischief in entering into various agreements with respondent Nos.1 and 2 when they were parties to the suit O.S.No.14/2011, after executing the agreement to sell in favour of the appellant, cannot claim any equity. If at all, the plaintiffs in O.S.No.44/2011 may be entitled for damages from defendant Nos.1 to 4, but no other reliefs could be sought by them. When the appellant is the owner in
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possession of the suit property, on the basis of the decree passed by this court, as well as the registered sale deed executed pursuant to the said decree, he is entitled to protect his ownership over the property. He will be free to exercise the rights of ownership. The trial court ignoring these factual aspects of the matter proceeded to pass the impugned order without any basis. The finding of the trial court that the principle of lis- pendency operates in favour of respondent Nos.1 and 2 is erroneous. Therefore, the impugned order is liable to be set aside by allowing the appeal. Accordingly, he prays for allowing the appeal.
23. Perused the material on record. The point that would arise for my consideration is:
Whether the order dated 18.04.2019 passed by the trial court on I.A.No.4 allowing the application filed by plaintiff No.2 under Order 39 Rule 1 and 2 r/w Section 151 of CPC calls for any interference by this court?
24. My answer to the above point is in the 'affirmative' for the following:
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REASONS
25. The undisputed facts of the case are that defendant Nos.1 to 4 agreed to sell the schedule property in favour of defendant Nos.5, 7, 8 and one Arif Jameel, who is now represented by defendant Nos.9 to 14, for Rs.1,28,00,000/- under an agreement of sale dated 21.08.2009 where under an advance amount of Rs.28,00,000/-was received by defendant Nos.1 to 4. It is stated that defendant Nos.1 to 4 have not executed registered sale deed in terms of agreement of sale and therefore, the suit in O.S.No.14/2011 was filed on 20.01.2011 by the above said defendants seeking specific performance of contract. The said suit was came to be decreed in part vide judgment and decree dated 15.12.2012 where under the claim of the defendants for specific performance of contract was rejected but, defendant Nos.1 to 4 were directed to refund the earnest money of Rs.28,00,000/- to defendant Nos.5, 7, 8 and deceased Arif Jameel.
26. Aggrieved by the rejection of the specific performance of contract defendant Nos.5, 7, 8 and Arif Jameel
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preferred R.F.A.No.4016/2013 before this Court, which was admitted and an interim order was passed on 26.12.2013. Subsequently, a compromise petition was came to be filed by the parties to the appeal, which was accepted by this Court in the R.F.A and the R.F.A was came to be disposed of in terms of the compromise petition, vide judgment and decree dated 22.2.2019. As per the compromise decree, defendant Nos.1 to 4 have executed registered sale deed dated 28.02.2019 in favour of defendant No.5 by accepting Rs.2 crore i.e., with additional consideration amount of Rs.1 crore. The said sale deed was produced before this Court in R.F.A and the same was recorded therein.
27. Now it is the contention of defendant Nos.1 and 2, who are the plaintiffs before the trial Court that defendant Nos.1 to 4 have entered into an agreement of sale in respect of the very same land in question, agreeing to sell the same in their favour under an agreement of sale dated 29.12.2011, by accepting advance amount of Rs.25,00,000/-. Strangely, no steps were taken by plaintiff Nos.1 and 2 against defendant
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Nos.1 to 4 seeking specific performance of the said agreement of sale from 29.12.2011 till filing of the suit on 04.02.2019. It is stated that the said agreement of sale was recognized by receiving the deficit stamp duty only on 09.01.2014 and further consideration amount was paid on 25.1.2019.
28. It is the contention of the plaintiffs that they were not aware of the transaction entered into between defendant Nos.1 to 4 as vendors and defendant Nos.5, 7, 8 and deceased Arif Jameel and therefore, the plaintiffs are the bona-fide agreement holder for value. It is stated that defendant Nos.1 to 4 herein have agreed to settle the matter and complete the sale transaction as per the sale agreement. It is their contention that believing the words of defendant Nos.1 to 4, they entered into the MOU on 18.12.2017 and on the same day a JDA was also entered into between the plaintiffs, defendant Nos.1 to 4, defendant Nos.8 and 14. It is stated that defendant No.8 represented defendant Nos.5, 7 and the legal representatives of Arif Jameel as General Power of Attorney holder. As per the terms of this document, defendant Nos.1 to 4 agreed to sell
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R.S.No.1222/4 in favour of defendant Nos.5 to 14 and report the matter in R.F.A.No.4016/2013 and agreed to sell R.S.No.1222/3 in favour of plaintiffs by receiving balance consideration amount.
29. It is pertinent to note that the plaintiffs have filed an application under Order 1 Rule 10 of CPC seeking to implead them as parties in R.F.A.No.4016/2013. The said application was came to be rejected vide order dated 07.01.2019 wherein, it is held that "if the impleading applicants have any grievance against plaintiffs in the suit, they could ventilate the same independently in accordance with law". On the basis of these observations made by the Division Bench of this Court, plaintiff Nos.1 and 2 have filed suit O.S.No.14/2019 on 04.02.2019 seeking specific performance of contract against the defendants. But the facts remain that by that time R.F.A was pending before this Court and defendant Nos.1 to 4 knowing fully well about all these developments entered into a compromise with defendant No.5 and others and filed compromise petition in the R.F.A and accordingly, appeal was came to be decreed in terms of the compromise petition. It is also pertinent to note that in
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pursuance of said compromise decree passed by the Division Bench of this Court, defendant Nos.1 to 4 have executed registered sale deed by receiving Rs.2 crore by way of cheque and said to have encashed the same. Thus they have received additional amount of Rs.1 crore than it was agreed under the agreement to sell. Therefore, it is clear that a competent Civil Court granted the decree for specific performance of the contract as per the terms of compromise petition filed by the parties concerned and in pursuance of the same, registered sale deed was also executed in favour of defendant No.5 by accepting consideration amount as agreed under the compromise petition.
30. Now it is interesting to note that the learned counsel for defendant Nos.1 to 4 contends that these defendants have entered into compromise with the appellants in R.F.A.No.4016/2013 by mistake, without knowing the contents of the compromise petition and it was a bona-fide mistake committed by them that they signed the compromise petition and admitted the terms of the same before the Division Bench of this Court. It was also a mistake committed by defendant Nos.1
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to 4 that they executed registered sale deed in favour of defendant No.5 by accepting the additional consideration amount of Rs.1 crore. The contention taken by defendant Nos.1 to 4 that by mistake they entered into compromise, signed the compromise petition, admitted the same before the Division Bench of this Court and executed registered sale deed by accepting additional consideration amount, cannot be accepted at any cost. Defendant Nos.1 to 4 were very well aware of they executing the agreement for sale in favour of defendant No.5 and others after accepting part consideration, filing suit O.S.No.14/2011, filing of the R.F.A and pendency of the same before this Court. But still proceeded to enter into compromise, filed compromise petition and admitted its contents before the Division Bench of this Court and also executed registered sale deed by accepting additional consideration amount. Therefore, it is clear that defendant Nos.1 to 4 have deliberately acted in that manner for the reasons best known to them. But, now they turned around and say that as per the compromise petition, the sale deed was agreed to be executed in favour of the plaintiffs in O.S.No.14/2011. But defendant No.5 alone got executed
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registered sale deed, which is bad under law. When defendant Nos.1 to 4 with their eyes wide open executed the sale deed after entering into a compromise and accepting additional sale consideration, it would not lie in their mouth to contend that defendant No.5 was not entitled to get the sale deed executed in his favour. Therefore, as on the date of passing the impugned order as i.e., 18.04.2019, defendant Nos.1 to 4 were not the owners of the property in question. But it was defendant No.5 in whose favour the registered sale deed was executed and he was in actual possession and enjoyment of the property under the registered sale deed.
31. With these background in mind, let me consider the contention of the parties with regard to the impugned order in question.
32. Plaintiff Nos.1 and 2 have filed application-I.A.No.4 before the trial Court under Order 39 rule 1 and 2 read with Section 151 of CPC, praying for grant of temporary injunction restraining defendant No.5, his agents, servants or anybody acting on his behalf from alienating the suit properties in any
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manner like sale, gift, charge, mortgage, lien, agreement etc., till disposal of the suit. The said application was came to be allowed vide order dated 18.04.2019 by the trial Court, which is impugned in this appeal. Now the question arises as to whether the trial Court was right in allowing I.A.No.4 and restraining defendant No.5 from alienating the suit properties in any manner till the disposal of the suit. When the facts and circumstances of the case and the materials placed before the Court disclose that defendant No.5 was the absolute owner on the basis of the registered sale deed that was executed by defendant Nos.1 to 4 after getting compromise decree in R.F.A.No.4016/2013, he could not have been restrained from exercising his rights over the property in question as its lawful owner.
33. The learned counsel for the plaintiffs contended that the trial Court considered and passed order exercising its discretion judiciously. The trial Court proceeded to form an opinion that the sale deed executed by defendant Nos.1 to 4 in favour of defendant No.5 in terms of the compromise decree passed in R.F.A.No.4016/2013 is hit of doctrine of lis-pendence.
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The principles of lis-pendence is governed by Section 52 of the Transfer of Property Act (for short T.P.Act), which reads as under.
Section 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 immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding 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.
[Explanation.--For the purposes 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
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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.
34. This principles of lis-pendence based on the doctrine that the administration of justice requires decision of the Civil Court in a suit, which is pending should be binding not only on the litigating parties but on those who derive title pendelite. This doctrine stipulates that during the pendency of any suit or proceedings in which any right to immovable property is, directly or specifically in question, the property, which is subject-matter of such suit or proceeding cannot be "transferred or otherwise dealt with", so as to affect the rights of any other party to such suit or proceeding. Any such transfer during the pendency of the suit will be subject to the result of the suit. Any transaction during the pendency of the suit will not automatically become void or illegal but party entering into contract during such pendency would be bound by the decision of the Court in pending litigation.
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35. In the present case, the facts discussed above disclose that defendant No.5 along with defendant Nos.7 and 8 and deceased Arif Jameel, who is now represented by defendant Nos.9 to 14 had agreed to purchase the land in question from defendant Nos.1 to 4, for a valuable consideration, under an agreement dated 21.08.2009. The suit O.S.No.14/2011 was filed by them against defendant Nos.1 to 4 on 20.01.2011, seeking relief of specific performance of contract, which is partly decreed, directing to refund the earnest money vide judgment and decree dated 15.12.2012. The said judgment and decree rejecting the prayer for grant of specific performance of contract was challenged before this Court by defendant Nos.5, 7, 8 and legal representatives of deceased Arif Jameel in R.F.A.No.4016/2013, which was admittedly came to be decreed in terms of the compromise entered into between the parties and further execution of the registered sale deed dated 28.02.2019 by defendant Nos.1 to 4 in favour of defendant No.5. In the meantime, plaintiffs herein said to have entered into an agreement for sale with defendant Nos.1 to 4 in respect of same property on 29.12.2011 i.e, during the pendency of the suit
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O.S.No.14/2011. But admittedly, they have not taken any action on the basis of said agreement to sale till 04.02.2019 when they filed the suit O.S.No.44/2019, seeking specific performance of contract.
36. The contention of the plaintiffs that cause of action for the suit arose in view of the liberty reserved in their favour in R.F.A vide order dated 07.01.2019 also cannot be accepted for the simple reason that no absolute right was reserved by the Division Bench of this Court to file a suit for specific performance of contract against defendant No.5 or other defendants except defendant Nos.1 to 4 as it is held that "any impleadment would only result in misjoinder of causes of action. The object and purpose of impleadment is in order to vindicate their rights in a transaction said to have taken place between the plaintiffs/defendants and the impleading applicants, which is categorically denied by the applicants/plaintiffs. If impleadment is permitted, the focus and attention on the cause of action between plaintiffs and defendants would be lost and would be tangled in another controversy between plaintiff on the one side
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and defendants and impleading applicants on the other. Such a misjoinder of causes of action in the suit is impermissible. If the impleading applicants have any grievance against the plaintiffs in the suit, they could ventilate the same independently and in accordance with law."
37. By no stretch of imagination, the order extracted above would give a right in favour of the plaintiffs in the present case to stall effect of the registered sale deed that was executed by defendant Nos.1 to 4 in favour of defendant No.5, as per the terms of the compromise decree passed in R.F.A.No.4016/2013.
38. The grievance of the plaintiffs and defendant Nos.1 to 4 that the registered sale deed executed in favour of defendant No.5 was not in accordance with the compromise decree passed by this Court, as per the decree, the sale deed should have been executed jointly in favour of defendant Nos.5, 7, 8 and 9 to 12, cannot be accepted as defendant Nos.7 to 14 have not raised any objection for getting the sale deed in favour of defendant No.5 and defendant Nos.1 to 4 have also never raised any objection while executing the registered sale deed
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only in favour of defendant No.5. If at all defendant Nos.7 to 14 should have raised their objection in getting the registered sale deed only in the name of defendant No.5. But either defendant Nos.1 to 4 or the plaintiffs can raise any objection in that regard. Moreover, the document placed before the Court discloses that defendant No.5 has produced copy of the registered sale deed before the Division Bench of this Court in R.F.A.No.4016/2013 as per the direction issued in this regard and the said sale deed was noted and recorded by this Court. Under such circumstances, I do not find any merits in the contention taken by the plaintiffs and defendant Nos.1 to 4 in that regard, when no steps were taken by any of them to annul the sale deed executed in favour of the appellant.
39. It is the contention of the plaintiffs and defendant Nos.1 to 4 that MOU and JDA were entered into between the plaintiffs, defendant Nos.1 to 4, 8 to 14 on 18.12.2017. It is their contention that even though defendant No.5 is not a signatory to any of these documents, he was represented by defendant No.8 as his power of attorney holder. Those
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documents styled as memorandum of understanding and joint development agreement dated 18.12.2017 are produced before this Court. In none of these documents, defendant No.8 had signed on behalf of defendant No.5 as his power of attorney holder. Under such circumstance, the documents dated 18.12.2017 would not bind defendant No.5 in any manner. When there is no valid reasons as to why defendant No.5 is not a party to any of these documents and as to why defendant Nos.1 to 4 have entered into a compromise with appellant in R.F.A.No.4016/2013 agreeing to execute the sale deed by accepting the additional amount and as to why they executed registered sale deed in favour of defendant No.5 alone and accepted the sale consideration amount as agreed under the compromise decree, the contention taken by them is liable to be rejected out rightly.
40. When defendant No.5 is the owner of the property in question under a registered sale deed, he cannot be restrained from exercising his right as absolute owner of the property simply because the plaintiffs have chosen to file the suit seeking
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specific performance of the agreement dated 29.12.2011 only on 04.02.2019 that too after rejection of their application filed in R.F.A.No.4016/2013. Therefore, I am of the opinion that the trial Court has committed an error in passing the impugned order restraining defendant No.5 from alienating the property in question in any manner. Even on equity defendant No.5 cannot be restrained from exercising his right of ownership over the property, till final decision in the suit filed by the plaintiffs, as they have chosen to slept over their rights for a period of more than 7 years, without seeking specific performance of contract against defendant Nos.1 to 4.
41. Learned counsel for the respondent Nos.1 and 2 has placed reliance on the decision in Seema Arshad Zaheer and Others Vs Municipal Corporation of Greter Mumbai. wherein Hon'ble Apex Court held in 2Para No.30 as under;
The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, 2 (2006) 5 Supreme Court 282
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necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.
(emphasis supplied)
42. The facts and circumstances of the present case, if considered in the light of the principles highlighted above, it is clear that plaintiffs, who are claiming right to seek specific performance of contract against defendant Nos.1 to 4 is relying on the document dated 29.12.2011 and the suit was filed on 04.02.2019 i.e., after laps of more than 7 years. Before executing the agreement for sale dated 29.12.2011 in favour of the plaintiffs, defendant Nos.1 to 4 have executed similar
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agreement in favour of defendant Nos.5, 7, 8 and deceased Arif Jameel, who have filed the suit O.S.No.14/2011 for seeking specific performance of contract on 20.1.2011 i.e, much before the agreement in favour of the plaintiffs. Defendant Nos.1 to 4 have entered into the compromise with defendant Nos.5, 7, 8 and deceased Arif Jameel and the Regular Fist Appeal was came to be decreed in terms of the agreement to sale. Thereafter, defendant Nos.1 to 4 have sold the property in question under a registered sale deed in favour of defendant No.5. When the agreement to sell relied on by the plaintiff was entered into by them with defendant Nos.1 to 4 during the pendency of the suit O.S.No.14/2011 filed by appellant herein and others, the principles of lis pencence will protect the rights of appellant herein. Under such circumstances, it cannot be said that the plaintiffs in the present suit are having prima-facie case and they need protection of their right. When the need of protection of the plaintiffs right is compared with the right of defendant no.5, who acquired absolute right, title, interest under a valid registered sale deed, it cannot be said that the balance of the convenience lies with the plaintiffs. But on the other hand, it is in favour of
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defendant No.5. Even hardship when considered, more hardship will be caused to defendant No.5 if he is restrained from exercising his right of ownership over the land in question, which was conferred on him, as per the decree passed by this Court in R.F.A.No.4016/2013. When all the 3 basic requirements for grant of temporary injunction is not satisfied, the plaintiffs are not entitled for grant of temporary injunction. Even though it is contended by the learned counsel for the respondents that the trial Court exercised its discretion judiciously, the impugned order discloses that the trial Court has not considered any of these facts while passing the impugned order. When the impugned order passed by the trial Court is apparently erroneous ignoring the material facts and circumstances, such order is required to be interfered with.
43. The impugned order passed by the trial Court is perverse and the same is liable to be set-aside. Accordingly, I answer the above point in the affirmative and proceeded to pass the following;
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ORDER The appeal is allowed.
The impugned order dated 18.04.2019 passed on I.A.No.4 under Order 39 Rule 1 and 2 read with Section 151 of Code of Civil Procedure in O.S.No.44/2019 by the II Additional Senior Civil Judge and CJM., Belagavi, is set-aside.
Sd/-
JUDGE MBS/AM