Madhya Pradesh High Court
Geeta Bai vs Dipak Pamnani on 6 January, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2024:MPHC-IND:36945 --1--
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. APPEAL No. 8845 of 2024
GEETA BAI AND OTHERS
Versus
DIPAK PAMNANI AND OTHERS
_________________________________________________________________
Appearance:
Shri Mahendra Kumar Jain - Advocate for the appellants.
_______________________________________________________________
ORDER
(RESERVED ON 11/10/2024) (PRONOUNCED ON 06/1/2025)
1. This appeal under Order 43 Rule (1) (r) of the CPC has been preferred by defendants No.1 and 3/appellants being aggrieved by the order dated 7/8/2024 passed in Civil Suit No.51-A/2024, by the 7th District Judge, Ujjain whereby application under Order 39 Rule 1 and 2 of the CPC preferred by plaintiffs/respondents No.1 to 3 for Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/7/2025 3:39:18 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36945 --2-- issuance of temporary injunction has been allowed.
2. As per the plaintiffs, Sukhram, husband of defendant No.1 and father of defendants No.2 to 10, was the owner of the suit land bearing Survey No.3107/3 area 1.725 hectare Gram Kasba Ujjain. On 14/9/2022 he had entered into an agreement to sale with respect to the suit land in their favour for a total consideration of Rs.1,10,63,250/- upon payment of earnest money of Rs.23,00,000/-. The remaining amount of sale consideration was to be paid by 9/5/2023. Sukhram expired on 28/4/2023. The plaintiffs have performed their part of the contract and have carried out all the necessary formalities as stated therein. On 28/4/2023 two sale deed were also executed by Sukhram's power of attorney holder defendant No.2 in favour of plaintiffs. However, due to death of Sukhram the sale deeds could not be got registered. Thereafter the plaintiffs requested the defendants for registration of the sale deeds in their favour but they have not done so despite issuance of a legal notice to them in that regard.
3. On such contentions the plaintiffs have instituted an action Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/7/2025 3:39:18 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36945 --3-- before the trial Court for specific performance of contract dated 14/9/2022. Along with the plaint, they also filed an application under Order 39 Rule 1 and 2 of the CPC praying for issuance of temporary injunction restraining the defendants from alienating the suit land in favour of any third person submitting that defendants are attempting to create third party interests therein.
4. The defendants No.1 to 3 filed their reply to the application submitting that Sukhram was in need of money hence plaintiff No.1 had advanced a sum of Rs.15,00,000/- to him by way of loan. For security of the same, plaintiff No.1 had got a thumb impression affixed from Sukhram on a blank paper but has thereafter misused the same and has prepared an agreement to sale thereupon. No such agreement was ever executed by Sukhram in favour of plaintiffs which is a forged and fabricated document. Subsequently a similar type of document was got executed by plaintiff No.1 from defendant No.2 for repayment of the loan.
5. The trial Court has allowed plaintiff's application for issuance of temporary injunction observing that prima facie it appears that Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/7/2025 3:39:18 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36945 --4-- agreement to sale was executed by Sukhram in favour of plaintiffs upon receiving earnest money of Rs.23,00,000/- and that if the suit land is alienated during pendency of suit it would cause irreparable injury to the plaintiffs.
6. Learned counsel for defendants No.1 to 3 has submitted that the trial Court has erred in allowing plaintiffs application for issuance of temporary injunction. Though it was contended by plaintiffs that a slot was booked for registration of sale deed allegedly executed by defendant No.2 but the same is wholly false. The slot was booked for 1/5/2023 but Sukhram had expired on 28/4/2023 itself. The plaintiffs have not come with clean hands. No agreement to sale was ever executed by Sukhram in favour of plaintiffs which is a forged and fabricated document. He was in need of money hence had taken loan from plaintiff No.1 who had fraudulently got executed an agreement to sale in favour of plaintiffs. Likewise the document got executed from defendant No.2 was also on the pretext of advancing further loan. The interests of plaintiffs are very well protected by provisions of Section 52 of the Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/7/2025 3:39:18 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36945 --5-- Transfer of Property Act in view of which no injunction ought to have been issued. The impugned order hence deserves to be set aside.
7. I have considered the submissions of the learned counsel for defendants No.1 to 3 and have perused the record.
8. As per defendants No.1 to 3 themselves on the document dated 14/9/2022 signatures of Sukhram are available. Whether the same were put by him on a blank paper at the behest of plaintiff No.1 which has later on been prepared as an agreement to sale or whether the same were put by him on the agreement to sale itself is a disputed question of fact which can only be decided after recording of evidence of the parties. Even defendants No.1 to 3 have admitted payment of an amount of Rs.15,00,000/- by plaintiffs to Sukhram. The plaintiffs contend the amount paid to be Rs.23,00,000/-. What is the exact amount paid and whether the same was paid by way of earnest money or by way of loan by plaintiff No.1 to Sukhram would also be a matter required to be decided upon merits. For the present a debatable question has been raised by plaintiffs which requires Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/7/2025 3:39:18 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36945 --6-- consideration and determination. It cannot be said that the case of plaintiffs is so preposterous that the same does not deserve any consideration. On the other hand, a triable issue has very much been raised by plaintiffs.
9. On the record there is also a document which is a power of attorney executed by Sukhram in favour of his son defendant No.2 for execution of the sale deed in favour of plaintiffs. Though this document is also contended by defendants No.1 to 3 to have been got executed from defendant No.2 by playing fraud, it cannot at this stage be discarded altogether particularly since it is a registered document. The same gives credence to the contention of plaintiffs that agreement to sale was in fact executed. A slot was booked in the Office of Sub Registrar for 1/5/2023 for registration of the sale deed but Sukhram died prior to that itself on 29/4/2023. It would be wholly immaterial whether the parties appeared in the Office of Sub Registrar on that day or not.
10. Recently the Apex Court in Ramakant Ambalal Choksi V/s. Harish Ambalal Choksi and Ors., 2024 SCC On-line SC 3538 has Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/7/2025 3:39:18 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36945 --7-- held that in a suit seeking specific performance of a sale agreement, notwithstanding Section 52 of Transfer of Property Act there can be occasion for grant of injunction restraining pendente lite transfers in a fit and proper case. It has been held as under :-
"45. Quite often, in these types of litigations, it is sought to be argued that an injunction restraining the defendant from transferring the suit property was absolutely unnecessary as no post-suit transfer by the defendant can adversely affect the result of the suit because of the provisions of Section 52 of the T. P. Act whereunder all such transfers cannot but abide by the result of the suit. It is true that the doctrine of lis pendens as enunciated in Section 52 of the T. P. Act takes care of all pendente lite transfers; but it may not always be good enough to take fullest care of the plaintiffs interest vis-a-vis such a transfer. We may give one appropriate illustration of a suit for specific performance of contract based on an agreement of sale. In a suit wherein the plaintiff prays for specific performance and if the defendant is not restrained from selling the property to a third party and accordingly a third party purchases the same bona fide for value without any notice of the pending litigation and spends a huge sum for the improvement thereof or for construction thereon, the equity in his favour may intervene to persuade the Court to decline, in the exercise of its discretion, the equitable relief of specific performance to the plaintiff at the trial and to award damages only in favour of the plaintiff. It must be noted that Rule 1 of Order 39 of the Code clearly provides for interim injunction restraining the alienation or sale of the suit property and if the doctrine of lis pendens as enacted in Section 52 the T. P. Act was regarded to have provided all the panacea against pendente lite transfers, the Legislature would not have provided in Rule 1 for interim! injunction restraining the transfer of suit property. Rule 1 of Order 39, in our view, clearly demonstrates that, notwithstanding the Rule of lis pendens Section 52 of the T. P. Act, there can be occasion for the grant of injunction restraining pendente lite transfers in a fit and proper case. (See: Sm. Muktakesi Dawn and Ors. Vs. Haripada Muzumdar & Anr. Reported in AIR 1988 Cal
25)."
11. In view of the aforesaid enunciation of law, the judgment in the Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/7/2025 3:39:18 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36945 --8-- case of Rajkumar V/s. Sardarilal, 2004 MPWN Note 99 and Sitaram V/s. Tularam & Ors., 1999 JLJ 432 relied upon by the learned counsel for defendants No.1 to 3 do not help him in any manner. They are even otherwise distinguishable on facts. The trial Court has hence not committed any illegality in allowing plaintiff's application for issuance of temporary injunction and restraining defendants from alienating the suit land during pendency of the suit. No fault is found with the impugned order which is accordingly affirmed, as a result of which the appeal is dismissed.
(PRANAY VERMA) JUDGE SS/-
Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/7/2025 3:39:18 PM