Madhya Pradesh High Court
Satish Kumar Gupta vs The State Of Madhya Pradesh Thr. on 16 July, 2015
1 WA No. 88/2015
[ Satish Kumar Gupta Vs. State of MP & Others ]
16/07/2015
Shri Arun Dudawat, learned counsel for the appellant.
Shri Praveen Niwaskar, learned Government
Advocate for the respondents No. 1 to 3/ State.
Shri Prashant Sharma, learned counsel for the respondents No.4, 5 and 6(i) and (ii).
After granting permission to file the appeal against the impugned order to the appellant as he was not party before the writ Court, this appeal is listed today for admission and consideration of IA No.2672/2015, an application for grant of stay, on which some interim order was passed on 14/05/2015.
In the available circumstances, so also in view of the short question involved for adjudication in this appeal instead to hear this appeal on admission, with the consent of the parties, the same is finally disposed of.
On behalf of the appellant, this intra-Court appeal is preferred under Section 2(i) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005, being aggrieved by the order dated 23/03/2015 passed by the writ Court in Writ Petition No.6544/2014, whereby allowing the writ petition of the respondents No.4 to 6(i) & (ii) against the authorities of the respondents No.1 to 3, filed under Article 226 of the Constitution of India without 2 giving any direction to implead the appellant, the following operative order with direction has been passed:-
"Considering the aforesaid, the operative portion of impugned order dated 16.9.2014, whereby it was opined that during the pendency of F.A. No. 54/2012 the documents can be executed, is set aside. It is held that documents can be executed subject to fulfillment of requirement of order dated 20.1.2014 passed in F. A. No. 54/2012. The petitioners are free to satisfy the authority that such condition is either already mentioned in the documents sought to be executed and in alternative they may file separate documents containing the said condition."
Appellant's counsel after taking us through the record of the writ Court as well as the papers placed on record alongwith the impugned order, argued that it is undisputed fact that initially the appellant herein had filed a civil suit for specific performance with respect of the land in dispute for which the impugned document was executed and produced before the Sub-Registrar for registration. After holding the trial, on consideration such suit was partly allowed by the trial Court, on which against dismissal of part of such suit, the appellant herein has come to this Court in First Appeal No.54/2012 and in such First Appeal, the respondents No.5 and 6(i) & (ii) being defendants before the trial Court in such suit, were 3 impleaded as respondents in pendency of such appeal. In presence of the parties vide interim order dated 20/01/2014, the following order was passed:-
"Heard counsel for the parties on I.A. No. 128 of 2014 an application under Order XXXIX Rule 1 and 2 of C.P.C.
In our opinion, the ad interim order already passed on 27/02/2012 by this Court would meet the ends of justice as it has been directed that if any transaction is effected in respect of the suit property, that would be subject to final decision in this appeal.
This direction is analogous to the obligation arising on account of the lis pendens. Further we may only add that the respondents, in the event of entering into any agreement/sale deed/document with third party in regard to the suit property, shall declare that the suit property is subject- matter of pending appeal i.e. F.A. No. 54/2012 before this Court and any transaction would be subject to the final outcome of this appeal. This would meet the ends of justice.
I.A. No.128/2014 is disposed of accordingly."
Subsequent to passing the aforesaid interim order, the respondents No.5 and 6(i) and (ii) in accordance with the direction of the aforesaid interim order of the First Appeal, have executed the document of transfer in favour of the respondents No.4 and submitted such document before the Sub-Registrar for registration but in stead to 4 register the document in view of the aforesaid interim order of First appeal, he has drawn up a note-sheet and stated that in view of the aforesaid order of the First Appeal, the respondents No.5 and 6(i) & (ii) did not have any authority to execute the document of transfer of property in dispute and did not register the same, on which the respondents No.5 and 6(i) & (ii), so also the respondents No.4 in whose favour the aforesaid document was executed and produced for registration came to this Court with impugned Writ Petition No.6544/2014 without impleading the present appellant as respondent in such petition. On consideration vide order dated 23/03/2015 the aforesaid impugned writ petition was disposed of by the writ Court in the following manner:-
"Considering the aforesaid, the operative portion of impugned order dated 16.9.2014, whereby it was opined that during the pendency of F.A. No. 54/2012 the documents can be executed, is set aside. It is held that documents can be executed subject to fulfillment of requirement of order dated 20.1.2014 passed in F.A. No.54/2012. The petitioners are free to satisfy the authority that such condition is either already mentioned in the documents sought to be executed and in alternative they may file separate documents containing the said condition."5
Being dissatisfied with the aforesaid order, the appellant of this appeal as well as the appellant of the aforesaid First Appeal has come to this Court with this intra-Court appeal.
Having heard the counsel at length, after perusing the record, we are of the considered view that after passing the aforesaid interim order dated 20/01/2014 by Bench of this Court in First Appeal No.54/2012 if in compliance of the direction of such order any document was executed by the respondents No. 5 and 6 (i) and (ii) in favour of the respondent No.4 and the same was not registered for the reason stated by the Sub-Registrar in his order, then in that circumstance, that was the subject- matter of the aforesaid First Appeal because such situation has arisen out of the aforesaid interim order passed in the First Appeal. In that circumstance, the respondent No.5 and 6 (i) & (ii) had a remedy to approach with appropriate proceeding or application in the aforesaid First Appeal for appropriate direction to the Sub-Registrar but in any case in view of pendency of First Appeal, the respondents No.5 and 6 (i) and (ii) under their own rights or the respondent No.4 did not have any authority to approach the writ Court under Article 226 of the Constitution of India to challenge the order of Sub- Registrar. Even otherwise, in view of the settled principle 6 of doctrine of lis pendens defined in Section 52 of the Transfer of Property Act, any of the party to the impugned litigation claiming under their rights, are bound by the final decision of pending litigation i.e. First Appeal in the case at hand; either of the parties did not have any authority to approach this Court under Article 226 of the Constitution of India for issuing any direction to any authority; and the remedy available to the affected party was in the aforesaid First Appeal. So, in such premises, the impugned order passed by the writ Court is not unsustainable. Consequently, by allowing this appeal, the same is set aside and in the available circumstances, the respondents No.4, 5 and 6 (i) & (ii) are extended liberty to approach with appropriate proceeding or application for appropriate relief in the matter before the Court in the aforesaid First Appeal.
There shall be no order as to costs.
(U. C. Maheshwari) (B. D. Rathi)
Judge Judge
MKB