Gujarat High Court
Bharatkumar Ishwarlal vs Manubhai Nathabhai & on 26 August, 2013
Author: S.H.Vora
Bench: S.H.Vora
BHARATKUMAR ISHWARLAL MITERANIV/SMANUBHAI NATHABHAI C/AO/37/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER NO.
37 of 2012 With CIVIL APPLICATION NO.
1254 of 2012 In APPEAL FROM ORDER NO. 37 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES 2 To be referred to the Reporter or not ?
YES 3 Whether their Lordships wish to see the fair copy of the judgment ?
NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
NO 5 Whether it is to be circulated to the civil judge ?
NO ================================================================ BHARATKUMAR ISHWARLAL MITERANI & 3....Appellant(s) Versus MANUBHAI NATHABHAI &
2....Respondent(s) ================================================================ Appearance:
MR PERCY KAVINA, SENIOR COUNSEL with MR NIKUNT K RAVAL, ADVOCATE for the Appellants MR JITENDRA M PATEL, ADVOCATE for the Respondent(s) No. 2 - 3 MR.SHALIN MEHTA, SENIOR COUNSEL with MR.HIREN M MODI, ADVOCATE for the Respondent(s) No. 1 =========================================================== CORAM:
HONOURABLE MR.JUSTICE S.H.VORA Date : 26/08/2013 CAV JUDGEMNT
1. Present appeal from order is preferred under the provisions of Order 43 Rule 1(r) read with section 104 of the Code of Civil Procedure, 1908 (for short the Code ) challenging order dated 23.1.2012 passed by the leaned Chamber Judge, City Civil Court, Ahmedabad below notice of motion Exh.6/7 in Civil Suit No.1422 of 2011, whereby the learned Chamber Judge dismissed the injunction application preferred by the appellants (original plaintiff) (hereinafter referred to as the purchasers ), wherein the purchasers have prayed to maintain status position qua the land bearing survey No.104/1, Final Plot No.58 of Mouje Naroda, Tal: City, Dist: Ahmedabad (hereinafter referred to as the suit land ) till suit for specific performance of sale agreement dated 5.7.2005 (hereinafter referred to as the suit agreement ) executed by the respondent No.1 (hereinafter referred to as the vendor ) is decreed and further prayed to cancel the sale deed dated 20.6.2011 executed by the vendor in favour of the respondent Nos.2 and 3 (hereinafter referred to as the subsequent purchasers ) being illegal and null and void and further prayed for perpetual injunction restraining the vendor and subsequent purchasers from selling, gifting, assigning or creating any charge or transferring possession of the suit land or erecting any construction on the suit land till final disposal of the suit.
2. Admittedly, the total sale price of the suit land was settled at Rs.72,38,928/-
and the purchasers paid Rs.7,50,000/- on the date of entering into the suit agreement to the vendor. The relevant clauses of the suit agreement, it translated in English freely, are as follows:-
2(i) The land ad measuring 1111 sq. meter of final plot no. 58 of T.P. Scheme no.-1 in the outskirt of Mauje Naroda of Taluka City, District, Sub-District Ahmedabad-6 (Naroda) City Taluka and the property including the construction in some parts thereof, are of independent ownership of us, the vendor and some part is in possession/occupancy of tenants and some part is in possession/occupancy of us the vendor.
2(ii) The said land and the constructed property on it, are in the name of us the vendor as independent owner on record of government as well as semi-government and on record of Ahmedabad Municipal Corporation and on the record of Ahmedabad Electricity Company and some part thereof is as possessor of tenants and some part is in possession/occupancy of us the vendor. By removing and getting removed the construction on the said land of property, I, the vendor decide to sell the said land to you the vendees today by this agreement of earnest money deed. The detail of its number, measurement and quadrilateral directions :-
Outskirt T.P. Scheme number Final plot number Area Naroda, Ta. City, Dist. Ahmedabad.1 58 1111
sq. meter means 1328 sq. yard land.
Remark:- As per the condition decided, by getting removed the construction of rooms and shops situated on the said land, by us the vendor at our cost, we the vendor have decided to sell only the land to you the vendees.
The detail of its quadrilateral :-
East :- Final plot no. 54 some portion of Final Plot No.57 is situated.
West :- T.P. Road is situated.
North :- Final plot no. 59 is situated.
South :- Final plot No.57 is situated.
2(iii) I the vendor has decided to sell the said land ad measuring 1111 sq. meters means 1328 sq. yards having number, measurement and quadrilateral accordingly and roads of the said land and the land including rights available and the land having rights from the sky to the bottom including all the rights of me the vendor, to you the vendees in total Rs. 72,38,928-00 ( in word seventy two lac thirty eight thousand nine hundred twenty eight only) by calculating Rs. 5,451/- ( in word Five Thousand Four Hundred Fifty One only) per sq. yard and by taking the amount as mentioned below, as its earnest money and consideration, we have decided to hand over the vacant and actual possession of the said land to you the vendees as per the conditions as mentioned below.
2(iv) The duration of the said earnest money deed has been decided 12 months (Twelve) from removal of all the construction on the aforesaid land and receipt of the title clearance certificate of the said land.
2(v) There are different tenants in the rooms and shops situated on the said land. I the vendor is responsible to get the aforesaid construction vacated from the said tenants at our cost and to get the possession back from them and to get the said construction demolished in 3 months from today and to bring to end to tenancy rights of the said all tenants including all expenditure. If it takes the time of more than three months in getting possession from the said tenants, the duration of this earnest money deed shall be considered as extended for such period.
2(vi) I the vendor has to get the title clearance certificate of the aforesaid property for you from government approved Advocate and Solicitors. If it also takes the time of more than three months in getting the said title clearance certificate, the duration of this earnest money deed shall be considered as extended for such period.
2(vii) On removal of the aforesaid construction in the said land and on receipt of title clearance certificate of the said land, You the vendees are required to do at your cost the function of obtaining permission of getting the plan of the said land approved after preparing the same and permission of non-agriculture of the said land. Wherever you the vendees require signatures, application, affidavit, bond, declaration etc. of me the vendor, for obtaining the permission for getting the plan of the said land approved and the permission of non-agriculture, I the vendor is and shall be required to do it for you the vendees without hesitation.
2(viii) On removal of the construction in the aforesaid land and receipt of title clearance certificate, you the vendees require to pay to me the vendor the remaining money of consideration of selling price of the said land on every four months in three equal shares that means in total 12 months. When you the vendees pay the money of consideration of the said land to me the vendor, one or more than one registered documents of the said land are to be made and shall be made in the name of you the vendees or the person as you the vendees suggest.
On removal of the construction from the aforesaid land and on receipt of the title clearance certificate, when you the vendees pay 43% ( Forty Three percentage) of amount to me the vendor from total amount of selling price of the said land, I the vendor require to hand over vacant and actual possession of the said land to you the vendees for doing all works of your plan. Moreover, the possession as owner is to be handed over at the time of sale deed.
3. On 20.6.2011, the vendor and Smt. Bhagavatiben Manubhai Patel executed sale deed in favour of the subsequent purchasers for consideration of Rs.81,11,000/-. It is relevant to note that the subsequent purchasers paid Rs.15 lac on 18.6.2011, whereas the balance consideration of Rs.6,38,875/- was paid by way of six post dated cheques payable on every 10th day of month July, 2011 to December, 2011.
4. On 27.6.2011, the purchasers filed the above referred suit against the vendor and subsequent purchasers. In the said suit, the purchasers moved a notice of motion to maintain status quo position qua the suit land till final disposal of the suit. Before the trial Court, the vendor filed his written statement on 8.7.2011, whereas the subsequent purchasers filed their written statement on 7.7.2011.
5. On 23.1.2012, the learned Chamber Judge dismissed the notice of motion application mainly on the ground that the performance of the suit agreement is based on some future event i.e. eviction of tenants within three months and thus, according to the learned Chamber Judge, the suit contract was impossible to be specifically performed and further the purchasers have never shown readiness and willingness to purchase the suit land as purchasers remained silent for about six years after execution of the suit agreement and therefore, in light of the provisions contained in section 41(e) and 19(b) of the Specific Relief Act, injunction cannot be granted as suit contract cannot be specifically enforced as suit contract has been frustrated.
6. Learned senior counsel Mr. Kavina appearing for the purchasers after taking through the pleadings, judgment of the trial Court as well as the provisions contained in sections 31,32,33,36,53,56 and 63, raised the following contentions.
6.1 That the suit contract in question is not a contingent contract in terms of sections 31 and 32 of the Contract Act, 1872.
6.2 No plea as to impossibility or frustration of contract is taken in written statement filed before the trial Court. However, the learned trial Judge wrongly and illegally invoked provisions of section 56 of the Contract Act.
7. On the other hand, learned senior counsel Mr. Mehta for the vendor by drawing my attention to all relevant materials relied on by the trial Court and the decision rendered in case of Mohd. Mehtab Khan Vs. Khushnuma Ibrahim and others rendered in Civil Appeal No.678 of 2013 raised the following contentions so as to sustain the impugned order.
7.1 That the appellate Court should not interfere with the exercise of discretion exercised by the learned trial Judge unless such exercise is found to be palpably incorrect or untenable. The appellate Court should not have substituted its views in the matter, merely on the ground that in its opinion the facts of the case call for a different conclusion.
7.2 The suit agreement being contingent contract when impossible to fulfill and cannot be implemented and in such circumstances, the learned trial Judge was justified in refusing the relief in favour of the purchasers.
7.3 The purchasers remained silent for six years after execution of the suit agreement and therefore, the learned trial Judge has rightly refused the interim relief as sought for.
8. Learned advocate Mr. Patel for the subsequent purchasers raised the following contentions.
8.1 The suit relief is barred by Article 54 of the Limitation Act.
8.2 The suit agreement is unregistered document and therefore, it is hit by the provisions of section 17(aa) of the Indian Registration Act.
8.3 The subsequent purchasers are bona fide purchasers and transferee for value, who have paid their money in good faith and without notice of the suit agreement and therefore, the suit agreement cannot be enforced in view of the provisions contained in section 19(b) of the Specific Relief Act.
8.4 The suit is not maintainable for non-joinder of necessary party i.e. Smt. Bhagavatiben M. Patel, who is co-owner of the suit land vide registered sale deed dated 16.7.2005.
8.5 The purchasers were not ready and willing to perform their part of the contract and thereby, the suit is not maintainable under the provisions of section 16(c) of the Specific Relief Act by. The suit is also not maintainable, for non-joinder of necessary party i.e. Smt. Bhagavatiben M. Patel who is co-owner of the suit land and she is not signatory to the suit agreement.
9. Learned advocate Mr. Patel for the subsequent purchasers has relied on following judgments.
In the case of Durga Prasad and another Vs. Smt. Lilawati and another reported at AIR 1972 Allahabad 396.
In the case of Rameshwar Singh Vs. Hari Narayan Singh and others reported at AIR 1984 Patna 277.
In the case of Smt. H.R. Irani Vs. Life Insurance Corporation of India and another reported at AIR 2010 (NOC) 642 (Bom.).
In the case of Manjunath Anandappa Urf Shivappa Hansi Vs. Tammanasa and others reported at AIR 2003 SC 1391.
In the case of M/s Ciba Geigy Ltd. Vs. M/s Sun Pharmaceuticals Industries reported at 1992(3) GLR 1053.
10. Heard learned senior counsel Mr. Percy Kavina with learned advocate Mr. N.K. Raval for the purchasers, learned senior counsel Mr. Shalin Mehta with learned advocate Mr. H.M. Modi for the vendor and learned advocate Mr. Jitendra M. Patel for the subsequent purchasers and have considered the rival submissions, perused all the relevant materials in form of documentary evidence placed on record by both the sides and minutely examined the principles laid down by various authorities cited at bar and perused the impugned order.
11. The present appeal is filed under the provisions of Order 43 Rule 1(r) of the Code and challenge in this appeal is the discretionary order passed by the trial Court under the provisions of Order 39 Rule 1 and 2 of the Code whereby, the learned trial Judge dismissed the notice of motion Exh.6/7 for interim relief. If this Court elaborately deal with the matter on its own merits, it is likely that same would prejudice the case of either side. Therefore, it is also well settled law that the Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellants-original plaintiffs have made out a prima facie case or not for grant of interim injunction. It is well settled law that the Appellate Court may not interfere with the exercise of discretion of the Court at first instance and substitute its own discretion except when the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or when the Court has ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. So, the Appellate Court cannot reassess the material and reach a conclusion different from the one reached by the Court. Keeping in mind the limited scope of present appeal, this Court is required to see whether discretion exercised by the learned trial Judge is perverse, arbitrary, capricious or against any settled principles of law or not? Such principle is laid down in case of Mohd. Mehtab Khan (supra) relied on by learned senior counsel Mr. Mehta.
12. It is not in dispute that the purchasers and the vendor entered into a suit agreement on 5.7.2005 for sale of the suit land at a sale consideration of Rs.72,38,928/- and a sum of Rs.7,50,000/- was paid as advance. It is not in dispute that certain portion of the suit land was in possession of the vendor and certain portion of the suit land was in occupation of the third party as tenants. It is not in dispute that the vendor was obliged to remove all constructions on the suit land. In sum and substance, the purchasers and the vendor agreed to sell the vacant suit land. It is not in dispute that the vendor agreed to get vacated some portion of the suit land possessed by the tenants and to remove certain constructions on the suit land within three months of the execution of the suit agreement. It is not in dispute that till filing of the suit, neither the purchasers nor the vendor took any action in pursuance of the suit agreement. It is also not in dispute that the vendor was required to get the suit land vacated from the possession of the third party tenants within three months and was further required to remove all construction from the suit land and thereafter, within one year, the vendor was required to obtain the title clearance certificate and within such period, the purchasers were required to pay balance consideration in three equal installments.
13. Now the moot question arises for consideration of this Court is whether the vendor was justified in invoking doctrine of frustration so as to say that since the tenants have filed the civil suit in the Court of law, the suit agreement becomes impossible to perform. By referring to various conditions in the suit agreement, learned senior counsel Mr. Mehta for the vendor vehemently contended that inasmuch as the suit agreement was depending upon uncertain events of tenants being evicted from the suit land by following due procedure of law, the suit agreement is contingent depending upon the outcome of various civil suits filed by the tenants in the Court of law. According to him, various clauses as referred herein above insisted certain impossible conditions at the hands of the vendor and therefore, the suit agreement entered into between the purchasers and the vendor became impossible to perform. Though, such an argument was advanced before this Court, there was no such specific plea in the written statements filed by the vendor and the subsequent purchasers, however, since the learned trial Judge has considered the same, the Court would like to discuss and answer the said contention.
14. Chapter III of the Contract Act, 1872 deals with contingent contract. The contingent contract has been defined in section 31 and method of enforcement is stated in section 32, which reads as under:
31. Contingent contract defined A contingent contract is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen.
32.
Enforcement of contracts contingent on an event happening.- Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. If the event becomes impossible, such contracts become void.
It is clear that if the condition prescribed is impossible, undoubtedly, such contract becomes void and not enforceable in terms of section
32.
15. The event stipulated is to evict the tenants from the portion of the land and to remove the constructions on some portion of the land. While elaborating the said points, learned senior counsel Mr. Mehta highlighted that the condition in the suit agreement freezes the suit property once forever if the tenants are not evicted from the suit land within reasonable time. After referring to various conditions and more particularly, condition Nos.2,4,5 and 7, learned senior counsel Mr. Mehta submitted that the vendor rightly expressed his inability to evict the tenants from the suit land as they filed civil suit in the Court of law. In fact, no details or particulars as to the nature of litigation between the vendor and the tenants have been placed on record on one hand and on the other hand, as per condition of the suit agreement, the purchasers were required to initiate proceedings to evict the tenants from the suit land as agreed. In absence of showing any bona fide efforts on the part of the vendor, the learned trial Judge has committed error in jumping to the conclusion that the suit agreement is not enforceable as it is not possible to perform on the part of the vendor. In order to come to such conclusion, the learned trial Judge has placed reliance on the decision in case of Najmudin I. Bharmal Vs. Charotar Gramoddhar Sahakari Mandal Ltd. reported in 1996(1) GLH 638. In the said case, the Division Bench of this Court observed that two conditiosn are essential before Section 56 of the Contract Act becomes applicable, namely valid and subsisting contract to meet the purpose and second there must be some part of the contract still to be completed after it is entered into becomes impossible to be performed. In the case before the Division Bench, there was refusal of the permission for conversion of the suit land into NA and therefore, it was found that the contract became impossible to be performed and therefore, there cannot be decree for specific performance of such act or action to be impossible or the performance of which is beyond the control of the party.
16. Now, if we test the facts of the case on hand in light of principles settled in case of Najmudin I. Bharmal (supra), it is not the case of the vendor that the vendor failed before the tenancy Court in getting eviction decree after execution of the suit agreement. Had it been so, then the vendor is well within his right to take shelter of section 56 of the Contract Act. In fact, no such event has happened in the case on hand so as to say that after the suit agreement was made for some reason or event, the vendor could not perform his part of the contract and therefore, the contract became impossible. In the case on hand, both the parties, more particularly, the vendor is well aware that he is required to evict the tenants from some portion of the suit land and unless and until, any action initiated by the vendor to get the tenants evicted from the suit land fails, the vendor has no right to say that the contract is frustrated. In Court's considered opinion, getting the possession of some portion of the land from the tenants was not an impossible act. At the time of entering into the contract, the vendor himself was bound with the condition that he would evict the tenants from the suit land within three months and therefore, it was expected from the vendor to initiate action within the stipulated time. Nothing sort of such action is initiated by the vendor and till any such action is refused by the competent Court, it is not befitting to the vendor to say that the suit agreement is impossible to perform or frustrated. So, the learned trial Judge has committed error in observing that the suit contract is incapable of performance and therefore, the contention of learned senior counsel Mr. Mehta for the vendor that the suit contract is a contingent contract and is incapable of performance cannot be accepted. Had it been any action initiated by the vendor to evict the tenants and in such process, if the vendor fails to obtain decree from the competent Court, then the vendor is within his right to raise a plea of impossibility of performance of suit agreement. It is not the case here. For the sake of repetition, it may be point out that this was not an issue/plea in the written statement, however, since the learned trial Judge has gone into the said aspect of the matter, this Court thought it fit to answer the contention raised by learned senior counsel Mr. Mehta for the vendor.
17. One more fact which requires to be noted here is such that the learned trial Judge has found that the purchasers have never shown readiness and willingness to purchase the property with tenant on as is where is basis. While recording such finding, the learned trial Judge failed to notice that neither party to the proceedings came with a case that the specific performance of the suit agreement be granted in respect of a suit agreement with variance or alteration. So, in absence of any such case pleaded by the party to the suit, the learned trial Judge committed error in finding fault with the purchasers for not praying for a decree with variance i.e. specific performance of decree for suit land on as is where is basis.
18. It is further contended by learned advocate Mr. Patel that the suit agreement requires to be registered compulsorily in view of the provisions contained in section 17(aa) of the Registration Act. As the suit agreement is not registered, it cannot be admitted in evidence as provided under section 49 of the Registration Act. It is true that an agreement to sell is required to be registered as per amended section 17(aa) of the Registration Act, but as per the decision of this Court in 1987(1) GLH UJ 22 in case of Kaushik Rajendra Kavina Vs. Allied Land Corporation and others, a view is taken by the Court that since there is no corresponding amendment in section 49 of the Registration Act, the suit of the plaintiff would not fail on the ground of non-registration of the agreement to sell, than otherwise, compulsorily requires to be registered by way of amendment of section 17(aa). In this connection, it is also relevant to consider the ration laid down by the Hon ble Apex Court with regard to admissibility of an unregistered sale agreement in a suit for specific performance of the contract in case of S. Kaladevi Vs. V.R. Somasundaram and others reported at (2010) 5 SCC 401. While accepting the appeal, the Hon ble Apex Court has held that document, required to be registered, if unregistered can be admitted in evidence as evidence of contract in a suit for specific performance. The relevant observations recorded by the Hon ble Apex Court in para Nos.13,16 and 17 read as under:
13. Recently in the case of K.B. Saha and Sons Private Limited v. Development Consultant Limited, this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at page 189:-
"......The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu and Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court at Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it......"
This Court then culled out the following principles:-
"1.
A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.
16. The issue before us is only with regard to the admissibility of unregistered sale deed dated 27.2.2006 in evidence and, therefore, it is neither appropriate nor necessary for us to consider the contention raised by learned counsel for the respondents about the maintainability of suit as framed by the plaintiff or the circumstances in which the sale deed was executed. If any issue in that regard has been struck by the trial court, obviously, such issue would be decided in accordance with law.Suffice, however, to say that looking to the nature of the suit, which happens to be a suit for specific performance, the trial court was not justified in refusing to admit the unregistered sale deed dated 27.2.2006 tendered by the plaintiff in evidence.
17. The argument of learned counsel for the respondents with regard to Section 3(b) of 1963 Act is noted to be rejected.We fail to understand how the said provision helps the respondents as the said provision provides that nothing in 1963 Act shall be deemed to affect the operation of 1908 Act, on documents. By admission of an unregistered sale deed in evidence in a suit for specific performance as evidence of contract, none of the provisions of 1908 Act is affected; rather court acts in consonance with proviso appended to Section 49 of 1908 Act.
So, the contention raised by learned advocate Mr. Patel has no substance and cannot be accepted so as to refuse the injunction on this count.
19. It is further contended by learned advocate Mr. Patel that the suit agreement is executed on 5.7.2005, whereas the suit for specific performance by the purchasers is filed on 27.6.2011 and therefore, it is barred by Article 54 of the Limitation Act. Article 54 of the Limitation Act provides for specific performance of contract. A period of limitation would commence from the date fixed for performance or if such date is not fixed when the plaintiff has noticed that the performance is refused. Prior to filing of the suit, at no point of time, the vendor has refused either expressly or impliedly not to perform the suit agreement and therefore, it cannot be said that the suit is barred by provisions of Article 54 of the Limitation Act.
20. At this stage, it was also submitted by both the vendor and the subsequent purchasers that if the suit is found to be in time, even then, the relief of injunction being equitable relief can be refused on the ground of delay and laches. In case on hand, the vendor has not refused to perform suit agreement till filing of the suit, so it cannot be said that the conduct of the purchasers is blameworthy in approaching the Court of equity. There is no delay on the part of the purchasers in approaching the Court, but on the contrary, the subsequent purchasers and the vendor executed sale deed dated 20.6.2011 in a haste and hurried manner. So, meaning thereby, the vendor unilaterally, by his contract, cancelled the suit agreement and in a haste manner, executed sale deed so as to frustrate the right of the purchasers which accrued under the suit agreement and was in force on the date of filing of the suit also.
21. Now this takes me to decide whether the subsequent purchasers are bona fide purchasers of the suit land or not. In order to examine this aspect, it is necessary to consider the conduct of the subsequent purchasers before execution of the sale deed. It is well settled principle of law under section 19(b) of the Specific Relief Act that specific performance of contract may be enforced against any other person claiming under him by a title arising subsequently to the contract. No person can convey a better title then what he has, except where the statute provides exception to the rule like section 19(b). If a person, as an owner of the property, has entered into an agreement to sell, he cannot, thereafter, convey the same property to any other person, as after prior agreement to sell, he cannot be said to be a free owner of the property. If he subsequently alienates the property, he can alienate it only subject to the rights created under the prior agreement to sell. It is the case of the subsequent purchasers that they have no knowledge about the execution of the sale agreement inter se between the purchasers and the vendor and therefore, they have bona fidely entered into the registered sale deed without notice of prior sale agreement and paid the full value in good faith. As found herein above, the vendor and the subsequent purchasers with unusual haste with which the sale was carried out, shows an extraordinary and carrying through a sale deed involving such huge consideration, where such transactions, as a rule, are carried out with appropriate inquiry and more particularly, after obtaining title clearance certificate and also by publishing notice in newspaper before purchase. Admittedly, no such step has been taken by the subsequent purchasers.
22. The plain language of sub section (b) of section 19 shows that subsequent transferee can retain the benefit of his transfer by purchase, which prima facie, he had no right to get, only after satisfying two conditions i.e. (1) he must have paid the full value for which he purchased the property and (2) he must have paid it in good faith and without notice of prior contract. The burden of proof is upon the subsequent purchasers to establish existence of these two conditions in order to see that his right may prevail over the prior agreement of sale. In order to see whether the said conditions are fully satisfied or not, let us see how the consideration has been paid by the subsequent purchasers to the vendor. Admittedly, in the instant case, the full amount agreed between the vendor and the subsequent purchasers was not paid when the sale deed was executed on 20.6.2011. As recorded herein above, the subsequent purchasers issued six post dated cheques of Rs.6,38,875/- each payable on every 10th day of month of July, 2011 to December, 2011. What is specified in the provisions is that the amount ought to have been actually paid and that is the reason why sub section (b) of section 19 protects the bona fide purchaser, who had parted with his money and without notice of the prior agreement. Otherwise, the provisions would lead unscrupulous purchaser to exploit the situation. In order to invoke provisions under section 19(b), the subsequent purchasers should have entered into transaction bona fidely and that he ought to have paid the entire amount and that he had no notice. These ingredients have to be established by the subsequent purchasers and onus lies on him. In the case on hand, these ingredients, more particularly payment of full value on the date of execution of sale deed, is lacking. It is so because the purchasers have filed suit on 20.6.2011 and the subsequent purchasers have filed their written statement in the trial Court on 7.7.2011. Meaning thereby, when summons/notices of the suit were served upon the subsequent purchasers, notice as to existence of the suit agreement came to the knowledge of the subsequent purchasers and on such date, the subsequent purchasers have not paid full value, but they have paid only Rs.15 lac. It follows therefore, that unless the subsequent purchasers pays the entire money or its equivalent before the subsequent purchasers had any such notice, the subsequent purchasers will not be entitled to the protection. For the sake of repetition, it requires to be noted that what is specified in the provisions is that the amount has been actually paid and that is the reason why sub section (b) of section 19 protects the bona fide purchaser, who had parted with full money and without notice of the prior agreement. Apart from this, whether the subsequent purchasers have notice of the suit agreement is also a question of fact which needs to be tested at the time of leading evidence. The case law in the cases of Durga Prasad (supra), Rameshwar Singh (supra), Smt. H.R. Irani (supra), Manjunath Anandappa Urf Shivappa Hansi (supra) and M/s Ciba Geigy Ltd. (supra) cited by learned advocate Mr. Patel is to show that burden to prove that the subsequent purchasers has knowledge of prior contract is on the purchasers since the subsequent purchasers has clearly pleaded want of knowledge about existence of prior contract. There is no disagreement on the proposition of law laid down in the case cited at bar, but the Court cannot held mini trial at this stage to examine whether the subsequent purchasers have notice of the suit agreement or not prior to execution of the registered sale deed. But with unusual rapidity with which the sale deed is carried out is an important circumstances as it shows an extraordinary and unusual carrying through of sale in respect of immovable property involving huge consideration of about Rs.72 lac. Normal procedure for sale/purchase of immovable property as a rule are not such which is adopted in the present case. Hence, required ingredients of section 19(b) of Specific Relief Act are missing in this case and hence, the protection of section 19(b) is not available to the subsequent purchasers.
23. One of the contentions raised by learned advocate for the subsequent purchasers that suit is hit by section 16(c) of the Specific Relief Act is concerned, it requires to be noted that after the conveyance, the only question to be adjudicated is whether the subsequent purchasers are bona fide purchasers for value without notice. The question whether the appellants i.e. purchasers were ready and willing to perform their part of the agreement is really no consequences. Once there is a conveyance, the concept would be different and primary relief could be only cancellation of sale deed executed by vendor in favour of the subsequent purchasers. Hence, there is no substance in the said contention raised by learned advocate Mr. Patel for the subsequent purchasers.
24. It is contended by learned advocate Mr. Patel for the subsequent purchasers that the suit land also belonged to one Bhagwatiben and as she is not joined as party in the suit and also she is not signatory to the suit agreement, the present suit is not maintainable for non-joinder of necessary party. It is true that said Bhagwatiben is not party to the suit agreement, but still however, the purchaser can seek specific performance of suit contract only in respect of share of vendor, who executed the suit contract in favour of the purchasers as provided under section 12 of the Specific Relief Act, 1963. So, there is no substance in the plea of non-joinder of necessary party so as to defeat injunction application and consequently, the present appeal from order on this count. Suffice to refer the decision rendered in case between Kammana Sambumurthy Vs. Kalipatnapu reported in AIR 2011 (SC) 103.
25. It is also contended by learned advocate Mr. Patel for the subsequent purchasers and learned senior counsel Mr. Mehta for the vendor to the effect that vendor acquired title in the suit land after execution of suit agreement on 5.7.2005 and therefore, this agreement in question is not enforceable and the vendor had no title on the date of execution of the suit agreement. This spacious plea raised by the subsequent purchasers/vendor is not tenable in view of provisions contained in section 13 of the Specific Relief Act, as such defence is not permissible in the matter of specific performance of sale agreement brought by the purchasers. But the fact remains that vendor has acquired title before the suit is filed.
26. Now this takes me to answer whether this Court while exercising power under Order 43 Rule 1(r) of the Code can interfere with the findings recorded by the learned trial Judge in view of the limited power as laid down in case of Mohd. Mehtab Khan (supra). For the foregoing reasons and findings recorded by this Court, prima facie, the learned trial Judge has committed error in applying settled principles of law and therefore, this Court is well within its power to interfere with the findings recorded in the impugned order. The learned trial Judge failed to see that only prima facie case is a substantial question raised before it and the questions, which are discussed herein above, need investigation and decision on merit. The learned trial Judge also failed to satisfy itself that non-interference by the Court would result in irreparable injury to the party seeking relief and that there is no other remedy available to the party except to one grant injunction and the purchasers need protection from the consequences of apprehended injury. The Court while granting or refusing to grant injunction should exercise some judicial discretion to find out the consequential mischief or injury which is likely to be caused to the parties, if injunction is refused, and compared it with that it is likely to be caused to the other side, if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending suit, the subject matter should be maintained in status quo, injunction ought to have been issued. In case on hand, the learned trial Judge has failed to consider this material aspect of the case, inasmuch as to how the purchasers would be compensated if ultimately they succeed in the suit. It is well settled principle of law that in the matter of immovable property, the Court should see that the property should not change hands else, it would create multiplicity of litigation and sometime irreversible situation, of course, subject to provisions of Order 39 Rule 1 and 2 of the Code. In case on hand, the purchasers have successfully established all required ingredients of Order 39 Rule 1 and 2 in their favour and in that situation, the learned trial Judge ought to have protected right of the purchasers pending hearing of the suit.
27. Under the circumstances, the present appeal from order is required to be allowed and it stands allowed. The impugned order dated 23.1.2012 passed by the leaned Chamber Judge, City Civil Court, Ahmedabad below notice of motion Exh.6/7 in Civil Suit No.1422 of 2011 is hereby quashed and set aside. Pending hearing and final disposal of the suit, the parties are hereby directed to maintain status quo position qua the suit property.
28. While parting with the order, it is clarified that this Court has examined the impugned order passed by the learned trial Judge within the limited scope of provisions of Order 43 Rule 1(r) of the Code, whereas the main controversy involved in the suit is at large before the trial Court to be adjudicated through full-fledge trial. Therefore, the learned trial Judge shall not be influenced by any observations recorded in the impugned order and observations recorded by this Court herein above while deciding the suit at the end of trial. The findings recorded either by the trial Court or by this Court at inter locutory stage of the suit are tentative in its nature and the learned trial Judge shall decide the case on its merit and as per evidence that may be led during the course of trial and decide the suit in accordance with law.
29. In view of disposal of main appeal from order, civil application does not survive and the same stands disposed of accordingly.
(S.H.VORA, J.) shekhar Page 23 of 23