Orissa High Court
Haraparbati Thakurani Bije vs Ramakanta Gupta on 7 November, 2001
Equivalent citations: AIR2002ORI89, AIR 2002 ORISSA 89
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. The plaintiff's prayer for restraining the defendant respondent from alienating the suit property by sale, deed, mortgage or otherwise having been rejected by the learned Civil Judge (Senior Division), First Court, Cuttack, this appeal has been preferred.
2. The plaint schedule property originally belonged to one Kamala Devi who is the mother of the defendant. After death of said Kamala Devi the defendant succeeded to the property as the sole owner. Plaintiff is the public deity installed in a temple and the suit land is situated in front of the temple intervened by a road. The Unnayana Samiti representing the deity with intent to acquite some immoveable properties for the diety, approached the defendant having come to know that the defendant intends to sell the plaint schedule property. It is the case of the plaintiff that the Secretary of the said Unnayana Samiti convened a meeting on 3-2-1997 to discuss about the purchase of plaint schedule properly and prior notice of the meeting was given to the defendant which he received on 28-1-1997. In the meeting a resolution was passed to purchase the said suit property since it would be beneficial for the deity. In the said resolution not only the representatives of the plaintiff but also the defendant had signed. After the said resolution was passed and a decision was taken, a sub-committee consisting of five members was constituted to enter into negotiation with the defendant. On 20-11-1998 it was decided that the defendant would sell the suit property to the plaintiff for a consideration of Rs.2.00 lakhs and pursuant to the resolutionsdated 3-12-1997 and 7-12-1998 and the negotiation held on 20-11-1998, a sum of Rs. 50,000/-was paid as advance towards part consideration of the sale price by the plaintiff to the defendant on 25-12-1998. It was further agreed that the rest of the amount would be paid at the time of registration of the sale deed. The defendant was also requested to obtain necessary permission from the Urban Land Ceiling authorities for transfer of the suit land. Though Rs. 50.000/- had been paid towards part of the consideration money, no document could be obtained from the defendant in support of the same as 25-12-1998 was a public holiday and stamps were not available. On the day the defendant received the money he also handed over some original documents relating to the suit land to the plaintiff. Thereafter though the defendant was approached several times for obtaining the permission from Urban Land Ceiling authorities and executing the sale deed, he did not do so. The case of the plaintiff is that though it is ready and willing to pay the balance consideration money of Rs. 1,50,000/-, the defendant is avoiding to execute the sale deed on some plea or the other. On 9-5-2000 the plaintiff came to know that defendant is attempting to transfer the property to somebody else for a higher consideration and therefore, a suit was filed for specific performance of contract. Another application under Order 39. Rules 1 and 2 was also filed for restraining the defendant from alienating the suit property. The averments made in the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure are the same as the averments made in the plaint.
3. The defendant appeared in the Misc.
Case for grant of Injunction and filed his objection challenging the maintainability of the Misc. Case. In the objection the defendant denied all the allegations made in the plaint as well as in the Misc. Case for grant of Injunction. The specific stand taken by the defendant is that no contract had been entered into between the parties at any point of time for sale of the land. No payment was made as claimed by the plaintiff towards part of the consideration money. In absence of any contract or payment of part of the consideration money and undisputedly the defendant being the owner in possession of the disputed land, no Injunction could be granted against him. The specific case of the defendant was that the suit property belonged to his mother and the building standing on the suit land is in possession of tenants. The mother of the defendant died on 16-3-1999 and he succeeded to the property. In the objection also he denied to have signed any document as claimed by the plaintiff.
4. The learned Civil Judge (Senior Division), First Court, though initially had granted an interim order of injunction, as stated by Shri Ashok Mukherji, learned Senior Advocate appearing on behalf of the plaintiff-appellant, ultimately in the impugned order came to hold that the plaintiff appellant had no prima facie case and even if it is assumed that an agreement had been made between the parties for sale of the suit land, the claim of the plaintiff that Rs.50,000/- had been paid towards part of the consideration money is not acceptable. Relying on a decision of this Court reported in (1985) 2 Orissa LR 335 : (AIR 1986 Orissa 74) Sujan Charan Lenka v. Smt. Pramila M. Kumari Mohanty, the learned Civil Judge rejected the prayer for grant of injunction restraining the defendant-respondent from alienating the property.
5. This Court at the time of admission of the appeal by order dated 30-5-2001 directed the defendant-respondent not to alienate the suit property. On the basis of an application filed on behalf of the plaintiff appellant that the building standing on the suit land was being demolished by the defendant respondent, this Court again in Misc. Case No. 597 of 2001 by order dated 8-6-2001 restrained the defendant -respondent from causing any damage to the suit property and the said interim order was con-
tinuing till 20th July, 2001. The prayer for interim injunction in Misc. Case No. 581 of 2001 and No. 751 of 2001 was taken into consideration and by order dated 9-8-2001 on the submission made by the defendant-respondent that he has no intention of either alienating the property or demolishing the same, this Court refused to continue the interim order of injunction, after the said order was passed Misc. Case No. 965 of 2001 was filed on behalf of the plaintiff-appellant stating that in spite of the undertaking given before this Court not to demolish the suit property, the defendant-respondent has already demolished the property and a prayer was made for appointment of a Commissioner. Considering the said application by order dated 28-8-2001, this Court appointed an Advocate Commissioner and pursuant to the said order the Commissioner visited the spot and has submitted a report which forms part the record.
6. Shri Ashok Mukherji, learned Senior Advocate appearing for the plaintiff-appellant, submitted that there are documents to show that there was a negotiation between the plaintiff and the defendant with regard to sale of the disputed property in favour of the plaintiff and the defendant had signed the resolution in which such discussion was recorded. He further submitted that though there is no record to show that Rs.50.000/-had been paid as part of the consideration money in advance, but as a matter of fact, the amount had been paid and the defendant had received it. He further submitted that in view of the undertaking given before this Court by the defendant that he has no intention of either alienating the suit property or demolishing the same, he is bound by such an undertaking and therefore, there is no difficulty in granting an order of injunction and directing the defendant not to alienate the suit property. So far as the demolition is concerned Shri Mukherji submitted that in spite of the undertaking given before this Court, as evident from the Commissioner's report the defendant-respondent has demolished the old structure and has brought up a new structure. Therefore, according to him, it is expedient in the interest of Justice to restrain the defendant respondent also from making any further construction till disposal of the suit.
7. Shri B.H. Mohanty, learned counsel appearing for the defendant-respondent, submitted that the prayer of the plaintiff before the trial Court was only confined to alienation of the suit property. Therefore, the scope in this appeal is also limited to the question of alienation. So far as demolition of the old building is concerned, Shri Mohanty submitted that this Court cannot pass any order as it does not come within the scope of the application filed before the trial Court. In the alternative, Shri Mohanty also argued that even accepting that this Court could also look into the question of demolition of the suit property, it is evident from the Commissioner's report that the old house standing on the suit property was in such dilapidated condition that major repair work was necessary. He further submitted that since the tenants were living in the said old building, it was the duty of the defendant to see that the building is safe to reside.
8. Shri B.H. Mohanty, learned counsel appearing for the respondent relying on some decisions submitted that in the facts and circumstances of this case no order of injunction can be granted. Reference was made to the decision reported in (1985) 2 Orissa LR 335 : (AIR 1986 Orissa 74) (supra) which has also been taken note of by the learned Civil Judge. In the reported case there was an agreement to sell and a part of the consideration money had been paid, this Court on consideration of the facts held that such a contract to sell is merely a document creating a right to obtain another document in the form of sale deed to be registered in accordance with law. In other words, a contract for sale is a right created in personam and not in estate. No privity in the estate can be deduced therefrom which can bind the estate, as is the position in case of mortgage, charge or lease. The Court further observed that such personal right created against the vendor to obtain specific performance can ultimately bind any subsequent transferee who obtains transfer of the property with notice of the agreement of sale. Till, therefore, a decree for specific performance is obtained, the vendor or a purchaser from him is entitled to full enjoyment of the property. Even if a decree for specific performance of contract is obtained, and no sale deed is actually executed, it cannot be said that any Interest in the property has passed.
Reliance was also placed by Shri Mohanty on the decision reported in AIR 1989 Orissa 154 : Lachaman Nepak v. Badankayalu Syama Babu Subudhl. While considering an application under Section 10 of the Code of Civil Procedure, this Court observed that mere agreement of sale cannot create any interest in or charge on the property in view of Section 54 of the Transfer or Property Act and Section 47 of the Registration Act.
Relying on a decision reported in (1995) 5 SCC 598 : (AIR 1996 SC 973) : Namdeo v. Collector, East Neemar, Khandwa, Shri Mohanty also argued that right, title and interest in the land can only stand extinguished only on execution and registration of the sale deed. Shri Mohanty also referred to a decision reported in AIR 1981 Delhi 291 : Jiwan Dass Rawal v. Narain Dass. In the said decision also the Court observed that in a contract for sale a right is created in personam and not in the estate.
9. Shri Ashok Mukherji, learned Senior Advocate, on the other hand, submitted that even if the Court does not find a prima facie case, in exercise of inherent power under Section 151 of the Code of Civil Procedure can grant the relief if it is satisfied that such an order of injunction should be granted in the interest of justice. According to Shri Mukherji if no order of injunction is granted and the suit property is allowed to be alienated, in the event of success in the suit the plaintiff would go without any remedy. Reliance is placed by Shri Mukherji on a decision reported in AIR 1962 Supreme Court 527 : Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hlralal, where it has been held as follows (Para 18) :
" There is difference of opinion between the High Courts on this point. One view is that a Court cannot issue and order of temporary injunction if the circumstances do not fall within the provisions of Order XXXIX of the Code : Varadacharlu v. Narasimha Charlu, AIR 1926 Mad 258; Govindarajulu v. Imperial Bank of India, AIR 1932 Mad 180; Karuppayya v. Ponnuswami, AIR 1933 Mad 500 (2); Murugesa Mudali v. Angamuthu Mudali, AIR 1938 Mad 190 and Subramanian v. Seetaramma, AIR 1949 Mad 104. the other view is that a Court can issue and interim injunction under circumstances which are not covered by Order XXXIX of the Code, if the Court is of opinion that the interests of Justice require the issue of such interim injunction : Dhaneshwar Nath v. Ghanashyam Dhar, AIR 1940 All 185; Firm Bichchha Ram Baburam v. Firm Baldeo Sahai Surajmal, AIR 1940 All 241: Bhagat Singh v. Jagbir Sawhney, AIR 1941 Cal 670 and Chinese Tannery Owners' Association v. Makhan Lal, AIR 1952 Cal 560. We are of opinion that the latter view is correct and that the Court have Inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order XXXIX, C.P.C. There is no expression in Section 94 which expressly prohibits the issue of temporary injunction in circumstances not covered by Order XXXIX or by any rule made under the Code. It is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is in capable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression if it is so prescribed is only this that when the rule prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of Justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary Injunction, but it could do that in the exercise of its inherent Jurisdiction. No party has a right to Insist on the Court's exercising its Inherent jurisdiction and the Court exercises Its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise the inherent power."
This Court in another case reported in (1972) 38 Cut LT 217 : while considering the scope of Section 151 of the Code of Civil Procedure observed that when the grounds are not covered by Order 39 of the code, strictly speaking there may be no bar for the Court to exercise inherent power in granting temporary injunction, provided the Interest of justice requires the issue of the same.
10. In the light of the aforesaid decisions, the case of the plaintiff-appelllant is required to be examined. Undlsputedly there is no written agreement between the parties for sale of the property. Plaintiffs case is that ft was an oral agreement. In support of such contention/plea reliance is placed by the learned counsel for appellant on a notice issued to the defendant respondent to attend a meeting of the Unnayana Samiti as well as the resolution passed by the Unnayana Samiti taking a decision to purchase the suit land from the defendant respondent. It is stated by Shri Mukherji that the said resolution was signed by the representatives of the Unnayana Samity as well as the defendant respondent. The existence of signatures of the defendant respondent on the resolution is seriously disputed by the defendant. Though a claim has been made that Rs. 50,000/- was paid towards part consideration, there is no document on record in support of the same. This averment is also seriously disputed by the defendant respondent. Therefore what remains undisputed is that the defendant had been issued with a notice to attend the meeting convened by the members of the Unnayana Samiti. Shri Mukherji also submitted that the original title documents of the suit property is in possession of the plaintiff and therefore, the Court should take Judicial notice of the same and hold that there was at least an oral agreement between the parties for sale of the property in response to which the original documents relating to the suit property had been handed over to the plaintiff-appellant. He also referred to the voters list of Ward No. 15 of Cuttack town and submitted that the plea of the defendant that he was staying in the disputed house was not correct and the voters list of Ward No. 15 of Cuttack town shows that he was residing in Beparisahi. Even accepting the aforesaid contention of the learned counsel for appellant, I am of the view that this does not satisfy the requirements of Order 39, Rule 1, C.P.C.
11. Now the question arises as to whether this Court in the present facts and circumstances should exercise the inherent power under Section 151 of the Code of Civil Procedure. In view of what has been decide by the Apex Court in the case of Mohohar Lal Chopra (AIR 1962 SC 527) (supra) there cannot be any doubt in the mind that this Court can exercise jurisdiction under Section 151 of the Code and pass an order of injunction. There are one or two circumstances which are in favour of the plaintiff, such as possession of the original documents relating to the title of the suit land by the plaintiff. The learned counsel appearing for the respondent neither disputed such contention nor gave any explanation as to how the original documents relating to the title of the suit property came into the hands of the plaintiff. There is also a notice which was served on the defendant to attend a meeting and reliance is also placed on a resolution passed by the Unnayana Samiti. Further more, during hearing of a Misc. Case (Misc, Case No. 581 of 2001) arising out of this Appeal, a specific undertaking had been given by the respondent that he has no intention of selling the property since it is needed for necessity and livelihood of the defendant-respondent. Considering such undertaking, earlier this Court had refused to continue the interim order any further. Though this Court holds that it has jurisdiction under Section 151 of the Code of Civil procedure for granting an order of injunction in favour of the plaintiff-appellant, in view of the undertaking given by the defendant respondent in this Court that he has no intention of selling the property, I do not think any order of injunction is necessary. The defendant shall be bound by such undertaking given before this Court.
12. Coming to the question of demolition it is argued by Shri Mohanty that the application before the trial Court was only for grant of injunction restraining the defendant respondent from alienating the suit property and therefore, the scope of the appeal is only confined to the question of alienation and it cannot be expanded. I fully agree with the contention of the learned counsel for the respondent. Shri Mukherji, learned counsel appearing for the plaintiff-appellant relying on some decisions submitted that the Court in appropriate cases can mould the relief. I have not referred to those decisions since there is no dispute about such proposition of law.
13. Though the question as to whether an order of injunction should be granted restraining the defendant respondent from demolishing the house is not within the purview of the appeal, I have no other way except dealing with the matter since this Court in Misc. Case No. 597 of 2001 by or-
der dated 8-6-2001 had directed the defendant respondent not to cause any damage to the suit property and the said interim order continued till 9-8-2001. Whether there was any violation of the said Interim order or not, is to be seen in the light of the report of the Commissioner who had been deputed by this Court by order dated 28-8-2001. As it appears from the Commissioner's report major parts of the building including the roof have been replaced. From the photographs submitted by the Advocate Commissioner also it appears that the defendant-respondent appears to have undertaken major renovation work in the building. It was contended by Shri Mohanty, learned counsel appearing for the defendant respondent, that tenants were staying in the disputed building and it got damaged to such an extent that it was unsafe for the tenants to remain under the roof, Therefore, such major repair work had to be undertaken, though this court had directed the Commissioner to also submit a report whether such major repair was at all necessary or not, the Commissioner has expressed his inability in giving his report in this regard, as the walls and roof of the old structure had already been replaced. Under these circumstances, it is not possible to come to a definite finding as to whether such major repair work was at all necessary and it may require oral evidence to be adduced and it may also require the report of a .technical person. All these exercises cannot be done by this Court.
14. Another question that may arise is whether the major repair works were undertaken when the interim order was in operation or not. I, therefore, think it fit to leave this matter for the trial Court to decide. Earlier this Court by order dated 9-8-2001 has sent the application in Misc. Case No. 751 of 2001 to the trial Court to find out as to whether there has been a violation of the interim order or not. and to submit a report within two months. The matter appears to be still pending before the trial Court. 1, therefore, in modification of the order dated 9-8-2001, direct the trial Court to look into the question of violation of the order of injunction so far as it relates to the demolition of the house in terms of the order dated 9-8-2001 and instead of sending the report to this Court, the trial Court may pass appropriate orders, if it finds that there has been violation of the interim order. Before passing such orders, the trial Court also shall look into the fact as to whether such major repairs were at all necessary or not.
15. With the aforesaid observations and directions the appeal is disposed of. No costs.