Jharkhand High Court
Sr. Prasanna vs Arbind Kumar on 22 October, 2019
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.3444 of 2019
---------
Sr. Prasanna ......... Petitioner
Versus
1. Arbind Kumar
2. Harold Anand Kumar Mundle .......... Respondents
---------
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
---------
For the Petitioner : Mr. Rahul Kumar Gupta, Advocate
: Mr. S.R. Soren, Advocate
For the Respondents :
---
05/22.10.2019 Learned counsel for the petitioner, at the outset, has sought for
leave of this Court to delete the provision of Article 226 of the Constitution of India, under which, also the jurisdiction of this Court has been invoked apart from Article 227 of the Constitution of India.
2. It has been submitted that since the judicial order is under challenge, as such, the writ petition ought to have been filed only under Article 227 of the Constitution of India under its supervisory jurisdiction but due to inadvertence Article 226 has also been inserted along with Article 227.
3. This Court after considering the aforesaid submission deem it fit and proper to accord such liberty to the petitioner.
4. In view thereof, the petitioner is directed to make necessary correction in the cause title of the writ petition by deleting Article 226 of the Constitution of India.
5. The order dated 13.05.2019 passed in Civil Appeal No.20 of 2018, by which, petition filed under Order 41 Rule 5 of the CPC, has been rejected.
6. The brief facts of the case as per the material available on record is that respondent no.1/plaintiff has instituted a suit being title suit no.65 of 2005 with a prayer that a decree of declaration passed declaring defendant as liable and bound to execute the registered sale deed for the suit property under the specific performance of contract under Specific Relief Act.
2The plaintiff and defendant namely Harold Anand Kumar Mundle have entered into an agreement on 02.06.2003 of sale which is admitted by the petitioner/appellant in his written statement at para- 12 and he has also agreed to execute the sale deed in the name of the plaintiff without permission being taken from the trial Court and during pendency of the suit, the respondent no.2 has executed and registered a sale deed in favour of the appellant of Title Appeal No.20 of 2018.
The decree holder has filed an execution case being Execution Case No.01 of 2018. The plaintiff/judgment debtor/appellant has filed a petition under Order 41 Rule 5 on 09.07.2017 as also the supplementary petition on 24.04.2019 stating therein that the appellant since has preferred an appeal against the judgment and decree dated 23.02.2018 on 12.03.2018 passed in Title Suit No.65 of 2005 and as such, the prayer for grant of ad-interim stay has been sought for but the same has been rejected vide impugned order, therefore, the same is under challenge in this writ petition.
7. Mr. Rahul Kr. Gupta, assisted by Mr. S.R. Soren, learned counsel for the petitioner has submitted by referring to the scope of Order 41 Rule 5 of the CPC which has been incorporated under the statute for stay of execution, if the Court is satisfied that substantial loss may result to the party, applying for stay of execution, unless the order is made, application has been made without unreasonable delay and the security has been given by the applicant for due performance of such decree or order as may ultimately be binding upon him and according to the petitioner all three conditions as provided under the said provision, is available but even then the petition has been rejected.
Further submission has been made that the petitioner has got prima-facie case as also balance of convenience lies in his favour and if ad-interim stay would not be passed, he will suffer irreparable loss.
8. According to the petitioner, he has got prima-facie case as because as per the plaint itself, the ingredients for suit for specific performance is not being attracted and that is the ground of appellant for assailing the order passed by the trial Court.
39. This Court has heard the learned counsel for the petitioner and after going across the material available on record, deem it fit and proper to first deal with the statutory provision along with the position of Law in granting ad-interim stay before delving into the legality and propriety of the impugned order.
The first provision which needs to refer herein as contained under Order 41 Rule 5 which read as hereunder:-
"5. Stay by Appellate Court.-(1)An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
(2) Stay by Court which passed the decree.-Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub- rule (1) or sub-rule (2) unless the Court making it is satisfied-
(a) that substantial loss may result to the party applying for stay of execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
(4) [Subject to the provisions of sub-rule (3)], the Court may make an ex-parte order for stay of execution pending the hearing of the application.
(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree."
10. It is evident from the provision of Order 41 as per the condition provided therein first provides that an appeal shall not operate as stay of proceeding under the decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed merely because an appeal has been preferred, but the Appellate Court may for sufficient cause order stay of execution of such decree.
The first clause applies to proceeding and the second to execution of decree and in the second clause, the Appellate Court in order to pass ad-interim stay is required to see the sufficient cause but the circumstances contemplated in Rule 5 are different.
4The appellate Court is not to stay execution unless the conditions are fulfilled, the nature of which is indicated in sub-rule (3) of Rule 5 of that Rule and the said power is to be exercised only if the conditions enshrined therein have been found to be fulfilled.
Order 41 Rule 5 is required to be passed if the substantial loss may result to the party applying for stay of execution.
"Substantial loss" means and includes that even by obtaining restitution the appellant if he were to succeed in the appeal, will not be restored to the full benefits of the decree which may ultimately be passed in his favour, but not the mere temporary deprivation of the use or benefit he would have and if the decree-holder is not permitted to execute a decree which he has the right to execute, unless the Court has reason to believe that restitution wholly or partly cannot be had from the party seeking stay order.
It has been laid down in the judgment rendered in the case of Anandi Prashad Vrs. Govinda Bapu, reported in AIR 1934 Nagpur 160 wherein it has been observed that:-
"it is not enough merely to repeat the words of the Code and state that substantial loss will result; the kind of loss must be specified, details must be given and the conscience of the Court must be satisfied that such loss will really ensue."
The only guiding factor indicated in Rule 5, is to exist sufficient cause in favour of the appellant on the availability of which, the appellant court would be inclined to pass an order of stay.
Reference is also required to be made about the principle governing the field while granting ad-interim stay by the Court of Law as has been held by the Hon'ble Apex Court in the case of M. Gurudas & Ors. Vrs. Rasaranjan & Ors., reported in AIR 2006 Supreme Court 3275, wherein at para-19, it has been laid down that while considering the application for injunction, the Court should pass an order thereupon having regard to:
(i) Prima facie
(ii) Balance of convenience
(iii) Irreparable injury.
5
11. The finding on "prima-facie" case would be a finding of fact. However, while arriving at such finding of fact, the Court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist.
Apart from prima-facie case, the other consideration must be with regard to balance of convenience of the parties as also the irreparable loss which might be suffered by the plaintiff if the prayer for injunction is to be refused.
The same view has been reiterated in the case of Seema Arshad Zaheer and Ors. Municipal Corpn. of Greater Mumbai and Ors., reported in (2006) 5 SCC 282, the relevant point is at para-30 of the said judgment.
In another judgment rendered in the case of M/s. Best Sellers Retail (India) Pvt. Ltd. Vrs. M/s. Aditya Birla Nuvo Ltd. and Ors., reported in AIR 2012 Supreme Court 2448 by making reference of the judgment rendered by the Hon'ble Apex Court in the case of Dalpat Kumar and Anr. Vrs. Prahlad Singh and Ors., reported in (1992) 1 SCC 719, it has been laid down therein at para-14 which reads as hereunder:
"14. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable."
12. On the basis of the statutory provision and the settled legal position, the legality and propriety of the order has been scrutinized by this Court as also the factual aspect.
13. Although, the copy of the plaint and decree is not the part of the pleading but in course of argument, the copy of the plaint and the judgment passed by the trial court have been supplied.
It has been found from the plaint that suit for specific performance has been filed for performance of agreement dated 02.06.2003 to be executed and by transferring the land by virtue of registered sale deed within two years from 02.06.2003 and in view of the validity period of the agreement, the sale deed was to be executed through registered sale deed by the defendant on or before 02.06.2005 but it was agreed by the defendant that so long the full consideration 6 money was not paid by the plaintiff, therefore, he cannot be proceeded with any construction thereupon but he was allowed only to identify the land plot-wise for the purpose of sale by him if any.
The plaintiff, thereafter, on many occasion requested the defendant to receive the consideration money of Rs.21 lakhs and to execute and registered the sale deed as also the plaintiff was ready to pay the balance consideration money to the defendant immediately but the defendant has given no heat and in this backdrop, the suit has been filed for specific performance of the agreement dated 02.06.2003.
14. Written statement has been filed by the defendant, wherein the stand has been taken by the plaintiff in the plaint to the effect that he was ready with balance sum of Rs.21 lakhs has been disputed.
The trial Court after appreciating the stand taken by the parties as also relying upon the evidence produced before it, has delivered the judgment on 23.02.2018.
In the meanwhile, during the pendency of the suit, the defendant no.1 has sold out the property in favour of the present petitioner who thereafter, has filed an application for his impleadment and accordingly, he has been impleaded party to the proceeding.
15. The present petitioner being aggrieved with the judgment/decree has preferred an appeal being Civil Appeal No.20 of 2018.
In the meanwhile, the plaintiff has filed execution case being Execution Case No.01 of 2018.
The petitioner thereafter, has filed a petition under Order 41 Rule 5 of the CPC for stay of further proceeding of the Execution Case No.01 of 2018 but the same has been rejected by the appellate court, assigning the reason as would appear from the impugned order that the petitioner has purchased the landed property in question with full knowledge of pendency of the suit which is to govern under Section 52 of the Transfer of Property Act and as such, the judgment debtor has got no prima-facie case asking any order of the execution case no.01 of 2018.
16. The appellate court has taken into consideration the principle of granting ad-interim stay by holding in the impugned order that there 7 is no prima facie case, balance of convenience and irreparable loss to the appellant as has been reflected hereinabove about the applicability of the provision of Order 41 Rule 5 that before passing an order for stay, the Court is required to be satisfied about the substantial loss which will result to the parties applying for stay of execution, unless the order is made.
17. Admittedly, the petitioner has purchased the landed property in course of pendency of the trial without leave of the Court knowing its consequence as provided under Section 52 of the Transfer of Property Act and as such, the petitioner has got no prima facie case in his favour and further even if, there is prima-facie case it itself is not sufficient to grant injunction as because, the Court, is further to be satisfied that no interference of the Court would result in irreparable injury to the party for seeking relief and there is no other remedy available to the party except one to grant injunction and he needs protection from the conclusion of the apprehended injury or its position, but no such ground is available as would appear from the impugned order.
18. It is further required to be referred that Section 52 of the Transfer of Property Act speaks about the theory of lis pendens which means and includes as has been held in the case of Jaya Ram Mudaliar Vrs. Ayyaswami and Ors., reported in (1972) 2 SCC 200, wherein, lis pendens has been defined which reads as hereunder:-
"lis pendens literally means a pending suit; and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein."
It was observed there "expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the court to deal with it and thus make the proceedings infructuous."
It was observed there "the doctrine of lis pendens intended to strike and attempts by the parties to a litigation to circumvent the jurisdiction of the Court, in which a dispute on rights or interests in 8 immovable property is pending by private dealings which may remove the subject matter of litigation from the ambits of the Court power to decide a pending dispute to frustrate its decree. Alieness acquiring any immovable property during a litigation over it, are held to bound by application of doctrine, by the decree passed in the suit even though they may not have been impleaded in it.
The whole object of the doctrine of its pendens is to subject parties to the litigation as well as others who seek to acquire rights in immovable property which are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of the pending action from being defeated.
19. As has been held by the Hon'ble Apex Court in the case referred hereinabove the principle governing for granting ad-interim stay i.e., prima facie, balance of convenience and irreparable loss.
The prima facie would be finding of fact and apart from that it is to be considered within respect to the balance of convenience also irreparable injury.
20. The admitted position in this case is that the petitioner has purchased the property in course of pendency of the suit consciously knowing about the consequence of the provision of Section 52 of the Transfer of Property Act and as such, it cannot be said that petitioner is having prima facie case and further the balance of convenience not lies in his favour as because the petitioner only in order to frustrate the agreement has entered into the shoes of the original title holder and as such the balance of convenience more lies in favour of the plaintiff to the suit and further it is also not a case of irreparable injury, which cannot be compensated in terms of money.
Further, it appears from the impugned order that appearance of the parties in that appeal is completed.
21. This Court in view of the detailed discussion made hereinabove has found therefrom that the impugned order does not require any interference for the following reasons:-
(i) the petitioner has got no prima-facie case since he has purchased the landed property in course of pendency of the suit and also he has been impleaded as party but irrespective of the fact that he 9 has been impleaded as party, he is to govern by the principle of lis pendens as per the theory of lis pendens as has been referred while referring the judgment of the Hon'ble Apex Court in the case of Jaya Ram Mudaliar (supra).
When the petitioner is conscious about his right on the ground of principle of lis pendens, it cannot be said that he has got prima facie case in this favour for passing ad-interim stay;
(ii) the condition stipulated under Order 41 Rule 5 is required to be followed and the very first condition pertains to showing substantial loss but no such plea about substantial loss by making specific stand of substantial loss has been taken since nothing is being transpired from the impugned order and furthermore, the application filed under Order 41 Rule 5 has not been annexed for its appreciation by this Court;
(iii) The petitioner has failed to make out a case by not furnishing the details of substantial loss as required to be referred as has been laid down in the case of Anandi Prashad Vrs. Govinda Bapu (supra), although the same has been reflected hereinabove but in the risk of repeating the same is being reiterated "it is not enough merely to repeat the words of the Code and state that substantial loss will result; the kind of loss must be specified, details must be given and the conscience of the Court must be satisfied that such loss will really ensue" which have not found available, no relief under the said provision can be passed;
(iv) The balance of convenience also does not lies in favour of the petitioner due to applicability of theory of lis pendens and therefore, it cannot be said that the petitioner will suffer irreparable loss.
22. This Court, therefore, is of the view that while refusing to grant stay, the appellate court has considered the factual aspect vis-a-viz the provision of Order 41 Rule 5 of the CPC as also the provision governing for passing of order of ad-interim stay.
23. Accordingly, this Court is of the view that there is no error apparent on the face of record warranting any interference by this Court under Article 227 of the Constitution of India.
1024. In view thereof, the writ petition fails and it is dismissed.
(Sujit Narayan Prasad, J.) Rohit/-