Gujarat High Court
Jayantibhai Chunibhai Patel & 3 vs Prabhaben D/O Shivaji Sartanji Vaghela ... on 24 December, 2014
Bench: Akil Kureshi, Vipul M. Pancholi
C/CA/14309/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 14309 of 2014
In
FIRST APPEAL NO. 264 of 2013
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JAYANTIBHAI CHUNIBHAI PATEL & 3....Applicant(s)
Versus
PRABHABEN D/O SHIVAJI SARTANJI VAGHELA & 7....Respondent(s)
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Appearance:
MR ANSHIN DESAI for MR NITIN K MEHTA, ADVOCATE for the
Applicant(s) No. 1 4
MR MJ PARIKH, ADVOCATE for the Respondent(s) No. 1 6 , 8
MR N P CHAUDHARY, ADVOCATE for the Respondent(s) No. 7
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 24/12/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Applicantsappellants seek interim order pending First Appeal restraining the opponents, their agents and servants from dealing with in any way the suit land or alienating, transferring or creating any encumbrance or mortgage or charge over such property.
2. The First Appeal is filed by the original plaintiffs, whose suit for specific performance was dismissed by the trial Court. At the time of admission of the First Appeal, their request for interim injunction made in Civil application No.1206 of 2013 was considered by the Division Bench of this Court under an order dated 17 th April 2013. It would be necessary to reproduce the entire order.
Page 1 of 5 C/CA/14309/2014 ORDER"This is an application for injunction restraining the respondents from transferring, alienating or encumbering the property, and also from changing the nature and character of the same, till the disposal of the appeal preferred against the dismissal of the Suit preferred for specific performance of contract filed by the appellant.
At the very outset, Mr. Sudhir Nanavati, the learned Senior Counsel appearing on behalf of the defendants Nos. 1 to 6 and 8, the original owner of the land, after taking instruction from his clients, submitted that his clients undertake before this Court that without taking leave of the Court, they will not change the nature and character of the property as it stands now, and such undertaking will be filed before the Court within a fortnight from today.
Regarding the other part of the prayer, namely transfer, alienation or encumbrance, it appears that there is an agreement for sale in favour of the respondent Nos.7 and 8.
In our opinion, in a Suit for specific performance of contract, the plaintiff is vitally interested in getting an order of injunction restraining the defendants from changing the nature and character of the property, because if such injunction is not granted and at the same time, if ultimately it is established that there was a valid agreement for sale, the Court may refuse to grant the decree for specific performance of contract, and instead of that grant alternative remedy of damages etc. if it is found that in the absence of any injunction, a new construction is made thereon. But so far as the interim relief of restraining the defendants from transferring or alienating the property is concerned, the transferee cannot resist the decree for specific performance of contract if such transfer takes place after the filing of the Suit. In other words, the transferee will be bound by the doctrine of lis pendens. Therefore, since the appeal is pending before us, even if the property is transferred, the transferee will be bound by the ultimate decree that may be passed. It is needless to mention that transferee also cannot violate the undertaking given by his transferor as regards the nature and character of the property. Such being the position, we are of the opinion that there is no necessity of passing separate order of injunction restraining the defendants Nos. 1 to 6 from transferring the property to defendants Nos.7 and 8, but we keep on record that in the event such transfer takes place, defendants Nos. 7 and 8 or their successors will be bound by the undertaking given on behalf of their transferor. With this Page 2 of 5 C/CA/14309/2014 ORDER observation, we dispose of the Civil Application. We, however, expedite the hearing of the Appeal, as the parties have already entered appearance and the paperbook has already been filed. Let the appeal come up for hearing one week after the reopening of the Court.
We further make it clear that the pendency of this appeal will not stand in the way of the respondents Nos. 1 to 6 in taking steps before the Revenue authority for converting the land from agriculture to nonagriculture, but on the basis of the order of conversion, if any, the nature and character of the property should not be changed."
3. Perusal of the said order would suggest two things. Firstly that the Court desired that, pending the First Appeal, the respondents would not change the nature and character of the property as it stands and an undertaking to that effect will be filed before the Court. Second aspect emerging from said order is that the appellants' request for stay against the transfer of the property was, by reasoned order, declined. The reasons cited by the Court were that any further transfer of the suit property would be covered by the doctrine of lis pendence and even if such property is transferred, the transferee will be bound by the ultimate decree that may be passed. It was, however, clarified that the transferee would also be bound by the undertaking of not changing the nature and character of the property. It was further clarified that the respondents could take the steps before the revenue authorities for converting the land from agriculture to nonagricultural use but on such basis of conversion the nature and character of the property should not be changed.
4. Clearly therefore the Court consciously declined any injunction against further sale, transfer or encumbrance of the property. This Civil Application in which the prayer is repeated, therefore, cannot be granted.
5. Learned counsel, Shri Anshin Desai, however, vehemently Page 3 of 5 C/CA/14309/2014 ORDER contended that even while the stay order was being passed some of the opponents had entered into agreements to sell, such facts were not disclosed to the Court. Civil proceedings are pending by the intending purchasers for specific performance, in which interim orders are passed. According to him, the respondents were duty bound to disclose all these facts to the Court and had such facts been disclosed, the Court would have been persuaded to grant injunction as prayed for. Since the applicants came to know about such facts later on, according to him, this presented change in circumstances permitting the Court to reexamine the issues.
6. In our opinion, however, this Court very consciously declined any stay against the transfer of the property. Only limitation imposed was not to change the nature and character of the property either by the present respondents or the transferees, if the property in the meantime is transferred. The refusal to grant stay was not based on any statement made by any of the respondents that they are not intending to or would not be transferring the property. Had that been so, their conduct of having already entered into an agreement to sell, which itself is a subject matter of civil litigation and not disclosing such facts to the Court, would be relevant. However, when the Court was of the opinion that pending appeal there is no need for stay against transfer of the property since the transferee would be bound by the principle of lis pendence, non disclosure of the existing agreements to sell in our opinion would be of no consequence. In other words, even if such agreements were on record, the plain reading of the order dated 17th April 2013 convinces us that the outcome would not have been different. In the result, this Civil Application is dismissed. If the applicants are of the opinion that any development pending the civil litigation may prejudicially affect them, it would be open for them to pursue such legal remedies with respect to Page 4 of 5 C/CA/14309/2014 ORDER the same as may be available in law.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) *malek Page 5 of 5