Rajasthan High Court - Jaipur
Surendra Kumar Baid vs Rajendra Kumar Baid on 12 September, 2001
JUDGMENT Madan, J.
1. Surendra Kumar Baid, appellant herein who is defendant in the suit filed by Rajendra Kumar Baid the, plaintiff-respondent herein the challenged the order dt. 27.10.99 (impugned in the appeal) passed by Addl. District & Sessions Judge No. 2 Jaipur in Civil Misc. Application No. 70/98 (121/98) whereby the application under Order 39 Rules 1 & 2 C.P.C. filed by the plaintiff for granting interim injunction was allowed.
2. The plaintiff filed a suit for Specific Performance of the agreement dated 15.12.1983 executed with the defendant-appellant regarding an immovable properly, for recovery of its maintenance charges and permanent injunction in the Court of District Judge, Jaipur City, Jaipur on 30.7.98. Alongwith the plaint an application for grant of temporary injunction under Order 39 Rules 1 & 2 C.P.C. was also filed. The said application was allowed by the trial Court vide order dt. 27.10.99 (impugned) restraining the defendant not to transfer, alienate or dispose of the property in dispute pending hearing and final disposal of the suit. The relief sought for in the suit was for specific performance of the agreement in question for sale consideration of Rs. 40,000/- which the defendant is purported to have received from the plaintiff for handing over the peaceful possession of the property to the plaintiff.
3. The total area of the property as the been indicated in the plaint is 131.71 sq.metre, out of which 73.33 sq.metre is the covered area while the remaining 58.38 sq.metre is open. It has been averred in the plaint that on 15.12.83 on the basis of agreement of sale executed between the parties, the suit property was agreed to be sold by the appellant against the consideration of Rs. 40,000/- to the plaintiff.
4. In para 14GA of the plaint it has been prayed by the plaintiff as under:-
^^ ¼x½ nkok oknh fo#ð izfroknh fMxjh Qjek;k tkdj izfroknh dks tfj;s fu"ks?kkKk ikcUn Qjek fn;k tkos fd izfroknh oknxzLr lEifr of.kZr en uEcj&1 ¼,d½ okn&i= dks fdlh vU; ds ge esa jgu] foØ;] fod;] c['kh vFkok vU; izdkj ls gLrkUrfjr ugha djs vkSj bldk dCtk Hkh fdlh vU;
dks ugha lEHkykosA**
5. Contrary to the prayer made as aforesaid in the plaint, in the application seeking relief of temporary injunction it has been prayed that the appellant be restrained not to transfer the land in question nor to dispossess its' occupants in any manner.
6. In para 2 of the application filed under Order 39 Rules 1 & 2 CPC it has been further contended that the property in dispute had been purchased in the name of the defendant who was minor at the time of execution of the sale agreement. The property was registered in the office of Sub Registrar, Jaipur vide Registration No. 1776 on 17.6.74. On attaining the age of majority, the defendant decided to sell the property and since the plaintiff was his real elder brother, taking all the circumstances into view, he decided to execute the sale agreement in his favour on 15.12.83 against the sale consideration of Rs. 40,000/-. In the prayer clause it has been prayed in the application that the defendant be restrained not to transfer, sell or alienate the property in question to anyone else pending hearing ad disposal of the suit.
7. In reply to the plaint, defendant controverted the aforesaid contentions of the plaintiff by specifically contending inter- alia that as on the date when the agreement was executed, the plaintiff was not having any concluded right in his favour. From the prayer made in the suit itself, it was apparent that the plaintiff was not in possession of the property in dispute and it is settled principle of law that no injunction can be granted in favour of a party who is not in possession of the property. The requirement of the provisions of Order 39 Rules 1 2 are not attracted to the instant case. Rules 1 & 2 CPC specifically stipulates, as under:-
" 1. Cases in which temporary injunction may be granted - Where in any suit it is proved by affidavit or
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of " his property with a view to (defrauding) his creditors,
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.
2. Injunction to restrain re-petitioner on or continuance of breach-(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment,, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, of any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit."
8. While assailing the property of impugned order, it was contended by the learned counsel for the defendant-appellant that the trial Court has gravely erred in not taking into consideration that it had acted contrary to the well settled principles of law in granting the relief of injunction in favour of the plaintiff who was admittedly not in possession of the properly in suit as on the date when the suit was instituted. In this respect, reliance was placed by the counsel for the appellant on the ratio of following decisions:-
Smt. Chandra Kumari v. State and Ors. (1); The Agriculture Produce Market Committee Gondal and Ors. (2); Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Anr. (3).
9. In Smt. Chandra Kumari (supra), this Court held that the person holding title but not in possession in not entitled to the relief of temporary injunction.
10. Admittedly, the plaintiff has himself claimed the relief on the basis of the agreement, execution of which has been specifically denied by the defendant since on the date of execution of the agreement itself, the plaintiff was not having any legal right in his favour as the defendant was minor at that time. Since no legal right had accrued to the plaintiff and this aspect of the matter could only be decided by the trial Court in the suit in the event of it having allowed the parlies to lead evidence, the trial Court was not justified in granting relief of injunction to the plaintiff particularly when he was not in possession of the suit property on the date of filing the suit.
11. In the matter of Agriculture Produce Market Committee- Gondal (supra), the question which arose for consideration before the Apex Court in appeal was as to whether the respondent had any right to be enforced by way of injunction? In the said appeal, Market Committee was constituted under the provisions of the Gujarat Agricultural Produce Markets Act, 1963. Under the said Act, the Market Committee is under the statutory obligation to declare the notified market area for the purpose of regulating the purchase and sale of notified agricultural produce within the notified market and to establish it. As a facet thereof, advertisement had been published inviting offers from the interested persons for allotment of shops in new market yard vide notification dated 23.11.1991. The existing shop holders were informed that if they were interested to surrender the shops in the existing market area, they would be granted shop in the new market yard. In lieu thereof they were required to pay for the value of the shop equal to 7 years' capitalised rent. After the advertisement so made, respondents No. 1 & 2 filed a suit for perpetual injunction in a representative capacity under Order 1, Rule 8 CPC restraining the Market Committee from making allotment of the shops and ad-interim injunction under Order XXXIX, Rule 2 CPC was sought for and was granted by the trial Court. On appeal, it was confirmed by the High Court. It was held by the Apex Court that while dealing the application seeking relief of temporary injunction within the scope and applicability of Order 39 Rules 1 & 2 read with Sections 36 & 37 of the Specific Relief Act. 1963, the respondents do not have at present any concluded right to seek for enforcement against the Market Committee. At best, they have got a right to apply for an seek allotment in respect of those who are governed by the second category. We are not concerned in this case with the first category because they are not seeking any relief by way of perpetual or temporary injunction in this behalf. Since the respondents are not having any concluded right at present, the Court has not applied its mind to consider what would be the right which is claimed to be infringed. The Apex Court further held that since the right of the respondents is still in embrayo even Order 39 Rule 2 CPC is inapplicable and the enforcement thereof is also unthinkable hence, the High Court was not justified in enlarging the scope of relief which was not even sought for in the trial Court.
12. Part III of the Specific Relief Act, 1963 deals in that behalf by way of preventive relief. Section 36 postulates that preventive relief is granted at the discretion of the Court by injunction, temporary or perpetual which is regulated by Section 37 of the Act.
13. Likewise, in the matter of Dwarikesh Sugar Industries Ltd. (supra), it was held by the Apex Court that Court ought not to issue injunction restraining the bank from fulfilling it's contracted obligation in terms of guarantee as in the present case in it's letter dt. 24.11.1995 respondent No. 1 had clearly admitted that entire supply had not been made hence, the High Court was not justified in granting injunction invoking principle of undue enrichment which has no application.
14. I have examined the ratio of the aforesaid decision and in may view they are fully attracted to the facts of the instant case.
15. It was next contended by the learned counsel for the appellant that keeping in view the provisions of Section 52 of the Transfer of Property Act, 1882 no injunction could be granied restraining the party to transfer or alienate the property because it protects the right of the plaintiff and every sale or purchase made during the pendency of the suit is hit by doctrine of lis-pendence. In this regard reliance was placed by the counsel on the following decision:-
Sarvinder Singh v. Dalip Singh and Ors. (4), Agrawal and Co. v. State of Rajasthan (5) etc.
16. Mr. G.C. Garg, learned counsel for the appellant further contended that the plaintiff had filed the suit before the trial Court in the year 1998 after a lapse of 15 years while the agreement to sell was executed between the parties on 15.12.1983 hence, the suit was not maintainable as the same was barred as per Article 54 of the Limitation Act which prescribes the limitation of three years for filing such suits.
17. Mr. B.L. Agrawal, learned counsel for the respondent controverted the aforesaid contention of Mr. G.C. Garg by placing reliance on the following decisions:-
Mahesh Chand Heda and Anr. v. Mahesh Prasad (6) and Smt. Rama Devi and Ors. v. The Sanganer Cooperative Housing Society Ltd. (7).
18. I have examined the contentions advanced by the learned counsel for the parties and also the ratio of the aforesaid decision on which learned counsel for the parties have placed reliance.
19. Prima-facie, I am of the view that the trial Court has committed a grave error of law by granting relief of interim injunction in favour of the plaintiff-respondent. It should have taken into consideration the fact that as on the date of institution of the suit, the defendant appellant was in possession of the suit property and as per the guidelines laid down by the Apex Court in the matter of Smt. Chandra Kumari (supra) that though the person holding title but who is not found in possession of the property on the date when the suit is instituted is not entitled to relief of temporary injunction. Hence, I am of the considered opinion that without determining the legal rights of either party to the proceedings in the main suit notwithstanding the fact on record that the defendant- appellant was in possession of the suit property as on the date of institution of the suit, the plaintiff responded was not entitled to get the temporary injunction; particularly when the suit for specific performance of the agreement in question the exact position on the basis of evidence was yet to be determined in the light of the evidence to be led by the parties and as such, no prima-facie conclusion could be arrived at the threshold when the suit itself is pending adjudication.
20. Apart from above, the suit itself having been filed beyond the statutory limit of three years as per Article 54 of the Limitation Act i.e. after the lapse of 15 years was barred by limitation and in my view, the trial Court has erred in not taking into consideration this important legal aspect regarding maintainability of the suit. Hence, the impugned order is not sustainable,
21. In view of the above discussion, I am of the considered opinion that the impugned order is not sustainable in the eyes of law and it deserves to be quashed and set-aside.
22. Consequently, the appeal is allowed. The impugned order dated 27.10.1999 passed by ADJ No.2, Jaipur City, Jaipur in Civil Misc. Application No. 70/98 (121/98) in Suit No. 81/98 is quashed and set-aside. The trial Court in directed to accord opportunity of hearing to the parties by directing them to lead their relevant evidence and decide the same expeditiously and in nay case not later then six months from the date of communication of the certified copy of this order. The summoned record be transmitted back to the trial court forthwith.