Appeal from Order No.973 of 2013,Civil Application No.1179 of 2013

9th October, 2013

Petitioner Counsel: Mr. U.P. WARUNJIKAR i/by Mr. SALIK KHAN
Respondent Counsel: Ms. MANJIRI PARASNIS

Cases Cited:
Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd. & Ors., 2013(3) ALL MR 408 (S.C.)=AIR 2013 SC 2389 [Para 4]

JUDGMENT

JUDGMENT :- Rule, returnable forthwith. Heard finally by consent of the parties.

2. The Appellant-original Plaintiff has challenged order dated 25 September 2012 whereby, its Application for injunction (Exhibit-5) was rejected. The Suit is filed for a specific performance of agreement for sale dated 16 April 2006, between the Plaintiff-Appellant and Respondent Nos. 1 to 4, who are admittedly the owners of the Suit property.

3. The agreement signed by Defendant No.1 on behalf of other Defendant Nos. 2,3 and 4, is not in dispute. The issue is that the other Defendant/owner permitted and not authorized Defendant No.1 to sign on their behalf to transfer the property. Strikingly, inspite of service, original Defendant Nos. 1 to 4 did not appear, basically the other Defendants on whose behalf Defendant No.1 signed. The averments, therefore so made in the plaint based upon the documents, at this stage, cannot be displaced, at the instance of original Defendant No.5 who is the subsequent purchaser of the Suit property by alleged sale deed dated 30 October 2007.

4. The law and the effect of Lis Pendens is now settled by the Supreme Court in Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd & Ors., AIR 2013 SC 2389 : [2013(3) ALL MR 408 (S.C.)] by observing as under:-

"24. It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. Discussing the principles of lis pendens, the Privy Council in the case of Gouri Dutt Maharaj v. Sukur Mohammed and Ors. AIR 1948 PC 147, observed as under:-

" The broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceedings. To apply any such test is to misconceive the object of the enactment and in the view of the Board, the learned Subordinate Judge was in error in this respect in laying stress, as he did, on the fact that the agreement of 8.6.1932, had not been registered."

5. Therefore, referring to the same, one thing is clear that the interest/property or further transfer of property and/or creation of third party rights required to be checked at the earliest point of time. In the present case, the Suit itself is filed on 7 July 2007. The date of Lis Pendens registered is 30 August 2007. The sale deed executed on 30 October 2007 in favour of Defendant No.5, is also challenged by the amendment. The Appellant filed the Suit after completion of the formalities even by giving a public notice and registering the Lis Pendens as required under the law. The transaction which Respondent No.5 alleged to have entered into with Respondent Nos. 1 to 4 is admittedly after those dates.

6. The learned Judge, however, by giving three line reasons in paragraph No.20 by recording the submission of both the parties in earlier paragraphs, rejected the Application without assigning the reasons on the effect of the documents on record, apart from uncontroverted averments with regard to the transaction. Respondent No.5-third person, at this stage, cannot be permitted to make the submission on behalf of other owners to say that they never authorized and/or permitted Defendant No.1 to enter into the transaction, basically when there is no denial to the execution of the documents, as well as, the situation. The learned Judge overlooked these important facets.

7. What is influenced is the subsequent amount, as recorded in paragraph No. 22, which was alleged to have been paid by Defendant No.5 to the Defendants. The Suit for specific performance is a matter of discretion, which the Court will consider at the time of passing final order after considering the material, as well as, the evidence on record. This is also on the foundation of agreement between the parties and willingness and/or readiness at the relevant time. The more payment and/or increased in the market rate and/or value, just cannot be the consideration and/or foundation not to grant the relief of specific performance. If the case is made out, even otherwise, at the time of final disposal, this part of consideration, based upon the situation available at the relevant time, the Court can direct the parties to make increased and/or to pay more amount than the agreed. Therefore, to overlook all these facets and by passing unreasoned order, the right and the property cannot be permitted to be taken away, by creating third party rights and interest, by the subsequent purchaser/Respondent No.5.

8. The submission is also made that the land is still vacant. There is no construction and/or any steps to develop the property, has been taken. Therefore, at this stage, I am inclined to observe that in view of undisputed position on record, the prima facie case is made out, the balance of convenience and equity also lies in favour of the Appellant. There is no question of injury and/or injustice at this stage merely because the more amount has been paid by Respondent No.5 to the others. The facet of none appearance by the Defendants, just cannot be overlooked even for this, as the Court needs to consider the material, as well as, the uncontroverted averments placed on record. Any construction if permitted, it will create more complications than solving it. The case is made out to injunct from making any construction on the property.

9. This Court adjourned the matter twice for settlement of dispute also, but it could not be settled.

10. Taking overall view of the matter, I am inclined to hold that the learned Judge failed to consider the facts and the law by rejecting this Application at Exhibit 5.

11. Resultantly, the following order:-

ORDER

a) Impugned order dated 25 September 2012 is quashed and set aside.

b) Appeal from Order is accordingly allowed. Rule absolute.

c) The Appellant'sPlaintiff's Application Exhibit-5 is granted to the effect that no further rights and interest be created on the Suit property in question and no construction also be carried out, pending the disposal of the Suit.

d) The parties are still at liberty to settle the matter.

e) The Civil Application No. 1179 of 2013 is also disposed of.

f) There shall be no order as to costs.

Ordered accordingly.