AI Structured Summary
Not yet generated for this judgment
Judgment
This Civil Revision Petition is filed against the docket order of the I-Additional District and Sessions Judge, Suryapet, dated 17.04.2023, passed in I.A.No.49 of 2023 in O.S.No.4 of 2023.
The facts, in brief, are as under:
M/s. Apoorva Infra represented by its managing Parner, Katta Prasanna Babu, (1st respondent/plaintiff) filed the above suit against the revision petitioner/D5 and respondents 2 to 5/defendants 1 to 4 for perpetual injunction restraining them from interfering with its possession over the suit schedule property in any manner and also to restrain the defendants from executing sale deeds in favour of third parties. It is stated that the plaintiff’s firm is a registered partnership firm consisting of two partners’ i.e., plaintiff and his wife. The plaintiff is a developer and he has developed several properties in and around the State of Telangana. The defendants claiming to be the absolute possessors of land admeasuring 3,91,738 sq. yards or 3,27,542 sq. Mtrs. situated at Undrugonda village, Chivemla Mandal, Suryapet District, approached the plaintiff for development of their land by levelling the land, dividing the land into house plots by providing basic amenities as required by the concerned authorities and accordingly they entered into a registered Development Agreement vide Doc.No.9552/2021 dated 03.07.2021 and it is registered in the office of the Sub-Registrar, Suryapet, as per the terms and conditions stipulated therein. It is further stated that the plaintiff has paid the pre-requisite consideration of Rs.24,73,76,750/- to defendants 1 to 4 and Rs.12 lacs to the Government authorities towards his part of compliance work. It is further stated that the plaintiff was compelled to enter into MOUs’ dated 23.04.2021, 19.07.2022 and 12.12.2022 on the pretext of cancellation of Development Agreement by defendant Nos.1 to 4 and that he has no other option except to sign the said MOUs’ as he has already spent huge amounts in the said project apart from the compliance fees paid to various governmental authorities to obtain various permissions for the projects. As per the terms of the Development Agreement, the developer shall develop the land by carrying out development work and allot 37.5% of plotted area to the defendants and the remaining 62.5% of the plotted area is to be allotted to the plaintiff. However, both of them agreed that they shall share the revenue out of the sale consideration of the plots in the aforesaid prescribed ratio. It is further stated that due to non-cooperation of the defendants, the plaintiff has forced to sign MOU dated 23.04.2021, which is void and against the terms and conditions agreed between them. The time stipulated for development of land is 24 months from the date of obtaining sanction plan and approval of RERA with a grace of two months. It is further stated that though it has been offered 93 acres of land for development, only 80 acres of land was handed over and the defendants gifted Ac.10.00 gts. of land to Swamy Narayan Gurukul School and at the request of defendants, the plaintiff joined as a party to the document and thus physical land available for development is only 48400 sq. yards. It is further stated that the defendants issued a legal notice dated 22.01.2023 threatening to cancel the Development Agreement. On 06.04.2023, the plaintiff came to know that the defendants have executed a registered development agreement vide Doc.No.4317/2023 dated 03.03.2023 with M/s. Prascon Infrastructure Private Limited represented by its authorized signatory (Defendant No.5) and offered 27286 sq. yards and 3,64,452 sq. yards on development when the development agreement with the plaintiff is still in existence and valid. The plaintiff is in possession of the said property and carrying out the development work. Mere sending of notice is not cancellation of development agreement and it cannot be unilaterally cancelled as it is linked up with interest of the plaintiff as he has invested huge amounts for the development of the said land. Therefore, the plaintiff filed the suit for perpetual injunction against the defendants. Along with the suit, I.A.No.49 of 2023 has been filed for grant of ad-interim injunction in favour of the plaintiff. The plaintiff has filed certified copies of registered development agreement vide Doc.No.9552/2021 dated 03.07.2021, development agreement vide Doc.No.4317/2023 dated 03.03.2023, original resolution dated 10.04.2023 and a copy of notice dated 23.01.2023.
Considering the facts and circumstances of the case and the documents filed by the plaintiff, the trial Court, vide docket order dated 17.04.2023, granted ad-interim injunction in favour of the plaintiff restraining the defendants from alienating the petition schedule property in favour of third parties and creating any encumbrances upon the property till further orders. Further, the plaintiff was directed to comply with Order 39 Rule 3 C.P.C. by 18.04.2023 and that the trial Court posted the matter to 01.06.2023.
Aggrieved by the aforesaid order, M/s. Prascon Infrastructure Private Limited (Defendant No.5) filed the present revision petition contending that revision petitioner is facing financial risk by the impugned order, as the development of the land is stalled due to the said order. Respondents 2 to 5 herein terminated the agreement with the 1st respondent herein with regard to non-performance of the clauses of the agreement and after the time specified in sub section (2) of Section 20 of the Specific Relief Act, entered into a substituted Development Agreement with the revision petitioner. The trial Court has no jurisdiction to entertain the application as they had already filed an application to refer the matter to the arbitration under Section 8 of the Arbitration Act.
Heard both sides and perused the material available on record.
Some of the plot owners in whose favour agreement of sale was executed by the 1st respondent/plaintiff filed I.A.No.2 of 2023 seeking to implead them as respondent Nos.6 to 9 in the revision petition.
Respondent No.1/plaintiff filed an Objection Petition vide I.A.No.3 of 2023 challenging the maintainability of the revision petition. It is contended that immediately after passing of the ad-interim injunction order dated 17.04.2023, revision petitioner/defendant No.5 appeared before the trial Court and filed stay vacate petition vide I.A.No.68 of 2023, but he has not pressed the said petition and filed the present revision petition suppressing the said fact. The other respondent Nos.2 to 5 filed a petition vide I.A.No.69 of 2023, under Section 8 of the Arbitration Act, to refer the matter to a arbitrator and the same is pending. He mainly contended that against the order passed in I.A.No.49 of 2023 in O.S.No.49 of 2023, the revision petitioner has to prefer C.M.A. within 90 days from the date of order. In spite of preferring the C.M.A., the revision petitioner has preferred the present C.R.P., which is not at all maintainable. It is further contended that respondent No.1 and respondents 2 to 5 herein have jointly sold 186 plots in favour of the third parties and they were in possession of the said plots. It is further contended that the registered Development Agreement vide Doc.No.9552/2021 dated 03.07.2021 has not been cancelled bilateral or respondents 2 to 5 had not filed any suit for cancellation of the said development agreement. Mere issuance of legal notice saying that the said registered development agreement is cancelled will neither take away any rights of the 1st respondent over the subject property nor it can be said that the registered development agreement is cancelled. It is further contended that originally C.R.P. has been filed under Section 115 of C.P.C. and it was conveniently amended to Article 227 of Constitution of India to avoid the limitation issue. In support of the said contentions, he relied upon the following decisions:
In Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others Vs. Tuticorin Educational Society and others (2019) 9 Supreme Court Cases 538, the Apex Court held as under :
“14. Therefore, wherever the proceedings are under the Code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and footing from the orders of authorities or Tribunals or prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.”
In A.Arumugam vs. A.Dharmalingam (CRP SR.No.79006 of 2020), a learned Single Judge of High Court of Madras, held as under:
“It is seen that the order passed under Order 39 Rule 1 and 2 is appeallable under Order 43 Rule 1 of CPC, however, the petitioner has chosen to invoke Article 227 of Constitution of India, which is a special jurisdiction exercised by the High Court and further, it is a prerogative power conferred on the High Court by the Constitution and as such, the prerogative power is a special power which cannot be invoked in ordinary situation, that too, when the law provides an alternative remedy embedded in the Code of Civil Procedure itself. Thus, the invocation of Article 227 of the Constitution of India is not correct and it has to be rejected. Article 227 of Constitution of India is not a substitute for Order 43 of C.P.C. Under the circumstances, the return made by the Registry is sustained and the Civil Revision Petition is not maintainable. The petitioner is to work out his remedy under the Code of Civil Procedure.”
Learned Counsel for the revision petitioner/5th defendant submits that realizing their mistake that no prayer for specific performance of development agreement dated 03.07.2021 was sought in O.S.No.4 of 2023, the 1st respondent/plaintiff filed a suit being O.S.No.12 of 2023 and thus it clearly indicates that on the date when the ad-interim injunction was granted through the impugned order dated 17.04.2023, no prayer existed. It is a fundamental rule that the trial Courts do not grant relief where there is no prayer. He further requested to appoint an arbitrator as this Court being a constitutional Court is having power to appoint an arbitrator.
As seen from the record, it is evident that respondents 2 to 5/defendants had already filed an application, under Section 8 of the Arbitration Act, before the trial Court for reference of the dispute to the Arbitrator. Therefore, it is for them to take necessary steps before the trial Court for appointment of the Arbitrator. Moreover, in a development agreement dated 03.07.2021, entered into between the 1st respondent/plaintiff and respondents 2 to 5/defendants 1 to 4, there is no arbitration clause. However, in a development agreement, dated 03.03.2023, entered into between respondents 2 to 5 and the revision petitioner/defendant No.5, condition No.12 relates to arbitration clause. The 1st respondent/plaintiff is not a party to the later development agreement in which arbitration clause was incorporated. Therefore, the argument of the learned Counsel for the revision petitioner cannot be accepted.
The 1st respondent/plaintiff filed the suit against the revision petitioner/D5 and respondents 2 to 5/D1 to D4 for perpetual injunction. Along with the suit, he also filed I.A.No.49 of 2023 for grant of ad-interim injunction. The contention of the 1st respondent/plaintiff is that respondent Nos.2 to 5/D1 to D4 cancelled his development agreement dated 03.07.2021 unilaterally and thereafter they entered into a fresh development agreement dated 03.03.2023. with the revision petitioner/D5. It is further contended that as the 1st respondent/plaintiff is in possession of the suit property and carrying out the development work, his possession cannot be interfered with. As per Order XXXIX C.P.C. temporary injunctions can be granted in the following cases:
“Where in any suit it is proved by affidavit or otherwise---
(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 defraud 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,
the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.”
In Dalpat Kumar and another v. Prahlad Singh and others AIR 1993 Supreme Court 276, the Apex Court held as under:
“It is settled law that the grant of injunction a discretionary relief. The exercise thereof is subject to the Court satisfying that
(1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the Court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the Court’s interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established a trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.”
Therefore, the trial Court, after considering the documents filed by the 1st respondent/plaintiff, granted ad-interim injunction restraining the revision petitioner and respondents 2 to 5 herein from alienating the suit schedule property in favour of third parties until further orders. It is for the revision petitioner and respondents 2 to 5 to approach the trial Court and file counter in the Interlocutory Application and advance their arguments for deciding said application on merits. Instead of availing the said opportunity, the revision petitioner/D5 preferred the present revision petition. An order directing issuance of notice on a temporary injunction application under Order 39 Rule 1 of C.P.C. is definitely not an order, which though may come within the ambit of ‘case decided’, but would not amount to disposed of the injunction application or terminate the proceedings of temporary injunction. Hence, the revision is maintainable.
In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs.
Miscellaneous Petitions, if any, pending shall stand closed.