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Judgment
Hon’ble Ravindra Maithani, J. (Oral)
The instant appeal is preferred against the judgment and order dated 12.08.2026 passed in OS No. 28 of 2020, Hare Krishan Tourism Development Limited v. Mithlesh Madhukar (deceased) through LR, by the court of Civil Judge (Sr. Division), Tehri Garhwal (“the suit”), by which the application filed by the respondent under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 has been allowed and the appellants have been restrained from creating any third party interest on the property in suit.
The respondent did filed the suit on the ground that on 13.11.2018, the appellants executed a registered agreement to sale in their favour, but despite notices, they did not execute the sale deed. The appellants did file their written statement. According to them, the said agreement was entered under undue influence and duress and even the respondent failed to pay the remaining amount as agreed. In the suit, an application for temporary injunction was filed, which has been allowed by the impugned 1 order. Aggrieved, the appellants are before this Court.
Heard learned counsel for the parties and perused the record.
Learned Senior Counsel for the appellants submits that the order directing not to create third party is not valid in the eye of law, as that situation is covered under the Transfer of Property Act, 1882 (“the TP Act”). He would refer to the principle of law as laid down in the case of Dalpat Kumar and another v. Prahlad Singh and others, (1992) 1 SCC 719, in which case, the Hon’ble Supreme Court observed that “Repeatedly the civil court and the High Court refused injunction pending proceedings. For any acts of damage, if attempted to be made, to the property, or done, appropriate direction could be taken in the suit. If any alienation is made it would be subject to doctrine of lis pendens under Section 52 of the Transfer of Property Act.”
In the impugned order, the court has discussed prima facie case, balance of convenience and irreparable loss. In fact, in so far as the execution of agreement to sale is concerned, it is admitted by the appellants, but it is their case that it was executed under undue influence and duress, and the remaining amount was not paid. These are debatable issues.
In the case of Ramakant Ambalal Choksi v. Harish Ambalal Choksi and others, 2024 SCC OnLine SC 3538, the Hon’ble Supreme Court has discussed the law and has held that the despite provision of Section 52 of the TP Act, in appropriate cases, temporary injunction may granted. In para 45, the Hon’ble Supreme Court observed as under:-2
“45.Quite often, in these types of litigations, it is sought to be argued that an injunction restraining the defendant from transferring the suit property was absolutely unnecessary as no post-suit transfer by the defendant can adversely affect the result of the suit because of the provisions of Section 52 of the TP Act whereunder all such transfers cannot but abide by the result of the suit. It is true that the doctrine of lis pendens as enunciated in Section 52 of the TP Act takes care of all pendente lite transfers; but it may not always be good enough to take fullest care of the plaintiffs interest vis-à-vis such a transfer......”
In the instant case, definitely in order to avoid the multiplicity of the suit also, it is necessary that the appellants may be restrained to create any third party interest over the suit property. That is what the impugned order is.
Therefore, this Court is of the view that the court below has committed no error in passing the impugned order. There is no reason to make any interference. Accordingly, the appeal deserves to be dismissed.
The appeal is dismissed.