Sunita Devi and Others vs Rakesh Kumar Jain

Sujoy Paul, J.—This Miscellaneous Appeal filed under Order 43 Rule 1 of C.P.C. is directed against the order dated 11.09.2014 passed in Civil Suit No. 8A/2014 ED.

The facts necessary for adjudication of this matter are that the respondent/plaintiff filed a suit for specific performance and permanent injunction. This suit is based on agreement dated 14.01.2014. As per this agreement, Rs. 10,00,000/- were already paid out of total sale consideration i.e. 1,27,68,000/-. As per agreement, the last date for sale was 30.06.2014. The plaintiff filed a suit and took objection that defendants No. 3 and 4 are minor. In absence of permission from the court of competent jurisdiction, the sale cannot take place on behalf of minors. Another objection taken was that Raman Kishore Goyal and Nand Kishore Agrawal have claimed some right on the suit property. Hence, in absence of consent from those persons, sale deed cannot be executed. Thus in the plaint, it is prayed that the defendant be directed to execute the sale deed after obtaining the remaining amount from the plaintiff. The defendant be directed that before execution of sale deed they should resolve the dispute with Raman Kishore Goyal and Nand Kishore Agrawal, obtain their consent and then obtain permission from the court. Relief clause also contains the relief regarding permission of sale of property in relation to the said minors.

Shri Prashant Sharma, Advocate for the petitioners, submits that Raman Kishore Goyal and Nand Kishore Agrawal have no right to interfere in the matter. They are claiming right of pre-emption. This means that they are not challenging the title of the petitioner. Their right of pre-emption cannot be gone into in a suit for specific performance. He submits that the plaintiff on the one hand seeking execution of the sale deed, on the other hand, raised flimsy objections. His objection regarding permission of competent court for sale of property in relation to minors now no more survives. He relied on order dated 14th January, 2015 passed in Civil Suit No. 8/2014 (Guardian). It is contended that the competent court has granted permission in relation to minors namely Ku. Aditi and Master Aditya. In view of this permission granted by the competent court, the objection raised by the plaintiff has lost its complete shine.

Shri Sharma further submits that the time for executing the sale deed was up to 30.06.2014. However, appellant gave willingness before the court below to continue it provided complete sale consideration is paid. The plaintiff has raised flimsy objections in order to avoid the sale deed. He has not paid the sale consideration and in fact does not have money for the same. His entire device is to delay the proceedings in order to arrange money, save interest and harass the present appellant. Reliance is place on medical documents Annexure B wherein it is mentioned that the appellant is suffering from serious ailments. Shri Sharma submits that appellant is suffering from cancer and is in a bad state of health.

Shri Sharma criticized the order of injunction by contending that the court below has failed to see that necessary ingredients for grant of injunction were not available in favour of the plaintiff. The plaintiff has fabricated the document and in the agreement dated 14.01.2014 he added one paragraph which was not there in the original agreement. This fabricated document shows that the present appellant agreed for extending the time for execution of sale deed beyond 30.06.2014. Lastly, he contends that plaintiff has not approached the court below with clean hands. In view of his conduct, no injunction should have been granted.

Prayer is opposed by Shri K.N. Gupta, Sr. Advocate for respondent/plaintiff. He submits that after entering into the agreement dated 14.01.2014, the plaintiff found that an advertisement/notice is published in the newspaper. Shri Raman Kishore Agrawal and Nand Kishore Agrawal contended that they have interest in the property. They also sent legal notices to the parties which shows that they have keen interest in the property. It is contended that unless this aspect is dealt with, the plaintiff cannot pay the entire amount and get the sale deed executed. He submits that agreement submitted by the plaintiff is genuine. The note appended to the said agreement is actually signed by the present appellant. However, during the course of argument, he fairly admitted that by order dated 14th January, 2015 in Civil Suit No. 08/2014 ED the permission has been obtained by the present appellant. He fairly submits that the objection regarding permission relating to minors now does not survive. Learned senior counsel by taking assistance from transfer of property Act contended that it was the duty of present appellant to furnish correct information about the property in question. She has not furnished the information regarding right and interest of Raman Kishore Goyal and Nand Kishore Agrawal.

Shri Gupta further contends that in the fitness of things, application preferred under Order 1 Rule 10 C.P.C. could have been allowed by the court below. This will clear the aspect of right of Raman Kishore Goyal and Nand Kishore Agrawal aforesaid. He supported the impugned order. Lastly, it is contended that contention of appellant that plaintiff does not have money to satisfy the sale consideration, is incorrect. He drew attention of this Court on relevant paragraph of pleadings of the suit. He placed reliance on Pushpmala Raje alias Shamistha Devi Vs. Mahendra Singh and Others, (2011) ILR (MP) 2016 : (2011) 2 MPHT 508 : (2011) 2 MPLJ 314 , Zenit Mataplast P. Ltd. Vs. State of Maharashtra and Others, (2009) 12 JT 240 : (2009) 12 SCALE 432 : (2009) 10 SCC 388 : (2009) 15 SCR 403 : (2009) 10 UJ 4706 , Seema Arshad Zaheer and Others Vs. Municipal Corpn. of Greater Mumbai and Others, (2006) 102 CLT 777 : (2006) 11 JT 1 : (2006) 5 SCALE 263 : (2006) 5 SCC 282 : (2006) 2 SCR 865 Supp , Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, AIR 2005 SC 104 : (2004) 9 JT 216 : (2005) 139 PLR 399 : (2004) 8 SCALE 862 : (2004) 8 SCC 488 : (2004) AIRSCW 6333 : (2004) AIRSCW 6523 & Shankarlal Debiprasad Rathore Vs. State of M.P. and Others, (1979) ILR (MP) 74 : (1978) JLJ 51 : (1978) MPLJ 419 : (1978) MPLJ 415 . Shri Gupta also placed relied on order of this Court passed in WP No. 6508/2014 (Vimal Kumar Suri and Ors. v. Smt. Chanchal Bhaseen and Ors.).

Shri A.V. Bhardwaj, Advocate for the proposed intervenor, submits that he may be permitted to intervene in the present matter. In support of his contention, he relied on Sumtibai and Others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Thru Smt. Mankanwar Chordia (Dead) and Others, AIR 2007 SC 3166 : (2007) 11 JT 479 : (2007) 11 SCALE 596 : (2007) 10 SCC 82 : (2007) 11 SCR 543 : (2007) AIRSCW 6125 : (2007) 7 Supreme 201 .

No other point is pressed by the parties.

I have heard learned counsel for the parties and perused the record.

In view of the stand of the parties aforesaid, it is clear that objection regarding permission to sale property on behalf of minors, pales into insignificance in view of permission granted by the court in Civil Suit No. 8/2014 (Guardian). The only objection remains is regarding right/interest of Raman Kishore Goyal and Nand Kishore Agrawal. It is apt to mention here that this matter was analogously heard with WP.1672/2015. The said WP is also arising out of same civil suit. In the said WP, the present intervenor is the petitioner. In the instant civil suit, his application preferred under Order 1 Rule 10 C.P.C. is disallowed. This rejection order dated 04.03.2015 is put to test in said WP. This Court by a detailed order has dismissed the said WP. Thus, I am unable to hold that Raman Kishore Goyal and Nand Kishore Agrawal have any right to become party either before the Labour Court or in the present Misc. Appeal. Relevant portion of said order reads as under:--

"11. Calcutta High Court in Sri Santosh Kumar Hui Vs. Sri Prakash Kumar Palit and others, AIR 1995 Cal 381 opined that a plain reading of enabling provision of Specific Performance Act makes it lucidly clear that right must flow from the contract. Since the right of pre-emption cannot be said to have flown from the contract alleged to have been executed, no relief can be claimed under Section 22 of the said Act. I am in respectful agreement with the view taken by Calcutta High Court. The petitioner has miserably failed to show that he had any title on the property in question. The question of right of pre-emption of present petitioners cannot be gone into in a suit for specific performance filed by respondent No. 1 herein. In a petition filed under Article 227 of the Constitution, petitioner cannot be permitted to raise new facts."

In Pushpmala Raje (supra), as per factual matrix of the said case, this court opined that injunction was rightly granted. This court opined that serious question of facts and law are required to be determined by the court of first instance. In Zenit Mataplast (supra), the Apex court emphasized about basic ingredients for grant of injunction i.e. prima facie case, balance of convenience and irreparable loss. In Seema Arshad Zaheer (supra) the Apex court gave opinion in relation to exercise of power under Order 39 Rule 1 and 2 C.P.C. The Apex Court also dealt with the power of High Court under Order 43 Rule 1 (r) C.P.C. The Apex Court also dealt with the aspect of injunction arising out of Order 39 Rule 1 and 2 C.P.C. In Shankerlal (supra), this Court dealt with the principle for grant of temporary injunction.

In the opinion of this Court, the principle laid down in the said judgments cannot be doubted. However, a plain reading of the said judgments make it clear that the power of injunction needs to be exercise on the basis of factual matrix of a particular case. This is trite that apart from aforesaid necessary ingredients i.e. prima facie case, balance of convenience and irreparable loss, in a given case, court may be required to see the conduct of the parties. This aspect is dealt with by court in recent judgment Rajesh Mishra Vs. Ram Vilas Singh Kushwaha(2015) 2 JLJ 101 : (2015) 2 MPLJ 697 .

Learned counsel for the parties, during the course of argument, have fairly admitted that in view of order dated 14th January, 2015 passed in Civil Suit No. 8/2014 (Guardian) the objection regarding permission to sell the property in relation to minors has lost its complete shine. Thus, the injunction granted by considering this fact has also lost its complete force. In other words, the objection regarding permission in relation to minors pales into insignificance because of judgment of the court.

Paragraphs 9, 10 and 11 of the impugned order shows that the injunction was granted for following reasons:--

"(i) The defendant has not taken permission of selling the property in relation to minors from competent court.

(ii) The defendant No. 1 has not obtained permission from Raman Kishore Goyal and Nand Kishore Agrawal and therefore, sale deed cannot be executed."

On the basis of aforesaid reasons, injunction was granted. It is held by the court below that the defendant has already received Rs. 10 lakhs as advance. If during the pendency of the suit, disputed property is alienated, it will lead to multiplicity of litigation and will create further complications.

The core issue before this Court is whether the court below was justified in passing such order. As analyzed, the objection regarding permission in relation to minors are concern, this ground is no more available to the plaintiff. In Misc. Appeal, this court is not required to examine the facts of the matter. The genuineness and correctness of the note appended to the agreement submitted by the plaintiff is yet to be examined. It is for the court below to decide whether the said note is genuine and it is inserted with the consent of Sunita Devi. It is also required to be decided whether Sunita Devi''s signature is there as endorsement of the said note. This is an important aspect because if the said note is found to be fabricated and inserted without consent and knowledge of Sunita Devi, the effect of last date prescribed in the main agreement may have a different impact which needs to be seen by court below.

In the opinion of this Court, the medical documents filed show that the appellant is suffering from serious ailments. In this order, it is already held that intervenor has no right to intervene in this matter nor court below has committed any error in disallowing their application preferred under Order 1 Rule 10 C.P.C.

As analyzed above, the plaintiff has paid only Rs. 10 lakhs at the time of entering into agreement. Thereafter he has not taken steps to make further payment on the basis of aforesaid two objections. In the result, present appellant is neither getting the full consideration arising out of agreement nor able to sell the property elsewhere. In this view of the matter, the court below needs to consider the early disposal of the matter. In order to meet the ends of justice, I deem it proper to direct the plaintiff to deposit the some more amount of money before the court below so that right of present appellant is also protected.

In the aforesaid backdrop, I deem it proper to modify the order of the court below. If plaintiff deposits 75% of amount mentioned in the agreement (inclusive of the amount already paid) before the court below, the injunction granted by the trial court shall continue till final disposal. The said amount must be deposited by the plaintiff before the court below within ten days from today, failing which injunction granted by the court below shall stand vacated automatically. In view of appellant''s serious ailment and in view of peculiar factual matrix of the matter, the court below may examine the feasibility of taking up the matter on day to day basis so that it may be decided at an early date. Impugned order is modified to the extent indicated above.

The appeal is allowed to the extent indicated above. No costs.