Vijaya vs Abhilasha & Ors.

Heard.

Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.

By way of this Writ Petition, the petitioner seeks to quash and set aside the judgment and order dated 09.03.2023 passed by the learned District Judge, Nagpur, in Miscellaneous Civil Appeal (MCA) No. 231 of 2022, whereby a temporary injunction was granted in favour of respondent No. 1.

The factual matrix giving rise to the present petition is that the suit property, along with adjacent plots comprising erstwhile Khasra No. 57/2, bearing Patwari Halka No. 45 and admeasuring 2.02 HR, was under the absolute ownership of the petitioner. On 06.10.2018, a registered sale deed in respect of the said property was executed between the petitioner and respondent No. 2. At that time, respondent No. 2 paid an amount of Rs. 11,00,000/- towards part consideration and issued various post-dated cheques for the remaining balance.

Following the execution of the aforesaid sale deed, respondents Nos.2 to 5 obtained approval for carving out a layout on the said property and commenced accepting payments from prospective buyers for the demarcated plots. The petitioner was ostensibly unaware of these developments. Subsequently, the post-dated cheques issued by respondents No. 2 to 5 in favour of the petitioner were dishonoured, compelling the petitioner to institute Special Civil Suit No. 219 of 2020 for the cancellation of the sale deed. The said suit culminated in a compromise decree between the petitioner and respondents No. 2 to 5, pursuant to which the petitioner refunded the initial part-payment of Rs. 11,00,000/- to the said respondents.

In the interregnum, respondent No. 1 filed a Consumer Complaint against the petitioner and respondents Nos. 2 to 5, which is presently pending adjudication. Parallelly, respondent No.1 preferred an application for temporary injunction before the learned Joint Civil Judge, Senior Division, Nagpur, which came to be rejected vide order dated 07.10.2022. Aggrieved by the said rejection, respondent No. 1 preferred an appeal (MCA No. 231 of 2022) before the learned District Judge, Nagpur. The Appellate Court, vide the impugned order dated 09.03.2023, allowed the appeal and granted a temporary injunction in favour of Respondent No. 1. It is this order that is assailed by the petitioner in the present Writ Petition.

I have heard Shri Aradhya Pande, learned counsel appearing for the Petitioner, and Shri Raju Kadu, learned counsel appearing for Respondent No. 1.

Learned counsel for the petitioner submits that the learned Appellate Court completely failed to consider the pendency of the parallel consumer complaint, which constitutes an efficacious alternate remedy available to respondent No. 1. It is contended that respondent No.1 maliciously suppressed the pendency of the said consumer complaint while instituting the Special Civil Suit and the application for temporary injunction, omitting even the mandatory formal declaration regarding the non-pendency of other proceedings. While the learned trial Court had rightly taken cognizance of this suppression and denied equitable relief in view of Section 41 of the Specific Relief Act, 1963, the appellate Court completely overlooked this vital factor, thereby vitiating the impugned order.

He further submits that the learned appellate Court committed a manifest error of law by ignoring the deliberate suppression of the dimensions of the suit property in the plaint, allegedly done to intentionally undervalue the suit. The property in question admeasures 2,000 sq. ft. Relying upon Document No. 9, dated 17^th February 2019 an application by respondent No. 1's husband seeking departmental permission from his employer (Railways) to purchase the said property it is pointed out that the specified rate was Rs.1,150/- per sq. ft. Consequently, the true valuation of the property stood at Rs. 23,00,000/-, whereas it was deliberately undervalued at Rs. 10,00,000/- in the plaint. Despite this infirmity being specifically pleaded, the appellate Court remained entirely silent on the issue.

Per contra, learned counsel appearing for respondent No.1 filed written submission and opposed the contentions made by the learned counsel for the petitioner. He therefore supported the impugned order stating that the trial court has incorrectly appreciated the factual matrix on record and therefore the appellate Court was correct in its appellate jurisdiction to interfere with the said order.

I have considered the contentions canvassed by the learned counsel for the respective parties. I have also gone through the record including the order of temporary injunction and the judgment of the appellate Court. As can be seen from the order passed below Exhibit-5 by the trial Court, the main reason for non-suiting the plaintiff and rejecting the application for temporary injunction is the omission of the original plaintiff to place any document on record to show any privity of contract between the plaintiff and defendant No.5. In paragraph 11 of the impugned order, the trial Court has recorded that there is nothing to show prima facie, at least, that the plaintiff has obtained possession of the suit property. It has also recorded a finding that all transactions carried out by the plaintiff even if admitted to be true and correct were only against defendant Nos.1 to 4 and defendant No.5 was not party to the said transactions. In nutshell, the trial Court has recorded a finding that there is no privity of contract between the plaintiff and defendant No.5. With these findings, the trial Court has rejected the application for temporary injunction.

If the judgment/order of the appellate Court is perused, it seems that the appellate Court has lost sight of scope and ambit of appeal against the order of temporary injunction. It has proceeded to allow the appeal as if it is an application for temporary injunction. Totally erroneous finding has been recorded in paragraph 19 that the finding regarding absence of privity of contract between the plaintiff and defendant No.5, when facts and material placed on record was indicating otherwise. Furthermore, the appellate Court also lost sight of the fact that the scope of appeal against an order of temporary injunction is very limited as settled by various judgments of this Curt and the Hon’ble Apex Court; one of which is in case of Wander Ltd. and anr. vs. Antox India P. Ltd. 1990 (supp) SCC 727. Furthermore, the appellate Court also seems to have lost sight of the fact that in view of judgment of this Court in Katcchi Properties, Satara vs. Ganpartao Shankarrao Kadam ad ors. 2010 (5) Mh.L.J. 903, it is obligatory on the plaintiff to show that protection granted under Section 52 of the Transfer of Property Act, 1882 would not be adequate. Nothing of this sort was either pleaded or any submissions were made in that regard. Since the record and documents placed in support of all the pleadings by the respective parties unmistakably were pointing out absence of any contract between the original plaintiff and defendant No.5, the findings of the appellant Court in the impugned judgment cannot be sustained. The appellate Court, it seems, has proceeded on the premise as if it is a trial Court losing the sight of the fact that the said appeal was an appeal on principle and view taken by the trial Court is a possible view which should not be disturbed ordinarily unless it is found to be absolutely perverse.

In that view of the matter, in my considered opinion, the judgment/order of the appellate Court cannot be sustained. The finding recorded by the trial Court are outside the scope and purview of appeal against the order of temporary injunction and are in contradiction with the settled law in that regard. The said findings are therefore liable to be interfered with in supervisory jurisdiction.

Writ Petition is allowed.

The impugned order dated 09/03/2023 in Misc. Civil Appeal No.231/2022 is quashed and set aside.

Order dated 07/10/2022 passed by the I/c 19^th Jt. Civil Judge, Senior Division, Nagpur, below Exhibit-5 in Special Civil Suit No.1027/2022 is hereby confirmed.

Rule is made absolute in aforesaid terms.

No order as to costs.