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Judgment
The appellants in this Civil Miscellaneous Appeal are the defendants 2 to 10 in O. S. No. 72 of 1993 on the file of the learned IInd Additional Subordinate Judge at Vijayawada. The said suit, was preferred by the respondent-society for a declaration that defendants 2 to 10 have no manner of right, title and interest in the plaint schedule property and for consequential permanent injunction restraining defendants 1 to 10 from making constructions in the plaint schedule property and also restraining the 11th defendant in the suit from granting any permission for such constructions. The 1st defendant is a member of the plaintiff-society and defendants 2 to 10 are not its members. The 1st defendant was allotted the plaint schedule property and a sale deed was also executed in her favour by the plaintiff. Certain conditions were imposed as regards'' alienation of the property by the 1st defendant in the sale deed and the relevant bye-laws of the society which imposed the said conditions were annexed to the sale deed as ''B-Schedule''. Two of the conditions imposed are: firstly, that the plaintiff shall not sell the property without obtaining prior permission of the society; and secondly, that the intending purchasers should be members or the society or should have been taken in as members of the society. It is the case of the plaintiff that the 1st defendant alienated the plaint schedule property without these two conditions being satisfied and that is not in dispute.
I. A. No. 730 of 1993 was filed by the plaintiff i.e., respondent herein, under S. 151, and Order 39, Rules 1 and 2 of the CPC for grant of temporary injunction restraining defendants 1 to 10 from making any constructions or erecting any structures in the plaint schedule propertyin any manner, pending the suit. It is stated that the suit was instituted on 11-2-1993 By the respondent-society on finding that .some excavation work and digging of holes was being done. It is also stated that on 1-3-1993 when I.A. No. 730 of 1993 came up for hearing, after hearing, counsel on both sides agreed to maintain status quo till the said 1. A. was heard. The learned Ilnd Additional Subordinate Judge allowed the said I.A. by an order dated 6-7-1993 directing respondents 2 to 10 i.e., appellants 1 to 9 herein to maintain status quo as on that day "till the disposal of the suit or-further orders". The learned Ilnd Additional Subordinate Judge also observed that:
"The respondents are at liberty to approach the petitioner-society for membership as per the procedure and law and in that event the petitioner-society is directed to consider, sympathetically, the issue of their member- ship and to communicate the order within 60 days from the date of receipt of application and in case of failure to admit, the respondents are at liberty to take necessary steps according to law".
Questioning the said order, the present C.M.A. has been preferred by respondents 2 to 9 in the said I.A.
The main contention advanced is that the learned Subordinate Judge was in error in holding that a prima facie case was established by the society and in holding that the conditions imposed as regards alienation did not amount to absolute restraint but amounted to partial restraint and therefore did not violate Section 10 of the Transfer of Property Act, 1882. Considerable case law was marshalled by both sides and after considering the various decisions, the learned IInd Additional Subordinate Judge held that the pre-conditions imposed for alienation did not amount to total restraint. That is a prima facie view and I do not find any reason to interfere with the same.
Similar conditions were considered by a Division Bench of this Court in L.P.A. No. 278 of 1992 which was dismissed by an order dated 4-12-1992. The appellant in that case was a member of the State Bank of India, Hyderabad Circle Supervising Staff Co-operative Building Society Limited and as per the bye-laws of that society, the appellant was bound to obtain approval of the Registrar before the Board of Directors of the Society were to permit the alienation proposed by him and he could not alienate the suit house which was constructed with the help of a loan taken by the society, except to a person who was a member of the society or was one whom the Board of Directors were willing to admit as a member. Those conditions were not satisfied and the society contended that therefore the agreement entered into by the appellant for the sale of the house which was allotted by the society to him was unenforceable. The Division Bench held that the said agreement was enforceable subject however to the approval of the Board of Directors and Registrar of Co-operative Societies. In holding so the Division Bench relied on the decision of the Supreme Court in Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Katial and Others, . The Supreme Court held in that case that when parties to a contract agreed to bind themselves by the terms of the documents executed by them and when one of the terms was that the vendor should obtain the necessary permission from the Government, the vendor was bound to obtain the permission.
The learned IInd Additional Subordinate Judge relied upon the decision of the Supreme Court in Ramesh Himmatlal Shah Vs. Harsukh Jadhavji Joshi, wherein it was held that similar conditions imposed by the Maha-rashtra Co-operative Societies Act, 1960 and the bye-laws of the society registered under that Act, did not amount to absolute prohibition against the transfer of interest of a member of that society in the plot allotted to him. The learned Subordinate Judge therefore prima facie found that the society established that the first defendant (1st respondent in the I.A.) had no right to alienate and that the appellants herein had no right to purchase without the pre-conditions for alienation being satisfied.
In view of this, the finding of'' the learned Ilnd Additional Subordinate Judge on this aspect of the matter does not merit interference.
The learned Ilnd Additional Subordinate Judge also found that balance of convenience was in favour of the society and that irreparable injury would be caused if the appellants herein were allowed to go on with the construction. The question involved in the suit is whether the.alienation by the 1st defendant to the appellants herein was valid. The learned Subordinate Judge observes that if the''suh is decreed, the plaintiff society can get back the plot and allot the same to another of its''members who are in need, I may also observe that the co-operative society does not appear to have been formed for enabling its members to deal with their plots freely and to construct multi-storeyed buildings and start commercial ventures out of plots allotted affecting the other members with residential houses. The learned counsel for the appellants submits that the appellants undertake to demolish the building and restore the suit property to its original condition in the event of the suit being decreed. The learned counsel relies on the judgment of a Division Bench of this Court in S. Rama Lingaiah v. Kurnool District Gorakshana Maha Sangam, (1970) 1 APLJ 205 . That was a case where already constructions were made before the institution of the suit. On the facts of that particular case and on the basis of the undertaking given, this Court vacated the injunction considering that the balance of convenience would be in favour of completing the constructions as it was found that substantive portion of the building had been erected by the time the application for temporary injunction was made. But in the present case the only circumstance alleged by the appellants was that they gathered material for construction. The facts of the present case disclose that no construction had in fact been commenced. As already stated by me above, on 1-3-1993 itself the learned counsel on both sides agreed to maintain status quo till the hearing of the I.A. The I. A, was allowed on 6-7-1993 to the extent of directing status quo to be maintained. The undertaking given cannot be the sole basis on which the injunction can be refused. The undertaking has to be viewed in the context of the facts and back-ground of the case. I am supported in this view by the recent judgment of a Division Bench of this Court in Mokkapati Harihara Prasad Vs. Nalakuditi Nageswara Rao and Another, . In the present case, the appellants have not yet begun construction and it is stated that they. propose to construct a multi-storeyed building which will take considerable time for construction. I do not see why a possible wasteful construction should be permitted during the pendency of the suit on the facts of the present case. The society also has been alert and, apart from warning the 1st defendant against any alienation contrary to the conditions imposed, had come to the Court at the earliest by way of the present suit. As already observed by me earlier, the bye-laws containing the conditions are annexed to the sale deed in favour of the 1 st defendant. The appellants therefore cannot say that they were not aware of the conditions imposed. I am therefore not inclined to interfere with the order of the learned IInd Additional Subordinate Judge allowing the I. A. in the manner he did.
The operative portion of the order shows that the appellants were allowed to approach the society for membership and the society was also directed to consider the applications of the appellants herein for membership and to communicate the order within 60 days from the date of receipt of the applications. The order directs the maintenance of status quo "till the disposal of the suit or further orders" which means that in the event of any subsequent developments it would be open to the appellants to approach the learned IInd Additional Subordinate Judge for such further orders as the fresh development warrant.
I therefore do not find any reason to interfere with the order of the learned IInd Additional Subordinate Judge in I. A. No. 730 of 1993 in O.S. No. 72 of 1993 dated 6-7-1993. The Civil Miscellaneous Appeal is therefore dismissed. No costs.
Appeal dismissed.