Judges: THE HONOURABLE MR. JUSTICE NANDESH S. DESHPANDE
Parties : Pushpak Anna Meshram Versus Rita Anil Umathe & Others
Appearing Advocates : For the Petitioner: M.G. Bhangde, Senior Advocate, assisted by Rahul M. Bhangde, Advocate. For the Respondents: Anand Parchure, Advocate.
1. Heard. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.
2. The present petition challenges order passed by 10th Joint Civil Judge, Senior Division, Amravati in Special Civil Suit No.333 of 2023, passed below Exhibit-5A and confirmed by the District Judge-4, Amravati, in Miscellaneous Civil Appeal No.13 of 2024.
3. Facts, as can be seen from the memo of petition, are as under :
It is the case of the petitioner, who is the original defendant, that the respondents herein, who are the original plaintiffs, filed a suit for specific performance of an agreement which was entered into between the parties on 27.07.2021. In the said suit bearing Special Civil Suit No.333 of 2023, an application for temporary injunction was filed. The temporary injunction was regarding restraining the present petitioner, i.e. the defendant herein, from alienating the suit property during the pendency of the suit. The said application for temporary injunction was heard by the trial Court and the same was allowed by the said Court vide order dated 10.10.2024. By allowing the application for temporary injunction, the trial Court directed that the present petitioner, i.e. the original defendant, is restrained from alienating the suit property to a third party during the pendency of the suit.
4. Being aggrieved by the said order, the petitioner herein filed an appeal before the District Judge, Amravati bearing Miscellaneous Civil Appeal No.13 of 2024. The said Appellate Court vide judgment dated 11.08.2026 was pleased to dismiss the said appeal. Both these orders are challenged in the present petition.
5. I have heard Mr. M.G. Bhangde, learned Senior Advocate for the petitioner and Mr. Anand Parchure, learned counsel for the respondents.
6. It is primary contention of learned Senior Advocate for the petitioner that the trial Court as also the Appellate Court has not considered the matter in its proper perspective and has returned erroneous findings in absence of a prima facie case. He submits that, as can be seen from the bare perusal of the agreement in question that the conveyance was to be executed till end of the year 2022 and, therefore, there was no concluded contract between the parties. He draws my attention to the fact that even according to the plaint, there was nothing pleaded nor any material placed on record to show that the plaintiff was ready and willing to perform his part of contract. He further submits that after the expiry of the period i.e. December 2022, the plaintiffs chose to address a legal notice on 12th July, 2023, which shows that the plaintiffs were not ready with the requisite balance consideration. By drawing my attention to the said legal notice, the learned Senior Advocate submits that even though there is an averment in the said notice that the plaintiffs time and again sought to establish contact with the defendant, the defendant refused and avoided to perform their part of contract, but there is no averment that the plaintiff was in fact ready with the balance consideration, which is a sine qua non for filing a suit for specific performance. He, therefore, assails the order of the trial Court as confirmed by the judgment of the Appellate Court, that both these Courts have not taken into consideration this fact firstly, that there was no concluded contract between the parties and there is no averment in the plaint to show that the plaintiffs were ever ready and willing to perform his part of contract.
7. He places his reliance on the following judgments :
(v) U.N. Krishnamurthy Vs. A.M. Krishnamurthy, (2023) 11 SCC 775.
(vi) Laxmikant V. Patel Vs. Chetanbhai Shah and another (2002) 3 SCC 65.
8. As far as the first judgment in Ambalal Sarabhai Enterprises Limited (supra) he draws my attention to para 15 of the said judgment, which states that the plaintiffs seeking a temporary injunction in a suit for specific performance will have to establish a strong prima facie case based on undisputed facts. The next judgment pressed into service is judgment of Hon’ble Apex Court reported in Shenbagam & others Vs. K.K. Rathinavel, 2022 SCC OnLine SC 71. The learned Senior Advocate places reliance more particularly on para 14, 33 and 34 and 40 thereof to submit that Section 16 of the Specific Relief Act provides certain bars to the relief of specific performance, one of which is failing to aver and prove that the plaintiff has performed or has always been ready and willing to perform the essential terms of contract. He also places reliance on a judgment of the Hon’ble Apex Court reported in U.N. Krishnamurthy Vs. A.M. Krishnamurthy, (2023) 11 SCC 775, and more particularly para 24 thereof, in support of an argument that the plaintiff should make a specific statement in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In a nutshell, it is his submission that the order and the judgment of the Appellate Court cannot be sustained. Lastly, he relies on a judgment of the Apex Court reported in Laxmikant V. Patel Vs. Chetanbhai Shah and another (2002) 3 SCC 65, and more particularly para 17 thereof.
9. Per contra, Mr. Anand Parchure, learned counsel for the respondents draws my attention to the order of the trial Court as well as the judgment of the Appellate Court. It is his submission that both the Courts below have concurrently held that a temporary injunction has to be granted looking to the facts of situation. He also submits that there is no perversity or jurisdictional error shown, and therefore, this Court would be loath to interfere in writ jurisdiction.
10. Rival contention falls for my consideration.
11. Before proceeding further and as transpired on the last occasion, Mr. Parchure has placed before me judgment of this Court in Kachhi Properties vs. Ganpatrao Shankarrao Kadam and Others, reported in 2010 (5) Bombay Cases Reporter 43. In para 30 of the said judgment, this Court held that Section 52 of the Transfer of Property Act provides adequate protection to the parties from transfer pendente lite, and such transfers or transferees are neither required to be impleaded nor can claim impleadment. It is also held by this Court that the provision of Rule 1 of Order 39 is only an enabling provision, recognizing the power in the Court to issue such injunctions, and does not imply that because there is a power, it must be exercised. It, therefore, holds that Section 52 of the Transfer of Property Act is sufficient enough to take care of the situation.
12. However, another learned Single Judge of this Court, in a judgment reported in 2011 (4) Mh.L.J. 137 (Pralhad Jaganath Jawale and others Vs. Sitabai Chander Nikam and Others), has diluted or differentiated the propositions as laid by the earlier Bench in Kachhi Properties referred supra. In para 18 of the said judgment of Pralhad Jawale, this Court has recorded that clause (a) of paragraph No.30 of the judgment in the case of Kachhi Properties will have to be read with paragraph No.15 of the said decision. Thus, this Court held that all that is observed in paragraph No.15 is that powers under Rules 1 and 2 of Order 39 of the Civil Procedure Code cannot be exercised as a matter of course or simply because its exercise is unlikely to hurt a defendant. It, therefore, follows that the proposition of law as laid down has been somewhat diluted.
13. Mr. Anand Parchure, learned counsel for the respondents in his usual fairness, has also placed before me judgment of the Division Bench of this Court in Prakash Gobindram Ahuja vs. Ganesh Pandharinath Dhonde and others, reported in 2016 DGLS (Bom.) 581, and more particularly para 129 thereof.
14. In the said matter before the Hon’ble Division Bench, a specific question was raised as to whether Section 52 of the Transfer of Property Act provides adequate protection to the parties from transfers pendente lite, since such transferees are not required to be or entitled as of right to be impleaded as parties to the suit. The question has been answered in para 129 of the said judgment, wherein it is held that the subsequent judgment in Prakash Jawale's case, holding that the power to grant relief of temporary injunction under these provisions i.e. Order 39 Rule 1 and 2 of C.P.C., is always discretionary and therefore, in a given case, considering the fact of the case, the Court can always come to a conclusion that the plaintiffs may get adequate protection by virtue of Section 52 of the Transfer of Property Act. It is further held that, but calling upon the plaintiff in each and every case to show that the protection granted under Section 52 of the said Act is not adequate, and thereafter only to pass the order of injunction totally against the settled principles in that regard. It is also held that if all the three ingredients as required for the grant of temporary injunction are satisfied, the applicability of Section 52 of the Transfer of Property Act cannot take away power of the Court to grant temporary injunction.
15. The controversy in the present matter has to be decided in the authoritative pronouncements of this Court as referred to supra.
16. In the backdrop of these authoritative pronouncements I have gone through the order of the trial Court. It has held that the defendant has admitted that an agreement is executed between the parties and an earnest money of Rs.2/- lakhs has been received by him. It has went on to record as to whether the defendant has received the remainder amount of Rs.23/- lakhs, as stated in the plaint, would be a matter of evidence. It has further deciphered the entire documents filed by the plaintiff and the defendants herein and has went on to grant a temporary injunction in favour of the original plaintiff.
17. The judgment of the Appellate Court has also recorded a finding in para 20 that there is a consensus ad idem between the plaintiff No.1 and the defendants as to the execution of the agreement. Thus, a prima facie finding is recorded regarding there being a concluded contract between the parties. The order of the trial Court as confirmed by the Appellate Court, therefore, cannot said to be perverse since it takes into consideration entire aspects of the matter, which are borne out of the record on the basis of pleadings and material placed by them.
18. As far as judgments cited by the learned counsel for the petitioner are concerned, first judgment of Ambalal Sarabhai Enterprises (supra) is concerned, the proposition in the same cannot be disputed. As far as next judgment in Shenbagam and Others referred to supra is concerned, the same also reiterates the importance of averring and proving readiness and willingness. In fact, the said judgment was after the conclusion of the trial, and in my considered opinion, would not be applicable at this stage where only an application for temporary injunction is to be decided. Same is the case with the next judgment of U.N. Krishnamurthy vs. A.M. Krishnamurthy. (referred supra). Both these judgments are on an admitted fact that a judgment of specific performance was passed against one party. In that context, the observations of the Supreme Court are to be construed.
19. As far as the last judgment of Laxmikant Patel vs. Chetanbhai Shah (supra) is concerned, the learned Senior Advocate has rightly stated that only when the discretion has been shown to have been exercised arbitrarily or capriciously or perversely, or where the order of the courts under scrutiny ignores the settled principles of law regulating grant or refusal of temporary injunction, in that event only the order can be interfered. In my considered opinion, nothing of this sort is borne out of the record.
20. Even though the principle and proposition of law as stated in the said judgment cannot be disputed, the same would hardly be of any relevance and would not take the case of the petitioner any further. This is so because in the present matter the Appellate Court has rightly looking at the narrow scope of an appeal against order of temporary injunction refused to interfere with the well-reasoned findings of the trial Court.
21. Mr. M.G. Bhangde, learned Senior Advocate, has also pressed into service judgment of this Court reported in 2015 (6) Mh.L.J. 931, Mukhtar Khan Akram Khan vs. Abdul Talib Abdul Wahed and more particularly para 6 and 7 thereof. However, in the said matter, the trial Court on a prima facie view found that various material contents had been handwritten while other portions have been typed in the agreement. In the backdrop of these facts, this Court stated that only because there would be multiplicity in proceedings cannot be a ground to grant injunction in favour of the plaintiffs. Thus, the facts were starkly different and therefore, the said judgment also would not apply.
22. Thus, taking an overall view of the matter, I do not find any perversity or jurisdictional error. The trial Court as also the Appellate Court has rightly considered and appreciated the contents of the record, more particularly in view of the fact that the execution and existence of the agreement was duly admitted by the defendant therein. The issue as to whether there was a concluded contract or not and whether the plaintiffs on the basis of pleadings is able to prove his readiness and willingness as contemplated under Section 16(c) of the Specific Relief Act and all other ancillary aspects would be within the domain of an evidence where the parties would be subjected to cross-examination. It is a settled principle of law that at the stage of deciding an application for temporary injunction the Courts are not supposed to conduct a mini-trial as has been held by the Hon’ble Apex Court in a judgment reported in 2026 INSC 843 (Shruti Manav Sharma and another Vs. Sunaina Singh and others).
23. Thus, taking overall view of the matter, I am of the considered opinion that the petition lacks merits and it warrants dismissal. Therefore, following order is passed :
