Allowed

Smt. Meeta Bandopadhyay v. Ram Krishna Mishra and 5 Others

Allahabad HC12 Dec 2018A227/1574/2018

Case brief

AI extract

What is this about?

Upholding a writ petition challenging a temporary injunction order, the High Court held that injunction cannot be granted under Order 39 Rule 1 CPC or Section 53-A of TP Act without a counterclaim and proof of possession transfer in the underlying property suit.

What did the court decide?

Impugned order dated 3.2.2018 granting temporary injunction set aside and petition allowed; suits directed to be consolidated.

Smt. Meeta Bandopadhyay Vs Ram Krishna Mishra and 5… — Property and Title | Allahabad HC (2018)

¶1

Court No. - 36

¶2

Case :- MATTERS UNDER ARTICLE 227 No. - 1574 of 2018 Petitioner :- Smt. Meeta Bandopadhyay Respondent :- Ram Krishna Mishra And 5 Others Counsel for Petitioner :- Narendra Mohan Counsel for Respondent :- Dinesh Chandra Mishra,Anoop Baranwal,Bibhuti Narayan Singh

¶3

Connected with

¶4

Case :- MATTERS UNDER ARTICLE 227 No. - 5783 of 2018 Petitioner :- Dinesh Chandra Mishra Respondent :- Additional Civil Judge Senior Division Allahabad And 4 Others

¶5

Counsel for Petitioner :- In Person

¶6

Hon'ble Mrs. Sunita Agarwal,J.

¶7

Heard learned counsel for the petitioner and Sri Dinesh Chandra Mishra, the respondent no. 3/defendant in person.

¶8

As in both the petitions, the dispute is between the same parties with regard to the same property, therefore, both the petitions are consolidated and heard together and are being decided by this common judgment.

¶9

The petition no. 1574 of 2018 is directed against the order of temporary injunction dated 3.2.2018 granted by the First Appellate Court in Civil Misc. Appeal No. 260 of 2005 (Ram Krishna Mishra and others vs. Km. Priti Lata Mukherjee and others) which has arisen out of an Original Suit No. 774 of 2004 (Km. Priti Lata Mukherjee vs. Ram Krishna), filed by the predecessor-in-interest of the petitioner.

¶10

The relief claimed therein is for cancellation of an agreement dated 24.6.1994 with the assertion that the said agreement was an outcome of fraud committed by the defendants. The written statement was filed on behalf of the defendants/respondents on 5.2.2005. Admittedly, no counterclaim had been filed by the defendants in Original Suit No. 774 of 2004, claiming their right on the basis of agreement to sell dated 24.6.1994.

¶11

It appears that during pendency of the said suit, an application 25C seeking temporary injunction, under Order 39 Rule 1 CPC was filed by the defendants in the aforesaid suit. The prayer made therein was to restrain the plaintiff from alienating the suit property namely House no. 210 (new)/145 (old), Allenganj, Allahabad. The said application was rejected vide order dated 24.8.2005 with the categorical observation by the trial court that no injunction could be granted in favour of the defendants against the plaintiff as the defendants cannot get any right over the suit property without bringing a suit for specific performance of agreement, even if the plaintiff's suit is dismissed.

¶12

After rejection of the said application, it appears that the Suit No. 410 of 2006 seeking relief of specific performance of agreement in

¶13

question has been filed by the defendants.

¶14

The order passed by the trial court for rejection of the temporary injunction application 25-Ga had been taken up in Misc. Civil Appeal No. 260 of 2005. The Court of the Additional District Judge, Court No. 5, Allahabad by the order impugned dated 3.2.2018 had granted injunction in favour of the defendants on the plea of the defendant, of protection of Section 53-A of the Transfer of Property Act. The appellate court has recorded that the factum of transfer of possession to the defendants, after execution of agreement to sell dated 24.6.1994 was admitted by the plaintiff, in another suit filed by her brother and an injunction has been granted therein restraining her from execution of the sale deed pursuant thereto.

¶15

The submission of learned counsel for the petitioner that any admission in a suit which was not between the parties, could not be taken as a ground to grant injunction where a specific plea of fraud has been taken. Moreover, it is contended that the protection of Section 53-A of the Transfer of Property Act cannot be granted to the defendants, inasmuch as, he has not claimed their right in the suit property by filing a counterclaim. Mere agreement to sell without transfer of possession allegedly executed by the plaintiff would not confer any right in favour of the defendants to get a relief of injunction that too without filing a counterclaim seeking final relief in their favour.

¶16

In the subsequent suit seeking relief of specific performance of agreement, filed by the defendants, no injunction has been granted as on date.

¶17

Sri Dinesh Chandra Mishra namely the respondent no. 3/defendant is appearing in person. Placing reliance upon the judgments of this Court in Shiv Ram Singh vs Smt. Mangara and Ors. reported in AIR 1989 All 164 and Vide Vincent Vs. Aisumma, reported in AIR 1989 Ker 81 he submits that the application for interim injunction filed by the defendants under Order 39 Rule 1 and 2 CPC can be maintained so as to protect the interest of the parties to the suit and the suit property from being alienated by any of the parties to the suit.

¶18

With the aid of the judgment of the Bombay High Court in Sadashiv Chander Bhamgare vs. Eknath Pandharinath Nangude reported in AIR 2004 Bom 378, it is submitted that it was not necessary for the defendants to file a suit for specific performance. It is contended that even if, a plaintiff has omitted to institute the suit for specific performance and by virtue of the provisions of Order 2 Rule 2 CPC, the suit of the plaintiff for a decree of specific performance is barred, he can claim protection of his possession by filing a suit for decree of perpetual injunction, which shall not be barred under Section 41(h) of the Specific Relief Act.

¶19

Testing this submission of the respondent no. 3 (in person) and noticing the provisions as contained in Order 39 Rule 1(a) of the CPC, it is evident that the provisions in clause (a) of Rule 1 CPC speaks of power of the Court to exercise its jurisdiction granting temporary injunction so as to protect the suit property from the

¶20

danger of being wasted, damaged or alienated or wrongfully sold in execution of a decree. The power conferred on the Court in clause (a) cannot be claimed as a right by the defendant to seek temporary injunction against the plaintiff without filing a counterclaim for declaration of his right in the suit property. The observations made in the judgment of this Court in Shiv Ram Singh (supra) also supports the view taken by this Court, inasmuch as, the Court has held therein that an interim protection can be granted to the defendants only in exceptional circumstances in exercise of inherent jurisdiction, in a very rare case. The facts therein were that the defendants sought permission to repair the building as it was very old and was in a tattered condition. The permission was, therefore, granted to make it habitable without making any alteration or addition therein.

¶21

The observations made by this Court therein that the Court below had inherent power to grant interim injunction in favour of the defendant thus was in the line of the powers of this Court as provided in Rule 1(a) of Order 39 CPC and was issued in the exceptional facts and circumstances of that case. The said observations cannot be said to be a binding ratio of the case and are of no benefit to the petitioner.

¶22

In the instant case, injunction claimed by the defendants by means of the application filed in the year 2005 was that the plaintiff had parted away with her possession in the suit property after execution of the agreement dated 24.6.1994. It is admitted to the petitioner that the agreement does not contain any clause of transfer of possession to the defendant. No stamp duty for the purpose, admittedly, had been paid by the parties at the time of the execution of the agreement.

¶23

The question as to whether the possession of the suit property was actually handed over to the defendants is a question which is subject matter of evidence. The said question could not have been answered by the appellate court on the temporary injunction application moved by the defendants in the suit filed by the petitioner herein. The temporary injunction could only be granted to the defendants, in case, they had filed a counterclaim in the suit and proved their possession over the suit property in part performance of the contract/agreement.

¶24

The protection of Section 53-A of the Transfer of Property Act cannot be given to the defendants in absence of any clause in the agreement regarding transfer of possession or any other cogent evidence on record.

¶25

For the aforesaid, the order impugned dated 3.2.2018 passed by the First Appellate Court in Misc. Civil Appeal No. 260 of 2005 (Ram Krishna Mishra and others vs. Km. Priti Lata Mukherjee and others), is hereby set aside.

¶26

The present petition is allowed .

¶27

Both sides have prayed for expeditious disposal of the suits.

¶28

The Court below is, therefore, directed to consolidate the Original Suit No. 774 of 2004 (Km. Priti Lal Mukherjee vs. Ram Krishan) with the Original Suit No. 410 of 2006 and make an endeavour to decide the same, expeditiously, preferably, within a period of one year from the date of submission of certified copy of this order.

¶29

However, it goes without saying that any observations made by this Court hereinabove would not come in the way of the defendants/respondent nos. 1 to 4 in seeking any relief in the suit filed by them namely the Original Suit No. 410 of 2006 and the observations made hereinabove are only to test the validity of the temporary injunction order dated 3.2.2018 granted in Misc. Civil Appeal No. 260 of 2005 arising out of Original Suit No. 774 of 2004.

¶30

Order Date :- 12.12.2018 Brijesh

Smt. Meeta Bandopadhyay v. Ram Krishna Mishra and 5 Others

Case brief

What is this about?

What did the court decide?

Smt. Meeta Bandopadhyay v. Ram Krishna Mishra and 5 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Daya Ram Vs Smt. Gudiya Mishra

Subhagi and 5 Others Vs Civil Judge (Junior Division ) Shahar, Azamgarh and 5 Others

Umesh Kumar Sharma Vs Union of India and 6 Others

Satendra Singh Vs Sri Ram Transport Finance and Another

Vinod Kumar Vs Civil Judge and 2 Others

Mahaveer Kushwaha Vs Madan Ram