Dismissed

Rajendra Rupchandra Jain and Anr. v. Akbar Badshah Pathan and Anr.

Bombay HC27 Jun 2011AO/63/2011

Case brief

AI extract

What is this about?

This appeal challenged the trial court's rejection of an application for injunction restraining respondents from alienating suit property. The plaintiff alleged intention to sell via newspaper publication. The High Court held that no evidence was brought on record to show intent to alienate and dismissed the appeal.

What did the court decide?

Appeal from Order and Civil Application rejected; prayer for continuation of interim order dismissed.

Rajendra Rupchandra Jain and Anr. Vs Akbar Badshah… — Specific Performance | Bombay HC (2011)

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Appeal from Order No.63/2011

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY,

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BENCH AT AURANGABAD

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APPEAL FROM ORDER NO.63 OF 2011 WITH CIVIL APPLICATION NO.4869 OF 2011

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Rajendra s/o Rupchandra Jain & anr. ... APPELLANTS

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VERSUS

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Akbar Badshah Pathan & anr.

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... RESPONDENTS

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Shri A.P. Bhandari, Advocate for appellants Shri C.K. Shinde, Advocate for respondents

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CORAM : S.S. SHINDE, J. DATED : 27th June, 2011.

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PER COURT :

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This Appeal from Order is filed challenging the order dated 25.3.2011, passed by Civil Judge, Senior Division, Aurangabad below Exhibit 5 in Special Civil Suit No.580/2010. The learned counsel appearing for the appellants submits that, in spite of specific pleadings in the plaint, and denial of the same in the written statement about the paper publication, showing intention of the respondents to sell the land by publishing the notice in the newspaper, the trial Court has not considered the said pleadings and also arguments advanced by the Advocate for the plaintiffs that the respondents had disclosed the intention to sell the suit

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Appeal from Order No.63/2011

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property. It is further submitted that, though the learned Judge observed that the respondents were present in the office of the Sub-Registrar for executing the sale deed, they were not present in the office of the Sub-Registrar at Paithan and they were present in

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the office of the Sub-Registrar at Aurangabad. It is further submitted that, in case the property is allowed to be alienated, it will cause irreparable loss to the plaintiffs and it will nto be possible to recover the said property. According to the learned counsel for the appellants, the contentions of the original plaintiffs as stated hereinabove have not been denied by the respondents in their reply. Therefore, according to the counsel for the appellants, the findings recorded by the court below are contrary to the record. The observations of the Court in para 16 that there is no evidence to show that defendants are really intending to sell the suit property in favour of third person are contrary to the pleadings in the plaint and also contrary to the evidence placed on record, which is at Exhibit F of the compilation of the Civil Application, which formed part of the trial Court’s record. Therefore, counsel submits that this Court may allow this Appeal from Order by setting aside the impugned order until the disposal of the appeal, confirming the interim order by prohibiting the respondents from alienating the suit property.

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Appeal from Order No.63/2011

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On the other hand, learned counsel appearing for the respondents submitted that, the trial Court, after assessing the evidence on record, and after hearing the rival submissions, and referring to the judgment of this Court in case of Kachhi Properties, Satara Vs. Ganpatrao Shankarrao Kada and others [2010 (5) Mh.L.J. 903], wherein this Court has taken a view that, “Transfer pendente lite – Section 52 of the Transfer of Property Act provides adequate protection to parties to lis- Occasions for invoking powers under Order 39 Rules 1 and 2 would arise only in rare cases where the plaintiff can demonstrate that rule of lis pendens is inadequate

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to protect plaintiff’s interest” has passed the impugned order. Therefore, counsel for the respondents would submit that, when no case was made out, no evidence is brought on record to show that the respondents are intending to sell the property, in that case, the order passed by the trial Court is just and proper and this Court may not interfere in the said order.

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I have given due consideration to the submissions of learned counsel for the appellants and learned counsel for the respondents. Upon perusal of para 16 of the judgment, it is clear that, the trial Court has recorded that no evidence was shown that the defendants are really intending to alienate the property in favour of third person. Though the learned counsel appearing for

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Appeal from Order No.63/2011

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the appellants repeatedly argued that in plaint there are specific pleadings that the respondents intended to sell the property and to that effect notice was given in the newspaper. However, from perusal of the judgment impugned in this Appeal from Order, I do not find that such submission advanced by the counsel appearing for the plaintiff. Therefore, the Court has confined to the arguments, the points argued before it and has observed in para No.16 that, “There is no evidence to show that defendants are really intending to alienate the suit property in favour of third person.”

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Whether the respondents were present in the office of the Sub-Registrar at Paithan or at Aurangabad is a separate issue and in my opinion, while considering the application for injunction restraining the respondents from alienating the suit property, that point may not be relevant. After all, the grant of order of injunction is a discretionary relief and on the basis of material placed on record by the parties, the Court has reached to the conclusion that the plaintiffs have failed to demonstrate that the respondents had intention to sell the suit property. The trial Court, in para 15 has referred to the judgment of this Court in case of Kachhi Properties, Satara Vs. Ganpatrao Shankarrao Kada and others reported in [2010 (5) Mh.L.J. 903]. There is nothing brought on record to show

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Appeal from Order No.63/2011

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that the rule of lis pendens is inadequate to protect the plaintiffs’ interest. Only the general submissions are advanced that in case the suit property is allowed to be alienated, the said property cannot be recovered.

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Taking overall view of the matter, in my opinion, no case is made out for interference in the Appeal from Order. Appeal from Order and also Civil Application stand rejected. However, it will be open for the plaintiffs to file fresh application if they get the concrete evidence to show that the respondents have intention to alienate the property.

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At this stage, counsel appearing for the appellants prays that the interim order granted by this Court may be continued for a period of eight weeks. Once this Court has passed order dismissing the Appeal from Order and also Civil Application, there is no question of further continuing the interim relief in a rejected Appeal from Order. Hence, prayer stands rejected.

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( S.S. SHINDE, J. )

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fmp/ao63.2011

Rajendra Rupchandra Jain and Anr. v. Akbar Badshah Pathan and Anr.

Case brief

What is this about?

What did the court decide?

Rajendra Rupchandra Jain and Anr. v. Akbar Badshah Pathan and Anr.

Case brief

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What did the court decide?

What the court decided

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