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Agarwal and Co. Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 161 of 1985
Judge
Reported in1985(2)WLN373
AppellantAgarwal and Co.
RespondentState of Rajasthan and anr.
DispositionRevision dismissed
Cases Referred and Prematha Roy v. Jagannath Kishore Lal Singh
Excerpt:
.....auction and thereby treating his earlier agreement to have come to an end.; the orders passed by the two courts below do not call for any interference.;revision rejected. - - later, on 31-8-1982 the tehsildar concerned gave him a notice intimating that as he has failed to deposit the outstanding amount the 1/4th amount deposited by him was forfeited and if he had any objection to this, he should appear and make the same. then in june, 1983 the plaintiff filed a suit for injunction restraining the authorities concerned from re-auctioning the brick-kiln and in that suit he applied for grant of temporary injunction which was refused by the trial court on 4-6-1983 and this order was maintained in appeal as well as in revision by the orders dated 17-1-1984 and 6-4-1684. 3. on the..........by the appellate court by its order dated 2-3-1985. hence this revision.5. i have heard the learned counsel for the parties.6. the learned counsel for the petitioner urges that the two courts below have acted illegally and with material irregularity in dismissing the plaintiff's application under order xxxix, rule 1 cpc by ignoring the provisions of section 52 of the transfer of property act which give a negative mandate against the transfer of immovable property pending any suit relating to any right to that property and as in this case the right to the kiln on account of the earlier auction is a matter in dispute, the second auction and thereby transfer of the kiln to a third party would be hit by section 52 of the transfer of property act. in support of this contention he has.....
Judgment:

Kishore Singh Lodha, J.

1. This is a plaintiff's revision against the order of the learned Addl. District Judge No. 1, Hanumangarh dismissing his appeal against the order of the learned Civil Judge, Hanumangarh dated 3-7-1984, dismissing the application under Order XXXIX, Rules 1 and 2 CPC.

2. The facts giving rise to this revision briefly stated are that the plaintiff applicant filed a suit for specific performance of a contract as also for permanent injunction against the defendants respondents. The case of the plaintiff was that the brick-kiln was auctioned on 15-11-1979, whereof the highest bid of Rs. 9000/- was of the plaintiff and he deposited the 1/4th amount of the bid, viz., Rs. 2,250/- at the spot. The remaining amount was to be paid when the bid was to be sanctioned by the Collector under Rule 9 of the Rajasthan Colonizations (Project Area) Brick Kiln (Leases) Conditions, 1966. It was further alleged that for a long time he did not receive any intimation about the sanction of the lease by the Collector. Ultimately it appears that the lease was sanctioned on 27-9-1980 but no limitation of this sanction was ever sent to the plaintiff and, therefore, he could not deposit the remaining amount in time. Later, on 31-8-1982 the Tehsildar concerned gave him a notice intimating that as he has failed to deposit the outstanding amount the 1/4th amount deposited by him was forfeited and if he had any objection to this, he should appear and make the same. It further appears that thereafter the brick-kiln was put to auction again on 29-7-1982. It is not disputed that along with other persons, the present petitioner also gave bid at this auction. Then in June, 1983 the plaintiff filed a suit for injunction restraining the authorities concerned from re-auctioning the brick-kiln and in that suit he applied for grant of temporary injunction which was refused by the trial court on 4-6-1983 and this order was maintained in appeal as well as in revision by the orders dated 17-1-1984 and 6-4-1684.

3. On the dismissal of this application, the plaintiff gave a notice under Section 80 CPC on 14-3-1984 and later filed the present suit for specific performance of the contract on 8-5-1984 as the auction was fixed on that day.

4. He also moved an application under Order XXXIX, Rules 1 and 2 CPC and on that very day notice was ordered to be issued. The Tehsildar was served on that very day but the Collector was served on 10-5-1984 and in the meantime the auction was completed on 8-5-1984. The possession of the kiln was handed over to the auction purchaser on 7-9-1984. The plaintiff's application under Order XXXIX, Rule 1 CPC was rejected by the trial court by its order dated 3-7-1984 and that order has been maintained by the appellate court by its order dated 2-3-1985. Hence this revision.

5. I have heard the learned counsel for the parties.

6. The learned counsel for the petitioner urges that the two courts below have acted illegally and with material irregularity in dismissing the plaintiff's application under Order XXXIX, Rule 1 CPC by ignoring the provisions of Section 52 of the Transfer of Property Act which give a negative mandate against the transfer of immovable property pending any suit relating to any right to that property and as in this case the right to the kiln on account of the earlier auction is a matter in dispute, the second auction and thereby transfer of the kiln to a third party would be hit by Section 52 of the Transfer of Property Act. In support of this contention he has placed reliance upon Hiranya Bhutan Mukherjee and Ors. v. Gouri Dutt Maharaj and Ors. AIR 943 Cal. 227 and Gouri Dutta Maharaj v. Sukur Mohammed and Ors. AIR 1948 PC 147 He laid great stress on the words 'the property cannot be transferred or otherwise dealt with by any party to the suit or the proceeding appearing in Section 52 of the Transfer of Property Act and urges that this was a clear negative mandate. He further added that the Section further provides for transfer with the authority of the court, and on such terms as it may impose which according to him further go to show that without such authority of the court, the transfers, pending the suit would be against law and void.

7 I have given my careful consideration to this contention. Before I come to the question raised by the learned counsel for the petitioner, it may be stated at the out set that both the courts below have considered the three ingredients necessary for the grant or refusal of temporary injunction and have found all the three conditions to be against two plaintiffs. Sitting in revision I do not feel persuaded to take a different view.

8 Now I come to the question whether the courts have acted illegally & with material irregularity in the exercise of their jurisdiction by ignoring the principle laid down under Section 52 of the Transfer of Property Act. In the first place, I am of the opinion, that the courts below cannot be said to have acted in this manner because the illegality or irregularity must be in the manner of exercise of jurisdiction and not in taking a view which may not be correct in law. In the second place, I am also of the opinion that the view taken by the learned Addl. District Judge in respect of Section 52 of the Transfer of Property Act does not appear to be wrong. What the learned counsel wants to be read in Section 52 of the Transfer of Property Act does not appear to be in that auction. According to him Section 52 completely debars a further transaction in respect of the immovable property regarding which same right is in dispute before a court. All that Section 52 lays down is that the transferor cannot transfer or otherwise deal with the property so as to affect the rights of any other party to the suit. In other words,it meant that if a suit is pending in which any right to immovable property is directly and pecifically in question, that property cannot be transferred or otherwise dealt with by any party to such suit so as to affect the rights of any other party to that suit and if such a transfer takes place the subsequent transferee will be bound by the ultimate decree that may be passed in that suit and he cannot claim right to the property in preference to the earlier transferee if he suit decreed. The two authorities relied upon by the learned counsel also do not take a contrary view and do not lay down as proposed by the learned counsel that such a subsequent transfer is altogether barred by Section 52 of the Transfer of Property Act. They also do not lay down that the said Section completely debars any such transaction pending the suit in which the right to that property is in question. In Hiranya Bhusan Mukherjee's case (supra) Section 52 has been explained by saying. 'The doctrine with which this Section is concerned rests upon this found at on that it would plainly be impossible that any action or suit could be brought to a successful termination, if alientions pendente lite were permitted to preail (emphasis added. 'Reference was also made to Faiyez Husain Khan v. Mumhi Prag Narain and Ors. 1907(34) Indian Appeals 102, wherein the Privy Council had said 'pendente lite neither party to the litigation alienate the property in dispute so as to affect his opponent'. So also in Gouri Dutta Maharaj's case (supra), their Lordships observed that 'the broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination'. None of those two authorities has laid down that subsequent transaction relating to the property in dispute is void ab-initio or is totally prohibited under Section 52 of the Transfer of Property Act.

9. Faced with this situation, the learned counsel for the petitioner urges that in a suit for specific performance of a contract temporary injunction should be granted as a rule to prevent any further transfer of the property by the same transferor and in this connection he placed reliance upon Begum v. Seth Dooli Chand 2 Indian Cases 226 and Prematha Roy v. Jagannath Kishore Lal Singh 16 Indian Cases 359.

10. I have given my careful consideration to this contention also and I am of the opinion that the principle cannot be so broadly stated. It may be stated that generally in a suit for specific performance of a contract the court may grant an injunction preventing further transfer inspite of the fact that the plaintiff may be affected by the doctrine lis pendis but it can not be said that in such cases temporary injunction has to be granted as a matter of course or routine. Even in the cases cited by the learned counsel all that has been stated is that if there is a clear valid contract for transfer, the court will not permit the transferor after wards to transfer the legal estate to a third person, although such third person would be effected by lie pendis. Thus it would depend on the facts and circumstances of each case. In the present case, as already pointed out above, the two courts below have found that there is no prima-facie case in favour of the plaintiff in as much as his contract cannot be said to be a clear valid contract for sale in as much as he not only did not deposit 3/4th amount of the contract, but had already made applications for the witdrawal of the 3/4th amount deposited by him before the lease was sanctioned by the Collector in his favour and he had also participated in giving bids at the subsequent auction and thereby treating his earlier agreement to have come to an end. It would not be proper for me to deal with this aspect of the matter in detail, lest it should prejudice the parties at the trial.

11. I am clearly of the opinion that the orders passed by the two courts below do not call for any interference. The revision petition, therefore, fails and is hereby rejected.

12. Looking to the circumstances of the case I shall leave the parties to bear their own costs.


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