A.N.JINDAL,J. - (1.) THE trail court as well as the first appellate court granted injunction against the petitioner from alienating the suit property, therefore, the defendant- petitioner has again come to challenge those orders by way of the present petition.
(2.) THE case of the plaintiff- respondent (herein referred as, 'the respondent') is that the petitioner- defendant (herein referred as, 'the petitioner') being the owner in possession of the land as detailed in the head note of the plaint agreed to sell the same in his favour for a sum of Rs. 15,25,000/- vide agreement dated 9.2.2007 after making the payment of earnest money to the tune of Rs. 8,25,000/- entered into an agreement and he was to execute and get the sale deed registered in favour of the respondent by 11.6.2007. Having failed to perform his part of contract, the respondent had to file the suit. Along with the suit an application for adinterim injunction was filed restraining the petitioner from alienating the suit property. The usual plea raised by the petitioner is that he never entered into the agreement to sell and the same is the result of fraud. He has explained in his written statement that the respondent had managed to forge the said agreement to sell in connivance with the attesting witnesses, scribe and one Milkha Singh son of Nihal Singh resident of village Gillanwala Tehsil Ferozepur, who was earlier owner in possession of the suit land. The said Milkha Singh had lost litigation regarding the suit land up to the level of High Court against Rupinder Kumar from whom the petitioner had purchased the suit land. Earlier the suit filed by Rupinder Kumar was decreed against Milkha Singh. Milkha Singh had also lost in appeal and also in the Regular Second Appeal before the High Court. Thereafter, he (the respondent) in connivance with Milkha Singh concocted this agreement purported to have been executed by the petitioner in favour of the respondent. Both the courts below decided the application for ad-interim injunction against the petitioner. Learned counsel for the petitioner has contended that since the principles of lis-pendens could apply, therefore, no injunction could be granted and in support of his contentions he has relied upon the delivered in case Hari Singh v. Nishan Singh and others, Civil Revision No. 4879 of 2009 decided on 19.5.2010 and Hari Singh v. Banta Singh and others, Civil Revision No. 4967 of 2009, decided on 1.9.2009. As a matter of fact, both these s do not discuss the provisions of Section 52 of Transfer of Property Act, 1882 (herein referred as, 'the Act') in minute. The provisions of Section 52 of the Act came for discussion before the Calcutta High Court in case Smt. Muktakesi Dawn and others v. Haripada Mazumdar and another, AIR 1988 Calcutta 25 wherein it was observed as under :- "It is true that the doctrine of lis pendens as enunciated in Section 52 of the Transfer of Property Act takes care of all pendente lite transfers; but it may not always be good enough to take fullest care of the plaintiffs interest vis-a-vis such a transfer., The suit giving rise to the impugned order is one for specific performance of sale in respect of the suit property and if the defendant is not restrained from selling the property to a third party and accordingly, a third party purchases the same bona fide for value without any notice of the pending litigation and spends a huge sum for the improvement thereof or for construction thereon, the equity in his favour may intervene to persuade the court to decline, in the exercise of its discretion, the equitable relief of specific performance to the plaintiff at the trial and to award damages only in favour of the plaintiff. It must be noted that R. 1 of Order 39 of the Code clearly provides for interim injunction restraining the alienation or sale of the suit property and if the doctrine of lis pendens as enacted in Section 52 of the Transfer of Property Act was regarded to have provided all the panacea against pendente lite transfers, the Legislature wold not have provided in R . 1 for interim injunction restraining the transfer of suit property. R. 1 of Order 39, in our view, clearly demonstrates that, notwithstanding the Rule of lis pendens in Section 52 of the Transfer of Property Act, there can be occasion for the grant of injunction restraining pendente lite transfers in a fit and proper case.
(3.) ORDER 39 Rules 1 and 2 CPC had been enacted by the legislature in the interest of preservation and against loss or damage to the property during the pendency of the suit, whereas, the effect of Section 52 of the Act could be seen at the final stage of the suit. If the property changes hands during the pendency of the suit then it may give rise to the multiplicity of suits and subject matter of the suit is likely to be change many hands if a person not party to the lis changes nature of property by spending huge money and he had no notice of the litigation then equity may stand in the way of the court to grant the relief of specific performance which is purely a discretionary in nature. The proposed vendee though does not have any clear title over the property but he having parted with the huge amount creates a vested right in it to get it transferred in his favour and could come forward to prevent the mischief of proposed vender in transferring the same to some body else and request him not to alienate it further till his rights are established. It is also pertinent to mention here that such sale further multiplies the litigation if the subsequent vendee, on the strength of such document of transfer further pledges or mortgages the said land and obtains a huge loan, then the person or institution so advancing the loan would feel cheated. The court at the time of grant of injunction is not to see the effect of such sale but examine the comparative loss. The balance between the convenience and inconvenience of the parties and to save the suit property from being changed, damaged or destroyed. The Calcutta High Court in Muktakesi Dawn's case (supra) while discussing the role and scope of Section 52 of the Act as well as the intention of the legislature to enact the provisions of Order 39 Rules 1 & 2 CPC observed as under :- ".... We accordingly reject this contention of Mr. Roy Choudhury that the impugned order of injunction restraining pendente lite transfer ought not to have been granted as the rule of lis pendens, as enacted in Section 52 of the T.P. Act, is there to take care of such transfer. ;