Find a Lawyer

First Appeal from Original Order No.132 of 1983, decided on 13th November, 1983.

---S.53--Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2- Temporary injunction against alienation of property pending disposal of suit--Grant or refusal of--Principle of grant or refusal of temporary injunctions is regulated by provisions of S.53, Specific Relief Act, 1877 and O.XXXIX, Rr.l & 2, C.P.C.--Court in its discretion is empowered to grant temporary injunction preventing a party from alienating property until disposal of suit.

---S.52--Lis pendens, principle of--Object and scope--Principle of lis pendens protects plaintiff against alienation of property during pendency of suit in favour of a third party.

-----S.53--Contract Act (IX of 1872), S.73--Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & OXLIII, R.1--Transfer of immovable property, prevention of--Refusal to grant injunction--Effect--Breach of a contract regarding transfer of property, held, could not be adequately relieved by compensation in money--Refusal to grant injunction in such cases was likely to result in multiplicity of proceedings--Where balance of convenience also tilted in favour of plaintiff, temporary injunction should never be refused--Where Court overlooked basic principle of grant or refusal of injunction, High Court in its appellate jurisdiction set aside order of Trial Court and allowed appeal restraining respondent from alienating land pending disposal of suit.

Syed Muhammad Zainul Abidin for Petitioner.

Muhammad Zaman Bhatti and Muhammad Aslam Chatha for Respondent.

Date of hearing: 13th November, 1983.

This appeal under Order XLIII, Rule 1, C.P.C. arises out of order, dated 31-5-1983 of the learned Additional Administrative Civil Judge, Faisalabad whereby he dismissed application for temporary injunction filed bar the appellant in a suit for possession of the disputed property through specific performance of agreement.

2. The relevant facts giving rise to this appeal are that Rustam Ali appellant herein, instituted a suit for possession of the suit property through specific performance of agreement against Ch. Mukhtar Ahmad Anwar alleging therein, that the latter had agreed to sell his property No.P-49, Gordwara Gali No.3, Katchery Bazar, Faisalabad, for a sum of Rs.24 lacs. He received Rs.4 lacs as advance payment. towards the sale price and executed receipt in favour of the appellant. AS regards balance of Rs.10 lacs the same was to be paid to him in the middle of August, 1983 whereupon the vendor would get the sale-deed registered and deliver possession of the property in favour of the appellant/ plaintiff. On his refusal to honour his commitment he had to institute the suit seeking specific performance of the contract. Alongwith the suit the appellant filed an application seeking temporary injunction restraining the respondent from alienating the property in dispute pending disposal of the suit.

3. The respondent denied the proposal for the sale of the property in dispute in favour of the appellant or any oral agreement of sale in, respect thereto, made with the appellant. He, however, admitted the execution of document, dated 12-2-1983 issued in favour of the appellant at the instance of one 'Muhammad Jamil a marginal witness of the same acknowledging receipt of Rs.4 lacs (a draft of Rs. one lac and cheque, dated 15-3-1983 for Rs.3 lacs) as advance for the sale of property No.P-49 Gordwara Gali No.3, Katchery Bazar, Faisalabad. He, however, contested the application for temporary injunction. The learned trial Judge vide the impugned order, dated 31-5-1983 dismissed the application on the ground that the principle of 'lis-pendens' would govern any transfer made by the respondent during the pendency of the suit and will not adversely effect the rights of the appellant hence this appeal.

4. Learned counsel for the appellant contended that the plaintiff had prima facie case in his favour inasmuch as that the respondent/ defendant did not deny execution of the document, dated; 12-2-1983 and receipt of Rs.4 lacs in advance towards the sale price of the property in dispute. He has not specifically denied the terms of the agreement but pleaded that such an agreement could not take place. It was also stated that principle of 'lis-pendens' embodied in section 52 of the Contract Act is available to the plaintiff against the third party who secures any right in the property during the pendency of the suit but the temporary injunction is governed by Order XXXIX, Rules 1 and 2, C.P.C. preventing the defendant from alienating the suit property until the disposal of the suit. It was also stated that the disposal of the property during the pendency of the suit would cause irreparable loss to the appellant. It would not be adequately relieved by compensation in money and would result in multiplicity of proceedings. It was argued that the respondent has not denied the receipt of Rs.4 lacs on account of the sale agreement, but it has been alleged that the terms of the agreement of sale were not reduced in writing.

5. Learned counsel for the respondent, on the other hand, contended that no agreement of sale was executed between the parties and that the alleged terms of the agreement mentioned in the plaint lacked mutuality of contract and do not establish a prima facie case in favour of the appellant. It was also argued that the appellant's rights in the property would be protected in case of alienation of the property, during the pendency of suit, by virtue of the principle of lis-pendens. It was next submitted that the plaintiff has not claimed relief in the suit, in the nature of permanent injunction, in the absence whereof, he was not entitled to ask for temporary injunction. It was also stated that the respondent had been willing to refund the amount of Rs.4 lacs to the appellant, and therefore, he was not to suffer irreparable loss.

6. I have considered the contentions raised by learned counsel for the parties and have gone through the record. Neither the receipt of Rs.4 lacs in advance towards the sale price of the property in dispute nor the execution of document, dated 12-2-1983 has been denied by the respondent. This factum alone established prima facie case in favour of the appellant. The principle of grant or refusal of temporary injunctions is regulated by the provisions of section 53 of the Specific Relief Act read with Order XXXIX, Rules 1 and 2, C.P.C. wherein the Court in its discretion is empowered to grant temporary injunction to preventing the respondent from alienating the property in dispute until the disposal of the suit. The principle of lis pendens embodied in section 52 of the Transfer of Property Act protects the plaintiff against alienation of the property during the pendency of suit in favour of a third party. The temporary injunction provides protection of the suit property during the disposal of the suit and prevents multiplicity of proceedings.

In the instant case balance of convenience also tilts in favour of the appellant. He has already paid Rs.4 lacs and the property is in possession of the respondent. It is well settled that the breach of a contract regarding transfer of immovable property cannot be adequately relieved by compensation in money. The refusal to grant injunction in the circumstances of the case, is likely to result in multiplicity of proceedings.

7. It appears that the learned trial Judge overlooked the basic principles of grant or refusal of temporary injunction. I am, therefore, constrained to set aside the impugned order and allow this appeal by restraining the respondent from alienating the suit property pending disposal of the suit.

8. Learned counsel for the parties requested for early disposal of the suit and pointed out that the case is already fixed on 27-11-1983 for evidence of the parties. The request is reasonable. Learned trial Judge is directed to dispose of the suit within four months from the date of this order.

9. There shall be no order as to costs.

A.A./R-17/L Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.