Sharifabee Mohammad Sharif Rangrej And Another v. Pruthvirajsing Rajaramsing Chauhan Pardeshi

(1)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO.8435 OF 2016 1.

Smt. Sharif Abee Mohammad Sharif Rangrej, Age: 76 years, Occ: Business, R/o. Bungalow No.12, GOP Road, Ahmednagar.

2.

Saleem Mohammad Sharif Rangrej, Age: 46 years, Occ: Advocate, R/o. As above.

..PETITIONERS

VERSUS

Pruthvirajsing Rajaramsing Chavan @ Pardeshi, Age: 67 years, Occ: Retired, R/o. 5378, Hatampura, Ahmednagar.

..RESPONDENT Mr Satyajit S. Bora, Advocate for petitioners; Mr Nitin V. Gaware, Advocate for respondent CORAM : NITIN W. SAMBRE, J.

DATE : 6th NOVEMBER, 2017 ORAL ORDER :

The petitioners-plaintiffs have filed Special Civil Suit No. 227 of 2008 for specific performance of contract. The petitioners came with a prayer for specific performance of contract for area of 267 sq. ft. x 60 sq. ft., as described in

(2) the plaint based on the agreement of sale dated 5th September, 2005. It is the case of present petitioners that they were initially inducted as tenant in the land in question for area to the extent of 60 sq. ft., x 267 sq. ft., and 60 sq. ft.,x 60 sq. ft., as is reflected in Isar pavti, dated 10th April, 2004 and 28th July, 2005 and final agreement to that effect is claimed to have been notarised on 5th September, 2005 whereby the respondent-land owner agreed to have received Rs.8,00,000/- out of total consideration of Rs.10,00,000/-. Learned trial Court initially vide its order dated 22nd September, 2008 refused to grant exparte ad-interim injunction.

2.

On 2nd May, 2009 the respondent-defendant gave oral undertaking that he will not alienate the suit property.

3.

The injunction applicant, as such, remained pending, which came to be finally decided by order dated 18th April, 2015 passed below

(3) Exhibit-5 restraining the present respondent - defendant temporarily from evicting the plaintiffs without following due process of law or causing any obstruction to the possession over the suit property till decision of the suit.

4.

The petitioners-plaintiffs, feeling aggrieved, preferred Misc. Civil Appeal No.200 of 2015, in which the order of injunction passed above came to be confirmed vide order 14th July, 2016 by District Judge-6, Ahmednagar.

5.

Feeling aggrieved of non grant of injunction restraining the defendant from creating third party interest, the petitioners-plaintiffs preferred this petition.

6.

Heard Mr. Bora, learned Counsel for the petitioners and Mr. Gaware, learned Counsel for the respondent. Mr. Bora, learned Counsel would invite attention of this Court to the wording of Isar pavti, notarised agreement of sale, order of

(4) referring the matter to hand writing expert and would urge that the injunction that was holding the field since 2nd May, 2009 till the order impugned passed below Exhibit-5 i.e. 18th April, 2015 should have been vacated by learned trial Court. He would take me through very language of agreement of sale, alleged agreement of tenancy so as to claim that the petitioners are in settled possession and once third party interest is created, the petitioners will be required to suffer great loss, particularly when consequential remedy under Section 52-A of the Transfer of Property Act cannot be considered to be taking complete care of the interest of the petitioners. Mr. Bora, learned Counsel would draw support from the judgment of Division Bench in Appeal from Order No.256 of 2013 decided on 4th October, 2016, particularly while answering reference in regard to Question Nos. 1,2 and 3 of the reference made therein.

7.

According to him, the petitioners are ready and willing to co-operate learned trial Court

(5) in expeditious decision of the Court. He submits that there should be injunction against the respondent restraining him from creating third party interest. In addition, a submission is made that the reports of hand writing expert though are not exhibited, still are formed to be basis for refusing injunction to the extent of creating third party interest.

8.

Per contra, Mr. Gaware, learned Counsel for the respondent would urge that both the Courts below have in detail dealt with the rival claims of the parties based on prima facie evidence including that of evidence of hand writing expert. According to him, having concurrently held that present petitioners are not entitled for injunction to the extent of creating third party interest, this Court in extraordinary jurisdiction under Article 227 of the Constitution of India should be very slow and cautious in causing interference. He would also try to draw support from the various facts of the case, pleadings viz., profession of present

(6) petitioner, notarized document viz., agreement of sale etc.

9.

Considered rival submissions. The fact remains that from 2nd May, 2009 till 18th April, 2015, ad interim injunction order or undertaking given by the respondent remained in operation. Both the Courts below, while dealing with the claim of plaintiffs-petitioners for injunction, have dwelt upon the documents, circumstances in which they were executed and report of hand writing expert and taking prima facie implication of the same on the application of the petitioners, particularly protecting plaintiff's right as tenant, whereas the claim for grant of injunction restraining the respondent from creating third party interest came to be rejected.

10.

The report of hand writing expert, which is formed to be a basis for consideration (there are two reports; one in favour of the petitioners and another in favour of respondent) was rightly

(7) considered by the Courts below. Though such document i.e. report of hand writing expert is subjected to further scrutiny in the evidence, however, the Courts below while deciding the application for injunction are not precluded from appreciating prima facie value of such piece of evidence.

11.

Apart from above, what is required to be noted is, from 2009 onwards voluntary statement made by respondent-defendant that he will not create third party interest remained in operation, however, it cannot be termed as there remained injunction by virtue of order of the Court. The trial Court though expected of to decide injunction application within 30 days as per scheme of Order 39 of the Code of Civil Procedure, however, chose to decide the same after period of almost more than five years. While deciding the application for injunction, it is always open for the Courts below to consider the evidence brought before it in the form of affidavit and documentary evidence. In this

(8) case, both the parties have tried to establish their case through report of hand writing expert and other material. Once both the Courts below having appreciated material available before it and concurrently recorded findings of fact that the petitioners are not entitled for injunction to the extent of restraining the respondent from creating third party interest, however, granted injunction in favor of the petitioners of protecting their possession over the suit property as tenant. I hardly see any material irregularity or illegality, which prompts us to exercise extraordinary jurisdiction under Article 227 of the Constitution of India.

12.

The claim that there was ad interim injunction order operating since 2009 cannot be considered to the interest of the petitioners and detriment of the respondent, as learned trial Court has every right to decide the application for injunction on its own merit without being influenced by undertaking or any ad interim order.

(9) 13.

As a consequence of above, in my opinion, no case for interference in extraordinary writ jurisdiction is made out. As such, writ petition fails and stands dismissed.

14.

Parties hereto undertake that they shall co-operate with the trial Court in expeditious disposal of the suit, as same is pending adjudication since 2008, i.e. almost for nine years. As such, hearing of the suit is expedited. It is directed that the suit be decided, in any case, within nine months from today.

( NITIN W. SAMBRE, J.) Tupe