Smti. Anila Soman v. Shri Binny Varghese
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] ...
CO/3/2025 Smti. Anila Soman ...Petitioner Vs.
Shri Binny Varghese & Anr. ... Opposite Parties Mr. K.M.B Jayapal ... for the Petitioner Mrs. Anjili Nag ...for the Opposite Party no.1 Ms. A.S. Zinu ...for the Opposite Party no.2 January 31, 2025 (M.A.Mobin) Item No.9
1. Legality and propriety of the order dated 7th January 2025, passed by the learned District Judge, Andaman & Nicobar Islands, in Misc. Appeal No. 01 of 2025 affirming the order passed by the learned Joint Civil Judge, Senior Division, Port Blair, on an application filed under Order 39, Rule 1 & 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'), in connection with Other Suit No. 144 of 2024, has been called into question in this petition by invoking the provisions of Article 227 of the Constitution of India.
2. The essential facts leading to the presentation of this petition, which need to be outlined for the effective adjudication of this matter, are that Smt. Anila Soman, the petitioner/appellant/defendant no. 1 (hereinafter referred to as 'Mrs. Soman'), executed a power of attorney in favour of Shri Shaji Varghese, the Opposite Party no. 2/Respondent no. 2/Defendant no. 2 (hereinafter referred to as 'Shaji'), authorizing him to take necessary steps concerning the suit properties, including their sale to any intending purchaser(s).
3. Being so empowered, Shaji entered into an agreement for sale to alienate the suit property in his favour of Shri Binny Varghese, the Opposite Party no. 1/Respondent no. 1/Plaintiff (hereinafter referred to as 'Binny'). As part of the agreement, an advance payment of Rs. 30 lakhs were also accepted by Shaji from Binny.
4. Be it noted that time was of the essence of the contract. However, after the expiry of the time specified in the agreement, the deed was not executed in favour of Binny, which compelled him to institute a suit, vide. Other Suit No. 114 of 2024, before the Court of the learned Joint Civil Judge (Senior Division), Port Blair, for a decree of specific performance of the contract.
5. Along with the plaint, an application under Order 39, Rule 1 & 2 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as 'the Code') was also filed, seeking an interim injunction restraining the defendants, namely Mrs. Soman and Shaji, from
alienating the suit property to any third party and from altering the nature, character, and possession of the properties. In the application, the plaintiff/applicant, Mr. Binny, narrating the facts as stated above, contended that the defendants were attempting to sell the suit property to third parties.
6. The record reveals that after a contested hearing, the application was disposed of, and an interim order was passed on 26th December 2024, restraining the defendants, namely Mrs. Soman and Shaji, from alienating the suit property in favour of any third party. The interim order dated 26th December 2024 was challenged in Misc. Appeal No. 01 of 2025, and, as noted earlier, by the order impugned in the present revision, the said Misc. Appeal was dismissed, thereby upholding the order of injunction passed by the learned Trial Court.
7. Mr. Jayapal, learned counsel for the petitioner, argues that in the present case, learned Trial court erred in granting the interim order and the both the learned Courts failed to consider that the petitioner could not establish a prima facie case in his favour. He further submits that when granting an injunction, the Court should also assess whether the plaintiff has a reasonable chance of ultimately obtaining a decree.
8. Referring to Regulation 159(2)(ii) of the Andaman & Nicobar Islands Regulation, 1966 (In short, the 'Regulation'), Mr. Jayapal submits that this provision
prohibits the holder of occupancy rights from selling property if the area is less than 2 hectares. He points out that the agreement for sale involves 0.71 hectares, which cannot be sold in contravention of this Regulation. Therefore, according to him, the plaintiff had no chance of obtaining a decree. He further submits that, due to the legal bar on enforcing the agreement of sale, the plaintiff failed to establish a prima facie case. In his view, if it appears that the plaintiff has failed to make out a prima facie case, the other two ingredients for granting an injunction - namely, 'balance of convenience' and 'irreparable loss' - would also be deemed not have been fulfilled. Furthermore, Mr. Jayapal asserts that Shaji was never authorized to enter into an agreement for sale with any intending purchaser in respect of the suit properties.
9. In response, Ms. Nag, learned Senior Advocate representing Binny, Opposite Party No. 1 hereto, refers to Regulation 159(2)(ii) of the Andaman & Nicobar Islands Regulation, 1966, and contends that the provision applies only to holders of occupancy rights for land exceeding two hectares. According to her, if a holder of occupancy rights sells the entire land, which is below the 2-hectare ceiling limit, there is no legal bar. She asserts that this Regulation does not apply to the present case. Drawing my attention to the relevant clause of the power of attorney, she argues that the power of attorney holder was explicitly authorized to
sell the land to a purchaser. She further argues that after executing the agreement of sale, Mrs. Soman executed another power of attorney in favour of a different person, authorizing him to sell the same pieces of land. Therefore, the learned Court below rightly passed the interim order, which was affirmed by the learned appellate Court in Misc. Appeal No. 01 of 2025, in the order under challenge in this petition.
10. Ms. Zinu, learned Advocate representing Shaji, O.P. no. 2 herein, submits that the original power of attorney has been revoked after the execution of agreement for sale.
11. Heard the learned Advocates. Perused the materials on record.
12. The argument of Mr. Jayapaul has prompted me to reiterate the well-established proposition of law, which requires the Court, while granting an injunction, to assess whether the party seeking the order has established a prima facie case in his favour, whether the balance of convenience tilts in his favour, and whether, without the interim order, he would suffer an irreparable injury that cannot be compensated in monetary terms.
13. To ascertain whether a party seeking an injunction has established a prima facie case, the Court will primarily assess whether the party has raised a substantial issue that warrants trial. Additionally, to evaluate whether the party seeking the injunction has met the other two conditions for obtaining an injunction, the Court will
consider whether, if the injunction is granted but the opposing party ultimately succeeds in the trial, the party against whom the injunction was granted can be adequately compensated. Similarly, the Court will evaluate whether, if the injunction is denied and the party seeking it proceeds with the suit without the injunction and eventually succeeds in the suit, they can be properly compensated. It is well-established in law that when a court is considering an application for an injunction, it may assess whether the party seeking the injunction has a reasonable chance of succeeding in the suit before granting the relief.
14. In the present case, it is evident that the plaintiff, Binny, has provided prima facie evidence indicating that Mrs. Soman executed a power of attorney granting Mr. Shaji the authority to sell the suit property. Acting under this authority, Mr. Shaji entered into an agreement for sale with Binny regarding the suit property and received an advance payment of Rs. 30 lakhs from Binny as part of the consideration. The applicability of Regulation 159(2)(ii) and its impact on the enforcement of the sale agreement will be determined at the trial. I refrain from making any further comments on this matter as it may influence the decision of the learned Trial Court. Until the issue, along with others that may arise from the evidence, are conclusively resolved, it would not be appropriate to conclude that the plaintiff has no likelihood of success in obtaining a decree.
15. In the present case, during the pendency of the suit, the original power of attorney was revoked, and a new power of attorney was executed in favour of another individual, authorizing him to sell the land. In this context, if the interim relief, as prayed for by the plaintiff, was not granted and the suit property were transferred to a third party, the plaintiff would suffer irreparable injury. Furthermore, such an alienation could lead to multiplicity of proceedings and complicate the ongoing litigation.
16. In this context, I am of the view that the plaintiff has established a strong prima facie case and met the other essential criteria for obtaining an order of injunction. Therefore, the learned Trial Court was correct in passing the interim order restraining the defendants from alienating the suit property. The Appellate Court also rightly upheld the Trial Court's decision. I find no patent or jurisdictional error in either order.
Consequently, the petition is dismissed. However, there shall be no order as to costs.
17. After passing of the order, Mr. Jayapal submits that a direction be issued to the learned Trial Court to expedite the disposal of the suit. Mrs. Nag has not raised any objection to such prayer of Mr. Jayapaul.
18. In view of the above, the learned Trial Court is requested to make a sincere effort to dispose of the suit as expeditious as possible, without granting unnecessary adjournments to either party.
19. It is clarified that the observations made in this order are tentative and have been made solely for the purpose of deciding the present application. The Trial Court is to proceed with the matter independently, without being influenced by any of the observations made in this order.
(Partha Sarathi Chatterjee, J.)