Thursday 8 May 2014

When injunction order should not be passed?

Property - Partition - Respondent claimed for partition of suit property for securing her share in property - Injunction order passed restraining Appellant from alienating and creating third party rights against suit property - Hence present appeal - Whether injunction order justified - Held, Respondent's claim restricted to securing up to extent of share in suit property - Security could be compensated by monetary consideration from remaining owners - Appellant promised for not creating third party rights in respect of suit property - Appellant's promise sufficient for protection of Respondents interest - Injunction order not justified - Appeal partly allowed.


Sobha Developers Limited

Ms. Lanka Sitaram Kamthe and others

            DATE  : September 05,  2013
Citation;2014(2) ALLMR 706 Bom,2013(6)ABR29, 2014(1)BomCR830

Rule.   Heard finally by consent of parties.

The   Appellant­original   Defendant   No.1,   developer,   has 
challenged order dated 26 July 2013 passed by the Joint Civil Judge, 
Senior   Division,   Pune,   whereby   granted   Injunction   Application 

(Exhibit 5) filed by Respondent No.1 (Original Plaintiff).

The Suit is filed on 14 February 2013 by the Plaintiff for 
partition claiming 1/6th share in the property in question and claims to 
set aside the registered development agreement,   and the Power of 
Attorney   with   power   to   convey   the   property,     executed   between 

Defendants 1 to 8 and Defendants 9 and 10 dated 20 May 2005 and 
later   on   Defendants   9   and   10   executed   further   development 
agreement and power of Attorney with right to convey the property 
with   Appellants­original   Defendants,     dated   21   July   2006.       An 
Application (Exh. 5) is also filed for the ad­interim relief/injunction on 
18 February 2013.  

The Appellant opposed the ad­interim injunction by filing 
detailed   reply   dated   18   March   2013   and   raised   various   issues 
including of limitation,   by raising specific averments that the Plaintiff 
was fully aware of the documents,  as well as,  the development and 
at least from 11.11.2009.  
Admittedly, there was no ad interim relief 
pending the impugned order dated 26 July 2013 whereby the learned 
Jude has granted the relief so recorded below :
Application   below   Exh­5   is   partly 

  2 Defendant   no.11   is   hereby   temporarily 
restrained   from   further   alienating   the   suit   property   or 
creating third party interest in the suit property or selling 
etc the suit property in any manner through anybody till 
the disposal of the suit.
     ­ ­ ­  ­ ­”
It is relevant to note here that the Appellant has also filed 

Special Civil Suit No.228/2013 against all Respondents (for partition 
of family property of all Respondents i.e. 5 Hectares and 14 ares.). 
The  claim, even if any, of the Plaintiff/Respondent No.1 in the present 
property in question is about 23 ares.     An Application for injunction 
(Exh. 5)  filed by the Appellant in the Suit some time in June 2013 is 
also pending with the Civil Judge, Senior Division, at Pune.       The 
filing of Suit by the Appellant,   as contended by the learned counsel 
appearing for the original Plaintiff/Respondent No.1 itself shows the 
entitlement of Respondent No.1's right. 
The   issue   of   partition   even   if   any,   as   sought   to   be 
contended in the background, needs to be considered in view of above 
undisputed position at later stage,     but the ultimate challenge is to 
the development agreements/Power of Attorney of the year 2005 and 

2009,   by   this   Suit   of   the   year   2013.     The   Suit   for   partition,   even 
otherwise,   could   have   filed   at   the   earliest   point   of   time,     as   the 
transfer   of   the   property   for   development   in   the   year   2005   and 
subsequently in 2009,   itself was well within the knowledge and so 
also the development which has been going on since then.    There is 
no dispute raised except by the plaintiff.   All other legal heirs/owners 

have   signed   those   registered   documents,   based   upon   which   the 
development  commenced with requisite sanctions from the concerned 
Authorities,  at Pune.   Those sanctions  are also not in dispute.  That 
itself means the requisite consent/verification of documents and no 
objection   from   the   owners   have   been   obtained   as   a   part   of   the 
procedure.   There is no averment made by the plaintiff that she was 
not aware of these developments at any earlier point of time.   The 
property   development   has   been   in   progress,   based   upon   those 
document since 2005,  uninterruptedly.  
The   learned   Judge   recorded   in   paragraph   13   factual 
background   about   the   appellant's  knowledge  and  also   the  fact  that 
130   developed   flats   have   already   been   sold   by   the 
appellant/Defendant No.11.     No ad interim relief was granted  till 
the   impugned   order.     The   construction   was   on   and   so   also   the 

development.    The  issue of limitation also though discussed by the 
learned   Judge,   but   without   deciding   the   same   proceeded   to   grant 
injunction as recorded above.
The   prayer   for   partition,   in   the   present   facts   and 
circumstances,   cannot   be   isolated   with   reference   to   other   prayers, 

where declaration is admittedly  sought beyond a period of three years 
to set aside and/or declare those registered documents null and void. 
At present, the Appellant's rights are admittedly flowing from those 
registered documents specifically when except Plaintiff, all other heirs 

never objected for the development at any point of time.  
The dispute between the family members, if any and/or 
the rights of the plaintiff in the family property is always a matter of 
trial and discussion in a situation where  knowing fully the transfer of 
property   by   all   other   heirs,   no   objection   whatsoever   raised   at   any 
earlier point of time.     The internal arrangement between the family 
members in such background just cannot be overlooked, though not 
possible to decide and/or adjudicate at this prima facie stage, but the 
conduct   to   claim   1/6th  share,   even   if   any,   out   of   the   property   in 
question, though other properties are available and  is again a matter 

which just cannot be overlooked while granting and/or considering 
the prayer of interim relief/injunction,   so made by the plaintiff,   to 
halt the project in question.  

The   conduct   of   Plaintiff,   in   above   background,   is   also 
relevant factor apart from delay in initiating the proceedings at the 

appropriate stage knowing fully the development on the property in 
question.   The   law   with   regard   to   the   grant   of   injunction   and/or 
refusal as discussed need no discussion.  What required by the Court is 
to consider the facts and circumstances of the case in hand.   Having 
once noted the stage of development,  as well as, the creation of third 
party rights,  I  am  inclined to observe that at  this stage, no case  is 
made out by the Plaintiff for grant of injunction as ordered.   It is not 
question of deciding the shares and/or rights of the Plaintiff  as it is a 
matter of trial, but the question is also to consider the right so created 
in   favour   of   the   Appellant   based   upon   the   registered   and   valid 
documents of 2005 and 2006 and the right of third party so already 
created since long,   is again an additional factor which goes against 
the Plaintiff. 
The question of balance of convenience and/or equity, in 

view of above, is also tilt in favour of the Appellant and the persons in 
whose favour, rights have already been created.       The injunction so 
granted,  only after hearing both the parties on the basis that the Suit 
is  for  partition   only.      This is not  the  stage  to disturb  the  right  so 
already created.   The issue of irreparable loss, in view of the above 
admitted position on record, in no way, support the Plaintiff as her 

interest is to secure her share of the property basically from the family 
property and against all other legal heirs/co­owners of the property. 
This is not the only property as recorded above, as the Appellant has 
also filed Suit with intention to have a partition of the family property 
so  that   considering  the  share  of  the  Plaintiff, if any, in  the  present 
property, can be compensated and adjudicated in the other Suit.  The 
right of the Plaintiff to have a share also in the property, in the facts 
and circumstances needs to be adjudicated and can be decided during 
the trial and/or subject to settlement between the parties which can 
be   done   at   any   point   of   time.     Had   the   Suit   and/or   proceedings 
initiated immediately from the date of knowledge, the situation would 
have been different.       I am not deciding the rights of the Plaintiff, 
even if any.  It is kept open for the trial Judge to decide.  

Now,   what   remains   is   the   security   to   the   extent   of 

Plaintiff's   share   which,   after   trial   and/or   settlement,   may   be 
compensated as recorded above from the remaining property by the 
remaining   owners   and/or   by   paying   monetary   consideration.     The 
Plaintiff   has   estimated   value   of   her   share   to   the   extent   of 
Rs.50,00,000/­ (Rupees fifty lacs) in the Suit.  The estimation itself is 
not final amount.   In the interest of justice at this stage, therefore, I 

am inclined to accept the statement of the learned Senior Counsel for 
the Appellant, that they will not create third party rights in respect of 
three flats in building known as “Carnation” on the suit plot having 
estimated   cost     about   Rs.3   crores   (Rupees   three   crores).     This 
statement,   in   my   view,   is   sufficient   to   protect   the   interest   of   the 
plaintiff for the time being.  Therefore the injunction,  as granted by 
the learned Judge  in view of above undisputed position on record, is 

In   view  of  above, I am inclined to set  aside/modify the 
order   dated   26   July   2013   and   that   there   is   no   question   of   any 
restraintment   order   against  Defendant  No.1  from  alienating  and/or 
creating third party right or interest in the property as ordered.  
The   liberty   is   granted   to   parties   to   apply   for   transfer 

and/or tagging of Suit No.769/2013 with Suit No.228/2013 as both 
Suits are pending before the Civil Judge, Senior Division, Pune having 
equal jurisdiction.

The liberty is also granted to the parties to apply for early 

hearing of Application (Exh. 5) in the Suit filed by the Appellant.
In view of the present Appeal from Order is partly allowed 
and   it   is   disposed   of   accordingly.    In   view   of  disposal   of   AO,   Civil 
Application No.1144/2013 stand disposed of accordingly.  
. MOHTA, J.)

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