Whether tenant can create third party interest in tenanted premises if he is permitted to sublet tenanted premises?

 Yet another ground for eviction is construction of shops in the suit premises by the tenants and sub-letting the same in violation of terms of rent agreement. Though, there is a Clause in the rent agreement enabling the tenants to put up construction, there is no Clause in the lease agreement permitting the tenants to transfer his interest of tenancy to third party. It is the case of the Appellant that in violation of the rent agreement, Anwar Ul Haq who was one of the original tenants, transferred his interest of tenancy in favour of third Respondent Mohd. Ilyas alias Chaman. The Appellant-landlord specifically denied that such transfer of interest in the tenancy was with the consent of the original landlord. On the other hand, the Respondents-tenants in support of their claim submitted that such transfer of interest in tenancy had taken place with the consent and knowledge of the original landlord, relied upon Exs. A1 to A7 which are the receipts said to have been signed by the original landlord issuing to Mohd. Ilyas alias Chaman as one of the tenants. In view of specific denial by the Appellant-landlord that they have permitted such transfer of interest, the receipts Exs. A1 to A7 ought to have been proved by adducing evidence. The Respondents-tenants, though relied upon the said documents, had not taken steps to prove those documents.

15. On those issues, the courts below recorded findings that the rent agreement nowhere prohibited any of the tenants from transferring their interest in tenancy and therefore, there was no violation of any of the terms of the rent agreement. In noting so, the trial court lost sight of the fact that in the rent agreement, parties specifically incorporated Clause (9), permitting sub-letting by tenants. Had the parties agreed to create or transfer of interest in the tenancy in favour of third party, they would have added a specific term in that regard in the rent agreement. Though, sub-letting of the premises for commercial purpose was agreed to by the original parties, transfer of interest in tenancy leading to creation of third party interest in the suit property could not have been done in the absence of a specific term in the rent agreement. Thus, the Respondents-tenants are liable to be evicted on the ground of violation of terms of rent agreement by transfer of interest in tenancy to Respondent No. 3 - Mohd. Ilyas alias Chaman.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 20915 of 2017 (Arising out of SLP (C) No. 27765 of 2010)

Decided On: 06.12.2017

Syed Sughra Zaidi Vs. Laeeq Ahmad (Dead) through L.Rs. and Ors.

Hon'ble Judges/Coram:
Kurian Joseph and R. Banumathi, JJ.
2018(1) CIVIL COURT CASES 646 (S.C.)

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Whether doctrine of laches is applicable in case of continuing wrong?

 As regards the issue of delay in matters pertaining to claims of pension, it has already been opined by this Court in Union of India v. Tarsem Singh, (2008) 8 SCC 648 that in cases of continuing or successive wrongs, delay and laches or limitation will not thwart the claim so long as the claim, if allowed, does not have any adverse repercussions on the settled third-party rights. This Court held:

7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.

Reportable

Supreme Court of India

Asger Ibrahim Amin vs Life Insurance Corp. Of India on 12 October, 2015

Bench: Vikramajit Sen, Abhay Manohar Sapre

Citation:(2016) 13 SCC 797

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When court should not grant injunction restraining defendants from creating third party interest in property?

Secondly trial Court also considered the fact that there was no cause for apprehension on the part of the appellant, that respondent No. 1 will dispose of flat No. 401 as well as two car parkings bearing Nos. 3 & 4 illegally. The trial Court also considered the decision of this Court in Kachhi Properties, Satara v. Ganpatrao Shankarrao Kadam and Ors MANU/MH/0957/2015 : 2015 (5) Mh. L.J. 903 and held that as the protection against creation of third party interest is always available under Section 52 of the Transfer of Properties Act, there is no necessity of granting any ad-interim relief of injunction.

Now as regards to other averments in paragraphs on which the appellant is relying, it may be true that those averments make out a case of the appellant that he has purchased 50% share and interest in plot of land and the said shares. However, this case of the appellant and the averments in the documents prima facie cannot be accepted for the simple reason that Index II of the said property is produced on record which clearly goes to show that only flat No. 401 was purchased and sold and not 50% of share in the said land. Stamp duty is also paid accordingly. Thus, prima facie, at this stage, it cannot be held that the appellant has also purchased 50% of right, title and interest in the plot of land. Moreover, respondent No. 1 has also produced on record the copy of the Lease Deed to show that third party interest in said plot of land could not have been created without concurrence of the society. There is no concurrence of the society obtained by the appellant to show that he has acquired 50% of the interest in the said plot of land.

9. In view thereof, in my considered opinion, the trial Court, has rightly refused ad-interim relief to the appellant for restraining respondent No. 1 from creating third party interest in the suit property.

IN THE HIGH COURT OF BOMBAY

Appeal From Order (ST) No. 25367 of 2016 in Civil Application (ST) No. 26078 of 2016 in Appeal From Order (ST) No. 25367 of 2016

Decided On: 27.09.2016

 Durga Bearing (Mumbai) Pvt. Ltd.
Vs.
 Suryakala Prabhulal Shah and Ors.

Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2016(6) MHLJ 905

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Whether third party interest created after passing of order remains valid?

 On consideration of various aspects, we are satisfied that there has been a wilful and deliberate violation of this Court's order. We, therefore, in exercise of the court's jurisdiction underArticle 129 of the Constitution of India impose exemplary cost of Rs.2,00,000/- on each of the contemnors to be deposited to the registry of the High Court within a period of eight weeks. On deposit being made, the amount shall be transferred to the National Legal Services Authority. In case of non payment, the contemnors shall undergo simple imprisonment for three months each. Any third party right created after order dated 19.3.2007 in SLP No. 19924 of 2006 is of no consequence and stands set aside.
Reportable

Supreme Court of India

C.Elumalai & Ors vs A.G.L. Irudayaraj & Anr on 20 March, 2009

Bench: Arijit Pasayat, Ashok Kumar Ganguly

Citation:(2009) 4SCC213:AIR 2009 SC2214

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Whether it is necessary to maintain status quo of property during pendency of litigation?

The learned counsel for the applicant has
placed reliance on the case reported as AIR 2005 SC 104
(Maharwal Khewaji Trust v. Baldev Dass). The Apex Court
has laid down that ordinarily status-quo of the property
needs to be maintained during pendency of litigation. It is
observed that the ground that legal proceeding is likely to
take long time cannot be an exceptional circumstance to
allow changes by imposing conditions. There cannot be
any dispute over this proportion. Further in view of the
provisions of the Muslim Law and the provisions of the
Wakf Act, the property cannot be allowed to be used for
the purpose other than the purpose for which the property
was dedicated. When the defendant, purchaser, purchased
the property even when there was record of aforesaid
nature, he must blame himself for finding himself in the
present situation. This Court has no hesitation to hold
that the Wakf Tribunal has committed error in refusing to
grant relief of temporary injunction as claimed. The said
order needs to be set aside by allowing the present civil
revision application.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.57 of 2014

Maharashtra State Board of Wakf,

V
Digvijay S/o Deeliprao Deshmukh,

 CORAM: T.V. NALAWADE, J.

 DATE : 3rd MAY 2014

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When court should grant injunction restraining creation of third party interest in suit property?

Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. 

Supreme Court of India

Maharwal Khewaji Trust (Regd.), ... vs Baldev Dass on 15 October, 2004

Bench: N Santosh Hegde, S.B. Sinha

CASE NO. Appeal (civil) 6792 of 2004

Citation:(2004) 8SCC 488

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When court can grant temporary injunction restraining creation of third party interest in suit property?

Merely because Section 52 of the Transfer of
Property Act is existing and operative, it does not mean that the

plaintiff is not entitled to pray for and get interim injunction
when   there   is   clear  prima   facie  case   in   favour   of   the
respondent/plaintiff to protect the suit property pending disposal
of   the   suit.     The   discretionary   relief   of   interim   injunction   is
granted on the basis of prima facie case, balance of convenience,
and consideration of irreparable loss with a view to protect the
suit property as it is and not to allow creation of irreversible
situation whereby legal and valid claim of the plaintiff is likely to
be defeated by transfer/alienation of the suit property by the
defendant in the case.  Dishonesty of litigant intending to defeat
the probable decree, can be prevented by appropriate interim
order, when necessary in the facts and circumstances of the case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.8 OF 2015
Harish Bulchand Tejwani,

V
Nandlal Hakikatrai Motwani,

CORAM : A. P. BHANGALE, J. 
DATE : AUGUST 14, 2015
Citation: 2016 (1) ALLMR 127

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When court can grant temporary injunction restraining defendant from alienating suit property during pendency of suit?

The facts in the present case are different than the facts which appear in the case cited (supra). The interim injunction was granted by the Trial Court in this case to ensure that suit property must not change its hands pending disposal of the special civil suit and the Trial Court was satisfied upon consideration of prima facie case to restrain the appellant/defendant, his agents, servants, representatives or any other persons claiming through him from alienating, transferring or creating third party interest in the suit property pending disposal of the suit. Merely because Section 52 of the Transfer of Property Act is existing and operative, it does not mean that the plaintiff is not entitled to pray for and get interim injunction when there is clear prima facie case in favour of the respondent/plaintiff to protect the suit property pending disposal of the suit. The discretionary relief of interim injunction is granted on the basis of prima facie case, balance of convenience, and consideration of irreparable loss with a view to protect the suit property as it is and not to allow creation of irreversible situation whereby legal and valid claim of the plaintiff is likely to be defeated by transfer/alienation of the suit property by the defendant in the case. Dishonesty of litigant intending to defeat the probable decree, can be prevented by appropriate interim order, when necessary in the facts and circumstances of the case.

Bombay High Court

Harish Bulchand Tejwani vs Nandlal Hakikatrai Motwani on 14 August, 2015

Bench: A.P. Bhangale

Citation:2015(6) MHLJ 597 Bom

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When court should grant temporary injunction against transfer pendente lite?

Prohibitory injunction against transfer pendente lite. Party seeking transfer must make out case that irreparable loss or damage will be caused if he is not allowed to alter status quo. In absence of such case in interim injunction deserves to be continued till disposal of suit.

Bombay High Court

Sunil S/O Madanlal Agrawal vs Jawaharlal S/O Nandlal Chittarke on 20 August, 2011

CORAM: S.S. SHINDE, J.
DATE : 20TH AUGUST, 2011

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When court should not grant temporary injunction to restrain creation of third party interest in suit property?

Temporary injunction restraining transfers pendente lite should not be granted in each case.
However, in the face of judgments which clearly hold that such transferees pendente lite have no right to be impleaded or to even obstruct the execution proceedings, wastage of judicial time in trial and Appellate Courts on an utter redundancy, which may only give some mental solace to a plaintiff may have been tolerable in the past, but cannot be allowed to continue now with tremendous pressure on judicial time at all levels. Available time 
must be utilised judiciously by prioritizing cases where there are real disputes demanding Judge's time. The magnitude of the problem would become apparent from the fact that almost 25 such appeals, claiming injunctions in disregard of Section 52 of the TP Act, have been lined up for adjudication today. Therefore, this argument of letting things be as they are cannot be accepted.
30. To sum up:
(a) Section 52 of the TP Act provides adequate protection to the parties from transfers pendente lite and such transferees are neither required to be impleaded nor can claim impleadment. They cannot even resist execution proceedings.
(b) In Mumbai (as also elsewhere as and when amended provisions are made applicable) plaintiffs could (or rather ought to) have notices of their suits registered under Section 18 of the Indian Registration Act, in view of the amended provision of the TP Act and the Registration Act. They cannot 
seek to restrain adversary by an injunction by refusing to go in for registration of the lis.
(c) Rule 1 of Order XXXIX of the Civil Procedure Code enabling Court to grant temporary injunctions to restrain transfers pendente lite is only an enabling provision, recognizing the power in the Court to issue such injunction and does not imply that because there is power, it must be exercised. The provision could be invoked only if protection provided by Section 52 of the TP Act is shown to be inadequate.
(d) In the face of protection provided by Section 52 of the TP Act, Courts should be cautious in examining the claims by plaintiffs of irreparable loss if injunction to restrain alienations is refused.
(e) In suits for specific performance/right to develop against the recorded/rightful owners, Courts may consider if an injunction would
cause greater inconvenience to a rightful owner by being deprived the right to deal with his property for the sake of a claim which is yet to mature into right and which metamorphosis rests in the discretion of the Court and is not certain.

(f) Courts may consider necessity of imposing suitable conditions to protect plaintiffs' interests short of granting injunction - like seeking undertaking that no equities would be claimed, on account of sale/development of properties; effecting sales only after putting transferees to notice that their rights would be subject to suit etc.. Interests of prospective purchasers would also be protected if plaintiffs in such cases register the lis, though it may be optional.

Bombay High Court

M/S. Kachhi Properties vs All Residents Of At & on 3 August, 2010

APPEAL FROM ORDER NO.542 OF 2010
CORAM: R.C. CHAVAN, J.
PRONOUNCED ON: AUGUST 3, 2010

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