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2024 DAILYLAW 2309 (CAL)

Anant Rao v. Jharna Singh

2024-09-09

Arindam Mukherjee

body2024
JUDGMENT : ARINDAM MUKHERJEE, J. 1. This revisional application arises out of an order dated 19.06.2024 passed in Misc Appeal No. 13 of 2023 by which the learned District Judge, Andaman and Nicobar Islands has set aside the order No. 75 dated 31.08.2023 passed by the learned Civil Judge (Senior Division), Port Blair in Other Suit No. 101 of 2013 and directed the parties to maintain an order of status quo in respect of nature and character of the suit property mentioned in Other Suit No. 101 of 2013 and Other Suit No. 74 of 2021 as well as Execution Case arising out of Other Suit No. 74 of 2021 till disposal of the Other Suit No. 101 of 2013. 2. Before I proceed to decide the correctness and validity of the order impugned, the facts of the case are required to be considered. 3. The relevant facts are as follows a) The opposite party (plaintiff) and the original defendant presently, the defendant No. 1 in the Other Suit No.101 of 2013 and petitioner No. 1 in this revisional application entered into an agreement for sale of two plots of land bearing survey 183/2 and 184/2 respectively measuring about 463 Sq.mtrs. and 672 Sq.mtrs (hereinafter are collectively referred as to ‘the said plots’) in Teylerabad village under Port Blair Tehsil, South Andaman for valuable consideration. The said plots, I am told, are contiguous. b) In view of the failure on the part of the petitioner No.1 to convey the suit property, the opposite party herein instituted a Suit being Other Suit No. 101 of 2013 inter alia for specific performance. c) Subsequent to entering into an agreement for sale with the opposite party, the petitioner No. 1 agreed to sale the suit property to the petitioner No.2 being the added defendant in the suit that is defendant No.2 in Other Suit No. 101 of 2013. d) During the pendency of the suit between the petitioner No.1 and the opposite party, another suit was filed in respect of the selfsame property by the petitioner No. 2 being Other Suit No. 74 of 2021. The petitioner No.1 suffered a decree on admission in the subsequent suit being Other Suit No. 74 of 2021. d) During the pendency of the suit between the petitioner No.1 and the opposite party, another suit was filed in respect of the selfsame property by the petitioner No. 2 being Other Suit No. 74 of 2021. The petitioner No.1 suffered a decree on admission in the subsequent suit being Other Suit No. 74 of 2021. e) The petitioner had executed a deed of conveyance in favour of the petitioner No. 2 in respect of the selfsame property that is the suit property in Other Suit No. 101 of 2013 in terms of the decree passed in Other Suit No.74 of 2021. f) The petitioner No.1 filed a writ petition being WPA/562/2022 (Shri Anant Rao Vs. Andaman and Nicobar Administration and others) for a direction upon Registering authority to register the conveyance executed by the petitioner No.1 in favour of the petitioner No. 2. g) The opposite party was unaware of the agreement for sale entered by and between the petitioner No.1 and the petitioner No. 2 as also the decree passed on consent in Other Suit No 74 of 2021. The said decree was also put into execution without the notice and knowledge of the opposite party. Only on being served with a writ petition on 11.11.2022 the opposite party came to know about the agreement for sale between the petitioner No.1 and the petitioner No. 2, the consent decree and the execution proceedings. h) The said writ petition was however disposed by an order dated 13.02.2022. The registration of the conveyance executed by the petitioner No. 1 in favour of the petitioner No. 2 is pending. i) The opposite party filed an application under the provisions of Order 39 Rule 1 and 2 read with section 151 of the Code of Civil Procedure, 1908 (in short ‘CPC’) inter alia, seeking an injunction in respect of the suit property in Other Suit No. 101 of 2013. The opposite party also filed an application for adding petitioner No.2 as a party defendant in Other Suit No.101 of 2013. The petitioner No.2 has been added as defendant No.2 in the said suit. j) The said application for temporary injunction was dismissed by an order bearing No. 75 dated 31.08.2023. Challenging the said order of dismissal dated 31.08.203 the opposite party filed the Misc Appeal No. 13 of 2023 before the Court of the learned District Judge, Andaman and Nicobar Islands. j) The said application for temporary injunction was dismissed by an order bearing No. 75 dated 31.08.2023. Challenging the said order of dismissal dated 31.08.203 the opposite party filed the Misc Appeal No. 13 of 2023 before the Court of the learned District Judge, Andaman and Nicobar Islands. k) The said Misc Appeal has been allowed by an order dated 19.06.2024 by setting aside the order dated 31.08.2023 and directing the parties to maintain status quo in respect to of nature and character of the property mentioned in Other Suit No. 101 of 2013 and Other Suit No. 74 of 2021 as well as execution case arising out of Other Suit No. 74 of 2021 till disposal of Other Suit No. 101 of 2013. l) Challenging the said order dated 19.06.2024 this revisional application has been filed. 4. The petitioners say that the petitioner No. 1 suffered a decree passed by the competent court in Other Suit No. 74 of 2021. The said decree has been put in execution by petitioner No.2, as a result whereof the petitioner No. 1 was compelled to execute the conveyance, the registration whereof is pending. The petitioners are in joint possession of the said plots. 5. The learned First Appellate Court, without describing the status of the suit property, had directed the parties to maintain status quo in respect thereof. The order dated 19.06.2024, therefore, suffers from illegality and material irregularity. The order is vague and unworkable. The said order is contrary to the well settled principle of law that status of an immovable property has to be defined before ordering for maintaining status quo. The status quo order should not be passed without describing the status of the property and as such bad in law and is required to be set aside. The petitioner No. 1, therefore, has been also exposed to further penal consequence at the instance of the petitioner No. 2. 6. The status quo order should not be passed without describing the status of the property and as such bad in law and is required to be set aside. The petitioner No. 1, therefore, has been also exposed to further penal consequence at the instance of the petitioner No. 2. 6. On 29.08.2024, when the matter was taken up for the first time, a learned Advocate of this Court was appointed as a Special Officer to visit the suit property and file a report after ascertaining who is in possession of the suit property, is there any electricity connection at the suit property, then in whose name the same is recorded, is there any building at the suit property, if so, the area of such building, the number of storey and the number of rooms in the building, is there any vacant land, if any, in the suit property. 7. The learned Special Officer has filed her report after inspection in the presence of the parties, the copies whereof were circulated among the petitioners and the opposite party. 8. After hearing the parties and considering materials on record including the report of the learned Special Officer dated 29.08.2024, I find that there are two structures upon a small portion of the suit property. One of such structure is very small and is incapable for any human being to live therein. It may be, according to the learned Special Officer is meant for animals. The structure is also in dilapidated condition. The other structure has concrete portion at the bottom and the rest is of the tin. The said structure appears to exist at the middle of the land as per the learned Special Officer. The bigger structure according to the learned Special Officer contains two rooms with no kitchen or bathroom. The said structure is claimed to have been built by petitioner No. 2 wherein he has obtained an electricity connection and water connection. The bigger structure, according to the learned Special Officer, is also not in a suitable condition for living. The said structure has an approximately area of 70 Sq.mtrs. The rest of the area of the suit property measuring about 1030 Sq. mtrs is lying vacant and it could not be ascertained by the learned Special Officer as to who is in possession of such vacant land. 9. The said structure has an approximately area of 70 Sq.mtrs. The rest of the area of the suit property measuring about 1030 Sq. mtrs is lying vacant and it could not be ascertained by the learned Special Officer as to who is in possession of such vacant land. 9. None of the parties have taken exception to the report of the learned Special Officer and as such the status of the suit property as described by the learned Special Officer is prima facie taken to be correct. 10. On an appreciation of the facts as aforesaid, it is apparent that the conduct of the petitioner No. 1 is in abuse of process of law and Court. The petitioner No. 1 did not inform the Court while it was proceeding with Other Suit No. 74 of 2021 about the pending suit being Other Suit No. 101 of 2013 as the doctrine of lis pendens as in section 52 of the Transfer of Property Act, 1882 had come into operation. The petitioner No. 1 surreptitiously suffered a consent decree on admission in the Other Suit No. 74 of 2021, knowing fully well that the same would jeopardize the claim of the opposite party in her suit being Other Suit No. 101 of 2013. The subsequent agreement for sale between the petitioner No.1 and petitioner No.2 shall be voidable unless the transferee (petitioner No.2) is a bonafide purchaser for value without notice of the previous agreement for sale. 11. Admittedly, the suit filed by the opposite party is a prior suit and the agreement between the petitioner No. 1 and petitioner No. 2 is subsequent to the agreement between petitioner No. 1 and opposite party and relates to the selfsame property. The petitioner No. 1 in further abuse of law executed the conveyance and presented the same for registration. Only on the registration having been not done, the petitioner No. 1 came before this Court by way of filing a writ petition seeking a direction upon the Registering Authority to register the conveyance executed by the petitioner No.1 in favour of the petitioner No. 2. Only on the registration having been not done, the petitioner No. 1 came before this Court by way of filing a writ petition seeking a direction upon the Registering Authority to register the conveyance executed by the petitioner No.1 in favour of the petitioner No. 2. Had the Registering Authority registered the conveyance then there would not have been any question of the petitioner No. 1 for filing a writ petition from which the opposite party gathered knowledge about the suit between the petitioner No. 1 and petitioner No. 2, the consent decree, the execution case and the execution of the conveyance by the petitioner No. 1 in favour of the petitioner No. 2 which has also been presented for registration. 12. In the event of petitioner No. 1 was successful in conveying the property in favour of the petitioner No. 2, the suit filed by the opposite party for all practical purpose would have became infructuous. The petitioner No.1, therefore, attempted to non-suit the opposite party. 13. The interest of the opposite party, in the facts and circumstances of the case, would be further prejudiced if her interest is not protected. The protection to the opposite party is also necessary to prevent multiplicity of judicial proceedings. 14. In order to grant an order of temporary injunction three ingredients are to be fulfilled. There are prima facie case, balance of convenience and inconvenience and irreparable injury to the party seeking the injunction. The concept of irreparable injury takes within its fold the abuse of process of law and court as also multiplicity of judicial proceedings. The opposite party in the facts of the case has established a strong prima facie case. The balance of convenience and inconvenience is also in form of the opposite party. The opposite party will also suffer irreparable injury, if her interest is not protected when the abuse of process of law and court by the petitioner no.1 is apparent and there is every likelihood of judicial proceedings. 15. The interest of the opposite party can be protected in the facts of the case even by exercise of inherent jurisdiction available to the court under section 151 of the CPC. 16. In the aforesaid facts and circumstances, the First Appellate Court was principally correct in setting aside the order of the Trial Court and giving interim protection to the opposite party. 16. In the aforesaid facts and circumstances, the First Appellate Court was principally correct in setting aside the order of the Trial Court and giving interim protection to the opposite party. So far as the objection regarding passing an order of status quo without ascertaining the position of the suit property is concerned, the same has been prima facie ascertained by this Court through the learned Special Officer. There is as such no need to interfere with the order impugned. 17. In the aforesaid facts and circumstances, the parties are, therefore, directed to maintain status quo as to the nature, character and possession of the suit property being the subject matter of Other Suit No. 101 of 2013 until disposal of Other Suit No. 101 of 2013 as has been found by the learned Special Officer in her report dated 29.08.2024. 18. The application, therefore, fails and is accordingly dismissed. 19. Urgent Xerox certified copy of this judgment be supplied to the learned Counsel appearing for the respective parties upon compliance of usual formalities.