Full Judgment Text
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CASE NO.:
Appeal (civil) 6792 of 2004
PETITIONER:
Maharwal Khewaji Trust (Regd.), Faridkot
RESPONDENT:
Baldev Dass
DATE OF JUDGMENT: 15/10/2004
BENCH:
N Santosh Hegde & S.B. Sinha
JUDGMENT:
J U D G M E N T
(Arising out of SLP ) No. 14972 of 2004)
SANTOSH HEGDE, J.
Heard learned counsel for the parties.
Leave granted.
The appellant had filed a Civil Suit No.541 of 2000 for
possession of the suit scheduled property with an application
under Order 39 Rules 1 and 2 CPC, seeking injunction
restraining the respondent herein from alienating the suit
property and putting up any construction thereon. The trial
court on the interim application filed by the appellant granted
an order of temporary injunction, as prayed for.
The appeal filed by the respondent herein before the
learned District Judge came to be allowed holding that
alienation made, if any, will be subject to the law of lis pendens
and constructions, if any, put by the respondent will have to be
removed at his own risk and cost in the event of the suit being
decreed.
A revision filed against the said order to the High Court
came to be dismissed by the impugned order wherein the High
Court recorded an oral undertaking given by the learned
counsel which is as follows :
"Learned counsel for the respondent, on
instruction from Rajinder Dass son of
Baldev Dass, on the other hand, has stated
that the respondent has no intention of
alienating any part of the property and
further that the defendant shall raise
construction if any at his own risk costs
without claiming any compensation. It is
further stated that if the defendant inducts
any tenant in any such premises so
constructed, the person inducted would be
made aware of the pendency of the litigation
and would be bound by the judgment and
decree passed in the suit."
It is in view of the above statement made by the learned
counsel for the respondent that the High Court without
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considering the grounds raised in the revision petition
proceeded to dismiss the petition.
Mr. R.S. Sachhar, learned senior counsel appearing for
the appellant, contended that generally during the pendency of
litigation courts protect the status quo existing on the date of the
suit and it is only in exceptional circumstances where
irreparable damage is feared, the courts permit change of status
quo. His further contention was that in the present case no such
case is made out by the respondent and the trial court was
justified in protecting the status quo as on the date of the suit.
Mr. A.V. Palli, learned counsel for the respondent,
contended that both the lower appellate court and the High
Court were justified in making the impugned order because the
appellant has not established any prima facie case and if the suit
property is to be allowed to remain in the present condition, the
respondent will be put to great hardship and an irreparable loss.
While it is true that the lower appellate court did go into
the question of prima facie case and held that the appellant had
not made out any such case, the High Court did not go into that
question at all.
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. The said orders are
set aside and the order of the trial court is restored.
The appeal is allowed.