SATISH KUMAR KHANDELWAL Vs. RAJENDRA JAIN

JUDGEMENT

(1.) Heard on I.A. No. 8329/2008 an application under Order XXXIX, s 1 and 2 read with section 151 of the Code of Civil Procedure. Brief facts of this case are that the appellant/plaintiff had filed a suit for specific performance of the contract and permanent injunction in respect of agricultural land belonging to respondent Nos. 1 and 2. After trial learned District Judge, Indore vide judgment and decree dated 28-8-2008 declined to grant the relief of specific performance of the contract and ordered for refund of money of Rs. 66.00 lakhs. Being aggrieved with this judgment and decree, plaintiff/appellant filed appeal before this Court. In this appeal the appellant filed this application praying that the defendants restrained from alienating or creating third party interest on suit land during pendency of the appeal.

(2.) Learned counsel for the appellant submits that the respondents are trying to alienate the suit property and if the property is alienated then it will create multiplicity of proceedings. Earlier also during the pendency of suit the respondents No. 1, 2, 4 and 5 executed the sale-deed in favour of respondents No. 6 to 8. The appellant will be deprived of to get the fruits of the decree in the event of success. The appellant has a prima facie case and balance of convenience is also in his favour. In case injunction is not granted, then it would cause irreparable loss to the appellant; whereas the respondents are unable to show that in case the application is allowed they have to sustain irreparable loss. The Hon'ble Supreme Court reported in the case of Maharwal Khewaji Trust v. Baldev Dass, 2005 1 MPLJ 447 held that unless and until a case of irreparable loss or damage is made out by a party, Court should not permit the alienation or transfer of the property.

(3.) On the other hand, Shri M.L. Agrawal, learned senior counsel appearing for the respondents No. 1 and 2 submits that the learned District Judge gave a finding that plaintiff Satish Kumar Khandelwal is an imaginary name. The transaction was a Benami transaction and no particulars of the land are mentioned in the agreement. Thus, the agreement is for uncertain land and such agreement is void. For this purpose, he relied upon the judgment of this Court in the case of Kanhialal and others v. Bhura and others,1978 1 MPWN 135. Injunction cannot be granted for undivided and unspecified share for this purpose cited the judgment of this Court in the case of Heeralal and others v. Mannalal and another, Civil Revision No. 527/1980 passed on 1-9-1982 by Indore Bench. The appellant has no prima facie case and he has not to suffer any irreparable injury or loss. On the other hand if the order is passed, the respondents have to sustain irreparable injury and loss.