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CASE NO.: Appeal (civil)  3221 of 2006

PETITIONER: Hanif Azami Eliyas Azami  

RESPONDENT: Shabana Mohsin Ghazi @ Shaikh and Anr.   

DATE OF JUDGMENT: 01/08/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.15581 of 2004)

ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is to the order passed by a  learned Single Judge of the Bombay High Court setting aside  the order of status quo passed by the trial Court and directing  appointment of a receiver and handing over possession of the  disputed property to respondent No.1.

       Background facts in a nutshell are as follows:

        Appellant is the original plaintiff, respondent No.2 is  original defendant No.1 and respondent No.1 is original  defendant No.2. Original defendants are husband and wife.  They purchased suit flat in their joint name in the year 1998  for a consideration of Rs.2 lakhs.  

       The case of the appellant is that he entered into an  agreement to purchase the suit flat on 19th March, 2004 from  defendant No.1 who has executed the said agreement on  behalf of himself and his wife, defendant No.2 on the basis of  her authorization, i.e. by unregistered power of attorney  alleged to have been executed by her in favour of her husband.  

       The agreement to sale dated 19th March, 2004 between  original plaintiff and defendant No.1 mentions that an amount  of Rs.11,40,000/- was paid to defendant No.1 (respondent  NO.2 herein) in cash and possession was delivered to the  vendee/purchaser.  

       Appellant-Plaintiff apprehending threat to his possession  filed the suit (Regular Civil Suit No.268 of 2004) to restrain  respondent No.1 and her husband from disturbing his  possession. An application for interim injunction was filed for  ad-interim relief.

       The trial Court initially vide its order dated 12th May,  2004 refused to grant ad-interim relief. However, it appears  defendant No.1 (respondent No.2 herein) appeared before the  trial Court and stated his no objection for grant of injunction  in favour of the appellant. Trial Court vide order dated 14th  May, 2004 directed defendants to maintain "status quo" in

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respect of the suit flat.  An appeal was filed by the respondent  No.1, before the High Court.   

       The High Court took note of the factual scenario as  presented by the parties. It took note of the fact that the so  called Power of Attorney was an unregistered document.  It  was held that the order of status quo passed by the trial Court  was really not warranted in the circumstances of the case.  

       A few facts like payment of huge sum of money by cash  were considered to be suspicious circumstances. It was also  noted that initially the trial Court refused to pass any interim  order but strangely the husband of respondent No.1 who is  supposed to have executed the agreement appeared in Court  and stated that he has no objection to the order of status quo  being granted.  Similarly, it was held that non-mention of the  payment in the Income tax returns was considered suspicious.  It was, therefore, concluded that there appears to be some  amount of collusion between the appellant and respondent  No.1 and the matrimonial discord between respondent No.1  and respondent No.2 appears to have resulted in the collusive  transaction.

       In support of the appeal, learned counsel for the  appellant submitted that the trial Court’s order of status quo  was justified when huge sums of money has been paid by the  appellant and the appointment of a receiver directing delivery  of possession to respondent No.1 is clearly not warranted  under the circumstances of the case, particularly, when  husband of respondent No.1, as has been even admitted by  respondent No.1, is owner of half portion of the property.       The  question whether the transaction had been reflected in the  Income Tax returns has no relevance so far as the present  disputes are concerned.  

       Learned counsel for respondent No.1 on the other hand  submitted that the factual scenario clearly indicates that there  was collusion between appellant and respondent No.2. The  marital discord between respondent No.1 and respondent No.2  has been over-emphasised and the appellant is nothing but a  dummy of respondent No.2 i.e. husband of respondent No.1.  The fact that the appellant claims to have paid money but had  not indicated about the payment of huge sum of money in his  income tax returns has been rightly considered by the High  Court as a relevant factor.  Similarly, the High Court held that  there was no acceptable material regarding acknowledgment of  the receipt of the amount in question.

We find that the High Court has dealt with the factual  aspects in great detail. It has concluded that there was  collusion between appellant and respondent No.2 and  respondent No.1 was intended to be deprived of the suit  property. The High Court had directed the trial Court to decide  the proceedings in suit No. 268 of 2004 pending before it  within a particular time.  Because of the interim order passed  by this Court on 16.8.2004, there has been no progress n the  suit before the Trial Court. It needs no emphasis that the  observations by the High Court were tentative and are not  treated to be determinative factor in the suit which is stated to  be pending. Balancing equities it would be proper to direct the  trial Court to dispose of the suit at an early date and in any  event not later than by the end of December, 2006. The High  Court has lost sight of the fact that respondent No.2 was  admittedly half owner of the property. There is some amount  of dispute as to who made investments for acquisition of the

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property in question. We need not go into that aspect  presently. The interim order passed by this Court on  16.8.2004 shall be continued till disposal of the suit by the  trial Court. By granting protection it shall not be construed as  we have expressed any opinion on the merits of the case. The  appeal is accordingly disposed of. No costs.