15 October 2004
Supreme Court
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MAHARWAL KHEWAJI TRUST Vs BALDEV DASS

Case number: C.A. No.-006792-006792 / 2004
Diary number: 15624 / 2004


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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.