NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 17478-17479 OF 2017 [@ SPECIAL LEAVE PETITION (C) NOS. 16748-16749/2016]

VIRENDRABHAI DEVJIBHAI PATEL APPELLANT(S)

                               VERSUS

KESHAVBHAI MAKANBHAI AND ORS ETC.  RESPONDENT(S)

WITH C.A. NO.17480/2017 @ S.L.P.(C) NO.28949/2017 @ CC NO. 22137/2016

J U D G M E N T KURIAN, J.

Leave granted. 2. The  alleged  violation  of  an  interlocutory injunction dated 21.02.2007 passed in RCS No.59/2007 on the file of Civil Judge, Senior Division, Surat has given rise to these appeals.  The prayer in the Application  for  Interlocutory  injunction  reads  as follows:-

“(a) To grant interim stay order till the final disposal of the suit in favour of

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the plaintiff and against the defendants that  since  the  undistributed  share registered land bearing Dist. Surat Tal. Choryasi Moje village Vesu R.S. No. (old) 550  (New)  No.346,  admeasuring  20700  sq. mts. paiki 13800 sq. mts. is purchased by the plaintiff from the defendants through the  registered  sale  deed  and  the defendants directly or indirectly through his  servants,  agents,  or  other  persons does not have any right authority to act, interfere,  hinder,  oppose,  to  bring deficiency  in  the  possession  occupancy rights  of  the  plaintiff,  and  to  prevent the  defendants  from  making  any  type  of process,  administration,  transaction, arrangement  or  documents  in  the  form  of sale deed with regard to the questionable and prevent the defendants from doing or getting done any type of acts which bring deficiency  in  the  ownership,  possession, occupancy of the plaintiff with regard to questionable land.  Be pleased to pass the order to forward a Yadi of this order to the Talati cum Mantri – Vesu and Mamlatdar (Choryasi) and Deputy Collector (Choryasi Region) – Surat.”

3. In terms of the said prayer, the VIth Additional Senior Civil Judge and J.M.F.C., Surat  granted an interim order dated 21.02.2007.  While the order was

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in  force,  it  appears  there  was  a  transfer  of  an extent of 6900 sq. mts. inter se defendents. 4. After a detailed inquiry on an application under Order XXXIX Rule 2A of the C.P.C., the Trial Court passed the following order on 08.08.2014:-

“The application at Exh-203 is allowed as the defendants No.2 to 8, 10 to 15 have willfully  breached  the  ad-interim injunction dated 21.02.2007 below Exh-5 and the Contemnors i.e. the Defendants No.2 to 8, 10 to 15 and Proposed Contemnors are hereby  ordered  to  be  detained  in  Civil prison  for  15  days  upon  deposition  of subsistence  allowance  @  Rs.2,000/-  per person  by  the  Plaintiff.  The  Defendants No.2 to 8 & 10 to 15 are further directed to cancel the Sale Deed and put the land in the original situation as prevailing on the date  of  passing  ad-interim  order  of injunction.

Order pronounced in Open Court today on 08.08.2014.”

5. The High Court was of the view that the Trial Court was not justified in passing the order, and in particular for cancellation of the sale deed.  The High Court reached the said conclusion mainly on the

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basis that the transferees were not originally the defendants; they were only impleaded by the Court as defendants while passing the order on the application filed under Order XXXIX, Rule 2A.  The High Court has also taken the view that in any case there is no justification in issuing a direction for cancellation of  the document  since the  power under  Order XXXIX Rule 2A is only to punish the alleged contemnors and attach the property. 6. We are afraid, the stand taken by the High Court may not be wholly correct.  Going by the injunction granted by the Trial Court is it fairly clear that the defendants if at all could have made any transfer it could have been only the undivided share and not the  specific  portion  of  the  property,  which  is certainly in violation of the spirit of the order. 7. Faced  with  such  a  situation,  learned  senior counsel, on instruction, submits that the defendants may  be  permitted  to  execute   an  appropriate rectification  deed  making  the  sale  deed  dated 19.2.2008 only as a transfer of undivided share and not  any  specific  portion  of  the  entire  property comprising of 20700 sq. mts. 8. Having regard to the apologetic stand thus taken

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by the defendants we are of the view that the appeals can be disposed of as follows:-

The parties to the sale deed dated 19.2.2008 are  directed  to  execute  an  appropriate rectification  deed  within  a  month  from  today making it clear that the transfer of 6900 sq. mts. sought to be made on 19.2.2008 as per the sale deed is only in respect of the undivided share in the whole property comprising of 20700 sq. mts. and not any specific portion.

If such a rectification deed is made and if the  Trial  Court  is  satisfied  that  the rectification deed is in the spirit of the order passed  by  this  Court,  the  Court  shall  proceed with  the  suit  and  dispose  of  the  same expeditiously and preferably within a period of one year.   

9. We make it clear that there shall be no further alienation or creation of encumbrance in respect of the entire 20700 sq. mts. property until the suit is finally disposed of. 10. We further make it clear that it will be open to the parties to lead evidence afresh. 11. The orders passed by the Trial Court and the High

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Court will stand modified, as above. 12. The appeals are, accordingly, disposed of. 13. Pending  applications,  if  any,  shall  stand disposed of. 14. There shall be no orders as to costs.

.......................J.               [KURIAN JOSEPH]  

.......................J.               [R. BANUMATHI]  

NEW DELHI; OCTOBER 31, 2017.

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