SUPREME COURT OF INDIA
Hanif Azami Eliyas Azami
Vs
Shabana Mohsin Ghazi @ Shaikh and Another
Appeal (Civil) 3221 of 2006 (Arising Out of Slp (C) No.15581 of 2004)
(Arijit Pasayat and L. S. Panta, JJ)
01.08.2006
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 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 in 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
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.