HANIF AZAMI ELIY ASAZAMIversusSHABANA MOHSIN GHAZI @ SHAIKH AND ANR.

A                    HANIF AZAMI ELIY AS AZAMI
                                v.
              SHABANA MOHSIN GHAZI @ SHAIKH AND ANR.

                                  AUGUST I, 2006

B         [ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.)


          Transfer of Property:

          Property co-owned by Respondent No. I and her husband, Respondent
C   No.2-Appellant purchased it from Respondent No.2 who executed agreement
    for himself as well as for Respondent No. I as her attorney-Suit flied by
    Appellant to restrain Respondents from disturbing possession-Trial Court
    granted ad-interim order of "~tatus quo" in respect of the property--Appeal
    against-High Court set aside the order holding that there was collusion
D   between Appellant and Respondent No.2-Directed appointment of Receiver
    and handing over possession ofproperty to Respondent No. I-- -Challenge to--
     Held: Without giving any opinion on merits of the case, Supreme Court on
    considerations of equity, directed Trial Court to dispose of the suit at an early
    date.

E         The suit property was jointly owned by Respondent No.1 and her
    husband Respondent No.2. Respondent No.2 agreed to sell the property
    to Appellant and executed an agreement in that regard on behalf of himself
    and Respondent No.I on the basis of her authorization, an unregistered
    power of attorney. Appellant paid Rs.It Lakhs in cash to Respondent No.2
    and took possession, but, subsequently apprehending threat, filed suit to
F   restrain Respondents from disturbing his possession. An application for
    interim injunction was filed. Trial Court initially declined to grant any
    interim order but subsequently directed the Respondents to maintain status
    quo in respect of the flat after Respondent No.2 stated that he had no
    objection to the order of status quo being granted. On appeal by
G   Respondent No.1, High Court held that there was collusion between
    Appellant and Respondent No.2 and Respondent No.I was intended to be
    deprived of the suit property. Accordingly it set aside the order of status
    quo passed by the Trial Court and directed appointment of the receiver
    and handing over possession of the suit flat to Respondent No. 1.

H                                         222
    HANIF AZAMI ELIYAS AZAMI v.SHABANA MOHSIN GHAZl@SHAIKH [PASA YAT, J.J223

      In appeal to this Court, it was submitted that the Trial Court's order   A
of status quo was justified when huge sums of money had been paid by
the Appellant and the appointment of receiver directing delivery of
possession to Respondent No. I was clearly not warranted under the
circumstances of the case, particularly when Respondent No.2 was owner
of half-portion of the property.
                                                                               B
      Disposing of the appeal, the Court

      HELD: 1.1. The High Court dealt with the factual aspects in great
detail. It lost sight of the fact that Respondent No.2 was admittedly half-
owner of the property. The observations by High Court were tentative and
are not treated to be determinative factor in the suit which is stated to be   C
pending. (225-F-G]

      1.2. The High Court hlld directed the Trial Court to decide the
proceedings in the suit pending before it within a particular time. Because
of the interim order passed by this Court, there has been no progress in       D
the suit before the Trial Court. Balancing equities it would be proper to
direct the trial Court to dispose of the suit at an early date. The interim
order passed by this Court shall be continued till disposal of the suit by
the Trial Court. By granting protection it shall not be construed that this
Court has expressed any opinion on the merits of the case.
                                                       (225-G-H; 226-A-B]      E
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3221 of2006.

    From the Judgment and Order dated 20. 7.2004 of the High Court of
Bombay in Appeal from Order No. 539 of 2004.
                                                                               F
     Vijay Kumar, Bharti Tyagi, Siddharth Sangal and Vishwajit Singh for
the Appellant.

     Kavita Wadia, Manoj Vajpayee, D.K. Singh and Abhijit Sengupta for
the Respondents.
                                                                               G
     The Judgment of the Court was delivered by

     ARIJIT PASA YAT, 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    H
    224                     SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 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
B No.1 and respondent No. I 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. I who has executed the
C   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
D and defendant No. I mentions that an amount of Rs.11,40,000/- was paid to
  defendant No. I (respondent N0.2 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. I and her
E   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. I (respondent No.2
    herein) appeared before the trial Court and stated his no objection for grant
F   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
  patties. It took note of the fact that the so called Power of Attorney was an
G 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
H
    HANIF AZAMI ELIYAS AZAMI v.SHABANA MOHSIN GHAZI@SHAIKH [PASA YAT. lJ225

No. I who is supposed to have executed the agreement appeared in Court and A
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. I and the matrimonial discord between respondent No.1 and respondent B
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    C
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.
                                                                                D
       Learned counsel for respondent No. I 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. I. The fact that
the appellant claims to have paid money but had not indicated about the E
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 qi..estion.
                                                                                F
       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. I 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 G
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. H
    226                    SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A 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
B   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.

    B.B.B.                                                 Appeal disposed of.