DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE – LIS PENDENS IN CPC AND TEMPORARY INJUNCTION

SUBJECT: TRANSFER OF PROPERTY LAW

NAME OF THE FACULTY: JOGI NAIDU SIR

NAME OF THE STUDENT: ASHHIRBAD SAHOO

ROLL NO. 2019082

SEM 4

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher who gave me the golden opportunity to do this wonderful project on the topic which also
helped me in doing a lot of research and I came to know about so many new things I am thankful to them.
Secondly, I would also like to thank my friends who helped me a lot in finalizing this project within the limited time frame.
 CHAPTERISATION

SYNOPSIS

INTRODUCTION

OBJECT OF DOCTRINE OF LIS PENDENS

SCOPE OF DOCTRINE OF LIS PENDENS

EFFECT OF DOCTRINE OF LIS PENDENS

RIGHT OF A PURCHASER PENDENTE LITE:

MEANING OF ‘PENDENCY’:

SUIT MUST NOT BE COLLUSIVE

PROPERTY IS TRANSFERRED OR OTHERWISE DEALT WITH

TRANSFERS

TEMPORARY INJUNCTION

TEMPORARY INJUNCTION CAN BE GRANTED WHEN

DIFFERENCE BETWEEN LIS PENDENS AND TEMPORARY INJUNCTION

CONCLUSION

BIBLIOGRAPHY

SYNOPSIS
DOCTRINE OF LIS PENDENS IN INDIA AND TEMPORARY INJUNCTION

INTRODUCTION

“Lis pendens literally means a pending suit, and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court
acquires over property involved in a suit pending the continuance of the action, and until final judgment therein”. It was observed there
“Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the
subject-matter of litigation so that par- ties litigating before it may not remove any part of the subject matter outside the power of the Court to
deal with it and thus make the proceedings infructuous. The doctrine of lis pendens is a doctrine based on the ground that it is necessary for the
administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive
title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the
rights of the parties to litigation.”

“Under India Legal System, the law relating to injunction has been provided in the Specific Relief Act, 1963. Injunction is categorized in two
forms i.e. Permanent Injunction and Temporary Injunction. Section 37 of Specific Relief Act, 1963 provides that  “temporary Injunction are
such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit.” “The
procedure for seeking temporary injunction has been provided under Order XXXIX of the Code of Civil Procedure, 1908. However, an
injunction being discretionary equitable relief cannot be granted when equally efficacious relief is obtainable in any other usual mode or
proceeding.””

RESEARCH QUESTIONS;

1. Whether the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite.

2. Whether there is any difference between lis pendens and temporary injunction

THE OBJECTIVE OF THE STUDY;

1. To understand the dilemma surrounding the concept of lis pendens and temporary injunction under cpc.
2. To understand how both these concepts operate in different circumstances.

SCOPE;

The scope of this study is restricted to application of the provisions related to lis pendens and temporary injunction

RESEARCH METHODOLOGY;

The research is adopting doctrinal study for this project involves the analytical and descriptive study of primary sources of data especially the provisions
speaking of lis pendens and temporary injunction in concerned statute

SOURCES OF RESEARCH:

PRIMARY SOURCES: Bare Act of different concerned statutes.

SECONDARY SOURCE: Books, Articles, Online resources.

LITERATURE REVIEW

1. CPC BOOK BY CK TAKWANI

2. COMMENTARY ON TPA BY AVATAR SINGH

DEFINITION OF LIS PENDENS:

“Lis pendens simply means a pending suit, and the lis pendens doctrine has been defined as the jurisdiction, authority or power gained by a court
over property involved in a suit pending the continuation of the action and until the final judgment therein. “Expositions of the doctrine suggest
that the need emerges from the very existence of the jurisdiction of the courts and their authority over the subject-matter of the litigation in such
a way that par- ties litigating before it does not exclude any aspect of the subject-matter beyond the power of the Court to deal with it and
thereby render the proceedings infructuous.””

“The doctrine of lis pendens is incorporated by statute into Section 52 of India's Transfer of Property Act, 1882, which is as follows:

“Transfer of property pending suit relating thereto.—During the pendency in any court having authority within the limits of India excluding the
State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and
in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by
any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein,
except under the authority of the court and on such terms as it may impose.”

“Explanation.—For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the
presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding
has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has
become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in
force.”

“The doctrine of lis pendens is a doctrine based on the fact that it is important for the administration of justice that not only the litigating parties
but those who derive the title pendente lite should be bound by the judgment of a court in a suit. Indeed, the provisions of this section do not
annul the conveyance or transfer in any other way, but make it subject to the protection of the parties to litigation.”

OBJECT OF DOCTRINE OF LIS PENDENS:

Privy Council in Gouri Dutt Maharaj v. Sk. Sukur Mohammed1 observed:

“… The broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination.
The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide
proceedings. To apply any such test is to misconceive the object of the enactment…”

EFFECT OF DOCTRINE OF LIS PENDENS

“The broad principle underlying Section 52 of the TP Act is to maintain the status quo unaffected by the act of any party to the litigation pending
its determination. Even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed.”2

RIGHT OF A PURCHASER PENDENTE LITE:

In order to constitute a lis pendens, the following elements must be present:

1. There must be a suit or proceeding pending in a Court of competent jurisdiction.

2. The suit or proceeding must not be collusive.

3. The litigation must be one in which right to immovable property is directly and specifically in question.

4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.
1
AIR 1948 PC 147
2
Jagan Singh v. Dhanwanti, (2012) 2 SCC 628
5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.

“While the plaintiff is under no obligation to allow a party lis pendens transferee, an alienee pendent elite can be entered as a party under Order
22 Rule 10. “In the matter that must be exercised judicially, the court has jurisdiction and an alienee will usually be joined as a party to allow
him to protect his interests. The court held that an elite awaiting transfer of an interest in immovable property is a representative in the interest of
the group by which the interest was acquired. He is entitled to a lawsuit or other proceedings where his predecessor is made a party to the
litigation; he is entitled to a hearing on the merits of the case in the case. ” The preponderance of the Court's opinion is that the request for
implement of a pendente lite purchaser should normally be allowed or "considered liberally.”3

MEANING OF ‘PENDENCY’:

In one case, it was canvassed on behalf of the respondent and the applicant that the sale has taken place in favour of the applicant at a time when
there was no stay operating against such sale, and in fact when the second appeal had not been filed.I was observed:

“….We would however, prefer to follow the dicta in Krishanaji Pandharinath4 to cover the present situation under the principle of lis pendens
since the sale was executed at a time when the second appeal had not been filed but which came to be filed afterwards within the period of
limitation. The doctrine of lis pendens is founded in public policy and equity, and if it has to be read meaningfully such a sale as in the present
case until the period of limitation for second appeal is over will have to be held as covered under Section 52 of the TP Act.”5

SUIT MUST NOT BE COLLUSIVE

“If the suit is collusive in its existence, Lis pendens is inapplicable. “If it is initiated with a mala fide motive, a suit is collusive. Mala's faithful
intention to bring a case is derived from the fact that the parties to the lawsuit are aware of their respective property rights and there is no real
conflict. Therefore, such a suit is fictional and the very object of filing the suit is to get a judicial decision on some evil design, such as
defrauding a third party. In such instances, it is inapplicable to lis pendens.”

TRANSFERS WITH PERMISSION OF THE COURT -:

“If with the approval of the Court, a transfer is made during the pendency of the action, the principle of lis pendens does not apply. The final
portion of this Section exempts pendente lite transfers if such transfer is made 'under the jurisdiction of the Court and on such terms as it may
impose'. According to that rule, the parties to the action are entitled to make an application to the Court in which the action is pending in order to
seek authorization for the move.
TRANSFER BY ANY PARTY TO SUIT

“Transfer is not necessary to attract the provisions of this section during the pendency of suit. The transfer of the disputed properties must be
carried out by either party to the conflict. Lis pendens does not affect the transfer of property by an individual whose title is not in any way
connected with the contested property.”
TEMPORARY INJUNCTION

“Under India Legal System, the law relating to injunction has been provided in the Specific Relief Act, 1963. Injunction is categorized in two
forms i.e. Permanent Injunction and Temporary Injunction. Section 37 of Specific Relief Act, 1963 provides that  “temporary Injunction are
such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit.” The
procedure for seeking temporary injunction has been provided under Order XXXIX of the Code of Civil Procedure, 1908. However, an
injunction being discretionary equitable relief cannot be granted when equally efficacious relief is obtainable in any other usual mode or
proceeding.”

In Agricultural Produce Market Committee Case6, the Hon’ble Apex Court has held that “a temporary injunction can be granted only if the
person seeking injunction has a concluded right, capable of being enforced by way of injunction.”

3
Supra note 3
4
AIR 1959 Bom 475

5
[See T.Ravi vs B.Chinna Narasimha, decided by Sup Ct on March 21, 2017.]

6
AIR 1985 GUJ 38
“The Hon’ble Apex Court through catena of judgments like landmark judgment in Gujarat Bottling Co. Ltd. Case7, held that “the Court needs
to follow certain guidelines while considering an application for grant of temporary injunction, some of which are briefly stated hereunder:

 The applicant seeking relief of temporary injunction shall have to establish a prima facie case in his favour. For this purpose, the Court
will not examine the merits of the case rather only the basic facts on which it is established that the applicant has a prima facie case to
contest. Thereafter the applicant also has to establish that the allegations / averments made in the application on which the temporary
injunction is sought are plausible.

 The court will also examine the conduct of the applicant and such conduct needs to be examined even at the stage where the application
for setting aside an order under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 is filed.

 The court has to examine the balance of convenience i.e. the balance of comparative loss caused to the applicant and the respondent in
the case of not passing the order.

 The court will first of all will examine what is the extent of loss that would be caused to the applicant if the order is not passed and also
whether it is reparable by monetary compensation i.e. by payment of cost. Then it will examine the loss suffered by respondent if the
order is passed and thereupon it has to see which loss will be greater and irreparable. The party who would suffer greater loss would be
said to be having balance of convenience in his favour and accordingly, the court will pass or refuse to pass the order.

 The court has the power also to ask the party to deposit security for compensation or to give an undertaking for the payment of the
compensation, if ordered.”

It is to be understood that relief of temporary injunction cannot be sought for some right which would arise in future. Similarly, an injunction
cannot be obtained to restrain a party from filing a suit. In Seema Arshad Zaheer Case, the Hon’ble Supreme Court has indicated the salient
features of prima facie case as under:

“The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i)
existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need
for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement
of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused
to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such
relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.”

However, in Best Sellers Retail India (P) Ltd. Case 8, the Hon’ble Supreme Court observed that prima facie case alone is not sufficient to grant
injunction and held that:

“Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the
injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable.”

“Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 provides for ex-parte temporary injunction in the cases of extreme urgency.
However, Rule 3 does not stipulate a separate application for ex-parte injunction rather such an application should be a part of an application for
a bi-parte temporary injunction and in such application urgency shall be shown by the applicant so as to warrant the passing of an ex-parte
injunction/order. However, such an order has to be temporary. The essential safeguards in this regard are briefly stated as under:”

 The matter should be urgent and overwhelming.

 The other elements for the grant of temporary injunction order as explained in the Gujarat Bottling case shall be existing.

 The court shall record reasons for the grant of exparte order.

 It is the duty of the applicant to serve a notice to the other party after the order has been passed and such notice shall be coupled with a
copy of the application, the plaint, the affidavit and any other document which were filed in support of the application. Upon serving
such notice, the applicant shall on the same day of the order or on the next day file an affidavit of his having served such a notice.

 Under Order XXXIX Rule 3A of the Code of Civil Procedure, 1908, it is a mandate for the Court that after passing such an ex-parte
order, it shall continue with the bi-parte proceedings and shall dispose of the application within 30 days. However, the said 30 days

7
AIR 1995 SC 2372
8
(1991) 1 SCC 533
 period is not the upper limit for ex-parte orders i.e. the ex-parte order will not get automatically vacated upon the lapse of 30 days rather
it can further be extended beyond 30 days in extreme cases.

The Hon’ble Supreme Court in Morgan Stanley Case9, inter alia observed the under mentioned guidelines for grant of temporary injunction
besides others:

 Where irreparable or extremely serious injury will be caused to the applicant, ex-parte order can be passed;

 The court shall examine the time when the plaintiff got notice of the act complained;

 If the plaintiff has acquiesced to the conduct of the respondent then ex-parte temporary injunction shall not be passed;

 The applicant shall be acting in utmost good faith; and

 Such an order shall be for a temporary period.

TEMPORARY INJUNCTION CAN BE GRANTED WHEN

Order 39 Rule 1 says that temporary injunction can be granted when:

1. a) any property in dispute in a suit is in danger of being wasted , damaged  or altered by any party to the suit , or wrongfully sold in
execution of a decree; or
2. b) the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors;
3. c) The defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff relating to any property in dispute in the
suit.

“In such cases, the court may, by order, grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and
preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing
injury to the plaintiff in relation to property in dispute in the suit as the court thinks fit, until the disposal of the suit or until further orders.”

RULE 2:

“Under Rule 2 of the CPC, if the defendant is about to commit a breach of contract or any other injury of any sort, a temporary injunction can be
issued. If the court finds that the interest of justice requires it to do so it can issue a temporary injunction. If the court finds that the very aim of
granting a temporary injunction is postponed, it can grant an interim injunction in favor of the applicant. Under their general equity jurisdiction,
Chartered High Courts often have inherent authority to issue an injunction preventing a party from proceeding in another court with a suit
pending.”

It is solely a discretionary power of the court to issue the order of temporary injunction. This authority shall be exercised judicially and
according to the specified judicial standards. When granting a temporary injunction, the following principles are set out for consideration by the
court:

Prima facie case

Balance of convenience

Irreparable injury.

PRIMA FACIE CASE:

“The expression “prima facie” means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first
disclosure. Prima facie case means that evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima
facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to contrary
is disregarded.” The Supreme Court in Marin Burn Ltd. v. R.N. Banerjee10 held that ‘A prima facie case does not mean a case proved to the hilt

9
LQ 2006 AAR 18626
10
1958-I L.L.J. 247
but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether
a prima facie case had been made out, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in
question and as to whether that was the only conclusion which could be arrived at on that evidence.’

Uttara Bank vs. Macneill & Kilburn Ltd.11: “The burden is on the plaintiff to satisfy the court by leading evidence or otherwise that he has
a prima facie case in his favour of him. It is to be understood that relief of temporary injunction cannot be sought for some right which would
arise in future. Similarly, an injunction cannot be obtained to restrain a party from filing a suit. In Seema Arshad Zaheer Case12, the Hon’ble
Supreme Court has indicated the salient features of prima facie case as under: “The discretion of the court is exercised to grant a temporary
injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating
protection of the plaintiff’s rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff’s rights is compared with
or weighed against the need for protection of the defendant’s rights or likely infringement of the defendant’s rights, the balance of convenience
tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not
granted.” In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff’s
conduct is free from blame and he approaches the court with clean hands.”

 BALANCE OF CONVENIENCE:

“The question of the balance of convenience occurs when there is uncertainty as to the adequacy of the respective remedies for damages
available to either party or both. Where the balance of convenience is in favour of the plaintiff and not where the balance is in favour of the
opposite party, the court should grant an injunction. In favour of the defendant, the sense of balance of convenience" is that if an injunction is not
issued and the action is eventually resolved in favour of the plaintiffs. The Court should consider the granting of a temporary injunction.””

Firstly- The plaintiff makes out a prima facie case;

Secondly- That the plaintiff will suffer irreparable loss if the injunction prayed for is not granted; and

Thirdly- The balance of convenience lies in favour of the plaintiff.

Case: MT. AymumNessa v. md. Obaidul haque13, temporary injunction should be refused in the absence of the above mentioned three principles.
In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh14, observed: ‘Balance of convenience’ means the
comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff, if temporary injunction is refused, would be balanced
and compared with that to the defendant if it is granted. If the scale of inconvenience leans to the side of the plaintiff, then interlocutory
injunction alone should be granted.

In Antaryami Dalabehera v. Bishnu Charan Dalabehera15, as this point, it was held that balance of convenience, which means, comparative
mischief for inconvenience to the parties. The inconvenience to the petitioner if temporary Injunction is refused would be balanced and
compared with that of the opposite party, if it is granted.

In Bikash Chandra Deb v. Vijaya Minerals Pvt. Ltd.16 the Hon’ble Calcutta High Court observed that issue of balance of convenience, it is to be
noted that the Court shall lean in favour of introduction of the concept of balance of convenience, but does not mean and imply that the balance
would be on one side and not in favour of the other. There must be proper balance between the parties and the balance cannot be a one-sided
affair.

IRREPARABLE INJURY:

In Dalpat Kumar & Anr. v. Prahlad Singh & Ors.17, the Supreme Court explained the scope of aforesaid material circumstances, but observed as
under: “The phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of

11
33 DLR
12
Seema Arshad Zaheer & Ors  Vs Municipal Corporation of Greater Mumbai & Ors., (2006) 5 Scale 263
13
35 DLR
14
(1974) 40 Cut LT 336
15
2002 I OLR 531
16
2005 (1) CHN 582
17
AIR 1993 SC 276
width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound
exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well-nigh impossible to find
from facts prima facie case and balance of convenience.”

“In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh18, the court observed: ‘Irreparable injury’ means
such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately
payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused.”

DIFFERENCE BETWEEN TEMPORARY INJUNCTION AND LIS PENDENS:

“Inherent powers of the court to grant injunction:

“Where the cases are not covered by Order 39, Interim injunctions can be granted by the court in exercise of inherent powers under section 151
ofCPC.”
“Case: Hassan Yusuf Khan vs. Syed Ashia Ali19, the court held that Order 39 Rule 1 and sec-151 do not entitle the court to issue injunctions
against the lawful owner. The grant of an id interim injunction is an extraordinary thing. It is not permissible to grant it unless the plaintiff is
undoubtedly entitled to a decree and the defendant is undoubtedly liable or likely to take away the fruits of the decree. Therefore, inherent power
under section 151 cannot be used as a regular affair when the remedy is available in a specific provision.”

CONCLUSION

“A pending litigation involving title transmits notice to intended buyers and charges the house, in whatever hands it may be, with the
implications of whatever decree may be made. Technically speaking, this is known as lis pendens. The theory of lis pendens is that even for a
beneficial consideration and without any actual notice, a purchase of property currently in litigation, or as the technical term runs, a purchase
pendente lite, affects the purchaser in the same way as if he had such notice, and he would be bound by the judgment or decree made in the
proceeding accordingly. The lis pendens doctrine applies only when by acquiring an interest in the subject-matter of the case, a third party
seeks to intrude into a dispute. The justification for the rule is that if it were to be practicable for the transfer of interest awaiting prosecutions
to impact the proceedings, there would be no end to the litigation; for as soon as a new party had been brought in, it could be moved to another
party and it would be appropriate to put the other party before the Court so that the proceedings could be interminable. In view of the above, it
can be concluded that the issuance of a temporary injunction cannot be sought by the party as a matter of law, nor can it be arbitrarily refused
by the Court. The injunction is a reasonable remedy and attracts the application of the "he who seeks equity must do equity" principle. The
Court has full power to grant or to deny an injunction. The discretion exercised by the Court is evidenced by the above-mentioned principles
and is based on the facts and circumstances of each case. The relief cannot be sought as a matter of law, while the case of the claimant may be
worthwhile. Therefore the authority to issue an injunction must be exercised with the greatest prudence, diligence, and consideration.”

BIBLIOGRAPHY

BOOKS REFERRED:-

1. Prof. R.K. SINHA, THE TRANSFER OF PROPERTY ACT, 10TH EDITION, 2008.

18
(1974) 40 Cut LT 336
19
1979 ALL. L.J. 54.
 2. Dr. AVTAR SINGH, THE TRANSFER OF PROPERTY ACT, 2008.

3. H.N. TIWARI, TRANSFER OF PROPERTY ACT, 4TH EDITION, 2005.

ONLINE SOURCES:
SCC
JSTORE
HEIN ONLINE