MANMOHAN SARIN ( 1 class=pno> N> 1 ) THE appellant has filed the present appeal against an order dated 18. 4. 1992 passed by Shri P. K. Bhasin, Additional District Judge dismissing the appellant s application under Order XXXIX rule 2 C. P. C. , for restraining the respondents from selling alienating or transferring in any manner their rights qua property No. R-18, Naveen, Shahdara, Delhi. ( 2 ) THE application had been filed in a suit for specific performance, instituted by the appellant claiming an oral agreement, by which the respondent No. 1 through his at rney respondent No. 2, had agreed to sell the above property under the tenancy or the appellant. ( 3 ) THE facts in brief as per the appellant may be stated as under: I) The appellant is a tenant under the respondent No. 1 in respect of a part of the property R-18, Naveen, Shahdara, Delhi admeasuring 100 sq. yds. at the rent of Rs. 100. 00 per month. (II) The appellant is also a tenant under repondents 2 and 3 in respect of Shop No. 6, K-12, Naveen Shahdara, Delhi at the rent of Rs. 60. 00 per month. (III) There had been lot of acrimonious litigations between the appellant and the respondents. IV) The appellant alleges harrasment by respondents, inter lia, in disconnection of electricity to the tenanted premises, collusive emolition through MCD of the part of the tenanted premises. The respondents have instituted suits for recovery of damages against he appellant. The appellant had instituted criminal proceedings for the alleged demolition which are pending before the Additional District Judge, Shahdara. The criminal procedings instituted against respondents 2 and 3 are also pending before the Metropolitan Magistrate at Shahdara, Delhi. (V) The appellant claims that simultaneously with the above litigation talks for compromise and complete settlement of all disputes were going on with the respondents. The respondent No. 1 is the elder brother of respondents 2 and 3. According to the appellant the respondent No. 1 never attended the matter and acted through his brother respondent No. 2 as his attorney. ( 4 ) THAT it is the appellant s case that on 2. 9. The respondent No. 1 is the elder brother of respondents 2 and 3. According to the appellant the respondent No. 1 never attended the matter and acted through his brother respondent No. 2 as his attorney. ( 4 ) THAT it is the appellant s case that on 2. 9. 1987, after the proceedings were over in the Court of Shri Sudip Ahluwalia, an agreement was arrived at between the appellant and respondent No. 2 Shri Badri Kumar on behalf of his brothers Shri, Krishan Kumar and Shri Umesh Kumar in the presence of counsel for the parties viz. , Sh. Basant Kumar Gupta counsel for the respondents and Shri P. D. Gupta, the appellant s counsel. In terms of the said agreement, all disputes between the parties were to be treated as settled and all suits and criminal proceedings were to be, withdrawn. The appellant under the settlement was to vacate Shop No. 6 at premises No. K-12, Naveen. Shahdara and property bearing No. R-18, Naveen, Shahdara belonging to respondent No. 1 was to be sold for a total consideration of Rs. 55,000/ -. Rs. 500. 00 as part consideration was paid by the appellant to respondent who accepted the same as attorney of the respondent No. 1. It is the appellant s case that the oral agreement as above stood concluded. ( 5 ) THAT subsequently as the respondents resiled from the agreement, the appellant was constrained to move applications for recording of the compromise and finally filed the suit for specific performance of the agreement. It is-the dismissal of the application under Order XXXIX rules 1 and 2 C. P. C. by the impugned order against which the present appeal is filed. ( 6 ) COUNSEL for the appellant Mr. A. S. Anand while assailing the impugned order has submitted that the trial court failed to appreciate that the agreement to sell stood concluded with the receipt of Rs. 500. 00 which had not been denied. The trial court has misconstrued the statement of Sh. Basant Kumar Gupta, Advocate of the respondents who was examined as a court witness in returning the finding that no benefit could be drawn out of his said deposition by the appellant. The trial court further erred in holding that the respondent No. 2 as attorney had no authority to negotiate and compromise the connected matters. Basant Kumar Gupta, Advocate of the respondents who was examined as a court witness in returning the finding that no benefit could be drawn out of his said deposition by the appellant. The trial court further erred in holding that the respondent No. 2 as attorney had no authority to negotiate and compromise the connected matters. As per the counsel, this was an erroneous conclusion in the facts and circumstances of the case, where respondent No. 2 had been acting for and holding a power of attorney from respondent No. 1. The trial court should have held that there was a prima facie case and the balance of convenience was in favour of the appellant as he would suffer irreparable injury, if the injunction was not granted. No prejudice would be caused to the respondents by grant of injunction as the appellant was in possession. Counsel for the appellant also relied on 1968 SC 1028 titled Kollipara Sriamulu (dead) by his legal representative Vs. T. Aswatha Narayana (dead) by his leegal representative and others, wherein it was observed;- "a mere reference to a future formal contract in an oral agreement will not prevent a binding bargain between the parties. The fact that the parties refer to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. There are, however, cases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed. The question depends upon the intention of the parties and the special circumstances of each particular case. "the learned counsel for the respondent has refuted the contentions of the appellant and supported the findings of the learned trial court. ( 7 ) THE learned counsel for the respondent also urged that the present appeal was not maintainable since the applications filed by the appellant before the Additional Rent Controller as well as before Sh. Y. S. Jonwal, Civil Judge for recording of the compromise in terms of the alleged agreement propounded by the appellant had been rejected. Counsel for the respondent has urged that there was no concluded contract and even the respondent no. 2 had not accepted the said amount of Rs. 500. Y. S. Jonwal, Civil Judge for recording of the compromise in terms of the alleged agreement propounded by the appellant had been rejected. Counsel for the respondent has urged that there was no concluded contract and even the respondent no. 2 had not accepted the said amount of Rs. 500. 00 which had been paid by the appellant s counsel to counsel for the respondents. Counsel for the respondents further urged that the alleged factum of the agreement stood negatived by the appellant s own conduct, who continued with his evidence on 16. 9. 1987 in a pending litigation. ( 8 ) THE pivotal point to be considered is whether the respondent No. 2 had any authority and could bind the respondent No. 1, assuming the agreement as contended by the appellant was entered into. The appellant claims that the respondent No. 2 was the brother and general attorney of the respondent No. 1, who is the owner of property bearing no. R-18, Naveen, Shahdara. A perusal of the power of attorney relied on by the appellant and appearing at page 44 of the appeal shows that it was a special power of attorney issued in case No. 26 of 1982 titled Krishan Kumaar Vs. P. C. Mathur. The said power of attorney authorised the respondent No. 2 to act on behalf of the respondent No. 1 for the said case. It is significant to notice that as regards compromise, the power was a restricted one. It runs as follows: "he (r-1) is also empowered to compromise all of the matters involved in the said case" It means case No. 26 of 82 and none else. It would, therefore, be seen that admittedly respondent No. 1 was not a party to the alleged agreement and was not even present when the said negotiation took place. Respondent No. 2 could not bind the respondent No. 1 on the basis of the aforesaid power of attorney. Accordingly neither the respondent No. 2 nor the counsel Shri Basant Kumar Gupta could enter into an agreement to sell the property on behalf of respondent No. 1. Besides as noticed by the trial court even as per the statement of Sh. Basant Kumar Gupta counsel for the respondent No. 1 the agreement between the parties had fizzled out. Accordingly neither the respondent No. 2 nor the counsel Shri Basant Kumar Gupta could enter into an agreement to sell the property on behalf of respondent No. 1. Besides as noticed by the trial court even as per the statement of Sh. Basant Kumar Gupta counsel for the respondent No. 1 the agreement between the parties had fizzled out. The "consideration even was not accepted by the respondent No. 2 and it is said to have been adjusted by the counsel against some fees due. Apart from the fact that the respondent no. 2, could not lawfully bind the respondent No. 1, the version of the respondent No. 2 that there was no concluded contract as the proposals were to be considered and approved by respondent No. 1 appears credible and inspires confidence. This is more so having regard to the nature and extent of the litigation between the parties. There is also merit in the contention of the respondent that the respondent himself on 16. 9. 1987 recorded his evidence. Indeed if there had been an agreement by which all disputes stood settled and cases to be withdrawn, there would have been no occasion to record the evidence. Rather an adjournment would have been sought by the appellant. There is no dispute with the principles enunciated in the Kollipara Sriramulu (dead) by his legal representatives s case (Supra ). This authority would not advance the petitioner s case in the facts and circumstances of this case. ( 9 ) THE trial court has correctly held that the appellant does not have a prima facie case. The consideration of balance of convenience in the absence of the prima facie case would not arise. The appeal has no merit and is accordingly dismissed but with no order as to costs. The interim order granted on 12th January, 1993 stands vacated.