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1996 DIGILAW 1013 (MP)

Ashok Kumar Sable v. Savak Prasad Singh

1996-12-09

S.C.PANDEY

body1996
ORDER S.C. Pandey, J. 1. This is an appeal directed against the order dated 16.12.94, passed by 1st Additional Judge to the Court of District Judge, Betul, in C.S. No. 24-A/94, refusing to grant temporary injunction u/o. 39, Rules 1 and 2 of the Code of Civil Procedure. 2. The appellant filed a Civil Suit No. 24- A/94 on the basis of an agreement dated 30th August, 1989 whereby it has been agreed between the appellant and the respondent No. 1 that the suit property shall be sold for a consideration of Rs. 3 lacs. It was also stated in that agreement that out of the suit property, Khasra No. 28 situate in village Pathakheda, Tahsil and District Betul the appellant had already purchased three acres of land for a consideration of Rs. 21,000/- and the rest of the land is now being purchased for the aforesaid consideration. The earlier agreement in respect of one acre of land is also on record, which is dated 19.7.89. This document too mentioned the fact that the said entire property shall be sold for a consideration of Rs. 3 lac. It is not disputed by the counsel for the parties that as per agreement dated 19.7.89 registration of one acre of land has already been clone between the parties. It is the case of the appellant that after executing the agreement dated 30.8.89 the appellant approached the respondent No. 1 for performing his part of the contract. In paragraph 3 of the plaint it is stated that when the appellant wanted the execution of the sale-deed for a consideration of Rs. 2,79,000/- the respondent No. I refused to do so several times and, thereafter, on 13.6.92 the respondent No. 1 accepted Rs. 4,000/- and thereafter Rs. 5000/-. According to the appellant, the cause of action arose on 13.6.92 and, therefore, the suit was within time. 3. It appears from the allegations made in the plaint that at least, upto 13.6.92 the respondent No. 1 has not unequivocally refused to perform his pan of the contract, therefore, the suit prima facie appears to be within limitation. 4. The learned counsel for the appellant argued that the appellant has filed an application u/o. 390, Rules 1 and 2 of the Code of Civil Procedure for restraining the respondent No. 1 from further alienating the suit property. 4. The learned counsel for the appellant argued that the appellant has filed an application u/o. 390, Rules 1 and 2 of the Code of Civil Procedure for restraining the respondent No. 1 from further alienating the suit property. The trial Court has totally misunderstood the nature of temporary injunction sought by the appellant. The trial Court has dealt with the case as if the appellant is claiming that he is in possession of the suit properly and the trial Court has held that since the appellant is not in possession of the suit property, he is not entitled to temporary injunction. 5. The learned counsel for the respondent No. 1, on the other hand, says that it is the case of the respondent No. 1 that he has never entered into an agreement on 30.8.89 and this document is a forged document and, therefore, no temporary injunction should be granted. 6. In the opinion of this Court, prima facie, the appellant has a case for grant of temporary injunction restraining the respondents from alienating the suit property. In the opinion of this Court it is not germane for the Court to consider whether the appellant is in possession of the suit property or not. Obviously, there is nothing on record to show that the appellant was placed in possession of the suit property pursuant to the agreement dated 30.8.89. The prayer of the appellant is to the effect that the respondent No. 1 should not alienate the suit property to others and thereby create complications in the suit for specific performance of the Contract. 7. In the opinion of this Court, the appellant has a prima facie case as well as balance of convenience in his favour and in case, the temporary injunction is refused, payment of money shall be no compensation. In view of this matter, the appeal succeeds and is allowed. The impugned order is set aside. The respondent No. 1 is restrained from further alienating the suit property to others. It is further directed that the record of the Court below be sent back immediately.