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2003 DIGILAW 218 (HP)

KRISHNA DEVI v. MOHAN INDER SINGH

2003-08-05

M.R.VERMA

body2003
JUDGMENT M. R. Verma, J.: - This application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereafter referred to as the Code) has been moved by the applicant-plaintiffs (hereafter referred to as the plaintiffs) for grant of temporary injunction restraining the respondents-defendants (hereafter referred to as the defendants) from transferring, selling, alienating or encumbering the suit land in any manner till the disposal of Civil Suit No. 42 of 2002, instituted by them against the defendants. 2. Brief facts relevant for the purpose of disposal of this application are that the said Civil Suit of the plaintiffs for specific performance of an agreement and possession with consequential relief of permanent perpetual injunction is pending disposal in this court. Case of the plaintiffs in brief is that defendant No. 2 as General Power of Attorney of defendant No. 1 executed agreement dated 6.12.2001 thereby agreeing to sell to the plaintiffs two plots of lands measuring 0-8-38-40 Hectares, comprising Kharas No. 5 and 10/1, Khewat Khatauni Nos. 74/104, situate in Mohal and Mauza Gopalpur, Tehsil Palampur for a consideration of Rs.16,00,000/- and received a sum of Rs.1,00,000/- as part of the sale consideration through a cheque dated 6.12.2001. Since the land agreed to be sold is a Tea Garden and defendant cannot sell it without the permission of the State Government, therefore, it was agreed by the parties that the sale deed would be executed by the defendants in favour of the plaintiffs within a period of one month of the grant of requisite permission by the State Government. Pursuant to the terms of the agreement, plaintiffs applied to the State Government to accord permission for sale/purchase and the matter is pending with the Government. After the said agreement, the plaintiffs had always been ready and willing to perform their part of the contract. However, the defendants with intention to deprive the plaintiffs of their right under the agreement started negotiating for sale of the suit land to certain other persons and the prospective buyers had also applied to the State Government or grant of permission to purchase the suit land. However, the defendants with intention to deprive the plaintiffs of their right under the agreement started negotiating for sale of the suit land to certain other persons and the prospective buyers had also applied to the State Government or grant of permission to purchase the suit land. The plaintiffs apprehend that the move of the defendants is going to prejudice their rights under the agreement, hence, the suit for specific performance of the agreement, possession of the land agreed to be sold and injunction not to transfer the suit land to any other person. 3. Defendant No. 1 contested the suit and raised preliminary objections in the written statement that the suit is "collusive qua plaintiffs and defendant No. 2", that the suit is bad for non-joinder of necessary parties, that the plaintiffs have no cause of action, that the suit is based on "such merit which is fraudulent", that the plaintiffs are estopped by their act, conduct and acquiescence from filing the present suit and the agreement to sell land executed by defendant No. 1 in favour of Faiz Murtaza Ali is well within the knowledge of the plaintiffs. On merits, while denying the claim of the plaintiffs it has been averred that defendant No. 2 who was admittedly at one point of time appointed General Power of Attorney by defendant No. 1 started misusing his authority under the power of attorney, therefore, the attorney give to defendant No. 2 was revoked vide revocation deed registered on June 26, 2000 and a registered notice in this regard was served on defendant No. 2. However, defendant No. 2 who had been represented by husband of Krishna Devi plaintiff No. 1 as a counsel in various litigations despite rejection of his application for grant of permission to sell the land without any authority executed the aforesaid agreement in favour of the plaintiffs with a view to fraudulently deprive defendant No. 1 of his valuable rights in the land by selling it at throwaway price and leaving no alternative to defendant No. 1 except to sell whole of his land at throwaway price. It is, therefore, claimed that the alleged agreement in favour of the plaintiffs being a fictitious and fraudulent document does not create any right in favour of the plaintiffs and defendant No. 1 is under no obligation to execute any sale deed pursuant to such agreement. 4. It is, therefore, claimed that the alleged agreement in favour of the plaintiffs being a fictitious and fraudulent document does not create any right in favour of the plaintiffs and defendant No. 1 is under no obligation to execute any sale deed pursuant to such agreement. 4. Defendant No. "2 has not come forward to contest the claim of the plaintiffs and is ex parte. 5. Plaintiffs filed replication to the written statement of defendant No. 1 thereby controverting the grounds of defence as taken in the written statement and reaffirming the claim, as made out in the plaint. 6. The plaintiff alongwith the plaint filed the present application under Order 39 Rules 1 and 2 of the Code for grant of temporary injunction restraining the defendants from transferring, selling, alienating or encumbering the suit land in any manner till the disposal of the suit on the grounds that they have very good prima facie case and the suit is likely to be decreed. In the event of defendants succeeding in transferring etc. the suit land, the plaintiffs will suffer irreparable loss and injury which cannot be momentarily compensated and the balance of convenience is in favour of the plaintiffs. 7. The defendant No. 1, relying on the averments as in his written statement resisted the application and claimed that the plaintiffs have no case and their suit is likely to be dismissed and if the application is allowed, irreparable injury will be caused to the defendants in whose favour the balance of convenience is. 8. I have heard the learned Counsel for the parties and have gone through the relevant records. 9. The relief of temporary injunction is a relief in equity, hence a discretionary relief. No doubt, the discretion has to be exercised as per the well established principles of law and in a judicious manner. 8. I have heard the learned Counsel for the parties and have gone through the relevant records. 9. The relief of temporary injunction is a relief in equity, hence a discretionary relief. No doubt, the discretion has to be exercised as per the well established principles of law and in a judicious manner. Before granting temporary injunction, the Court must be satisfied of the following three essential conditions :- (i) that the party seeking injunction has a prima facie good case, that is, there is a bona fide contest between the parties and serious question(s) is required to be tried; (ii) that interference of the Court is necessary to protect the party applying for injunction from irreparable injury which is incapable of being compensated in terms of money; and (iii) that the balance of convenience is in favour of the party applying for injunction, i.e. the comparative mischief or inconvenience likely to be caused by withholding the injunction will be greater than is likely to arise from granting it: 10. Apart from the aforesaid essential conditions, enabling the Court to grant temporary injunction, equitable considerations, like, the conduct of the party seeking injunction, delay in filing the application, preventing multiplicity of litigation etc., may also be taken into account. However, it is for the party seeking injunction to show the existence of the aforesaid requisite conditions. 11. In the case in hand, the claim of the plaintiffs is based on agreement dated 6.12.2001 executed by defendant No. 2 as general power of attorney of defendant No. 1. It is admitted case of the parties that the suit land being a tea garden cannot be sold by defendant No. 1 save and except with the prior permission of the State Government. As per clauses 3 and 4 of the said agreement, it was for the plaintiffs to obtain permission of the State Government for purchase of the land and to get the sale deed registered within one month of such permission. As per averments in para 7 of the plaint, the plaintiffs applied for such permission and their application is pending disposal with the Sate of HP. However, there is nothing on the record except this bare assertion in the plaint to lend assurance to the averment that plaintiffs had applied for the requisite permission. As per averments in para 7 of the plaint, the plaintiffs applied for such permission and their application is pending disposal with the Sate of HP. However, there is nothing on the record except this bare assertion in the plaint to lend assurance to the averment that plaintiffs had applied for the requisite permission. Had they so applied, at least a copy of such application or any other communication to or from the State Government regarding the subject-matter of the application could be and should have been filed with the plaint/application by the plaintiffs whereas no such copy(s) had been filed. There is no specific statement on oath or solemn affirmation in the affidavits, filed by the plaintiffs in support of their having made such application. It is thus not possible to come to a prima facie conclusion that the plaintiffs ever applied for grant of the requisite permission. 12. It, prima facie, appears from the documents filed by the contesting defendant, that vide application dated 17.5.2002, defendant No. 2 as general power of attorney of defendant No. 1 applied for grant of requisite permission to the Deputy Commissioner, Kangra. However, such application appears to have been filed vide communication dated 5.10.2002 on the ground that general power of attorney given by defendant No. 1 in favour of defendant No. 2 had been cancelled by the former. Defendant No. 1 vide his letter dated 7.5.2002 informed the Deputy Commissioner that he was not aware as to why defendant No. 2 was seeking permission and his general power of attorney stood revoked in 2000. It is thus prima facie made out that the application for requisite permission to sell land in suit to the plaintiffs having been made by an unauthorised person stands filed. There being no application for grant of requisite permission pending in furtherance of the agreement dated 6.12.2001 particularly by the plaintiffs who, as per the agreement were to make such application, prima facie it cannot be said that they had always been ready and willing to perform their part of the agreement. 13. The agreement relied by plaintiffs had admittedly been executed by defendant No. 2 as general power of attorney of defendant No. 1. 13. The agreement relied by plaintiffs had admittedly been executed by defendant No. 2 as general power of attorney of defendant No. 1. However, a certified copy of registered revocation deed dated 27.6.2000, letter dated 27.6.2000 from defendant No. 1 to defendant No. 2 and attested copy of AD filed by defendant No. 1, prima facie show that general power of attorney given by defendant No. 1 to defendant No. 2 stood revoked on 27.6.2000 and defendant No. 2 was informed of such revocation immediately thereafter, but before the execution of the agreement, basis of the suit of the plaintiffs. 14. Be it stated that the revocation deed is registered in the office of Sub Registrar, Palampur in whose territorial jurisdiction the place where the suit land is situate falls, Registration of a document is notice in remand has to be presumed a notice of the contents of such document to all concerned and, the contrary can be held true only when such presumption is rebutted. At this stage, there is noting on the record to rebut such presumption. A person having ceased to have any authority to transfer the property of another person cannot enter into any agreement qua such property nor can lawfully convey title in such property. 15. The defendant No. 1 had filed copies of agreement dated 22.4.2002 between him and one Faiz Murtaza Ali regarding sale of land including the land in suit, copy of letter conveying decision of the State Government to grant permission to defendant No. 1 to sell the land including the suit land to said Faiz Murtaza Ali and the letter dated 6.8.2002 conveying grant of such permission and period of validity thereof to Faiz Murtaza Ali. These documents prima facie disclose that defence of defendant No. 1 stands on a better footing than the claim of the plaintiffs. 16. The above discussion leads me to be conclusion that the plaintiffs have failed to show that they have a prima facie good case. 17. Keeping in view the above conclusions and the facts and circumstances of the case, particularly the time of validity of permission to execute the sale, it cannot be said that in the event of denial of the temporary injunction any irreparable injury incapable of being compensated in terms of money, is likely to be caused to be plaintiffs or that balance of convenience is in their favour. 18. In view of the above reasons and conclusions, the present application merits dismissal and is accordingly dismissed. The ad interim injunction granted vide, order dated 31.10.2002 is hereby vacated. 19. It may be made clear that the observations made hereinabove are strictly for the purpose of disposal of this application and nothing contained therein shall be construed as an expression of opinion on any controversy between the parties on merits of their rival claims.