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Rajasthan High Court · body

2010 DIGILAW 651 (RAJ)

Manish Gera v. Shyam Lal Bulani

2010-03-23

DALIP SINGH

body2010
JUDGMENT 1. - Heard learned counsel for the parties. 2. This misc. appeal has been preferred against the order dated 11.02.2010 passed by the learned Additional District (Fast Track) No. 9, Jaipur City, Jaipur whereby the application filed by the plaintiff-appellant under Order 39, Rule 1 and 2 C.P.C. for the grant of temporary injunction was dismissed by the learned trial court and the ad interim order in favour of the plaintiff was vacated. 3. The plaintiff filed the suit for specific performance of an agreement for sale of shop No. 1 which was entered into by the plaintiff on 20.09.1998 with the defendant No. 1 Shyam Lal who as per the contents of the agreement alleging himself to be the owner of the shop No. 1 entered into the aforesaid agreement for sale of the said property in favour of the plaintiff for a total consideration of Rs. 3,00,000/-. The case of the plaintiff further is that the plaintiff was already a tenant of the shop and paid to the defendant No. 1 on various dates different sums and in all Rs. 2,05,000/- and a balance of amount of Rs. 95,000/- remained outstanding towards the sale consideration. It was pleaded that in the event of the payment of the balance amount, the plaintiff would be entitled to get the sale-deed registered in his favour. The plaintiff further stated that subsequently he came to know that in fact the shop was in the ownership of the defendant No. 2 Kanhaiya Lal and the defendant No. 1 assured him that whatever he had done by way of the agreement to sell had been done in full permission and under the authority of the defendant No. 2 and the defendant No. 2 had in fact given the aforesaid authority with respect to the property in dispute, the shop No. 1, under a power of attorney. The plaintiff further averred that since the defendants were wanting to alienate the property in dispute by way of selling the same, etc., the plaintiff had to file the present suit for specific performance of the agreement to sell dated 20.09.1998. Along with the suit an application for temporary injunction was also filed. 4. The defendants put in their appearance before the learned trial court and filed separate replies. Along with the suit an application for temporary injunction was also filed. 4. The defendants put in their appearance before the learned trial court and filed separate replies. The defendant No. 1 denied the fact that he was the owner of the shop No. 1 and also denied having executed any agreement in favour of the plaintiff/appellant. He also denied that he had any authority to execute the said agreement on the basis of the power of attorney executed by the defendant No. 2 in his favour. It was further pleaded that the alleged agreement and the power of attorney are fabricated piece of evidence. 5. The defendant No. 2 denied the execution of the agreement, which admittedly has not been executed between the plaintiff and the defendant No. 1, even as per the plaint averments. The defendant No. 2 has also denied having executed any power of attorney in favour of the defendant No. 1 with respect to the shop No. 1 so as to authorise the defendant No. 1 to sell the property in dispute, shop No. 1 or execute any agreement taking sale consideration on his behalf. The defendant No. 2 also denied having received any amount, as alleged by the plaintiff. 6. The learned trial court while considering the application for the grant of temporary injunction has considered the relevant considerations for the grant of temporary injunction namely, prima facie case, balance of convenience and irreparable loss. While considering the aforesaid, the learned trial court has found that the plaintiff has failed to prove prima facie case in his favour. 7. Learned counsel for the appellant contended that the suit had been filed on the basis of the agreement entered into by the defendant No. 1 for the property in dispute-Shop No. 1 on behalf of the defendant No. 2. He further submits that the fact that an amount of Rs. 2,05,000/- had been paid to the defendant No. 1 is also not denied. He, therefore, submits that the plaintiff has a prima facie case in his favour and the defendants be restrained not to raise constructions or alienate the property during the pendency of the suit. 8. He further submits that the fact that an amount of Rs. 2,05,000/- had been paid to the defendant No. 1 is also not denied. He, therefore, submits that the plaintiff has a prima facie case in his favour and the defendants be restrained not to raise constructions or alienate the property during the pendency of the suit. 8. Learned counsel appearing for the defendant No. 2/respondent No. 2 Kanhaiya Lal contested the aforesaid and submitted that it has rightly been held by the learned trial court that there is no privy of contract between the defendant No. 1 and the plaintiff. He further submitted that no power of attorney had been executed by the defendant No. 2 in favour of the defendant No. 1 and no such power of attorney had been produced before the learned trial court till date. He further submitted that the contents of the alleged agreement show that the defendant No. 1 allegedly executed the said agreement posing himself as the owner of the property in dispute-Shop No. 1 and not as the power of attorney holder of the defendant No. 2. It is, therefore, submitted that the plaintiff's own case in the plaint is that the property in dispute-Shop No. 1 belongs to the defendant No. 2 and the agreement has not been entered into by the defendant No. 2 but by the defendant No. 1. There is nothing in the agreement dated 20.09.1998 to show that the same has been entered into for and on behalf of the defendant No. 2. In the circumstances, it is submitted that the plaintiff cannot claim any relief with regard to the specific performance of the agreement against the defendant No. 2. 9. I have given my thoughtful consideration and also considered the judgment of the learned trial court. 10. Considering the plaint averments, the submissions made by the learned counsel for the respondent-defendant No. 2 prima facie do appear to have much substance. The learned trial court has, therefore, in my opinion, rightly decided the question of prima facie case against the plaintiff. This court would not like to elaborate and discuss the rival submissions in detail as it may adversely affect the case of the parties. 11. The learned trial court has, therefore, in my opinion, rightly decided the question of prima facie case against the plaintiff. This court would not like to elaborate and discuss the rival submissions in detail as it may adversely affect the case of the parties. 11. So far as the question of balance of convenience and irreparable loss is concerned, the learned trial court having held that no prima facie case is made out has also taken into consideration the undertaking given by the defendants No. 2 to 4 which is recorded in para 16 of the said order that in case the suit is decreed, the defendants No. 2 to 4 would compensate the plaintiff for any loss that may be cause. 12. In the facts and circumstances, I find no good ground to interfere with the impugned order dated 11.02.2010. 13. The appeal as well as the stay application accordingly stand dismissed. The interim order passed by this court dated 05.03.2010 stands vacated. The application submitted by the respondents for vacation/ modification of the interim order also stands dismissed. 14. It is made clear that the rejection of the application and the appeal would not adversely affect the rights of the plaintiff and the learned trial court is expected to decide the suit finally on the basis of the evidence adduced at trial without being influenced by the rejection of this appeal.Appeal dismissed. *******