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2013 DIGILAW 548 (PAT)

Saroj Devi v. Amit Kumar

2013-04-24

AKHILESH CHANDRA

body2013
ORDER This is an appeal preferred against the order dated 04th May, 2011 passed by 1st Subordinate Judge, Bhagalpur in Title Suit No. 35 of 2010, on the prayer of plaintiff-respondent directing the defendant-appellant not to alienate or make any construction, but to maintain status quo as regard to subject matter of the suit till its disposal. 2. Admitted facts of the parties is that in between the parties there was an agreement to sale as regard to 1233 square feet of land for Rs. 19,72,800/-, out of which, Rs. 8,75,000/- was paid in advance on 14.05.2009 and possession over the land of 500 square feet was given in advance and remaining was to be delivered on payment of rest of the amounts within stipulate period. Initially before filing of show-cause, taking into consideration, the delay being caused by defendant-appellant vide detailed order dated 08.04.2010, the parties were directed to maintain the status quo, and subsequently, the court below in the order impugned finding that there was some violation in spite of restrain order and preparation of three drafts totaling to the remaining amounts prepared on 14.10.2009 filed in the court, but subsequently, returned by its own order to the plaintiff-respondent since the period of six months validity was going to be expired on 14.03.2010 and further finding the three ingredients for interim injunction, i.e., prima facie case balance of convenience and irreparable loss in favour of the plaintiff-respondent, the prayer was allowed. One thing more is further relevant that there, in the order, is an endorsement about the assurance given on behalf of the defendant-appellant during course of argument before the court below that “jaisa ki pratiwadi ne bahas ke dawran swekar kiya hai”. 3. While assailing the order impugned, it is contended on behalf of the appellant that in a suit for specific performance of the contract, there is no scope for any order for ad interim injunction and the law is very much clear on the point. The decisions of this Court in a case of “Fool Kumari Devi vs. Krishna Deo Upadhya & Anr.” reported in “ 1998 (1) PLJR 262 ” and in a case of “Lallan Prasad vs. Parmeshwar Singh” reported in “ 1998 (2) PLJR 120 ” have also been relied upon. The decisions of this Court in a case of “Fool Kumari Devi vs. Krishna Deo Upadhya & Anr.” reported in “ 1998 (1) PLJR 262 ” and in a case of “Lallan Prasad vs. Parmeshwar Singh” reported in “ 1998 (2) PLJR 120 ” have also been relied upon. On the other hand, it is contended by learned counsel for the plaintiff-respondent that major part of the agreement has already been effected and for the reminder plaintiff-respondent was always ready and willing to perform his part, who not only got prepared demand drafts, but also got the sale-deed drafted as is also evident from the impugned order and it is the defendant-appellant, who not only betraying the plaintiff-respondent, but also played wrong with the court while proceeding with the construction in spite of restrain order and furthermore during the course of argument also they give assurance to maintain the status quo. Hence, this appeal is not at all maintainable. 4. True it is that in a suit for specific performance of the contract since no interest can be claimed over the suit land till it is decreed, normally, there is no scope for any order of interim injunction, but at the same time, unless the prayer for such a interim order is finally negatived or restrain order, if any, is not recalled parties to the suit have no right to violate any instruction of the court and here in the instant case, it appears that earlier also in the year 2010 itself, the defendant-appellant tried to avoid filing show-cause, caused delay in further proceeding, and in spite of oral undertaking to maintain the status quo, was not ready to file such undertaking in writing, the court in seisin vide its order dated 08.04.2010 had to direct the defendant-appellant to maintain the status quo, which appears confirmed by subsequent order dated 04.05.2011 which is under challenge here. 5. As noticed, during the course of argument before the court below on behalf of the defendant-appellant there is some assurance which also formed basis for the order in question, but there is no whisper against said assurance through out in the entire lengthy memorandum of appeal. 5. As noticed, during the course of argument before the court below on behalf of the defendant-appellant there is some assurance which also formed basis for the order in question, but there is no whisper against said assurance through out in the entire lengthy memorandum of appeal. Though, during the course of argument, an attempt is being made to deny and challenge, but if at all, no such assurance was given before the court below during hearing, it was incumbent upon the defendant-appellant first to bring it in the notice of the court concerned by filing due application and, thereafter, in the memorandum of appeal. In absence thereof it cannot be said that the court has given such endorsement suo motu without any assurance given on behalf of the defendant-appellant and this alone disentitles the defendant-appellant, since not coming with clean hands, for any relief here in the appeal. 6. The parties having any right over any property can have a right to protect the same from others till last breath, but at the same time, he has every right to forego or create any embargo upon the same or any portion thereof, as the case may be. 7. Here, in the instant case also in spite of all contests, it appears, that in absence of any legitimate challenge of such endorsement stated above by the court below in the impugned order, appears that the defendant-appellant has also created a self imposed restriction upon herself. 8. During the course of argument, learned counsels representing the parties are in agreement that in this suit there are very limited issues to be decided and that can be done within a short span of time and learned counsel representing the plaintiff-respondent agreed to adduce all the evidence (oral/documentary) within a maximum period of two months. Similarly, same thing can be done by the defendant-appellant within same period or little less, and if it is done, the court below may be in a position to arrive at its final conclusion within a month thereafter. 9. Taking into consideration all such aspects as discussed above, the appeal is hereby dismissed, on contest, but without cost. Similarly, same thing can be done by the defendant-appellant within same period or little less, and if it is done, the court below may be in a position to arrive at its final conclusion within a month thereafter. 9. Taking into consideration all such aspects as discussed above, the appeal is hereby dismissed, on contest, but without cost. Simultaneously, the court below is directed to preferably proceed with the suit on day to day basis and taking advantage of the assurances stated above and get the evidence on behalf of the plaintiff-respondent concluded within a maximum period of two months and almost same period is given to the defendant-appellant (the period so states may be reduced, but must not exceed) and, thereafter, within a maximum period of one month the suit be finally disposed of. Let this order be communicated to the court below immediately through FAX at the cost of the defendant-appellant and the plaintiff-respondent to be doubly sure of the communication of the order may also deposit the cost of communication of the order through FAX.