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2014 DIGILAW 1269 (RAJ)

Arjun Singh v. Hukmi Chand

2014-06-23

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant appeal has been filed by the appellant against the order dated 1.2.2006 passed by the learned Addl. District Judge No. 3, Jodhpur in Civil Misc. Case No. 17/2000 whereby the learned Trial Court allowed the application filed by the respondent plaintiff for temporary injunction under Order 39 Rules 1 and 2 C.P.C. and granted temporary injunction in his favour. 2. Facts in brief:- The plaintiff respondent filed a suit for specific performance of contract accompanied with application for temporary injunction under Order 39 Rules 1 and 2 C.P.C. It was averred in the plaint that the defendant appellant Arjun Singh being Karta of the Joint Hindu Family executed an agreement to sell the suit premises in favour of the plaintiff respondent on 3.9.1998. A sum of Rs. 2 lacs was paid to the defendant on the very same day. The plaintiff was ready to fulfill his part of the contract but the defendants were avoiding to carry out the contract and were on the look out to transfer the property to some-one-else. 3. The defendant appellants filed a written statement and claimed that Arjun Singh was made to sign the agreement by keeping him in dark. As a matter of fact the document in question was got signed under the misconception that it was a declaration deed and Arjun Singh signed the same without being apprised of its consequences. It was further submitted that the defendants prepared declaration deed dated 3.9.1998 in favour of the plaintiff. As per the terms of the declaration deed it was agreed that the defendant would prepare a shop in term of the agreement before 1.12.1998 and shall hand the same over to the plaintiff. In furtherance to the agreement/declaration the plaintiff paid a sum of Rs. 2 lacs to the defendant Arjun Singh on 4.9.1998 but on the very next day i.e. on 5.9.1998, the amount was taken back pleading emergent personal necessity. As the plaintiff and the defendants were on good terms, the amount was returned back without doubting the bonafides of the plaintiff. The amount was returned in presence of Mangal Singh and Hari Singh. When the amount was not returned for a long period of time, the defendants made a demand from the plaintiff. The plaintiff gave them some post dated cheques. 4. The amount was returned in presence of Mangal Singh and Hari Singh. When the amount was not returned for a long period of time, the defendants made a demand from the plaintiff. The plaintiff gave them some post dated cheques. 4. All these cheques were drawn, on Dena Bank, Jodhpur and were dishonoured on presentation. It was further claimed that the defendants filed a complaint against the plaintiff wherein the police gave final report after investigation but the matter was going on at the stage of protest petition. Thus, it was pleaded that the suit as well as the application for temporary injunction were based on a fraudulent document and should be dismissed. 5. The Trial Court considered the contentions advanced by the parties and by a detailed well reasoned order dated 1.2.2006 which is impugned in the present appeal restrained the defendants appellants from alienating, transferring or altering the status of the suit premises. Hence, this appeal. 6. Mr. M.K. Trivedi, learned Counsel for the appellants vehemently contended that the suit by itself was based on a fraudulent document and as such the Trial Court was absolutely unjustified in granting an order of temporary injunction in favour of the plaintiff. He urged that the conduct of the plaintiff was totally fraudulent and malafide because the amount of Rs. 2 lacs which was handed over to the defendant was immediately taken back on the very next day of the document of declaration being prepared. The plaintiff handed over certain cheques to the defendant in lieu of return of the amount of Rs. 2 lacs. The said cheques were dishonoured on presentation. Thus, he submits that the plaintiff failed to make out a prima facie case in his favour and accordingly the application for temporary injunction was wrongly allowed by the Trial Court. He, therefore, urged that the appeal be allowed and the impugned order be set aside. 7. Mr. Alkesh Agarwal, learned Counsel for the respondent plaintiff opposed the submissions advanced by the learned Counsel for the appellants. He submitted that the learned Trial Court after due examination and just appreciation of the material available on record arrived at a satisfaction that the plaintiff succeeded in making out all the three mandatory requisite criterion and thereafter passed the order of temporary injunction. He submitted that the learned Trial Court after due examination and just appreciation of the material available on record arrived at a satisfaction that the plaintiff succeeded in making out all the three mandatory requisite criterion and thereafter passed the order of temporary injunction. He relied upon the decision rendered by the Hon'ble Apex Court in the case of Maharwal Khewaji Trust (Regd.) Fartdkot v. Baldev Dass reported in JT 2004(9) SC 216 and submitted that the order impugned does not call for any interference. As per him, the cheques which have been referred to by the learned Counsel for the appellant were not related to the agreement which is subject matter of the suit. Thus, he urged that the appeal being devoid of merit should be rejected. 8. Heard and considered the arguments advanced by the learned Counsel for the parties. Perused the impugned order as well as the record. 9. The fact that Arjun Singh signed the agreement/declaration which is the basis of the suit for specific performance is admitted in the pleadings of the appellant defendant Arjun Singh signed the declaration in the capacity of the Karta of the undivided Hindu Family. The principal challenge to the impugned order has been made on the basis of the so called dishonour of the cheques which as per the learned Counsel for the appellant has a material bearing on the facts of the case. The appellants have set up a case in the reply to the application under Order 39 Rules 1 and 2 C.P.C. that the plaintiff paid them a sum of Rs. 2 lacs and a declaration deed was executed thereupon. As per the defendants, the amount in question was taken back by the plaintiff on the very same day of the citing emergent need and taking advantage of the thick relations between the parties. Thereafter certain cheques were handed over by the plaintiff which were dishonoured on presentation. Mr. Trivedi thus tried to canvass before this Court that the amount of Rs. 2 lacs which the plaintiff claims to have paid to the defendant against the agreement/declaration was as a matter of fact taken back and as such the ground for seeking specific performance of the agreement was extinguished. 10. 1 have examined the record, the agreement in question as well as the dishonoured cheques. 2 lacs which the plaintiff claims to have paid to the defendant against the agreement/declaration was as a matter of fact taken back and as such the ground for seeking specific performance of the agreement was extinguished. 10. 1 have examined the record, the agreement in question as well as the dishonoured cheques. Along with the declaration deed/agreement, there is a receipt dated 4.9.1998 wherein defendant appellant Arjun Singh has acknowledged receipt of a sum of Rs. 2 lacs against the agreement. The defendants-appellants claim that the amount in question was taken back by the plaintiff respondent citing personal need and as the relations of the parties were very close, the defendant without doubting bona fides of the plaintiff returned the amount back to him on the day next to the agreement being executed. If the plaintiff prepared and got executed a receipt as an acknowledgment of the payment, the defendant should also have taken the same step while the amount was allegedly returned to the plaintiff. No receipt etc. for the alleged return of the amount to the plaintiff is available on record. Certified copies of the cheques relied upon by Mr. Trivedi are available on record. The cheques have been issued on behalf of a firm named Medisons and are of the year 1999. The cheques are for varying sums of money ranging from Rs. 3,000 to Rs. 21,800. The agreement which was executed between the parties does not refer to the firm Medisons. Thus, prima facie these cheques appear to have no relevance or bearing on the agreement executed between the parties. The contention that the amount of Rs. 2 lacs which was received by the defendants against the agreement was returned back on the very next day primafacie does not appeal to this Court in absence of documentary proof. Be that as it may. It is for the Trial Court to consider the merits and niceties of these factual aspects whilst deciding the suit. 11. This Court whilst considering the interim stay application filed by the defendants-appellants along with the appeal, refused to stay the operation of the impugned order and the stay application was rejected. Thus, the order of temporary injunction continues to be in force for the last more than 8 years. 12. Genuineness of the agreement in question and the signatures of Arjun Singh are not disputed. Thus, the order of temporary injunction continues to be in force for the last more than 8 years. 12. Genuineness of the agreement in question and the signatures of Arjun Singh are not disputed. The defendants in their written statement and the reply to the application under Order 39 Rules 1 and 2 admitted to have received a sum of Rs. 2 lacs on 4.9.1998 in terms of the agreement. Thus, there is no reason to hold that the finding recorded by the learned Trial Court regarding existence of prima facie case, balance of convenience and irreparable loss in favour of the plaintiff is illegal, unjustified or not supported by material available on record. The judgment cited by the learned Counsel for the respondent plaintiff in the case of Maharwal Khewaji Trust (Regd.) v. Baldev Dass (supra) squarely applies to the facts of the case. 13. The impugned orders does not suffer from any illegality, perversity or jurisdictional error nor is it based on an inappropriate appreciation of the material on record so as to call for any interference so as to call for any interference by this Court. 14. Accordingly, there is no force in the appeal, the same is hereby dismissed. Record be sent back. Learned Trial Court is directed to expedite the proceedings of the suit.Appeal dismissed. *******