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2015 DIGILAW 1831 (RAJ)

Prabhu Dayal v. Dheerendra Singh

2015-10-29

BELA M.TRIVEDI

body2015
JUDGMENT 1. - The present appeal arises out of the order dated 25.02.2015 passed by the Additional District Judge No.2, Jaipur Metropolitan, Jaipur (hereinafter referred to as "the trial court") in Civil Misc. Application No.40/2014, whereby the trial court has dismissed the application filed by the present appellants-plaintiffs seeking temporary injunction under Order 39, Rule 1 & 2 of CPC. 2. The brief facts giving rise to the present appeal are that the appellants-plaintiffs have filed the suit seeking specific performance of the agreement dated 14.10.2010/17.11.2010 in respect of the lands in question. In the said suit, it has been alleged by the appellants plaintiffs inter-alia that the plaintiffs are the sons and grand sons of Raghunathji and Smt. Dakhadeviji, whereas the respondent-defendant is one of the sons of Smt. Gulabdevi, the first wife of Raghunathji. The respondent claiming to be the adopted son of Bherulal, who was the brother of Raghunathji, executed the agreement in question to sell the lands bearing khasra No.477, 478, 479/4516, 471 and 472 in question to the appellants on 14.10.2010, which was signed by the parties on 17.11.2010, on the terms and conditions mentioned in the said agreement, for total consideration of Rs.80 lacs. According to the appellants, they had already paid Rs.25 lacs out of the said 80 lacs to the respondent by cash as well as by cheque and it was agreed between the parties that the balance amount shall be paid by the appellants on the respondent withdrawing the revenue suits filed by him. However, the respondent did not withdraw the said suits and committed breach of the conditions of the agreement. Hence the appellants have filed the suit seeking specific performance of the said agreement. The appellants had also filed the application seeking temporary injunction pending the suit for restraining the respondents from interfering or causing obstruction to the appellants-plaintiffs in the use and occupation of the lands in question. The said application for temporary injunction was resisted by the respondent-defendant by filing the reply contending inter-alia that the agreement in question had also stood cancelled on the respondent having given the notice to the appellants. According to the respondent, Shri Bherulal did not have any issue and therefore he was taken in adoption by Shri Bherulal and since the lands in questions were wrongly recorded in the name of Raghunathji, the revenue suits were filed by him. According to the respondent, Shri Bherulal did not have any issue and therefore he was taken in adoption by Shri Bherulal and since the lands in questions were wrongly recorded in the name of Raghunathji, the revenue suits were filed by him. It is further contended that the appellants had not complied with the conditions of the agreement in question and the cheque of Rs.10 lacs issued by the appellants towards sale consideration, was dishonored by the Bank, and thereafter the appellants did not pay the consideration as agreed upon in the agreement. According to the respondent, the appellants having filed the suit after gross delay of three years, after the cancellation of the agreement in question, the application for temporary injunction was required to be dismissed. 3. The trial court after considering the submissions made by the learned counsels for the parties, dismissed the said application vide the impugned order against which the present appeal has been filed. 4. Learned counsel Mr. Saransh Saini for the appellants vehemently submitted that the subject matter of the suit deserves to be protected during the pendency of the suit and there being contentious triable issues involved in the suit, the respondent is required to be restrained from transferring or alienating or causing any obstruction in the possession of the appellants-plaintiffs. He has relied upon the decisions of this Court reported in 2007 (3) DNJ (Raj.) 1182, 2014 WLC (Raj.) UC 514, 2014 WLC (Raj.) UC 246, 2011 WLC (Raj.) 240, 2012 (5) WLC (Raj.) 118, 2011 WLC (Raj.) UC 15 as well as the decisions of the Apex Court reported in 2005 (1) WLC (SC) Civil 223 and 2007 (1) (SC) Civil 313, in support of his submissions. 5. However, the learned counsel Mr. Alok Garg for the respondent vehemently submitted that the appellants had not disclosed the correct facts and had not performed their part of contract, as a result of which the agreement in question was sought to be cancelled initially by giving a notice on 13.07.2011, to which the appellants had given reply on 18.07.2011, and thereafter the agreement was finally cancelled by giving notice on 26.07.2011. According to him the suit was filed by the appellants on 27.03.2014 three years after said cancellation. According to him the suit was filed by the appellants on 27.03.2014 three years after said cancellation. According to him, the trial court having rightly considered the pleadings and conduct of the appellants while dismissing the temporary injunction application, this Court should not interfere with the said order. He has relied upon the decisions of this Court reported in 2013 WLC (Raj.) UC 27, 2014 WLC (Raj.) UC 252, 2014 WLC (Raj.) UC 63 as well as decisions of the Apex Court reported in 2012 (1) WLC (SC) Civil 630, 2012 (2) WLC (SC) Civil 68, 2012 (2) WLC (SC) Civil 74 , 2013 (1) WLC (SC) Civil 78, 2013 (1) WLC (SC) Civil 84. 6. In the instant case, the execution of the agreement dated 14.10.2010/17.11.2010 has not been disputed by the parties. It is also not disputed that the appellants-plaintiffs had received the notice dated 13.07.2011 given by the respondent-defendant seeking to cancel agreement, to which the appellants had filed the reply on 18.07.2011. It is also not disputed that the respondent had given another notice on 26.07.2011 cancelling the agreement in question and thereafter the suit was filed by the appellants on 27.03.2014. There is no explanation coming forth from the learned counsel for the appellants as to why the appellants did not take any action for about three years after the cancellation of the agreement by the respondent. As per the settled legal position, the relief of injunction is an equitable relief and the delay would defeat equity. It is also surprising that after the receipt of the notice from the respondent cancelling the agreement in question, the appellants had not showed any readiness and willingness to perform their part of contract by tendering the remaining amount of sale consideration for three years. 7. Though, it has been sought to be submitted by learned counsel Mr. Saransh Saini for the appellants that the respondent had failed to perform his part of contract by not withdrawing the suits though agreed upon by him, it is required to be noted that when the agreement was sought to be cancelled by the respondent, the normal conduct of the appellants would be to approach the Court immediately seeking specific performance of the agreement. That having not been done, the trial court has rightly held that the appellants-plaintiffs had failed to show his readiness to perform their part of contract for three years and had failed to establish the prima facie case. Merely because there are contentious issues involved in the suit, that would not entitle the appellants to get the relief of temporary injunction, more particularly when they themselves had approached the Court after gross delay of three years. There being no perversity or illegality in the impugned order passed by the trial court, the Court is not inclined to interfere with the same. It is needless to say that any transfer or alienation if made by the respondent of the suit lands, shall be subject to the result of the suit. 8. Subject to the afore-stated observations, the appeal is dismissed. By this order, the stay application and other pending application if any also stand dismissed.Appeals Dismissed. *******