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2015 DIGILAW 340 (ORI)

Kanakalata Panda v. Ashok Kumar Sinha

2015-05-14

K.R.MOHAPATRA

body2015
JUDGMENT K.R. MOHAPATRA, J. - The appellant-plaintiff in this appeal seeks to assail the order dated 16.05.2014 passed in I.A. No.39 of 2014 arising out of C.S. No.42 of 2014-I wherein the learned Civil Judge (Senior Division), Jaleswar rejected the application filed under Order 39 Rule 1 and 2 read with Section 151 the C.P.C. praying therein to restrain the defendant no.1 from alienating the suit schedule land. 2.The case of the appellant-plaintiff, in short, is that the suit schedule land belongs to defendants., who are recorded tenants. The defendant nos. 2 to 9 had executed one general Power of Attorney in favour of respondent-defendant no.1 on 7.05.2010 to look after and manage the suit land. In that capacity, the respondent-defendant no.1 entered into an agreement for sale of the suit land to the appellant-plaintiff on 24.12.2013 on receipt of part consideration amount to the tune of Rs.80,000/- and the sale consideration money was fixed at Rs.23,50,000/-. It was argued between the parties that the sale deed will be executed within a period of forty-five days. Accordingly, the appellant-plaintiff after arranging the sale consideration requested the respondent-defendant no.1 to execute and register the sale deed to which the respondent-defendant no.1 did not pay any heed. To show her readiness and willingness to perform her part of contract, the appellant-plaintiff also sent a notice to respondent-defendant no.1 through her Advocate on 15.02.2014 which yielded no result. On the other hand, the respondent-defendant no.1 refused to execute and register the sale deed. Hence, the appellant-plaintiff filed a suit praying for a decree of specific performance of contract directing the defendants to execute and register the sale deed in respect of the suit land by receiving the balance consideration amount of Rs.22,70,000/- within a stipulated period and on failure of the defendants, to execute and register the sale deed through Court on depositing the balance consideration amount. She also prayed for a decree of permanent injunction to restrain the defendants from alienating the suit property and changing the nature and character of the same and for cost. The appellant-plaintiff reiterating the averments made in the plaint also filed a petition under Order 39 Rule 1 and 2 read with Section 151 of the C.P.C. being I.A. No.39 of 2014, praying therein to restrain the respondent-defendant no.1 from alienating the suit land and changing the nature and character thereof during pendency of the suit. The appellant-plaintiff reiterating the averments made in the plaint also filed a petition under Order 39 Rule 1 and 2 read with Section 151 of the C.P.C. being I.A. No.39 of 2014, praying therein to restrain the respondent-defendant no.1 from alienating the suit land and changing the nature and character thereof during pendency of the suit. 3.The respondent-defendant no.1 filed his show cause denying the averments made in the plaint and stating, inter alia, that the alleged agreement dated 23.12.2013 was a forged, fabricated and fraudulent document. He had never signed the alleged agreement. The agreement in question was not registered and required stamp duty has not been paid on it. Hence, the same is not admissible in the eye of law. He also denied to have agreed to sell the suit land for a consideration of Rs.23,50,000/- as alleged. It is further asserted that the respondent-defendant no.1 had got prior acquaintance with the appellant-plaintiff and her husband. For treatment of her husband, the appellant-plaintiff and her husband had taken a hand loan from respondent-defendant no.1, but were not in a mood to repay the same. When the respondent-defendant no.1 threatened to lodge an F.I.R. against them, they deposited the amount in his bank account. To take revenge, they have prepared a fraudulent agreement basing on which they filed a suit to harass the defendant no.1. It was further alleged that the defendants had no necessity to sell the suit land. Therefore, the appellant-plaintiff has no cause of action to file the suit. It was further alleged that since the respondent-defendant no.1 is suffering from cancer and is not in a position to go to Jaleswar to purchase the Stamp Paper for preparing the alleged agreement. Hence, he prayed for dismissal of the petition. 4.The learned Civil Judge (Senior Division), Jaleswar vide his order dated 16.05.2014 after taking into consideration the pleadings made by both the parties and the materials placed, dismissed the interim application holding that the appellant-plaintiff has no prima facie case in her favour. 5.Learned counsel for the appellant strenuously urged that the trial Court on erroneous appreciation of the materials available on record and under misconception of law dismissed the interim application for injunction and the same is not sustainable in the eye of law. 5.Learned counsel for the appellant strenuously urged that the trial Court on erroneous appreciation of the materials available on record and under misconception of law dismissed the interim application for injunction and the same is not sustainable in the eye of law. It was urged that the learned trial Court misconstrued the ingredients of prima facie case when the appellant-plaintiff produced an agreement for sale dated 23.12.2013 and the veracity of the agreement is yet to be established by adducing cogent evidence and other supporting materials, the learned trial Court has erred in law in holding that the appellant-plaintiff does not have a prima facie case at this juncture. He also brought to the notice of the Court that the impugned order is primarily based on the finding of possession, which is not an issue involved for adjudication of the interim application for injunction. He also contended that the impugned order is not a reasoned one and there was no finding with regard to balance of convenience and irreparable loss, which are essential ingredients to be satisfied to grant a relief of temporary injunction. Therefore, he prayed to set aside the impugned order and also prayed to restrain the respondent-defendant no.1 from alienating the suit property. 6.Reiterating the pleadings in the objection, learned counsel for the respondent contended that the learned trial Court after taking into consideration all the materials available on record and the evidence adduced by the parties has rightly dismissed the interim application filed under Order 39 Rule 1 & 2 read with Section 151 C.P.C. he asserted that the alleged deed of agreement is silent about delivery of possession. Hence, the said document cannot create any interest in favour of the plaintiff-appellant in respect of the suit property. As such, the plaintiff-appellant has no right to claim an equitable relief of injunction basing upon the alleged deed of agreement. In support of his case, he relied upon a decision in the case of U.N. Sharma –v- Puttegowda and another, reported in AIR 1986 Karnataka 99 and argued that the plaintiff-appellant cannot claim injunction on the basis of an agreement for sale when it is strongly refuted by the defendant no.1-respondent. 7.The case of the plaintiff-appellant is based on an agreement for sale dated 23.12.2013, but it is refuted by the respondent-defendant no.1 that he has not executed and signed the agreement in question. 7.The case of the plaintiff-appellant is based on an agreement for sale dated 23.12.2013, but it is refuted by the respondent-defendant no.1 that he has not executed and signed the agreement in question. Admittedly, an amount of Rs.80,000/- was deposited by the plaintiff in the account of respondent-defendant no.1. But the defendant no.1 alleges in his show cause that he has received the money towards repayment of hand loan incurred by the plaintiff. The veracity of rival pleadings of both the parties can only be adjudicated during the trial. Thus, it appears that the plaintiff-appellant has a fair question raised in the suit. Hence, she has a prima facie case in her favour. 8.During the course of argument, learned counsel for the appellant strenuously urged that the plaintiff-appellant does not lay her claim on the basis of possession over the suit property. The learned trial Court on perusal of the alleged deed of agreement has also found that there is no recital in the said deed of agreement with regard to delivery of possession of the suit land to the plaintiff. Thus, it appears prima facie that the plaintiff-appellant is not in possession over the suit land to seek a protection under Section 53-A of the Transfer of Property Act. The plaintiff-appellant has not made out any case to prevent the true owner of the suit land from dealing with her property independently. As such, the balance convenience lies in favour of defendant no.1-respondent. 9.Any transfer of the suit property, during pendency of the suit, will be hit by the doctrine of lis pendens. As such, the plaintiff-appellant is not going to suffer any loss much less any irreparable loss, if the injunction is refused. This view gets support from a decision in the case of M/s. East End Infotech Pvt. Ltd. and others –v- M/s. Esskay Machinery Pvt. Ltd. and others, reported in 2006 (Supp.-II) OLR 486.This Court in the said case at paragraph:11 held as follows : “11. The only other ground which needs to be considered is whether any irreparable injury would be caused to the appellants. if injunction is not grated. The only other ground which needs to be considered is whether any irreparable injury would be caused to the appellants. if injunction is not grated. In view of pendency of the suit any alienation that may be made by respondent No.2 will be hit by the doctrine of lis pendens .As such, no irreparable injury can be said to be caused to the appellant and any alienation that may be made would be subject to decision of the civil Court. It is immaterial whether the said alienees are impleaded as parties to the suit or not.” (see M/s. Graftex Pvt. Ltd. & Ors –v- Sri Lord Lingaraj Mahaprabhu, Bije Bhubaneswar, 1998 (II) OLR 404). Only because the plaintiff-appellant has an agreeable case in the suit, it does not entitle her to get an order of injunction against the true owner restraining her from dealing with her property independently, more particularly when she does not satisfy that the balance of convenience lies in her favour and she will suffer irreparable loss, if the order of injunction is not granted in her favour. 10.In such view of the matter, the impugned order needs no interference by this Court. This appeal being devoid of merit is accordingly dismissed, but in the circumstances, no order as to cost. Appeal dismissed.