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2017 DIGILAW 1021 (ORI)

Pramod Kumar Sahoo v. Jhilli Gochayat

2017-09-11

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This Civil Miscellaneous Petition involves an order passed by the appellate court reversing a status quo order granted by the trial court involving an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure. 2. Admittedly, the suit is for specific performance of contract as well as permanent injunction. The suit is based on a plaint case on the basis of an agreement between the plaintiff and the defendant nos.1 to 3 for sale of the disputed property indicating the receipt of a sum of Rs.15,00,000/- (Rupees fifteen lakhs) from the plaintiff by the defendant nos.1 to 3 endorsing therein delivery of possession in favour of the petitioner. It is alleged in the suit that after entering into the agreement for sale of the disputed property, there has been subsequent sale in favour of the defendant no.3, the present contesting opposite party involving the same property. The defendant nos. 1 to 3 along with plaint filed an application under order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. Claim of the plaintiff in the application and whole reading of the Interim Application appears to be based on the averments in the plaint and strictly based on the unregistered agreement claimed to have been entered into between the plaintiff and defendant nos.1 to 3. This application was being objected by all the defendants, i.e. defendant nos.1 to 3 objecting the claim of the petitioner involving the Interim Application, particularly, the response made in paragraph-11 of the objection at the instance of the defendant nos.1 to 3 in the Interim Application reads as follows: “11. That the facts stated in para-6 of the petition does not arise at all in this case. It is false to say that the petitioner has got strong prima-facie case and balance of convenience also lies in favour of the petitioner. It is further false to say that the petitioner will suffer irreparable loss and injury unless and until the opposite parties are restrain from interfering in the peaceful possession of the petitioner in the suit schedule land. It is further false to say that the petitioner will suffer irreparable loss and injury unless and until the opposite parties are restrain from interfering in the peaceful possession of the petitioner in the suit schedule land. In fact when the opposite parties No.1 to 3 have not entered into any agreement for sale in favour of the petitioner nor they have received any amount as advance from the petitioner or delivery peaceful possession of the suit schedule land in favour of the petitioner, the question of three golden principle of allowing ad-interim injunction does not arise at all.” 3. There is also a serious objection to the claim of the petitioner by the defendant no.4 therein. Considering he rival contention of the parties, the trial court allowed the Interim Application No. 65 of 2016 with the sole observation that there exists an unregistered agreement between the plaintiff and defendant nos. 1 to 3 involving a sum of Rs.15,00,000/- (Rupees fifteen lakhs) only and when the property is protected from being further alienated or change in the nature and character, the plaintiff is likely to be affected and prejudiced. This order being challenged by the defendant no.4 in the appeal, the appeal was registered as F.A.O. No. 44 of 2016. The appeal was decided on contest and with an order of reversal giving rise to filing the present Civil Miscellaneous Petition. 4. Assailing the impugned order, Sri A.R. Dash, learned counsel appearing for the plaintiff-petitioner referring to his claim in the plaint further referring to the endorsement in the unregistered agreement involving the parties contended that for the involvement of the agreement and specific pleading in the plaint, the plaintiff has a prima facie case and then this fact being taken into consideration by the trial court, the trial court has passed the justified order. Assailing the appeal order, Sri Dash, learned counsel further contended that for the clear pleading and for the availability of a document in favour of the petitioner, it appears the appellate authority has failed in appreciating the existence of prima facie case in favour of the petitioner. Taking this Court to the observations of the appellate court, Sri Dash further contended that there has been no reversal finding by the appellate authority in reversing the finding of the trial court. Taking this Court to the observations of the appellate court, Sri Dash further contended that there has been no reversal finding by the appellate authority in reversing the finding of the trial court. Further, Sri Dash referring to the two decisions rendered in the cases of Julien Educational Trust v. Sourendra Kumar Roy and others, 2010(1) Supreme Court Cases (Civ) 120 and Rageshree Mohanty v. Subhrakanta Das Mhapatra, 2015 (II) ILR-CUT-282 contended that both the decisions had the support of the case of the plaintiff-petitioner. 5. In his opposition, Sri S.K. Dash, learned counsel appearing for the contesting opposite party-defendant no.4 while disputing the stand taken by Sri A.R. Dash that in absence of any denial by the defendant nos.1 to 3 taking this Court to the response filed by the defendant nos.1 to 3 in the Interim Application particularly in paragraph-11 of the same submitted that the defendant nos.1 to 3 admittedly the vendors of the property have a clear expression that neither they have entered into any such agreement claimed by the plaintiff nor they have received any such amount. It is for the clear response of the defendant nos.1 to 3 and further for the appellate court doubting in the availability of prima facie case in favour of the plaintiff at this stage of the matter contended that there is no infirmity in the order passed by the appellate authority requiring interference of this Court. 6. Considering the rival contention of the parties appeared herein, this Court finds there is no dispute that the plaintiff by filing the suit had made all the claim therein involving unregistered agreement for sale of the disputed property whereas the defendants case relates to a registered sale deed involving the same disputed property and also the particular land owner. Further, taking into consideration the endorsement in the unregistered sale deed and the specific response by the defendant nos.1 to 3 in paragraph-11 of their objection to the Interim Application No.65 of 2016, this Court does not find any prima facie case in favour of the petitioner in substantiating the claim of the petitioner with regard to the possession over the disputed property and as a consequence, this Court also finds no prima facie case in favour of the petitioner. Taking into consideration to the decision relied on by Sri A.R. Dash, learned counsel for the petitioner, getting into the facts available on both the cases, this Court finds for the difference in the facts involved in both the cases with the facts involved in the case at hand, none of the decisions has any application to the present case except application of paragraph-23 involving (2010) 1 Supreme Court Cases (Civ) 120 where the Hon’ble Apex court has observed that in a suit for specific performance while granting interim order, same is to be based on materials available before the court. 7. Considering the observations of this Court with regard to the clear objection of the defendant nos.1 to 3, the vendor involving disputed property as well as the agreement for sale, this Court finds, it is on the other hand the defendant no.4 has satisfied the case with regard to his possession. As a result, this Court finds no infirmity in the observation and the finding of the appellate court, leaving no scope for interfering in the impugned order and as a consequence, the Civil Miscellaneous petition stands dismissed for having no merit in the case. 8. Considering the request of Sri A.R. Dash, learned counsel for the petitioner to target the suit, this Court directs the learned Civil Judge (Senior Division), Jagatsinghpur to conclude the Civil Suit No. 64 of 2016 within a period of one year hence but however recording the undertaking of the plaintiff through his counsel that he shall not move any interim application during the course of trial and this Court also records that for rejection of the interim application ultimately this Court observes that the defendant no.4 shall not claim any equity involving any development concerning the disputed property taken place in the meantime in the event any decree is passed in favour of the plaintiff.