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2017 DIGILAW 1117 (ORI)

Minati Mohapatra v. Niraj Kumar Das

2017-10-09

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. 1. This Civil Misc. Petition involves a challenge to the judgment dated 8.2.2017 passed in F.A.O. No.168/2016, vide Annexure-1. 2. Short background involved in the case is that the opposite party, as plaintiff filed C.S. No.1428/2016 before the Civil Judge (Jr.Divn.), Balasore for permanent injunction seeking direction to restrain the defendant, the petitioner from alienating the suit land in favour of others except the plaintiff during the agreement period from 12.5.2016 to 12.5.2018. Fact reveals that the plaintiff-opposite party offered the defendant-petitioner Rs.90.00/- lakh as consideration money for purchasing the suit land. The defendant-petitioner having agreed with the purchase value of the suit land received Rs.50.00/- lakh as advance consideration money from the plaintiff-petitioner and both parties entered into an agreement for sale in respect of the suit land with condition that both the parties will execute and register the sale deed within two years on payment of balance consideration of Rs.40.00 lakh. Accordingly, an agreement indicating the above was executed between the parties on 12.5.2016. It is on the premises that the defendant-petitioner was trying to alienate the suit land after execution of the agreement to the outsider on refusal of the disposal of the same in favour of the plaintiff-opposite party, the plaintiff was compelled to file the suit for permanent injunction. Along with the suit the plaintiff-opposite party also filed an application under Order 39 Rules-1 & 2 of C.P.C. and prayed for temporary injunction against the defendant-petitioner restraining the defendant from alienating the suit land at least till expiry of the agreement period. This application was disposed of on contest with an order of refusal by the trial court after observing that the defendant is in continuous possession of the disputed property. This order was challenged by the plaintiff-opposite party in F.A.O. No.168/2016 against the order dated 20.12.2016 passed in I.A. No.1/2016 arising out of C.S. No.1428/610 of 2016-I. Learned District Judge, Balasore after hearing both sides though refused to grant injunction but considering the fact of pendency of another suit bearing C.S. No.116/2017 involving a relief for specific performance of contract between the same parties directed both the parties to maintain status quo over the disputed property till disposal of the suit. 3. Assailing the impugned judgment, Sri Satapathy, learned counsel representing the defendant-petitioner contended that a suit for permanent injunction without any ancillary or consequential relief is not maintainable. 3. Assailing the impugned judgment, Sri Satapathy, learned counsel representing the defendant-petitioner contended that a suit for permanent injunction without any ancillary or consequential relief is not maintainable. The plaintiff having relied on an unregistered agreement for sale following the provision contained in Section 17(1)(f) of the Registration Act, 1908 requiring registration of any such instrument, the claim of the plaintiff on the basis of such unregistered document remains un-sustainable. Sri Satapathy also claimed that the lower appellate court giving emphasis on the payment of Rs.50.00/- lakh as advance on the basis of forged agreement remains erroneous for the payment of such huge amount opposed to the provision of Income Tax Act. Finding of the appellate court also opposes the settled position of law holding the agreement for sale does not create right, title and interest in favour of a party. Sri Satapathy next contended that since the appellate court has a clear finding with regard to possession in favour of the defendant-petitioner, there is no question granting any sort of interim protection. Further for the possibility of suitable compensation to the plaintiff, the defendant’s right over the disputed property could not be interfered with. 4. Sri Satapathy, learned counsel for the defendant-petitioner also refers some decisions in M/s.East End Infotech Pvt. Ltd. & others vrs. M/s.Esskay Machinery Pvt. Ltd. reported in 2006 (Suppl.-II) OLR-486, Smt. Kanakalata Panda vrs. Ashok Kumar Sinha reported in 2015 (Supp.-II) OLR-848, Meghmala & others vrs. G.Narasimha Reddy & others reported in 2010 (II) OLR (SC) 778, Smt. Laxmi Dei & another vrs. Shyam Sunder Hans & others reported in 2005 (I) CLR-27, Delhi Motor Company vrs. U.A. Basrurkar reported in AIR 1968 SC 794 and Hindustan Petroleum Corporation Ltd. vrs. Sriman Narayan & another reported in AIR 2002 SC 2598 . 5. Sri Dash, learned counsel for the plaintiff-opposite party, on the other hand, while opposing each of the submissions raised by the learned counsel for the petitioner, submitted that for the availability of the signature of the defendant not only over the revenue stamp but on each page of the body of the agreement endorsing the disclosures as well as receipt of amount of Rs.50.00/- lakh with further assurance to execute the sale deed within two years, there exist a determination on the entering into the agreement between the parties. Further finding the negative attitude of the defendant in the matter of transfer of land and constant attempt to do away with the property filed a suit bearing C.S. No.116/2017 for specific performance of contract. The suit is not in a position to be taken up for no posting of the Judicial Officer, for which the plaintiff is unable to move an interim application there. Sri Dash, learned counsel for the plaintiff-opposite party also contended that for the defendant’s flat denial to the fact of payment of money, entering into the agreement until a final outcome in the suit, status quo in respect of the property is the only desired order. Referring to the observations made in the impugned order, Sri Das further contended that there is no infirmity in the impugned order leaving any scope for this Court to interfere with the same. 6. Considering the rival contentions of the parties, this Court finds, the plaintiff has admittedly two suits pending before two authorities; C.S. No.1428/610 of 2016-I is for permanent injunction restricting the defendant from selling away the property to anybody else than the plaintiff and C.S. No.116/2017 also at the instance of the plaintiff for specific performance of contract involving the very same agreement. Looking to the stand taken by the plaintiff, this Court finds, the plaintiff had an impediment in moving the application for interim protection in C.S. No.116/2017 for non-functioning of the Senior Civil Judge, Balasore and compelling the plaintiff to move the Interim Application under Order 39 Rules-1 & 2 of C.P.C. involving the suit for permanent injunction. These are all developments appear to be taken place in the first part of the year 2017, as it involves C.S. No.116/2017. 7. Now perusing the order passed by the trial court involving I.A. No.1/2016, this Court finds, the trial court taking into consideration the case of both sides, finding the possession of the disputed property with the defendant and referring to certain decisions indicated therein refused to grant injunction in favour of the plaintiff after observing that the plaintiff without claiming recovery of possession is not entitled to any interim protection. The trial court has also observed that there being no suit for performance of contract and the suit at hand being only for permanent injunction leaves no scope for granting restrain order against the defendant. The trial court has also observed that there being no suit for performance of contract and the suit at hand being only for permanent injunction leaves no scope for granting restrain order against the defendant. This order was passed by the trial court on 20.12.2016. The subsequent suit at the instance of the plaintiff-opposite party appears to have been filed in 2017, may be an outcome of finding defect to get an interim protection in absence of a claim for specific performance of contract. The appellate court while dealing with the matter even though confirmed each of the finding of the Tribunal but for filing of the suit for specific performance of contract in the meantime directed both the parties to maintain status quo involving the disputed property. 8. The absence of the court in dealing with the subsequent suit being the only impediment and as such impediment is a temporary impediment, the appellate court could have permitted the opposite party to move application for injunction in the other suit having a broader scope for consideration. However considering that the opposite party is already in enjoyment of a status quo order granted by the lower appellate court, this Court for the observations made herein above permits the opposite party to move the trial court dealing with C.S. No.116/2017 for grant of injunction within two weeks and the interim application, if any, filed be disposed of within four weeks thereafter and the status quo order granted by the lower appellate court shall continue for these six weeks. 9. Under the circumstance, the Civil Misc. Petition stands disposed of with modification of the impugned order to the extent indicated herein above. No cost.