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2022 DIGILAW 2552 (RAJ)

Jugal Kishore v. Suresh Chandra

2022-10-10

FARJAND ALI

body2022
JUDGMENT Farjand Ali, J. - The instant appeal has been preferred by the plaintiff-appellant under Order 43 Rule 1 of the Code of Civil Procedure against the order dated 26.07.2022 passed by the learned Additional District Judge, Jodhpur whereby the learned Court below has partly allowed the application filed by him seeking temporary injunction and at the same time, permitted the defendants/respondents for use and occupation of the land in question in Civil Misc. Case No. 23/2015 (83/2010). 2. Briefly stated, the facts of the case are that the appellant filed a suit for specific performance of contract, cancellation of sale deed and perpetual injunction against the defendants/respondents. Along with the suit, an application under Order 39 Rules 1 & 2 of CPC was also submitted wherein on 13.07.2010, on an undertaking made on behalf of the non-petitioners No. 5 and 8 to the effect that they shall not raise any construction over the suit property, the hearing of the application was deferred. Another application dated 16.04.2022 was also submitted by the appellant-plaintiff-applicant under Order 39 Rules 1 & 2 read with Section 151 of CPC seeking immediate indulgence of the Court for issuance of temporary injunction in his favor while alleging that the respondents/defendants were bent on evicting him from the suit property and were adamant to dismantle the construction erected over it. The learned trial Court has decided both the applications through one order dated 26.07.2022 which is assailed before this Court. After elaborate discussion of the averments made in the application and reply and consideration of rival submissions made by the parties, the learned trial Court observed the existence of agreement dated 02.04.2009 in favor of the plaintiff-appellant while holding the issue contentious to the effect that whether the respondent Suresh Chandra executed the agreement after getting consent of his brothers or not as the same would be the subject of the trial and could be ascertained after the parties would adduce evidence in support of their respective claims and thus observing that the plaintiff was in possession of a shop in which he was running his business in the name and style of Sayar Medical Store, the learned trial Court partly allowed the application for temporary injunction and restrained the respondents/defendants from evicting the appellant from the shop in which he is running his medical store. It was also observed that the respondents were interdicted from making any damage to the shop and disturbing him from use and occupation of the same. 3. Shri Muktesh Maheshwari, learned counsel for the appellant, submits that the learned Court below has failed to appreciate the correct legal and factual aspect of the matter and thus, committed an error in partly allowing the application filed under Order 39 Rules 1 & 2 of CPC. It is submitted that the existence of agreement of sale deed dated 02.04.2009 entered into between the plaintiff and respondent Suresh Chandra @ Suresh Kumar in respect of sale of the property for a monetary consideration of Rs. 17,00,001/- out of which, receipt of upfront amount of Rs. 1,00,000/- by the executor Suresh Chandra, is not a disputed fact. He was always ready and willing to perform his part; he even issued a registered notice dated 04.06.2010 showing his willingness to perform his part. He is still ready to give the remaining amount. It is further submitted that there is a shop and some other vacant land which are the subject matter of the agreement and it is not disputed that the plaintiff is in peaceful possession of the shop where he is running his medical store in the name of Sayar Medical Store. There is a prima facie case and the balance of convenience is in his favor and it is asserted that if the temporary injunction is not granted and if the subsequent purchaser raises construction over the vacant land, the appellant would have to suffer irreparable loss which would be impossible to compensate in terms of money. 4. Per contra, learned counsel Shri L.D. Khatri, appearing for the respondents, vehemently opposed the submissions made by the appellant and contended that it can be manifested from the bare perusal of the agreement dated 02.04.2009 that time was the essence of the contract. The agreement dated 02.04.2009 has a clear recital that the said expense of Rs. 1,00,000/- is the upfront amount out of the sale consideration of Rs. 17,00,001/-. Remaining amount of Rs. 16,00,000/- was to be paid to the seller within four months of the date of execution of the agreement dated 02.04.2009. He submits that it was a necessary condition of the agreement that if the remaining amount of Rs. 1,00,000/- is the upfront amount out of the sale consideration of Rs. 17,00,001/-. Remaining amount of Rs. 16,00,000/- was to be paid to the seller within four months of the date of execution of the agreement dated 02.04.2009. He submits that it was a necessary condition of the agreement that if the remaining amount of Rs. 16 lacs was paid before 03.08.2009, the executor shall execute a sale deed in favor of the plaintiff. The plaintiff has failed to perform his part as occurred in the condition of the agreement to sell. He took no steps to give the remaining amount of Rs. 16 lacs within the stipulated period. The alleged notice came to be issued on 04.06.2010 only with a view to create a cause of action to file a suit. Learned counsel submits that the entire property including the shop was sold by the true owners to one Nand Kishore through registered sale deed dated 10.03.2010. He further submits that Suresh Chandra @ Suresh Kumar who allegedly executed the agreement to sell deed dated 02.04.2009 in favor of the plaintiff was not the sole owner of the property in question rather the property belongs to the ownership of (i) Gulab Bai w/o Late Shri Kanhayalal, (ii) Suresh Kumar S/o Late Shri Kanhayalal and (iii) Ramesh Kumar S/o Late Shri Kanhayalal and thus, he submits that the owners of the property were not party to the agreement allegedly executed in favor of the appellant-plaintiff. Therefore, the learned Court below has exercised its discretion quite prudently which requires no interference of this Court. 5. Heard learned counsel for the parties. Perused the material available on record and carefully scanned the order under challenge. 6. It is not in dispute that it is the case of the plaintiff himself that the agreement to sell dated 02.04.2009 came to be executed between him and Suresh Chandra @ Suresh Kumar for the sale of the suit property. The agreement itself speaks that the said Suresh Chandra @ Suresh Kumar was not the sole owner of the property. The instrument has recital of having consent of owners also. There was a clear condition in the agreement that the plaintiff was supposed to pay remaining amount of Rs. 16 lacs to the seller before 03.08.2009 and as a matter of fact, no such amount was paid. The instrument has recital of having consent of owners also. There was a clear condition in the agreement that the plaintiff was supposed to pay remaining amount of Rs. 16 lacs to the seller before 03.08.2009 and as a matter of fact, no such amount was paid. The learned trial Court observed that the suit property consists of some vacant land and a shop in which the plaintiff was running his business in the name of Sayar Medical Store and thus, while exercising the judicial discretion, the learned Court below protected interest of both the parties and restrained the defendants from evicting the plaintiff from the shop or demolishing the shop and causing any disturbance in his use and occupation while no relief has been granted in respect of the vacant land lying adjacent to the shop. Indisputably, the pleadings of the parties are complete and issues have been framed. There was a contentious issue for adjudication which would be adjudged by the Court below after taking on record evidence of both the parties. Thus, till disposal of the main suit, the suit property deserves to be protected to some extent. 7. As an upshot of the discussion made hereinabove, I am of the view that the interim order should be modified to some extent. 8. Accordingly, the appeal is allowed with the directions mentioned as below:- (i) The appellant-plaintiff who is in possession of the shop situated in the suit property and running his business in the name of Sayar Medical Store shall not be evicted from the shop; the same shall not be damaged in any way and the respondents/defendants shall not restrain him from using and running the shop. (ii) Respondents No. 5/1 to 5/6 shall not alienate the property in any manner and will not create any third party interest in the suit property. (iii) The respondents/defendants would be entitled to raise construction over the vacant land (except the shop area) and if the appellant-plaintiff finally succeeds in the suit, no amount incurred in raising construction shall be claimed by the defendants. 9. The learned trial Court shall decide the case as expeditiously as possible, preferably within a period of 12 months. 10. (iii) The respondents/defendants would be entitled to raise construction over the vacant land (except the shop area) and if the appellant-plaintiff finally succeeds in the suit, no amount incurred in raising construction shall be claimed by the defendants. 9. The learned trial Court shall decide the case as expeditiously as possible, preferably within a period of 12 months. 10. It is made clear that the observations made hereinabove shall not in any manner affect the rights of the appellant-plaintiff if he proceeds with the application under Order 39 Rule 2-A of CPC in respect of the alleged disobedience made during the ad interim order.