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2023 DIGILAW 316 (RAJ)

Kailash S/o Shri Madan Lal v. Harinder Choudhary S/o Shri Mohan Ram

2023-01-30

NUPUR BHATI

body2023
ORDER : 1. This Civil Writ Petition has been preferred claiming the following reliefs: “It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and by an appropriate Writ, Order or Direction:- [A] The impugn order dated 19.12.2022 (Annexure-6) passed by the Court of Additional District Judge, Merta in Civil Misc. Appeal No. 09/2022 affirming the order passed by the Court of Civil Judge, Merta in Civil Misc. Case No. 70/2021 dated 27.07.2022 (Annexure-5) be quashed and set aside; and [B] The injunction application of the petitioner be allowed as prayed for and the respondent be restrained not to alienate, transfer, mortgage or raise any construction over the suit property till final disposal of the suit; and [C] Any other appropriate order or relief which this Hon’ble court may deem just and proper in the facts and circumstance of this case may kindly also be passed in favour of the humble petitioner.” 2. Brief facts of the case as placed before this Court by learned counsel for the petitioner are that the petitioner instituted a suit for specific performance and permanent injunction for the agriculture lands situated at Khasra No. 282/140 and Khasra No. 279/140, and a 1/2 share in Khasra No. 281/140; each admeasuring 0.302 ha, situated at village-Panchkutt ki Dani, Renu which he had purchased from the respondents no.1 to 3, for the sum of Rs. 1,90,000/- and an agreement to sale, dated 18.01.2021, was entered into this effect and the possession of the said lands was handed over to the petitioner. 3. Learned counsel for the petitioner submits that the petitioner filed a revenue suit before the concerned S.D.M. for the purpose of executing the sale deed, as against the aforementioned lands, and the same was dismissed as withdrawn, vide order dated 21.01.2021. That however, the petitioner made a request to the respondents for the execution of the aforementioned sale deed, to which they refused. 3.1 Thereafter, the petitioner filed another suit along with an application under Order 39 Rule 1 & 2 CPC, praying that during the pendency of the suit, the respondents be directed not to alienate the property in question and the status quo be maintained. 3.1 Thereafter, the petitioner filed another suit along with an application under Order 39 Rule 1 & 2 CPC, praying that during the pendency of the suit, the respondents be directed not to alienate the property in question and the status quo be maintained. And that, the said application came to be dismissed by the learned Court below vide order dated 27.07.2022; against which the petitioner preferred an appeal before the appellate Court, which also came to be dismissed by the vide order dated 19.12.2022. 4. Learned counsel for the petitioner submits that the learned Courts below have erred in passing the impugned orders as the same were passed without duly looking into the fact that a prima facie case is made out, and that an irreparable injury is caused to the petitioner in dismissing the application so preferred by him. In support of such submission, learned counsel placed reliance on the judgment rendered by the Hon’ble Apex Court in the case of Martin Burn Ltd. Vs R.N. Banerjee (Civil Appeal No. 92 of 1957) decided on 20.09.1957. For the sake of brevity, relevant portion of the said judgment as relied upon by the learned counsel is reproduced as hereunder:- “...While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. ...” 5. Learned counsel for the petitioner further submits that the petitioner produced a photocopy of the agreement to sale of the lands in question, and that the original agreement was lost and that a case to such effect was also lodged at Police Station Merta Road. 6. On the other hand, learned counsel for the respondents oppose the submissions made on behalf of the petitioner and submits that the learned Courts below have rightly passed the impugned orders. 7. Learned counsel for the respondents further submits that in a suit for specific performance of contract, the plaintiff cannot seek the relief of temporary injunction by placing reliance on photocopy of alleged documents, especially when the defendant(s) deny the execution of such document and receipt of any consideration to such effect. 8. 7. Learned counsel for the respondents further submits that in a suit for specific performance of contract, the plaintiff cannot seek the relief of temporary injunction by placing reliance on photocopy of alleged documents, especially when the defendant(s) deny the execution of such document and receipt of any consideration to such effect. 8. Learned counsel for the respondents, sought to fortify the above made submission by placing reliance on the judgment rendered by the Hon’ble High Court of Chhattisgarh in the case of Uttam Chand Luniya Vs Roshanlal Verma & Ors. (M.A. No. 869/2006) decided on 04.10.2006. 9. Heard. Perused the record of the case and the judgments cited at the Bar. 10. This Court observes that the learned Trial Court below, vide the impugned order dated 27.07.2022, has recorded the categorical finding that the original agreement to sale, which was relied upon by the petitioner in the said case, was not produced before it. That the petitioner placed a photocopy of the said agreement and sought to fortify his case by producing an affidavit of one witness-Hamirsingh and the notary-Shivdayal Singh. However, the learned Court below has observed that the photocopy so produced shows that the agreement was drawn on a stamp paper of Rs. 500/- which did not contain the relevant particulars and that it was averred on behalf of the petitioner that the stamp paper was purchased at the behest of the respondents; which could not be proven and was specifically denied by them. 11. This Court further observes that the learned Appellate Court, vide the impugned order dated 19.12.2022 has observed that the learned Trial Court has rightly exercised its discretion after looking into the documents placed on the record before it and the overall facts and circumstances of the present case, and that the petitioner has failed to make out a prima facie case. Furthermore, the case of Uttam Chand Luniya (supra) was cited on behalf of the respondents and has been adequately dealt with in the impugned order. 12. This Court, in light of the above observations, and looking into the overall facts and circumstances does not find any legal infirmity in the impugned orders. This Court also finds that the case cited on behalf of the petitioner does not render any assistance to his case. 13. Thus, the present petition is dismissed. The pending stay applications is also dismissed.