Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 605 (UTT)

Alok Rai v. Allaudin

2023-10-20

VIVEK BHARTI SHARMA

body2023
JUDGMENT : Vivek Bharti Sharma, J. This appeal from order has been preferred by the appellant/plaintiff against the order dated 19.07.2023 passed by 1st Additional Senior Civil Judge, Dehradun, whereby the application paper no.6C2 for temporary injunction has been dismissed. 2. Learned counsel for the appellant/plaintiff would submit that the Trial Court, vide its order dated 08.02.2023, had granted ex parte interim injunction in favour of the appellant/plaintiff thereby restraining the respondent/defendant from interfering in the peaceful possession of the suit property and dispossessing the appellant/plaintiff without due process of law, however, subsequently by the impugned order dated 19.07.2023, application for temporary injunction was dismissed on the ground that the MoU is unregistered and the same has been executed on the next day i.e. 02.06.2022 after the execution of the sale deed on 01.06.2022. 3. Learned counsel would draw attention of this Court to the MoU dated 02.06.2022 (Annexue-1 to the supplementary affidavit dated 26.07.2023) wherein it is stated that the sale deed was executed on 01.06.2022 for consideration of Rs.2,80,00,000/-, however the actual consideration amount was Rs.3,40,00,000/- and it was agreed between the parties that the respondent/defendant will pay the remaining amount of Rs.60,00,000/- which he also admitted to pay. 4. On the other hand, learned counsel for the respondent/defendant would submit that the sale deed dated 01.06.2022 is a registered document whereby the entire consideration amount has been paid and possession was also handed over to the respondent/defendant; that MoU dated 02.05.2022 which the appellant/plaintiff is relying upon is an unregistered document and is totally fraud and fabricated and the same was never executed between the parties; that the alleged MoU cannot override the effect of the registered sale deed executed between the appellant/plaintiff in favour of respondent/defendant. 5. In reply to this, learned counsel for the appellant/plaintiff would submit that the MoU did not create any right of the kind that would need the registration as per Section 17 of the Indian Registration Act, as it was executed only in lieu of the unpaid amount of the consideration by which right to overstay in the property was created in favour of the appellant/defendant. He, however, would submit that the respondent/defendant has played fraud upon the appellant/plaintiff with active assistance and conspiracy with other middleman and witnesses to this MoU taking benefit of the appellant/plaintiff. 6. He, however, would submit that the respondent/defendant has played fraud upon the appellant/plaintiff with active assistance and conspiracy with other middleman and witnesses to this MoU taking benefit of the appellant/plaintiff. 6. Learned counsel for the respondent/defendant would submit that by way of supplementary affidavit dated 17.09.2023 the respondent/defendant has unequivocally stated that the alleged MoU does not bear the signatures of the respondent/defendant; that, the MoU placed on the record of the Trial Court, in original, by the appellant/plaintiff may be sent to the Handwriting Expert for comparison of signatures of the respondent/defendant with his sample signatures on the sale deed and other sample signatures, if required by the handwriting expert. 7. To this, learned counsel for the appellant/plaintiff would submit that he has no objection provided interim protection given to the appellant/plaintiff, by way of interim order dated 26.07.2023, is continued so as to protect the possession of the appellant/plaintiff over the suit property. 8. In view of the above, with the consent of learned counsel for both the parties, appeal is disposed of with direction to the Trial Court to send the MoU dated 02.06.2022 to the Handwriting Expert for examination and comparison of signatures of the respondent/defendant on it with the signatures of respondent/defendant on the sale deed. For the ends of justice, if more sample signatures of the respondent/defendant would be required, the Trial Court and/or the Handwriting Expert shall be at liberty to take it in the interest of justice. 9. The appeal is, accordingly, disposed of. The impugned order dated 19.07.2023 is set aside. The Trial Court is directed to hear and decide the application paper no.6C2 after receipt of the report of the Handwriting Expert. Till the final decision on the signatures made on MoU dated 02.06.2022 is taken by the Trial Court, the respondent/defendant is restrained from interfering in the peaceful possession of the appellant/plaintiff.