Research › Search › Judgment

Madhya Pradesh High Court · body

2024 DIGILAW 163 (MP)

Ashish Pratap Singh v. Meera Tomar

2024-02-08

SUNITA YADAV

body2024
ORDER 1. Present Misc. Appeal has been preferred u/O. 43 Rule 1(r) of CPC challenging the order dated 1.9.2023 passed by 9th District Judge, Gwalior (M.P.) in RCS A No.202/2023 whereby, the application filed by appellants/plaintiffs under Order 39 Rule 1 & 2 of CPC has been rejected. 2. Precisely stated facts of the case are that appellants/plaintiffs instituted the suit for specific performance of agreement along with declaration and injunction in respect to the property/house situated at Plot No.52-C, Jawahar Colony, Lashkar, Gwalior (M.P.). During the pendency of trial, appellants/plaintiffs filed an application under Order 39 Rule 1 & 2 of CPC which was dismissed by impugned order. Hence, the present appeal is filed. 3. Learned counsel for the appellants argued that the order impugned is perverse, illegal and against the settled principles of law. It is further argued that defendants/respondents No.2 and 3 in order to defeat the rights of plaintiffs denied the execution of agreement whereas appellants have duly executed the agreement dated 7.4.2017 with defendant No.1 and are always shown their readiness and willingness for performance of the agreement. It is further argued that defendants No.2 & 3 after knowing the fact that agreement has been executed between plaintiffs and defendant no.1 got the sale-deed executed in their favour. Thus, no such valid sale deed was ever executed. It has been alleged by the defendant No.1 that agreement between the plaintiffs and defendant No.1 was not the agreement to sale but the security for loan, however, recitals of agreement does not support the contention of defendant No.1. It is further argued that defendant no.1 in the newspaper on 24.8. 2017 got the public notice of rebuttal published that no agreement had ever been executed between plaintiffs and defendant no.1, but after two days i.e. on 26.8.2017 she herself extended the agreement between her and plaintiffs thus that notice of rebuttal published in newspaper was having no value. Prima-facie case, balance of convenience and issue of irreparable loss are in favour of plaintiffs/appellants. Hence, the present appeal be allowed and the order passed by court below be set aside. 4. Prima-facie case, balance of convenience and issue of irreparable loss are in favour of plaintiffs/appellants. Hence, the present appeal be allowed and the order passed by court below be set aside. 4. On the other hand, learned counsel for the respondents vehemently opposed the appeal filed by appellants/plaintiffs and argued that learned trial Court has rightly passed impugned order by rejecting the application under Order 39 Rule 1 & 2 of CPC as the appellants have failed to prove prima-facie case, balance of convenience and irreparable loss in their favour, therefore, prayed for dismissal of present appeal. 5. Heard learned counsel for the parties, consider the arguments and perused the materials available on record. 6. Defendant No.1 – Meera Tomar was the owner of the suit property is not in dispute. The material available on record reveals that plaintiffs/appellants entered into an agreement for suit property with defendant No.1 – Meera Tomar on 7.4.2017. The record further indicates that defendant no.1 – Meera Tomar executed an agreement to sale on 14.10.2016 with defendant No.2 – Vijay Singh Tomar. The time for execution of said agreement dated 14.10.2016 was four months, however, the sale-deed executed by defendant no.1 – Meera Tomar in favour of defendant No.2 – Vijay Singh Tomar is after expiry of four months i.e. on 22.11.2022. As per arguments of learned counsel for the respondents, the time of four months was extended for further three years, therefore, sale-deed is proved to be executed within the period which was extended. On perusal of copy of agreement to sale executed by defendant No.1- Meera Tomar in favour of defendant No.2 – Vijay Singh Tomar indicates that it contains handwritten note on the back side of page No.2 of agreement. According to this note, period of execution of sale-deed has been extended up to 14.02.2022, however, no seal or signature of Notary is there on the handwritten note. Therefore, prima- facie the fact that period of execution of sale-deed was extended up to 14.2.2022 cannot be relied upon. Under these circumstances, the argument of learned counsel for the appellants finds weight that the entry in agreement to sale between defendant No.1 – Meera Tomar and defendant No.2 – Vijay Singh Tomar in respect to extension of time is fabricated. 7. Under these circumstances, the argument of learned counsel for the appellants finds weight that the entry in agreement to sale between defendant No.1 – Meera Tomar and defendant No.2 – Vijay Singh Tomar in respect to extension of time is fabricated. 7. During the pendency of appeal, an application under Order 41 Rule 27 of CPC has been filed by appellants bearing I.A. No.5860/2023 along with copy of complaint filed by defendant No.1 – Meera Tomar before the Superintendent of Police, City Centre Gwalior (M.P.) against defendant No.2 – Vijay Singh Tomar for publication of notice of rebuttal in daily newspaper on her behalf. Learned counsel for the respondents took the opportunity to file reply, but no reply or affidavit has been filed to contradict the above facts. 8. The document on record indicates that on 26.8.2017 defendant No.1 – Meera Tomar got the agreement to sale executed in favour of plaintiffs extending the time-limit of agreement dated 7.4.2017 till 5.9.2019. In view of above, prima-facie case is in favour of plaintiffs. 9. So far as question of limitation for filing the suit is concerned, the limitation starts from the date of denial for execution of sale-deed and in this case, as per plaint pleadings defendant No.1 – Meera Tomar denied for execution of sale-deed in the month of February 2023, therefore, the suit is prima-facie within limitation. 10. In the case of Mahawar Khewaji Trust v. Baldev Dass [ 2005 (1) MPLJ 447 ] it is held that unless case of irreparable loss is made out, Court should not permit nature of property being changed which includes also alienation of transfer of property. It is also a trite law as laid in the case of Satish Kumar Khandealwal v. Rajendra Jain and Ors. [ 2015 (2) MPLJ 181 ] that in case temporary injunction is not granted against the alienation of the suit land and appeal would be allowed, then it would create multiplicity of the proceedings. 11. In the case of Pushpmala Raje (Smt.) @ Shamistha Devi v. Mahendra Singh [ 2011 (II) MPWN 98 ] it is held that document of agreement of sale was executed between parties if during pendency of suit defendant alienates the suit property to a third party – plaintiff may suffer irreparable loss – therefore – balance of convenience is in favour of plaintiff – injunction, rightly granted. In the case of Smt. Muktakesi Dawn And Ors. v. Haripada Mazumdar & Anr. [ AIR 1988 CAL 25 ] ad interim injunction – grant of suit seeking specific performance of sale of suit property notwithstanding section 52 of Transfer of property Act injunction restraining of Property Act, injunction restraining pendent-lite transfer can be granted. 12. In view of above, it is a fit case where interim temporary injunction should be granted in favor of plaintiffs. 13. Consequently, present misc. appeal is allowed and the impugned order dated 1.9.2023 passed by 9th District Judge, Gwalior (M.P.) in RCSA No.202/2023 is hereby set aside and the application filed by the plaintiffs/appellants for temporary injunction is hereby allowed with a direction that no third party interest shall be created by respondents/defendants No.2 & 3 till the disposal of civil suit.