THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
Civil Miscellaneous Appeal Nos.444 & 451 of 2022
COMMON JUDGMENT: (Per Hon'ble Dr.Justice Shameem Akther)
Since both these appeals arise out of a common order and
since parties to the litigation are one and the same, both these
appeals are taken up together and are being disposed of by way of
this common judgment.
2. Both these appeals, under Order XLI Rule 1 of CPC, are filed
by the appellant/defendant No.3, challenging the common order,
dated 05.09.2022, passed in I.A.Nos.35 and 36 of 2022 in O.S.No.98
of 2022 by the II Additional District Judge, Sangareddy, whereby, the
subject I.A.Nos.35 and 36 of 2022 filed by the respondent
No.1/plaintiff under Order XXXIX Rule 1 and 2 of CPC for grant of temporary injunction restraining the appellant/defendant No.3 from alienating, mortgaging or creating any type of charge and raising further constructions over the petition schedule property, pending disposal of the suit, was allowed.
3. We have heard the submissions of Sri P.Achut Rama Shastry, learned counsel for the appellant/defendant No.3, Sri P.Padma Rao, learned counsel for the respondent No.1/plaintiff and perused the record.
2 Dr.SA,J & NBK,J
CMA Nos.444 & 451/2022
4. For convenience of discussion, the parties are hereinafter referred to, as per their array in the subject O.S.No.98 of 2022.
5. The plaintiff filed the subject suit for specific performance of contract and cancellation of agreement of sale against the defendant Nos.1 and 2 before the Court below contending that the defendant Nos.1 and 2 are the absolute owners of the suit schedule property. They entered into an agreement of sale with the plaintiff on 07.07.2021 for sale of suit schedule property and the plaintiff paid an advance of Rs.10 lakhs. Subsequently, the plaintiff came to know that the defendant Nos.1 and 2 mortgaged the suit schedule property in favour of CAN FIN HOMES LIMITED, Sangareddy. Thus, though there is a stipulation in the agreement of sale that the balance sale consideration should be paid in 60 days, in view of mortgaging the suit schedule property, defendant Nos.1 and 2 did not execute any sale deed in favour of the plaintiff, though the plaintiff was ready and willing to perform her part of contract. While so, the plaintiff came to know that the defendant Nos.1 and 2 sold the property in favour of the defendant No.3 vide document No.10419 of 2021, dated 22.12.2021, during the subsistence of the agreement of sale in between the plaintiff and the defendant Nos.1 and 2. Hence the suit.
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CMA Nos.444 & 451/2022
6. Learned counsel for the appellant/defendant No.3 would contend that since the plaintiff failed to pay the balance sale consideration within 60 days to defendant Nos.1 and 2, as stipulated in the agreement of sale, dated 07.07.2021, the defendant Nos.1 and 2 executed sale deed, dated 22.12.2021 in favour of defendant No.3, having received the entire sale consideration. Thus, by virtue of sale deed, dated 22.12.2021, the defendant No.3 had become absolute owner and possessor of the suit schedule property and the rights of defendant Nos.1 and 2 over the suit schedule property have extinguished. Without there being any prima facie case and balance of convenience in favour of the plaintiff, the Court below granted temporary injunction in her favour, which is illegal, and ultimately prayed to set aside the common order under challenge and allow both the appeals as prayed for.
7. On the other hand, learned counsel for the respondent No.1/plaintiff contended that time was not the essence of the contract. In spite of subsistence of agreement of sale dated 07.07.2021, defendant Nos.1 and 2 alienated the suit schedule property in favour of defendant No.3 by way of a registered sale deed, dated 22.12.2021, which is illegal. The sale deed, dated 22.12.2021, does not confer lawful title and possession of defendant No.3 over the suit schedule property. The suit schedule property 4 Dr.SA,J & NBK,J CMA Nos.444 & 451/2022 needs to be protected till the disposal of the suit. Hence, the Court below is justified in granting temporary injunction in favour of the plaintiff. There is nothing to interfere with the impugned common order and ultimately prayed to dismiss both the appeals.
8. In view of the above rival contentions, the point that arises for determination in both these appeals is as follows:
"Whether the impugned common order, dated 05.09.2022, passed in I.A.Nos.35 and 36 of 2022 in O.S.No.98 of 2022 by the II Additional District Judge, Sangareddy, is liable to be set aside?"
POINT:-
9. Ex.P1 is the agreement of sale, dated 07.07.2021, in between the plaintiff and defendant Nos.1 and 2. As per the said agreement of sale, the time stipulated for payment of balance sale consideration is 60 days. Certain questions are raised with regard to the performance of contract by the vendors of Ex.P1 agreement of sale, dated 07.07.2021, to get a regular sale deed executed in favour of the plaintiff, pursuant to the agreement of sale. Whether time is the essence of contract or not needs to be determined by the Court below when the suit is determined after conclusion of trial. There is no denial with regard to the title of defendant Nos.1 and 2 over the suit schedule property. In view of subsistence of agreement of sale, dated 07.07.2021, in between the plaintiff and defendant Nos.1 and 5 Dr.SA,J & NBK,J CMA Nos.444 & 451/2022 2, the suit schedule property needs to be protected. Therefore, it can be safely concluded that there is prima facie case and balance of convenience in favour of the plaintiff. If the suit schedule property is not protected by way of injunction, there is possibility of creating third party interest over the same by the defendant No.3, which would cause irreparable injury to the plaintiff and would lead to multiplicity of litigation. Under these circumstances, we are of the firm opinion that the Court below rightly granted temporary injunction. There is no perversity or illegality in the impugned common order. The contentions raised on behalf of the defendant No.3 are untenable. Both the appeals lack merit and are liable to be dismissed.
10. Accordingly, both the appeals are dismissed. No costs Miscellaneous petitions, if any, pending in both these appeals, shall stand closed.
_______________________ Dr. SHAMEEM AKTHER, J _______________________ NAGESH BHEEMAPAKA, J 01st December, 2022 DSU / BVV