Hari Om Sharma vs Hanuman Prasad Poddar
2014 Latest Caselaw 4871 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 2
 
Case :- FIRST APPEAL FROM ORDER No. - 2421 of 2014
 

 
Appellant :- Hari Om Sharma
 
Respondent :- Hanuman Prasad Poddar
 
Counsel for Appellant :- Rahul Sahai,Sanjay Kumar Dubey
 

 
Hon'ble Rajes Kumar,J.

Hon'ble Om Prakash-VII,J.

(By Justice Om Prakash-VII)

This First Appeal From Order has been directed by the plaintiff-appellant against the order dated 8.7.2014 passed by the Civil Judge (Senior Division), Hathras in Original Suit No. 56 of 2014 (Hari Om Sharma vs. Hanuman Prasad Poddar) whereby application No. 7 Ga for grant of temporary injunction has been rejected.

The plaintiff-appellant filed a Suit No.56 of 2014. The case set up in the Plaint is that an oral agreement was entered into between the plaintiff-appellant and the defendant- respondent to sell the disputed properties, shown as 'Schedule A', 'Schedule B' and 'Schedule C' in favour of the plaintiff-appellant on a consideration of Rupees seventeen lakh regarding the property shown in Schedule 'B' , for Rupees one crore twenty six lakh regarding the property shown in Schedule 'A' and for Rupees six lakh regarding the property shown in Schedule 'C'. Against the total consideration amount, Rupees seventy lakh regarding the property described in Schedule 'A', Rupees ten lakh regarding the property described in Schedule 'B' and Rupees four lakh regarding the property described in Schedule 'C' has been paid in advance by the plaintiff-appellant to the defendant-respondent, for which, the defendant-respondent has given acknowledgement and has handed over possession surrendering his ownership over the disputed properties. Thus, the plaintiff-appellant is the sole owner in possession of the disputed properties. The defendant-respondent has also agreed to execute sale-deed in favour of the plaintiff-appellant after obtaining the balance amount. The plaintiff-appellant has requested time and again to execute the sale -deed in his favour but the defendant-respondent did not agree for the same and on 28.1.2014 threatened to the plaintiff-appellant to dispossess him from the disputed properties. It is also the case of the plaintiff-appellant that the defendant-respondent is trying to execute sale-deed of the disputed properties in favour of some other persons and is denying to execute the sale-deed in favour of the plaintiff-appellant. Thus, on the basis of this cause of action, the aforesaid suit was filed before the Court below praying for decree of permanent injunction against the defendant-respondent regarding the disputed properties restraining the defendant-respondent from dispossessing the plaintiff-appellant and interfering in peaceful possession of the plaintiff-appellant.

An application under Order XXXIX, Rule 1 Code of Civil Procedure was also filed by the plaintiff-appellant to issue interim injunction in favour of the plaintiff-appellant during pendency of the suit restraining the defendant-respondent to sell the disputed properties to other person and also from dispossessing the plaintiff-appellant from the disputed properties.The defendant-respondent filed an objection in the said suit.

After hearing both the parties, by the impugned order dated 8.7.2014, the court below rejected the interim injunction application observing that prima-facie case, balance of convenience and irreparable loss are not in favour of the plaintiff-appellant. Hence this First Appeal From Order.

We have heard Shri Rahul Sahai, learned counsel for the appellant and perused the entire record.

It is submitted by Shri Rahul Sahai that prima-facie case was clearly made out in favour of the plaintiff- appellant to issue interim injunction till disposal of the suit. The defendant-respondent has himself admitted that plaintiff- appellant is in possession over the disputed properties. The factum of oral agreement and payment of certain consideration amount has also been admitted by the defendant-respondent, therefore, the court below illegally construed the fact and rejected the interim injunction application. It is further submitted that at this stage, the Court dealing with the matter has to see only a prima-facie case. It is not expected from the plaintiff-appellant to establish at this stage prima-facie title over the disputed properties. If a serious question to be tried is involved in the matter, then the court should grant interim injunction to preserve / protect the subject matter of the suit.

Learned counsel for the appellant at this stage referring the facts of the present matter placed reliance on the decision of the Supreme Court in Dalpat Kumar and others vs. Prahalad Singh and others, Civil Appeal Nos. 5054-55 of 1991 (arising out of S.L.P.. (C) Nos. 1035 - 51 of 1991) decided on 16th December, 1991) and the decisions of this Court in Akbar Ali and others vs. District Judge, Bahraich and others, 2004 (3) AWC 2543(LB) and in the case of Smt. Shefali Roy vs. Hero Jaswant Dass and others reported in 1992 AWC 1000.

We have considered the submissions made by Shri Rahul Sahai, learned counsel for the appellant and gone through the case laws cited above.

In the present matter, it is admitted case that the disputed properties are immovable properties and the agreement entered into between the plaintiff-appellant and the defendant-respondent is an oral agreement. The defendant-respondent has also admitted that since the total consideration amount has not been paid, therefore, he did not execute the sale-deed in favour of the plaintiff-appellant. Admitting the oral agreement, he has also stated that if the plaintiff-appellant makes payment of the entire consideration amount, he is agree to execute the sale-deed in favour of the plaintiff-appellant.

While passing the impugned order, the court below has observed that the said agreement is an oral agreement and the disputed properties are immovable properties. Sale-deed can only be executed by a registered document, thus, finding no prima-facie case in favour of the plaintiff-appellant, the interim injunction application has been rejected.

If the submissions made by the learned counsel for the appellant are compared with the facts of the present case and also with the observations made by the court below, it is clear that no right has accrued on the basis of said oral agreement in favour of the plaintiff-appellant to grant interim injunction. In the present matter, no relief has been claimed by the plaintiff-appellant for specific performance of the contract. Interim injunction in the present matter cannot be granted only on the basis that the defendant-respondent has admitted possession of the plaintiff-appellant over the disputed properties. The observations made by the court below that the said possession cannot be termed as legal possession are correct and the same cannot be interfered with.

So far as the question of prima-facie case is concerned, there is no dispute that at this stage a prima-facie case in favour of the plaintiff-appellant has only to be seen for granting the temporary injunction. Since the plaintiff-appellant has filed suit merely for permanent injunction, no relief for specific performance of the contract has been sought, therefore, serious question to be tried in the matter also cannot be construed in favour of the plaintiff-appellant. Hence, the view taken by the court below is not interfereable.

So far as the decisions citied by the learned counsel for the appellant are concerned, they are not applicable to the facts of the present case as fact of the present matter is entirely different with the facts of the case laws cited by the counsel for the appellant.

As far as balance of convenience and irreparable loss are concerned, if prima-facie case is not found in favour of the plaintiff-appellant, then the court below has rightly concluded that balance of convenience and irreparable loss is also not in favour of the plaintiff-appellant and has rightly rejected the interim injunction application.

In view of the aforesaid discussions, we are of the opinion that the appeal filed by the plaintiff-appellant lacks merits and is liable to be dismissed.

The appeal is accordingly dismissed at this stage.

Order Date :- 25.8.2014

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