Ponnapureddy Kameshwar Reddy vs Sagabala Narasimha Swami
2023 Latest Caselaw 4450 AP

                                     1




     THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                    AND
THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
                        C.M.A.No.302 of 2023

JUDGMENT:(per Hon'ble Sri Justice D.V.S.S.Somayajulu)

      This     CMA     is   filed   questioning         the   order   dated

04.04.2023 passed in I.A.No.190 of 2022 in O.S.No.5 of 2022

by the learned Additional District Judge, Rayachoti.

2)    This Court has heard Sri N. Ashwani Kumar, learned

counsel for the appellant.            Respondents did not appear

despite service of notices, therefore, the matter was taken up

for hearing.

3) Sri N. Ashwani Kumar submits that the purpose of an

interim order is to protect the rights of the parties pending

litigation and that in this case the appellants are stating that

the respondents are alienating the property and more so in

collusion with the parties in O.S.No.20 of 2018. The Court

did not take into account the need and necessity for

protecting the interests of the parties. He also points out that

the trial Court essentially went into the main merits of the

matter and did not consider the essential ingredients, prima

facie case and in more particular the balance of convenience

and irreparable loss. The learned counsel also points out that

the trial Court came to the conclusion, in page No.8 para 10,

that the plaintiffs have failed to honour the terms of the

agreement dated 09.02.2018 and did not come forward to pay

Rs.3,50,80,750/-. It is his contention that this finding cannot

be recorded at this stage on the basis of the affidavits. He

contends that the time is not of an essence in the sale of the

immovable property and the conclusion to this effect can only

be reached after a full fledged trial. He points out that if the

findings are allowed to stand the appellants will suffer serious

loss. It is also pointed out that the trial Court noted that the

petitioners, who are aware of the pendency of the O.S.No.20

of 2018 stating that the sale deed should be registered after

the finalisation of the shares litigation pending in the Court,

but yet the Court came to the conclusion that they filed the

suit for the "entire property". He, therefore, submits that this

is again a matter which can only be decided in the course of

the trial. It is his contention that once the parties enter into

an agreement for sale and the suit for specific performance is

filed, the Court should consider all the issues and offer a

protective relief to the appellants, so that the ultimate decree

that is passed will not be defeated.

4) This Court after considering the submissions notices

that there is some certain strength in what is stated by the

learned counsel for the appellants. They have come to the

court with a specific plea that the respondents / defendants

in the suit, in collusion with the plaintiffs in OS No.20 of

2018, are selling away the property to third parties. They

have also raised certain other legal and factual issues. Even

the counter, as can be seen, does not meet this essential

issue that has been raised. In addition, there are findings

that strengthens the contention of the appellants namely that

the appellants have failed to honour the terms of the

agreement and the appellants did not pay the balance sale

consideration within the stipulated time. These are findings

in an Interlocutory Application, but they can be held against

the appellants later. Whether the time is an essence of the

contract or not, whether the conduct of the parties disentitles

them to get the equitable relief of specific performance is a

matter to be decided, if there is sufficient clarity after evidence

is introduced. At an interim stage only prima facie opinions

can be expressed.

5) In view of the fact that this Court has decided to set

aside the order and remand the matter back to the trial court

to conduct a de novo hearing on the entire issue and decide

whether the appellants are entitled to any order of protection.

This Court is not expressing anything on the merits of the

matter.

6) Accordingly this CMA is allowed setting aside the

interim order dated 04.04.2022 in I.A.No.190 of 2022 in

O.S.No.5 of 2022 and the learned trial Judge is directed to

hear the matter afresh and pass a speaking order on the

merits. The entire exercise should be completed within a

period of two months from the date of receipt of a copy of this

order. No costs.

7) Consequently, Miscellaneous Applications pending, if

any, shall also stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J

_________________________________ DUPPALA VENKATA RAMANA, J Date:22.09.2023 Ssv