Madhu Jain vs Sarojini Devi Sharma
1997 Latest Caselaw 658 Del

JUDGMENT

Lokeshwar Prasad, J.

1. The present appeal is directed against an order dated 9th January, 1995, passed by the learned Additional District Judge, Delhi in Suit No.211/93 - entitled Smt. Madhu Jain Vs. Smt. Sarojini Devi Sharma, rejecting the application of the appellant filed by her under Order XXXIX, Rules 1 & 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC').

2. The facts relevant for the disposal of the present appeal, briefly stated, are that the appellant filed a suit for specific performance of an agreement to sell dated the 15th December, 1990, entered into between the appellant and the respondent whereby the respondent agreed to sell the property bearing No. B-26, Suraj Mal Vihar, Shahdara, Delhi (hereinafter referred to as 'the property in question') to the appellant for a consideration of Rs. 1,65,000/- upon the terms and conditions as contained in the above said agreement. It is averred that the respondent is the owner of the property in question in terms of a tripartite perpetual sub-lease dated the 10th September, 1990 executed between the President of India through the Delhi Development Authority, the Delhi School Teachers Co-operative House Building Society Ltd. & the respondent which was duly registered in the office of the Sub-Registrar, Delhi on 17.9.1990. It is also averred that the entire consideration was tendered and received at the time of the execution of the said agreement to sell by means of a draft dated the 13th December, 1990 for Rs. 1,65,000/-, drawn on the Canara Bank, Munirka Branch, New Delhi in favour of the respondent and the possession of the property in question was handed over to the appellant simultaneously with the execution of the above said agreement to sell. It is alleged that in terms of the agreement executed between the parties the respondent was required to obtain all necessary permissions for the purpose of the execution of the sale deed and the respondent was also responsible for the performance of all the acts, deeds and things necessary for the transfer of the said property in the name of the appellant. The respondent, it is alleged, also executed a receipt acknowledging receipt of the sale consideration. It is stated that the respondent also executed two general and four special power of attorneys in favour of the husband of the appellant on 15.12.90 to effectuate the control and management of the property in question pending the execution of the sale deed and an indemnity bond and an affidavit confirming the execution of the above stated documents were also executed by the respondent on 15.12.90. It is further stated that it was agreed between the parties that the respondent would register one of the two irrevocable General Power of Attorneys at the office of the Sub-Registrar, Asaf Ali Road, New Delhi on 17.12.90. It is stated that the parties attended the office of the Sub-Registrar on the above said date and the above said General Power of Attorney was also tendered for registration. But when the time actually came for the appearance before the Sub-Registrar, the respondent refused to appear and demanded an additional amount of Rs. 50,000/- over and above the agreed consideration, already paid, from the appellant. On appellant's refusal to agree to the above illegal request, the respondent refused to appear before the Sub-Registrar and left the premises.

3. It is stated that the appellant thereafter approached the respondent time and again requesting and demanding for the execution of the sale deed and completion of all other formalities in favour of the appellant but the respondent refused to accede to the request of the appellant and insisted that she must first be paid a sum of Rs. 50,000/-. It is further averred that the appellant thereafter approached the Delhi School Teachers' Co-operative House Building Society Ltd. (lessees of the property in question) and had her name inserted in the records as the owner of the property in question after paying a sum of Rs. 21,000/- to the Society on 22.4.92. It is stated that on 25.4.92 the respondent issued a notice to the appellant purporting to cancel the said agreement stating that the respondent had signed undated and blank documents and that the documents had been taken away from the respondent by appellant's husband without paying the consideration on 17.12.90. Since the respondent failed to execute the sale deed the appellant filed the suit (Suit No.211/93) in the Court of District Judge, Delhi seeking a decree of the specific performance of the contract.

4. Alongwith the plaint the appellant also filed an application (IA 879/92) under Order XXXIX, Rules 1 & 2 and an ex-parte interim injunction inter-alia restraining the respondent from interfering with the appellant's possession of the property in question and further restraining the respondent from alienating or parting with the possession of the suit property was granted by the learned Predecessor of this Court vide order dated 29.5.92. The respondent too filed an application under Order XXXIX, Rule 4 seeking vacation of the interim injunction issued against her. However, before the said interim application could be heard together with the application filed by the respondent under Order XXXIX, Rule 4 CPC, the proceedings were transferred from this Court to the Court of learned District Judge consequent upon the revision of the pecuniary jurisdiction of the District Courts in Delhi.

5. The above said interim applications, filed by the appellant and the respondent, were heard by the learned Additional District Judge on 9.11.94 and vide impugned order the learned Additional District Judge has rejected the application of the appellant/plaintiff filed by her under Order XXXIX, Rules 1 & 2, CPC.

6. Feeling aggrieved the appellant has preferred the present appeal. Notice of the appeal was issued to the respondent who has entered appearance through her Counsel. Arguments in the matter were heard on 30.9.96. However, before the order could be passed the appellant filed an application (CM 633/97) under Order 41, Rules 27 and 28 read with Order 43, Rule 2 and Section 151, CPC with the prayer that the appellant be allowed to produce the documents as listed in para 4 of the application as additional evidence and the documents detailed in para 4 of the application be taken on record as additional evidence in the present appeal. Notice of the above mentioned application (CM 633/97) was issued to the respondent who filed a reply on 14.3.97. The appellant filed a rejoinder to the reply filed on behalf of the respondent.

7. In so far as the application (CM 633/97) under Order 41, Rules 27 & 28 read with Order 43, Rule 2 and Section 151, CPC is concerned detailed arguments of the learned Counsel for both the parties were heard and the above said application was disposed of by this Court vide order dated 17.7.97. The operative portion of the order reads as under:

"I have heard the learned Counsel for the parties. During the course of arguments Mr. Ishwar Sahai, Senior Advocate (learned Counsel for the respondents), in his usual fairness is fair enough to concede and states that though according to him the documents are not relevant, but he has no objection in case the same are taken on record as prayed by the appellant. The documents, as prayed, are taken on record. However, the question as to whether the same are relevant shall be decided by this Court while deciding the main appeal (FAO 48/95).

Application (CM 633/97) stands disposed of in above terms."

8. After the disposal of the above mentioned application (CM 633/97) I again heard the learned Counsel for both the parties and have also carefully gone through the documents/material on record.

9. As already stated vide impugned order the learned Additional District Judge has dismissed appellant's application filed by her under Order XXXIX, Rules 1 & 2, CPC. As per settled law, called out from various judicial ecisions, relief under Order XXXIX, Rules 1 & 2 can be given to an applicant provided the applicant is in a position to satisfy the Court that the applicant has a 'prima facie case' that the 'balance of convenience' is in his favour and that 'irreparable loss/injury' would be caused to him if the relief is not granted to him. The phrases 'prima facie case'; 'balance of convenience' and 'irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity to meet myriad situations, presented by men's ingenuity in given facts and circumstances, hedged with sound exercise of Judicial discretion to meet the end of justice. The burden is always on the applicant/plaintiff to satisfy the Court that there is a 'prima facie case' in his favour which needs adjudication at the trial. The existence of prima facie right and infraction of the enjoyment of his property or the right, is a condition for the grant of temporary injunction. However, satisfaction that there is a 'prima facie case', by itself is not a sufficient ground to grant injunction. The Court further has to satisfy itself that non-interference by the Court would result in irreparable injury to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and that the applicant needs protection from the consequences of apprehend injury. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages. While granting relief under the above provisions the Court has to see that the 'balance of convenience' must be in favour of granting injunction. In other words, the Court, while granting or refusing to grant injunction, is expected to exercise sound judicial discretion to find out the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit the subject matter should be maintained in status quo, an injunction under the above provisions would be granted by the Court. Their Lordships of the Supreme Court in case Dalpat Kumar Vs. Prahlad Singh reported as have held that before granting injunction the Court would be circumspect and look to the conduct of the party the probably injuries to either party and whether the plaintiff could be adequately compensated if the injunction is refused.

10. In the light of the above settled legal position it is noticed that in the present use it is alleged that the respondent had executed an agreement to sell dated the 15th December, 1990 in favour of the appellant for the sale of the property in question to the appellant for a sale consideration of Rs. 1,65,000/-. It is also alleged that the entire sale consideration was tendered by the appellant and was received by the respondent at the time of the execution of the said agreement to sell. It is specifically averred by the appellant in para 3 of the plaint that the respondent had "executed a receipt acknowledging the receipt of the sale consideration". It is further averred in the above said para of the plaint that the respondent also executed a 'possession letter', handing over and confirming that the possession of the property had been handed over to the appellant. The respondent in the written statement, while denying the execution of the agreement to sell and the fact that the possession of the property in question was delivered to the appellant has not specifically denied the execution of the receipt showing the receipt of the sale consideration and the 'possession letter' alleged to have been executed by her, handing over and confirming that the possession of the property in question had been handed over to the appellant. In the absence of specific denial of the above averments by the respondent, at this stage, it is some what difficult to believe the version as is being given out by the learned Counsel for the respondent on behalf of the respondent.

11. The appellant, in the averments made in the plaint, has asserted that the appellant approached the office of the Delhi School Teachers' Co-operative House Building Society Limited and after paying a sum of Rs. 21,000/- to the Society vide Receipt No. 15785 dated the 22nd April, 1992 got her name recorded as the owner of the property in the records of the Society. In the written statement filed by the respondent, the respondent has not disputed the correctness of the above facts. The only plea taken by her is that "the Society people are playing in the hands of the plaintiff and her husband and had dishonestly received huge amount from the plaintiff".

12. In the presence of the above facts, even if the documents, filed by the appellant alongwith application (CM 633/97) are not taken into consideration, it cannot be stated that the appellant has no prima facie case. The balance of convenience, in my opinion, is also in favour of the appellant and if no relief is given to the appellant on her application filed by her under Order XXXIX, Rules 1 & 2, CPC, decidedly irreparable loss is bound to be caused to her. All the disputed questions of fact, raised by the respondent in the written statement regarding the non-execution of the agreement to sell, non-receipt of the sale consideration and other allied questions cannot be decided by this Court at this stage because the same can be decided only at the trial of the suit by the Court of competent jurisdiction after framing specific issues and affording both the parties an opportunity to lead evidence, both oral as well as documentary, in support of their respective contentions.

13. In view of the above discussion, in my opinion, the impugned order is not liable to sustain the test of judicial scrutiny and is liable to be quashed. Accordingly, the appeal filed by the appellant is allowed. The impugned order is set aside. The order dated the 29th May, 1992, passed in IA 879/92, is made absolute so as to remain in force till the disposal of Suit No. 211/93 - Smt. Madhu Jain Vs. Smt. Sarojini Devi Sharma. The application, filed by the respondent under Order XXXIX, Rule 4, CPC, which in the facts and circumstances of the case, in view of the above discussion, is devoid of substance, is directed to be dismissed. In the facts and circumstances of the case the parties are left to bear their own costs.

14. Nothing stated hereinabove shall amount to expression of any opinion on the merits of the suit pending trial before the learned Additional District Judge, Delhi. However, the learned Additional District Judge, Delhi is directed to dispose of the above said suit in accordance with law within a period of six months from the date of this order.

The appeal stands disposed of in above terms.