Sharifsabs/O. Tippusab ... vs Raghavendra S/O.Ravindra Barad
2021 Latest Caselaw 5560 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 6TH DAY OF DECEMBER 2021

                         BEFORE

        THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

         WRIT PETITION NO.104354/2021 (GM CPC)

BETWEEN:

SHARIFSAB S/O. TIPUSAB BINKADAKATTI,
AGE 60 YEARS, OCC- AGRICULTURE,
R/O.ASUNDI VILLAGE, TALUK/DISTRICT-GADAG,
GADAG -582101.
                                            ...PETITIONER
(BY SRI SADASHIV S. PATIL, ADVOCATE)

AND :

RAGHAVENDRA S/O.RAVINDRA BARAD,
AGE 34 YEARS, OCC-BUSINESS AND AGRICULTURE,
R/O. SHIVANAND NAGAR,
TALUK/DISTRICT GADAG-582101.
                                          ....RESPONDENT

(BY SRI C.S.RACHAYYANAVAR, ADVOCATE ALONG WITH SRI
GIRISH S.HIREMATH, ADVOCATE)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF
CERTIORARI TO QUASH THE IMPUGNED ORDER PASSED IN
M.A.NO.5/2021 BY HON'BLE PRINCIPAL SENIOR CIVIL JUDGE AND
CJM, GADAG VIDE JUDGMENT DATED 8/10/2021 VIDE ANNEXURE-
G.

     THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
                                  :2:



                               ORDER

The respondent herein instituted a suit seeking for a

decree for permanent injunction to restrain the defendant

from alienating the land bearing R.S.No.23/2B+2A/1

measuring 05 acres.

2. The basis of the claim was that the respondent

(defendant) had executed an agreement of sale agreeing to

sell the suit property for a sum of Rs.25,00,000/- and he had

paid a sum of Rs.24,90,000/- and despite this agreement, the

defendant was attempting to alienate the property. It was

therefore contended that the defendant should be restrained

from alienating the property as the plaintiff had acquired a

valuable right over the land and had paid virtually the entire

sale consideration for acquisition of title over the land.

3. Along with the said suit, an application seeking grant

of temporary injunction to restrain the defendant from

alienating the suit property was filed. The trial Court

dismissed the said application. In order to reject the said

application, the trial Court reasoned that the original

agreement of sale itself had stated to have been lost even

according to the plaintiff and the defendant had infact denied

the very execution of the sale and in such a scenario the

grant of an injunction was not warranted.

4. On an appeal by the plaintiff, the Appellate Court

came to the conclusion that the plaintiff had made out a case

for injunction and had proceeded to allow the application

which has been filed seeking for temporary injunction. In

order to come to this conclusion, the appellate Court stated

that the plaintiff had the option of purchasing the property

only after the disposal of the litigation as per the covenant in

the agreement of sale, and therefore, the plaintiff had a

justifiable reason not to file a suit for specific performance.

The appellate Court, however did observe that though

virtually the entire sale consideration had been paid, the

plaintiff had not secured a registered agreement but that was

an issue which was required to be considered during trial.

5. In my view, the decision of the appellate Court

cannot be sustained. Admittedly, the plaintiff had agreed to

purchase the property only after litigation which was pending

has been disposed off. Thus, if the litigation had ended in a

verdict against the defendant, obviously the sale would not

go through. It is therefore clear that the very intent of the

plaintiff was to purchase the property only on the conclusion

of the litigation.

6. The defendant specifically denied the very execution

of the agreement of sale and also the receipt of the sale

consideration of Rs.24,90,000/- out of total agreed sale

consideration of Rs.25,00,000/-. In a situation like this, when

the plaintiff had himself stated in the very agreement that he

had set up that the sale transaction would be concluded only

after the disposal of the pending litigation, it is obvious that

in the event of the litigation going against the defendant, the

right of the plaintiff to get the property would stand depleted.

7. In my view, when the plaintiff had specifically denied

the agreement of sale and also the receipt of the sale

consideration, the appellate Court could not have reversed

the decision of the trial court and granted an injunction.

8. As far as the balance of convenience is concerned,

even if, the defendant was to alienate the suit property, it

would still nevertheless be open to the plaintiff to file a suit

and enforce the alleged agreement of sale, not only against

the defendant, but also against the subsequent purchaser. In

that view of the matter, the order passed by the appellate

Court cannot be sustained and the same is set aside. The

order of the trial Court shall stand restored.

With the above, writ petition is allowed.

Sd/-

JUDGE CKK