Smt. N Jayalakshmi vs Mr. Shabari R. Ram
2023 Latest Caselaw 4342 Kant

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                                                      NC: 2023:KHC:24231
                                                        MFA No. 2610 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 12TH DAY OF JULY, 2023

                                             BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                   MISCELLANEOUS FIRST APPEAL NO. 2610 OF 2023 (CPC)

                   BETWEEN:

                   1.    SMT. N. JAYALAKSHMI,
                         W/O G.G. VENKATESHMURTHY,
                         AGED ABOUT 50 YEARS,
                         RESIDING AT NO.129/26,
                         13TH MAIN ROAD,
                         NAGEDNRA BLOCK, III STAGE,
                         BANASHANKARI,
                         BENGALURU- 560 050
                                                              ...APPELLANT

                               (BY SRI. RAGHAVENDRA C., ADVOCATE)
                   AND:

                   1.    MR. SHABARI R. RAM,
Digitally signed
                         S/O LATE. B.K. RAMANNA,
by SHARANYA T            AGED ABOUT 47 YEARS,
Location: HIGH           RESIDING AT NO.65,
COURT OF                 MUNIRAMAPPA GARDEN,
KARNATAKA
                         NEAR KEB LAYOUT,
                         SANJAYANAGARA,
                         BENGALURU-560 094.
                                                              ...RESPONDENT

                               (BY SRI. K.VIJAYA KUMAR, ADVOCATE)

                        THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
                   OF CPC, AGAINST THE ORDER DATED 09.02.2023 PASSED ON
                   I.A.NO.1 IN O.S.NO.661/2019 ON THE FILE OF THE SENIOR
                   CIVIL JUDGE, NELAMANGALA, REJECTING THE I.A.NO.1 FILED
                   UNDER ORDER 39 RULE 1 AND 2 OF CPC.
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                                      NC: 2023:KHC:24231
                                         MFA No. 2610 of 2023




     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Heard the appellant's counsel and also counsel appearing

for the respondent.

2. This appeal is filed challenging the order of dismissal

on I.A. filed under order 39 Rule 1 and 2 wherein sought an

order of injunction directing the defendant not to alienate the

suit schedule property. The trial Court having considered the

material on record particularly no dispute with regard to the

execution of sale agreement dated 24.12.2014 i.e. also a

registered document under which sale consideration was Rs.75

lakhs and an amount of Rs.25 lakhs was paid and time is the

essence of contract i.e. three months and shall get executed a

registered sale deed of the suit property in her favour within

three months and also there is a stipulation that defendant can

forfeited 25% of the advance sale consideration and repay the

defendants sale consideration to the plaintiff and the defendant

also not paid the 25% of the amount after forfeiting the same

in terms of the agreement and trial Court while considering the

prima facie case comes to the conclusion that though time is

NC: 2023:KHC:24231 MFA No. 2610 of 2023

the essence of contract of three months, suit was filed in 2019

and no material is placed for having paid the balance amount

and when the suit is filed for the relief of specific performance,

the trial court ought not to have venture to consider the same

whether amount has been paid or not and readiness and

willingness to perform the part of contract, has to be

considered while considering the matter on merits and only to

see that whether there is an agreement of sale and in terms of

the sale agreement whether plaintiff has made out a prim facie

case and instead of gone into the matter on merits and the

very observations made by the trial Court is not warranted

while considering the application under Order 39 Rule 1 and 2

and instead of considering prima facie case, balance of

convenience and also the hardship, dismissed the application

with regard to the readiness and willingness and with regard to

that observation it requires interference. However, having

taken note of an agreement was of the year 2014 and time is

stipulated for three months and suit is also filed in 2019 and

counsel for the appellant would submit that even though time

was the essence of the contract and three months time was

stipulated and the same is extended by mutual consent

NC: 2023:KHC:24231 MFA No. 2610 of 2023

between the parties and in order to substantiate the same no

material is placed before the Court. When such being the case,

I do not find any prima facie case made out by the plaintiff to

grant an order of injunction invoking under Order 39 Rule 1 and

2. Hence no grounds are made out to allow the appeal and set

aside the order and grant an order of injunction and rights of

the parties is subject to the terms and conditions of the

agreement and other contention has to be proved in trial.

3. In view of the discussions made above, I pass the

following

ORDER

The appeal is dismissed.

It is made it clear that the observations made by the trial

Court while considering I.A. filed under Order 39 Rule 1 and 2

with regard to the readiness and willingness and non payment

of balance amount, shall not be influenced while considering

the matter on merits.

Sd/-

JUDGE AP