Madhya Pradesh High Court
Manmohan Singh vs Charan Singh on 10 February, 2025
Author: Anil Verma
Bench: Anil Verma
NEUTRAL CITATION NO. 2025:MPHC-GWL:2775
1 MP-7342-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 10th OF FEBRUARY, 2025
MISC. PETITION No. 7342 of 2023
MANMOHAN SINGH
Versus
CHARAN SINGH
Appearance:
Shri N. K.Gupta Senior Advocate with Shri Shatru Daman Singh
Bhadouriyia, Advocates for the petitioner .
Shri Anil Kumar Mishra, Advocate for the respondent.
ORDER
Petitioner has preferred this petition under Article 227 of Constitution
of India being aggrieved by the impugned order dated 21.11.2023 passed by
First Additional District Judge, to Additional Judge, Gohad, Bhind in MCA
No.33/2023, whereby an appeal filed by petitioner has been dismissed by
affirming the order dated 14.9.2023 passed by Civil Judge, Class-I Gohad,
District Bhind in Civil Suit No.217-A/2022 whereby application of the
petitioner/plaintiff under Order 39 Rule 1 & 2 of CPC has been rejected.
Brief facts of the case are that petitioner/plaintiff has filed suit for
specific performance of agreement to sale against respondent/defendant with
pleading that defendant has executed agreement of sale dated 30.6.2021 in
favour of plaintiff whereby he agreed to execute registered sale-deed of land
in question in favour of plaintiff, which is part of Survey No.184/1 area 1.80
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Hectare situated in Village Chak-tukeda, Tehsil Gohad, District Bhind for
the area 119/180 min. Plaintiff has paid earnest money of Rs.7,00,000/-
against total sale consideration of Rs. 33,32,000/- and sale-deed was to be
executed in favour of plaintiff by defendant till 15.6.2022 but defendant has
not executed the sale-deed in favour of plaintiff. Therefore, plaintiff has
preferred this suit.
During the pendency of civil suit even petitioner also filed an
application under Order 39 Rule 1 & 2 of CPC. After hearing both the
parties, trial Court vide order dated 14.9.2023 dismissed the application filed
by petitioner. Petitioner/plaintiff challenged the same before First Appellate
Court but same was dismissed vide order dated 21.11.2023 by confirming the
impugned order passed by trial Court. Being aggrieved by the same,
petitioner has preferred this petition.
Learned counsel for petitioner submits that defendant was giving threat
that they will soon alienate the property, as Advance money of Rs. 7 Lakh
has been paid to him. He was ready to perform his part in the agreement, but
respondent has not executed registered sale-deed in favour of petitioner. All
these aspects were not considered by both the Courts below while deciding
his application. Prima facie, balance of convenience and irreparable loss is
also in favour of petitioner. Hence, he prays that both the impugned orders
be quashed and petitioner's application under Order 39 Rule 1 & 2 of CPC be
allowed and temporary injunction be granted against respondents.
Respondents opposes the prayer and prays for its rejection by
supporting the impugned orders passed by both the Courts below.
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Heard both the parties and perused the record with due care.
From perusal of agreement of sale dated 30.6.2021, it is clear that
execution of agreement to sale is admitted by both the parties. It is also
admitted that petitioner/plaintiff has paid Rs. 7,00,000/- as advance money
against total consideration of Rs. 33,32,000/-. As per agreement, it is duty of
respondents to make available all the relevant revenue documents for
execution of sale-deed. Petitioner has given two notices to the respondents
to show that petitioner is ready to perform his act in the aforesaid agreement
to sale but respondents have not executed the sale-deed in favour of
petitioner within scheduled period even after receiving notices issued by
petitioner. Even respondent has not returned the amount of Rs.7 Lakh to the
petitioner.
Counsel for respondents contended that petitioner has failed to prove
that he was interested to perform his part in the agreement, wife of petitioner
fought an election of Nagar Panchayat and exhausted all their money.
Therefore, petitioner could not come before Sub Registrar Office, Gohad as
respondents remained present on the due date, but no relevant documents
have been filed by respondents to establish their aforesaid defense.
Therefore, contention made by counsel for respondent is not acceptable at
this stage.
From perusal of record, it appears that there is a threat of respondents
that they will alienate the suit property. Section 52 of the Transfer of
Property Act takes care of such alienation.
On the basis of aforesaid, this Court is of the considered opinion that
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petitioner has made out prima facie case and because of non granting of
injunction in favour of petitioner, he would suffer an irreparable loss and
much complication will arise. Therefore, balance of convenience and
irreparable loss is also found in favour of petitioner/plaintiff.
In the case of Laturiya vs. Shyambabu, 1990 (2) MPWN 126 , this
Court has expressed agreement with the view taken in Vadivel Mudaliar and
another vs. Pachianna Counder, AIR 1974 Madras 87, wherein it has been
held :-
"In the matter of granting temporary
injunction, it is the duty of the Court to take
into consideration the affidavits and the
relevant documents before it records a
finding. 'Taking into consideration the
documents' does not mean merely referring to
the same in the judgment; but there must be
some discussion about them before any
conclusion is arrived at. Unfortunately, the
Courts below have not adverted to these
documents, though not in detail at least prima
facie, except referring them in their
judgments. This has completely vitiated the
orders of the Courts below, which, in my
opinion, is a material irregularity, and has to
be taken that the Courts below have not
exercised their jurisdiction vested in them by
law."
Therefore as trial Court has failed in discharging its duties both in
matters applying its mind to defects of the case and taking into consideration
of relevant legal principles. Same has also been ignored by the First
Appellate Court and adopted erroneous approach, which is against principles
of temporary injunction, therefore, impugned order deserves to be set aside.
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In view of the aforesaid, this petition is allowed and impugned orders
dated 21.11.2023 and 14.9.2023 passed by both the Courts below is hereby
set aside and application under Order 39 Rule 1 & 2 of CPC filed by
petitioner is hereby allowed to maintain the status quo.
Respondents/defendants are directed that they should not create any third
party right over the suit property till pendency of civil suit before trial Court.
With the aforesaid, petition stands allowed.
(ANIL VERMA)
JUDGE
