Jakir Hussain Khan vs Sabir
2023 Latest Caselaw 7860 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1222/2023

Jakir Hussain Khan S/o Late Shri Nawab Khan, Aged About 43 Years, Resident Of Ward No. 37, Manoranjan Club Ke Pichhe, Churu (Raj.)

----Appellant Versus

1. Sabir S/o Shri Jyan Mohammed, Resident Of Kakriya Masjid Ke Pas, Ward No. 3 Sardarsahar Tehsil Sardarshahar, District Churu.

2. Smt. Jumiya W/o Shri Mohammed Saiyed, Resident Of Sikka Masjid Ke Pas, Ward No. 40, Sardarshahar, Tehsil Sardarshahar, District Churu (Raj.)

3. Up Panjiyak Mahodaya, Churu.

                                                                      ----Respondents


For Appellant(s)                :    Mr. Karunanidhi Vyas
                                     Mr. AR Malkani
                                     Mr. Sharad Vyas
                                     Ms. Surbhi Joshi
For Respondent(s)               :    Mr. Devendra Mahalana



           HON'BLE MR. JUSTICE MADAN GOPAL VYAS

                                      Judgment

DATE OF JUDGMENT                                                      04/10/2023

The present miscellaneous appeal has been filed under Order

43, Rule (1)(r) CPC against the order dated 10.07.2023 passed by

the learned District Judge, Churu (hereinafter referred to as the

learned Trial Court) in Civil Misc. case No. 10/2023 whereby the

learned trial court rejected the application filed by the plaintiff-

appellant under Order 39 Rule 1 and 2 of the CPC.

2. Briefly stated facts of the case are that the plaintiff-appellant

filed a suit for specific performance of contract dated 13.5.2023

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and permanent injunction. In the suit it was claimed that the

plaintiff-appellant executed an agreement to sale dated 13.5.2023

with the defendants-respondents nos.1 and 2 with respect to

their share of land to the extent of 1/444 each situated at Khasra

no.226 and 227 as mentioned in para no.2 of the temporary

injuncation application (hereinafter referred to as the suit property

for short) for a consideration of Rs.5 lacs, out of which Rs.2 lacs

were given as advance and the remaining amount of Rs.3 lacs was

to be given within 15 days. It was claimed that the said

agreement to sale was executed on 500/- rupees stamp paper and

two witnesses Mohsin and and Mohd Sahid witnessed the same.

Thereafter, it was submitted that since the defendants refused to

perform their part of contract, therefore, appellant got served

upon the defendants a notice on 27.5.2023 through his advocate.

In these circumstances, the plaintiff-appellant preferred the

aforesaid suit seeking the above reliefs. Alongwith the said suit,

the plaintiff-appellant also preferred an application under Order 39

Rule 1 and 2 of the CPC seeking interim injunction. However, the

learned trial court rejected the said application, therefore, the

plaintiff-appellant has preferred the present civil misc. appeal.

3. Learned counsel for the appellant submits that the appellant

is having prima facie case and balance of convenience in his

favour and if the injunction sought is not granted to the appellant,

then there would be irreparable loss to the appellant. Learned

counsel submits that the plaintiff-appellant sought injunction only

to the extent that during the pendency of the suit, the defendants

may be restrained from alienating the suit property. However, the

learned trial court without considering the prayer of the appellant,

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on filmsy grounds rejected the application under Order 39 Rule 1

and 2 of the CPC.

4. Learned counsel appearing for the respondents submits that

the order passed by the learned trial court is well reasoned and

justified and no interference is called for. Learned counsel for the

respondents submits that no such agreement to sale was executed

by the defendants-respondents with the plaintiff-appellant and the

alleged agreement to sale is a forged document. It is also

submitted that the alleged agreement to sale on stamp paper of

Rs.500/- is also insufficiently stamped and there is no copy of the

receipt of Rs.2 lacs on record. Learned counsel for the

respondent further submits that it is a settled position that during

the pendency of the suit, if alienation of the suit property is made,

then the same shall not affect rights of plaintiff under any decree

passed in suit unless property was alienated with permission of

the Court. In support of his contentions, he relied upon following

judgments:

1. Shyoraj Singh & Ors. Vs. Zahir Ahamad & Ors. reported in

2013 8 ADJ 492

2. Usmangani Abdulkadar Karbhaari Vs. Ajit Indravadan

Thakkar & Ors reported in 2017 4 CurCC 206

3. Gurdwara Shaid Baba Sangat Singh Vs. Smt. Surinder Kaur

reported in 2008(3) Law Herald 1867

4. Mohd. Osman V. Dr. Devid reported in 2011 2 AIIMR 315

5. MT Kempegowda Vs. GK Ramesh Kumar & Ors reported in

2011 AIR (Kar) (HCR) 417

6. Ravinder Kumar Khanna Vs. Prem Prakash Khanna reported

in 2017 0 Supreme (Del) 976

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5. I have heard learned counsel for the parties and perused the

material available on record.

6. For deciding the present appeal, the provisions of Order 39

Rule 1 and 2 of the CPC are relevant, which are as follows:

"Order-XXXIX, Rule-1. Cases in which temporary injunction may be granted.- Where in any Suit it is proved by affidavit or otherwise--

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further orders.

7. The plaintiff-appellant has preferred the suit for specific

performance of agreement to sale deed dated 13.5.2023 with the

averments that the suit property was agreed to be sold out by the

defendants nos.1 and 2 to the plaintiff-appellant for a

consideration of Rs.5 lacs, out of which Rs.2 lacs have already

been handed over to the defendants nos.1 and 2.

8. The defendants' case is that no such agreement to sale was

ever executed and in the same breath they have raised an

objection that the agreement to sale is insufficiently stamped.

There is another objection that there no copy of the receipt of

Rs.2 lacs on record. It was further submitted that in the present

case the theory of lis pendens would apply.

9. The learned trial court on the basis of the objections made

by the defendants, rejected the application. However, the learned

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trial court failed to consider that all these objections are mixed

question of facts and law and it could have been heard and

decided after framing of the issues and leading evidence by the

respective parties. Moreover, by the impugned order, the learned

trial court has held that if third party rights are created, such

rights would be subject to the decision of the suit. In my

considered opinion, if third party rights are created, it would result

in multiplicity and complicity of proceedings. Therefore, in the

interest of justice, this Court deems it appropriate to direct the

defendants-respondents not to alienate the suit property as this

Court finds that all the ingredients, i.e., prima facie case, balance

of convenience and irreparable loss for granting injunction order is

in favour of the plaintiff.

10. In view of the above, the present civil misc. appeal is

allowed. The impugned order dated 10.7.2023 passed by the

learned trial court is quashed and set aside. It is further directed

that till the disposal of the suit, the defendants-respondents are

restrained from alienating the suit property.

(MADAN GOPAL VYAS),J 37-CPGoyal/-

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