Ch Subash Chandra Reddy vs Elmati Ranga Reddy
2022 Latest Caselaw 3445 Tel

      HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU

                        C.M.A.NO.416 of 2021

JUDGMENT:

This Civil Miscellaneous Appeal has been preferred by the

appellant/plaintiff against the order of the trial Court in I.A.No.775

of 2019 in O.S.No.660 of 2019 by which the application filed by

the appellant for a temporary injunction to restrain the

respondent/defendant from alienating the suit schedule property

during the pendency of the suit was dismissed.

2. In the grounds of appeal, the appellant has averred

that the trail Court committed an error in placing reliance on Order

7 Rule 11(a) of CPC in as much the cause of action was disclosed

in the plaint. The finding of the Court below on the basis of clause

7 of the agreement of sale, dated 25-08-2018 stipulated a clause

for returning the advance amount if there is a default of the

appellant for seeking specific performance. The appellant has

further claimed that the Court below ought to have seen the

respondent/defendant admitted the execution of sale agreement

but they have to get the land surveyed as per the terms of

agreement. The appellant has paid Rs.50,000/- on 26-09-2018 as

per the request of the respondent inspite of failure of respondent

to fulfill his obligation under the agreement. It is also the case of 2 SSRN,J C.M.A. No.416 of 2021

the appellant that the Court below did not appreciate the fact that

the respondent has not filed any document in support of his

contention. Therefore, the Court below ought to have seen the

prima-facie case and balance of convenience are in favour of the

appellant herein and if injunction is not granted, there is a chance

of respondent creating documents in favour of third parties which

will result multiplicity of proceedings.

3. For better appreciation, it would be proper to give a

brief note of the petition filed by the appellant herein vide

I.A.No.775 of 2019. As already stated, the appellant herein is

plaintiff in O.S.No.660 of 2019, which was filed for specific

performance of agreement of sale by which the appellant agreed to

purchase an extent of Ac.2-08 gts of land in Sy.no.516/A1/1 of

Nednuru Village from the respondent/defendant. As per the terms

of agreement, the respondent/defendant was under obligation to

get the land surveyed, demarcated with a clear path way, and

provide 18 feet wide road to the said land but there was delay by

the respondent in getting the land surveyed. However, the

appellant has paid a sum of Rs.50,000/- to the

respondent/defendant and as there was failure on the part of the

defendant to proceed with the contract, the appellant/plaintiff filed

the suit and sought for specific performance of contract. He has 3 SSRN,J C.M.A. No.416 of 2021

filed the above referred Interlocutory Application under Order 39,

Rule 1 of CPC with a prayer to grant temporary injunction to

restrain the respondent/defendant from alienating the suit

schedule property during the pendency of the suit.

4. The respondent/defendant opposed the petition, filed a

counter by admitting his ownership about the above referred land,

execution of sale agreement and receipt of Rs.2,50,000/- from the

appellant. However, it was the case of the respondent that in case

the appellant failed to pay the balance consideration within agreed

time, the agreement stands cancelled and the respondent is

supposed to return the advance amount to the appellant herein.

The respondent has further claimed that he got the land surveyed,

demarcated it and provided a path way as per the terms of the

agreement and approached the appellant/plaintiff for the balance

consideration but appellant expressed inability to pay the

remaining amount and requested time. Subsequently, he has paid

Rs.15000/- on 26-09-2018 with a promise to pay the balance in

3 days. The respondent/defendant has categorically stated that he

was always and willing to perform his part of contract but due to

the failure of appellant herein, the sale deed could not be

executed. He has also claimed that above said injunction petition 4 SSRN,J C.M.A. No.416 of 2021

was filed only to harass the respondent, thereby, sought for

dismissal of the petition.

5. The appellant has marked seven documents as Exs.P1

to P7 during the enquiry in the said petition. The Court below

having heard both parties, came to the conclusion that the

appellant herein could not make out a case for injunction thereby,

dismissed I.A.No.775 of 2019.

6. I have heard both parties.

7. The learned counsel for the appellant has submitted

that there is no dispute about the agreement of sale between the

appellant and the respondent. The respondent did not dispute the

receipt of Rs.2,50,000/- under the said agreement. The appellant

reliably came to know the respondent was making attempts to

dispose of the suit schedule property, therefore, in order to protect

his interest, he has filed the petition under Order 39 Rule 1 of CPC

seeking injunction but the Court below without appreciating the

facts in a proper way came to a wrong conclusion, dismissed the

application. The suit is at the initial stage. If the respondent is

not restrained by way of injunction, there is a likelihood of

respondent alienating the property to third parties or creating

interest over the property in favour of another person and if that is 5 SSRN,J C.M.A. No.416 of 2021

allowed, it will lead to multiplicity of proceedings and the appellant

will suffer irreparable loss.

8. On the other hand, the learned counsel for the

respondent has submitted that the suit was filed in 2019. The

respondent herein appeared before the trial Court, filed his

counter. He has contested the injunction petition. There was no

attempt by the respondent herein to alienate or create third party

interest over the suit property, already more than 3 years lapsed

from the date of filing the suit. Even if the respondent alienate the

property during the pendency of the suit, it will be hit by "Doctrine

of Lispendency" and it may not cause any loss to the appellant

herein. The learned counsel further submitted that he is ready to

proceed with the trial, therefore, he sought for dismissal of the

appeal.

9. Now the point for consideration is :

Whether the appellant herein is entitled to temporary injunction as prayed for ?

10. The application was filed by the appellant for a

temporary injunction to restrain the respondent from alienating

the suit schedule property. It is a fact that the suit was filed more

than three years ago and admittedly, the respondent/defendant

did not execute any such documents during these three years. As

could be gathered from the arguments advanced by both parties, 6 SSRN,J C.M.A. No.416 of 2021

the affidavit filed in support of application before the Court below

did not explain the details like date, time and in whose favour the

respondent wanted to create third party interest over the suit

schedule property. It is true, a vague allegation stating that the

respondent was trying to dispose of the property in favour of the

third parties may not be a prima-facie case. The

respondent/defendant did not dispute the execution of sale

agreement receipt of part consideration to the tune of

Rs.2,50,000/-. It was his specific case that he got the land

surveyed and created a path as per the terms of the agreement

and he was always ready and willing to execute sale deed provided

the appellant herein paid the balance consideration. As rightly

observed by the Court below in order to have an injunction to

restrain the respondent from execution of the documents, there

must be clear proof that the property in dispute was in danger of

alienation or threat and the appellant herein is supposed to

produce sufficient proof about the alleged proposed alienation of

the property. According to the Order under challenged in the

present appeal, it shows in his affidavit filed in support of the

injunction petition, the appellant/plaintiff stated that he reliably

learnt the respondent was trying to alienate the property. He did

not furnish the details as to whom the respondent was trying to 7 SSRN,J C.M.A. No.416 of 2021

alienate the property. Therefore, the appellant herein is not able

to make out the prima-facie case, balance of convenience is not in

his favour. If an injunction is granted restraining the respondent

from alienating the property, it may cause irreparable loss to the

respondent. Therefore, the trial Court rightly dismissed the

application, as such, there are no merits in the appeal. However, in

view of the apprehension of appellant that there is a likelihood of

respondent alienating the property, it would be proper to give a

direction to the trial Court to dispose of the suit itself as

expeditiously as possible.

11. Civil Miscellaneous Appeal is dismissed without costs.

However, in view of the apprehension of the appellant that the

respondents may create third parties interest, the trial Court is

directed to dispose of the suit as early as possible, preferably, in

six months from the date of receiving order.

Consequently, Miscellaneous applications if any, are closed.

                                __________________________
                                JUSTICE SAMBASIVA RAO NAIDU
Date: 06.07.2022
PLV
 8               SSRN,J
    C.M.A. No.416 of 2021