Aarif and Another vs Saira Bano and Another

Alok Sharma, J.—This civil misc. appeal arises from the order dated 02.02.2013, passed by the District & Session Judge, Dholpur partially allowing an application under Order 39 Rule 1 & 2 CPC filed by the plaintiff-respondent No. 1 (hereinafter ''the plaintiff) in a suit for specific performance and inter alia restraining the appellants-defendants (hereinafter ''the defendants'') from alienating, transferring or otherwise creating third party right in the suit property.

The facts of the case are that relying on an agreement to sell dated 09.09.2011, the plaintiff laid a suit for specific performance against the defendants. Along with the suit an application under Order 39 Rule 1 & 2 CPC was filed seeking to restrain one Gopal Dixit (respondent No. 3 before this Court), successor and husband of the original vendor Suman Dixit from changing the status of the suit land or alienating it. It appears that in the meantime Gopal Dixit transferred the suit property by way of a registered sale-deed in favour of the defendants, Aarif and Rizwan , who were subsequently impleaded in the suit. On consideration of the matter even though the agreement to sell dated 09.09.2011 was denied both by Gopal Dixit and the subsequent purchasers, the learned trial court in the overall facts of the case found that the allegation of fabricated and forge nature of the agreement to sell dated 09.09.2011 could not be determined at the interlocutory stage and would be a subject matter determinable only on the basis of the evidence before it in the course of the proceedings. So holding the learned trial court found prima facie case as also balance of convenience and irreparable loss in favour of the plaintiff and against the defendants. Consequently, it was directed that during the pendency of the suit, the defendants would be restrained from alienating, transferring or otherwise creating any third party right in the suit property.

Counsel for the defendants has submitted that the order dated 02.02.2013 is vitiated for reason of the learned trial court while adjudicating the application under Order 39 Rule 1 & 2 CPC expressing its view on the merits of the case and in effect upholding the wholly forged and fabricated agreement to sell dated 09.09.2011 which will entail the plaintiff''s suit being decreed.

I however find no force in the submission.

A bare reading of para 7 of the impugned order dated 02.02.2013 indicates that what the learned trial court has recorded is merely the submission of the counsel for the plaintiff that agreement to sell dated 09.09.2011 was drawn by a lawyer and duly signed by the vendor Smt. Suman Dixit and as also the factum of the conveying of Rs. 4 lacs received by the vendor. The learned trial court has noted that, that aspect of the matter would be determinable finally only on the basis of evidence. Nothing definitive one way or the other could be held at the interlocutory stage albeit a triable issue was made on that aspect of the matter. In my considered opinion, there is no finding at all of the learned trial court on the authenticity of the agreement to sell dated 09.09.2011 and it has been left to be determined on the basis of the evidence before the trial court in the course of the suit proceedings. In my further opinion safeguarding of the suit property in a suit for specific performance is a fair exercise of discretion by the learned trial court on the material before it.

Consequently, I find no error, perversity or misdirection in law vitiating the impugned order.

The civil misc. appeal is without force and the same is dismissed.