Heera Laxmi Contractors Pvt. Ltd. vs Dwarka and Others

A.P. Bhangale, J—Heard.

Admit. Mr.S.J. Khandalkar, learned Counsel waives service on behalf of Respondent No. 1.Mr.P.A. Abhyankar, learned Counsel for respondent nos. 2 to 4.

This appeal under Order 43, Rule 1(r) of the Code of Civil Procedure questions the interim order passed in pending Special Civil Suit No. 107 of 2014 by the learned 4th Joint Civil Judge (Sr.Dn.), Nagpur. It appears the suit for specific performance of contract and grant of permanent injunction against the defendants in respect of agricultural land to the extent of 1.68 hectare-R out of Khasra No. 263/1, P.H. No. 12, Khate no.64, corresponding to City Survey No. 133/2 of mouza Godhani, Tq. and District Nagpur.

It was the case of the plaintiff/appellant that there was an agreement dt.1.7.2005 whereby Shakuntalabai and her brother Dwarka had agreed to sell two hectares of land out of above khasra number for a sum of Rs. 20,00,000/-. It is the case of the plaintiff that from time to time sums were advanced to the extent of Rs. 14,55,000/- and Sale deed was to be executed by the defendants after obtaining No Objection Certificates and permissions to transfer the suit lands in favour of the plaintiff. However, Shakuntalabai, who agreed to sell the land, expired on 9.7.2009 leaving behind her two sons and a daughter as legal heirs. Husband Janak, who survived Shakuntalabai, also died on 15.5.2010. Thus, the question before the trial Court was as to whether specific performance of the contract namely agreement to sell dt.1.7.2005 can be granted considering the subsequent events i.e. death of Shakuntalabai, death of Janaklal Chaudhari, her husband etc. According to the defendants, the agreements are not binding upon them on the ground of alleged fabrication or fraud; while according to the plaintiff, substantial amounts have been advanced from time to time and the plaintiff was ready and willing to get the sale deed executed as evidenced in the agreement to sale as well as supplementary agreements entered into between the parties and/or their legal representatives. The question as to whether the suit is within limitation to insist upon specific performance of sale would be a mixed question of fact and law to be decided by the trial Court on merits after receiving the evidence adduced by the parties. The question regarding alleged fraud or suppression of facts or misrepresentation would also be decided by the trial Court on merits after recording entire evidence adduced by the parties.

At this stage, however, it is material to ensure that the property which, according to the plaintiff, they had agreed to purchase ought not to be alienated or sold to third party on the ground that the prices have increased many folds during these years. The question as to what can be consideration or market price in respect of the lands to be sold would again be a question to be decided by the trial Court if at all grant of decree is to be considered. The alternate prayer for damages, the quantum thereof or the extent to which the plaintiff is entitled to claim are all questions to be decided on merits. My attention has been invited to the ruling in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 : (1993) 2 BC 546 : (1993) 6 JT 331 : (1995) 109 PLR 293 : (1993) 4 SCALE 277 : (1994) 1 SCC 1 : (1993) 3 SCR 422 Supp : (1994) 1 UJ 1 . The ruling is cited in order to submit that litigation can be thrown out of the Court at any stage if fraud is established Prima facie. In that case also, the Supreme Court in para no.24 requested the trial Court to hear and dispose of the suit as early as possible and also made it clear that if any third party interest is created while the matter is sub-judice, all shares shall be subject to ultimate decision of the suit and the Supreme Court also directed the parties to cooperate in early hearing and disposal of the suit. The question as to whether specific performance or damages is to be granted would be in judicial discretion of the trial Court depending upon evidence led upon issues and legal position.

My attention is also invited to the ruling in the case of Dalpat Kumar and Another Vs. Prahlad Singh and Others, AIR 1993 SC 276 : (1991) 6 JT 502 : (1991) 2 SCALE 1431 : (1992) 1 SCC 719 : (1991) 3 SCR 472 Supp to submit that the burden is upon the plaintiff who, by evidence by affidavit or otherwise, needs to establish a prima facie case in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the legal right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Prima facie case is a substantial question raised, bona fide contest, which needs investigation and a decision on merits. The Apex Court in Dalpat Kumar''s case was considering the principles in the matter of grant of interim injunction.

Here, in the present case, the decree in the suit is sought for specific performance of contract and permanent injunction to restrain the defendants from transferring the suit property and creating third party interest thereof. Thus, the plaintiff is interested to ensure that the property must not change its hand by way of alienation etc. pending the decision on merits in the suit. The agreement in question executed by Shakuntalabai Janaklal Chaudhari and after her death by or on behalf of legal representatives as supplementary agreement prima facie indicates that the agreement to sell the immovable property was entered into and substantial payments have been made towards consideration as stated in the written agreement. An undertaking/consent letter was also given by Dwarka and Shakuntalabai on 2nd September, 2005. The plaintiff had also issued a public notice on 5.5.2002 regarding their intention to purchase the suit land published in "Daily Navbharat", Nagpur Edition dt.5.5.2012 and notice dt.8.2.2013 was issued to the defendants calling upon them to execute the sale deed in respect of the suit property. Learned Counsel for the respondents/defendants tried to raise the issue that in this agreement there is some description regarding area of land to be sold as also consideration which, according to plaintiff, was balance offered to get the sale executed in the sum of Rs. 5,27,800/-; while it is also claimed that in supplementary agreement also certain sum was advanced. Be that as it may, it is for the trial Court to consider the evidence as to how much consideration has been advanced and what is the balance to be paid by the vendors to the purchasers. At this pre-trial stage, it is suffice to say that there were certain agreements between the parties by which the plaintiff is claiming that they are entitled to get the sale deed executed in respect of some area of the entire suit property described in the plaint which the plaintiff claims that originally two hectares was agreed to be sold, but subsequently by supplementary agreement the vendors had offered to sale only 1.60 hectares of the suit land. Considering that written agreements were executed between the parties, the evidence in the transaction in the nature of agreement to sell the suit property, if defendants/vendors are allowed to create third party interest pending hearing and disposal of the suit, that may create irreversible situation for both the parties relating to the decree that may be passed either for specific performance of contract or for grant of damages. Hence, it would be necessary for this Court to protect the suit property from changing its hands during pendency of the suit and also to direct the trial Court to dispose of the suit expeditiously and as early as possible so that the restriction shall not operate upon the defendants indefinitely to deal with their property depending decision of the suit on merits. For this reason, considering the principles for grant of injunction and necessity thereof, the impugned order is modified in following terms :

The defendants or their legal representatives shall not transfer the suit properties nor shall create any third party interest thereon nor shall create any charge, lien or encumbrance nor shall part with the possession or any portion of the suit property pending hearing and disposal of the suit.

The trial Court is directed to hear Special Civil Suit No. 107 of 2014 expeditiously and as early as possible.

Parties shall cooperate for early disposal of the afore-mentioned Special Suit.