Ishwar Prasad Jalan vs Madan Lal Agarwal

Heard Mr. S. R. Gogoi, learned counsel appearing for the appellant. Also heard Mr. G. P. Bhowmik, learned senior counsel assisted by Ms. K.

Kalita, learned counsel appearing for the respondent No. 1 as well as Mr. B. Dutta, learned counsel assisted by Mr. D. Tumung, learned counsel

appearing for the respondents No. 2 and 3.

With the consent of all sides, this appeal under Order XLIII Rule 1(r) CPC, has beentaken up for hearing along with the connected I.A.(C)

60/2018.

The appeal is directed against the impugned order dated 16.11.2017 passed by thelearned Civil Judge, Tinsukia in Misc.(J) Case No. 44/2017 in

Title Suit No. 24/2017. By the impugned order, the learned trial Court had refused the prayer for granting ad-interiminjunction.

The appellant is the plaintiff in the said suit. It is projected that by an agreement forsale dated 06.03.2016, the respondent No. 1 had agreed to sell a

plot of land measuring 13.13 lechas along with the structures standing thereon to the appellant at a total consideration of Rs.10,00,000/- (Rupees Ten

lakh only), out of which a sum of Rs.5,00,000/(Rupees Five lakh only) was paid as advance. It is projected that while the appellant was ready and

willing to perform his part of the contract, the respondent No. 1 dilly-dallied the execution of the sale deed and in the meanwhile, the appellant had

come to know that by virtue of a sale deed bearing Registered Deed No. 1712 dated 19.09.2016/20.06.2016, the respondent No. 1 had sold the suit

land to the respondents No. 2 and 3, thereby frustrating the agreement for sale dated 06.03.2016. Therefore, for the purpose of specific performance

of contract, the appellant had filed Title Suit No. 24/2017, wherein, amongst others, prayer was made that the sale deed by the respondent No. 1

favouring the respondents No. 2 and 3 to be void and not binding along with the prayer for permanent injunction, etc. In connection with the said

suit, the appellant had filed Misc.(J) No. 44/2017 under the provisions of Order XXXIX Rules 1 and 2 read with Section 151 CPC, praying for ad-

interim-injunction. The respondents herein had contested the said application and the learned trial Court, by the impugned order dated 16.11.2017,

inter-alia, had held that the part of the sale consideration amount having been paid on 29.10.2015, and in view of the denial by the respondent No. 1 of

entering into the agreement dated 06.03.2016, as well as in view of the fact that the sale deed was executed on 19.09.2016 and the name of the

respondents No. 2 and 3 were entered in the record of rights on 19.12.2016, it was held that there was no prima-facie case for trial. In the

absence of prima-facie case, it was held that the balance of convenience did not lie in favour of injunction and therefore, it was held that there would

no question of any irreparable loss of injury if injunction is not granted.

Assailing the order impugned herein, the learned counsel for the appellant hassubmitted that on 13.05.2017, the appellant had issued a notice for

specific performance of the contract and thereafter on 05.08.2017, the appellant had filed a complaint case before the Court of learned Chief Judicial

Magistrate, Tinsukia, which was registered as C.R. Case No. 65/2017, alleging commission of offence under Section 420/120(B)/34 IPC against the

respondent No. 1 and his owner. By referring to the statement of the appellants witness No.2, namely, Sri Ram Bali Rai, an attesting witness to the

agreement dated 06.03.2016, it is projected that the said witness had deposed before the learned Court of Judicial Magistrate, First Class, Tinsukia

about the said agreement dated 06.03.2016 as well as regarding payment of Rs.5,00,000/- (Rupees Five lakh only) by the appellant to the

respondent No. 1 against the sale consideration of Rs.10,00,000/- (Rupees Ten lakh only). By referring to the same, it is submitted that as there is

enough evidence to show that respondent No. 1 had entered into the agreement dated 06.03.2016 and that as the suit land was sold on the basis of a

verbal agreement for sale in favour of the respondents No. 2 and 3, this was a case where the agreement between the appellant and the respondent

No. 1 was required to be specifically enforced. It is submitted that the learned trial Court had erred in arriving at a finding that there is no prima-facie

case in favour of the appellant. It is also submitted that by giving such a finding, the learned trial Court had pre-judged the issues raised in the suit by

holding that the sale deed dated 19.09.2016, challenged in the suit, was legal. It is prayed that the impugned order be interfered with by granting ad-

interim-injunction in terms of prayer made in the connected I.A. and to allow the appeal. In support of his submissions, the learned counsel for the

appellant has placed reliance on the case of Julien Educational Trust Vs. Sourendra Kumar Roy and Ors., (2010) 1 SCC 379Â to stress that the

extent of concluded contract by way of the sale deed impugned in the suit is a matter of evidence and can only be gone into during the trial and if in

the meanwhile, the suit land is allowed to be commercially exploited, the object of the suit will be rendered meaningless. Therefore, the learned

counsel for the appellant has prayed for ad-interim-injunction in terms of the prayer made.

The learned senior counsel for the respondent No. 1 has referred to the stand taken bythe respondent No. 1 in the written statement, by which he

had denied the execution of the alleged agreement for sale dated 06.03.2016 by submitting that the stand of the respondent No. 1 was that the said

agreement was forged. He further has submitted that that much prior to the alleged agreement dated 06.03.2016, the respondent No. 1 had

received a sum of Rs.3,00,000/- (Rupees Three lakh only)Â by way of an account payee cheque from the respondents No. 2 and 3 on 29.10.2015,

which is duly reflected in the bank statement produced before the learned trial Court.

The learned Counsel for the respondents No. 2 and 3 while agreeing to thesubmissions made by the learned senior counsel for the respondent No.

1, has submitted that balance payment of Rs.8,00,000/- (Rupees Eight lakh only) was paid by two cheques dated 12.09.2016 of Rs.4,00,000/-

(Rupees Four lakh only) each, which was cleared and honoured before the sale deed was executed on 19.09.2016.

By referring to the various provisions of the Specific Relief Act, 1963, it is submittedthat the challenge made to the sale deed dated 19.09.2016

executed in favour of the respondents No. 2 and 3 was not sustainable as the respondents No. 2 and 3 were the bonafide purchasers of the suit land

for value and without any notice of the said agreement dated 06.03.2016. Moreover, it is submitted that assuming that there was any valid agreement

for sale deed dated 06.03.2016, having paid a sum of Rs.3,00,000/- (Rupees Three lakh only) on 29.10.2015 as a part of sale consideration of

Rs.11,00,000/- (Rupees Eleven lakh only), the respondents No. 2 and 3 had been able to demonstrate that their oral agreement with the respondent

No. 1 was at prior point of time and, as such, the agreement dated 06.03.2016, which was in subsequent point of time cannot be sustained. In support

of his contention, the learned counsel for the respondents No. 2 and 3 has placed reliance on the case of Ram Niwas (Dead) through LRs Vs.

Bano (Smt.) and Ors., (2000) 6 SCC 685.

Having considered the submissions made by the learned counsel/senior counsel for theparties, it is seen that the learned trial Court had relied upon

the stand of the respondent No. 1, whereby the learned trial Court had accepted the case projected by the respondent No. 1 to the effect that he had

denied the execution of the said agreement and also denied receipt of the advance consideration of Rs.5,00,000/- (Rupees Five lakh only). Moreover,

the learned trial Court had also considered that the payment of entire sale consideration of Rs.11,00,000/- (Rupees Eleven lakh only) was made prior

to the execution of the sale deed and delivery of the suit property to the respondents No. 2 and 3 on 19.09.2016, registered on 20.09.2016.

The learned trial Court had also accepted that the agreement between the respondentNo. 1 on one part and the respondents No. 2 and 3 on the

other part was entered into on 29.10.2015. The learned trial Court came to a finding that as the sale deed was executed on 06.03.2016 and the suit

land was muted in the name of the respondents No. 2 and 3 on the strength of purchase and possession. Accordingly, it was held that the genuinity of

the agreement dated 06.03.2016 can only be decided at the end of the trial and therefore, held that there was no prima-facie case for trial. In this

regard, this Court finds that the view taken by the learned trial Court was of a plausible view and as such, the learned trial Court having exercised its

discretion, had arrived at a finding which is quite plausible, as such, this appellate Court would be slow in substituting its view over the discretion

exercised by the learned trial Court.

Having seen that the respondents No. 2 and 3 are stated to be in possession of thesuit property, on the strength of the registered sale deed, this

Court finds that if any adinterim injunction is granted, such injunction would be against the real owner of the suit property, which will definitely affect

the real owner of the property. It is seen from the case of Julien Educational Trust (supra) that no final sale deed was executed in favour of the party

therein and under the said circumstances, the Hon’ble Apex Court had granted ad-interim injunction. This Court is bound by the decision of the

Hon’ble Apex Court in the case of Wander Ltd. and Anr. Vs. Antox India Pvt. Ltd. (1990) Supp (1) SCC 727, wherein it has been held that once

the Court on first instance exercises its discretion except where the discretion has been shown to be exercised arbitrarily or capriciously or perversely,

it is not open to the appellate Court to reassess the materials and seek to reach a contrary conclusion different from the one reached by the learned

trial Court if the one reached by the trial Court was reasonable and the discretion was exercised in a judicial manner.

Therefore, this Court is not inclined to interfere with the impugned judgment and orderdated 16.11.2017 passed by the learned Civil Judge, Tinsukia

in Misc.(J) Case No. 44/2017 in Title Suit No. 24/2017, having not found that the exercise of discretion of the learned Court below was vitiated by any

arbitrariness or vitiated by capricious or perversity, therefore, this appeal fails.

At this stage, the learned counsel for the appellant has stated that the suit is at thestage of premptory hearing of ‘SBPH’ and the

proceedings is fixed on 01.08.2018 and he prays that the learned trial Court be directed to dispose of the suit in a time bound manner. In this

connection, having seen that the dockets of all the Courts are filled up of innumerable pending cases, while this Court is not inclined to give a definite

time limit to the learned trial Court to dispose of a suit in a time bound manner without understanding the constraints under which they are functioning,

this Court can only request the learned trial Court to make an attempt for an early disposal of the suit.

The parties are left to bear their own cost.

In view of above, final disposal of the appeal, no further orders are called for inconnection with I.A. (Civil) 60/2018 and the said I.A. stands

closed.