Jagmohan Mahawar vs Bajan Bai Bairwa

Alok Sharma, J.—The plaintiff-appellant-applicant (hereinafter ''the plaintiff'') is aggrieved of the order dated 30.09.2013, passed by the Additional District Judge No. 7, Jaipur Metropolitan, Jaipur (hereinafter ''the trial court'') dismissing his application under Order 39 Rule 1 & 2 CPC in his suit for specific performance in respect of a purported agreement to sell dated 26.06.2012 with the respondents-defendants-non-applicants (hereinafter ''the defendants'').

Mr. Ashwani Chobisa, appearing for the plaintiff, submitted that the learned trial court has overlooked the first principle in civil law that in respect of immovable property under litigation it should be preserved lest even in the event of the plaintiff succeeding, he only obtains an un-executable decree or otherwise subsequently forced into multiplicity of litigation for the enforcement of such a decree. Counsel submitted that the trial court did not find a prima facie case in favour of the plaintiff in the application under Order 39 Rule 1 & 2 CPC inter alia on count of the consideration under the agreement to sell dated 26.06.2012 passing in cash and also for the reason of the agreement to sell being inadequately stamped. Counsel submitted that in terms of Section 35 of the Rajasthan Stamp Act, 1988, the plaintiff had the option of rectifying the defect and paying the requisite stamp duty along with the statutory penalty. Counsel submitted that the learned trial court also erred in holding that the agreement to sell dated 26.06.2012 was of little probative worth and inadmissible on the ground of it not being unregistered and in coming to the aforesaid conclusion, the learned trial court overlooked the proviso of Section 49 of the Registration Act, 1908. It was prayed that in this view of the matter, this Court in the exercise of its appellate power, set aside the order dated 30.09.2013 and direct that during the pendency of the suit for specific performance, the defendants in the facts of the case maintain status quo with regard to the suit land.

Mr. R.K. Daga, appearing for the defendants submitted that the purported agreement to sell dated 26.06.2012 is palpably forged for more than one reason. He submitted that the defendants came into tenancy of the suit land only on 21.11.2012 and did not even have the authority as on 26.06.2012, when the agreement to sell was purportedly executed by them, to convey the said land. It was further pointed out that even though the suit land is situated in Jaipur, the agreement to sell dated 26.06.2012 was executed in Hindaun, a distance of about 200 KMs away and is suspect more particularly in view of the fact of the vendor being a 86 years old person. Counsel submitted that in terms of Section 114 of the Evidence Act, this Court should at the present stage presume the unlikelihood of the original defendant having travelled 200 Kms to Karauli to enter into the agreement to sell dated 26.06.2012 with regard to his agricultural land situate at Jaipur. Counsel then submitted that the execution of the agreement to sell at Hindaun is further improbable in view of the fact of cash having been allegedly paid as consideration for reason that the original defendant a 86 years old fragile man could not be expected in the normal course to carry a huge amount of Rs. 5,51,000/- all the way from Hindaun to Jaipur compromising the safety not only of the money but his own personal safety too.

Heard. Considered.

Orders under Order 39 Rule 1 & 2 CPC, interlocutory in nature, are discretionary. It is well settled that mere filing of a suit for immovable property does not entail by itself protection of the suit property during the pendency of the suit and grant of a protective interlocutory order. The reason lies in the fact that even though the plaintiff may have right, so does the defendant. It is thus essential for the plaintiff to make out a prima facie case before the trial court on the strength of material of probative worth in support of his pleadings and also establish balance of convenience in his favour while also passing the test of suffering irreparable injury were an interim order not to be passed in his favour. In my considered opinion, the learned trial court has taken an overview of the matter and found that the plaintiff had at the stage of hearing of the application under order 39 rule 1 & 2 CPC not been able to make out a prima facie case as the prime material in support of such a case was lacking. Further to my mind, the improbability of the case as pleaded by the defendants could not be brushed out of the hand at that stage.

Consequently, I would not be inclined to interfere with the order dated 30.09.2013, passed by the trial court. The reason lies also in the fact that the doctrine of lis pendens u/s 52 of the transfer of property Act would be operative safeguarding the interest of the plaintiff for whatever its worth in the event of the suit succeeding. Additionally, I would also require the defendants, were they to alienate or transfer the suit property during the pendency of the plaintiff''s suit, to record in the instrument of conveyance, encumbrance or such like document pertaining to the suit property that the plaintiff''s suit for specific performance was pending and the defendants'' right would abide its outcome. This would be sufficient safeguard for the plaintiff and balance the equities between the parties.

Counsel for the parties at this stage pray that the trial court may be directed to expeditiously dispose of the suit. It is submitted that the written statement to the plaint had already been filed and the matter is at the stage of framing of issues. Counsel submitted that evidence on the main issue in the suit, as to whether that the agreement to sell dated 26.06.2012 was indeed executed by the original defendant would be confined to about a couple of witness on both sides.

In view of submission made, the trial court is expected to dispose of the underlying suit pending before it expeditiously and hopefully within 18 months from the presentation of a certified copy of this order. To facilitate an expeditious disposal, the learned trial court shall adhere to the observations of the Hon''ble Supreme Court on the issue of adjournments in civil cases as stated in the case of Shiv Cotex Vs. Tirgun Auto Plast P. Ltd. and Others,

The appeal is disposed of accordingly. Stay application needs no address in view of the appeal itself being disposed of.