M. Venkateshulu and Others vs Rakesh and Others

B.S. Patil, J—This appeal is filed challenging the order dated 20.4.2015 passed in O.S. No. 747/2015 allowing the application filed by the plaintiff under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, 1908 thereby restraining defendants 5 and 6 from alienating or changing the nature of the suit schedule property in any manner till the disposal of the suit.

Appellants are defendants 5 and 6 before the Court below. Respondent No. 1 is the plaintiff. Respondent Nos. 2 to 5 are defendant Nos. 1 to 4 in the suit. Respondent No. 1 herein has filed the suit seeking a direction to defendants 1 to 6 to execute the sale deed in favour of the plaintiff in respect of the suit schedule property and to put him in possession of the same. Declaration is also sought to the effect that sale deed dated 6.11.2014 executed by defendant Nos. 1 to 4 in favour of the defendants 5 and 6 was not binding on the plaintiff.

On the application filed under Order XXXIX Rule 1 and 2 of CPC, Court below has granted the order of temporary injunction considering the fact that as per the plaint averments, defendants 1 to 4 had executed the agreement of sale in favour of the plaintiff on 31.12.2010 and a sum of Rs. 20 lakhs had been paid to defendants 1 to 4 in cash. Though the first defendant had taken specific contention that no such agreement had been executed, and although defendants 5 and 6 had appeared and filed their objection and written statement contending that they were bonafide purchasers of the suit schedule property for valuable consideration, without knowledge of any such agreement, the court below has held that question whether defendants 5 and 6 were bonafide purchasers of the suit schedule property without knowledge of the agreement or whether there was any such agreement to sell entered into between the plaintiff and defendants 1 to 4 were matters to be examined at the stage of trial; based on the agreement to sell, the plaintiff had made out a prima facie case in his favour and balance of convenience was also in his favour as he had paid Rs. 30 lakhs in all to defendants 1 to 4, hence it was a case for grant of temporary injunction. On this reasoning, the Trial Court has granted an order of temporary injunction.

I have heard the learned counsel for both the parties and perused the entire materials on record. The point that arises for consideration in this appeal is -

"Whether the findings recorded by the Court below suffer from illegality or perversity warranting interference in exercise of the appellate power."

The plaint averments disclose that one P.S. Krishna Murthy was the owner of the suit schedule property. He died leaving behind his wife Smt. K. Mythili and 4 children-defendant Nos. 1 to 4. It is urged that during the life time of Smt. K. Mythili in a meeting held on 8.10.2006, Smt. Mythili and her children agreed to sell the suit property to the plaintiff for a total sale consideration of Rs. 3.60 Crores; On 8.10.2006, an agreement was executed in favour of the plaintiff by defendants 1 to 4 and their mother Smt. Mythili; the said agreement was written on a white sheet paper; in the said agreement, a sum of Rs. 20 lakhs was received out of which Rs. 5 lakhs was paid in cash and for the remaining Rs. 15 lakhs, two cheques were issued, one for Rs. 5 lakhs, another for Rs. 10 lakhs; one cheque issued for Rs. 5 lakhs was honoured; When defendants 1 to 4 and their mother Mythili did not execute the sale deed, plaintiff instituted a suit in O.S. No. 9131/2007 seeking specific performance of the agreement dated 8.10.2006; during the pendency of the suit, Smt. Mythili died on 13.2.2008; thereafter defendants 1 to 4 approached the plaintiff and requested for settlement out of Court; they had assured the plaintiff that they would execute necessary sale deed in favour of the plaintiff and for that purpose they would require two years'' time; but they failed to execute such sale deed. Accordingly, he withdrew the suit as settled out of Court on 23.8.2010; thereafter, defendants 1 to 4 executed the present agreement to sell on 31.12.2010 in favour of the plaintiff by receiving a further sum of Rs. 20 lakhs by way of cash; though they agreed to execute the sale deed within two years'' from the date of agreement, they went on postponing the same and clandestinely on 6.11.2014 the defendants 1 to 4 executed sale deed in favour of defendants 5 and 6 in respect of the same property. On the basis of these averments, the plaintiff sought decree for the specific performance of the agreement to sell.

Defendants 5 and 6 have filed separate written statement. So also defendants 1 to 3. Defendants 5 and 6 have denied the plaint averments and have contended that they were bonafide purchasers for valuable consideration of the suit schedule property after carefully verifying the title and possession of defendants 1 to 4; they had indeed issued paper publication on 14.10.2014 intimating the general public of their intention to purchase and also calling for any objection and that they purchased the property only after satisfying that there was no objection from any third party, by paying valuable consideration of Rs. 3.60 Crores.

The other defendants, that is defendants 1 to 3 have denied the right claimed by the plaintiff. They have specifically denied the alleged agreement said to have been executed on 31.12.2010 and the receipt of sale consideration in a sum of Rs. 20 lakhs. They have also denied the execution of any general power of attorney in favour of defendant No. 1 authorizing her to sell the property in favour of the plaintiff by executing the agreement. Defendant No. 1 has also filed separate written statement asserting that no such power of attorney was executed in her favour by defendants 2 to 4.

The power of attorney has not been produced before the Court and it is not part of the records. Defendant No. 1 has, no doubt, admitted in her written statement that her mother had signed the plain paper agreement and was also made to sign as attester to the agreement executed on 8.10.2006. She has stated that plaintiff and his father did not want to have any formal agreement and they wanted to conclude the sale transaction within two months from 8.10.2006 and it was because of the request of the plaintiff and his father, that defendant No. 2 received Rs. 5 lakhs in cash and another sum of Rs. 5 lakhs by cheque. It was denied that any amount was paid to the defendant No. 4, much less in a sum of Rs. 10 lakhs by way of cheque. Defendant No. 1 has denied the execution or signing the receipt dated 9.10.2006 and has alleged that the plaintiff has manipulated the said receipt.

On the basis of the respective contentions urged it emerges that the first agreement set up by the plaintiff is dated 8.10.2006. Suit was filed seeking specific performance based on the said agreement which was executed only by the mother of defendants 1 to 4. In the said suit, defendants were not served. The suit was withdrawn by the plaintiff on 23.8.2010.

The second agreement, as contended by the plaintiff was executed on 31.12.2010. It is specifically contended that defendant No. 1 acted as power of attorney holder of defendants 2 to 4. The signature to this agreement and execution of this agreement are denied by the first defendant and as also other defendants. The power of attorney stated to have been executed by defendants 2 to 4 in favour of defendant No. 1 is not produced by the plaintiff. Under the said agreement a sum of Rs. 20 lakhs is said to have been paid by cash. The receipt of this amount has been denied and there is no prima facie material placed before the Court to come to the conclusion that the said amount was paid.

The Trial Court proceeds to hold that prima facie case was made out only on the basis of the assertions made in the plaint without examining whether the documents produced and the plea taken by the plaintiff was probablised.

The suit for specific performance has been filed after 5 years from the date of the agreement dated 31.12.2010. The plaintiff keeps quite until defendants 5 and 6 purchased the property on 6.11.2014. Before purchasing the property, defendants 5 and 6 have given public notice. If at all plaintiff was entitled to assert his right based on the agreement, he could have immediately raised objection to the sale of the property in favour of the defendants 5 and 6. He has maintained convenient silence. None of these aspects are considered by the Court.

Conduct of the plaintiff for a period of 9 years from the date of agreement, his silence even after defendants 5 and 6 notified their intentions by publishing it in the newspaper to purchase the property make it clear that no prima facie case had been made out for granting the order of temporary injunction.

Grant of order of temporary injunction entails serious consequences. The Court has to carefully consider the pleadings and scrutinize the documents. Though a mini trial is not contemplated, the satisfaction of the Court regarding the balance of convenience on the part of the plaintiff and the irreparable injury that may result, has to be taken into consideration. In the instant case, Trial Court has not applied its mind to these essential requisites. In my considered view, the plaintiff has not made out any prima facie case.

Hence, the order under challenge has to be set aside. Accordingly, impugned order is set aside. Appeal is allowed. The application filed under order 39 rules 2 and 3 is dismissed.