P. Shubha and Others vs K.N. Jayaram and Others

A.V. Chandrashekara, J.—Heard the learned counsel for the appellant. Perused the records. The matter is at the stage of admission.

Order passed on I.A. Nos. 2, 3 and 4 in O.S. No. 4954/2012 is called in question by defendants 2 and 3 of the said suit. Respondent No. 1 in both these cases is the sole plaintiff in the said suit. Parties are referred as plaintiff and defendants 1, 2 and 3 as per their ranking given in the trial Court.

Plaintiff has filed a suit for specific performance on the basis of an agreement of sale said to have been executed by the 1st defendant - M.C. Lokesh in his favour and agreeing to sell the entire suit schedule property for a sum of Rs. 3,60,00,000/-. According to the plaintiff, defendant No. 1 is said to have been received a sum of Rs. 1,10,00,000/- on different dates by endorsing the same on the written agreement of sale. Inspite of several demands, the 1st defendant did not come forward to execute the regular sale deed and as such, he was forced to file a suit for specific performance of the contract. Plaintiff also came to know that defendant No. 1 had executed a sale deed in favour of defendants 2 and 3 on 30.06.2012 and therefore, he has sought for further relief of declaration that sale deed is nonest

Defendant No. 1 has filed detailed written statement admitting the execution of the agreement of sale but has denied the averments of readiness and willingness. Subsequent purchases have also filed detailed objections denying the knowledge of the agreement of sale executed by the 1st defendant in favour of the plaintiff and the receipt of partial consideration on different dates. Their case is that they have purchased the property as bona fide purchasers for valuable consideration without the knowledge of the existence of the earlier agreement of sale. With this pleading, they have requested the Court to dismiss the suit.

During the pendency of the suit, plaintiff had chosen to file two applications under Order 39 Rules 1 and 2 of CPC seeking relief of (1) temporary injunction against defendants 2 and 3 from demolishing or altering the schedule property and (2) temporary injunction against defendants 2 and 3 restraining them from alienating the schedule property to any third party. Defendants 2 and 3 had also filed an application under Order 39 Rule 4 of CPC to vacate the ex-parte order of temporary injunction. Clubbing all these applications and the objections filed thereto and after hearing the arguments, learned Judge has confirmed the ex-parte temporary injunction and has consequently dismissed the application filed under Order 39 Rule 4 of CPC. It is this common order which is called in question on various grounds as stated in the appeal memo.

This appellate Court dealing with an appeal filed under Order 43 Rule 1(r) of CPC can interfere with the order of granting injunction or refusing to grant injunction, if the same suffers from absurdity or perversity. Absurdity or perversity can be inferred from non consideration of document/s having a great bearing on the case or misapplication of law into the facts of the case.

Learned counsel for the appellant has relied upon the decision of the Division Bench of Hon''ble High Court of Gauhati in the case of Abdul Mazid Vs. Burhanuddin Ahmed and Others, to contend that the onus is always upon the plaintiff to prove that the subsequent purchasers had no notice of the prior claim and this could be by way of specific denial in the written statement. The relevant observation made by the said Division Bench in paragraph-33 is extracted below:

"After knowing the fact of possession and after making necessary inquiries from the registration office if he makes no further enquiries about any undisclosed types of encumbrance, which do not strike to his mind, he cannot be said to have acted without honesty. Further the onus of proving that the subsequent purchaser had no notice of a prior claim is ordinarily discharged by denial." 8. On the other hand, Division Bench of this Court in the case of Smt. Padmini Raghavan Vs. Mr. H.A. Sonnappa Since dead by his L.Rs. Smt. Bhagyamma and Others, has held that it is well settled that initial burden to show that subsequent purchaser of the suit property covered by earlier suit agreement was a bona fide purchaser for value without notice to the suit agreement squarely rests on the shoulders of such subsequent transferee. Necessary discussion is found in paragraph-64 of the said decision. In the light of an authoritative pronouncement of this Court, the decision of the Hon''ble High Court of Gauhati cannot be made applicable to the facts of the present case.

The wife of 1st defendant representing herself and her minor children had chosen to file a suit for partition and permanent injunction against her husband in respect of the suit schedule property. The said suit was ultimately compromised between the parties and on the very next day after the compromise was entered into between the parties, the suit schedule property came to be sold by the 1st defendant in favour of defendants 2 and 3. This aspect of the matter has been considered at relevant paragraph by the trial Court.

What is argued before this Court by the learned counsel for the appellant is that the trial Court has referred to in its order about the alleged admissions made by defendants 2 and 3 in their affidavits. Even if it is admitted that the same does not amount to admission, the other materials are quite sufficient to hold that the plaintiff has made out existence of a prima fade case, more particularly when the 1st defendant has not denied the execution of the Agreement to Sell in favour of the plaintiff it is not as though the defendants 2 and 3 were unaware of the legal proceedings initiated by the wife and children of 1st defendant. Taking into consideration the totality of circumstances, the learned Judge has specifically come to the conclusion that clear prima facie case is made out and balance of convenience lies in favour of plaintiff and more hardship would be caused to the plaintiff than defendants.

In this view of the matter, this Court does not found any absurdity or perversity in allowing the application by the trial Court. Even if the Appellate Court were to come to a different conclusion from that of the trial Court, the same cannot be substantiated or nullified unless the order suffers from absurdity or perversity.

In this view of the matter, no good grounds are made out to interfere with the well considered order. Accordingly, appeals are liable to be dismissed.

Order

Appeals are dismissed. Notwithstanding dismissal of these appeals, the learned City Civil Judge to expedite the matter as expeditiously as possible by framing appropriate issues at the earliest.

The parties and their respective counsel to cooperate in expediting the suit.

It is made clear that any observations made by the trial Court while disposing of the applications would not influence the learned Judge while deciding the case on merits.

Office is directed to send back the records to the trial Court so as to enable the trial Court to frame issues at the earliest for recording evidence.