Sri H.R. Lingaswamy vs Sri Seenappa

A.N. Venugopala Gowda, J.—Respondent has filed O.S.284/07 against the Petitioner in the Court of Civil Judge (Jr. Dn.)/ Shimoga, in respect of the suit property for the relief of permanent injunction i.e., to restrain the Defendant from alienating the suit property in favour of any third person. The Petitioner who is the Defendant in the suit, has filed written statement. Along with the suit, I.A.2 was filed seeking an order of temporary injunction from alienating the suit property in favour of any third person. Though statement of objections was filed to the application, the Trial Court finding merit in I.A.2, allowed the same and the Petitioner was restrained from alienating the suit property in any manner till disposal of the suit. The appeal filed by the Petitioner questioning the said order has been unsuccessful. Hence, the Defendant has filed this writ petition questioning the order passed by the Trial Court on I.A.2 and its affirmation by the appellate Court.

The case of the Petitioner is that, the Respondent, his wife and children have executed an agreement of sale and a general power of attorney for sale and development of the suit property by receiving consideration amount of Rs. 5,80,000/- and the possession was also handed over to him by virtue of the agreement of sale dated 11.8.06. The unilateral cancellation of the power of attorney, which was executed upon receipt of consideration amount, is illegal and the suit for relief of bare injunction is not maintainable.

Indisputebly, the suit property belongs to the Respondent and his family members. The claim of the Petitioner to the suit property is based on an agreement of sale dated 11.8.06 and also a power of attorney. Whether the unilateral cancellation of the power of attorney, executed for consideration, is permissible or not has to be considered after trial.

Since the two Courts below have concurrently found that the Plaintiff has made out prima facie case and the balance of convenience is in his favour and that he would be put to irreparable loss and injury if an order of temporary injunction restraining the Defendant from alienating the suit property is not passed, there being no procedural impropriety, to avoid multiplicity of proceedings and delay in disposal of the suit, I do not find it expedient to interfere with the impugned order and the judgment respectively of the Courts below. However, the delay in disposal of the suit is likely to cause hardship to the parties.

In the circumstances, I pass the following:

ORDER

The writ petition stands dismissed.

The Trial Court is directed to decide the suit as early as practicable and at any event, before 23/4/11. The Plaintiff shall adduce and complete his side of evidence within 6 weeks from the date a copy of this order is placed on record of the Trial Court by the Petitioner. The Petitioner shall adduce and complete his side of evidence within 6 weeks from the date the Plaintiff''s side of evidence is closed. The Trial Court to decide the suit as early as practicable and at any event, within the period indicated supra.

Needless to observe that the Trial Court shall decide the suit based on the evidence that may be brought on record by the parties, uninfluenced by the findings in the impugned order and the judgment.