Sri Manjunath Reddy vs M. Jayachandra Prakash

A.N. Venugopala Gowda, J.—With consent of learned Counsel on both sides, the appeal is heard for final disposal. Perused the record.

The Appellant/Plaintiff contends that the Respondent/Defendant executed an agreement of sale in his favour and agreed to sell the property bearing site No. 14, Katha No. 38/2 situated at K.R. Puram Village, Bangalore East Taluk, on 2.1.10 and committed default in the matter of performing the contractual obligations. As a result, he issued a legal notice dated 9.11.10 demanding specific performance which was repudiated by a reply notice dated 19.11.10, on account of which, O.S.8931/10 was filed in the Trial Court to pass judgment and decree of specific performance. In the suit, I.A.2 was filed to restrain the Defendant from alienating the plaint schedule property, in any manner, till the disposal of the suit.

The Respondent/Defendant filed written statement, objections to I.A.2 and I.A.3 to vacate the exparte order of temporary injunction passed or. 21.12.10. The Trial Court considering the rival contentions and after perusal of the record has passed a common order on L As. 2 one 3, whereby, it has held that the Plaintiff has foiled to make out a prima facie case and finding that the Defendant has no intention to alienate the suit property and in the circumstances, there being no need to pass an order of temporary injunction restraining the Defendant from alienating the suit property, I.A.2 was rejected and I.A.3 was allowed, whereby, the exparte order of temporary injunction passed on 21.12.10 was vacated. This appeal is directed against the said order.

Sri M.S. Nagaraja, learned advocate appearing for the Appellant/Plaintiff contended that, the Trial Court is not justified in dismissing I.A.2 and in allowing I.A.3. Learned Counsel submits that the suit being one for specific performance based on an agreement, the prima facie finding and observations made with regard to the suit document are erroneous and even otherwise, a case for trial having been made out, the vacating of exparte order of temporary injunction and dismissal of I.A.2 is arbitrary and illegal. Learned Counsel submits that the findings recorded in the impugned order are perverse and hence, interference in the matter is called for.

Sri K. Krishnappa, learned advocate appearing for the Respondent/Defendant on the other hand, contended that, the agreement is dated 2.1.10, the stamp paper used for drawing of alleged document is dated 16.1.09 and the alleged document has been drawn on an insufficient stamp paper which being inadmissible in evidence, the Trial Court is justified in passing the impugned order. Learned Counsel further submits that the Defendant has denied the execution of the suit document and has maintained that there is forgery of signatures by using the earlier title deeds and in the circumstances, there being no prima facie case for consideration, the Trial Court is justified in passing the impugned order.

The point for consideration is:

Whether the impugned order is perverse and illegal?

Undeniably, the suit document has been drawn on stamp paper of Rs. 100/-. Prime facie, the document is insufficiently stamped. The admissibility of the document being a core question for consideration, in view of the ratio of law in the case of Dvavamma @ Sanna Mukkamma v. Smt. Balamma and Ors. ILR 2010 KAR 3280, the Trial Court is justified in holding that the Plaintiff has failed to make out a prima facie case for consideration. Even in the reply notice dated 19.11.10, there is denial of execution of the agreement and entering into of any agreement. The very stand is maintained in the written statement and in I.A.3. Since there is no admission on the part of the Respondent/Defendant with regard to the entering into of sale transaction with the Plaintiff in respect of the suit property and in the face of the agreement having been drawn on a stamp paper of the value of Rs. 100/- only, which prima facie appears to be insufficiently stamped, no exception can be taken to the view of the Trial Court that the Plaintiff has failed to make out a prima facie case for consideration. Since the first element itself is not satisfied for grant of order of temporary injunction, the question of consideration of other elements i.e., balance of convenience and irreparable loss /injury much less equity does not arise for consideration. In the said view of the matter, the appeal is devoid of merit.

In the result, the appeal stands dismissed. However, it is made clear that any alienation/encumbrance of the suit property by the Respondent/Defendant shall be subject to the doctrine of lis pendens u/s 52 of the Transfer of Property Act and the transaction shall not bind the Plaintiff/ Appellant in case he succeeds in the suit.

The findings/observations made in this judgment or those made in the impugned order herein of the Trial Court, being confined to the consideration of I. As. 2 and 3, shall not influence the Trial Court in deciding the suit. The Trial Court should decide the suit in accordance with law and on its merit.

Ordered accordingly.