V. Venkatesh and Others vs V. Ramesh and Others

B.S. Patil, J.—This appeal is filed challenging the order dated 09.03.2015 passed in O.S. No. 26001/201 thereby dismissing the application filed by the plaintiffs - appellants herein under Order XXXIX Rules 1 and 2 CPC.

Appellants are the plaintiffs before the Trial Court. They have filed the suit seeking specific performance of the Sale Agreement dated 01.03.2010 entered into by defendant No. 1 in favour of the plaintiffs agreeing to sell the suit schedule property for total sale consideration of Rs. 36 lakhs. The plaint averments disclose that defendant No. 1 received a sum of Rs. 10 lakhs at the time of agreement and agreed to receive the balance consideration later.

It is necessary to notice that defendant No. 1 sold the property to defendant No. 2 on 30.08.2010 and defendant No. 2 in turn sold it to defendants 3 and 4 on 03.02.2011 and the suit came to be instituted subsequently on 13.06.2011 only against defendant No. 1, the original owner of the property. Defendants 2 to 4 have been subsequently impleaded by the plaintiff.

An application was filed under Order XXXIX Rules 1 and 2 CPC by the plaintiffs seeking temporary injunction. Defendants 3 and 4 resisted the suit by filing objections to the I.A. and also the written statement. They have taken up a plea that the suit filed was frivolous and vexatious and the assertion made by the plaintiffs regarding execution of the agreement by defendant No. 1 to sell the property in favour of the plaintiffs was false and that plaintiffs have approached the Court by fabricating and creating false documents.

The Trial Court, having examined the respective pleadings and the documents on record, has found that no prima facie case was made out by the plaintiffs for grant of temporary injunction. It has taken note of the fact that defendant No. 1 having entered appearance had filed written statement stating that he had not entered into an agreement of sale with plaintiffs and the plaintiffs by fabricating and creating false documents had filed the suit. It has also taken note of the fact that defendant No. 2 purchased the suit property from defendant No. 1 through a registered Sale Deed dated 30.08.2010. Thereafter, khatha in respect of suit property was made over in the name of defendant No. 2. Subsequently, defendants 3 and 4 purchased the suit property from defendant No. 2 under registered Sale Deed dated 03.02.2011 and it is only thereafter the suit in question was instituted on 13.06.2011. The Trial Court has also perused the signatures on the agreement of sale and the signatures of the 1st defendant on the written statement and has recorded a prima facie finding that there was no similarity between the two signatures. More importantly, the Trial Court has held that defendant No. 2 had issued a public notice in the local newspaper ''THE HINDU'' and ''UDAYA VANI'' notifying the intention of purchasing the suit property and calling for objections, if any, from the interested persons. Admittedly, plaintiffs did not file any objections at that time. The court below has also taken note of the fact that photographs produced disclosed that already construction had been put up on the suit premises and therefore, at that stage, if temporary injunction were to be granted in terms prayed for, it would cause irreparable injury, loss and prejudice to the defendants.

These prima facie findings recorded based on the documents and pleadings cannot be termed as illegal or unsustainable. Grant or rejection of injunction depends upon the prima facie case made out by the plaintiffs, balance of convenience and irreparable injury that they may be subjected to during the pendency of the suit. None of these ingredients are satisfied by the plaintiffs in the instant case and therefore, the trial Court has rightly rejected the application.

Learned counsel for the appellants, no doubt, submits that if the defendants alienate the property during the pendency of the suit, it will cause serious prejudice and hardship to the plaintiffs.

It is needless to observe that if any such sale is made by the defendants, it will be subject to the provisions contained under Section 52 of Transfer of Property Act and therefore, having regard to the findings recorded by the trial Court, this is not a case for grant of temporary injunction as prayed for. The judgment on which learned counsel for the appellants has placed reliance in the case of Sri. P.S.G. Krishnan Vs. Smt. Jyothi Narayan Das and Others, (2001) 1 KCCR 189 has no application to the facts of the present case as in the instant case the Court below has recorded a finding that prima facie was not made out by the plaintiffs. These findings are based on the respective pleadings and the documents on record. I have no reason to differ from the findings recorded by the Trial Court.

Hence, the appeal being devoid of merits is dismissed. However, as the suit is of the year 2010, the Court below is directed to dispose of the suit expeditiously.