Y. Rupesh Raj vs Mohmood Alam Khan

This Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of C.P.C. against the order, dated 20.07.2022, passed in I.A.No.359 of 2022 in O.S.No.70 of 2022 by the learned Principal District Judge, Vikarabad District, dismissing the petition filed by the appellant/plaintiff for grant of ad- interim injunction, restraining the respondent/defendant from alienating the petition scheduled land.

Necessary facts for disposal of this Civil Miscellaneous Appeal are as follows:

The appellant/plaintiff filed a suit for specific performance of agreement of sale dated 18.01.2022 in respect of scheduled land admeasuring Ac.11.08 guntas in Sy.Nos.92/A, 92/E and 92/EE situated at Yenkepally village, Pudur Mandal, Vikarabad District, by directing the respondent/defendant to execute a registered sale deed in respect of the suit scheduled property in favour of the plaintiff by receiving the balance sale consideration amount of Rs.80,00,000/- and to hand over the vacant physical possession of the property and in case of failure the Court to execute a registered sale deed in favour of the plaintiff. Along with the suit, the plaintiff also filed I.A.No.359 of 2022 under Order XXXIX Rules 1 and 2 of C.P.C., seeking ad-interim injunction in his favour, restraining the respondent/defendant from alienating the petition scheduled property till the disposal of the main suit. It is stated in the affidavit that the respondent/defendant is the original owner and possessor of the petition scheduled land; that an agreement of sale dated 18.01.2022 was entered into between them for sale of the said land at the rate of Rs.25,00,000/- per acre for a total sale consideration of Rs.2,80,00,000/- in favour of the plaintiff; that the plaintiff has paid Rs.2,00,00,000/- in cash to the defendant as advance on the date of agreement and that the defendant agreed to execute a registered sale deed in favour of the plaintiff by receiving balance sale consideration of Rs.80,00,000/-. Even though the plaintiff is ready and willing to pay the balance sale consideration, the defendant did not come forward to execute the registered sale deed in favour of the plaintiff.

The respondent/defendant filed counter denying material allegations made in the affidavit, inter alia, contending that he is the absolute owner and possessor of the petition scheduled land of Ac.11.08 guntas of Yenkepally village having purchased the same from M/s Jai Agriculture Farm represented by its proprietor Jaidev Baldev through a registered sale deed in the year 1998 and that out of the said land, Ac.2.00 guntas of land has been sold to one Banolla Shankar through a registered sale deed dated 22.10.2021. It is further contended that he is financially well settled and does not have any financial need in the family to sell his land to the plaintiff. It is further contended that the agreement of sale dated 18.01.2022 filed by the plaintiff is a fabricated one by forging the signature of the defendant and to that effect a private complaint has been filed and the same was referred to Chengomul Police Station for investigation. It is further contended that the defendant did not receive any consideration, more particularly Rs.2,00,00,000/- cash from the plaintiff and the payment of such huge amount in net cash by the plaintiff is highly impossible and that, therefore, prayed to dismiss the petition.

During enquiry, no oral evidence was adduced by both parties, but Exs.P1 to P6 were marked on behalf of the appellant/petitioner/plaintiff and Exs.R1 to R4 were marked on behalf of the respondent/defendant.

After considering the rival contentions and the material available on record, the trial Court dismissed the petition. Aggrieved by the same, the appellant/petitioner/plaintiff has preferred the present Civil Miscellaneous Appeal.

Heard learned Counsel appearing for the appellant/ petitioner/plaintiff, learned Counsel appearing for the respondent/ defendant and perused the case law submitted by both parties as well as the material available on record.

Considering rival contentions and perusing the material available on record, the point for consideration is whether the appellant/petitioner/plaintiff is entitled for grant of ad-interim injunction during pendency of the suit?

Chapter VII, Section 36 of the Specific Relief Act, 1963 provides for grant of preventive relief. Section 37 provides that temporary injunction in a suit shall be regulated by the Code of Civil Procedure. The grant of relief in a suit for specific performance is itself a discretionary remedy. A plaintiff seeking temporary injunction in a suit for specific performance will therefore have to establish a strong prima facie case on basis of undisputed facts. The conduct of the plaintiff will also be a very relevant consideration for purposes of injunction. The discretion at this stage has to be exercised judiciously and not arbitrarily.

It is an admitted fact that the respondent/defendant is the absolute owner and possessor of the petition scheduled land i.e., Ac.11.08 guntas of land having purchased the same from M/s Jai Agriculture Farm represented by its proprietor Jaidev Baidev under a registered sale deed dated 02.09.1998. However, a perusal of Ex.R4-copy of Dharani sale deed, dated 18.10.2021, would show that out of Ac.11.08 guntas of land, the respondent/defendant had sold Ac.2.00 guntas of land to one Banolla Shankar on 22.10.2021 and as such the respondent/defendant is having only Ac.9.08 guntas of land of his own. It is not the case of the appellant/plaintiff either in his affidavit or in the plaint that before entering into the alleged Ex.P1-agreement of sale dated 18.01.2022, he verified the records of Registration Department to ascertain himself about the marketable title of the respondent/defendant in respect of the land of Ac.11.08 guntas. The specific case of the respondent/defendant is that he came to know about Ex.P1 agreement of sale dated 18.01.2022 only after receipt of ad-interim injunction order dated 21.05.2022 passed by the Vacation Civil Judge, Ranga Reddy District and that he never saw the appellant/plaintiff. The contention of the appellant/plaintiff is that out of total consideration of Rs.2,80,00,000/-, he has paid a sum of Rs.2,00,00,000/- in cash to the respondent/defendant as advance on the date of Ex.A1-agreement of sale dated 18.01.2022 and the same was acknowledged by the respondent/defendant. However, a perusal of Ex.P2-Receipt filed by the appellant/plaintiff would show that there was no mention of date of payment and receipt of the alleged amount of Rs.2,00,00,000/-. That apart, Ex.P2/Receipt is silent about the mode of payment of part sale consideration of Rs.2,00,00,000/- by the appellant/plaintiff to the respondent/defendant. Further, in Ex.P1-agreement of sale dated 18.01.2022, there was no reference to execution of a separate receipt vide Ex.P2 by the respondent/defendant in token of receipt of the advance amount of Rs.2,00,00,000/-. However, Ex.R3-statement of account of the respondent/defendant issued by Union Bank of India, Bakaram Branch, Hyderabad, for the period from 01.12.2021 to 31.07.2022 does not reflect the deposit of such huge amount in his account either on 18.01.2022 or any other date covered by the said statement.

That apart, it is the specific contention of the respondent/defendant that since the appellant/plaintiff fabricated Exs.P1 and P2/agreement of sale and receipt respectively by forging his signature, he filed a private complaint against the appellant/plaintiff. A perusal of Exs.R1 and R2-Docket orders dated 17.06.2022 and 18.06.2022 on the file of the Judicial Magistrate of First Class, Parigi, Vikarabad District, would disclose that the respondent/defendant filed a private complaint against the appellant/plaintiff for the offences punishable under Sections 463, 447, 468 and 420 of I.P.C. and the same has been referred to the police, Chengomul Police Station for investigation and report. Further, Ex.P3 is the alleged legal notice dated 27.04.2022 got issued by the appellant/plaintiff to the respondent/defendant demanding specific performance of Ex.P1-agreement of sale dated 18.01.2022. However, the respondent/defendant categorically stated that Ex.P3 was not received by him. The appellant/plaintiff did not file any proof to show that the said notice was served on the respondent/defendant. However, the appellant filed Ex.P4-courier receipt, which is dated 25.04.2022. Thus, the trail Court rightly held that there is absolutely no record to show that Ex.P3 notice was got issued by the appellant either by registered post with acknowledgment due or served on the respondent/defendant and as such the appellant/plaintiff is not entitled for the interim relief as he has approached the Court with unclean hands.

For the aforesaid reasons, we find no perversity, illegality, irregularity or manifest error in the impugned order passed by the trial Court, warranting interference of this Court. Therefore, the appeal sans merit and the same deserves to be dismissed.

Accordingly, the Civil Miscellaneous Appeal is dismissed, confirming the order, dated 20.07.2022, passed in I.A.No.359 of 2022 in O.S.No.70 of 2022 on the file of the Principal District Judge, Vikarabad District. There shall be no order as to costs.

Miscellaneous petitions, if any, pending, shall stand closed.