Sri S v Ganesh Vs Sri B Ramachandrappa

…RESPONDENT (RESPONDENT IS SERVED) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,1908 AGAINST THE ORDER DATED 24.02.2021 PASSED ON I.A. NO.I IN O.S.NO. 415/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, DODDABALLAPUR, ALLOWING I.A. NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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HC-KAR

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ORAL JUDGMENT

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The appeal is filed by the appellant/defendant challenging the order passed on I.A.No.1 filed under Order XXXIX Rule 1 and 2 of CPC in O.S. No.415/2020 dated 24.02.2021 by the Court of the Senior Civil Judge & JMFC, Doddaballapur, whereby the trial court has granted an order of temporary injunction against the defendant.

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For the sake of convenience, the parties in this appeal are referred to as they are arrayed in the suit.

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It is the case made out by the plaintiff that the defendant is the owner of the suit schedule property and plaintiff has entered into an agreement of sale dated 11.07.2013 for total sale consideration of an amount of Rs.20,00,000/- and also executed General Power of Attorney in favour of the plaintiff. Upon allegation that the defendant has not come forward to execute the registered sale deed. Therefore, the plaintiff has filed suit for specific performance of contract and obtained an ad-interim

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HC-KAR

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temporary injunction against the defendant from alienating or encumbering the suit property or creating any charge of third party interest over the suit property.

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Being aggrieved by this order, the defendant

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has preferred the present appeal.

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Though the respondent/plaintiff is served with

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the notice, he is remained absent.

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Learned counsel for the defendant submitted

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that the agreement of sale is executed on 11.07.2013, but the suit is filed in the year 2020. Therefore, the suit is barred by limitation. Further, submitted that the plaintiff has not come forward to get registered sale deed. Therefore, the defendant has issued legal notice and thereafter, the plaintiff has filed the suit. Also, it is submitted that the defendant has revoked General Power of Attorney executed in favour of the plaintiff. Further, it is submitted that the defendant has reimbursed the advance amount of Rs.2,00,000/- to the plaintiff. Therefore, it is

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HC-KAR

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submitted that there is no valid subsistence of agreement of sale, but without considering all these materials, the trial Court has granted an order of temporary injunction. Hence, prays to allow the appeal by setting aside the order passed by the trial Court.

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Heard the arguments of learned counsel for the appellant/defendant and perused the materials furnished in the appeal.

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The following points arises for consideration of

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this Court are:

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(i) Whether, under the facts and circumstances of the case, the plaintiff makes out prima facie case on the basis of the materials produced before the trial court?

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(ii) Whether, under the facts and circumstances of the case, the plaintiff make out case of balance of convenience on the basis of the materials produced before the trial court so as to grant an order of temporary injunction?

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(iii) Whether, under the facts and circumstances of the case, if an order of temporary injunction is not granted then plaintiff would suffer any irreparable loss or injury?

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The suit is filed for specific performance of contract. Admittedly, the defendant is owner of the suit schedule land. The agreement of sale was executed on 11.07.2013 and the suit is filed on 10.11.2020 after seven years from the date of execution of agreement of sale. Hence, prima facie how the suit is maintainable by virtue of law of limitation is question to be considered in the suit which do not constitute prima facie case in favour of the plaintiff so as to grant an order of temporary injunction. In the written statement, the defendant has taken pleading that the defendant has revoked General Power of Attorney executed in favour of the plaintiff and also has reimbursed an amount of Rs.2,00,000/- to the plaintiff. Therefore, this also constitutes in proving that the plaintiff has not made out prima facie case so as to grant an order of temporary injunction. By virtue of mere agreement of sale, the

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HC-KAR

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plaintiff cannot take advantage over the property when the defendant is admittedly is true owner. Further, question of limitation is also coming into play in deciding the suit. When the defendant has raised the defense that the suit is barred by limitation is also a factor to be considered for exercising the equitable relief of temporary injunction. Learned counsel places reliance on the judgment of the Hon'ble Apex Court in the case of Ambalal Sarabhai Enterprise Limited vs. KS Infraspace LLP Limited and another¹ . He relied on paragraph 19 of the judgment, which is held as under:

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19. In a matter concerning grant of injunction, apart from the existence of a prima facie case, balance of convenience, irreparable injury, the conduct of the party seeking the equitable relief of injunction is also very essential to be considered as observed in Motilal Jain [Motilal Jain v. Ramdasi Devi, (2000) 6 SCC 420] holding as follows : (SCC p. 424, para 6)

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“6. The first ground which the High Court [Ramdasi Devi v. Motilal Jain, 1990 SCC OnLine Gau 120 : (1991) 2 Gau LR 195] took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are

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1 (2020)5 SCC 410

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7 -

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HC-KAR

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relevant in a case of specific performance of contract for sale of immovable property:

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(i) delay running beyond the period prescribed under the Limitation Act;

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(ii) delay in cases where though the suit is within the period of limitation, yet:

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(a) due to delay the third parties have acquired rights in the subject-matter of the suit;

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(b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief.”

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Therefore, all these constitute the plaintiff do

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not have prima facie and balance of convenience and thus

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the order of temporary injunction against the defendant is

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causing injury and loss to the defendant. Therefore, for all these reasons, the answer to point Nos.1 to 3 in the negative . Therefore, the plaintiff is not entitled for equitable relief of temporary injunction. Therefore, the order passed is liable to be set aside. Accordingly, I proceed to pass the following:

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ORDER

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(i) The Appeal is allowed .

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HC-KAR

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(ii) The order dated 24.02.2021 passed on I.A.No.1 filed under Order XXXIX Rule 1 and 2 of CPC in O.S. No.415/2020, by the Court of the Senior Civil Judge & JMFC, Doddaballapur, is hereby set aside .

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(iii) Pending IAs., if any, shall stand closed.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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KA List No.: 1 Sl No.: 36 CT: BHK

Sri S v. Ganesh v Sri B Ramachandrappa

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Sri S v. Ganesh v Sri B Ramachandrappa

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