Sri M Ravi Vs Smt. S. Parvathamma

OF CERTIORARI OR SUCH OTHER APPROPRIATE WRITS DIRECTING TO SET ASIDE THE ORDER DATED 30.06.2025 PASSED IN I.A.NO.1 UNDER ORDER 39 RULE 1 AND 2 OF CPC IN O.S.NO.297/2025 BY THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AT MALUR AT ANNEXUREA IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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Heard learned counsel for the petitioner.

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This court is not inclined to issue notice to the

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respondents/ defendants.

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The trial Court had ordered issuance of emergent notice on IA No.1 and IA.No.2 and summons to all the defendants. The notice to the respondents/ defendants has not been served.

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The petitioner is none other than the plaintiff.

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The suit has been filed by the plaintiff for specific performance directing the defendants to allow the plaintiff

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to carry out and complete the development work in the

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suit schedule property in terms of joint development agreement dated 21.12.2023 in order to cancel the exchange deed dated 02.02.2024 registered on 07.02.2024, registered as Document No. MLR-1-102622023-2024, in Book-1, registered in the office of SubRegistrar, Malur only with respect to the suit schedule property; and for a direction to the defendents to deliver vacant possession of suit schedule property to the plaintiff to carry out complete development work in suit schedule property in terms of joint development agreement dated 21.12.2023 and for other consequential reliefs.

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It is the contention of learned counsel for the petitioner/plaintiff that along with the plaint, he has filed an application IA.No.1 under Order 39 Rule 1 and Rule 2 read with Section 151 of CPC for issuance an order of temporary injunction restraining the respondents/ defendants their agents, representatives etc. from

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alienating and encumbering the suit schedule property or

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any portion thereof in any manner whatsoever.

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The trial Court, instead of proceeding to pass orders on the ad interim application filed for not alienating the suit properties as sought for in the IA No. 1 under Order 39 Rule 1 and 2 read with Section 151 of CPC has issued emergent notice to the defendants which is the subject matter before this Court. In view of the fact that the trial Court has not passed any order and merely issued a emergent notice, this petition is entertained taking into consideration the jurisdiction under Article 227 of the Constitution of India.

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This Court also is of the opinion that the suit is filed for specific performance of the joint agreement dated 21.12.2023 and to cancel the exchange deed dated 02.02.2024 and for delivering vacant possession of the property. The petitioner has produced the document of joint development agreement dated 21.12.2023.

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The joint development agreement is produced at Annexure H. The petitioner since having produced a joint development agreement under Annexure-H, apparently it appears there is an agreement and there is a transaction of payment of Rs.50,00,000/- which has been received by the respondents/defendants. Therefore, the petitioner /plaintiff has made out a prima facie case to show that there is an agreement of joint development between the petitioner and the respondents along with respondent No.8.

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Under the circumstances, the prayer made in the application under Order 39 Rule 1 and 2 read with Section 151 of CPC is for a direction to the respondents/defendants to not alienate or encumber the suit schedule property or any portion thereon during the pendency of the suit. When an application is filed under Order 39 Rule 1 and 2 read with Section 151 of CPC, it becomes the obligation and duty of the Court dealing with the said application to see the three essential ingredients

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to consider the application, namely prima facie case, balance of convenience and the hardship that would be caused to the aggrieved party if such order is not granted at the initial stage of prior to issuance of notice.

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It is needless to mention that while passing any orders on the application under Order 39 Rule 1 and 2 read with Section 151 of CPC, it is the primary duty of the Court to see that the property in question and the subject matter of the suit is protected, preserved and no party is put to inconvenience or hardship as the suit is yet to be decided and whether if the injunction is so not granted, the same could be compensated by way of costs.

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In the present case on hand, there is prima facie joint development agreement between the petitioner and the respondents. There is monetary consideration exchanged to an extent of Rs.50,00,000/- by the petitioner to the respondent No.8; again who has transferred money to respondent Nos. 1 to 7. Under the circumstances, it becomes apparently necessary for the

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Court to preserve the status and nature of the property to

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avoid any multiplicity of proceedings at this initial stage. No doubt if the Court later on comes to the conclusion after the appearance of the respondents/defendants and their filing of the objections to the application, the reasons otherwise to vacate the order, the same could be vacated upon hearing both the parties. Under the circumstances, the trial Court having not passed the interim order, this Court upon perusal of the documents placed is of the opinion that the petitioner has made out a prima facie case, balance of convenience sticks in his favour. So also much hardship could be caused to the petitioner if an order is not granted at this stage.

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The Court is of the opinion that this petition could be disposed of by passing this order ad interim exparte. The matter could be decided by the trial Court upon the appearance of the defendants and objections if any filed by them and by hearing the application on merits and consider to pass the orders on IA No. 1 upon its merits

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