Dismissed

Dhananjay Kumar and Anr. v. Parmanand Das @ Parmanand Sindhi

Patna HC15 Jul 2013MA/539/2012

Case brief

AI extract

What is this about?

The High Court disposed of this miscellaneous appeal which questioned the trial court's rejection of an injunction application in a specific performance suit. Finding no jurisdictional error or legal infirmity, the Court held that viewing the disposition of the suit property would prejudice the pending trial and dismissed the appeal.

What did the court decide?

The appeal and I.A. No.4115 of 2013 were disposed of.

Dhananjay Kumar and Anr. Vs Parmanand Das @ Parmanand… — Specific Performance | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.539 of 2012

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====================================================== 1. Dhananjay Kumar S/O Shri Brij Bhushan Rai R/O Nilkanth Tola, Gauraiya Asthan, P.S. Maner, P.O. Beyapur, District - Patna 2. Rama Shankar Rai S/O Shri Bani Bhushan Rai R/O Nilkanth Tola, Gauraiya Asthan, P.S. Maner, P.O. Beyapur, District - Patna .... .... Appellant/s Versus Parmanand Das @ Parmanand Sindhi S/O Late Asarmal Das R/O Mohalla - Mithapur, Kanu Lal Road, P.O. G.P.O., P.S. Jakkanpur, District - Patna

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.... .... Respondent/s

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====================================================== Appearance: For the Appellant/s : Mr. Birendra Narayan Sharma For the Respondent/s : Mr.

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====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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04. 15-07-2013 Re: M.A. 539 of 2012 with

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I.A. No. 4113 of 2013

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Heard Mr. Birendra Narayan Sharma, learned counsel appearing on behalf of the appellants.

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This appeal under Order XLIII rule 1(r ) of the Code of Civil Procedure has been filed questioning the order dated 10.7.2012 passed by the learned Sub Judge-III, Danapur in Title Suit No. 74 of 2010, whereby the learned trial court has been pleased to reject the application filed by the appellants under Order 39 rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) read with Section 151 thereof seeking to restrain the sole defendant from alienating the suit property in

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Patna High Court MA No.539 of 2012 (4) dt.15-07-2013

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favour of any third party.

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The suit in question has been filed for specific performance of contract under an agreement to sale stated to have been entered in between the parties on 30.4.2007 in respect of 5.87 acres of land situated in mauja Sherpur, Sub Registry- Danapur, District-Patna for a consideration amountof Rs.14 lakhs of which it is stated that a sum of Rs.2.55 lakhs has been paid on the date of execution of the agreement.

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It is not in dispute that the agreement is not a registered document but then that is not a condition precedent for maintaining a suit for specific performance. The question yet remains is that until such time that the appellant as the plaintiff in the court below succeeds in the suit, whether the defendant can be restrained from disposing of the suit property.

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It is the case of the plaintiff that since the defendant was avoiding to discharge his part of obligation under the agreement to sale which led to the filing of the suit. An application was filed on behalf of the plaintiff on 9.6.2010 under Order 39 rules 1 and 2 of the Code and which has been rejected by the order impugned, hence this appeal. The only issue that is raised by Mr. Sharma in support his appeal is that any subsequent transaction would be affecting the merits of the case.

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Patna High Court MA No.539 of 2012 (4) dt.15-07-2013

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Since the matter is yet in contest before the trial court any observation by this Court would prejudice the case of either of the parties. Perusal of the order impugned manifests that the plaintiff relying upon an unregistered document dated 30.4.2007 has filed the suit in question for enforcing a promise stated to have been made by the defendant under the said agreement to sell. The order impugned further manifests that this aspect had been contested by the defendant on grounds of genuineness of the document. It has also been observed by the court below that the possession of the suit property yet remains with the defendant and thus the prayer lacks the prerequisite of a prima facie case or balance of convenience or irreparable loss for maintaining an application for injunction. The learned court below observing that a refusal of prayer would not result in any irreparable injury to the plaintiff, has rejected the prayer.

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In the circumstances set forth, no legal infirmity or jurisdictional error is found in the order impugned requiring interference by this Court. This appeal as well as I.A. No.4115 of 2013 are accordingly disposed of.

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S.Sb/-

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(Jyoti Saran, J)

Dhananjay Kumar and Anr. v. Parmanand Das @ Parmanand Sindhi

Case brief

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Dhananjay Kumar and Anr. v. Parmanand Das @ Parmanand Sindhi

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