Allowed

Prakash Chandra v. Bhanwar Singh

Rajasthan HC21 Feb 2024CMA/545/2024

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an order rejecting a temporary injunction application. It set aside the lower court's rejection, holding that the property must be protected from alienation during the pendency of the specific performance suit to prevent the suit from becoming infructuous.

What did the court decide?

Impugned order dated 18.01.2024 set aside; Application under Order 39 Rule 1 & 2 CPC allowed to restrain Respondent No. 1 from alienating shops or creating charges over them pending suit disposal.

Prakash Chandra Vs Bhanwar Singh — Specific Performance | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 545/2024

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Prakash Chandra S/o Lal Chand Pokharna, Aged About 48 Years, R/o Rashmi, Tehsil Rashmi, Dist. Chittorgarh (Raj.).

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----Appellant

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Versus

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Bhanwar Singh S/o Laxmi Lal Gilundiya, R/o Panchayat Samiti Road, Rashmi, Tehsil Rashmi, Dist. Chittorgarh (Raj.).

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The Sub Registrar Cum Tehsildar, Rashmi, Tehsil Rashmi, Dist. Chittorgarh (Raj.).

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----Respondents

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For Appellant(s) : Mr. Sanjay Nahar For Respondent(s) : Mr. D.S. Rathore

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HON'BLE MS. JUSTICE REKHA BORANA Judgment

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21/02/2024

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The present appeal has been preferred against the order dated 18.01.2024 passed by the Additional District Judge, Kapasan in Civil Misc. Case No.91/2023 whereby an application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure as preferred by the appellant plaintiff has been rejected.

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The case of the appellant was that agreement dated 08.02.2021 was entered into between him and respondent No.1defendant No.1, in pursuance to which, defendant No.1 received an amount of Rs.15 lacs from him and handed over the possession of his two shops. It was agreed that if the defendant would return the said amount with interest, that is, Rs.17 lacs within a period of one year, the shops qua which the agreement was entered into, would be returned to the defendant and if he would not return the said amount within a period of one year, he would then accept an

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(2 of 5) [CMA-545/2024]

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additional amount of Rs.11 lacs from the plaintiff as further consideration qua the shops and would get the sale deed executed in favour of the plaintiff for the said two shops.

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The defendant despite continuous requests, neither returned the amount with interest as promised nor did he accept the amount of Rs.11 lacs and denied to execute the sale deed in favour of the plaintiff. Hence, the present suit for specific performance was filed.

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In the application under Order 39 Rule 1 & 2, CPC, it was prayed that the defendant be restrained from interfering with the possession of the plaintiff and further be restrained from alienating the property in question. 5. Per contra, the case of the defendant was that neither did he execute the said document nor did he receive any amount as alleged by the plaintiff. He submitted that infact, some blank papers were got signed by the plaintiff qua the amount borrowed by the defendant from one Raju. The amount borrowed from Raju was returned by him but the plaintiff, despite the same, misused the blank papers qua which even an FIR was lodged by him.

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Learned trial Court did not find the version of the plaintiff to be genuine and observed that the execution of the agreement dated 08.02.2021 itself was doubtful. Learned trial Court relied upon the affidavits of Raju Soni, who admitted the repayment of the amount to him and of one Radheshyam, who admitted the repayment of the said amount in his presence and further that possession of the shops in question was with the defendant.

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(3 of 5) [CMA-545/2024]

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With the said observations, the Court did not find any prima facie case in favour of the plaintiff and hence, rejected the application preferred for temporary injunction.

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Heard learned counsel for the parties and perused the material available on record.

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A perusal of the documents as placed on record by learned counsel for the appellant makes it clear that the disputed agreement is a notarised document signed by both the parties. The signatures on the said document have not been denied by the defendant, he has submitted that he had signed some blank papers. Further, the signatures of Virendra Singh, brother of the defendant, has also not been disputed.

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Meaning thereby, the execution of the document by Bhanwar Singh, cannot be ruled out absolutely at the threshold. As observed by the learned trial Court, genuineness of the said document, execution of the same etc. are the issues which would be decided only after evidence being led on the same.

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So far as the prima facie case is concerned, it is clear on record that the plaintiff has come up with a case that the agreement was entered into between the parties qua the sale of two shops in question. He even alleges possession of the shops to be with him. On the other hand, defendant alleges that the possession of the ship with him. In view of the same, this Court is of the clear opinion that as is the settled position of law, till the disposal of the suit, the property needs to be protected. If the defendant is not restrained and shops are alienated further during the pendency of the suit, the suit itself would render infructuous.

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[CMA-545/2024]

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(4 of 5)

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Therefore, the equities need to be balanced and the suit property needs to be protected.

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As held by the Hon’ble Apex Court in the case of Dev Prakash and Ors. vs. Indra and Ors.; AIR 2017 SC 3608, the very essence of the concept of temporary injunction and receivership during the pendency of a civil litigation involving any property is to prevent its threatened wastage, damage and alienation by any party thereto, to the immeasurable prejudice to the other side or to render the situation irreversible not only to impact upon the ultimate decision but also to render the relief granted, illusory. The Court further, while relying upon the case of Maharwal Khewaji Trust (Regd.) Faridkot vs. Baldev Dass;AIR 2005 SC 104 , observed as under:

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“unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property to be changed, which may include alienation or transfer thereof leading to loss or damage been cause to the party who may ultimately succeed and which would as well lead to multiplicity of proceedings. Judicial discretion has to be disciplined by jurisprudential ethics and can by no means conduct itself as an unruly horse.”

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In keeping with the ratio laid down by the Hon’ble Apex Court, the order impugned dated 18.01.2024 passed by the Additional District Judge, Kapasan in Civil Misc. Case No.91/2023 is hereby set aside. Application under Order 39 Rule 1 & 2, CPC as preferred by the plaintiff is allowed to the extent that respondent No.1 shall be restrained from alienating the shops in question or creating any charge over the same till the final disposal of the suit in question.

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[CMA-545/2024]

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(5 of 5)

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