The Civil Miscellaneous Appeal was dismissed as infructuous because the respondent defendant had already alienated the impugned schedule property to subsequent purchasers by executing registered sale deeds after the lower court's order.
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THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR
C.M.A.No.606 of 2009
Date: 12.10.2009
Between: Anirudh Jaiswal And Ajay Kumar Jain
…..Appellant
……respondent
Counsel for the appellant: SRI P.SHIV KUMAR
Counsel for the Defendant: SRI P.SAMBASIVA PRATAP
THE COURT MADE THE FOLLOWING:
JUDGMENT (Per the Hon’ble Sri Justice A. Gopal Reddy)
When CMAMP No.1078 of 2009 is taken up for hearing, it is brought to our notice that the injunction petition filed by the appellant, against which the present appeal has been filed, has become infructuous. Hence, we have heard the appeal on merits.
According to the appellant/plaintiff, Sri Madanlal Jain - the father of the respondent/defendant, was the owner of the plaint schedule property i.e., mulgies and some other properties. The said Madanlal Jain leased out the mulgies and some other properties to different tenants including the father of the plaintiff. After the death of the said Madanlal Jain, the defendant and his brother succeeded the plaint schedule property and other properties belonging to their father. The plaint schedule property fell to the share of the defendant in a partition that took place between himself and his brother under registered partition deed dated 28.05.2004. When the defendant offered to sell the petition schedule property, the plaintiff agreed to purchase the same for a total consideration of Rs.24,45,000/- under an oral agreement of sale and paid a sum of Rs.45,000/- by way of cheque dated 21.04.2008 as advance. When the plaintiff expressed that he is ready and willing to pay the balance amount, the defendant avoided the execution of sale deed. On 30.07.2008, when the plaintiff along with his father and other tenant went to the house of the defendant, he efendant refused to execute the sale deed. Further, the plaintiff came to know that the defendant is trying to sell away the petition schedule property at higher rate to others in order to deprive his legitimate right over the petition schedule property. Hence, the plaintiff filed O.S.No.422 of 2008 on the file of the Chief Judge, City Civil Court, Hyderabad, for specific performance of agreement of sale. In the said suit, he filed I.A.No.3050 of 2008 seeking ad interim injunction restraining the defendant from alienating or creating any third party
right and interest of the petition schedule property.
The defendant filed a counter stating that the plaintiff illegally deposited an amount of Rs.45,000/- in his account in Syndicate Bank, Afzalgunj Branch, Hyderabad. When he found the said fact, he enquired with his banker and on verification of the voucher under which the said cheque was presented in his bank account, he came to know that the said cheque was deposited by the plaintiff. Then he immediately returned the said amount to the plaintiff on 20.10.2008 through banker’s cheque dated 14.10.2008 through his Advocate along with a notice. The plaintiff got issued a reply notice dated 29.10.2008 through his Advocate with false allegations. Thereafter, the plaintiff again got issued another reply notice on 18.11.2008. He also stated that he intended to alienate the petition schedule property, and accordingly, entered into a written agreement of sale with one Kishorelal Yadav and another on 29.02.2008 agreeing to sell the petition schedule property for a total sale consideration of Rs.50,00,000/- by receiving Rs.7,10,000/- cash on the said date, and therefore, the said purchaser issued 8 account payee cheques for Rs.2,90,000/- on different dates and he enchased those cheques. He further stated that the plaintiff has not issued any legal notice or letter to him showing his readiness and willingness to perform his part of contract before filing the suit demanding him to execute the sale deed. Therefore, the plaintiff is not entitled to the relief of ad interim injunction as prayed for.
The Court below, while dismissing the above I.A by the impugned order, dated 04.06.2009, held that on careful examination of the said voucher and signature of the person, who deposited the amount of Rs.45,000/- by way of cheque, the alleged signature of the depositor was not tallied with the signatures of the defendant available in the case record; that except making the deposit of Rs.45,000/- by way of cheque by the plaintiff into the bank account of the defendant, absolutely there is no prima facie proof of evidence regarding the
alleged oral agreement between the plaintiff and the defendant for sale of the petition schedule property for a total consideration of Rs.2,45,000/-; that the market value certificates of the petition schedule property dated 03.01.2009 produced by the defendant under Exs.R.13 and R.14 also show that the market value of the petition schedule property was Rs.74,10,000/-; and that Exs.R.15 to R.18, the counter foils of the cheque books, the Xerox copies of the cheques and the bank statement of Kishorelal Yadav, produced by the defendant also show that he received Rs.10,00,000/- as advance having agreed to sell the petition schedule property, and therefore, the plaintiff is not entitled to ad interim injunction. Aggrieved by the same, the plaintiff filed this appeal along with an application seeking temporary injunction restraining the defendant from alienating or creating any third party right and interest in respect of the schedule property.
The defendant filed a counter stating that after dismissal of the I.A by the Court below, pursuant to the agreement of sale dated 29.02.2008, he had already executed two registered sale deeds in favour of the agreement holder vide document Nos.2052 and 2053 of 2009, received the entire sale consideration and delivered possession of the schedule property. Therefore, he is no more owner of the suit schedule property.
Having regard to the subsequent developments and since the suit schedule property was already alienated by the defendant pursuant to the agreement of sale entered by him, the appeal itself has become infructuous.
Accordingly, the Civil Miscellaneous Appeal is dismissed as infructuous. However, the appellant is at liberty to implead the subsequent purchasers, if he is advised so, and avail the alternative remedies as available to him under law. There shall be no order as to costs.
A. GOPAL REDDY, J
__________________ B.CHANDRA KUMAR, J
Date: 12.10.2009 va
Anirudh Jaiswal
Ajay Kumar Jain
A. GOPAL REDDY
B. CHANDRA KUMAR
As recorded by the court registry
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