[1] The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India against the order dated 23.07.2010 passed by the learned Additional District Judge and Presiding Officer, 4th Fast Track Court, Banaskantha at Deesa in Civil Misc. Appeal No.25 of 2008 whereby the learned Appellate Judge has dismissed the appeal preferred by the petitioner and confirmed the order passed by the learned trial Judge below application Ex.5 in Regular Civil Suit No.111 of 2006.
[2] The petitioner, original plaintiff, has filed the suit for specific performance of the contract on the basis of the agreement to sell dated 12.01.1981. Along with the suit, the petitioner - plaintiff also preferred application Ex.5 seeking interim injunction restraining the respondents from transferring or in any way alienating the suit properties. Learned Judge rejected the said application Ex.5 by order dated 21.07.2008 on the ground that the suit came to be filed by the petitioner after a long period of 25 years and on the ground that the petitioner had earlier knowledge of filing of suit in 1989 and another suit being Regular Civil Suit No.121 of 2003 was pending concerning the same subject matter. Learned Judge has also taken the note of suppression of material fact by the petitioner - plaintiff. This order of learned trial Judge came to be confirmed by the Appellate Judge.
[3] Learned advocate for the petitioner has submitted that the petitioner has got strong prima facie case to succeed in the suit and if the interim injunction as prayed for is not granted, the suit itself would become infructuous. She has submitted that earlier the suit was withdrawn for filing a fresh suit and now the suit for specific performance is filed by the petitioner seeking direction to the land owners to execute the sale-deed and, therefore, the Courts below were not justified in refusing injunction. She has further submitted that the subject matter of the suit is an immovable property and there is no dispute about the execution of the agreement to sell in favour of the petitioner and, therefore, it would be in the interest of justice to preserve the subject matter of the suit till the final decision of the civil suit.
[4] I have heard learned advocate for the petitioner. I have also considered the documents produced on record and the orders passed by both the Courts below. I find that both the Courts below have not committed any jurisdictional error. Learned advocate for the petitioner has failed to point out any serious error committed by both the Courts below. In fact, both the Courts below have taken the note of one important aspect of the matter to the effect that the agreement to sell in question is of the year 1981 and the petitioner has filed the suit for specific performance after a long period of 25 years. Learned trial Judge has observed that the petitioner has suppressed the material fact in respect of the earlier suit. Therefore, I do not find any reason to interfere with the orders passed by both the Courts below while exercising the powers under Articles 226 and 227 of the Constitution of India. Since the petitioner has approached the Court after a long delay of 25 years for filing the suit for specific performance of the contract, the petitioner is not entitled to get any injunction. Hence, I do not accept this petition and the petition is accordingly rejected.
[ C. L. SONI, J. ] vijay Top