Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
========================================================= DIPAKBHAI KHIMCHANDBHAI PIPRODIYA - Appellant(s) Versus BHARATBHAI BHANABHAI KANTHARIATHRO'POA SHANTILAL B KANTHARIA & 3 - Respondent(s) ========================================================= Appearance :
MRS KETTY A MEHTA for Appellant(s) : 1,MR MANAN A SHAH for Appellant(s) : 1, MR MRUGEN K PUROHIT for Respondent(s) : 1, MR HRIDAY BUCH for Respondent(s) :
2, MR DEVANG S NANAVATI with MR PREMAL S RACHH for Respondent(s) : 3, MR SI NANAVATI, SR. COUNSEL with MS ANUJA S NANAVATI for Respondent(s) :
4, ========================================================= CORAM :
HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 01/05/2012 CAV COMMON JUDGMENT :
Admit. Service of notice of admission is waived by M/s. Mrugen Purohit, Hriday Buch, Premal Rachh and Ms. Anuja S Nanavati, Ld. Advocates for respondent nos. 1, 2, 3 and 4 respectively.
1. The challenge in this appeal is to the order dated 7/12/2011 passed by the Ld. 13th Addl. Sr. Civil Judge, Surat, [hereinafter referred to as 'the trial Court'] below temporary injunction application exh. 5 in Special Civil Suit No. 432/2011, whereby the trial Court dismissed the said application. The appellant, therefore, is the original plaintiff and the 4 respondents are original defendants in the aforementioned suit and, therefore, for the sake of convenience, the appellant and the respondents shall be hereinafter referred to as 'the plaintiff and the defendants' in this order.
2. The plaintiff filed the above suit seeking various reliefs, namely specific performance of an agreement to sell dated 11/7/2007 of the disputed land bearing city survey no. 331 situated in the outskirts of village Bamroli or in the alternative to award Rs.1 crore by way of damages and further to set aside the registered sale-deed dated 12/11/2010 pertaining to the disputed land executed by the defendants nos. 1 to 3 in favour of the defendant no. 4 and further to declare that the respondent no. 3 had no right, title or interest in the disputed land and prayed for permanent injunction restraining the defendants from transferring or otherwise alienating the disputed land or to make any construction thereon.
2.1. In the said suit, the plaintiff filed application at exh. 5 seeking temporary injunction restraining the defendants from transferring or otherwise alienating the disputed property and from making any construction thereon till the pendency and final disposal of the suit as prayed in para. 10 [A] in this application. As per initial order dated 29/8/2011 the trial Court issued urgent show cause notice to the defendants. After the defendants appeared before the trial Court and filed their written statements and replies to the application exh. 5 of the plaintiff, the trial Court, after considering the available material on record and after hearing submissions advanced on behalf of both the sides, passed the impugned order, whereby it was pleased to dismiss the said application and hence the plaintiff preferred this Appeal From Order in this Court.
3. Mrs. Ketty Mehta, Ld. Advocate for Mr. Manan A Shah, Ld. Advocate for the appellant herein, at the outset submitted that the impugned order passed by the trial Court is contrary to law and facts on record. It is submitted that by rejecting temporary injunction application exh. 5 filed by the plaintiff in the suit, virtually the trial Court has decided the whole suit. My attention was drawn to the copy of the agreement for sale dated 11/7/2007 whereby the defendant nos. 1 and 2, who are real brothers, agreed to sell the disputed land to the plaintiff and various terms and conditions laid down in that document came to be read over. It is submitted that since at the relevant time, the defendant no. 1 Bharatbhai was in South Africa, but on 13/8/2004 the defendant no. 1 had executed a document of power of attorney authorizing the respondent no. 2 Shantilal to sell and dispose of the family property; the respondent- defendant no. 2 Shantilal signed said agreement to sell on his behalf and on behalf of the defendant no. 1 in the capacity as his power of attorney. It is submitted that the plaintiff agreed to purchase and the defendant nos. 1 and 2 agreed to sell the disputed property for the consideration amount of Rs.31 lac. The day on which the agreement was executed, the plaintiff paid Rs.50,000/- by cheque and Rs.1,75,000/- by cash, in-all paid Rs.2,25,000/- by way of advance to the defendant nos. 1 and 2 and in support thereof, the plaintiff has produced before the trial Court relevant evidence collected from his bank. Relying upon the relevant terms and conditions laid down in the agreement, it was submitted that the defendant nos. 1 and 2 represented before the plaintiff that except them, no other family member had any right or interest in the property and if at all any objection from any person would come, they undertook to resolve the same and they undertook to see that the title is cleared.
3.1. Mrs. Ketty Mehta, Ld. Advocate for the appellant - plaintiff submitted that at the time of the execution of the agreement, the defendant no. 2 showed to the plaintiff an extract of Village Form No. 6 bearing entry no. 657 wherein only the names of defendant nos. 1 and 2 were shown as owners and occupiers of the disputed land. After the agreement came to be executed and notarized on 27/7/2007, on 1/8/2007 the plaintiff issued through his advocate a public notice in the newspaper for title clearance, but the defendant no. 3 Naynaben objected to this transaction by public notice dated 15/8/2007 and she came forward with the objection that she being the real sister of the defendant nos. 1 and 2, she had 1/3rd share in the disputed property. On account of such objection being raised by the defendant no. 3, the plaintiff immediately contacted the defendant no. 2 and the defendant no. 2 orally assured the plaintiff that the objection raised by his sister - the defendant no. 3, was false and bogus as whatever they had to pay to their sister Naynaben, was paid at the time of her marriage and, therefore, she had no right or interest in the property, still however, it would be seen that there shall not be any hindrance in executing a final sale-deed. Mrs. Mehta, Ld. Advocate for the appellant - plaintiff submitted that it is true that this was an oral assurance given by the defendant nos. 1 and 2 to the plaintiff and there is also no dispute that between the plaintiff and the defendant nos. 1 and 2, there were no notice exchanges in writing, but the fact that the defendant nos. 1 and 2 had given such assurance, is clearly substantiated by further fact that from 11/7/2008 to 28/4/2010 the defendant nos. 1 and 2 accepted in-all about Rs.1.80 lac from the plaintiff towards the consideration amount on different dates and in token of receipt thereof, they passed on written receipts in favour of the plaintiff which were produced by the plaintiff before the trial Court and copies are annexed with this appeal.
3.2. Mrs. Ketty Mehta, Ld. Advocate for the appellant - plaintiff submitted that despite the fact that the plaintiff had issued a public notice for title clearance on 1/8/2007, the defendant nos. 1, 2 and 3 colluded with each other and executed a disputed sale-deed regarding the disputed land on 12/11/2010 in favour of defendant no. 4. Mrs. Ketty Mehta, Ld. Advocate for the appellant - plaintiff submitted that even prima-facie there is a reason to believe that the disputed sale-deed is bogus and false in the sense that the defendant nos. 1 and 2 agreed to sell the disputed land to the plaintiff in the year 2007 for the consideration amount of Rs.31 lac and thereafter, after 3 years, they executed a sale-deed in favour of the defendant no. 4 showing that the disputed land was sold to the defendant no. 4 for the consideration amount of Rs.15 lac. Even in the disputed sale-deed, it is stated that the entire amount of the consideration came to be paid by cash. This creates reasonable doubt about the genuineness of the sale-deed dated 12/11/2010. Thus, even at this stage, prima-facie the defendant no. 4 cannot be heard to say that he was bonafide purchaser.
3.3. Mrs. Ketty Mehta, Ld. Advocate for the appellant - plaintiff asserted that in the impugned order, the trial Court erred in observing that the agreement to sell stood cancelled as according to the trial Court the time was essence of the contract. My attention was drawn to condition no. 4 in the agreement and submitted that the time to perform the agreement was till the final sale-deed is registered, but the trial Court relied upon condition no. 10 and came to the conclusion at this stage that the agreement stood cancelled. This is misreading of the relevant terms and conditions laid down in the agreement by the trial Court as after public notice issued regarding title clearance and if within 15 days from the date of publication of such public notice, if no person raises any objection, then within 15 days the plaintiff was required to pay Rs.12.75 lac to the defendant nos. 1 and 2 by way of further part payment of the amount of consideration. In the instant case, the defendant no. 3 - sister raised the objection within 15 days and, therefore, there was no reason for the plaintiff to pay Rs.12.75 lac to the defendant nos. 1 and 2, but the trial Court misread such condition and observed that since the plaintiff did not pay said amount to the defendant nos. 1 and 2, the agreement stood cancelled. As a matter of fact, time was not the essence of the contract.
3.4. Mrs. Ketty Mehta, Ld. Advocate for the appellant - plaintiff further submitted that bare perusal of the impugned order passed by the trial Court would suggest that the trial Court only took into consideration the question of balance of convenience and irreparable loss keeping the defendant no. 4 in focus. As a matter of fact, even at this stage, it cannot be said that the defendant no. 4 was bonafide purchaser. Considering the available material placed on record before the trial Court, it cannot be said that the defendant no. 4 erected a substantial construction on the disputed property and incurred huge expenses for the construction so that if the temporary injunction would be granted, he would suffer great loss. It is submitted that in absence of any material on record, the trial Court came to the conclusion that the defendant no. 4 undertook bookings of the disputed property involving so many proposed buyers. In fact, no such bookings are made and thus till date, no third party interest is created in the disputed property.
3.5. Mrs. Ketty Mehta, Ld. Advocate for the appellant - plaintiff, relying upon a decision rendered in the case of Kammana Sambamurthy [deceased by L.Rs.] v/s. Kalipatnapu Atchutamma reported in AIR 2011 S.C. 103, submitted that even if alternatively it is believed that the defendant no. 3 being sister of the defendant nos. 1 and 2 has 1/3rd share in the disputed property and that she is not co-signatory to the agreement to sell of the disputed property, then the agreement can be specifically performed qua the 2/3rd share of the defendant nos. 1 and 2 in the disputed property. It is submitted that in the case before the Hon'ble Apex Court, though wife had 1/2 share in the property, agreed to be sold by her husband, but the agreement was signed only by her husband, Hon'ble the Apex Court, confirming the judgment and order passed by the High Court, observed that the High Court was perfectly right in specifically enforcing the agreement qua the 1/2 share of the husband in the property. In the said decision, it has been further observed that after the final sale-deed of 1/2 share in the land is executed by the husband in favour of the original plaintiff, the original plaintiff thereafter can claim partition. Mrs. Ketty Mehta, Ld. Advocate for the appellant - plaintiff, therefore, submitted that the ratio laid down by Hon'ble the Apex Court in the aforesaid decision fully applies to the instant case and thus at the end of the trial, if at all the claim of defendant no. 3 sister is held to be genuine, the agreement for sale executed by the defendant nos. 1 and 2 can be specifically performed qua their share in the land and after the sale-deed shall be executed, the plaintiff can claim partition. It is ultimately submitted that, therefore, merely because the defendant no. 3 objected to the agreement, the trial Court erred in coming to the conclusion that the plaintiff has no prima-facie case, but on the contrary the plaintiff has strong prima-facie case at-least qua the share of the defendant nos. 1 and 2 in the disputed property. On the question of balance of convenience and irreparable loss, reliance was placed upon certain decisions, which shall be discussed in this order at relevant time. Ultimately, it is submitted that the appeal may be allowed and the impugned order passed by the trial Court may be set aside and the temporary injunction, as prayed for, by the appellant - plaintiff in para. 10 [A] in the application exh. 5 filed by him in the suit, may be granted or appropriate order be passed in favour of the appellant - plaintiff to protect his right and interest till the pendency of the suit.
4. Mr SI Nanavati, Ld.
Sr. Counsel with Ms. Anuja S Nanavati for respondent no. 4, Mr. Mrugen Purohit, Ld. Advocate for respondent no. 1, Mr. Hriday Buch, Ld. Advocate for respondent no. 2 and Mr. Devang Nanavati, Ld. Advocate with Mr. Premal Rachh, Ld. Advocate for respondent no. 3 vehemently opposed this appeal and submitted that the trial Court rightly came to the conclusion that the plaintiff has no prima-facie case and the points of balance of convenience and irreparable loss are not in his favour. My attention was drawn to the agreement dated 27/7/2007 and the relevant terms and conditions contained therein and it was submitted that in the agreement itself, it has been mentioned that the disputed land was ancestral property. It is submitted that as per condition no. 3, if no opposition comes after the publication of notice regarding title clearance, then within 15 days the plaintiff was supposed to pay Rs.12.75 lac to the defendant nos. 1 and 2 out of the amount of consideration. It is submitted that in the instant matter, as per the case of the plaintiff, despite the fact that the public notice regarding the title clearance came to be published on 1/8/2007 and the defendant no. 3 by public notice raised objection regarding the agreement for sale, the plaintiff thereafter, allegedly paid about Rs.1.80 lac to the defendant nos. 1 and 2. It is submitted that as a matter of fact, once any opposition comes, as per condition no. 3, the plaintiff was not required to make any payment, but condition no. 3 is required to be read with condition no. 10 wherein it is stated that after the public notice, within 15 days the plaintiff was required to pay Rs.12.75 lac, failing which the agreement shall stand cancelled after the defendants return back the amount of earnest money to the plaintiff. It is, therefore, submitted that in either way, once the defendant no. 3 raised objection, the plaintiff was not supposed to make any payment or in the alternative as per condition no. 10, he was required to pay Rs.12.75 lac, but admittedly that much of amount has not been paid by the plaintiff to the defendant nos. 1 and 2. It is submitted that on behalf of the plaintiff, it is a contention that the time was not essence of the contract, but it cannot be presumed that the agreement to sell subsists till either the defendant no. 3 waives her share or that some family settlement will be arrived at. Therefore, it is submitted that the fact is very clear that the defendant no. 3 being sister of defendant nos. 1 and 2, she has 1/3rd share in the property and defendant nos. 1 and 2 cannot dispose of her share in favour of the plaintiff.
4.1. On behalf of the respondents - defendants it is asserted that though defendant no. 3, by way of public notice dated 15/8/2007 raised objection qua the agreement for sale of the disputed land, the plaintiff waited till 25/8/2011 and then filed the suit. Admittedly the plaintiff did not issue any notice to the defendant nos. 1 and 2, but the plaintiff contended that the defendant nos. 1 and 2 orally assured that they will take care of the objection raised by their sister - defendant no. 3. It is, therefore, submitted that the plaintiff is not entitled to the equitable relief of injunction because of such delay and laches.
4.2. On behalf of the respondents, it has been submitted that even the conduct of the plaintiff is required to be considered in the sense that as per the case of the plaintiff, at the time when the agreement was entered into, he only relied upon the revenue entry no. 657 dated 10/7/1987, copy of which was obtained on 13/5/1997 and it is submitted on behalf of the plaintiff that in the said entry, there was no name of defendant no. 3 - Naynaben as co-sharer. The agreement came to be executed on 27/7/2007 and the plaintiff relied upon the revenue entry of 1987 and did not inquire as to whether there was any change in the revenue entry till 27/7/2007 or not. My attention was drawn to the copies of other relevant revenue entries, whereby name of defendant no. 3 - Naynaben came to be mutated in the revenue record through her mother Gangaben as at the relevant time, Naynaben was minor. As a matter of fact, when the defendant no. 4 purchased the land, he verified the latest revenue entry and then entered into the transaction.
4.3. On behalf of the respondents, it has been submitted that on the date on which the agreement for sale came to be executed, on that date even the defendant no. 2 did not hold power of attorney of the defendant no. 1. My attention was drawn to the copy of the document of power of attorney dated 13/8/2004 and it is submitted that the defendant no. 1 only empowered the defendant no. 2 Shantilal to look after certain agricultural land at village Bamroli, Taluka Choryasi. My attention was drawn to the copy of the document of subsequent power of attorney dated 19/9/2007, whereby the defendant no. 1 empowered the defendant no. 2 Shantilal to deal with certain properties including the disputed land bearing survey no. 331 situated at village Bamroli. It is submitted that this document of power of attorney is dated 19/9/2007; whereas the agreement came to be executed on 27/7/2007, wherein the defendant no. 2 put his signature in his personal capacity as well as in capacity as power of attorney holder of the defendant no. 1. It is, therefore, submitted that in the impugned order, the trial Court rightly observed that the day on which the agreement was executed, the defendant no. 2 was not the power of attorney holder of the defendant no. 1. It is submitted that when the defendant no. 4 purchased the property on 12/11/2010, it is true that at that time the earlier document of power of attorney dated 13/8/2004 was in existence, but even the said document of special power of attorney qua the disputed land itself dated 19/9/2007 was also in existence.
4.4.
On behalf of the respondent - defendant no. 4, it has been submitted that after the purchase of the property, the defendant no. 4 started activities of construction work on the disputed land and this fact is prima-facie revealed from the report of the Court Commissioner as well as from the documents produced by the defendant no. 4 in the suit at this stage. Thus, the defendant no. 4 has already started developing the disputed land. Therefore, the trial Court rightly considered this aspect of the matter while dealing with the points of balance of convenience and irreparable loss. It is submitted that even admittedly the defendant no. 4 is in possession of the disputed land.
4.5.
On behalf of the plaintiff, it has been submitted that in the year 2007, the land was agreed to be sold for the consideration amount of Rs.31 lac, but in the year 2010 the land was sold by the defendant nos. 1, 2 and 3 to the defendant no. 4 for the consideration amount of Rs.15 lac and it has been stated on behalf of the plaintiff that this amount of consideration was even less than Jantri price. To such statement made on behalf of the plaintiff, it has been submitted on behalf of the respondents - defendants that if at all the consideration amount of Rs.15 lac was less than Jantri price, the competent authority would not have registered the document. In fact, no objection was raised by the competent authority. Mr. Nanavati, Ld. Sr. Counsel for the respondent no. 4 submitted that there may be many reasons for sale transaction of less amount of consideration and the plaintiff cannot use it as a supportive evidence to his case.
4.6. Relying upon a document dated 6/9/2011 [page 137], it has been submitted that in the instant matter lis-pendent has already been registered and, therefore, even otherwise the interest of the plaintiff is protected if at all in future the suit is decreed in his favour. On behalf of the respondents, reliance was placed upon certain decisions which shall be considered at the relevant time.
4.7. Since Kammana Sambamurthy's case [supra] was heavily relied upon on behalf of the appellant - plaintiff, on behalf of the respondents - defendants it has been submitted that the facts in the said case are completely different than the facts in the instant case and that considering peculiar facts in the said case, Hon'ble the Apex Court confirmed the judgment and decree passed by the High Court regarding the specific performance of an agreement for sale to the extent of the share of the vendor in the immovable property.
5. I have taken into consideration the submissions advanced on behalf of both the sides, so also the impugned order passed by the trial Court and the paper book supplied containing the copies of relevant materials which have been produced in the suit by both the parties.
6. Considering the impugned order passed by the trial Court, so also considering the facts and circumstances of the case, it transpires that the entire dispute between the parties centers round the agreement for sale of the land bearing survey no. 331 situated in the outskirts of village Bamroli. Considering the agreement, prima-facie it appears that the defendant nos. 1 and 2 executed said document and the defendant no. 2 appears to have signed said document on his behalf and on behalf of defendant no. 1. In the document dated 27/7/2007 it is stated that the consideration amount agreed was Rs.31 lac and out of said amount, in the first instance, Rs.2.25 lac came to be paid by the plaintiff to the defendant nos. 1 and 2 towards part of the consideration on 11/7/2007 when the document was prepared. In condition no. 3, it is stated that a public notice regarding the title clearance was to be published and if no opposition is received within 15 days from the date of publication of such public notice, then within 15 days the plaintiff shall pay Rs.12.75 lac to the defendants by way of instalment towards the amount of consideration and the remaining amount of consideration was to be paid within 100 days from the date of mutation of the names of the second parties in the city survey record and the registered sale-deed was to be executed. In condition no. 4, it has been stated that the duration of the agreement was till the final sale-deed was to be executed. In condition no. 5 in the said document, the defendant nos. 1 and 2 undertook to see that the title to the property is to be cleared and as per condition no. 6, they further undertook that they should obtain necessary consent, signatures, etc., of all the concerned parties. In condition no. 9, it has been stated that on or after the agreement, no further agreement with any third party shall be executed. However, as per condition no. 10, it was agreed that after the publication of the public notice in the newspaper about the title clearance, within 15 days the plaintiff was required to pay Rs.12.75 lac and if no such payment is made, then the agreement shall stand cancelled after Rs.2.25 lac paid by the plaintiff are returned to him.
7. Thus, considering the relevant terms and conditions incorporated in the agreement to sell of the land bearing survey no. 331, it prima-facie transpires that certain terms are self contradictory and in that view of the matter, in the impugned order, the trial Court came to the conclusion that there was a breach of the essential conditions, namely payment of Rs.12.75 lac by the plaintiff to the defendant nos. 1 and 2 within the stipulated time and hence the plaintiff had no prima-facie case. As submitted above, considering condition no. 10 in the document as it stands, a public notice was required to be published in a newspaper regarding the title clearance and thereafter within 15 days the plaintiff was required to pay Rs.12.75 lac to the defendant nos. 1 and 2. Admittedly, no such full payment of Rs.12.75 lac came to be made. However, at this stage, in the suit the plaintiff produced certain receipts showing that about Rs.1.80 lac and more came to be paid by the plaintiff and the defendant nos. 1 and 2 accepted the said payment and it is submitted that last such payment was received by the defendant nos. 1 and 2 on 28/4/2010. However, the fact remains that as per condition no. 10, no full payment was made. If at all the condition no. 10 incorporated in the agreement is required to be considered in light of the condition no. 3, then within 15 days from the date of publication of such notice regarding the title clearance in the newspaper, if no opposition of any person comes, thereafter within 15 days the plaintiff was required to pay Rs.12.75 lac to the defendant nos. 1 and 2. In the instant matter, such public notice was published about title clearance on 01/08/2007 and the defendant no. 3 Naynaben, who happens to be sister of defendant nos. 1 and 2, by public notice dated 15/8/2007 as well as by notice dated 14/8/2007 opposed said agreement by asserting that in the property survey no. 331, she had 1/3rd share. Now in the agreement for sale, in case such eventuality happens and any person objects to the exclusive title of the defendant nos. 1 and 2 in the disputed property, then now and in what manner parties to the document shall act, has not been specifically referred to in the agreement.
8. Thus, prima-facie if the condition no. 10 in the agreement is considered in its isolation, within 15 days from the date of publication of notice in the newspaper, the plaintiff did not pay the full amount of Rs.12.75 lac and, therefore, prima-facie it can be said that there was a breach of condition no. 10. If the condition no. 10 is to be read in the context with the condition no. 3 in the agreement, then in case, if any person raises any objection to such agreement, in that eventuality, how the parties to the agreement shall deal with such situation has not been specifically referred to in condition no.
3. In the instant case, as stated above, the defendant no. 3 Naynaben resisted the agreement.
9. According to the case of the plaintiff, at the time of the agreement, he was only shown a copy of revenue extract products in the suit at mark 3/4 and he entered into the agreement. Now considering the aforesaid copy, it transpires that said copy was obtained on 13/5/1997. The agreement was executed in the year 2007. In the copy of the revenue extract, it is true that the name of defendant no. 3 Naynaben is not stated to be as co-sharer. Mark 3/6 produced before the trial Court appears to be a copy of property card of the disputed property wherein the names of defendant nos. 1, 2 and 3 are referred to as the co-sharers. My attention was drawn to the relevant copy of revenue extract, copy obtained on 20/10/2010, wherein the name of Naynaben is referred. Under such circumstances, in the year 2007 when the plaintiff agreed to purchase the disputed property, what was verified by him, was the copy of revenue record showing the status as on 13/5/1997.
10. In the above view of the matter, prima-facie it can safely be said that the defendant no. 3 has her share in the disputed property. She is real sister of defendant nos. 1 and 2. In the agreement for sale itself, it has been stated that the disputed property is ancestral property. It seems that in the suit, in relief para. 14[C] the plaintiff has asked for a declaration to the effect that the defendant no. 3 has no right, title or interest in the disputed property. In above view of the matter, prima-facie it becomes clear that the defendant no. 3 though she has her share in the suit property, she was not party to the agreement for sale of the suit property. On behalf of the appellant - plaintiff, reliance was placed upon a decision rendered in the case of Kammana Sambamurthy's case [supra] to press into service a case that even when such situation arises as has arisen in the instant case, the agreement for sale may be specifically enforced to the extent of 2/3rd share of defendant nos. 1 and 2 in the property and section 12 of the Specific Relief Act shall not apply in such situation. Considering Kammana Sambamurthy's case [supra], husband agreed to sell a house to the plaintiff vendee and an agreement to that effect was executed. In the agreement, the husband stated that he was exclusive owner of the house. It appears that on account of death of his son, 1/2 share of his son devolved to the wife of the defendant vendor and she resisted the agreement. The trial Court decreed the suit qua both, the husband and wife and the specific performance of the agreement was ordered. The High Court in appeal, modified the decree and the specific performance of the agreement was directed to the extent of share of the defendant husband in the property e.g. 1/2 share. The said judgment and order came to be challenged before Hon'ble the Apex Court. Under such circumstances, in the first place, the decision was arrived at in said case after fullfledged evidence was recorded by the trial Court. Moreover, in said case, the fact that the agreement was an agreement for sale and there has been concluded contract in that regard between the vendor and the vendee, has not at all been in dispute. Further more, so far as the defendant vendor was concerned, he did not challenge the judgment and decree passed by the trial Court before the High Court. It was only vendor's wife who filed appeal before the High Court. Even before the High Court, no plea was raised by the vendor's wife or the vendor that the agreement was not a concluded contract for sale of the property. Even as per section 14 of the Hindu Succession Act, any share devolved upon the mother, would become the Streedhan property. Thus, considering the peculiar facts and circumstances emerged from record in said case, Hon'ble the Apex Court observed that section 12 of the Specific Relief Act shall not apply. In the above background, Hon'ble the Apex Court confirmed the judgment and decree passed by the High Court. In the above view of the matter and the peculiar facts and circumstances emerged from the record, Hon'ble the Apex Court observed that after the sale-deed to the extent of the share of the plaintiff husband in the property shall be executed, the defendant vendee shall have a right to apply under section 4 of the Partition Act to get his share demarcated.
11. Thus, at this stage, so far as the instant matter is concerned, the fullfledged evidence is yet to be recorded. Over and above this, in light of the discussion made in above para., the facts involved in the matter before Hon'ble the Apex Court were different than the facts involved in the instant matter. The agreement for sale itself is not only seriously disputed by the defendant no. 3 - Naynaben, but even by defendant nos. 1 and 2 in the instant matter. Moreover, as stated above, even breach of terms and conditions incorporated in the agreement is also under serious dispute.
12. On behalf of the respondents - defendants, it is seriously challenged that on the date on which the agreement for sale was executed, on that date the defendant no. 2 had no power or authority to execute said document on behalf of the defendant no. 1 and to put his signature as power of attorney holder of the defendant no. 1. It seems that in the suit, on behalf of the appellant plaintiff, copies of documents regarding power of attorney are produced. Considering the available copies from the paper book supplied in connection with the instant appeal, it seems that on 13/8/2004 the defendant no. 1 executed a document of power of attorney in favour of defendant no. 2 in a standard proforma. It is true that authority was given to sell movable and immovable properties, but in para. 5 regarding special provisions, it has been specifically stated that this power is to be exercised for the benefit and interest of the defendant no. 1 only in looking after certain agricultural land at Bamroli, Taluka Choryasi. IN the above view of the matter, the fact can be said to be under serious dispute as to whether by virtue of document of power of attorney dated 13/8/2004, whether the defendant no. 1 authorized the defendant no. 2 to sell and dispose of his movable and immovable properties or the defendant no. 2 was only authorized to look after the interest of the defendant no. 1 in certain agricultural land situated at village Bamroli. Considering the second document regarding special power of attorney executed by the defendant no. 1 in favour of the defendant no. 2 dated 19/9/2007, the property bearing survey no. 331 with its measurement situated at village Bamroli was specifically referred to in the said document and the defendant no. 1 authorized the defendant no. 2 to sell the aforesaid immovable property. However, this document is dated 19/9/2007; whereas the agreement for sale of the disputed property was prior to said date i.e. 27/7/2007. There is no dispute that the defendant nos. 1, 2 and 3 sold the disputed property by a registered sale-deed to the defendant no. 4 on 12/11/2010 and on behalf of the appellant-plaintiff, it was submitted that in said document, the defendant no. 2 signed for himself as well as for defendant no. 1 as his power of attorney holder and it has been submitted that even in connection with said transaction, the document of power of attorney dated 13/8/2004 was relied upon. On behalf of the appellant - plaintiff, therefore, it was submitted that the document of power of attorney dated 13/8/2004 authorized the defendant no. 2 by the defendant no. 1 to sell and dispose of the disputed land. It is pertinent to note that the registered sale-deed came to be executed on 12/11/2010 and as on that date, not only power of attorney document dated 13/8/2004 was in force, but even the subsequent document for special power of attorney dated 19/9/2007 was also in existence.
13. Moreover, in the instant matter, after 15/8/2007 when the defendant no. 3 Naynaben resisted the agreement for sale by a public notice, as per the case of the plaintiff, he consulted the defendant nos. 1 and 2 and they orally assured that they will take care of the objection raised by their sister, defendant no. 3. It is admitted position that there was no notice exchanges between the parties. As per the case of the plaintiff, whatever happened after 15/8/2007 was only oral talk between himself and the defendant nos. 1 and 2. Such oral talk can definitely be said to be a question of evidence. It is submitted on behalf of the appellant plaintiff that even after 15/8/2007 the plaintiff used to pay by different instalments, part of the amount of consideration i.e. about Rs.1.80 lac and the defendant nos. 1 and 2 received such amount. First of all, even if it is prima-facie believed at this stage that subsequent to 15/8/2007 the defendant nos. 1 and 2 accepted part of the consideration amount, yet the defendant no. 3's right or interest in the property cannot be said to have been adversely affected thereby. Moreover, such part payment was not pursuant to any condition laid down in the agreement for sale, because the agreement for sale only contemplated the part payment of consideration to the extent of Rs.12.75 lac, if pursuant to public notice regarding title clearance, nobody raises any objection to the agreement. Under such circumstances, prima-facie it can be said that the defendant no. 3 Naynaben cannot be said to have been adversely affected by any such part payment.
14. On behalf of the appellant plaintiff, at this stage it was vehemently asserted that when the defendant nos. 1 and 2 agreed to sell the disputed property to the plaintiff for the consideration amount of Rs.31 lac in the year 2007, the sale transaction entered into by the defendant nos. 1, 2 and 3 with the defendant no. 4 in the year 2010 of the disputed property for the consideration amount of Rs.15 lac itself is a circumstance which creates reasonable doubt about the genuineness of the subsequent sale-deed. About such submission, on behalf of the respondents - defendants, it has been stated that as a matter of fact, it is the discretion of an owner of the property to sell his property and the amount of consideration shall not be the relevant factor, more particularly there may be many reasons for the owner to sell his property at comparatively lesser price if he has any interest in the future development of the property or that he had immediate need of money, etc. On behalf of the respondents- defendants, it was further submitted that it cannot be said that the subsequent sale was at throw away price or less than the price fixed in Jantri prevailed in the year 2010, because under such eventuality, the competent authority should not have registered the sale-deed. On behalf of the respondents - defendants, reliance was placed on the decision rendered in the case of Punjab Urban Planning & Development Authority v/s. Shiv Saraswati Iron & Steel Re-Rolling Mills reported in [1998] 4 S.C.C. 539, wherein Hon'ble the Apex Court, dealing with a matter arising under the Specific Relief Act, observed that the plaintiff, instead of proving his own case fully, cannot take advantage of weakness in defendant's case. The plaintiff must succeed or fail on his own case and cannot take advantage of weakness or defects of the defendant. A decision rendered in the case of Azhar Sultana v/s. B. Rajamani & ors. Reported in [2009] 17 S.C.C. 27 was relied upon. In the said case, arising under the Specific Relief Act, in para. 31 Hon'ble the Apex Court observed that the plaintiff has failed to establish that she had all along been ready and willing to perform her part of contract, it would not be necessary to enter into the question as to whether defendants nos. 5 and 6 were bonafide subsequent purchasers for value without notice or not. In above view of the matter, in the instant case, as stated above, though the agreement for sale of the disputed property came to be executed on 27/7/2007, but the suit for specific performance of said agreement came to be filed by the plaintiff on 29/8/2011.
15. On behalf of the appellant - plaintiff, reliance was placed upon a decision rendered in the case of Wander Ltd. v/s. Antox India P. Ltd. Reported in 1990 [Suppl] S.C.C. 727, wherein Hon'ble the Apex Court observed that the interlocutory remedy is intended to preserve in status-quo, the rights of the parties which may appear on a prima facie case. Reliance was also placed upon a decision rendered in the case of Ibrahim Shah Mohamad v/s. Noor Ahmed Noor Mohamed reported in 1983 [2] G.L.R. 961, wherein this Court observed that if during the pendency of the suit, property would change hands with any other persons, Court should lean towards seeing that there is no multiplicity of proceedings and the ad-interim injunction can be granted in such cases. There cannot be any dispute regarding the principles established in the above decisions by Hon'ble the Apex Court as well as by this Court, but the peculiar facts and circumstance emerged on record in our case are required to be considered.
16. In the instant matter, as observed above, the trial Court came to the conclusion that the plaintiff failed to establish his prima-facie case at this stage. In view of the above discussion, it cannot be said that the discretion exercised by the trial Court in not granting equitable relief of injunction in favour of the plaintiff can be said to be arbitrary exercise of the discretionary powers vested with the trial Court. Prima-facie, it has come on record that after the defendant no. 4 purchased the property, he started activities of development and construction. In the impugned order, the trial Court observed that once the plaintiff failed to establish his prima-facie, if the temporary injunction is granted, comparatively defendant no. 4 would suffer more and in that context, it was observed by the trial Court that the points of balance of convenience and irreparable loss were not in favour of the plaintiff, but were in favour of the defendant no. 4.
17. In the above view of the matter, this Court is of the opinion that the appeal lacks merits and does not require any consideration.
18. For the foregoing reasons, the appeal is dismissed. However, it is hereby made clear that whatever discussion made in this judgment and order is only confined to this appeal and the same shall not have any bearing whatsoever at the time when the trial Court shall hear and decide the main civil suit. The trial Court shall decide the main civil suit on the basis of evidence that may be led before the trial Court and in accordance with law. There shall be no order as to costs.
Since the main appeal is dismissed, the civil application for stay loses its survival value and stands disposed of accordingly.
(J.C.UPADHYAYA, J.) * Pansala.
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