The above Civil Miscellaneous Appeal has been filed by the appellant/plaintiff against the Order and Decreetal Order dated 10.08.2009, passed by Principal District Judge, Villupuram, in I.A.No.327/2008 in O.S.No.102/2008.
2.Aggrieved by this Dismissal Order, the appellant/petitioner/plaintiff has filed the above appeal for setting aside the dismissal Order.
3.The short facts of case are as follows:
The plaintiff filed the suit O.S.No.102 of 2008 along with Interlocutory Application No.327 of 2008, against the 1st to 6th defendants. The plaintiff stated that the defendants had agreed to sell the suit properties in Villupuram Taluk, in Orathur Village, which are described under bearing Survey Numbers:
1.Dry Survey No.293/7 - 0.60 Acres
2.Dry Survey No.294/3 - 0.29 Acres
3.Dry Survey No.294/8 - 1.08 Acres
4.Dry Survey No.295/1B - 1.05 Acres
5.Dry Survey No.295/2 - 0.92 Acres
6.Dry Survey No.295/3 - 0.06 Acres
7.Dry Survey No.294/5 - 1.54 Acres
8.Dry Survey No.296/1B1 - 0.97 Acres
9.Dry Survey No.296/1A - 1.03 Acres
10.Dry Survey No.296/1B3 - 1.92 Acres
11.Dry Survey No.296/1B2 - 1.92 Acres
12.Dry Survey No.294/1 - 0.80 Acres
13.Dry Survey No.294/4 - 0.65 Acres
14.Dry Survey No.294/2 - 0.35 Acres
15.Dry Survey No.294/7 - 0.56 Acres
16.Dry Survey No.294/9 - 0.20 Acres
17.Dry Survey No.294/10 - 0.52 Acres
18.Dry Survey No.294/11 - 1.16 Acres
19.Dry Survey No.294/12 - 0.52 Acres
20.Dry Survey No.294/13 - 1.98 Acres
21.Dry Survey No.294/14 - 0.82 Acres
22.Dry Survey No.294/6 - 1.72 Acres
23.Dry Survey No.294/15 - 0.88 Acres
24.Dry Survey No.306/2 - 1.29 Acres
25.Dry Survey No.306/3 - 1.10 Acres
26.Dry Survey No.306/4 - 0.38 Acres
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24.31 Acres
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4.The defendants had agreed to sell the above mentioned properties for a sum of Rs.1,45,86,000/-. Out of the sale consideration, the plaintiff had paid Rs.10,00,000/- as advance/sale consideration for the above said properties. The agreement period was for three months with effect from 20.01.2008. Further, the 1st to 5th defendants had agreed to give consent deed after obtaining the same from other co-owners. It was agreed that if the defendants did not come forward to execute the sale deed as per the agreement, the plaintiff could approach the Court to deposit the balance sale consideration in the Court and get the sale deed through Court. As per agreement, the sale deed could not be executed. Hence, the plaintiff issued legal notice through his counsel on 16.04.2008 ie. prior to the expiry of the said sale agreement, wherein the plaintiff had asked the defendants to receive the balance sale consideration of Rs.1,35,86,000/- and execute the sale deed. After receipt of the legal notice, the defendants sent a reply on 18.04.2008. In this reply letter, the defendants had expressed their willingness to execute the sale deed after receiving the balance sale consideration and it had also been pointed out that it was the plaintiff, who had been the cause for the delay in execution of the sale deed. The plaintiff had issued a rejoinder to this letter stating that he had approached the defendants, several times, for execution of sale deed and that the delay has not been caused by him and that he was willing to pay the balance sale consideration. Thereafter, as there was no response from the defendants, the plaintiff sent another legal notice dated 24.04.2008, wherein the plaintiff had once again expressed his readiness and willingness to pay the balance sale consideration. The defendants sent a legal notice on 29.04.2008 to the plaintiff and admitted the sale agreement dated 20.01.2008, but blamed the plaintiff that he had not come forward to execute the sale deed.
5.Thereafter, the plaintiff approached the Principal District Court, Villupuram and filed Original Suit O.S.No.102 of 2008 and prayed for
(a)directing the defendants to execute a sale deed in favour of the plaintiff or in the name of persons nominated by him on receipt of balance amount of Rs.1,35,86,000/- in sale consideration at his costs and in the event of non-compliance by the defendants, this Hon'ble Court may be pleased to execute a sale deed in favour of the plaintiff or in the name of persons nominated by him;
(b)in the alternative directing the 2nd to 5th defendants personally and 6th and 7th defendants to pay a sum of Rs.20,55,666.66 as damages, from and out of the estate of the deceased 1st defendant, which had been left in their hands, with subsequent interest at 12% per annum on Rs.20,00,000/- from the date of the suit till the date of realisation,
(c)directing the defendants to pay the costs of the suit, and
(d)granting such other relief or reliefs, which this Hon'ble Court may deem fit in the circumstances of the case.
6.The plaintiff sought interim prayer for the Principal District Court, Villupuram in I.A.No.327 of 2008, in O.S.No.102 of 2008, wherein it has been prayed that "this Honourable Court may be pleased to grant an order of temporary injunction restraining the respondents, their men, agents and servants from interfering with my peaceful possession and enjoyment of the suit properties, till the disposal of the suit and also to grant an order of ad-interim injunction exparte to the above effect till the disposal of this application".
7.The second defendant filed a written statement in the suit, wherein, it had been stated that they had agreed to sell the properties for Rs.6,000/- per cent, but that they had not agreed to sell the total extent of 24.31 Acres, as has been alleged by the plaintiff. All the suit items except suit Item No.7 was agreed to be sold and so the suit 7th item is not the subject matter of the agreement. It was also stated that it was true that an agreement was entered into between the parties but, the allegation that the possession of the suit property has been given to the plaintiff was false. It was accepted by the defendants that the plaintiff has been given power to convert the properties into several plots after possession has been given under the sale deed. The defendant has further denied the allegations in the plaint that the consent deeds have to be handed over to the plaintiff and a period of three months have been fixed for the execution of the sale deed, that the sale transaction will be effective only after the handing over of the consent deeds and that time is not the essence of contract. The second defendant has stated that the above allegations are false and has denied them. Further, the defendant has narrated that the plaintiff had also filed O.S.No.166 of 2008, before the District Munsif Court, Villupuram, on the same cause of action, against the defendants.
8.The plaintiff has narrated in the plaint that he is in physical possession and he has levelled up the entire properties and divided the properties into plots, fixed the stones and formed roads and thus he has formed a layout, for which he had spent not less than Rs.10,00,000/-. Further, the plaintiff has entered into an agreement of sale with third parties to sell the properties.
9.The defendants filed a Counter statement in I.A.No.327 of 2008 and the same was adopted by the 2nd to 4th defendants. In the said Counter Statement, the defendants have stated that they had not denied the sale agreement entered with the plaintiff dated 20.01.2008, but the plaintiff has not complied with the terms and conditions of the said agreement, and had also denied the other averments made by the plaintiff.
10.The learned Principal District Judge, after perusal of 13 exhibits and the plaint, affidavit, written statement and counter statement, filed by the both parties and after hearing the arguments advanced by the learned counsel for their respective parties, has passed an Order as follows:
"Though the plaintiff has been given powers to level the land, the possession and enjoyment of tile for the said properties has not been handed over to him. When the sale agreement was entered into between the parties, the sale consideration for the suit property was fixed as Rs.1,45,86,000/- and the plaintiff had paid an advance of Rs.10,00,000/- towards said sale consideration. It was agreed that the plaintiff had to pay the balance amount of Rs.1,35,86,000/- within three months from the date of sale agreement. But, the plaintiff had not made any efforts to pay the balance sale consideration. As such, in the first instance, it is evident that the plaintiff has not proved Primafacie that he has a strong case in hand. Even, if the temporary interim Order is not granted, the plaintiff will not be put to irreparable loss. If the plaintiff is allowed to divide the suit property into plots and sell it to third parties, the 1st to 4th defendants will be forced to filed several suits. Though the plaintiff has filed this application praying for specific performance, he has also prayed for an alternative remedy ie. compensation for loss incurred by him in the transaction so far, it is evident that the plaintiff does not have capacity and adequate source of income to pay the balance sale consideration of Rs.1,35,86,000/-. So, the Principal District Judge, on consideration of the above aspects, dismissed the Interlocutory Application of the plaintiff, stating that the application did not have any strong basis for grant of a temporary injunction order."
11.Challenging this Order, the appellant/plaintiff has filed the above Civil Miscellaneous Appeal on various grounds, to set aside the Order and Decreetal Order dated 10.08.2009, passed by Principal District Judge, Villupuram, in I.A.No.327 of 2008, in O.S.No.102 of 2008. The learned counsel for the appellant has contended that the learned Judge has drawn adverse interference against the plaintiff as if the plaintiff has no case for specific relief since the plaintiff has sought for the alternative prayer for damages, which is wholly unsustainable. Further, the finding of the learned Judge that by not granting injunction, there won't be irreparable loss for the plaintiff is perverse and against the facts of the case. The plaintiff has spent a sum of Rs.10,00,000/- for developing the property pursuant to the agreement of sale and paid as Rs.10,00,000/- as advance and these facts have not been considered by the learned Judge.
12.Further, the adverse finding of the learned Judge that the plaintiff has not income or capacity to pay the balance sale consideration is absolutely without any basis. Merely because the alternative prayer for damages has been sought for the creditability and ability of the plaintiff cannot be doubted. The finding of the learned Judge that to prove the Prima facie case, the plaintiff has not taken any steps to get the sale executed by paying balance sale consideration, within three months from the execution of the sale agreement is mis-construction of facts. In the sale agreement itself, it is clearly mentioned that the three months period commences from the date of production of the consent deeds. The plaintiff has sent letter dated 16.04.2008 and 24.04.2008 requesting the defendants to produce the consent deeds and for execution of the sale deed. The learned Judge has erred in not appreciating the fact that the plaintiff has developed the property and his notices for specific performance against the defendants.
13.The learned Judge erred in his finding that the plaintiff ought to have got permission before filing the suit for specific performance, since the plaintiff has filed suit in O.S.No.166 of 2008 for bare injunction, on the file of the Principal District Munsif. The earlier suit filed is only for a bare injunction and there is no legal bar in filing the suit subsequently for specific performance, which aspect was misconstrued by the learned Judge.
14.Therefore, the learned counsel for the appellant has prayed for setting aside of the Order and Decreetal Order of the learned Judge, Principal District Court, Villupuram.
15.The learned counsel for the appellant has vehemently argued that the claim of the respondents/defendants that the sale agreement stands cancelled as per their reply dated 29.04.2008 is totally without any basis because the balance sales consideration was to be paid only within three months from the date of production of consent deeds and not three months from the date of agreement as alleged by the respondents/defendants and the letter dated 24.04.2008 sent by the appellant/plaintiff to the respondents/defendants confirms the above contention of the appellant. The respondents/defendants in their reply have admitted to the fact that agreement for sale is more or less like a power of attorney and there was specific authorisation in favour of appellant/plaintiff to deal with the property to get sanction from local authorities and developing the property.
16.The recital of the agreement of sale would show that actual possession has been handed over by the respondents and they have authorised appellants to lay stones, to develop and do the other things as stipulated under the agreement. The work of laying stones, cutting trees and developing the property cannot be done without physical possession. The appellant has pleaded that possession was handed over and he has spent a sum of Rs.10,00,000/- in developing the property. Without appreciating the pleadings to the effect that appellant has spent huge sum of money in developing the property, Court below has simply stated that there is no irreparable loss of injury to the appellants.
17.Further, the learned counsel for the appellant has contended that the earlier suit was filed on 30.04.2008 and while it was pending, the respondents/defendants got consent deed on 02.05.2008 from one of the vendors as per the agreement and so there is a change in circumstances and at that juncture alone, the petitioner filed subsequent suit for specific performance.
18.Further, the learned counsel for the appellant has pointed out that the I.A. Is only for injunction and at the most the Court could only determine whether the petitioner is in possession or not but the learned Judge had decided the suit itself by holding observations against the appellant/plaintiff without even conducting Trial.
19.Further, the learned counsel for the appellant in supported of his case has cited the legal rulings made in AIR 1997, Punjab & Haryana High Court, Sohan Singh and Others Vs. Fauja Singh and others, the relevant head notes of which is as under:
"Civil P.C.(5 of 1908), O.2, R.2 Specific performance Suit for Earlier suit for permanent injunction by plaintiff Dismissal of Would not bar suit for specific performance.
The plaintiff filed a suit for specific performance against vendor on the basis of the agreement for sale executed by the vendors. Some other persons who were alleged to be in possession of the suit property were also impleaded as defendants. The stand of these defendants was that the plaintiff had earlier filed a suit against them and it was dismissed. According to the defendants the suit for specific performance was barred under O.2, R.2, Civil P.C. The defendants had filed a suit against the vendor which ended in a compromise decree. There was endorsement on the back of the agreement for sale, extending the date of execution of sale deed till disposal of the suit by the defendants against the vendor. Since the defendants did not adduce satisfactory evidence as to when they filed suit against the vendor, it was possible that the plaintiff filed suit against them during pendency of their suit against the vendor. The suit earlier filed by the plaintiff against the defendants was for permanent injunction restraining vendor from alienating the property to defendants. During pendency of that suit by defendants, the plaintiff could not have filed suit for specific performance was not barred under O.2, R.2, C.P.C. Because of the earlier suit for permanent injunction filed by him."
1996 AIHC 847, Punjab and Haryana High Court, Gurjit Singh, v. Bant Singh, the relevant head notes of which is as under:
"(A) Specific Relief Act (47 of 1963), S.10 Specific performance Agreement to sell Advance amount paid Plaintiff ready with cash and willing to perform his part of contract Suit cannot be dismissed merely because statement of facts in plaint is not word for word reproduction of form 47, 48 of 1st schedule.
(B) Civil P.C. (1908), O.2, R.2 Relinquishment of Part of claim Agreement to sale Suit for issue of injunction restraining other party from alienating land Subsequent suit for specific performance Second cause of action not accrued when suit for injunction instituted Cause of action in both suits different No question of relinquishment or omission to sue part of claim Provisions of O.2, R.2 not attracted Plaintiff not debarred from claiming relief of specific performance.
2005 (5) CTC 418, High Court of Madras, Jayachitra Vs. A.N.S.Nall Azhagu and Others, the relevant head notes of which is as under:
"Code of Civil Procedure, 1908, Order 39, Rule 1 Grand of Injunction by Courts Criterion for consideration Consideration of question of grant of injunction requires Court to find out prima facie case in favour of person seeking injunction, question of irreparable loss to such applicant and balance of convenience Detailed analiysis of various materials not to be undertaken while considering such interim applications Even at appellate stage Court is equally expected to consider above aspects prima facie Detailed discussion regarding prose and cons of the rival cases is to be eschewed, to avoid prejudice to the parties Prima facie case means the party is not expected to prove his case to the hilt."
20.In the affidavit filed by the second respondent, which has been filed as a common Counter affidavit on behalf of the 1st, 3rd, 5th and 6th respondents, it was submitted that the petitioner/appellant herein had filed the suit O.S.No.166 of 2008, on the tile of the learned District Munsif, Villupuram, against them for permanent injunction, on the basis of agreement of sale restraining them from interfering with his peaceful possession of the suit properties before filing the present suit in O.S.No.102 of 2008, on the file of the learned District Judge, Villupuram, for specific performance. It has been contended that the relief of specific performance should have been sought for in the earlier suit in O.S.No.166 of 2008, pending on the file of the learned District Munsif, Villupuram. The petitioner having omitted the same in the suit, is barred from filing the present suit.
21.It has been submitted that though an agreement was entered into between the parties it is false to allege that the possession has been given to the petitioner/appellant. The petitioner was only given permission to level the suit properties under our supervision and possession of suit properties had not been given to the petitioner. Further, in our notice dated 18.04.2008, it has been clearly stated that we are ready with the entire documents and the agreement would get cancelled automatically by efflux of time on 20.04.2008. The allegation that the petitioner has entered into agreement with prospective purchasers is false and incorrect and the suit itself is not maintainable in law as the petitioner has no title at all in respect of the suit properties and he cannot enter into any agreement in favour of the third parties. Further, the learned District Judge has held that the present suit is barred under Order 2 Rule 2(3) of C.P.C. It has been submitted by the second respondent that they are in possession of the suit properties and that the allegation of the petitioner/appellant that we would interfere in the suit property and alter the encumber and defeat his lawful claim over the suit property is false and incorrect.
22.Further, it was pointed out that the petition for granting interim injunction before the Honourable Court is not maintainable when no relief of injunction was prayed in the suit before the lower Court. Granting an Order of interim injunction at this stage is nothing but granting the relief of possession, even before trial is over. It is nothing but virtually decreeing the suit in interlocutory stage itself.
23.The learned counsel for the respondents in support of their claim had cited case laws made in O.S.A.Nos.122 and 123 of 1991, Madras High Court, T.Parameshwari and 4 others v. S.S.Investments Private Ltd., and another; Devi Palanisami v. S.S.Investments Private Ltd., the relevant head notes of which is as under:
"Specific Performance, Transfer of Property Act, Ss.53-A and 54, Specific Relief Act (1963), Ss.15, 19, 24 and 41, and C.P.C., O.39, R.1, Injunction Part performance, plea of, available for use only as a shield and not as a sword, and can be used only as a shelter of defence under law Principle.
Possession in part performance of a contract in the hands of a transferee, nature of.
Injunction, granting of, in a suit for specific performance Guiding principles in S.41 of Specific Relief Act Order granting injunction, reversed on appeal."
"Held: The impugned order is vitiated for non-application of the principles that control the discretion of the court in granting temporary injunction in a suit for specific performance of a contract for sale of immovable property.
There are no such facts disclosed in the plaint or in the application, for temporary injunction, upon which the court should depart from the ordinary rule that until specific performance decree is granted no interest of the plaintiff should be recognised in the suit property.
The principle applied by the trial judge in this case that plaintiff-respondent has got a prima facie case, that the balance of convenience is in its favour and that there would be great hardship to it which cannot be compensated in terms of money are principles applied as tests to hold in favour of the plaintiff; in a suit for injunction and/declaration and consequential injunction, but not in a suit for specific performance of a contract for sale."
AIR 1981 Mad 310, Krishnamoorthy Koundar v. Paramasiva Koundar the relevant head notes of which is as follows:
"Suit for specific performance of agreement of sale Grant of temporary injunction Prospective vendee in possession of property He cannot be granted temporary injunction to enable him to protect his possession."
2009-3-L.W.456, Madras High Court, Bhagawath Devi v. Aswin C.Jain "26.From the above facts, it is very clear that the cause of action for filing the specific performance suit already arose even at the time of filing the previous suit in O.S.No.7549 of 2006. In fact, only on the basis of the observations made by the court in O.S.No.7549 of 2006 that as per the clauses contained in the agreement dated 15.02.2006, the relief of specific performance could be asked for, the latter suit has been filed by the respondent/plaintiff in O.S.No.1959 of 2007. It is an admitted fact that no appeal has been filed against the order dated 27.10.2006 made in I.A.No.16784 of 2006 in O.S.No.7549 of 2006. It is also an admitted fact that before filing the latter suit in O.S.No.1959 of 2007, no leave has been obtained by the respondent/plaintiff from the court where O.S.No.7549 of 2006 is pending. In such circumstances, having failed to claim larger relief at the time of filing the earlier suit, and having failed to obtain leave for filing a fresh suit for the omitted claim before filing the later suit, it is not open to the respondent/plaintiff to claim the relief of specific performance in the latter suit. As rightly pointed out by the learned counsel for the revision petitioner, the entire facts as narrated above would clearly prove that the provisions of Order II Rule 2 C.P.C. Get attracted and therefore, the suit is barred by Order II Rule 2 C.P.C. But, the trial court has failed to advert to the facts in the proper perspective and wrongly held that causes of action are different without realising that even at the time of filing the earlier suit, there was a cause of action for the respondent/plaintiff to claim the relief of specific performance."
AIR 2001 DELHI 220, Kamal Kishore Saboo v. Nawabzada Humayun Kamal Hasan Khan, the relevant head notes of which is as under:
"Omission to sue for all reliefs Suit for permanent injunction restraining respondent from alienating suit properties Averments in suit and cause of action disclosed therein stating that respondent was not willing and failed to perform his part of contract Appellant claiming relief of injunction only and omitted to claim relief of specific performance Subsequent suit for specific performance not maintainable."
24.The learned counsel for the respondents vehemently argued that the appellant/plaintiff has no financial source, to purchase the suit property. Further, the plaintiff had filed two suits namely the present suit O.S.No.102 of 2008 for specific performance and an earlier suit O.S.No.166 of 2008 for bare injunction. For same cause of action, two suits had been initiated by the plaintiff against the defendants, which is res-judicata. The appellant/plaintiff is not in a possession of the suit property. As such, the appellant is not entitled to get interim injunction restraining the respondents mens, agents etc., from interfering with the suit property. The learned District Judge passed the Order in I.A.No.327 of 2008, which is fair and a well reasoned one. As such, the Civil Miscellaneous Appeal is not maintainable.
25.After considering the facts of the case, order and decreetal order passed in I.A.No.327 of 2008, in O.S.No.102 of 2008, on 10.08.2009, by the Principal District Judge, and after hearing arguments of learned counsel on either sides, and perusal of sale agreement, citations on eithersides, this Court is of the view that the suit O.S.No.102 of 2008 has got to be necessarily tried as several issues have to be resolved. All the issues can be decided only after recording the evidence of both sides and marking of documents of the parties concerned. Further, the Court is of the view that the interim prayer prayed by the appellant/plaintiff is to be considered on the basis of the fact that the respondents/defendants had categorically admitted that they had received advance sale consideration on 20.01.2008. Further, the respondent/defendants had agreed vide their reply letter dated 18.04.2008 that they were willing to execute the sale deed in favour of the appellant/plaintiff but that the appellant/plaintiff had not come forward to execute the same. The same was also confirmed in their second notice, dated 24.04.2008, sent through the respondents/defendants counsel. The appellant/plaintiff narrated his willingness and readiness to purchase the said suit property through his lawyer notice, dated 16.04.2008 and 24.04.2008 sent to the defendants/respondents.
26.This Court, after perusal of the legal notice of the plaintiff and the reply notice of the defendants, and plaint averments and contents of the written statements of both parties is of the view that these have arisen from original sale agreement dated 20.01.2008. The said agreement has been duly signed by both parties. So, this Court considers the sale agreement as a vitally important document. In the said sale agreement, the respondents have duly permitted the appellant to level the suit property, to plot out the property to lay stones in the property and to form roads. In addition to this, the respondents have permitted the appellant to enter into sale agreement with third parties and after such plots have been marked the appellant has been given the right to get approval from the Director of Rural Development Authority, Chennai and Koliyanur Panchayat Union, Koliyanur. The said consent duly given to the appellant herein can be treated only as permissible possession. As such, this Court view that the appellant is in physical possession and it is also a lawful one. As such, the appellant is entitled to get interim injunction restraining the respondents and their men, agents, servants etc., from interfering with the suit scheduled mentioned properties.
27.Therefore, this Court sets aside the order and decreetal order dated 10.08.2009 passed by the Principal District Judge, Villpuram, in I.A.No.327 of 2008 in O.S.No.102 of 2008 and allows the appeal.
28.This Court directs the Principal District Judge, Villupuram to depose the case in O.S.No.102 of 2008 within a period of six months from the date of receipt of this Order. The parties are directed to bear the cost in this appeal.
krk To
1.Principal District Judge, Villupuram.
2.The Section Officer, VR Section, High Court, Madras