IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 FAO.No. 183 of 2011 ---------------------------- I.A.1405/2011 IN OS.153/2011 of SUB COURT, OTTAPPALAM .................... APPELLANT (S): PETITIONERS: ------------------------------------------- 1. MUSTHAFA MUHAMMED, S/O. PARAMBILPEEDIKA ALI, PATTISSERY AMSOM, NELLAYA DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. NOUSHAD, S/O. KOROKKOYIL HAMSA, KOLAPPARA AMSOM, MARAYAMANGALAM DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT(S): RESPONDENTS: ----------------------------------------------- 1. SHIHABUDHEEN, S/O. KARUVANKUZHI YOUSAF, VILAYOOR VILLAGE, VILAYOOR DESOM, P.O. VILAYUR - 679 309, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. SEENATH, W/O. CHOLAYIL ALI, AMAYUR AMSOM DESOM, P.O. AMAYUR - 679 310, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O.No.183 of 2011 ----------------------------------------- Dated, this the 28th day of July, 2011 J U D G M E N T K.M.Joseph, J. Appellants challenge the order passed by the Sub Court, Ottapalam in I.A.No.1405/2011 in O.S.No.153/2011. Appellants are the plaintiffs in the suit. The suit was filed for specific performance of the agreement allegedly entered into between the appellants and the respondents dated 2.8.2010. I.A.No.1405/2011 was filed for temporary injunction restraining the respondents from alienating the petition schedule property to strangers. Appellants have paid Rs.2 lakhs on the date of agreement. 2. The respondents filed counter wherein it is inter alia contended that it was the appellants who failed to perform their part of the agreement. As per the stipulations contained in the agreement, the appellants had to pay a sum of Rs.1 lakh towards balance consideration within a period of three months. It was for the treatment of their uncle that the respondents agreed to sell the plaint schedule property. The operation was over on FAO 183/2011 -2- 28.5.2011. Respondents filed IA No.1467/2011 for directing the appellants to deposit the balance consideration. They did not deposit. It is the case of the respondents that it is only after paying the balance consideration they have got obligation to hand over the basic title deed. Now, the respondents are not intending to sell the property as their need for money no longer exist. 3. The court below noted that lis pendens applies. It is further noted that IA No.1467/2011 was filed by the respondents for directing the appellants to deposit the balance consideration within one week so as to execute the sale deed. The application was filed on 23.5.2011. In the counter affidavit filed by the appellants to the said application it is stated that they are not ready to deposit the amount without satisfying themselves about the extent of the property. On the said basis the court below found that the appellants were not ready to deposit the balance consideration even on 23.5.2011. The court noted that the appellants have got reason to suggest. Thereafter, the court found that there is nothing in the agreement to suggest that there was an obligation on the part of the respondents to convince the appellants about the extent available before executing the sale deed. FAO 183/2011 -3- 4. According to the learned counsel for the appellants, the finding of the court below is not correct. According to him, the original title deed was not available. According to the learned counsel for the appellants, the appellants were ready with money and the respondents have not co-operated for measuring the property. In the order it is stated that on the date of hearing of the petition, learned counsel for the appellants had submitted before the court that the appellants are ready with the balance consideration and that the counsel was carrying a bag containing cash. 5. We heard the learned counsel for the respondents who no doubt contend that the appellants were not ready with money even pursuant to the direction in the IA filed by the respondents. The cash was needed at the time of treatment of the uncle. He would also press into service the principle of lis pendens. 6. After having heard the learned counsel for the parties, we would think that interest of justice would be subserved in the circumstances having regard to the admitted execution of the agreement, payment of Rs.2 lakhs as advance, the contentions which the appellants have about the prior documents FAO 183/2011 -4- not being available and also the contention that the property was not measured and to avoid multiplicity of proceedings and supervention of 3rd parties that an injunction be granted. Accordingly, we set aside the impugned order, allow I.A.No.1405/2011 and grant an order of temporary injunction restraining the respondents from alienating the plaint schedule property to strangers till the disposal of the suit. We further direct that O.S.No.153/2011 will be taken up and disposed of at the earliest, and, at any rate on or before closure of Courts for Christmas vacation, 2011. We further make it clear that , the Sub Court, Ottappalam will dispose of the suit untrammelled by anything contained in the order passed by us. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS