IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 FAO.No. 163 of 2008() --------------------- AGAINST THE ORDER DATED 11/04/2008 IN IA 1339/08 IN OS.189/2008 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANTS/PLAINTIFFS : ----------------- BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT/DEFENDANT: ------------------- MOOTHAKKOOTTIL KALAMKOLLI PANKAJAKSHI AMMA, D/O.DAKSHAYANI AMMA, RESIDING AT VADAKKEDATH HOUSE, PALATH AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.SAJAN VARGHESE THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- F.A.O.NO.163 OF 2008 -------------------------------- Dated this the 30th day of June, 2008 JUDGMENT Raman,J. This is an appeal against the order passed in I.A.No.1339/2008, which is an interim application seeking injunction restraining the defendant from alienating and obstructing the plaintiffs from taking usufructs from the property. Appellants are the plaintiffs in O.S.No.189/2008, a suit for specific performance. Appellants contended that they entered into an agreement with the defendant and that an amount of Rs.3,00,000/- was paid by way of advance for the purchase of an extent of 72 cents of land for an agreed rate of Rs.5,800/- per cent. Plaintiffs/appellants relied on the recitals contained in the agreement for the purpose of proving the receipt of advance consideration and no independent evidence as such is adduced at this stage. The court below granted an injunction ex parte under Order 39 Rule 1 C.P.C. Thereafter, on contest after finding that -2- F.A.O.No.163/2008 there is no prima facie case vacated the same. In such circumstances, this appeal is filed. 2. Learned counsel for the appellants contended that pursuant to the agreement the defendant has to comply with various other formalities for getting encumbrance certificate, title deed etc. within the stipulated time which she could not do within time. So later, she was also put in possession of the property. But admittedly, no independent evidence was adduced at this stage to show that she was put in possession of the property. No endorsement to that effect was also made in the agreement. According to the appellants, the court below was not correct in law in showing that there was any violation of the provisions contained in Order 39 Rule 1 of the C.P.C. They also contended that the court below ought not have held that the value fixed in the agreement is too low especially in the absence of any evidence at this stage. The learned counsel for the respondent however supported the order of the court below inter alia -3- F.A.O.No.163/2008 contending that the parties are sisters that the plaintiffs and their mother have no consistent case. Defendant also contended that she had no knowledge about the agreement for sale and it is a forged document. The stamp paper itself was purchased in the name of the 2nd plaintiff only. The defendant was also suffering from some aliments and she underwent an eye operation. In these circumstances, it is improbable that any such agreement would have been signed by her. 3. We have heard both sides. 4. In a temporary injunction application what is to be looked into is the balance of convenience. No other independent evidence was adduced proving the payment of advance consideration. Firstly, there is no evidence on record at this stage to show whether the property is under valued or not. It is proved on evidence that the defendant underwent an eye operation during the period. Prima facie this situation improbabilising the agreement being entered into by the defendant. As regards the -4- F.A.O.No.163/2008 possession, there is no evidence adduced to show that the plaintiffs were taking yield from the property. Considering the totality of the materials produced at this stage, it cannot be said that the view taken by the court below for the purpose of deciding the temporary injunction application is in any way arbitrary or illegal. 5. In this connection, the learned counsel appearing for the respondent strongly relied on the decision of the Apex Court in Seema Arshad Zaheer v. Municipal Corporation (2006 (4) KLT 65 (SC) wherein the Apex Court laid down the aspects to be considered while deciding a temporary injunction application. The appellants have not established a prima facie case nor can it be said that the balance of convenience is in their favour for granting the injunction as sought for. In the result, we find no merit in the appeal. Accordingly, the same is dismissed. However, we make it clear that the observation made by the court below or by us is only for the -5- F.A.O.No.163/2008 purpose of considering the temporary injunction application. Hence, the court below shall dispose of the matter untrammelled by any of the observations made by us in this judgment or by the court below in the impugned order. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.