IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 FAO.No. 190 of 2009() --------------------- AGAINST THE ORDER IN IA 1429/09 IN OS.208/2009 of PRL.SUB COURT,KOTTAYAM .................... APPELLANTS/COUNTER PETITIONERS/DEFENDANTS --------------------------------------------------------------------------- 1. VARGHESE P.OMMAN, PILLACHIRA HOUSE,INDUSTRIAL ESTATE NAGAR (P.O.), VEROOR MURI,CHETHIPUZHA VILLAGE, CHANGANACHERRY TALUK. 2. ANNAMMA VARGHESE,W/O.VARGHESE P.OMMAN, PILLACHIRA HOUSE,INDUSTRIAL ESTATE NAGAR (P.O.), VEROOR MURI,CHETHIPUZHA VILLAGE, CHANGANACHERRY. BY ADV. SRI.C.C.PADMAKUMAR RESPONDENT(S): PETITIONERS/PLAINTIFFS --------------------------------------------------------------- 1. ABDUL MAJEED, ROSE VIEW,NEAR RAILWAY STATION, CHANGANACHERRY VILLAGE,CHANGANACHERRY TALUK. 2. KHALSAM MAJEED,W/O.ABDUL MAJEED, ROSE VIEW,NEAR RAILWAY STATION, CHANGANACHERRY VILLAGE,CHANGANACHERRY TALUK. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 190 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of August, 2009. JUDGMENT Bhavadasan, J, The suit, O.S. 208 of 2009, was instituted before the Sub Court, Kottayam seeking a direction to the defendants to execute a sale deed in favour of the plaintiffs as per a re- purchase agreement dated 9.5.2008 and to hand over possession of the property to them. The suit seems to have been filed in the vacation court and an interlocutory application was moved by the plaintiffs. The vacation court granted an ex- parte order of injunction. 2. An item of property with a building therein was assigned to the defendants by the plaintiffs as per document No.1159/08 of S.R.O. Changanacherry dated 9.5.2008. On the same day itself, the parties entered into a re-purchase agreement, whereby the defendants agreed to re-convey the property to the plaintiffs. The plaintiffs would say that they F.A.O. 190/2009. 2 were constrained to execute the sale deed since they wanted money to clear their debts immediately. Even though the plaintiffs claimed that they were ready and willing always to go through with the re-purchase agreement, the defendants avoided the execution of the same under one pretext or other. Ultimately a notice was sent to the defendants and they replied raising false contentions. 3. The defendants on the other hand contended that though there was a re-purchase agreement, the plaintiffs did not come forward to complete the transaction during the period of the agreement and time being the essence in a contract of re-purchase, the plaintiff was not entitled to the relief. Defendants therefore claimed absolute possession and enjoyment of the property and they pointed out that the plaintiffs have committed breach of contract and they are to be non-suited. 4. When the matter reached the regular court, the defendants filed their counter to I.A. 618 of 2009, which was renumbered as I.A. 1429 of 2009 and the matter was heard on F.A.O. 190/2009. 3 merits. 5. The court below after considering the materials before it modified the interim order as follows: “The defendants or anybody under them are restrained from alienating the plaint schedule property to strangers and from encumbering the same and from committing any act of waste therein till the disposal of the suit.” It is the said order that is assailed in this appeal. 6. One fact may at once be noticed. The sale and re- purchase agreement are admitted by both the parties. There is no dispute even by the appellants that they had agreed to re-convey the property to the plaintiffs. But their sole case is that the plaintiffs were not willing to perform their part of the contract within the time stipulated in the re-purchase agreement and therefore they had committed breach of contract. After the stipulated date, the appellants had no obligation to execute the re- conveyance deed in favour of the plaintiffs. F.A.O. 190/2009. 4 7. The issue as to whether time is the essence of the contract and whether the plaintiffs were guilty of breach of contract etc. are matters to be decided in the suit. While the plaintiffs asserted that it was due to the fault of the defendants that the re-conveyance was not made, the defendants say otherwise. There is also no dispute regarding the fact that by virtue of the sale deed in favour of the defendants, they were in possession and enjoyment of the property. It was considering all the aspects that the court below has passed the impugned order. One fails to see how it actually affects the rights of the appellants. They have been restrained only from alienating the property and committing waste therein or encumbering the same. Even if there is no injunction, any assignment or dealing with the property during the pendency of the suit is covered by the principle of lis pendens. The injunction regarding encumbering the property and committing waste therein are only intended to protect the subject matter of the lis. The order of injunction therefore cannot be said to be F.A.O. 190/2009. 5 prejudicial to the interests of the appellants. The result is that there is no merit in this appeal and it is liable to be dismissed. The appeal stands dismissed in limine. The court below will make every endeavour to dispose of the suit as expeditiously as possible, since it is stated that huge sum is involved in the transaction. P.R. Raman, Judge P. Bhavadasan, Judge sb.