THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A.Nos.785 of 2011 and 786 of 2011 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) The Civil Miscellaneous Appeal No.785 of 2011 is directed against the Orders passed in I.A.No.409 of 2011 in O.S.No.33 of 2011 and the Civil Miscellaneous Appeal No.786 of 2011 is directed against the Orders passed in I.A.No.410 of 2011 in O.S.No.32 of 2011, by the I Additional District Judge, Karimnagar. The respondents in the above petitions have filed the present Civil Miscellaneous Appeals and the respondents herein are the petitioners in the above said petitions. The petitioners in both the petitions are one and the same and the respondents in the said petitions are mother and son and the pleadings and the point that arises for consideration in both the petitions are also one and the same. Hence these appeals are being disposed of by this common Order. The parties in the appeals are being referred to as mentioned in the petitions before the lower Court. The petitioners have filed the above said petitions for restraining the respondents from alienating the suit schedule land to third parties pending disposal of the suit. According to the petitioners the respondents and their family members inherited the property of Md.Yakoob Ali and the said landed property was partitioned among the respondents and their family members equally and each of the respondents have got 50 guntas of land in three survey numbers. The respondents have offered to sell the said land to the petitioners and they agreed to purchase the same for consideration of Rs.13,25,000/- and executed an agreement of sale dated 04.10.2009. The petitioners paid Rs.2,00,000/- each as advance. As per the terms of the agreement, the petitioners have to pay balance amount of consideration in two installments and it was further agreed that on 15.11.2009 the suit schedule land shall be measured leaving R & B road to fix boundaries and then the petitioners have to pay Rs.3,00,000/- to the respondents and the balance amount shall be paid by them on 20.03.2010 at the time of execution of registered sale deed. The petitioners made ready Rs.3,00,000/- on 15.11.2009 and called the respondents for measuring the land and fix boundaries, but the respondents avoided to measure the land. Therefore, the petitioners got issued legal notice through their advocate on 09.06.2010, but the respondents avoided to receive the said notice. Thereafter, the respondents got issued a notice through their advocate on 17.06.2010 with false allegations. The petitioners approached the respondents and panchayats were held, but the respondents avoided to execute the sale deed. The petitioners came to know that the respondents are negotiating with the third parties to sell the suit schedule land at higher rate. Hence, the petitioners are filed the above said petitions for restraining the respondents from alienating the suit schedule land pending disposal of the suit. The respondents therein have filed the counter admitting about their getting 50 guntas of land in partition and also offered to sell the same to the petitioners for consideration of Rs.13,25,000/- and about the payment of Rs.4,00,000/- (Rs.2,00,000/- in each petition) as advance and also admitted about the terms and conditions of the agreement. But they denied about the readiness of the petitioners with Rs.3,00,000/- on 15.11.2009 and also about their issuing notice on 09.06.2011. According to them, they got issued legal notice on 17.06.2010 stating that as per the terms of the agreement dated 04.10.2009 the agreement stands cancelled and the earnest money paid by the petitioners was forfeited. The petitioners themselves failed to perform their part of contract according to the terms and conditions of the agreement of sale dated 04.10.2009, as such the agreement of sale stands cancelled. Therefore, the respondents are entitled to sell the land to third parties. No oral and documentary evidence was produced before the lower Court by either side. The lower Court has granted interim injunction on 06.04.2011 and after hearing both the parties, made the said interim injunction absolute by the impugned Order. Aggrieved by the said Order, the respondents therein have filed the present appeals. When the appeals along with C.M.A.M.Ps for suspension of the impugned Order are coming up for hearing, this Court has proposed to dispose of the main appeals itself as the point involved in Miscellaneous petitions and Civil Miscellaneous Appeals is one and the same. Learned counsel for the appellants objected for the same by contending that the Civil Miscellaneous Appeals were already admitted by the registry and the appeals cannot be disposed of without issuing notice to the respondents. The said contention of the appellants’ counsel cannot be accepted in view of Order 41 Rule 11 of Code of Civil Procedure. As per Order 41 Rule 11 (1) of Code of Civil Procedure, the appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal. In “Annapu Ramanna v. Ponduri Sreeramulu and others[1]” the Division Bench of this Court has held that “the dismissal of an appeal in limine is certainly the formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the appeal. It is, therefore, a decree as defined under Section 2 (2) CPC.” In “Hari Singh v. Smt.S.Seth [2]”, the Division Bench of Delhi High Court held that “so far as Order 41, Rule 11 (1) is concerned, it is now statutorily made clear that while disposing of an appeal under Order 41, Rule 11 (1) C.P.C., so far as the High Court is concerned, there is no requirement for giving reasons. While it might be very desirable to give reasons, the fact that the High Court, while acting under Order 41, Rule 11 has not given reasons, does not vitiate the judgment not nor can an appellant whose appeal is so dismissed claim that it is no judgment.” In “Mahadev Tukaram Vetale and others v. Smt. Sugandha and another [3]” the three Judges bench of the Apex Court held that “an appeal raising a triable issue should not be summarily dismissed under Section 41 Rule 11 CPC.” The above said decision was relied upon by the Apex Court in a subsequent judgment in “Umakant Vishnu Junnarkar v. Parashuram Damodar Vaidya [4]” and reiterated that “an appeal raising a triable issue should not be summarily dismissed under Section 41 Rule 11 CPC.” Therefore, in view of the above said decisions, it is clear that this Court got the power to dispose of the appeals even without issuing notice to the respondents. Therefore, the contention of the appellants’ counsel that without issuing notice to the respondents, the appeal cannot be disposed of; cannot be accepted. With regard to the merits of the case, the petitioners are claiming that they have purchased the property under the agreement of sale dated 04.10.2009 and paid advance of Rs.2,00,000/- each and as per the terms of the agreement, they are ready for payment of Rs.3,00,000/- and requested the respondents get the land measured by fixing the boundaries and the respondents are evading to measure the said land, thereby they got issued a legal notice. Thereafter, they came to know that the respondents are negotiating with the third parties to alienate the schedule property for higher price. Therefore, they have filed a suit for specific performance and sought for injunction restraining the respondents from alienating the suit schedule property pending disposal of suit. The contention of the respondents is that the petitioners themselves have not performed their part of agreement, as such the agreement stands cancelled and the earnest money paid by the petitioners was forfeited and they also disputed about the boundaries of the suit schedule land. Admittedly, the suit schedule property is in three survey numbers and the identity of the property offered to be sold under the agreement of sale can be decided during the course of trial. The respondents have admitted about the execution of agreement of sale in favour of the petitioners and also about the terms and conditions of the said agreement and also payment of advance of Rs.2,00,000/-. Whether the petitioners or the respondents have violated the terms and conditions of contract, has to be decided during the course of trial. Prima-facie, at this stage the agreement of sale was admittedly executed by the respondents in favour of the petitioners. According to the petitioners in violation of the said agreement, the respondents are trying to alienate the said property to the third parties. The said fact was not denied by the respondents, on the other hand they pleaded that since the agreement stands cancelled, they are entitled to sell the land to third parties. Therefore, it is evident that the respondents are taking steps to alienate the said property in favour of the third parties. If the respondents are permitted to alienate the said property, it would lead to multiplicity of litigation and the purpose of filing of suit for specific performance would be defeated. Therefore, the lower Court has rightly granted injunction in favour of the petitioners. On perusal of reasoned Order given by the lower Court, we do not find any reason to differ with the findings recorded by the lower Court in granting injunction in favour of the petitioners. Therefore, the said Order does not warrant any interference by this Court in these appeals. In the result, Civil Miscellaneous Appeal Nos.785 of 2011 and 786 of 2011 are dismissed without costs. The Court below is directed to dispose of the suits as expeditiously as possible. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:16-09-2011 Ksp [1] AIR 1958 Andhra Pradesh 768 [2] AIR 1996 Delhi 21 [3] AIR 1972 Supreme Court 1932 [4] AIR l973 Supreme Court 218