^; IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC.APPEALNo.6? OF 2007 mn^ f MISCELLANEOUS APPEAL UNDER XLIII RULE Kr) OF CODE OF CIVIL PROCEDURE 1908 4 APPELLANT ptAINTIFF Shyam Kumar Narang, ' aged 36 years, S/oLate Shri H. R. Narang, Resident Of behind Kalimandir, Kali Nagar, Pandritarai, Raipur District Raipur (Chhattisgarh) RESPONDENTS /DEFENDANTS ^,/ ^ M^' ,» V ER S U S >. SmtJyothi Jathi, aged about lf 55 years, W/o Dilip Kumar Jathi, 2^- Shri Dilip Kumar Jathi, S/o y / ^ v - /^/ / ^ ^ /" ^- <?•<y > Late Hiralal Jathi, aged about 62 years, Both residents of behind Anmol Complex, Awanti Vihar, Raipur, District Raipur (Cnhattisgarh) Sri Rawatpura Sarkar, Lok Kalyan Trust, Rawatpuradham Tahsil Lahar, District Bhind Through Managing Trustee/ -^eiary Atui Kumar Tiwari S/o Late Kailashs Chand Tiwari, R/o Mukut Nagar, Raipur (Chhattisgarh) ,,4. State of Chhattisgarh through Collector, Raipur (CG) MISCELLANEOUS APPEAL UNDER XLIII RULE 1frl OF CODE OF CIVIL PROCEDURE 1908 XI-HC-78 3^?T^)TR^i<=h cTSr[3Tf^T5b^ich 3^" ^|^t<-t<Lt^ ^TTl^^Ko, [^dl^y ^\^A -^O • o^c^- <41<4^1 9h+11<sh ^R[ 200^ W^\ M?|cb (y<^<s<^) ^cTTW^f^T^Ti^T 14.02.2007 Shri Ashish Shrivastava. d< Heard on admission. The appellant is aggrievel: by the XIVth Addjtional Disfrict 4 pleaded) that chl^Id41^ Wraf ^ fe^ <^^1< ^3:rf^T3TT^T >unsel for the appellant. by an order dated 30.12.2006 passed idge (F.T.C.) Raipur in Civil Suit No. 22 A/2006 whereby the application flted by the appellant under Order 39 Rute 1 & 2 C.P.C. was dismissed. The appellant/plaintiff had| had agreed to sell the suit lands | advance of Rs. 1,50,000/- as parties on 30.6.2005. In the plaif 3.6.2005. Itwasfurther an additional sum of Rs. 2,0{ Rs. S.00,000/- on 9.11 .2005 as p^ agreement, the sale deed was to I Suit tands were not mutated in th< date of agreement. The defend^ sate deed in favour of the the suit lands jn favour of and 3 on 17.10.2006fortotal filed civjl suit on 25.11.2006 confract and for a permanent jnj from altering the structure ofthe quo. An application under Order| making a prayer to that effect. pleaded that the defendants No. 1 & 2 3,90,000/- per acre and had received Iper agreement executed between the it, date of agreement was mentioned as the defendants No. 1 & 2 received P.OOO/- on 7.10.20(» and a sum of »rtconskleration. Under clause 4 of the • |be got executed on or before 31.1.2006. name ofdefendants No. 1 and 2 on the |ints No. 1 & 2 mstead of executmg the three registered sale deeds of dejivered possession to the defendant No. of Rs.24,35.000/-. The plaintiff pitaying for specific performance of the jljnction to restrain the defendant No. 3 ^uit lands and for maintainjng the status 139 Rule 1 & 2 of C.P.C. was also fited plamtjffjexecuted consklteration 2 F.1.0. XI-HC-78 ^SET ^||A<|d^l, ^y41<i, t^^w^ (H ^ » ^v^ . <^ ^ ^I<4<<1I sh+lich ^ 200^ w^\w* (^I^^) 3T1^T^)T^:ri^) cT^TTW^T5h^lch ?^<ffW^f?cT^T^T -2-. chl^lld^^ ^l^dT^te1:^'<Rl^l< ^3Tf^T^TT^T The defendants resisted th^ application and contended that since the plaintiff had failed to perform (iis part of the contract in terms of the agreement, he was not entitled to fhe retief prayed for. The leamed XIVth Additional District Judge (FTC) Ra|ipur atthough found the existence of a prima facie case in favour of the( plaintiff, it dismissed the application under Order 39 Rule 1 & 2 filed b^ the appellant /plaintiff on the ground that time was the essence of the c^ntract and the ptaintiff had failed to get the sate deed executed wjthin the Iperiodstipulated in the agreement. It further held that since the defendai|»tNo.3 had already purchased the suit land before the filing of suit for a and was put in possession there No.3 did any construction over the huge consideration of Rs.24,35,000/- >f the plaintiff would not suffer any irreparable loss if injunction was r^fused because even if the defendant suit Jand he would do so at his own peril and if the plaintiff would suc^eed in the suit the plaintiff would be entitled to vacant possession o|F the suit land. It also took jnto consjderation the undertaking givei|i by the defendant No.3 that it would not alienate any part of the suit land|till disposal of suit. The sole contention olt the learned counsel for the appellanVplaintiff is that the resporjidenVdefendant No. 3 ought to have been restrained from alienating the doing so, will tead to multjplidty oftt »uitproperties till disposal of suit. Not le proceeding causing irreparable loss to the plaintiff/appellant which fact (was overtooked by the tearned lower Court. Learned counsel prayed th^t the respondent/defendant No. 3 be resfrained from alienating the suit p^operties till disposal of CMI Suit No. 22 A/2006. It was urged that althoug|h the Court below found a prima facie XI-HC-22 3TI^T^T Rst^w^T $h^lcb^rf?cf 'S^ ^ww^, w^\w\<o, (^ldiy^< ^T^5|Ctt ^l^^tl $h+lich """^4"""""" ^p^ 200 ^ fd^ 3TI^T^<TT^K^f5?T made by tearned counsel for :asalsothecopyof ute 1 & 2 of C.P.C. Para 12 and 14 of case in favour of the appellant/pli No.3 from alienating the suit land ^iU disposal of suit was contrary to law Having considered the su^missions the appellanVplaintiff, 1 have peru^ed the copy of plaint i application filed under Order 39 the said application is reproduced| betow 12) V^ l^ vfWltM BS^ ^ fTCf yihvii^f<h ^v f^w f ^r yiw w f^m f ffri^ ^T gj| y^i^ fiww 3 wc?ywr ^t ^ war /^T ^r ^Tgofr t ^fSvfrff (14) W fis Vf^ »f^<il<ft WW wwr vt vR<i<fi ^? u?rt ^ f^df ufi^rr ^ 97dF ^ \^MI SSF^ f^^-T ^ ^ »Kf<fl^ f f^> yRf<sitff ww 3 ^ tfiffii^t ^ft g^ ^RP^ V9WT at vR<tffv1 a^t g^ w<fo^ ^ g^ gre^ ^^7 ^t ywf^ff f^yr w v^i vr wwf vRisffvf ^y o^ w'ft SFV ^t |»hr^a^ </w/rf igw^ ft^v wfi ^ vf'fr vf ^fpf ^ ^r ^if^ ^wr 4 Pfnf»i svif^ fiy? \m^ ^ SFPVT^ vff?/ 1 find that there are no pl€|i manner makingan attempt to a(l application under Order 39 Rul^ restrain the defendant No. 3 frohi ^ chj^fci41vi ^rm^ff^te^ <Ri^i< ^3Tf^T3TT^?T ijntjff.the refusal to injunct the defendant ^ <r/<?</w ^^ ^ *BV ?uf <?»wwv gwg^ tfSff <3W^ W^ Wf^ ^f ^T^ ^ Wf^F ^gcrar y9 ywr ^ vi/Scidi^ ^fV'ff ist fl^Hfif) 3 Vt <tl<S1/^t ^t ^ Wf^ff ^S^cNsf ^ffff't ^? vif^ vfW <3Wf ^ ^ vR^ ^ )^nw oyr^sf w^ f^? \9i^f W^cf f^f [adings that the defendant No. 3 is jn any llienate the suit properties. Even <n the 1 & 2 of C.P.C no relief is claimed to alienating the suit properties. All that ^ '^ i) XI-HC-78 3TT^T^Tf^TT^ d^T3TT^T^HW Priya ^sr r^i^ii^^, ^TOy4!^, ^^wy ^Tg^.^.-"-'6-9-'-T^20UZ ^ 341^1145|cb (id^^) ^<n"W^f?cTW^T has been stated in para 12 is tha] suit properties to his other lands The defendant No.3 gave a ctear -Li Wffep^T WRTf ^" fe^t^I^ ^3^T3TT^T the defendant No. 3 wants to add the and to start the construction there on. ^ndertaking before the Court below that it shall not alienate any part of th^ suit property till disposal of suit which takes care of the apprehension of <he learned counsel for the appeltant. In view of clear undertaking given b^ the defendant No.3 for not atienating the suit land till disposal of suit, t^e balance of convenience was a(so in favour of refusal and not grant <j below rightly held that no irrepai appeJlanVplaintiff, if injunctlon was f injunctjon. Thus, the tearned Court 'able injury would be caused to tiie tefused. t am of the considered vi^w that in the absence of a specific pleading or prayer, the reHef claiined by the learned counsel for the appellant/plaintjff jn this appeal cai|inot be granted. The defendant No.3 having already purchased the suit |land prior to filing of suit by paying a heavy consideration and being <n p<t»ssessionof the same, the grounds on which the tearned lower Court has refused injunction are well reasoned and cannot be faulted with. In the result, this appeal beii|tg devoid of merit is dismissed at the stage of admission. Accordingly, (^I.C.P. No. 284/2007 for grant of stay also stends dismissed. Learned lower Court is direct^d to expeditiously dispose of ttie civil suit preferably within 6 months from C.C. as per ruies. ^oday. Sd/- Dilip Raosaheb Deshnmkh Judge /?^/