THE HONOURABLE SRI JUSTICE N.V. RAMANA AND THE HONOURABLE SRI JUSTICE K.S. APPA RAO C.M.A. No. 336 of 2011 Judgment: (Per N.V. Ramana, J.) This C.M.A. is directed against the order dated 18.01.2011 passed by the District Judge, Guntur, allowing the application in I.A. No. 5229 of 2010 in O.S. No. 240 of 2010 granting temporary injunction as prayed for in favour of respondent Nos.1 and 2-plaintiffs and against the appellant-defendant No.5. The learned counsel for the appellant submitted that the agreement of sale dated 01.06.2010 executed by respondent Nos. 3 to 5 in favour of the appellant is much prior to the agreement of sale dated 09.08.2010, said to have been executed by respondent Nos. 3 to 5 in favour of respondent Nos. 1 and 2. Subsequently, respondent Nos. 3 to 5, having received the entire sale consideration of Rs.90,00,000/- executed sale deed in favour of the appellant on 28.10.2010 and the title in relation to the suit schedule property vested in the appellant. There is no privity of contract between the appellant and respondent Nos. 1 and 2. Ex. A1, based on which respondent Nos. 1 and 2 filed the suit, is only an advance receipt and not an agreement of sale. Respondent Nos. 1 and 2 paid only Rs. 9,00,000/- out of the entire sale consideration of Rs.1,67,00,000/- to respondent Nos. 3 to 5. That being so, he submitted that balance of convenience lies in favour of the appellant, but the Court below without considering this aspect of the matter, committed a grave error in granting temporary injunction in favour of respondent Nos. 1 and 2 and against the appellant. He further submitted that even though no application for appointment of Advocate Commissioner was filed, yet the Court below appointed an Advocate Commissioner, while passing the order under appeal, which cannot be sustained. He further submitted that respondent Nos. 1 and 2 having pleaded collusion and fraud by the appellant and respondent Nos. 3 to 5, it is for them to prove the same, and in the absence of respondent Nos. 1 and 2, proving the same, the Court below committed an error in granting temporary injunction in their favour and against the appellant. Hence, he prayed that the order under appeal be set aside and the appeal be allowed. On the other hand, the learned counsel for respondent Nos. 1 and 2 supported the order under appeal. He submitted that respondent Nos. 3 and 4 offered to sell the suit schedule property and respondent Nos. 1 and 2 agreed to purchase the same for Rs.1,67,00,000/-. Pursuant thereto, respondent Nos. 1 and 2 paid Rs.6,00,000/- in cash and Rs.3,00,000/- by way of cheque to respondent Nos. 3 to 5, who having received the same, executed agreement of sale-cum-advance receipt dated 09.08.2010 in favour of respondent Nos. 1 and 2. As respondent Nos. 3 to 5 did not produce the municipal tax receipts and electricity bills evidencing payment of the same, and did not receive the balance sale consideration and, in spite of receipt of notice, did not come forward to execute regular sale deed in favour of respondent Nos.1 and 2, and on the other hand, are contemplating to execute sale deed in favour of respondent-defendant No. 4 and the appellant, respondent Nos. 1 and 2 filed the present suit for specific performance. He submitted that respondent Nos. 3 and 4 having received part of the sale consideration, colluded with respondent-defendant No. 4 and the appellant and through them got filed O.S. No. 75 of 2010 and O.S. No. 2010 of 2010 for specific performance of agreement of sale, which are pending. Thus contending the counsel for respondent Nos. 1 and 2 justified the order under appeal and prayed for non-interference therewith by this Court. Heard the learned counsel for the appellant-defendant No.5 and the learned counsel for respondent Nos. 1 and 2-plaintiffs and perused the order under appeal. Admittedly, respondent Nos. 1 and 2-plaintiffs have filed the present suit for specific performance based on Ex. A1-advance receipt for sale of immovable property. Pending disposal of the suit, they filed the present application seeking temporary injunction against respondent-defendant Nos. 1 to 4 and the appellant herein. Even though the Court below found that Ex. A1 is not a registered document and is inadmissible in evidence, yet relying on the judgment of a learned Judge of this Court in Doddapaneni Chennakesava Rao Vs Nannapaneni Narendrait[1], observed that marking of the same at the interlocutory stage does not amount to admitting the same in evidence in the suit. There can be no doubt that even at the interlocutory stage, documents relied on by the parties can be marked for the purposes of clarity and to enable the Court to appreciate the contents of the documents with reference to the contentions of the parties and it would be more appropriate to have such documents marked in such interlocutory enquiry with the consent of both parties. A learned Judge of this Court in Burra Anitha v. Elagari Mallavva[2], while setting setting aside an order passed by the trial Court, ruling out the objection of the plaintiff against marking a simple sale deed on the ground of insufficiency of stamp duty and want of registration at interlocutory stage, explained the principle laid down in S. Ravinder v. G. Dasarath[3], as follows: The principle laid down by His Lordship in S. Ravinder's case (supra), has to be understood with reference to such distinction and His Lordship was disinclined to permit undertaking an independent enquiry into the admissibility of a document at the stage of interlocutory enquiry when the agreement of sale was objected to be admitted into evidence for want of registration, whereas His Lordship himself recognized the right of the party to raise an objection even at the stage of consideration of an interlocutory application if the document suffers from any basic legal infirmity or illegality. This distinction is lost sight of by the trial Court. When the objection to the document in question was not only on the ground of want of registration, but also on the ground of want of sufficient stamp, the party producing the document was not stated either to have offered or to have made any attempt to pay required stamp duty and penalty on the document to enable consideration of the admissibility of the document for any collateral purpose and in view of the absolute prohibition under Section 35 of the Stamp Act, looking into the document, even for the purposes of an interlocutory application, will be overlooking a basic legal infirmity or illegality. The trial Court went wrong in appreciating the ratio of the precedents cited before it as permitting the marking of an unstamped and unregistered document in an interlocutory enquiry and opining that the objections will be considered while disposing of the interlocutory application. Rule 60 of Civil Rules of Practice provides for marking of the documents in interlocutory proceedings in the same manner as in a suit and under the circumstances, the impugned order is liable to be set aside and the trial Court is to be directed to determine the objections of the revision petitioner/plaintiff against the admissibility of the document on the ground of insufficiency of stamp and want of registration. From the ratio laid down in the above judgment, it becomes evident that when objection is taken with regard to marking of document on the grounds of want of registration and want of sufficient stamp, and the party producing the document is not stated to have either offered or made any attempt to pay required stamp duty and penalty on the document to enable consideration of the admissibility of the document for any collateral purpose, having regard to the prohibition contained in Section 35 of the Stamp Act, if the document is looked into even for the purposes of an interlocutory application, it will amount to overlooking a basic legal infirmity or illegality, and that as per Rule 60 of Civil Rules of Practice, the marking of documents in interlocutory proceedings has to be done in the same manner as in a suit. Since respondent Nos. 3 to 5 and the appellant have taken objection with regard to admissibility of Ex. A1 on the ground that it is not registered and insufficiently stamped, having regard to the above judgment, we are of the considered opinion and hold that the Court below is not justified looking into the contents of Ex. A1, even for collateral purpose, even though respondent Nos. 3 to 5 have admitted its execution. The learned counsel for the appellant-respondent No.5 submitted that the present application being an interlocutory application for grant of temporary injunction, is required to be considered based on the principles of prima facie case, balance of convenience and irreparable loss, but the Court below committed an error in recording findings, touching the merits of the matter, and if the said findings are allowed to remain, they will affect the merits of the main suit. We have perused the judgment under appeal, and we are of the considered opinion that there was no necessity for the Court below to record findings on the merits of the matter. The Court below, while proceeding to consider the prima facie case, recorded findings on the merits of the suit stating that Exs. A1 to A6 and the admissions made by respondent Nos. 1 to 3 in para 5 of the counter filed both in I.A. No. 5229/2010 and I.A. No.5230/2010 clearly go established execution of Ex. A1 in favour of petitioner, that the contract between the petitioners and respondents 1 to 3 is terminated due to failue of the petitioners to perform their obligation under Ex. A1, that in view of admission of execution of Ex. A1, there is a contractual obligation between the respondents 1 to 3, but the performance of the same could not be done outside the court. He further proceeded to consider as to who failed to perform his part of the contract, by recording inter alia, as follows: According to the petitioners, they requested the respondents 1 to 3 to execute the sale deed expressing their readiness and willingness to obtain regd. Sale deed by paying the balance sale consideration. But the respondents 1 to 3 failed to perform their obligation and failed to comply the terms and conditions more particularly, payment of tax dues to the municipal corporation and electricity authorities. At the same time, the respondents 1 to 3 contended that they paid tax dues to the municipal corporation under Ex.B5 dt. 21.12.2010. A bare look at terms and conditions of the petition time is fixed for performance of contract i.e. 29.09.2010. Whereas, the tax dues were cleared on 21.12.2009. So, it prima facie shows that the respondents 1 to 3 did not comply their obligations as per para 2 of page No.2 under Ex. A2. Yet the respondents 1 to 3 contended that the notice under Ex. A2 was sent on 29.09.2010 under original of Ex.A2 i.e. after expiry of time fixed for specific performance. In fact, 29.09.2010 is the time fixed for specific performance and there is no cause for cancellation of the agreement of sale in the event of failure to pay the balance of sale consideration. Normally the time is not the essence of contract for sale of immovable property. But the suit should be filed within a reasonable time. Here, the contract of sale under Ex.A1 was obtained on 09.08.2010 and the time fixed for specific performance was on 29.09.2010 and a notice was issued on the same day demanding the respondents 1 to 3 to perform their obligation under agreement of sale receiving the balance of sale consideration. On the other hand, the payment of tax under Ex.B5 shows that the respondents 1 to 3 failed to perform their part of obligation within the time i.e. 29.09.2010. Hence, prima facie, the respondents 1 to 3 did not perform their obligation. Thus, prima facie, failure to obtain regd. Sale deed within the time fixed in Ex. A1 is not on account of thedefault of the petitioners, but due to default of respondents 1 to 3 as evidenced by Ex. B5. The Court below, as noted above, instead of considering whether respondent Nos. 1 and 2-plaintiffs have made out a prima facie case for grant of temporary injunction, balance of convenience is in their favour and irreparable loss would be caused if no temporary injunction is granted, committed an error in recording findings on issues touching the merits of the suit. Since the Court below recorded findings on issues which affect the merits of the suit, we are of the considered opinion that the impugned order cannot be sustained, and is liable to be set aside. Further, as is evident from the order under appeal, even though there is no application filed by any of the parties for appointment of Advocate Commissioner, the Court below suo motu has appointed an Advocate Commissioner to note down the physical features of the suit schedule property, but curiously the Court below at the end of the order under appeal has made an observation that no further hearing will be undertaken after the Advocate Commissioner files his report. And for this reason also, the order under appeal cannot be sustained. It is brought to the notice of the Court by the learned counsel that the Advocate Commissioner appointed by the Court below has already submitted his report. In the result, we allow the C.M.A., set aside the order under appeal and remand the matter to the Court below with a direction to consider the present I.A. afresh after giving opportunity to both the parties to submit their objections, if any, to the Advocate Commissioner’s report, and pass appropriate orders. Till such time, the parties are directed to maintain status quo. No costs. _________________________ JUSTICE N.V. RAMANA ______________________ JUSTICE K.S. APPA RAO Dated: 13th June, 2011 KSR [1] 2006 (4) ALD 263 [2] 2010 (6) ALT 128 [3]2004 (4) ALD 851