THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.1176 of 2009 Dated:08.02.2010 Between: Randhi Veera Venkata Satyanarayana. …Appellant and Midathada Suramma. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.1176 of 2009 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The Civil Miscellaneous Appeal is against the order dated 05.10.2009 in I.A.No.128 of 2009 in O.S.No.4 of 2009 by the plaintiff. He filed the suit for specific performance of agreement of sale directing the sole defendant (respondent herein) to convert the land into non-agricultural purpose and execute sale deed. His application for ad interim injunction restraining the defendant from interfering with possession or from alienating the suit schedule property was allowed on condition of the plaintiff depositing balance of sale consideration. Aggrieved by the order of the Court below insofar as it gives such direction, the plaintiff is before this Court. The suit schedule property admeasuring 1.01 hectares (about Acs.2.00) is absolute property of the defendant. There is no dispute about this. On 12.07.2008 the plaintiff and defendant entered into agreement of sale. According to the plaintiff the vendor has to obtain necessary clearance for change of land use from industrial to residential purpose and execute sale deed. Out of the agreed sale price of Rs.65,00,000/- plaintiff paid in all Rs.30,00,000/- as advance sale consideration and agreed to pay the balance sale consideration within six months. The plaintiff alleged that he is ready to complete the transaction and waiting for necessary orders to be obtained by the defendant for conversion of land from industrial use to residential use. In the meanwhile, the defendant got issued a notice canceling the agreement of sale after expiry of six months stipulated in the suit agreement and therefore, the matter went to the Court. The defendant is opposing the suit. In her affidavit opposing the injunction petition she alleged that the plaintiff failed to perform his part of the contract within six months from 12.07.2008 and also failed to obtain sale deed in his name or in the name of the nominee. She also denied allegation that she is under obligation to get necessary clearance for change of land use. The Court below on considering the necessary documents Exs.P1 to P8 for plaintiff and Exs.R1 to R3 for the defendant, prima facie, found in favour of the plaintiff and passed an ad interim injunction order as noticed hereinabove subject to conditions. The civil miscellaneous petition for suspension of condition for deposit is coming up before this Court from November 2009. Learned Counsel for both sides made sincere efforts to settle the matter within the parties. Such settlement included the refund of money by the defendant to the plaintiff and relinquishment of rights by the plaintiff, the execution of sale deed by the defendant to the extent of proportionate land for having received the advance sale consideration and other terms as may be agreed. Both the learned Counsel are not able to achieve any success, presumably, for the reason that parties are not cooperating. Therefore, we have heard the learned Counsel for the appellant and the learned Counsel for the respondent, and with their consent, we are disposing of the matter on merits. It is now axiomatic that ordinarily a rightful owner cannot be injuncted or prevented from enjoying the property. In suits concerning immovable property the law itself affords protection to the plaintiff and gives the benefit of doctrine of lis pendens. Apart from this reason, in a suit for specific performance where the plaintiff obtains an agreement of sale but for one reason or the other – some genuine and some not so genuine – does not obtain sale deed, he would be virtually preventing the defendant from enjoying the rights to the property. Presumably for this reason to lessen the harm and injury that may be suffered by the parties if the suit schedule property is transferred to third parties, the Court below rightly imposed the condition. If ultimately the suit goes to trial on the issues on which there is no agreement, the amount so deposited can always be adjusted. In that view of the matter we do not find any error in the order passed by the trial Court. We, however, grant four weeks time from today to the appellant/plaintiff to deposit the balance of Rs.35,00,000/- (Rupees thirty five lakhs only) to the credit of the O.S, and on such deposit the same amount shall be kept in Fixed Deposit carrying maximum rate of interest. The entitlement thereto shall be decided at the time of final disposal of the suit. We agree that if the appellant/plaintiff fails to deposit the amount the order of injunction shall stand vacated. The Civil Miscellaneous Appeal subject to above observation is dismissed. We also request the learned trial Judge to dispose of the suit within a period of six months from today. There shall be no order as to costs. _______________ (V.V.S.RAO, J) ________________ (B.N.RAO NALLA, J) 08.02.2010 vs