1 KHUMARAM AND ANR. VS. SANJAY SHARMA (S.B.CIVIL MISC. APPEAL NO. 423/10) Dated:- 28.4.10. HON'BLE MR.JUSTICE SANGEET LODHA Mr. Vinay Chhipa, for the appellants. Mr. D.D.Chitlangi for the respondent. 1. This appeal is directed against order dated 10.3.10. passed by the Additional District Judge No.3, Jodhpur, in Civil Misc. Case No. 123/09 whereby an application preferred by the respondent/plaintiff under Order XXXIX Rule 1 & 2 of the Civil Procedure Code,1908 (“CPC”), stands allowed and by way of temporary injunction the appellants/defendants have been restrained from transferring the plot in question to anybody else during the pendency of the suit and so also from interfering with the respondent/ plaintiff's possession, use and occupation of the disputed plot. Further directions have been issued to maintain the status-quo regarding the disputed plot as per the site inspection report submitted by the Commissioner. 2. The respondent/ plaintiff filed a suit for specific performance of the agreement to sell dated 10.3.1996 and permanent injunction against the appellants/defendants in respect of a plot situated at Village Gangani, Panchayat Samiti Osiyan, District Jodhpur. It is alleged that the plot in question was sold by the 2 appellants/defendants in favour of the respondent/plaintiff for a consideration of Rs.51,315/- and an agreement to sell was executed whereunder a sum of Rs.30,000/- was paid to the appellants/defendants as part payment of the consideration agreed upon. It is stated that the possession of the plot was also handed over by the appellants/ defendants to the respondent/plaintiff. As per the terms and conditions of the agreement, the remaining amount of consideration was to be paid by the respondent/ plaintiff within a period of six months. 3. The suit is being contested by the appellants/defendants by filing a written statement thereto. It is admitted by the appellants/defendants that the possession of the plot was handed over to the respondent/plaintiff. However, it is stated that since the respondent/plaintiff has failed to make payment of the remaining amount of consideration, therefore, the appellants/defendants are entitled to get back the possession. 4. During the pendency of the application for temporary injunction preferred by the respondent/plaintiff, the learned trial court appointed the Commissioner for local investigation so as to find out the present status of the property in question at the site. 5. After due consideration, the learned trial court found that the execution of the agreement to sell and possession of the respondent/plaintiff over the plot in question is not in dispute. The 3 Court observed that even as per the Commissioner's report, the respondent/plaintiff is in possession of the plot. Thus, having regard to the facts and circumstances of the case, the trial court opined that the question as to whether, the respondent/plaintiff was ready and willing to perform his part of the contract or not can be decided only after the evidence to be led by the parties and therefore, the status quo with regard to the plot has to be maintained. Accordingly, while allowing the application, the temporary injunction has been granted in favour of the respondent/plaintiff as prayed for. 6. It is contended by learned counsel for the appellants that the learned trial court has seriously erred in holding that the respondent/plaintiff has strong prima-facie case in his favour. Learned counsel submitted that as a matter of fact the suit as framed was not maintainable and therefore, the respondent/plaintiff is not entitled for any temporary injunction in his favour. Learned counsel submitted that the learned trial court has granted the relief by way of temporary injunction which is beyond the relief claimed in the original suit. Accordingly, it is submitted by learned counsel that the order impugned passed by the learned trial court deserves to be quashed and set aside. 7. It is settled law that in the matter of the temporary injunction, the jurisdiction of the appellate court is not co-extensive 4 with that of the trial court. The appellate court can interfere with an order of the trial court granting or refusing injunction only when it is satisfied that (i) the trial court has acted contrary to law or (ii) has acted arbitrarily, or (iii) that the finding of trial court regarding the three requirements of grant of injunction are perverse or capricious or (iv) that there has been a misreading of the pleadings of evidence.(vide RSEB vs. Mool Chand Jangir, 1993(3) WLC, 338.) 8. It is to be noticed that in the instant case, the factum of execution of agreement to sell and so also the handing over of possession by the appellants/defendants to the respondent/plaintiff is not in dispute. It is also a common ground between the parties that the respondent/plaintiff is in possession of the plot in question till this date. It is pertinent to note that after part payment of consideration Rs. 30,000/- at the time of execution of agreement to sell the respondent/plaintiff has further paid a sum of Rs. 3000/- and Rs. 5000/- to the appellants/defendants on 15.9.2003 and 23.6.2008 respectively. The only defence set out by the appellants/defendants is that since the respondent/plaintiff has failed to make payment of remaining amount of consideration within the stipulated period and therefore, the sale deed could not be executed and got registered. 9. In considered opinion of this Court, on the facts and in the circumstances noticed above, the learned trial court has committed 5 no error in arriving at the finding that the respondent/plaintiff has strong prima-facie case in his favour. The questions of balance of convenience and irreparable loss have also been appropriately dealt with by the learned trial court. 10. Suffice it to say that while passing the order impugned, all the relevant aspects of the matter have been considered by the learned trial court objectively and the findings arrived at cannot be said to be perverse or capricious so as to warrant interference by this Court in exercise of its appellate jurisdiction. 11. Accordingly, the appeal is dismissed . No order as to costs. (SANGEET LODHA),J. rp/-