1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD APPEAL FROM ORDER NO.81 OF 2008. Mannalal S/o Bhagwandas Agrawal Age : 60 years, Occ : Business and Agriculture, R/o Gangotri, Mangai Kiran Co.Op. Housing Society Ltd., Juhu, Vile Parle (West), Mumbai-400 049 Through Power of Attorney Holder:- Jagdish S/o Dwarkadas Joshi, Age : 44 years, Occ : Service, R/o T-5, Disha Sankul, Near Saoji-Tupkari Hospital, Aurangabad. ..APPELLANT VERSUS 1. Upendrakumar S/o Sawarmal Saharia Age : 47 years, Occ : Business and Agriculture, R/o 4/4, Govind Mahal, 3 Wood Street, Culcutta-16 (W.B.) 2. Devendrakumar S/o Sawarmal Shaharia Age : 38 years, Occ : Business and Agriculture, R/o No.5, Crescent Street, Off. ABM Avenue, Boat Club, Chennai-600 028. 3. Umesh S/o Sawarmal Saharia Age : 34 years, Occ : Business and Agriculture, R/o As above. ..RESPONDENTS ------------------------------------------------------ Mr.A.S. Bajaj, Advocate for appellant. Mr.S.V. Gangapurwala, Advocate for the Respondent No.1 Mr. R. N. Dhorde along with Shri.N.K. Chaudhary, Advocate for Respondent Nos.2 and 3. ------------------------------------------------------ 2 (CORAM : R.K. DESHPANDE, J.) DATE OF JUDGMENT RESERVED : 07 th November, 2009. DATE OF JUDGMENT PRONOUNCD : 20 th November, 2009. ------------------------------------ JUDGMENT : This appeal is preferred by the original plaintiff, who has filed the special civil suit no. 483/2007 against the respondents, who are the original defendants, for specific performance of contract and possession of the suit land. The suit land admeasures 4 Acres and 20 Gunthas which is the total 1/4th share of each of the respondents-defendants in Gat No.17 which admeasures total 5 Acres and 29 Gunthas situated at Nakshatrawadi, Aurangabad. Along with this special civil suit no.483/2007, the plaintiff filed an application under Order 39 Rule 1 and 2 of the Civil Procedure Code for grant of injunction restraining the respondents-defendants and/or anybody claiming through them, by an order of injunction, from alienating by way of sell and or creating third party interest over the suit property i.e. part of the Gat No.17 situated 3 at Nakshatrawadi, Tq. & Dist.Aurangabad to the extent of 4 acre 20 gunthas, till the disposal of the suit. The respondents-defendants filed their written statement and reply to the application under Order 39 Rule 1 and 2 of the Civil Procedure Code. The learned II Joint Civil Judge, Senior Division, Aurangabad, who considered the application for temporary injunction (Exhibit-5), rejected the same by his order dated 04.07.2008. Against this, the present appeal has been preferred. 2. The Trial Court has recorded a finding that there was no agreement in writing and decree is claimed on the basis of the oral agreement of sale and after going through the submissions and evidence on record, did not find prima facie case, in favour of the plaintiff. It has been further observed that whether oral agreement took place or not, is a matter of evidence and in these circumstances, the balance of convenience does not lie in favour of the plaintiff and no inconvenience shall be caused to the plaintiff, if injunction is refused. 4 3. This Court, by speaking order dated 08.10.2008, issued notice to the respondent no.1, which was made returnable on 20th November, 2008 and considering the submissions advanced by the parties and alleged transactions of 1st September, 2008, the parties were directed to maintain status-quo regarding alienation of the suit property till 25th November, 2008. The parties were granted liberty to file additional documents on record. The notices on behalf of the respondent nos.2 and 3 were waived. Thereafter, the interim order granted by this Court, was continued from time to time. The parties agreed that the matter may be disposed of finally at the stage of admission. 4. Heard Shri.A.S. Bajaj, the learned Counsel for the appellant. Shri. S.V. Gangapurwala, the learned Counsel appearing for the respondent no.1 and Shri.R. N. Dhorde along with Shri. N.K. Chaudhary, the learned Counsel appearing for the respondent nos.2 and 3. Admit. Heard, by consent, finally. 5. The appellant-plaintiff filed a suit for specific performance of contract based upon the oral 5 agreement. It is alleged that the suit property consists of 4 acres and 20 gunthas, which total of 1/4th share of each of the defendants in land gat no.17 admeasuring totally 5 acres and 29 gunthas situated at Nakshtrawadi, Aurangabad. The plaintiff has alleged in plaint that one Mr. Sadashiv Bhaurao Patil and another Mr.Balaprasad Hiralal Pandit, both residents of Aurangabad approached the plaintiff, in the month of first week of January, 2003 and expressed that the defendants are desirous to sell the suit land. The plaintiff had shown his willingness to purchase the property and therefore, the aforesaid persons handed over the plaintiff, the title documents of the suit land. It is further alleged in the plaint that Shri.Sadashiv Patil informed the plaintiff that the defendants have authorised him to talk with the prospective purchaser about the sale of the said property and also with regard to the consideration etc. Shri. Patil also assured to arrange for talk of the plaintiff with the defendants in respect of sale price of the land. 6. It is further averred in plaint that there 6 was talk with the defendant no.1 Upendra from time to time, as he represented that he had an authority to negotiate and finalise deal on behalf of other defendants. It is also averred that even other defendants on phone, confirmed the authority given to the defendant Upendra. It is alleged that defendant Upendra further informed that Smt. Vimaladevi, the mother of the defendants died on 01.01.1996 as such the defendants represented that they are ready to sale their share i.e. 4 acres 20 gunthas considering the share as 1/4th each. It is alleged that Mr. Upendra fixed the sale consideration as Rs.69,87,500/- and it was agreed between the plaintiff and the defendants that towards earnest money, an amount of Rs.1,00,000/- is to be paid and accordingly, the plaintiff on 22.02.2003 purchased the three Demand Drafts from State Bank of India, out of which two were of Rs. 30,000/- each and one of Rs.40,000/-. The two Demand Drafts of Rs.30,000/- were in the name of defendant nos.3 and 2 respectively whereas, the demand draft of Rs.40,000/- was in the name of defendant no.1. It is further alleged that the said demand drafts were sent at Channai by courier, according to the instruction of 7 the defendant no.1, Upendra. It is further alleged that after entering into agreement, it was inter-alia agreed in between the parties as under :- a) The plaintiff to pay Rs.69,87,500/- (Rs.Sixty Nine eighty seven thousand five hundred) inclusive of earnest amount of Rs. 1.00 Lac. b) the defendants to keep the plaintiff indemnified that the suit land agreed to be transferred in favour of the plaintiff is free, clear and marketable. c) The plaintiff to pay 25% of the balance sale price of Rs.68,87,500/- (Rupees sixty eight lacs eighty seven thousand five hundred) only to the defendants as and when he will visit Mumbai probably in April 2003 and the remaining balance amount on the day of execution of conveyance deed. d) The defendants to put the plaintiff in vacant and peaceful possession of the suit land on the day of execution of such sale deed. e) The defendants to execute and sign all other necessary documents, applications to effectual transfer the suit land in favour of the plaintiff. 7. The plaintiff further alleged that the defendant no.1 visited Mumbai and at that time disclosed that there is dispute as regards to the 8 share of the mother, as she has executed will in favour of two sons and this is not acceptable to Surendrakumar, who has initiated proceedings in that regard. It is further alleged that at that time though the defendant no.1 promised, he could not produce the power of attorney of other two defendants and the plaintiff insisted that 25% amount will be paid only thereafter. It is further averred that the defendant no.1 thereafter sent the copy of the application made to the Talathi, Aurangabad dated 15.04.2004, for deleting the name of the deceased mother and other two defendants have expressed the view, that there are chances of settling the dispute with brother Surendra and as such to wait till then for execution of sale deed. It is averred that the plaintiff has expressed his willingness to make the balance amount of consideration, to get the sale deed executed. It is further alleged that that the plaintiff came across the paper notice in daily news paper in Dainik Lokmat dated 29.07.2007, about the sale of the suit property, which was immediately replied on 03.08.2007, through Advocate, pointing out that the agreement to sale was entered into between the plaintiff and the defendants 9 and no one should deal with the transaction of the suit land. It is further alleged that a public notice was given in Dainik Lokmat dated 12.08.2007 informing the public atlarge about the transactions between the plaintiff and the defendants. The plaintiff alleged that though he is ready and willing to perform his part of contract, the defendants have refused to execute the sale deed. The cause of action is shown to have arisen in 1st week of January, 2003 and on 22.02.2003, when the agreement was concluded and the plaintiff paid an amount of Rs.1,00,000/-, as an earnest money. It is further alleged that finally, the cause of action arose on 29.07.2007, when the defendants showed their intention to sell the property and refused to execute the sale deed. 8. In the background of aforesaid facts, the plaintiff alleged in the application under Order 39 Rule 1 and 2 of Civil Procedure Code that the defendants are likely to create third party interest in the suit property, to defeat the right of the plaintiff. It is alleged that he has made out a strong prima facie case, the balance of convenience lies in 10 favour of the plaintiff and if the injunction restraining the defendants from creating third party interest or alienating the suit property is not granted, the plaintiff would be put to suffer an irreparable loss and hence, temporary injunction was asked for on Exhibit-5 Application, restraining the defendants from creating third party interest or alienating the suit property pending the decision of the suit. 9. The defendant nos.2 and 3 have by filing their written statement denied all the allegations made in the plaint. It is submitted that the allegations are all vague and unspecific and the suit is liable to be dismissed on that sole ground. It is further the stand taken that the suit is barred by limitation. The defendants have denied to have given any authority to the defendant no.1, to negotiate with the plaintiff. They have also denied that they had any talk with the defendant no.1 on phone. They have denied any connection with Mr.Sadashiv Patil and Balaprasad Pandit. They have denied the terms and conditions mentioned in the plaint and have also 11 denied the knowledge of alleged talks, between the defendant no.1 and plaintiff. Apart from the stand, that oral contract of specific performance is not enforceable, it is the also the stand that it was not a concluded contract. They have denied the alleged authority given to defendant no.1, to deal with the plaintiff or for that matter with any one else, in respect of sale of the suit property. They have specifically stated that they have neither personally entered into any agreement with the plaintiff on 22.02.2003 nor have authorised anybody to represent them, on their behalf, to enter into an agreement of sale with the plaintiff. They have stated that there is no prima facie case and the balance of convenience does not lie in favour of the plaintiff and if the injunction is refused, no irreparable loss shall be caused to the plaintiff. Apart from that, other objections are also raised regarding non-joinder of necessary party and the frivolous nature of the suit. 10. In order to consider the question of grant of temporary injunction under Order 39 Rule 1 and 2, it is well settled that three tests are required to be 12 applied, viz. (i) whether the plaintiff has made out prima facie case, (ii) whether the balance of convenience lies in favour of the plaintiff and (iii) if the injunction is refused, whether the plaintiff is likely to suffer an irreparable loss. These principles are restated by the Apex Court in its decision reported in (1992) 1 SCC 719 (Dalpatkumar and another V/s Prahlad Singh and others. The para 5 of the said judgment which is relevant is reproduced below :- “5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but 13 means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.” 11. Similarly, the Apex Court in its another decision reported in (2006) 5 SCC 282 (Seema Arshad Zaheer and others V/s Municipal Corporation of Greater Mumbai and others) has observed in para 30 of the Judgment as under:- “30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff’s rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff’s rights is compared with or weighed against the need for 14 protection of the defendant’s rights or likely infringement of the defendant’s rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff’s conduct is free from blame and he approaches the court with clean hands.” Keeping in mind, the aforesaid law laid down by Apex Court, the facts are required to be judged. 12. In some cases, making out a prima facie case or failing to make out a prima facie case may tilt the balance of convenience, either in favour of the plaintiff or in favour of the defendants. It is a discretionary relief. Similarly, grant of injunction or its refusal, depends upon the nature of the case, the facts and circumstances of the case and the nature of injunction asked for. Even in cases where the nature of injunction asked for, is the same, the considerations may differ. For instance, an order of injunction restraining the defendants from creating third party interest can be claimed in a suit for partition or in a suit based upon title or in a 15 suit for specific performance of contract or in a suit for declaration that the alienations are void etc. However, whether prima facie case is made out or not, to protect the rights of plaintiff, by grant of relief of temporary injunction, depends upon the nature of suit, the facts pleaded and the circumstances of case, including the conduct of plaintiff and his bonafides. 13. In the instant case, it is a suit for specific performance of contract based upon the oral agreement to sale dated 22.02.2003 of the suit land. It can not be disputed that even oral agreement to sale of immovable property, can be specifically enforced. However, assessment of prima facie case, in a suit for specific performance of contract, based upon the oral agreement, has to be different than such a suit, based upon the written agreement. In a suit based upon the written agreement, the agreement placed on record and its contents, become significant and the same can be read along with the averments made in the plaint. The written agreement placed on record, discloses the names of parties, their place of residence, the place of agreement, consideration, the 16 description of the property and other terms and conditions of contract, which the parties have entered into. Normally, in such a suit, what is required to be seen, is the interpretation of the terms of contract and compliance of it. It becomes easier for the Court to reduce the controversial position. This is not the advantage, in case of suit based upon the oral agreement. The court is at loss to know the prima facie, undisputed factual position, which can only be ascertained, by reading the averments made in the plaint and the stand taken in written statement. In a suit for specific performance of contract based upon the oral agreement, the averments made in the plaint carry great weight and significance in ascertaining even a prima facie case. The averments are required to be strictly construed and heavy burden lies upon the plaintiff to establish the consensus ad idem. The Court has to proceed cautiously and read the averments minutely, to understand the exact nature of case, to find out, whether prima facie case is made out or not. The averments in the plaint, must inspire the confidence of the court, as to credibility of the plaintiff and truthfulness of the averments. The 17 inconsistency in the averments made in the plaint, lack of material facts and particulars or vagueness and unspecific averments in plaint etc, would be the instances, which shall be considered against the plaintiff, while judging the prima facie case. The very first thing to find out the prima facie case is whether, the plaint averments contain the material facts and particulars establishing the complete chain of events disclosing the cause of action. It has to be borne in mind that even the absence of single material fact, entails the consequences of rejection of plaint, leave apart the question of making out prima facie case. Even if the material facts are pleaded and material particulars are absent or if the averments in the plaint are inconsistent, it can be said that the plaint averments do not make out a prima facie case. 13. Now, turning to the averments made in the plaint, what is not in dispute in the present case, is that the suit property is located at Aurangabad. The plaintiff resides at Juhu, Vile Parle (West), Mumbai and the suit has been filed at Aurangabad, through general power of attorney one Shri.Jagdish Dwarkadas 18 Joshi, the resident of Aurangabad. The defendant no.1- Upendrakumar S/o Sowarmal Saharia is shown to be resident of Wood Street, Calcutta-16 (W.B.). The defendant no.2-Devendrakumar S/o Sowarmal Saharia is shown to be the resident of Boat Club, Chennai (W.B.). The third defendant Umeshchandra S/o Sowarmal Saharia is shown to be the resident “as above”. Thus, although the property is located at Aurangabad, none of the parties resides at Aurangabad, including the plaintiff. That apart, none of the parties are residing at one place, the plaintiff is at Mumbai, defendant no.1 at Calcutta, defendant no.2 is at Chennai and the place of residence of defendant no.3 is not clear (as it is shown “as above”). It is not disputed that the suit property is owned by defendants, who are having 1/4th share in it and the remaining 1/4th share belonged to their mother Smt.Vimaladevi, who died on 01.01.1996. 14. In the light of aforesaid undisputed factual position, the absence of specific averments is required to be considered. There is no averments in the plaint that the alleged contract was entered into 19 between the plaintiff and/or his power of attorney holder directly with all the defendants. It is also not the case that any of the defendants or all of them informed the plaintiff or the defendant no.1 that Shri.Patil or Shri. Pandit were authorised to settle a deal for sale of property and consideration, for and on behalf of all of the defendants or any one of them. There is no specific avernment that the terms and conditions of the alleged contract dated 22.02.2003 were settled between the plaintiff and/or his power of attorney holder, with each one of the defendants directly. 15. Now, vagueness and inconsistency in the averment is to be considered. The suit is filed through power of attorney holder and when the plaintiff alleges that he had talk either with Mr.Sadashiv Bhaurao Patil and Mr.Balaprasad Hiralal Pandit, it is not understood as to whether he intends to relate such talks to himself or to his power of attorney holder. So-called authority of Mr.Sadashiv Bhaurao Patil and Mr.Balaprasad Hiralal Pandit and that of the defendant no.1, to enter into an agreement 20 of sale, to settle the terms and conditions of the contract and receive consideration of it, in part or in full, for and on behalf of all the defendants has been denied and there is no document placed on record from which, it can be inferred that such an authority was conferred upon the said persons, by all the defendants. 16. Now, coming to the averments made in para no. 2 of the plaint, it is averred that Mr.Sadashiv Bhaurao Patil and Balaprasad Hiralal Pandit, resident of Aurangabad approached to the plaintiff in 1st week of January, 2003 and gave information about the suit land. It is not clear as to whether these persons have approached general power attorney holder of the plaintiff or to the plaintiff himself, who resides at Mumbai. The place, the name of the person to whom the said persons approached; whether to plaintiff or his power of attorney holder, is conspicuously absent. In para no.3, it is averred that Mr. Patil informed the plaintiff that the defendants have authorised him to talk with prospective purchasers, about the sale of the said property and in regard to the consideration 21 etc. Shri. Patil is from Aurangabad, the defendants are residing at Calcutta and Chennai, the other places. The averments fail to establish the link between Shri.Patil and the defendants, either on telephone or personally, leave apart the question of even prima facie proof of authority of Shri. Patil, to project himself as an authoritative agent. In para No. 4 of the plaint, it is averred that there was talk with the defendant no.1 Upendra from time to time, as he had authority to negotiate and finalise the deed on behalf of other defendants. This averment fails