IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A No.1085 of 2011 Dated:19-10-2011 Between: B.Chittibabu and another. ….Appellants. And M.A.Noorullah. ….Respondent. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.ANo.1085 of 2011 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the Orders passed in I.A.No.872 of 2011 in O.S.No.166 of 2011 by the Chief Judge, City Civil Court, Hyderabad on 03.08.2011. The appellants herein are the respondents in the above said petition and the respondent herein is the petitioner and he has filed the above said petition under Order 39 Rules 1 and 2 CPC for grant of temporary injunction against the respondents from creating charge, encumbering, alienating, negotiating or doing any transactions in respect of the petition schedule property. The parties in the appeal are being referred to as mentioned in the petition before the lower Court. According to the petitioner he is a reputed businessman residing at Hyderabad. One Zafar Baig, who is known to him, during one of the discussions told him that the petition schedule property i.e. property bearing Nos.22-3-939, 22-3-940, 22-3-941 and 22-3-942 admeasuring 393.91 square yards equivalent to 329.30 square meters, situated at inside Dabeerpura, Purani Haveli, Hyderabad, is available for sale and introduced the respondents to him. Thereafter, he inspected the said property and the respondents approached him through the said Zafar Baig on 19.02.2011 at his residence and represented that they are the absolute owners and possessors of the petition schedule property and offered to sell the same for a total sale consideration of Rs.60,00,000/- and on deliberations and negotiations, he accepted the same. Pursuant to which, he paid an amount of Rs.2,00,000/- towards advance sale consideration as a part of performance of the contract. The entire transaction took place in the presence of Zafar Baig and Mohd. Mushtaq. On receiving the payment, the respondents promised to handover the stamped receipt on the same day after conducting a small Laxmi Puja at their residence. The petitioner trusted the respondents, as they are known to the said Zafar Baig. The petitioner started contacting the respondents and requested for the receipt for the advance sale consideration, but they started dodging the same on one pretext or the other. The petitioner finally came to the residence of respondents on 22.02.2011 at 1.30 P.M. along with the said Zafar Baig and demanded for the receipt, but the respondents squarely changed their version, having sought an advise of their counsel Md.Ismail, and as per his advise, they refused to issue the receipt and demanded the petitioner to pay the entire sale consideration and get the property registered. Since the respondents have not handed over the copies of the documents, clearances, no objections of the property, the petitioner was unable to make a paper publication. The petitioner reliably learnt that the respondents have started negotiating with the different people to sell away the petition schedule property. Since the property is encumbered under agreement to him and the advance sale consideration already paid by him to the respondents, they cannot negotiate, deal, and transact the property in favour of anybody. The petitioner always ready to perform his part of contract, but the respondents are dodging their obligation and refused to handover the receipt for the advance payment of Rs.2,00,000/-. Thus, he was constrained to issue notice dated 24.02.2011 calling upon the respondents to furnish entire copies of documents and clearances required along with receipt of Rs.2,00,000/- paid towards advance sale consideration and further to execute and register sale deed in his favour. The respondents did not comply with the notice and gave evasive reply Dt.03.03.2011 denying the transaction and contents of the notice and failed to perform their part of contract. The petitioner has prima-facie case and balance of convenience in his favour and if the respondents succeed in their attempts to sell the petition schedule property, he would suffer irreparable loss and injury, which cannot be compensated in any manner. Hence, the petition. The respondents have filed their counter denying the averments made in the petition with regard to entering into oral agreement of sale with the petitioner and receiving Rs.2,00,000/- as advance sale consideration. According to them, they never invited either the petitioner or the said Zafar Baig at any point of time nor they showed the petition schedule property to them and they did not receive any amount from the petitioner. They denied the allegation that the petitioner started contacting them and requested for the receipt relating to the advance sale consideration. They also denied about the petitioner visiting their residence on 22.02.2011 at 1.30 P.M. along with Zafar Baig and demanding for the receipt for payment of advance amount and as per the advise of their counsel Md. Ismail they have not issued the receipt for payment of the advance sale consideration and demanded the petitioner for payment of balance sale consideration. According to them, they never entered into any agreement of sale with the petitioner and they have no acquaintance either with the petitioner or Zafar Baig. The petitioner hatched up a plan and set up a false story of agreement of sale and payment of Rs.2,00,000/- and he is having full knowledge that the 1st respondent is aged about 75 years and 2nd respondent is aged about 80 years and created a concocted story of payment of Rs.2,00,000/- and filed a suit for specific performance of contract and obtained status-quo Order. The intention of the petitioner is to compel the respondents to sell away their valuable property for a meager consideration. The petitioner has filed the suit with an intention to prolong the matter and to illegally convince and pressurize the respondents to sell away their valuable property at meager price by hook or crook. The notice dated 24.02.2011 is false and the respondents replied suitably on 03.03.2011 denying the alleged averments made in the said notice. The neighbour of the petition schedule property namely Samdani hatched a plan and got filed the false suit through the petitioner. The petitioner is a puppet in the hands of the Samdani and the suit was filed with the sole intention to mentally harass and compel the respondents to sell away their valuable property at cheaper price. The petitioner is not entitled for equitable relief of injunction as prayed for and the petition is liable to be dismissed. During the course of enquiry, Exs.P.1 and P.2 were marked on behalf of the petitioners and no documents were marked on behalf of the respondents. Taking into consideration of the said contentions of both parties the learned Chief Judge has allowed the petition without costs and status-quo order granted on 18.03.2011 is confirmed and the respondents are accordingly directed to maintain Status- quo without in any manner alienating/transferring the petition schedule property pending disposal of the suit. Aggrieved by the said Order, the present appeal is filed by the respondents therein. The main contention of the appellants/respondents is that the petitioner, who is claiming to be a reputed businessman in Hyderabad would not have entered into oral agreement without verifying the documents of the schedule property and would not have paid an amount of Rs.2,00,000/- towards advance to unknown persons, as such the contention of the petitioner that he entered into oral agreement with them is false and fabricated only for the purpose of pressurizing the appellants/respondents to sell the petition schedule property for meager consideration. He further pleaded that even though the petitioner has pleaded that the entire transaction took place in the presence of Zafar Baig and Mohd. Mushtaq, the affidavits of the said persons were not filed along with the petition to establish his contention, as such the oral agreement set up by the petitioner and payment of advance sale consideration of Rs.2,00,000/- cannot be believed. The appellants/respondents’ counsel further pleaded that the petitioner by obtaining status-quo order is preventing the respondents from enjoying the property and pressurizing them to sell the property at lower price and when the petitioner has failed to establish the prima-facie case and balance of convenience, he is not entitled for status-quo as granted by the lower Court. The respondent/petitioner’s counsel on the other hand has pleaded that the learned Chief Judge has rightly granted the status-quo Order by taking into consideration of proof of prima- facie case of oral agreement between the parties and if the respondents are not restrained from alienating the petition schedule property, they may dispose of the property to 3rd parties pending disposal of suit and thereby create multiplicity of litigation and no prejudice is going to be caused to the appellants/respondents by the Order of Status-quo, as such the appeal is liable to be dismissed. The learned Chief Judge by observing that the question as to whether the oral agreement pleaded by the petitioner is true or not has to be decided after conducting full-fledged trial and at this stage as the petitioner has given the minute details of the property of the respondents with exact door numbers, extent and boundaries, the existence of oral agreement in favour of the petitioner is proved and thereby held that the petitioner has got prima-facie case in his favour. The other consideration, which led the lower Court to come to the conclusion that there is prima-facie case in favour of the petitioner is that the petitioner has alleged that the respondents by taking advise of their counsel Mohd.Ismail refused to issue the receipt and the said advocate Mohd.Ismail has filed Vakalat on behalf of the respondents shows that there is an element of truth in the contention of the petitioner. The lower Court has observed with regard to non filing of the third party affidavits by the petitioner that as the suit is based on oral agreement of sale and as the two witnesses and their statements are vital, they need not be filed at the early stage to safeguard the interests of the plaintiff in the suit. According to the petitioner, he is a reputed businessman at Hyderabad. As rightly contended by the appellants’ counsel such a reputed businessman without verifying the documents relating to the title of the petition schedule property and basing on the representations of the respondents that they are the absolute owners of the property, would not have paid an amount of Rs.2,00,000/- to the respondents without obtaining any document from them. As per the averments made in the petition, the petitioner agreed for the offer made by the respondents to sell the property for Rs.60,00,000/- after due deliberations and negotiations, but the petitioner did not mention the details of the negotiations and deliberations that took place between them and under what terms and conditions the said oral agreement was entered into between them before making payment of advance of Rs.2,00,000/-. Merely because the petitioner has furnished the details of the property like the extent, door numbers and boundaries, it cannot be presumed that unless and until the oral transaction took place between the parties, the petitioner may not be able to know the said details. Simply because the petitioner came to know the name of the counsel of the respondents, it cannot be presumed that on his advise the respondents have not issued the receipt for the amount received by them. Therefore, it cannot prove the prima-facie case in favour of the petitioner. Moreover, the petitioner has pleaded that the entire transaction took place in the presence of Zafar Baig and Mohd. Mushtaq, but the affidavit of anyone of them was not filed to establish the oral agreement of sale between the parties and also payment of Rs.2,00,000/-. The findings of the lower Court that filing of the affidavits of the parties, who were present at the time of entering into oral agreement of sale, at this stage destroys the case of the petitioner in the main suit, cannot be accepted. In view of the above discussion the non filing of the affidavits of the persons said to have been present at the time of oral agreement of sale and payment of advance sale consideration, clearly shows that the petitioner has failed to establish the prima-facie oral agreement of sale set up by him. The lower Court has come to the conclusion that if the status-quo Order is not granted, the respondents may alienate the property in favour of third parties, thereby irreparable loss would be caused to the petitioner and further observed that the satus-quo Order was granted on 18.03.2011 and the same was extended from time to time and no prejudice is going to be caused to the respondents as they have not put forth the plea that they are intending to sell the property to third parties. The appellants’ counsel has pleaded that in view of the status-quo Order, the petitioner is pressurizing them to sell the property to him at a lower price of Rs.60,00,000/- even though the property is worth a Crores of rupees and preventing them from enjoying the said property. The petitioner has filed the suit for specific performance basing on the oral agreement of sale. Even if the respondents succeed in the main suit, the loss if any sustained by the petitioner can be compensated by awarding damages and also by refunding the advance sale consideration paid by him. Therefore, it cannot be said that the petitioner will be put to irreparable loss if the status-quo Order is not granted in his favour. No prejudice is going to be caused to the respondents by the Status-quo Order, cannot be a ground for granting status-quo Order when the petitioner has failed to establish the prima-facie case and balance of convenience in his favour. Therefore, in the above circumstances the respondent/petitioner is not entitled for the status-quo Order as granted by the lower Court and the same is liable to be set aside. In the result, the civil miscellaneous appeal is allowed without costs. Consequently, the Order passed in I.A.No.872 of 2011 in O.S.No.166 of 2011 by the Chief Judge, City Civil Court, Hyderabad on 03.08.2011 is hereby set aside. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:19-10 -2011 Ksp