IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 FAO.No. 40 of 2011() -------------------- AGAINST THE ORDER DATED 09/11/2010 IN IA.8697/2010 IN OS.1045/2010 of I ADDL.SUB COURT, THRISSUR .................... PETITIONER ------------------------------ SANDEEP, S/O.KRISHNAN NAIR, SREE KRISHNA VEEDU, MALESHAMANGALA, THIRUVILAMALA VILLAGE, TALAPALLY TALUK, TRICHUR DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN RESPONDENT(S): --------------- SURESH, S/O.KRISHNA MURTHY, PARVATHI NILAYAM, THIRUVILAMALA DESOM AND VILLAGE, TALAPALLY TALUK, TRICHUR DISTRICT. ADV. SREELAL WARRIER THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- F.A.O.No.40 OF 2011 ------------------------------------ Dated this the 16th day of June, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.The plaintiff in a suit for specific performance of a contract for sale of an item of immovable property is the appellant. He challenges the order by which the court below dismissed his application for temporary injunction seeking an order prohibiting the respondent defendant from alienating and encumbering the suit property. The court below took the view that in terms of the provisions of the Specific Relief Act, no order of injunction could be granted when there is alternate efficacious remedy. It also held the view that the rights of a vendee under the Transfer of Property Act to charge on the property for the advance paid, should also weigh against granting an order of temporary injunction. FAO.40/11 2 2.In this appeal, at the stage of admission, it was noted that the plaintiff faces real apprehension of the defendant entering into different transactions under which the plaintiff could be jeopardised by intervention of third party interests even if the value of such intrusions would not be much in terms of law. Therefore, we granted an order of temporary injunction at the stage of admission on 11.2.2011 against the defendant alienating the plaint schedule property on condition that the plaintiff deposits an amount of Rs.25 lakhs. That order was later modified permitting the plaintiff to provide an FD receipt for the like sum. This has been done. Therefore, that order of temporary injunction is in force for the last nearly four months. 3.We have looked into the pleadings of the parties before the court below. The existence of the agreement is not in dispute. There are certain disputes touching the provisions of that agreement. The extent of the property and certain other issues needs to be decided or settled. Going by the FAO.40/11 3 written statement, defendant also denies a subsequent endorsement on the agreement. Now that the pleadings are in place, it would be worthwhile for the parties to co-operate so that the court below can dispose of the suit at any rate before the court closes for X'mas holidays, taking the suit to finality. Even if there is any issue referable to the actual extent of the property, etc., that would arise only at the stage of Section 28(3) of the Specific Relief Act and such issues need not stand in the way of a speedy disposal of the suit at this point of time. 4.Having regard to the conditions imposed on the plaintiff and the need to make available the property in the stage in which it is, without any further transactions thereto, we are of the view that the plaintiff has justifiable cause for a conditional order of temporary injunction as granted by us on 11.2.2011. We, therefore, make that order of temporary injunction absolute pending disposal of the suit. The court below will make an endeavour to dispose of the suit as FAO.40/11 4 expeditiously as possible, at any rate before the civil courts closes for X'mas holidays, 2011. We hasten to clarify that we have not expressed anything on the merits of the case and the court below will decide the issues untrammelled by anything stated in the order impugned or in this judgment. The FAO is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.17/6.