IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No.43 of 2009 Date of Decision : April 9, 2009 Ashok Kumar …Appellant-plaintiff. Versus: Pawan Kumar & others …Respondents-defendants. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Dr. Lalit Sharma, Advocate For respondents 1 to 4: Ms. Sunita Sharma, Advocate For respondents 5 & 6 : Mr. Rakesh Jaswal, Advocate. For respondent 7 : Mr. Dinesh Thakur, Advocate. SANJAY KAROL, JUDGE (Oral). Plaintiff has assailed the order dated 24.1.2009 passed by the Addl. District Judge, Fast Track Court, Una, H.P. in C.M. Application No.28/08 in Civil Suit No. 13/2008 (wrongly mentioned as Civil Appeal) titled as Ashok Kumar v. Pawan Kumar & Ors. The appellant is the plaintiff and the respondents are the defendants before the trial Court and are referred to as such. Plaintiff filed a suit for specific performance of contract for the sale of land measuring 3-04-29 hects. bearing Khasra Nos. 2191, 2192, 2404, 2480, 2487, 2498 and 2499, Khewat No. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 1min, Khatoni No. 11, as entered in jamabandi for the year 2002- 2003 situate in village Gondpur Bulla, Tehsil Haroli, Distt. Una, H.P. (hereinafter referred to as ‘suit land’) on the basis of agreement dated 4.1.2008. As per the plaintiff’s case, defendants No. 1 to 4 executed an agreement for sale of the suit land in favour of the plaintiff and defendant No.7. A sum of Rs. 5 lacs was paid and the remaining sum of Rs.3,90,000/- was agreed to be paid after a period of 45 days from the date of the agreement. Subsequent to the execution of the said agreement, defendants No.1 to 4 executed a Sale Deed selling the suit land to defendant No.5, who in turn further agreed to sell the suit land in favour of defendant No.6 in terms of agreement dated 6.7.2008. The defendants threatened to take over the possession of the suit land, hence, the plaintiff prayed for a decree for specific performance of the agreement dated 4.1.2008. A further declaration that Sale Deed dated 30.4.2008 entered into between defendants No.1, 3 & 4 in favour of defendant No.5 be set aside and a consequential relief of permanent injunction restraining the defendants from changing the nature, character, removing the trees and from further alienating the suit land was also prayed for. An alternate payer of recovery of Rs.10 lacs along with interest was also made. Plaintiff also filed an application under Order 39 Rules 1 & 2 CPC praying for following relief:- “It is, therefore, prayed that this application may please be allowed and respondents be restrained 3 from changing the nature and character of the suit land by way of raising super structure, fitted with electricity supply, water supply etc. from the concerned authorities by getting change of land use, cutting and removing the trees, changing the kisam of the suit land and from further alienating the suit land. Land measuring 3-04-29 HR bearing Khasra Nos. 2191, 2192, 2104, 2480, 2487, 2498 and 2499, khewat No. 1min, khatoni No. 11, as entered in as entered in jamabandi for the year 2002-2003 situate in village Gondpur Bulla, Tehsil Haroli, Distt. Una, H.P till the disposal of the main suit.” In the plaint, even though it is mentioned that the plaintiff is in possession of the suit premises but however, from the aforesaid relief clause it is apparent that the plaintiff was not in possession of the premises as no interim relief was prayed restraining the defendants’ from dispossessing him from the suit premises. Defendants No.1 to 4 choose not to file their reply to the application but however, defendants No. 5 & 6 filed a joint reply inter alia denying the plaintiff’s averments with regard to the execution of the agreement dated 4.1.2008. On the contrary, it was pleaded that defendant No.5 had purchased the property from defendants No. 1, 2 & 4 vide Sale Deed dated 30.4.2008 for a valuable consideration when he was put in possession of the suit land by them. Defendant No. 5 continues to be in possession of the suit land as owner being a bonafide purchaser. Defendant No. 5 purchased 305 kanals land where construction activities for 4 setting up of a commercial project is in progress. However, on the suit land no construction activity is going on. Defendant No.7 filed his written statement clearly denying that defs. No. 1 to 4 had ever executed any agreement of sale of the suit land in his favour along with the plaintiff or that he was in possession of that agreement dated 4.1.2008 as alleged by the plaintiff. In fact he categorically averred in the affirmative that defendant No.5 being the owner is in possession of the suit land and the said defendant has further entered into an agreement with defendant No.6. From his pleadings, it is clear that def.No.5 has entered into an agreement with def.No.6. With these pleadings, the Court below decided the plaintiff’s application filed under order 39 Rules 1 & 2 CPC. After appreciating the material on record, the Court below came to the conclusion that the plaintiff had failed to even show a prima facie case on merits. From the record, it is clear that the plaintiff has not placed on record either the agreement to sell dated 4.1.2008 (original or photocopy) or receipt of Rs.5 lacs which was alleged to have been paid as earnest money to defendants No. 1 to 4. The only document placed on record by the plaintiff, is the photocopy of the extract of the register of the Petition Writer in which there is an entry qua the agreement in question. In the present case, except for bald averment made by the plaintiff in his plaint, there is nothing to even prima facie 5 show that an agreement to sell was ever executed between the parties. Defendant No.7 has categorically denied the execution of any such agreement. The same is alleged to be in his favour along with the plaintiff. It is not the case of the plaintiff that defendant No.7 has colluded with other defendants and, therefore, the defendants have joined hands to defeat the plaintiff’s claim. In fact plaintiff has failed to show as to what is his relationship with defendant No.7. Even subsequent to the filing of the written statement, plaintiff has not taken any action against defendant No.7. The purported agreement was allegedly executed on 4.1.2008 when more than 60% of the sale consideration is alleged to have been paid. The balance payment was to be made within a period of 45 days from the said date. Why no money was paid within that period is not clear. It is not the plaintiff’s case either that he had kept the balance sale consideration ready and had offered to pay the same. Defendants No. 1, 2 & 4 entered into Sale Deed with defendant No.5 only on 30.4.2008. Therefore, for all the aforesaid reasons, in my considered view, the plaintiff has not made any prima facie case for an injunction. On the other hand, there is a registered sale in favour of defendant No.5. Defendants No.5 & 6 have purchased the land for industrial use. The balance of convenience lies in their favour. If eventually the plaintiff succeeds no irreparable loss would be caused to him, which can not be compensated in terms of money. The Court 6 below, in my considered view, has rightly taken the entire circumstances into account while deciding the application. It is a settled position of law that all the three essential ingredients being prima facie case, balance of convenience and irreparable loss which can not be compensated in terms of money must exist for the plaintiff to seek an order of interim injunction in his favour. In the present case, I am afraid none exists. Defendant No.5 was put in possession in terms of Sale Deed dated 30.4.2008 and, therefore, it cannot be said that the plaintiff is in possession. This in fact is fortified from the plaintiff’s prayer made in his application for an interim injunction which has been reproduced hereinabove. Dr. Lalit Sharma, has referred to the following decisions rendered by the Apex Court:- Shefali Roy v. Hero Jaswant Dass AIR 1992 SC 254, Dalpat Kumar & Anr. v. Prahlad Singh & Ors. AIR 1993 SC 276, Sanjay Verma v. Manik Roy & Ors. (2006) 13 SC 608. The ratio of law laid down is not applicable to the present facts. For all the reasons, I find no merit in the present appeal and the same is consequently dismissed. Interim order dated 4.2.2009 is vacated. ( Sanjay Karol ), Judge. April 9, 2009. (rana)