IN THE HON»BLEMGH COURTOFCHHATT:SGARH AT BILASPUR Misc. Appeal NoJo /2009 . PELLANT ^^y: Q.^A...-"** 3ESESPONDENTS ^) \ ^Ashok Kuniar aged about 45| years, S/o Gendiam, Caste- Gond, R/o Village- Ssja, Tahsil Saja, District Durg (C.G.) Presently at Telibandha, Raipur Tatisil & District IRaipur (C.G.) (PLA1NTIFFI VERSUS I 1 Ledagaram Dhruw, aged abbut 48 years, S/o Shambhuram ; Druw, caste Gond, R/o Village Sejbahar, Tahsil 8s District Raipur ! (C.G.) (DEFENDA^T N0. 11 Dashruram Dhruw, aged about 45 years, S/o Shambhuram Druw, caste Gond, R/o Village Sejbahar, Tahsil & District Raipur,(C.G.) (DEFENDA??TJ?0.^1 ^--* <. .^. '^ MEMORANDUM OF MISCELLANEOUS APPEAL UNDER ORDER 43 RULE Krl OF THE CIVIL PROCEDUE E CODE 1908 The appellant/plaintiffmost humbly begs to submit as under:- J^^ (y HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal No. 90 of 2009 Ashok Kumar Vs. Ledagaram Dhruw & Another Post for pronouncement ofjudgment and orders on 3 /02/2010. Sd/- N.K.Agarwal Judge /:;^ ^>'-fr'^ ^, HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal No. 90 of 2009 Appellant Respondents Ashok Kumar Versus Ledagaram Dhruw & Another Memo of appeal under Section 43 Rule 1 (r) of CPC (Sinale Bench: Hon'ble MrJM.K. Aaarwal. J.l Present : Shri Anant Bajpai with Shri Sachin Singh Rajput, Advocates for the appellant. Shri PP Sahu, Advocate for respondents. ORDER (Passed on ^_day of February, 2010) 1. Feeling aggrieved and dissatisfied with the order dated 07.08.2009 passed by the First Additional District Judge, Raipur, in Civil Suit No. 2-A/2009, whereby and whereunder the appellant's application filed under Order 39 Rule 1 & 2 of CPC for grant of temporary injunction has been dismissed, the instant appeal has been preferred by the plaintiff/appellant. 2. The brief facts of the case according to plaintiff are that, the plaintiff instituted a suit against the defendants for specific performance of agreement of sale dated 18.05.2008 regarding land bearing Khasra Nos. 305/1, 25/2,4 &10, 32/4,6 &7, total area 2.978 Hectare situated at Village Sejbahar, P.H. No. 119, Tehsil and District Raipur, whereby the defendants were agreed to sale the suit iand for a sale consideration of Rs. 18 lakhs per acre and received Rs. 35,11,000/- as advance. The plaintiff also fileci an applfcation for grant of temporary injunction under Order 39 Rule 1 & 2 of CPC claiming the relief of temporary injunction to restrain ^k -r" .. ^ the defendants from alienating the suit property till decision of the SUJt The defendants flled their written statement and also filed the reply of the application for temporary injunction and pleaded that in fact by force they have entered into agreement to sale the land bearing Khasra No. 305/1 with one Vikki Lohana @ 35 lakhs per acre and obtained 4 lakhs as advance from him. Said Vikki Lohana obtained their signatures on the Stamp paper without filling the details of names of parties, description of property, rate on which the land has been agreed to be sold and the amount of advance on the pretext that the said information would be filled after obtaining permission. They have never entered into the agreement to sale with regard to suit iand with the piaintiff they even did not know anything about the plaintiff. The conduct of the plaintiff is not equitable and therefore suit is liable to be dismissed. The temporary injunction application has also been replied in the same manner. The trial court, on close scrutiny of the material placed, recorded a prima-facie finding that yearly family income of the plaintiff is 15000/- per annum as per the caste certificate produced by him, whereas he entered into sale transaction involving crores of rupees vide (AnnexureA/1); the every important information has been filled by ink; if plaintiff is the purchaser then why the condition for obtaining permission has been mentioned in the agreement inasmuch as he himself is Tribe by caste, and held that the ptaintiff failed to prove prima-facie case in his favour and dismissed the application. 8. Shri SS Rajput, learned counsel appearing for the appellant would submit that since the defendants have admitted their signatures over the agreement to sale, therefore, whether agreement to sale is genuine or not is a matter which the court would certainly decide in accordance with law after recording evidence of the parties, but at this stage, it cannot be said that the plaintiffs have no prima- facie case, therefore, the court below has erred in dismissing his application for grant of temporary injunction. Per contra, Shri PP Sahu, learned counsel appearing for the respondents would submit that on the face of it, the sale agreement (Annexure A/1) seems to be suspicious; they have denied the execution of sale agreement with regard to land other than Khasra No. 305/1; denied execution of any agreement in plaintiffs favour; specifically pleaded in their reply to the notice as well as in the written statement that they have not entered into agreement to sale with regard to other property as mentioned in the agreement to sale and pleaded that their signatures have been obtained on suph agreement to sale without filling the important information in the said agreement which has been subsequently filled by the said Vikki Lohana in order to cheat the defendants, and therefore, the court below has rightly dismissed the application for grant of temporary injunction filed by the plaintiff. 1 have heard the counsel appearing for the parties and perused the order impugned. According to agreement to sale (Annexure A/1) and even according to plaintiff, the value of land is in crores, whereas the plaintiffs yearly income as shown by himself is Rs. 15000/- per f. !„ ',t- ,^ ,u < 4 9. 10. ® annum; when the plaintiff himself is a Tribe then which permission is necessary according to plaintiff has not been explained by him, in such a agreement in which such valuable land is involved, prima-facie it is unbelievable that why every information has been filled by ink although the entire agreement is typed. In presence of such circumstances, if the trial court did not find prima-facie case in plaintiffs favour, then it cannot be said that the trial court has committed any illegality/mistakein arriving at such finding. It is trite law that the party who seeks to take shelter of any agreement to sale, has to prove it. It is also not in dispute that in order to seek relief of temporary injunction, the plaintiff has to establish prima- facie case, balance of convenience in his favour and also to show the resultant irreparable loss. More-so, since the relief of temporary injunction is an equitable relief, it cannot be said that the trial court has exercised its discretion in an arbitrary manner. In view offoregoing, in the considered opinion ofthis court, thetrial court has not committed any illegality in passing the order impugned. The appeal being devoid of substance is liable to be and is hereby dismissed. It is however expected from the trail court to decide the suit expeditiously on its own merits without being influenced by any observation made hereinabove. No order asto costs. Sd/- N. K. Agarwal Judge Sahu