-1- S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others Date of Judgment :::: March 16th, 2010 Hon'ble Mr. Justice Dalip Singh Dr. Prakash Chand Jain, Counsel for the plaintiff-appellant Mr. Sagarmal Mehta, Senior Counsel, assisted by Mr. M.L. Vyas, Counsel for the defendant-respondents *** By the Court : Heard learned counsel for the parties. This miscellaneous appeal, under Section 104 read with Order 43 Rule 1 (r) of the Code of Civil Procedure, 1908 has been preferred by the plaintiff-appellant challenging the order dated 25.07.2007 passed by the learned trial Court by which the application filed under Order 39 Rule 1 and 2 C.P.C. for the grant of temporary injunction has been dismissed by the learned trial Court. Brief facts giving rise to the present miscellaneous -2- S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others appeal are that the plaintiff-appellant instituted a suit interalia for specific performance of the agreement dated 02.06.2004 entered into with the defendant-respondent No.1 Gyarsa son of Shri Khema for the sale of agricultural land bearing Khasra No.168. At the same time, the plaintiff also prayed for cancellation of the sale-deed executed by the defendant No.5 - Lokesh Jain son of Shri P.C. Jain in favour of the defendant- respondents No.3 and 4 viz., M/s. Mestro Promoters Private Limited and Deepak Sharma on 24.12.2004. It has also been come on record that the aforesaid sale-deed for the land in dispute in the Khatedari of the defendant No.1 Gyarsa was executed by the respondent No.5 – Lokesh Jain on the strengthened of registered power-of- attorney-holder executed by the defendant No.1 - Gyarsa in favour of Lokesh Jain and registered on 18.10.2004. It is the case of the plaintiff that the defendant No.1 Gyarsa Khatedar of the land executed an agreement for sale on 02.06.2004 in favour of the plaintiffs agreeing to sell the land in dispute measuring 1.10 hectare equivalent to about 4.4. bigha @ Rs.6,40,000/- per bigha. It is the case of the plaintiff that the plaintiff paid in all an amount of Rs.29-lacs to the defendant No.1 on various dates up-to 20.10.2004. It has further been submitted by the learned counsel -3- S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others for the plaintiff-appellant that the defendant No.1 through his power-of-attorney-holder, the defendant No.5 sold the land in dispute to the defendant Nos.3 and 4 vide registered sale-deed on 24.12.2004, however, the plaintiff came to know about the aforesaid transactions of sale in favour of the defendant Nos.3 and 4 in January 2005. The plaintiff met with the defendant No.1 for executing the sale-deed in his favour, but the defendant No.1 declined to execute the sale-deed in his favour. The aforesaid averment has been made in Para No.16 of the plaint. The present suit was thereafter filed on 16th May, 2007. So far as the original agreement to sell dated 02.06.2004 is concerned, which was said to have been executed by Gyarsa, defendant No.1 in favour of the plaintiff, it has been stated by the plaintiff in the plaint that the defendant No.2 approached the plaintiff being his partner and acquaintance of the brother-in-law, who has dealt with in the sale and purchased of the land in several transactions earlier and told the plaintiff that a third party was interested in the land in dispute and he required, to show the original documents dated 02.06.2004 to the said third party and in case the deal materializes, he would ask the plaintiff to come and execute the same. It is the contention of the plaintiff in Para No.10 of -4- S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others the plaint that relying upon the defendant the plaintiff gave the origional agreement dated 02.06.2004 to the defendant No.2 on 25.12.2004 and the defendant No.2 has not returned the aforesaid agreement to him. As such the Photostat copy of the same was filed, along with the plaint. The plaintiff in the plaint ultimately prayed that the decree for specific performance of the agreement dated 02.06.2004 be passed against the defendant No.1 and the sale-deed executed in favour of the defendant Nos.3 and 4 by the power-of-attorney-holder of the defendant No.1, the defendant No.5 on 24.12.2004 be declared null and void and possession of the land be handed-over to the plaintiff. It has also been prayed that the decree for permanent injunction be passed restraining the defendant Nos. 3 and 4 from carrying out any further transactions in respect of the land in dispute by getting the sale-deed registered in favour of the third person and restraining him from giving possession of the same to any third party and to maintain the status-quo. Along with the suit, an application under Order 39 Rule 1 and 2 C.P.C. for the grant of temporary injunction was also filed with the same relief regarding restraining the defendant Nos.3 and 4, the respondent Nos.3 and 4, herein not to alienate the property in dispute during the pendency of the suit and further not to hand-over the possession of the same to -5- S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others any said third party as also not to alter the revenue records. The defendant Nos.3 and 4 contested the application. The defendant No.1 appears to have supported the plaintiff. The defendant No.5 has remained ex-parte and the defendant No.2 has denied the plaint averments. The learned trial Court, after considering the material on record rejected the application filed by the plaintiff- appellant under Order 39 Rule 1 and 2 C.P.C. for grant of temporary injunction holding therein that the plaintiff has failed to prove the prima-facie case, the balance of connivance as well as irreparable loss in his favour. Hence, the present miscellaneous appeal. Learned counsel for the plaintiff-appellant reiterated the submissions, which were made in the plaint and the application for the grant of temporary injunction regarding the execution of the agreement dated 02.06.2004 as also the fact that the entire sale consideration of Rs.29-lacs had been paid to the defendant No.1 through his power-of-attorney-holder, the defendant No.5 by 20th October, 2004 and, therefore, there was a strong prima-facie case in favour of the plaintiff for the grant of temporary injunction, as prayed. Learned Senior Counsel Shri Mehta, appearing on behalf of the defendant-respondents, on the other-hand, contested the aforesaid submissions and pointed out that even the origional agreement to sell said to have been executed by -6- S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others the defendant No.1 in favour of the plaintiff dated 02.06.2004 has not been filed, along with the plaint and that conveniently a plea has been raised that the same was taken by the defendant No.2 in the manner, as stated in the plaint from the plaintiff for effecting the deal with a third party, which was interested in the land. It has further been stated by the learned counsel that so far as the defendant No.2 is concerned, even as per the plaint averments the defendant No.2 was an acquaintance of the plaintiff and the plaintiff and the defendant No.2 had jointly carried out several deals with regard to the land transactions and that the plaintiff was not a novice so as to give the origional documents to the defendant No.2 when even as per the plaintiffs own showing the plaintiffs brother-in-law had filed a complaint against the defendant No.2 for commission of the offence under Sections 420, 467, 468 and 120-B I.P.C. in respect of similar dealings. It has further been submitted by the learned counsel that it is most unlikely that the plaintiff having paid the entire consideration of Rs. 29-lacs, as stated in the plaint on or before 20.10.2004 would not take possession of the land in dispute since nothing further remained to be paid and only the sale- deed was required to be executed and registered and for which also the expenses had been paid by the plaintiff to the -7- S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others defendant No.1. It was most unlikely in these circumstances that the plaintiff would not seek the registration of the sale-deed in his favour by the defendant No.1. At the same time, there are other facts, which show that the defendant No.1 executed a general power-of-attorney, including for sale of the land on 25.10.2004 i.e. after having received the entire sale consideration as per the plaintiff averments on 20.10.2004, in favour of the defendant No.5. It is contended by the learned counsel that if the defendant No.1 had already received the entire sale consideration in pursuance of the agreement dated 02.06.2004 at least in the power-of-attorney, which was executed on 25.10.2004 a reference to the said agreement dated 02.06.2004 and the fact that it was sought to have been executed for the purposes of effecting the sale-deed in favour of the plaintiff ought to have found mention in the said power- of-attorney executed in favour of the defendant No.5 for this purpose. It is contended by the learned counsel that absence of these averments negatived the case of the plaintiff that there was any agreement to sell executed on 02.06.2004 by the defendant No.1 and further that the defendant No.1 had received the entire sale consideration of Rs.29-lacs on 20.10.2004 only five-days prior to the execution of the power- -8- S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others of-attorney on 25.10.2004 in favour of the defendant No.5. On the basis of the above, it is contended by the learned counsel that in the absence of the original documents agreement to sell dated 02.06.2004, the absence of the averments in the power-of-attorney with regard to agreement to sell dated 02.06.2004 in favour of the plaintiff or having received the entire sale consideration of Rs.29-lacs the entire story being set-up by the plaintiff in this behalf is false. It has further been submitted that so far as the payment of Rs.29-lacs is concerned, the plaintiff has failed to produce any receipt for the aforesaid amount of Rs.29-lacs. The receipt allegedly produced for showing the payment of Rs.7-lacs appears to be forged one on the face of it. It has further been submitted by the learned counsel that the signatures on the alleged agreement to sell dated 02.06.2004, the Photostat copy of which has been produced before the learned Court below bears the signature of “Gyarsi Lal”, whereas during the same period in 2004 the defendant No.1 has been signing on the receipt as “Gyarsa”, even in the written-statement, which has been filed in the Court the defendant No.1 has signed as `Gyarsa' and not “Gyarsi Lal”. It is contended by the learned counsel that the signature of the person cannot differ, even assuming that there -9- S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others is an alias, which has not been shown to be so in the present case so far as defendant No.1 Gyarsa is concerned. Learned Senior Counsel Shri Mehta, therefore, supported the judgment of the learned trial Court and contended that the respondent Nos.3 and 4 are bonafide purchaser for value having purchased the land in dispute vide registered sale-deed and having paid an amount of Rs.27-lacs in all and possess a prefect title over the land, which has not been questioned by the vendor Gyarsa defendant No.1 and further that Gyarsa has made no efforts to either cancel the power-of-attorney made in favour of the defendant No.5 nor has he filed any complaint before the Police or the Criminal Court or any civil proceedings against the defendant No.5 for cheating or non-payment of the sale consideration nor cancellation of the sale-deed dated 24.12.2004 made in favour of the defendant Nos. 3 and 4. It has further been contended that it is surprising that the plaintiff, who had come to know about the sale-deed having been executed of the land in dispute in favour of the defendant Nos. 3 and 4 in January 2005 itself, waited for two- &-half years for filing the present suit in May 2007, having paid an amount of Rs.29-lacs to the defendant No.1. It was also submitted that even the plaint lacks in necessary averments with regard to the readiness and -10- S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others willingness for performance his part of the contract, which is mandatory in terms of Section 16 (1) (c) of the Specific Relief Act, 1963 and the suit is thus likely to be dismissed on this ground alone. All in all the learned counsel supported the judgment of the learned trial Court dated 25.07.2007 one of the other respondent had put in appearance before this Court. I have considered the rival submissions and perused the record as well as the order passed by the learned trial Court. While it would not be fair to comment upon the submissions made by the parties at this stage, as it may prejudicially affects the rights either of the parties at trial. In the facts and circumstances of the case, which have been brought out by the learned counsel for the parties and has held by the learned Lower Appellate Court in Para Nos.9 and 10 while deciding the question of prima-facie case, I expressed my agreement with the aforesaid findings given by the learned trial Court in so far as it relates to the question of grant of temporary injunction and there is prima-facie substance in the submissions of the learned counsel for the respondents. In the present case even the original agreement for sale dated 02.06.2004 has not been produced in Court. It is doubtful that the plaintiff who has paid 29-lacs of rupees would -11- S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others give away the original for being shown to a third party as suggested for satisfying the prospective buyers. The buyers could have been shown the original by the plaintiff himself or he could have given the Photostat copy to the defendant No.2 and retained the original. Even the fact of payment of the entire consideration of Rs.29-lacs prima-facie lacks in evidence. There is no satisfactory explanation why the plaintiff waited from January 2005, when he came to know about the sale in favour of the respondent Nos.3 and 4 up-to May 2007 for taking any steps for setting aside the sale in favour of the defendant Nos.3 and 4 and aserting his rights on the basis of the alleged agreement dated 02.06.2004. The defendants No.3 and 4 are bonafide purchasers for value having paid an amount of Rs.27- lacs and having a valid title on the basis of a registered sale- deed in their favour and the defendant No.1-Gyarsa has not challenged the said sale by defendant No.2. In the facts and circumstances, therefore, the miscellaneous appeal filed by the plaintiff-appellant is dismissed. However, learned counsel appearing for the respondent Nos.3 and 4 undertook that in case any sale is made or transfer or assignment is made during the pendency of the suit the defendant Nos.3 and 4 would bring the same to the notice of the learned trial Court for the purpose of Order 22 Rule 10 C.P.C. -12- S.B. Civil Miscellaneous Appeal No.2904 of 2007. Rahul Maheshwari son of late Shri S.B. Gupta VERSUS Gyarsa son of Shri Khema and Others In the facts and circumstances, subject to the above the miscellaneous appeal stands dismissed. Interim order passed by this Court dated 07.08.2007 stands vacated. The learned trial Court shall make an endeavour to decide the suit as expeditiously as possible with the cooperation of all the parties. (Dalip Singh), J. Ashok/