^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal No^_^-_/ 2011 ®t,n ?-53S t;; ii ^ '-A? Ban&^ Appellant Plamtiff ^5 \\ y^6-<.-rr'l"~:.»... 'tso^^.-^^^'^ Respbndents Defendants 1. Kuleshwar Singh Sen, S/o Mohan Lal Sen, 34 years, ,.... R/o Vm. Sihad, "•"^Tah. & Dist. Dhamtari (C.G.) ersus Thakur Ram Sahu, S/o Suineri Ram Sahu, y ^-e^rs. ^' R/o Vill. Tarsinva, R.N.M. Bhothli, Tah. & Dist. Dhamtari (CG) State of Chhattisgarh, Through - Collector Dhamtari 2. MISCELLENEOUS APPEAL U/0 43 RULE Kr) OF THE CODE OF CIVIL PROCEDURE ^ HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH : HON'BLE SHRI PRASHANT KUMAR MISHRA. J. Misc. Appeal No. 2 of 2011 APPELLANT Kuleshwar Singh Sen. Versus RESPONDENTS Thakur Ram Sahu and another. Shri Prafuii Bharat, counsel for appellant. Shri P.P. Sahu, counsel for respondent No.1. Shri Sanjeev Agrawal, Panel Lawyer Tor the State/respondent No.2. ORAL ORDER (12/05/2011) Following oral order of the Court was passed by Prashant Kumar Mishra. J. Challenge has been made to the order passed by the trial Court rejecting the plaintiffs/appellant's apptication under Order 39 Rule 1 & 2 of C.P.C. (2) Plaintiff has filed a sult for specific performance of contract dated 05/04/2007 pertaining to land admeasuring 4.06 hectares. According to the plaintiff out of the agreemented amount of Rs.2,68,000/- per acre the plaintiff has already paid an amount of Rs.2,00,000/- in two installment of Rs.1,50.000/- + Rs. 50.000/-, however the defendant No.1 avoided to -execute the sale-deed on one pretext or other and therefore the present suit has been necessitated. +*" (3) According the defendant the plaintiff always avoided to perform his part of the contract and was not ready and willing to make payment of the Balance amount of consideration and get the sale-deed registered. ^ f-.. 'a*^ .^•' ..t-/"—"'•;- \i> 'yy ESS8'" --2,- . (4) Application under Order 39 Rule 1 & 2 of C.P.C. was filed by the plaintifF on simitar pleading as has been made in Uie plaint and this application was replied by defendant No.1. (5) The trial Court has reiected the application after findins that on scrutiny of the pleadings and the affidavrts filed by eittier parties at ttiis stege, the defendant's contention appears to be more convincing ftat the plaintiff was not willing to perform his part of the contract. It has been observed in para 6 ofthe impugned order that ttie defendant has filed affidavit and stated that legal notice was also sent to the plaintiff to remain present before the office of Sub-Registrar on a particular date and yet the plaintiff did not appear. in para 7 of the order the Court has considered the plaintiffs contention that he too appeared before the Sub-Registrar for execution of sale-deed butthe defendant No.1 was not present. (6) Be that as it may, the trial Court has exercised discretion on e obtaining factual matoix and with the assistance of doctrine of lis pendens it has found that the ptaintiffs right is protected under the said doctrine and it woiild not be proper to restraln the defendant No.1 from alienating the suit land during pendency of the suit. In the given set of facts, the questton as to whether any subsequent purehaser would be a bonaMe purchaser or not shall be determined by the trial Court, keeping in view doctrine of lis pendens also. '\ (7) In thei matter of WanclerUd. and Another vs. Antox Inclia P. Ltd. reported in f990 (Suppl.) SCC 727 ttie Hon'ble Supreme Court has held thus in paragraph 14 ofthe report. 14. The appeals before the Division Bench were aaainst the exercise otdiscretton bythe Single Judge. In such appeals, ^ 's^^' '?> Q / the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its cwn discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or pervereely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possibte on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solefy on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. Ifthe discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justity interference with the trial court's exereise of discretion. After referring to Uiese principtes Gajendragadkar, J. in Printers (Mysoie) Private Lfcf. v. Pcrihan Joseph^ (1960) 3 SCR 713: (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Charies Ownton & Co. v. Jhanaton 1942 AC 130 '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of Ms discretion is well established, and any difficulty that arises is due only to the applicaUon ofwell settled principles in an individual case." The appellate judgment does not seem to defer to ttiis principle.n (8) In view of Ihe above principles !aid dcwn by the Hon'ble Supreme Court, this Court is not inclined to entertain this appeal to interfere with e exercise of discretion by the toial Court. r "^s^ ^. ^y &) -I- (9) Consequenfly the instant appeal is dismissed subject to the above mentioned observation regarding doctrine lis pendens and bonafkfe purchaser. Sd/- Prashant Kumar Mishra Judge Q. K ^