1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Appeal against Order No. 49/2008 (Sadashiv Nanuji Hirapure VERSUS The State Bank of India, Tirora & 2 others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri N.R. Bhishikar, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 6, 2009. Heard the learned counsel for the appellant. By the instant appeal, the appellant challenges the order passed by the Civil Judge (Senior Division), Gondia on 29.10.2007 rejecting an application filed by the appellant for grant of temporary injunction restraining the original defendant no.1 from making the payment of difference of rent for the suit building for the period prior to its sale by the sale-deed dated 16.04.2003 to the original defendant nos.2 and 3. The appellant is the original plaintiff. The original defendant no.1 was the tenant in the suit 2 building. The suit building was owned by a partnership firm, of which the present appellant/ plaintiff and the defendant nos.2 and 9, were partners. The partnership was dissolved on 01.04.2002 and the property except the suit building was distributed among them. The suit building was sold by the plaintiff and the defendant nos.2 and 9 to the defendant nos.2 and 3 and their mother Smt. Saritabai, as per the registered sale-deed dated 16.04.2003. It is the case of the plaintiff that the defendant nos.2 and 3 started receiving rent of the suit property from defendant no.1 after the sale of the property. It is pleaded by the plaintiff that the landlord had made a demand for the increase of rent and the defendant no.1-Bank approved the increase of the rent of suit building from November-1993 by the letter dated 02.11.2006. It is the case of the plaintiff that the plaintiff and the defendant nos.2 3 and 9 were the owners of the suit building till 16.04.2003 and, therefore, they are entitled to receive the difference in arrears of rent of the suit building, in the proportion, in which they had a share in the partnership business. According to the plaintiff, his share in the partnership business being 40% he was entitled for an amount of Rs.2,18,664/- out of the amount of Rs.5,46,660/- which was payable as difference of arrears of rent for the period from November-1993 to October-2003. The plaintiff, therefore, filed a suit for the declaration that the plaintiff and the defendant nos.2 and 9 were the ex owners of the suit building and were entitled to receive the arrears of rent up to the period 16.04.2003 in the proportion of 40%, 30% and 30% respectively. The application for grant of temporary injunction restraining the defendant no.1 from paying the difference in arrears of rent to the defendant nos.2 and 3 was also filed. 4 The original defendant nos.2 and 3 resisted the claim of the plaintiff. It was stated in the reply filed to the temporary injunction application that in view of the terms of the registered sale-deed dated 16.04.2003, the plaintiff and the defendant nos.2 and 9 were not entitled to receive the difference of rent for the period from the year 1993 till the year 2003 and, therefore, the temporary injunction application was liable to be rejected. According to the defendant nos.2 and 3, the plaintiff and the defendant nos.2 and 9 had no right to claim the arrears of difference of rent. The trial Court, on hearing the parties and after perusal of the registered sale-deed came to a conclusion that the plaintiff did not have a prima-facie case and the balance of convenience was also not in favour of the plaintiff. The Court held that in fact, the defendant nos.2 and 3 would suffer grave and irreparable loss if the injunction was granted in favour of the plaintiff. 5 Shri N.R. Bhishikar, the learned counsel for the appellant, submitted that the trial Court was not justified in rejecting the temporary injunction application as the arrears of rent pertained to the year 1993 to 2003, when the plaintiff and the defendant nos.2 and 9 were the owners of the property. It is submitted on behalf of the appellant that the terms 'difference in arrears of rent' is used in the plaint so as to mean the arrears of rent i.e., the due rent and the enhanced rent. The leaned counsel for the appellant also submitted that the term 'difference in arrears of rent' was used as the plaintiff had only 40% interest in the arrears of rent. I have considered the submissions made on behalf of the appellant, perused the impugned order dated 29.10.2007 as also the registered sale-deed executed between the plaintiff and defendant nos.2 and 9 on one hand and the defendant nos.2, 3 and Smt. Saritabai on the other. There is no error 6 whatsoever in the order dated 29.10.2007 as the plaintiff had clearly failed to prove a prima-facie case and also failed to prove that the balance of convenience was in his favour. A perusal of the registered sale-deed dated 16.04.2003 clearly shows that the vendors had given the right and authority to the vendees to receive the enhanced rent which was due and payable by the tenant. The sale-deed does not speak of there being any arrears of the agreed rent being payable to the vendors. A perusal of the plaint makes it clear that the amount of Rs.5,46,660/- was deposited by the defendant no.1- Bank towards the difference in arrears of rent. It is also not the case of the plaintiff in the plaint that the Bank had not paid the agreed rent to the plaintiff till the property was sold. The plaintiff has himself categorically pleaded in the plaint and also stated in the prayer clause that the said amount was payable by the defendant no.1 towards the difference in 7 arrears of rent. It is also stated in paragraphs 5 and 6 of the plaint that the Bank had approved the increase of rent of the suit building with effect from Month of November-1993 by its letter dated 02.11.2006 and the arrears of rent for this period worked out to Rs.5,46,660/-. The sale-deed created a right in the defendant nos.2 and 3 and Saritabai to receive the enhanced rent. The word 'difference in arrears of rent' clearly pertained to the enhanced rent which was due and payable by the Bank to the original landlord but, this right of receiving the increased rent was passed on by the landlord to the defendant nos.2, 3 and Saritabai by registered sale- deed dated 16.04.2003. In this background, in the face of the registered sale-deed, the application filed by the plaintiff for grant of temporary injunction application was totally misconceived. The plaint pleadings make it absolutely clear that the plaintiff was trying to lay a claim on the enhanced rent 8 though the enhanced rent was due and payable only to the defendant nos.2, 3 and Saritabai in view of the registered sale-deed dated 16.04.2003. The trial Court was justified in holding that the plaintiff neither had a prima-facie case nor was the balance of convenience in favour of the plaintiff. The trial Court also rightly held that the defendant nos.2 and 3 would suffer grave and irreparable loss if the injunction is granted in favour of the plaintiff. In the result, the appeal fails and is dismissed with no order as to costs. JUDGE APTE