THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1503 of 2008 THURSDAY THE 13TH DAY OF AUGUST, 2009 Between: A.Mannan S/o Syed Fareed, Age: 38 years, Occ: Business, R/o H.No.67 Pension Line, New Bowenpally, Secunderabad and another .. Appellants and Mr.Meraj Mohd. Khan S/o Sri Shamshuddin Khan, R/o No.65, Pension Lanes, New Bowenpally, Secunderabad and others .. Respondents THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1503 of 2008 JUDGMENT: (Per the Hon’ble Sri Justice B.Prakash Rao) This appeal is directed against the orders in I.A.No.3534/2006 in O.S.No.150/2006, dated 8-9-2008 on the file of I Additional Chief Judge, City Civil Court, Secunderabad aggrieved by the orders allowing an application purported to have been filed under Order 31 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure by the respondent No.1 herein, the plaintiff seeking interim injunction restraining the appellants along with other defendants from transferring, alienating, selling, delivering or creating charge in favour of third parties and also not to change the nature of the suit schedule property pending disposal of the suit. The appellants are the defendants 28 and 29. Briefly stated the facts of the case are that respondent No.1/plaintiff filed the suit seeking for specific performance of an agreement dated 24-2-2006 alleged to have been executed by the defendants 1 to 10 represented by one General Power of Attorney and defendants 11 to 17 represented by another General Power of Attorney in respect of the property bearing H.No.64 along with land admeasuring 550 sq yards situated at Pension lanes, Bowenpally, Secunderbad for a consideration of Rs.21,50,000/-, and on the same day paid an advance of Rs.1,00,000/-. As per the terms of the said agreement, the balance of consideration has to be paid within a period of six months and meanwhile the defendants to clear of all the tax arrears and a clear possession to be delivered at the time of registration. Even though, the plaintiff has been demanding the defendants to execute and register, however, they were dodging. Ultimately the plaintiff issued a notice on 18-7- 2006 calling upon the defendants 1 to 17 to comply their part and demanding the defendants 18 to 24 to vacate the premises. Since the same was not acceded to, hence the suit. Pending the suit, the present application has been filed pointing out that in spite of such an agreement in favour of the plaintiff and even though they are ready and willing all along, having regard to the checkered events, which include a civil proceedings in O.S.No.811/1976 and 1170/1973 and consequent appeals in A.S.11/1999 and second appeal in SA.No.19/1992, the title of the defendants 1 to 17 were upheld and yet due to increase in the land prices, the defendants appears to be making further alienations. It is only when the plaintiff approached the Sub-Registrar, Bowenpally, Secunderabad and obtained an encumbrance certificate, it was revealed that defendants 11 to 13, 15 to 17, 1 to 3, 7 and 10 have executed an Agreement of Sale-cum-General Power of Attorney dated 26-9-2006 in favour of the defendant No.23 vide document No.1920/2006 and delivering the possession in favour of defendant No.23 and payment of entire consideration of Rs.10,59,000/-. This is nothing but a collusive affair and a sham transaction created only to defeat the rights of the plaintiff, therefore, to stall any further attempts on the part of the defendants to make any alienations or otherwise, hence, the injunction. Contesting the application, on behalf of the defendants admitting the chequered events mentioned by the plaintiff, however, it was stated that the document executed by them on 3-9-2006 is not false or sham. Further, it was stated that the plaintiff has no right. Apart from the contest by the other defendants, the appellants herein who are arrayed as defendants 28 and 29 filed their counter stating that they are the purchasers of the suit schedule property under registered sale deed dated 1-12-2006 from Smt.Bilquis Sultana and 10 others and they are put in possession in pursuance of the said sale deed. The said sale is a valid consideration and title was already passed to them. It was further pointed out that even as per the plaint allegations the plaintiff is not interested in seeking the specific performance, but, only in return of advance amount of Rs.1,00,000/- with interest. Therefore, the plaintiff admittedly has not performed his part of obligation even under the said agreement and not being in possession, and further having regard to the title already passed in favour of them, the question of any indulgence or injunction as such does not arise. Hence, sought for dismissal of the application. The Court below, after taking into consideration, the submissions from both sides and holding that the appellant has knowledge of the said agreement of sale in favour of the plaintiff and yet having got executed those registered sale deeds, they are not bonafide purchasers for value without the knowledge of prior transaction. Accordingly, it was held that they are not entitled to carry on or under take any repairs in suit schedule property, hence, allowing the application the plaintiffs were injuncted against transferring, alienating, selling, delivering, mortgaging or creating charge in favour of third parties including the changing the nature of suit schedule property till the disposal of the suit. Hence, the appeal. The learned counsel for the appellant by taking us through the entire pleadings submitted that having regard to the very fact that the appellants had purchased the suit schedule property under registered sale deed for a valid consideration and they are put in possession, no indulgence can be shown nor the respondent-plaintiff is entitled to seek for any injunction. Even other wise, having regard to the nature of claim as set forth, no injunction can be granted and the respondent-plaintiff has hopelessly failed to establish any prima facie case or even the balance of convenience also does not support their case. The learned counsel appearing for the respondent No.1 submitted that having regard to the injunction, which has been granted, it is only an attempt to protect the suit schedule property from being changed till the disposal of the suit deciding the very right and claim as set forth from both sides and therefore there is no warrant to interdict with the said order. On considering of these submissions and perusing the entire material from both sides, the question which arises for consideration is as to whether on the facts and circumstances the respondent No.1 plaintiff is entitled to the injunction as sought for. At the out set, it is to be noticed that the suit is one for specific performance of an agreement of sale dated 8-9- 2008 alleged to have been executed by defendants 1 to 10 and 11 to 17. Out of the total consideration of Rs.21,50,000/- only an amount of Rs.1,00,000/- was paid on that day. Admittedly, no possession is delivered to him. The balance amount has to be paid within a period of six months. There is no whisper nor any material to show as to what attempts the plaintiff has made in pursuance of the said obligation to pay the balance amount and calling upon to receive or to execute. It is only through a notice, which has been issued on 18-7-2006, the demand is made not only for execution of the document and for evicting the other parties. Even at the time of filing of the suit, we do not find any gesture as such on the part of the respondent No.1 for depositing the entire balance or any ready factor with supporting evidence to show such payment. It is now well established that a relief of specific performance as per law is only an equitable relief and arises out of a mutual contract and the obligations arising thereunder. However, a distinction is being made in regard to the cases where that too seeking for specific performance, plaintiffs are stated to be in possession and thus for any attempt on the part of the defendants in interfering in any manner, the plaintiff can or may seek the appropriate interim orders for injunction or otherwise. However, in the present case, admittedly the plaintiff is not in possession and there being no such serious attempt on the part of the plaintiff to discharge his obligations. Even otherwise it is also now well established that in spite of establishing his case about the agreement or even a breach, the relief being an equitable relief is only discretionary and can be denied on various factors, which may also include any transfers made in the meanwhile or even 3rd parties coming into possession as such. Therefore, keeping these principles on the back, it is to be seen as to whether the respondent No.1 has made out any prima facie case showing the balance of convenience in their favour apart from the injury which he suffers. Coming to the facts of the case, there is no serious dispute as to the alleged agreement in favour of the plaintiff on 24-2-2006, which has been executed by two sets of the defendants through respective General power of Attorneys and the plaintiff had issued a notice on 18-7-2006, and later in pursuance of an encumbrance certificate which he obtained from the registrar’s office he found various alienations being made. Thus, the plaintiff is fully aware of the said further alienations. That apart, admittedly, the appellants herein are the purchasers for value under registered sale deeds dated 1-12-2006 and they are put in possession and admittedly are in possession. It is not the other defendants who claimed to be in possession. The suit has been filed on 16-10-2006. No doubt the said transaction appears to be subsequent one, however, having regard to the various transactions entered into by the parties and several chequered events and the water having been flown substantially under the bridge, it cannot be said that the original executants of the suit agreement are in possession. Even other wise in respect of the suit schedule property the title has already been passed in favour of the appellants herein along with the position. Therefore, in the circumstances, having regard to the fact that the suit is only for specific performance and the plaintiff is not in possession of the suit schedule properties, and further as rightly pointed out on behalf of the appellants in the very plaint itself there is sufficient indication given by the respondent-plaintiff that they are very much interested in the refund of the advance amount paid than the relief of specific performance and thus taking into all these circumstance and the factor that the relief of specific performance is only a discretionary one, there is no justification to stall any activity by the appellant herein in their own right, title and interest where prima facie there are no chances of winning as such nor the plaintiff could not have been compensated, the question of granting any injunction does not arise. Therefore, prima facie we are of the view that the respondent-plaintiff had in fact failed to make out a prima facie case. Coming to the balance of convenience, when admittedly the plaintiff is not in possession and several hands have changed and title also passed in favour of the appellants herein with possession, it cannot be said that the balance of convenience is in favour of the plaintiff and whereas in fact it swings in favour of the appellants only. Having regard to the aforesaid circumstances and the question of any injury being caused or loss being suffered by the plaintiff does not arise. Even otherwise the plaintiff can as well seek the appropriate damages for any loss suffered. Hence, we are of the view that the Court below was not right in holding that the plaintiff is entitled for injunction and the appellants cannot be permitted to undertake any repairs or renovation of the suit schedule property. The appeal is accordingly allowed. The Order and decree in I.A.No.3534/2006 in O.S.No.150/2006, dated 8-9-2008 on the file of I Additional Chief Judge, City Civil Court, Secunderabad are set aside. No costs. _______________ B.PRAKASH RAO,J _________________ G.V.SEETHAPATHY, J DATE:13-8-2009 grk