1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.08.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.80 of 2011 and MISCELLANEOUS PETITION Nos.1 and 2 of 2011 Dr.Samuel Abraham .. Appellant Vs. Dr.V.Nammalvar represented by his power of attorney viz., K.N.Saravanan .. Respondent Civil Miscellaneous Appeal has been filed under Order XLIII, Rule 1(r) of the Code of Civil Procedure, 1908, against the fair and decretal order dated 10.11.2010 passed in Interlocutory Application No.3 of 2009 in Original Suit No.5 of 2009 by the Fast Track Court, Dindigul. For Appellant .. Mr.S.Harihara Ramachandran For Respondent .. Mr.A.Hariharan JUDGMENT The order dated dated 10.11.2010 passed in Interlocutory Application No.3 of 2009 in Original Suit No.5 of 2009 by the Fast Track Court, Dindigul is being challenged in the present Civil Miscellaneous Appeal. 2. The respondent herein as plaintiff has instituted Original Suit No.5 of 2009 on the file of the Court below praying to pass a decree of specific performance, wherein the present appellant has been shown as fourth defendant. During pendency of the same, the plaintiff as petitioner has filed Interlocutory Application No.3 of 2009 under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 praying to pass an order of temporary injunction. The Court below after considering the contentions urged on either side has allowed the same. Against the order passed in Interlocutory Application No.3 of 2009, the present Civil Miscellaneous Appeal has been preferred at the instance of the fourth defendant as appellant. 3. Before considering the rival submissions made on either side, it would be more useful to look into the averments made in the plaint filed in Original Suit No.5 of 2009 as well as nature of relief sought for therein. In the plaint filed in Original Suit No.5 of 2009, it has been specifically stated that the defendants 2 and 3 on behalf of the first defendant have executed the alleged suit sale agreement on 18.01.2006 in favour of the plaintiff and subsequently they sold the suit property in favour of the fourth defendant. Under the said circumstances, Original Suit No.5 of 2009 has been instituted for the relief of specific performance. https://hcservices.ecourts.gov.in/hcservices/ 2 4. During pendency of Original Suit No.5 of 2009, the petition in question has been filed in Interlocutory Application No.3 of 2009 under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908. The Court below has allowed the same. 5. The only grievance expressed on the side of the appellant/fourth defendant is that even without getting oral evidence and also marking of the alleged sale agreement dated 18.01.2006, the Court below has observed in paragraph No.9 of the impugned order to the effect that the defendants 2 and 3 on behalf of the first defendant have executed the suit sale agreement dated 18.01.2006, but the suit sale agreement is nothing, but a concoction and therefore the Court below has exceeded its limits and under the said circumstances, the order passed by the Court below is liable to be interfered with. 6. The learned counsel appearing for the respondent has contended that the present petition has been filed only for getting the relief of temporary injunction and the Court below after considering the available evidence on record has allowed the petition and therefore the order passed by the court below need not be interfered with. 7. The specific case of the plaintiff is that the defendants 2 and 3 on behalf of the first defendant have executed the suit sale agreement dated 18.01.2006 in favour of the plaintiff with regard to suit property and subsequently they sold the same in favour of the fourth defendant and therefore Original Suit No.5 of 2009 has been instituted for the relief sought for therein. 8. As rightly pointed out on the side of the appellant/fourth defendant, in paragraph No.9 of the order it has been stated that on the side of the petitioner/plaintiff, it has been established to the effect that the defendants 2 and 3 have executed the sale agreement dated 18.01.2006 in favour of the plaintiff. 9. On the side of the appellant/fourth defendant a specific contention has been putforth to the effect that the suit sale agreement dated 18.01.2006 is nothing, but concoction and under the said circumstances, the genuineness as well as validity of the suit sale agreement dated 18.01.2006 has to be decided only after getting proper evidence and therefore the finding given by the Court below with regard to the suit sale agreement dated 18.01.2006 is nothing, but supernumerary. However, the present petition has been filed for getting the relief of temporary injunction. Further it is seen from the records that on the side of the plaintiff, both oral and documentary evidence have been let in and on the side of the defendants D.W.1 has been examined in part. Under the said circumstances, this Court is of the view to give necessary direction to the Court below to dispose of Original Suit No.5 of 2009 on the basis of the available evidence on record without giving much importance to the observation made in paragraph No.9 of the order and therefore the present Civil Miscellaneous Appeal deserves to be dismissed. 10. In fine, this Civil Miscellaneous Appeal deserves dismissal and accordingly is dismissed without costs and the order passed in Interlocutory Application No.3 of 2009 in Original Suit No.5 of 2009 by https://hcservices.ecourts.gov.in/hcservices/ 3 the Fast Track Court, Dindigul is confirmed. However it is directed that the Court below should pass Judgment on merit only on the basis of available evidence on record without giving much adherence to the unnecessary observation made in paragraph No.9 of the impugned order with regard to the alleged suit sale agreement dated 18.01.2006. Further it is directed to dispose of Original Suit No.5 of 2009 before the end of October, 2011 and report the same to the Registry without fail. Consequently, connected Miscellaneous Petitions are dismissed. Sd/- Assistant Registrar (AS) /True Copy/ Sub Assistant Registrar To The Additional District Judge/ The Fast Track Court, Dindigul. Copy to The Section Officer, Judicial Section, Madurai Bench of Madras High Court, Madurai +1cc to Mr.A.Hariharan, Advocate, SR.NO.26479 +1cc to Mr.S.Harihara Ramachandran, Advocate, SR.No.26363 smn GH : 12.08.2011 : 3p/5c C.M.A(MD)No.80 of 2011 and M.P(MD)No.1 of 2011 05.08.2011 https://hcservices.ecourts.gov.in/hcservices/