M G SRINIVAS Vs. YELLAMMA

JUDGEMENT

(1.) This appeal is preferred by the appellant against the impugned order dated 27.06.2012 passed on I.A.No.2 filed under Order XXXIX Rules 1 and 2 r/w Sec. 151 of Civil Procedure Code in O.S.No.135/2012 on the file of Senior Civil Judge, and JMFC, Anekal, seeking an order of injunction restraining the defendant No.7, his agents, servants and supporters from putting up any kind of construction in and over the suit schedule property.

(2.) The plaintiff has filed a suit against the defendants for specific performance of the contract basing on an unregistered agreement of sale dated 23.01.2009. Defendant Nos.1 to 3 are absolute owners in exclusive possession of the suit schedule property depicted therein through contract of sale agreeing to sell the suit schedule property for sale consideration in a sum of Rs.47,28,000.00 and executed unregistered agreement of sale deed dated 23.01.2009 in favour of the plaintiff. As per the agreement entered into between the parties defendants 1 to 3 have received a sum of Rs.7,00,000.00 as advance in the presence of the witnesses, who have subscribed their signature. The time stipulated between the parties was eleven months to execute a registered sale deed by receiving balance sale consideration of Rs.40,28,000.00. It is stated that defendants 1 to 3 again approached the plaintiff to pay further amount of Rs.6,00,000.00. In continuation of unregistered agreement of sale dated 23.01.2009, another sum of Rs.6,00,000.00 was paid through another registered agreement of sale dated 05.12.2011. The plaintiff was ready and willing to perform his part of the contract as entered into between them, but the defendants went on postponing the matter on one pretext or the other. When the agreement of sale entered into between the plaintiff and defendants had not been performed, the plaintiff has filed the suit in O.S.No.135/2012 against the defendants in respect of the suit schedule property as depicted therein.

(3.) In that suit I.A.No.2 was filed by the plaintiff under Order XXXIX Rules 1 and 2 R/W Sec. 151 of CPC, seeking an order of injunction against the defendant No.7. Against the application filed by the plaintiff, the respondents/defendants have filed objection in detail. Subsequently the trial Court heard the arguments advanced by learned counsel for both the parties to see whether the plaintiff has established the case relating to the terms of the agreement entered into between them for seeking an ad interim injunction and also to establish whether the balance of convenience lies in favour of the plaintiff and if any, interim order as sought by the plaintiff in I.A.No.2/2012 is not granted, whether any hardship would be caused to the plaintiff. Learned Senior Civil Judge and JMFC, Anekal, on considering the application filed for seeking temporary injunction order and also contention as taken by the defendants/respondents by making objection in detail and so also ratio laid down in the decision in ILR 1992 KAR 3772 wherein it is held that under Order XXXIX Rules 1 and 2 of Civil Procedure Code prima facie case includes nature of suit and maintainability, no temporary injunction, if suit is not maintainable, this was also observed in the impugned order, which was made by the plaintiff apart from that reliance was also placed on the decision in ILR 1996 KAR 1905 wherein first of all it is argued that no suit is maintainable under Order II Rule 2 of CPC. On considering all these aspects, the learned Senior Civil Judge and JMFC, Anekal, had come to the conclusion that the plaintiff/applicant did not establish his case for seeking ad interim temporary injunction. Consequently the application came to be dismissed assigning the above reasons. Aggrieved by the impugned order the plaintiff is before this Court in this appeal.