DHARAM PAL Vs. RAMESH MINOCHA

JUDGEMENT

(1.) This appeal arises out of the order dated 10th November, 2004, passed by the learned Single Judge dismissing the application filed by the appellant/plaintiff praying for grant of an injunction. The appellant as plaintiff filed a Suit for declaration and injunction in respect of the suit property. Along with the said Suit, an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, 1908 was also filed by the appellant/ plaintiff praying for a restraint order restraining the defendant/respondent from alienating, selling or disposing of the suit property. The said application was considered by the learned Single Judge who, after due consideration of the pleas taken, dismissed the application holding that on consideration of the prima facie case, balance of convenience and equity, no case is made out for grant of injunction. The said order is challenged in this appeal on which we have heard the learned counsel appearing for the parties.

(2.) A bare perusal of the impugned order would indicate that the appellant/plaintiff suppressed very vital and material information which were not disclosed. The appellant/plaintiff did not bring on record several documents along with the plaint such as the registered general power of attorney as also the will dated 1st September, 2004. No whisper is made about the execution of the aforesaid documents by the appellant/plaintiff either in the plaint or in the. application filed for interim orders. The appellant has taken up a plea in the present appeal that respondent No. 1 forced appellant No. 1 to enter into an agreement to self the property in question for a sum of Rs. 24,24,500/- only, which is much lower than the market price. Further plea of the appellant/plaintiff is that due to fact that the plaintiff is a resident of Malaysia, he had no option but to sign the agreement to sell under coercion. It was also alleged that the respondent did not sign the said agreement to sell and retained the original agreement to sell with him. It was submitted that only a photocopy of the said agreement to sell was handed over to the appellant. It was also stated that earnest money was paid by the respondent by two cheques of one lac each which were encashed by the appellants. Thereafter, the agreement to sell was also executed for a sum of Rs. 12,12,000/- with respondent No. 1 and for a sum of RS. 12,12,500/- with respondent No. 2, who is the wife of respondent No. 1, for sale of the suit property. The learned counsel for the appellant has submitted that in that view of the matter, the respondents do not and cannot claim any right and title in respect of the suit property and consequently they should not be allowed to make any construction in the suit property and a restraint order is required to be passed in that regard.

(3.) On appreciation and scrutiny of the record, however, we find that although a restraint order was sought for, but no such order was passed by the learned Single Judge as a result of which the earlier construction which was existing in the suit property was demolished and a new construction was made which is also now complete. In that view of the matter the application seeking for injunction itself could be said to have become infructuous. Be that as it may, since the issue was considered by the learned Single Judge, which is under challenge in this appeal, we would like to give / our decision and opinion on the issue posed before us.