CHHOTA LAL YADAV Vs. SARDAR SINGH

JUDGEMENT

(1.) This is an application under Order 39 Rules 1 & 2 read with Section 151 Civil Procedure Code filed by the plaintiff in a suit for specific performance of ihe contract on the basis on the agreement to sell dated 28-1-1987 entered into between the parties fora sum of Rs. 1,90,000. The plaintiff has prayed in this application that injunction should be granted against the defendant restraining him from interfering with the possession of the plaintiff and also from alienating and charging the premises bearing No. A-53, Ami-it Puri (Ghari) near East of Kailash, N. Delhi during the pendency of ihe suit. The suit hai been brought on the allegation that there was an agreement to sell between the plaintiff and the defendant entered on 28-1-1987 in which defendant agreed to sell to the plaintiff house No. A-53, Amrit Puri (Ghari) Near East of Kailash, N. Delhi measuring 200 sq. yds. consisting of two rooms, one kitchen, bath room/latrine, toilet etc. and open land as referred to in paragraph 1 of the plaint. However, the defendant has refused to execute the sale deed as contemplated under the agreement to sell. The plaintiff is still ready and willing to perform his part of the agreement and complete the sale. In the agreement to sell there is a stipluation in Clause 2 that the defendant has receiver Rs. 50.000.00 from the plaintiff by a bank Draft bearing No.081661 dated 27-1-1987 drawn on the Indian Oveseas Bank, Defence Colony, New Delhi in favour of the vendor and the balance amount of Rs. 1,40,000.00 will be paid by the vendee after 6 months. In Clause 3 of that agreement to sell ii is also stipulated that advance ofRs.50,000.00 is given by the purchaser to the seller against which the seller has given vacant possession to the purchaser. The application has been resisted very vebemently by the learned counsel for the defendant on the ground that the respondent has never executed any agreement to sell and that in fact due to some conspiracy this document has been fabricated. In fact on some blank paper signatures of the defendant were obtained by the plaintiff with a view to make some application before the department in connection with the house which was given to the plaintiff by the respondent-defendant in March 1984, possession of which was given to him only as a caretaker in 1984 to enable him to look after the house since the respondent-defendant was in M.P. and was not in normal course able to look after the house day to day from such a long distance. Further no consideration has been paid, according to the defendant by the plaintiff. In substance the stand of the defendant is that in fact no agreement has been executed on 28-1-1987, as alleged, and no consideration has passed on to him in lieu of the agreement to sell from the plaintiff, and therefore suit for specific performance is not maintainable.

(2.) In this case only issues have been framed. I have heard the learned counsel for the parties and looked at the documents. I am of the opinion that at this stage it is not possible to come to a conclusion whether or not the agreement to sell dated 28-1-1987 is a genuine document or a forged one or whether any consideration has passed on to the defendant from the plaintiff on having the agreement to sell been entered into. However, there is no dispute that the plaintiff is in possession of the premises at this stage may be in a caretaker capacity. Nevertheless the fact lies that he is in possession of the premises. Whether the agreement to sell has been executed or in a <PG>234</PG> fabricated or forged document or any consideration has passed on between the plaintiff and the defendant on the basis of agreement to sell can only be decided after the parties have lead full evidence.

(3.) However, at this stage it may be noticed that in case the injunction is not granted in plaintiff's favour as prayed and if the plaintiff ultimately succeeds in the suit then such a decree in normal course will not be able to be executed and the very purpose of the suit would be defeated Therefore, the balance of convenience also lies in favour of the plaintiff and against the defendant. Furthermore irreparable loss and injury would be caused if the plaintiff is not granted any injunction.