C UNNIKRISHNAN Vs. AUSTIN BENNAN

JUDGEMENT

(1.) Appellants are defendants 3 and 4 in O.S.No.22/2011. The said suit was instituted by the Ist respondent herein seeking specific performance of an agreement for sale dated 5.3.2010 alleged to have been entered into between him and respondents 2 and 3 in this appeal. Briefly put, the case of the appellants is as follows:

(2.) Along with the suit the Ist respondent had filed an application for injunction restraining the respondents 2 and 3 from alienating the property. There was no order of injunction. Respondents 2 and 3 denied having executed any agreement in the written statement. They also stated that they had entered into an agreement dated 20.5.2008 with the appellants for sale of the property and had subsequently assigned the property for an amount of Rs.35 lakhs to the appellants under a registered document dated 5.1.2011. Thereupon, the Ist respondent filed an application to implead the appellants. On that petition notice was ordered to the appellants. The date of appearance was 23.5.2011. On 23.5.2011 the appellants appeared. The case was posted to 25.5.2011 for counter. Appellants filed counter. In the meantime, the Ist respondent filed I.A.No.736/2011 for an order of injunction restraining the appellants from alienating the property, giving possession of the property to others and committing act of waste therein. Appellants filed detailed objection. It is specifically pointed out that after purchase of the property they have improved the property spending more than Rs.15 lakhs and had assigned portions thereof to 127 persons as per registered documents, the particulars of which were also furnished along with the objections. Such documents were executed between 8.2.2011 and 27.4.2011. It is stated that they have entered into agreements with 7 persons for sale of the property. Such agreements were executed between 2.3.2011 and 29.3.2011. Annexure-I purports to be the objection filed by the appellants. However, the court below passed the following order.

(3.) Feeling aggrieved by the same, the appellants are before us. We heard the learned counsel for the appellants and learned counsel for the respondents at the admission stage itself. Learned counsel for the appellants would reiterate his contentions. He emphasizes that even prior to the alleged agreement relied upon by the Ist respondent the plaint schedule property itself had been assigned in favour of the appellants and what is more subsequently portions have been assigned to others who are not made parties. Agreement was also entered in respect of balance portion of the property and it is not a fit case for the Court to grant the relief sought for, it is contended. There is no discussion at all in the order. Learned counsel also brought to our notice the decision of the Apex Court in Seema Arshad Zaheer v. Municipal Corporation, 2006 4 KerLT 65 wherein the Apex Court has referred to the principles applicable in the matter of grant of temporary injunction. He also relied on the decision in P.Muthukoya v. M.Muthukoya,1988 1 KerLT 664 for the very same proposition. He would therefore submit that the order has to be set aside.